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).

Family Law From Around the Nation - Summer 2009

 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).

Family Law From Around the Nation - Spring 2009

State Bar of Texas Section Report - Family Law - Spring 2009

by Jimmy L. Verner, Jr.

A deal’s a deal: The New York Court of Appeals upheld the parties’ French premarital agreement, which characterized property that each spouse “may come to own subsequently by any means whatsoever” as that spouse’s separate property. Van Kipnis v. Van Kipnis, ___ N.E.2d ___, 11 N.Y. 573 (N.Y. Dec. 18, 2008). The Iowa Supreme Court held a premarital agreement valid despite claims of duress, undue influence and unconscionability, observing (among other things) that wife’s counsel had written on a draft of the agreement that it would “waive all [wife’s] rights as spouse!” In re Marriage of Shanks, 758 S.W.2d 506 (Iowa Dec. 12, 2008) (exclamation point in original). In a split decision, a Florida appellate court applied a marital settlement agreement to terminate a former wife’s alimony because she “cohabited” with another person when the prison in which she was incarcerated assigned her a cellmate. The dissent agreed with the trial court that this construction led to “an absurd result, unthinkably bizarre and at odds with any reasonable interpretation intended by the agreement drafters.” Craissati v. Craissati, 997 So. 2d 458 (Fla. App. Dec. 10, 2008). In Oregon, a dissolution settlement agreement could not be rescinded when one of the parties refused dog visitation because the settlement agreement included a severability clause. Wolf v. Taylor, 224 Or. App. 245, 197 P.3d 585 (Dec. 3, 2008).

Child Support: The Ohio Supreme Court held that a court is not required to reject an agreement between obligor and obligee to forgive child support arrearages despite a statutory proscription that a court “may not retroactively modify an obligor’s duty to pay a delinquent support payment.” Byrd v. Knuckles, 120 Ohio St. 3d 428, 900 N.E.2d 164 (Ohio 2008). Depending on several factors, an Indiana court may include a father’s retirement contributions as income for child support purposes; the court also found the mother to be voluntarily unemployed when she moved in with her employer and quit working. Saalfrank v. Saalfrank, 899 N.E.2d 671 (Ind. App. Dec. 31, 2008). A father’s failure to exercise any possession of his children (“residential time” in Washington) can warrant a child support award above the statutory advisory amount. Krieger v. Walker, No. 147 Wash. App. 952, 199 P.3d 450 (Wash. App. Dec. 29, 2009).

Custody/Visitation: In a 3/2 split decision, the South Dakota Supreme Court reversed a change of custody to a father, observing that the father “demonstrated a clear disregard for [the child’s] wellbeing when he fought tooth and nail to maintain his child support obligation [at] $150.00 per month, especially in light of [the mother’s] modest part-time income, higher education expenses, and lack of assets. [The father] used the full power of his financial resources to keep from paying an additional $213.00 per month for the basic necessities of life for his child.” Pietrzak v. Schroeder, 2009 S.D. 1, 759 N.W.2d 734 (S.D. Jan. 7, 2009). The Georgia Supreme Court refused to enforce a punitive self-executing change in visitation as against public policy when the mother moved out of state. Rumley-Miawama v. Miawama, 284 Ga. 811, 671 S.E.2d 827 (2009). The North Dakota Supreme Court affirmed a trial court’s decision to reduce a father’s visitation because his new wife was “hostile” toward his former wife. Siewert v. Siewert, 2008 N.D. 221, 758 N.W.2d 691 (2008).

Division: A Virginia appellate court reversed a trial court’s ruling that a husband pay his wife half his military retirement benefits retroactive to nearly a year prior to the filing of suit. In addition, and even though the husband was a criminal, the husband should not be required to pay the wife’s attorney’s fees of $20,000 when the husband received only a few thousand dollars more than that in the divorce. Cusack v. Cusack, 53 Va. App. 315, 671 S.E.2d 420 (Va. App. Jan. 20, 2009). A California husband’s mere assertion that property purchased during marriage is community property failed to rebut the presumption of separateness arising from the wife taking title to property in her name alone. In re: Brooks, 169 Cal. App. 4th 176, 86 Cal. Rptr. 3d 624 (Cal. App. Dec. 16, 2008). A Florida appellate court abused its discretion by awarding each spouse a half interest in the wife’s veterinary business because the award created an “intolerable situation” by forcing “two parties who have stated that they do not want to continue to work together after their divorce to do just that.” Lift v. Lift, No. 4D07-1168, ___ So. 2d ___, 2009 WL 18678 (Fla. App. Jan. 5, 2009) (Without hint of irony, the court said the parties agreed that the trial court had erred.).

