Family Law From Around the Nation - Winter 2008
State Bar of Texas Section Report - Family Law - Winter 2008
by Jimmy L. Verner, Jr.
Alimony: The Utah Supreme Court approved a divorce decree that increased alimony as each child reached majority because the reduction in child support necessarily enhanced the obligor spouse’s ability to pay. Richardson v. Richardson, ___ P.3d ___, 2008 WL3835161 (Utah 2008). If a divorce settlement agreement does not say whether spousal support payments are to end upon death – one of the requirements for such payments to be alimony - then the tax court may look to state law to determine whether the obligation survives death. Johanson v. Commissioner of Internal Revenue, 541 F.3d 973 (9th Cir. Sep. 3, 2008). In a case where contractual alimony would terminate upon the former wife’s cohabitation with an unrelated adult for sixty substantially consecutive days, the New York Court of Appeals found the word “cohabitation” to be ambiguous, reversed judgment for the former wife and remanded for further proceedings. Graev v. Graev, 11 N.Y.3d 262, ___ N.E.2d ___, 2008 WL 4620698 (N.Y. 2008).
Child support: The Indiana Supreme Court held: “First, in a claim for Parenting Time Credit under the Child Support Guidelines, the word ‘overnight’ means overnight and not something else. Second, business deductions taken by a spouse that may be ordinary for tax purposes are not necessarily determinative for child support purposes. Third, payments to a former spouse for division of property are not deductions for child support purposes.” Young v. Young, 891 N.E.2d 1045 (Ind. 2008). A California trial court did not abuse its discretion when it found that the duty to pay child support survives an obligor’s incarceration but reserved jurisdiction to determine the amount of support should the inmate begin receiving any income. El Dorado County Department of Child Support Services v. Nutt, 167 Cal. App. 4th 990 (2008). Because conviction under the Child Support Recovery Act requires a “willful” failure to pay, a defendant may present evidence and argue that he did not know he was the father and therefore could not “willfully” have failed to pay. United States v. Kerley, 544 F.3d 172 (2nd Cir. 2008).
Ethics: The California Supreme Court held that “structural” disqualification of a law firm based on failure to maintain ethical screens between internal units applies to cases involving simultaneous representation, not successive representation. In re: Charlisse C., 45 Cal. 4th 145 (2008). In Connecticut, a contingent fee agreement for a contempt proceeding did not violate the prohibition on contingent fees in divorce cases because a contempt is not a divorce. Gil v. Gil, 956 A.2d 593 (Conn. App. 2008). The wide discretion exercised by family court judges does not include defaulting parties who fail to appear because incarcerated and sentencing them, in absentia, to jail for failing to appear. In re: Jung, ___N.E.2d ___, 2008 WL 4701028 (N.Y. 2008) (per curiam) (removal from judicial office affirmed).
Federal jurisdiction: An ex-husband failed to pay his ex-wife $40,000 as ordered by a New Jersey divorce court; the ex-wife failed to sign a deed conveying a condo to him. The ex-husband quit paying on the condo, so the bank foreclosed on it. After much convoluted maneuvering by the parties, the ex-wife sued the husband and five other defendants in federal court based on diversity of citizenship. The district court dismissed the case for lack of subject-matter jurisdiction under the “domestic relations” exception. Citing Marshall v. Marshall, 547 U.S. 293 (2006), and Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Third Circuit reversed, emphasizing that the “domestic relations” exception is narrow, encompassing “only cases involving the issuance of a divorce, alimony, or child custody decree.” Matusow v. Trans-County Title Agency, 545 F.3d 241 (3d Cir. 2008).
Property: A California appellate court held that separate property conveyed into a community property trust under a transmutation agreement remained community property upon divorce even though the transmutation agreement recited: “This agreement is not made in contemplation of a separation or marital dissolution and is made solely for the purpose of interpreting how property shall be disposed of on the deaths of the parties.” In re: Holtemann, 83 Cal. Rptr. 3d 385 (Cal. App. 2008). The Delaware Supreme Court reversed a trial court’s disproportionate property award to a wife because the trial court failed to consider the husband's contributions of premarital and inherited property to the marital estate and the payment of marital funds to the wife after separation. Harmon v. Harmon, 2008 WL 4946212 (Del. Supr. 2008) (not for publication). A Missouri husband’s testimony that he and his wife intended her premarital home to be purchased and paid for with joint funds, that the wife bought the house in anticipation of marriage and that he improved the home by sweat equity was insufficient to classify the home as marital property. In re: Altergott, 259 S.W.3d 608 (Mo. App. 2008). A Massachusetts appellate court likened a limited liability company to a corporation when ruling that a husband held a membership interest in the LLC but no interest in LLC assets. Millennium Equity Holdings, LLC v. Mahlowitz, 895 N.E.2d 495 (Mass. App. 2008).
Life as property? An Indiana appellate court joined other jurisdictions in holding that growing crops should be included “in the marital pot” upon divorce. Webb v. Schleutker, 891 N.E.2d 1144 (Ind. App. 2008). Perhaps similarly, an Oregon appellate court affirmed a trial court's order that frozen embryos be destroyed, per the former wife’s request, reasoning that the embryos constituted personal property that the trial court was authorized to award upon divorce. Dahl v. Angle, 194 P.2d 834 (Ore. 2008) (collecting frozen embryo cases).
Modification: Increased rancor between the parents proved sufficient to establish changed circumstances allowing a trial court to modify an agreed joint custody order to grant sole custody to mother, especially when the only telephone number father would give to mother was his girlfriend’s cell phone, father had mother arrested for trespassing when she dropped off the children at his residence in compliance with the custody agreement, and father revoked his agreement to the children’s summer vacation with mother at the last minute to “get even” with mother. Also supporting the decision: Father had gotten the children to school late “upwards of 10 times,” had moved three times in one year and planned to move again, and had not given mother the right of first refusal when he could not keep the children. Ferguson v. Whible, 865 N.Y.S.2d 156 (App. Div. 2008).
How many? In Carmona v. Carmona, 544 F.3d 988 (9th Cir. Sep. 17, 2008), the Ninth Circuit held that ERISA forbids a participant in a joint and survivor annuity plan from changing the surviving spouse as beneficiary “after the participant has retired and the annuity has become payable.” The court observed: “Although Lupe had many wives, the dispute in this case only concerns wives number eight and nine. None of the previous seven wives are involved in the present litigation.”
