State Bar of Texas Section Report - Family Law - Summer 2009
by Jimmy L. Verner, Jr.
Agreements: The Washington Supreme Court characterized a premarital agreement as substantively unfair because it “severely restricted the creation of community property,” but the court split on whether providing the first draft of the agreement to the bride eighteen days before the wedding amounted to procedural unfairness. In re Bernard, 204 P.3d 907 (Wash. 2009). A Virginia appellate court refused to uphold a marital agreement that purported to transfer all marital assets to the wife and all marital debts to the husband upon divorce because the husband had signed it while on a weekend furlough from a hospital’s psychiatric ward where he was being treated for chronic and severe schizoaffective psychosis. Bailey v. Bailey, 2009 WL 1438245 (Va. App. May 26, 2009). When the parties divorced in 2005 under a settlement agreement that required the husband to pay the wife $7.5 million in 2006, but the former husband paid his ex-wife twelve days late, a divided Connecticut court of appeals upheld an award of interest from the date of the parties’ 2005 settlement agreement because the settlement agreement required interest ‘from the date hereof’ if the ex-husband were late on the 2006 payment. Dougan v. Dougan, 2009 WL 1328955 (Conn. App. May 19, 2009).
Child Support: A New York appellate court upheld imputation of $750,000 in annual income to a father when an independent forensic accountant identified cash flows not reflected on tax returns and the father, a convicted felon, documented $3 million he received from his father, also a convicted felon, as a loan by signing a promissory note to his father two days before trial. Fabrikant v. Fabrikant, ___ N.Y.S.2d ___, 2009 WL 1444155 (App. Div. May 26, 2009). A statutory percentage could be applied to the full amount of a Mississippi father’s annual income given the family’s lifestyle, the child’s private school tuition and the fact that the mother did not intend to work until the child reached eighteen. Smith v. Smith, 2009 WL 1451340 (Miss. App. May 26, 2009). A Washington trial court erred when it ordered reimbursement of child care expenses in the amount of $400 per month plus medical expenses because the obligee did not introduce any canceled checks or other documentary evidence showing that she actually paid the expenses. In re Fairchild, 148 Wash. App. 828, 201 P.3d 1053 (2009).
Custody: That a mother had an affair with a married man, borrowed $43,000 to buy a car and intended to enroll in law school were among the factors leading the Georgia Supreme Court to affirm a trial court’s grant of primary custody to the father. Rembert v. Rembert, 674 S.E.2d 892 (Ga. Mar. 23, 2009). The Mississippi Supreme Court reversed a trial court’s change of custody from the mother to the father when the trial court “was so combative, antagonistic, discourteous, and adversarial” toward the mother that she was denied a fair trial. Schmidt v. Bermudez, 5 So.3d 1064 (Miss. 2009).
Dissipating property: An Iowa appellate court found that a husband dissipated marital property when he “single-handedly spent most, if not all” of his wife’s military pay earned while she served for a year and a half in Iraq. In re: Leininger, 2009 WL 606233 (Iowa App. Mar. 11, 2009). A New York appellate court upheld a dissipation finding when a husband who claimed physical injuries but refused to furnish medical authorizations simply closed his masonry business during the parties’ divorce. Scala v. Scala, 59 A.D.3d 1042, 873 N.Y.S.2d 787 (2009). Evidence that a husband spent at least $383,551.83 over a five-year period on a translator in Belarus named “Nina,” who sent the husband sexually explicit emails and photos, supported a Florida court’s finding that the husband had dissipated marital resources. Rabbath v. Farid, 4 So. 3d 778 (Fla. App. 2009).
Division: In New York, telling your husband that a child is his when it isn’t does not constitute “egregious fault” to be taken into account when distributing marital property equitably upon divorce. Howard S. v. Lillian S., 876 N.Y.S.2d 351 (App. Div. 2009). Neither maintenance payments to a former spouse nor payments on a spouse’s student loan were considered for equitable distribution purposes when both parties had used martial funds “to pay for their own obligations or to aid other family members.” Mahoney-Buntzman v. Buntzman, ___ N.E.2d ___, 2009 WL 1227875 (N.Y. May 7, 2009). Despite the parties’ inadequate financial presentations at trial, resulting in “a Gordian knot of poorly documented and otherwise unexplained premarital and marital financial dealings,” a Maine trial court nonetheless erred by applying partnership law to determine the parties’ assets and liabilities upon marriage because the parties were not partners before marriage. Ayotte v. Ayotte, 966 A.2d 883 (Me. 2009).
Move-away cases: A Virginia appellate court allowed a wife to move the parties’ children to Wisconsin, where her extended family lived, noting that the husband had “exhibited little to no interest in spending time with his sons until he learned wife was keeping a detailed log of his behavior toward the children and was planning to file for divorce.” Judd v. Judd, 53 Va. App. 578, 673 S.E.2d 913 (2009). When divorced parents disagreed about nearly everything (e.g., whether a child could “swim without adult supervision, go out on a lobster boat, help load a wood stove [or] ride a razor scooter”), and the mother displayed a more nurturing and supportive parenting style, a Connecticut court allowed the mother to move the child to Virginia when her employer transferred her there. Lederle v. Spivey, 113 Conn. App. 177, 965 A.2d 621 (2009). Holding “that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana,” the Montana Supreme Court reversed a trial court decision changing custody to the father when the mother wanted to move from Terry to Kalispell, a distance of about 700 miles. In re Marriage of Guffin, ___ P.3d ___, 2009 WL 1395412 (Mont. May 19, 2009).
Troxel update: A New York court held that a former domestic partner lacked standing to seek joint custody of the other’s child, born while the parties were together, because standing requires that one be a biological or adoptive parent of a child. Debra H. v. Janice R., 877 N.Y.S.2d 259 (App. Div. 2009). The Delaware Supreme Court ruled identically when only one partner had adopted the child. Smith v. Gordon, 968 A.2d 1 (Del. 2009). In Arizona, a court of appeals vacated a trial court’s temporary order granting a parent and her former partner equal visitation with the parent’s child, holding that the trial court had “failed to employ adequate procedural and evidentiary safeguards to protect the interests of the legal parent.” Egan v. Fridlund-Horne, ___ P.3d ___, 2009 WL 995794 (Ariz. App. Apr. 14, 2009). A couple with whom a deceased mother and her son had lived obtained custody of the son because the trial court found the father to be an unfit parent, evidenced by his lack of interest in the child, his failure to pay any child support and his lengthy criminal record. Florio v. Clark, 674 S.E.2d 845 (Va. 2009).