Domestic violence: The federal Gun Control Act, 18 U.S.C. § 922(g)(9), forbids a person from possessing a firearm if the person as been convicted of a misdemeanor crime of domestic violence. After careful parsing of the statute, a divided United States Supreme Court held that the predicate offense need not include as an element of the crime that it was committed against one in a domestic relationship with the offender but only that the victim, in fact, stood in a domestic relationship with the offender. United States v. Hayes, No. 07-608, ___ S.Ct. ___, 2009 WL 436680 (U.S. Feb. 24, 2009).

ERISA: In the Fall 2007 FLS Report, this column reported on Kennedy v. Plan Administrator, in which the Fifth Circuit held that an ex-wife’s waiver of any interest in her deceased husband’s retirement plan in their divorce decree violated ERISA’s anti-alienation clause in the absence of a QDRO. In 2009, the United States Supreme Court affirmed the Fifth Circuit but on different grounds. The Supreme Court held that the ex- spouse’s waiver did not violate ERISA’s anti-alienation clause because the waiver assigned nothing. Nevertheless, a plan administrator must follow the plan rather than give effect to a waiver. But the Court’s decision absolved only the plan administrator: The Court did not “express any view as to whether the Estate could have brought an action in state or federal court against [the ex-spouse] to obtain the benefits after they were distributed.” Kennedy v. Plan Administrator, ___ S. Ct. ___, 2009 WL 160440, at n.10 (U.S. Jan. 26, 2009) (emphasis added). 

Odds & ends: If one applies for a green card for one’s spouse, based on an informal marriage requiring that the parties lived together, then the spouses must have lived together because “living together” means living together. People v. Hassan, No. B194141, 168 Cal. App. 4th 1306, 86 Cal. Rptr. 3d 314 (Cal. App. Dec. 3, 2008). A 17-year-old in foster care was not entitled to payment by the state for her automobile liability insurance based on the statutory requirement that foster parents provide “liability insurance with respect to a child.” In re: Corrine W., 45 Cal. 4th 522, 198 P.3d 1102 (Cal. Jan. 22, 2009). If you hide a recording device inside your daughter’s teddy bear to spy on your ex in Omaha, you might get sued in federal court. Lewton v. Divingnzzo, No. 8:2009cv00002 (U.S. Neb. Jan. 2, 2009) (Complaint).

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.”

Family Law From Around the Nation - Fall 2008

State Bar of Texas Section Report - Family Law - Fall 2008

by Jimmy L. Verner, Jr.

Best interest: A child’s love for his mother does not prevent termination of parental rights when the child’s best interest would be served by severing his relationship with his abusive and drug-addicted parents. In re: William B., 78 Cal.Rptr. 3d 91 (Cal. App. 2008). An agreement to arbitrate custody and visitation issues “violates the court’s parens patriae obligation to protect the best interests of the children and is void as a matter of law.” Fawzy v. Fawzy, 948 A.2d 709 (N.J. App. Div. 2008). After mother fled with child from Idaho to Oregon to escape father’s domestic abuse, it was not in the child’s best interest for a magistrate to order mother either to return to Idaho or to relinquish temporary custody of the child. Schultz v. Schultz, 187 P.3d 1234 (Ida. 2008).

Child support: A Mississippi court held that disability benefits received by a child because of her father’s injury must be offset against the father’s child support obligation, but the father could not receive a child support credit when disability payments exceed child support payments. Keith v. Purvis, 982 So.2d 1033 (Miss. App. 2008). A New York family law court joined the majority of courts in other states that exclude higher education loans and grants as income for child support purposes. Mariana D. v. Frank D., 858 N.Y.S.2d 864 (Queens County Family Court 2008). Another New York court erred in setting child support when one of the two children lived with the obligor because the court used the percentage rate for only one child and also “capped” the obligor's income for child support purposes based on the child living with him. Santana v. Santana, 51 A.D.3d 542 (N.Y. App. Div. 2008).

