State Bar of Texas Section Report - Family Law - Summer 2008
by Jimmy L. Verner, Jr.
Child support: California law does not permit a county to sue a parent for child support on behalf of her relatives even though her teenaged son has gone to live with them. Plumas County Child Support Servs. v. Rodriguez, 76 Cal.Rptr.3d 1 (Cal. App.—3d Dist. 2008). The Fifth Circuit affirmed a two-year sentence for violation of the Child Support Recovery Act, rejecting limitations as a defense because failure to pay child support is a continuing offense. United States v. Edelkind, ___ F.3d ____, 2008 WL 1726175 (5th Cir. 2008). The Eleventh Circuit allowed an award of attorney's fees in litigation against the Social Security Administration to be offset against child support owed to a county's human resources department. Reeves v. Astrue, ___ F.3d ____, 2008 WL 1930587 (11th Cir. 2008). Selling items at the weekend flea market constitutes underemployment in Florida when the father used to make $100,000 each year as a builder. Bator v. Osborne, ___ So.2d ____, 2008 WL 2065854 (Fla. App.—2d Dist. 2008).
Custody: A New York court affirmed custody to a father when “the mother engaged in a course of conduct which intentionally interfered with the relationship between the child and the father.” This kind of action is “so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.” Melikishvili v. Grigolava, ___ N.Y.S.2d ____, 2008 WL 1903522 (N.Y. App. Div. 2008). In a Hague Convention case, the Eleventh Circuit declined to order a child returned to his father in Australia because, even though the child had not been harmed, the father drank nearly every day and had abused the child’s mother. Baran v. Beaty, ___ F.3d ____, 2008 WL 1991092 (11th Cir. 2008). A Florida trial court abused its discretion by striking a husband’s pleadings for discovery abuse and excluding evidence in a divorce case in which custody was at issue because a child’s best interest trumps a parent's discovery abuse. Crossin v. Crossin, 979 So.2d 298 (Fla. App.—4th Dist. 2008).
Death during divorce: A California court awarded a husband’s estate to his estranged wife rather than to his mother because the couple’s divorce had not become final when the man died, and he and his wife were trying to reconcile. Estate of McDaniel, 73 Cal.Rptr.3d 907 (Cal. App.—3d Dist. 2008). The Colorado Supreme Court confirmed that a spouse’s death moots a suit for divorce, but the husband’s death did not moot the wife’s suit to declare the parties’ antenuptial agreement invalid. Schwartz v. Schwartz, ___ P.3d ____, 2008 WL 2004230 (Colo. 2008).
Disproportionate division: The New Hampshire Supreme Court affirmed a disproportionate property division in favor of a wife when the husband lost over $1,000,000 in “risky investments,” rejecting the husband’s claim that a disproportionate division requires “dissipation” rather than “diminution” of assets. Martel v. Martel, 944 A.2d 575 (N.H. 2008). A husband fared better in the Connecticut Supreme Court even though he lost nearly $100,000 in an investment: “Poor investment decisions, without more, generally do not give rise to a finding of dissipation.” Gershman v. Gershman, 943 A.2d 1091 (Conn. 2008). The North Dakota Supreme Court upheld a disproportionate division in favor of a husband when upon separation the wife withdrew and spent $60,000 from a joint business account and incurred some $180,000 in new debt. Hitz v. Hitz, 746 N.W.2d 732 (N.D. 2008). In New York, a wife received a disproportionate division when, among other things, her husband used after-tax money totaling $1,282,138 to pay off the judgment from his first divorce. Johnson v. Chapin, 854 N.Y.S.2d 18 (N.Y. App. Div. 2008).
Grandparent rights: An Indiana trial court erred when it awarded “visitation rights nearly equivalent to those of a non-custodial parent” to a grandmother because Indiana law contemplates only "occasional, temporary” grandparent visitation that does not substantially infringe on a parent’s decision to raise her child in a particular faith – in this case, as a Jehovah's Witness. Hoeing v. Williams, 880 N.E.2d 1217 (Ind. App. 2008). An Alabama court should not have ordered grandparent visitation when the mother allowed informal grandparent visitation but objected to court-ordered visitation. J.L.W. v. E.O.J., ___ So.2d ____, 2008 WL 1915171 (Ala. Civ. App. 2008).
Necessity for counsel: A Massachusetts appellate court refused to uphold a one-page prenuptial agreement drafted by a husband who, after reading some magazines and a book, thought he did not need a lawyer's help. Eyster v. Pechenik, ___ N.E.2d ____, 2008 WL 2132587 (Mass. App. Ct. 2008). A California man who declined to obtain separate counsel when signing estate planning documents found that he had transmuted his separate property to community property after his wife sued him for divorce. In re Marriage of Holtemann, 76 Cal.Rptr.3d 615 (Cal. App.—2d Dist. 2008).
Paternity: When a convicted sex offender moved a California court to set aside another man’s voluntary acknowledgment of paternity, the court properly denied the request even though genetic testing established that the sex offender was the child’s biological father. In re William K., 73 Cal.Rptr.3d 737 (Cal. App.—3d Dist. 2008). The Pennsylvania Supreme Court allowed a man to assert his non-paternity when a genetic test excluded him as the child’s father because, although the mother might have believed sincerely that the man was the child’s father, she committed fraud by falsely assuring him that she had had no other sexual partners at the time of the child’s conception. Glover v. Severino, 946 A.2d 710 (Pa. 2008). When a New Hampshire couple broke up, the mother asserted that her boyfriend was not their child’s father and requested paternity testing, but the court refused to require it because both she and the father had acknowledged his paternity two days after the child’s birth. In re Gendron, ___ A.2d ____, 2008 WL 2097059 (N.H. 2008).
Same-sex update: California’s Supreme Court held that in light of California’s comprehensive domestic partnership legislation, there is no compelling state interest in distinguishing between domestic partnerships and marriages such that “the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.” In re Marriage Cases, ___ Cal.Rptr.3d ____, 2008 WL 2051892 (Cal. 2008). Michigan’s constitution, which defines marriage as “the union of one man and one woman,” prohibits public employers from extending health insurance benefits to same-sex domestic partners. National Pride at Work, Inc. v. Governor of Michigan, ___ N.W.2d ____, 2008 WL 1961465 (Mich. 2008). In two cases, intermediate appellate courts considered whether former domestic partners had standing to seek custody or visitation as de facto custodians of children: Mason v. Dwinnell, 660 S.E.2d 58 (N.C. App. 2008) (yes); Pickelsimer v. Mullins, ___ S.W.3d ____, 2008 WL 820947 (Ky. Ct. App. 2008) (no). In a third case, a Maryland court declined to recognize de facto parent status as a legal basis for standing. Janice K. v. Margaret K., 910 A.2d 1145 (Md. App. 2008).
Where there’s smoke: Even though a husband and his secretary denied having an affair, the trial court did not err by granting the wife a divorce on the ground of adultery when the husband did not dispute that he gave his secretary money, left his office frequently when the secretary was absent, rescinded his wife’s firing of the secretary, fired his wife from his company, moved the secretary into his wife’s old office and gave her his wife’s cell phone, rode his motorcycle around with the secretary on the back, took trips with her to Florida and to New York, hired her mother as his housekeeper and told his wife “I'm going to do more than that” when she accused him of breaking their marriage vows. Lister v. Lister, ___ So.2d ____, 2008 WL 1947310 (Miss. App. 2008).