Family Law From Around the Nation - Fall 2009
State Bar of Texas Section Report - Family Law - Fall 2009
by Jimmy L. Verner, Jr.
Alimony: The Georgia Supreme Court refused to apply the “two-witness” rule to execution of a prenuptial agreement because a prenuptial agreement that sets the amount of alimony to be paid upon divorce is an agreement made in contemplation of divorce, not marriage, and therefore the prenuptial agreement statute does not apply. Dove v. Dove, Nos. 285 Ga. 647, ___ S.E. 2d ___, 2009 WL 1649681(Ga. 2009). In a dispute whether the word “salary” included bonuses when calculating alimony, the Connecticut Supreme Court held “salary” ambiguous because on one occasion during the prove-up of the parties' agreement, the ex-wife's counsel used the word “income” when referring to salary. Isham v. Isham, 292 Conn. 170, 972 A.2d 228 (2009).
Bankruptcy: A Minnesota trial court erred when it refused to order an ex-husband to pay a joint debt on property awarded to him upon divorce, despite the ex-husband's subsequent bankruptcy, because obligations resulting from divorce proceedings are not dischargeable in bankruptcy. Fast v. Fast, 766 N.W.2d 47 (Minn. App. 2009). An Oregon bankruptcy trustee failed to set aside transfers made pursuant to a divorce judgment in which the debtor wife received assets comprising less than 1% of the marital estate because the trustee alleged only constructive rather than actual fraud. Batlan v. Bledsoe, 569 F.3d 1106 (9th Cir. 2009).
Child support: A New York appellate court upheld a judgment of civil contempt (and a six-month jail sentence) when the trial court did not believe that the obligor, a fired postal worker, had a back problem that prevented him from working or really had tried to find a job. Vickery v. Vickery, 63 App. Div. 3d 1220, 880 N.Y.S.2d 724 (2009). A “change” in an account's “investment value” should not be considered income for child support purposes, but capital gains should, according to Cupkova-Myers v. Myers, 63 App. Div. 3d 1268, 880 N.Y.S.2d 736 (2009). A Connecticut court refused to enforce a stipulated family support judgment when the obligee claimed that because the judgment was tantamount to a civil judgment on which she sought execution, she need not prove the amount of any arrearage. Barber v. Barber, 114 Conn. App. 164, 968 A.2d 981 (2009).
Modification: A New York court agreed with the father that a mother's proposed move from New York to South Carolina would not be in the child's best interest, noting “that the father has exercised his visitation almost every weekend since the parties' separation and has remained active in the child's life.” Martino v. Ramos, No. 64 A.D. 657, ___ N.Y.S.2d ___, 2009 WL 2032366 (N.Y. App. July 14, 2009). In Perry v. Korman, 63 App. Div. 3d, 880 N.Y.S.2d 815 (2009), the court reversed a trial court's modification order granting custody to the father, even though the mother had moved six times in eight years, because other evidence favored the child remaining with her mother. A California appellate court mandamused a trial court that allowed a mother to move to Arizona during the pendency of a divorce because the trial court did not consider the child's best interest but only whether the father had proved a change in circumstances. Keith R. v. Superior Court, 174 Cal. App. 4th 1047, 96 Cal. Rptr. 3d 298 (2009).
Paternity: An Oregon court upheld an adjudication of paternity of a man who testified that his wife told him she had been artificially inseminated at a fertility clinic when she actually had used “an artificial insemination kit from an Internet vendor” and been inseminated by a private semen donor with the husband's help. In the Matter of the Marriage of A.C.H. and D.R.H., 229 Ore. App. 129, 210 P.3d 929 (2009). In California, a voluntary declaration of paternity signed by both parents has the “same force and effect as a judgment for paternity issued by a court of competent jurisdiction.” The appellate court reversed a paternity adjudication in famed father, who “took the child into his own home” and “held him out as his own child,” and adjudicated paternity of the biological father because he and the mother had signed a voluntary declaration of paternity. Kevin Q. v. Lauren W., 174 Cal. App. 4th 1557, 95 Cal. Rptr. 3d 477 (2009).
Property: A husband's beneficial interest in a revocable trust settled on him by his mother is not marital property in Oregon because the beneficial interest amounts to a mere expectancy. In the Matter of the Marriage of Githens, 227 Ore. App. 73, 204 P.3d 835 (2009). A New York court properly determined that only 10% of the value of a subsidiary owned by a corporation the husband organized prior to marriage should be included in the marital estate when the increase in the subsidiary's value was largely attributable to the efforts of its employees rather than its owner. Smith v. Winter, 883 N.Y.S.2d 412 (App. Div. 2009). An Indiana appellate court reminded the lower courts that a residence titled in a third party's name cannot be considered part of the marital estate without joining the third party in the divorce suit. Nicevski v. Nicevski, 909 N.E.2d 446 (Ind. App. 2009).
Settlement: In a pair of divorce cases, the North Dakota Supreme Court found one settlement agreement unconscionable but upheld another one. In Eberle v. Eberle, 2009 N.D. 107, 766 N.W.2d 477 (2009), the court held a settlement agreement unconscionable when the wife testified that the was on medication when she signed it, that the husband would not leave the house until she signed, that she did not read the agreement or consult an attorney, and that “no rational person would accept” the agreement. In Vann v. Vann, 2009 N.D. 118, 767 N.W.2d 855 (2009), the court upheld a settlement agreement despite the husband's testimony that he did not read the agreement or consult an attorney and that he suffered from alcoholism, depression and anxiety. The court noted that according to the wife, the husband “had not consumed any alcohol for three full days” prior to the date the parties signed the agreement.
UCCJEA: A New York trial court erred when it granted a Kentucky father's motion to dismiss a child custody proceeding for lack of home-state jurisdiction when the Kentucky mother had moved with the children to New York more than six months ago. The children's six-week summer vacation with their father in Kentucky during those six months “did not constitute a change in their residency.“ Felty v. Felty, 882 N.Y.S.2d 504 (App. Div. 2009).