De facto parents: A Virginia court refused to adopt the de facto parent doctrine as unnecessary - because Virginia recognizes non-parent rights under its “person with legitimate interest” statute - but affirmed denial of visitation after a same-sex breakup for failure to prove harm to the child should visitation be denied. Stadter v. Siperko, 661 S.E.2d 494 (Va. App. 2008). A California juvenile court acted properly when it dismissed, without an evidentiary hearing, a grandmother’s petition to place her grandchildren with her because the grandmother’s petition showed that as a matter of law, the grandmother had not “assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection” and “assumed that role for a substantial period.” In re R.J., 2008 WL 2504687 (Cal. App. 2008).

Hague cases: A federal district court abused its discretion by deferring to a state court when asked to identify the habitual residence of the children and whether they had been wrongfully removed to the United States from Israel. Barzilay v. Barzilay, ___ F.3d ____, 2008 WL 2952427 (8th Cir. 2008). In a split decision, the Second Circuit refused to require the return of a child to her father in Chile because the father had rights only of access, not custody, under Chilean law. Villegas Duran v. Arribada Beaumont, 534 F.3d 142 C (2nd Cir. 2008). The Seventh Circuit affirmed a district court’s order that children be returned to their father in Venezuela, agreeing with the district court that the father having once struck his son with a video-game cord, if true, did not constitute clear and convincing evidence that there would be a grave risk to the children if returned to him. Vale v. Avila, ___ F.3d ____, 2008 WL 3271920 (7th Cir. 2008).

Post-judgment issues: The Ninth Circuit’s Chief Judge vehemently dissented to the majority’s award of term life insurance proceeds to the deceased’s first wife: “The majority reaches a senseless, unjust and cruel result by awarding half a million dollars to the former wife of a peace officer felled in the line of duty, leaving the officer’s widow and children out in the cold.” Life Ins. Co. of North America v. Ortiz, ___ F.3d ____, 2008 WL 2940533 (9th Cir. 2008). A California state employee transformed his retirement benefits into community property when he repurchased “service credits” after his first wife withdrew her share of them. In re: Sonne, 80 Cal.Rptr.3d 453 (Cal. App. 2008). When an ex-husband’s Social Security benefits automatically reduced the ex-wife’s share of his retirement, a Delaware trial court acted properly by reopening the parties’ agreed property division. Stanley v. Stanley, ___ A.2d ____, 2008 WL 2961790 (Del. 2008).

Underemployment: An Indiana court reversed a trial court’s dismissal of an inmate’s motion to modify child support based upon his incarceration, reiterating that under Indiana law, committing a crime “is not quite the same” as failing or refusing to work. Clark v. Clark, 887 N.E.2d 1021 (Ind. App. 2008). The Alaska Supreme Court upheld a trial court that denied a motion to modify child support when the obligor testified she quit her job for another one that paid approximately half as much because she had to travel too much to see her children but failed to document her travels. Sawicki v. Haxby, 186 P.3d 546 (Alas. 2008). The New Hampshire Supreme Court did not reach the question whether an obligor who shot himself in the face was voluntarily unemployed or underemployed because there must first be a finding that an obligor is physically or mentally incapacitated. In re Marriage of Fontaine, ___ A.2d ____, 2008 WL 3893750 (N.H. 2008).

Wrong button: Husband began an affair with wife’s sister prior to marriage and continued thereafter. Two weeks after wife signed husband’s immigration application, husband announced he was leaving but did not say for whom. Wife’s son later called wife’s sister, his aunt, to learn whether she would be joining him and his mother for lunch. Aunt was dining at a restaurant with husband; aunt mistakenly pushed “answer” instead of “stop” on her cell phone. Because son had put the call on speaker, both wife and son heard husband professing his love for aunt, assuring her “that they would be together once he got his share of money and property” from wife, and told aunt that he had married wife only to gain permanent resident status. The trial court found that husband had lied to both women and annulled the marriage based on fraud: Husband wanted to “have his cake and eat it too” by engaging in sexual relationships with wife and her sister at the same time. In re Marriage of Ramirez, 81 Cal.Rptr.3d 180 (Cal. App. 2008).

Family Law From Around the Nation - Summer 2008

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).

Family Law From Around the Nation - Spring 2008

State Bar of Texas Section Report - Family Law - Spring 2008

by Jimmy L. Verner, Jr.

