Family Law From Around the Nation - Fall 2006
State Bar of Texas Section Report - Family Law - Fall 2006
by Jimmy L. Verner, Jr.
Jurisdiction: The Vermont Supreme Court refused to extend full faith and credit to a Virginia order that cut off a same-sex partner’s visitation with the couple’s child because Virginia “violated” the UCCJA and PKPA by issuing an order when Vermont had prior jurisdiction. Miller-Jenkins v. Miller-Jenkins, 2006 Vt. LEXIS 159 (Aug. 4, 2006). The PKPA’s six-month requirement applies to a habeas corpus petition for possession of a child. E.N. v. E.S., 852 N.E.2d 1104 (Mass. App. 2006). A New York court lacked jurisdiction to terminate a support order when the obligor subsequently obtained an out-of-state divorce decree from a state without in personam jurisdiction over the New York-domiciled obligee. Sannuto v. Palma-Sannuto, 820 N.Y.S.2d 112 (App. Div. 2006). In Pennsylvania, a trial court’s desire to “effectuate economic justice” did not justify the court’s sua sponte joinder of an ex-husband’s Hong Kong-domiciled paramour as a party and failure to serve her with process because neither court rules nor due process requirements are “optional.” Mayer v. Garman, 2006 Pa. LEXIS 1438 (Aug. 4, 2006).
Paternity/maternity: A Kentucky mother was estopped to deny her husband’s paternity of her child when divorce proceedings became bitter, given that the child’s birth certificate listed the husband as the father, and the mother previously had filed a verified petition identifying the husband as the father. Hinshaw v. Hinshaw, 2006 Ky. App. LEXIS 275 (Sept. 1, 2006). The biological father of a child born to a married woman has a vested parental right once parentage is established, a right that “may only be stripped pursuant to the statutory parental termination procedures - it may not be forfeited in a balancing test or to another man who may appear to be a more ideal father.” In re: T.K.Y., 2006 Tenn. LEXIS 757 (Aug. 28, 2006). The Michigan Supreme Court found a recitation in a default divorce decree that there were no children born of the marriage insufficient to establish that a child was not issue of the marriage and therefore to confer standing to establish paternity upon the man who fathered the child during the mother’s marriage. Barnes v. Jeudevine, 718 N.W.2d 311 (Mich. 2006). A California appellate court refused to allow “the wife of a man who fathered a child in an extramarital relationship to assert status as the child's mother, when the child’s biological mother has come forward promptly to assert her maternal rights.” Amy G. v. M.W., 47 Cal. Rptr. 3d 297 (Cal. App. 2006).
Be nice: A Mississippi appellate court granted primary physical custody of a five year old child to her Navy meteorologist father who had orders to report to San Diego when the ex-wife admitted she had prevented the new wife from picking up the child from day care, planned to change the child’s surname by hyphenation and refused to sign a therapy consent form. The father testified that the mother denied him visitation, called his new wife a “dirty whore” in the child’s presence and would not allow the child “to speak of” her little brother who had been born to husband’s new wife. Giannaris v. Giannaris, 2006 Miss. App. LEXIS 668 (Sept. 12, 2006). A California appellate court held that a husband did not transmute property interests to his wife by signing a writing literally dictated to him by the wife because the wife subjected the husband to duress and undue influence via “a continuous barrage of yelling and threats of divorce” and threatened to obstruct his relationship with the minor children if he refused to sign. In re: Balcof, 7 Cal. Rptr. 3d 183 (Cal. App. 2006).
Child Support: A New Mexico child support order registered in California that showed no arrearage did not bind the obligee when the obligor actually owed over $3,000. DeLeon v. Jenkins, 2006 Cal. App. LEXIS 1450 (Sept. 21, 2006). An Iowa court acted properly when averaging the obligor’s income over three years for child support purposes when the obligor’s overtime varied. In re: Anglin, 2006 Iowa App. LEXIS 1000 (Aug. 23, 2006). The military’s “Basic Allowance Housing” and “Basic Allowance Subsistence,” which grant extra money for housing and food when personnel live off-base, should be included as income for child support purposes. In re: D.F., 934 So. 2d 687 (La. 2006). A Kentucky appellate court rejected an equal protection challenge (prior-born v. later-born children) when an obligor complained that his child support was “increased directly as a result of the failure of the father of the other parent’s prior-born child to pay child support.” Kimbrough v. Kentucky, 2006 Ky. App. LEXIS 226 (July 21, 2006).
Private school: The Missouri Court of Appeals for the Western District affirmed the cost of attendance at Life Christian Academy as “extraordinary child rearing costs” when the mother moved the child to the school because of the child’s ADD. Nelson v. Nelson, 195 S.W.3d 502 (Mo. App. 2006). Two months later, the Missouri Court of Appeals for the Eastern District reversed a trial court for ordering that a child attend Catholic School and requiring additional child support for tuition when the husband “failed to prove that attendance at the Catholic School will meet any particular educational needs of Child.” Seyler v. Seyler, 2006 Mo. App. LEXIS 1354 (Sept. 12, 2006).
Same-sex update: The New York Court of Appeals rejected a state constitutional challenge to permitting only opposite-sex marriage, concluding that “a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples.” Hernandez v. Robles, 2006 N.Y. LEXIS 1836 (July 6, 2006). Washington State, citing the New York decision, followed suit in Andersen v. King County, 138 P.3d 963 (Wash. 2006). In California, a suit for dissolution of a domestic partnership was dismissed when the parties failed to register with the California Secretary of State, as required by the Domestic Partner Act. Velez v. Smith, 142 Cal. App. 4th 1154 (2006).
Retirement: A trial court had no jurisdiction to hear an ex-wife’s claim to survivor benefits under her deceased ex-husband’s pension, even though the ex-husband had told the Plan that the ex-wife had died, because the ex-wife never had become a beneficiary of the Plan. Cobb v. Central States, Southwest and Southeast Areas Pension Fund, 461 F.3d 632 (5th Cir. 2006). The Federal Circuit held an ex-wife entitled to a survivor annuity when the only mention of such an annuity in the divorce decree read: “The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant.” Snyder v. Office of Personnel Management, 2006 U.S. App. LEXIS (Fed. Cir. Sept. 13, 2006).
Insurance settlement: The New Hampshire Supreme Court affirmed a trial court’s decision to calculate the child support to be paid by the recipient of a lump sum personal injury settlement by “dividing his personal injury settlement over his projected lifetime to impute an income figure for the purpose of calculating child support.” In re: State of New Hampshire and Taylor, 904 A.2d 619 (N.H. 2006). In New York, a trial court did not err by dividing the marital estate equally, despite the estate’s receipt of a $240,000 personal injury settlement after wife’s injury, when proceeds of the settlement “were commingled with marital funds and thereafter spent on marital debt and numerous marital assets, including a vacant lot where the parties built a new home.” Ruzicka v. Ruzicka, 817 N.Y.S.2d 770 (App. Div. 2006).