Child Support: A California court held that a personal injury settlement - unallocated as to the components of damage it represented - is not income for child support purposes, likening the settlement to a “return of capital” rather than income. In re: Rothrock, 70 Cal. Rptr. 3d 881 (2008). A New York trial court correctly included a father’s pre-tax health insurance deductions, as well as an alleged “one-time payment” from the father’s employer, as income for child support purposes. Bellinger v. Bellinger, 847 N.Y.S.2d 783 (App. Div. 2007). The New Hampshire Supreme Court held that the parents’ agreement that the father’s parental rights be terminated did not constitute a “special circumstance” authorizing the trial court to order less-than-guideline child support. Carr v. Edmunds, 938 A.2d 89 (2007). A Minnesota court held that undistributed Subchapter S earnings - which the court pointed out are reported as income on an individual's tax returns although the individual does not actually receive them - are not income for child support purposes, provided that the earnings were retained for a “business reason.” Hubbard County Health & Human Servs. v. Zacher, 742 N.W.2d 223 (Minn. App, 2007) (collecting cases).

ERISA: A Plan Administrator concluded that a divorce decree ordering a father to designate his son as primary beneficiary of a life insurance policy constituted a QDRO even though the father never made that designation. Mattingly v. Hoge, 2008 FED. App. 0023N (6th Cir. 2008). The Fifth Circuit reminds us that although child support can be collected from pension benefits, the obligee must obtain a QDRO to get them. Taliaferro v. Goodyear Tire & Rubber Co., No. 06-40570 (U.S. App. 5th Cir. Feb. 7, 2008). When children from a prior marriage sued their father’s widow to enforce a prenuptial agreement in which the widow waived any claim to her husband’s retirement benefits, a district court properly dismissed the suit because the prenuptial agreement did not meet ERISA’s requirements. Greenebaum Doll & McDonald PLLC v. Sandler, 2007 FED App. 0822N (6th Cir. 2007).

Marital agreements: A New York court held that threatening divorce to induce a spouse to sign a postnuptial agreement does not constitute duress because spouses have the right to sue each other for divorce. Garner v. Garner, 848 N.Y.S.2d 741 (App. Div. 2007). Similarly, an Illinois court held that threatening divorce to induce a philandering husband to agree to convey the marital residence to the wife should the husband stray again did not invalidate the agreement. In re: Tabassum, No. 2-06-0843 (Ill. App. Dec. 7, 2007). In Massachusetts, a clause in an antenuptial agreement forfeiting a wife’s right to seek alimony should she oppose “the granting of a divorce” to the husband did not prevent the wife from seeking alimony when she did not oppose the divorce but only the terms of the divorce. Vakil v. Vakil, 879 N.E.2d 79 (Mass. 2008). A North Carolina premarital agreement (prepared from a formbook) by which each party released all rights to the other’s property – “including all marital rights” - neither divided the parties’ property nor waived equitable distribution upon divorce. McIntyre v. McIntyre, 654 S.E.2d 798 (N.C. App. 2008).

Same-sex update: In a split decision, the Rhode Island Supreme Court held that Rhode Island courts are without jurisdiction to grant divorces to same-sex couples because when the legislature enacted the divorce statute in 1961, “marriage” unequivocally meant heterosexual relationships. Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007). In New York, an appellate court held a man ineligible for survivor’s benefits under Workers’ Compensation Law because that law permits benefits to a surviving spouse, not to the survivor of a civil union entered into in Vermont. Langan v. State Farm Fire & Casualty, 849 N.Y.S.2d 105 (App. Div. 2007).

Termination: The Illinois Supreme Court held that termination of parental rights does not automatically dissolve a parent’s obligation to pay child support unless the child is subsequently adopted. Illinois Dep't of Healthcare & Family Servs v. Warner, No. 103289 (Ill. Jan. 25, 2008). A California appellate court, holding that even “abject poverty” by itself cannot warrant termination of parental rights, reversed a father’s termination because the only reason for termination appeared to be the father’s “inability to obtain suitable housing for financial reasons.” In re G.S.R., No. B197000 (Cal. App. Jan. 8, 2008).

Third parties: In a split opinion, the Connecticut Supreme Court held that Troxel’s requirements apply to third-party visitation proceedings but not to suits for custody by third parties (in this case, an aunt). Fish v. Fish, 285 Conn. 24 (2008) (collecting cases). Departing from rulings in other states, the Hawaii Supreme Court held a “best interests” grandparent visitation statute unconstitutional rather than judicially amend it to comply with Troxel. Doe v. Doe, 172 P.3d 1067 (Haw. 2007) (collecting cases). A California court of appeals reversed that part of an order that a child’s stepfather and uncle participate in sexual abuse counseling because the trial court lacked jurisdiction to order the child’s relatives - other than her parents - to do anything. In re Silvia R., 159 Cal. App. 4th 337 (2008).

Valuation: A Utah trial court correctly valued Mr. Stonehocker’s used-car dealership ("Stoney's Motors") when it excluded the value attributable to his personal goodwill. Stonehocker v. Stonehocker, 2008 UT App 11. In Tennessee, appreciation in a company's stock, which the husband received by gift from his father, did not constitute marital property because the husband did not “substantially contribute” to the stock’s appreciation merely by working for the company. Keyt v. Keyt, No. M2005-00447-SC-R11-CV (Tenn. Dec. 19, 2007). A North Dakota court did not err when it found the value of an insurance business to be less than either party (or their experts) claimed. Evenson v. Evenson, 742 N.W.2d 829 (N.D. 2007).

Family Law From Around the Nation - Winter 2007

State Bar of Texas Section Report - Family Law - Winter 2007

by Jimmy L. Verner, Jr.

Alimony: In Louisiana, fault in the breakup of the marriage prevented a wife from receiving spousal support after divorce when the wife had subjected the husband to "a pattern of mental harassment, nagging and griping which rendered the marriage insupportable." The appellate court agreed that the record contained no evidence that the husband's habit of frequenting "Gentlemen's Clubs" had been "a predicate to marital strife; rather, that seemed to be [the husband's] 'reaction' to a failing marriage." Wolff v. Wolff, No. 07-332 (La. App. October 3, 2007). A New York court did not abuse its discretion when it reduced a wife's maintenance award by $300 per month because the wife, who had taken a second job, earned more money. Haines v. Haines, No. 2006-07404 (N.Y. App. Div. Oct. 23, 2007).  

Child support: An Indiana court held a father's $1,000,000 personal injury settlement to be income for child support purposes. Knisely v. Forte, 875 N.E.2d 335 (Ind. App. 2007). The Tennessee Supreme Court ruled that income for child support purposes included $687,550 that the father received from selling property awarded to him upon divorce, as against the father's "double-dipping" argument. Moore v. Moore, No. E2005-02469-SC-R11-CV (Tenn. Sept. 5, 2007). The fact that a child who performed poorly in public school after the father withdrew the child from private school supported a New York order that the father's child support obligation would continue to include private school expenses. Aulicino v. Kaiser, 844 N.Y.S.2d 457 (App. Div. 2007). Rejecting a substantive due process defense of unreasonableness, the Illinois Supreme Court affirmed a statutory penalty of $100 per day - totaling $1,172,100 - against an employer who failed to forward withheld child support to the state. In re: Miller, Docket Nos. 104022, 104035 cons. (Ill. Nov. 29, 2007). 

Grandparents: Arizona's "move-away" statute, which requires a best interests finding before a custodial parent may move a child, does not apply to a grandparent who has court-ordered visitation. Sheehan v. Flower, No. 1 CA-CV 06-0781 (Ariz. App. Nov. 13, 2007). The Illinois Supreme Court held the contention that "a child can only benefit from a relationship with a loving grandparent" insufficient to rebut the presumption that a fit parent's decision to deny grandparent visitation is not harmful to the child, reasoning that otherwise a parent never could deny grandparent visitation. Flynn v. Henkel, Docket No. 103946 (Ill. Nov. 29, 2007). A New York court granted custody to the maternal grandmother after finding the father to be an unfit parent when the father, while intoxicated, killed the mother in a boat accident. Jodoin v. Billings, 843 N.Y.S.2d 873 (App. Div. 2007). 

Nuptial agreements: A New York court set aside a postnuptial agreement when the agreement was financially lopsided, had been drafted by the husband's attorney, and the wife had signed it while "undergoing treatment and suffering from the mental and physical effects of complications arising from a surgery." Barchella v. Barchella, 844 N.Y.S.2d 78 (App. Div. 2007). A wife's claim that she had not understood the terms of a prenuptial agreement was undercut by the fact that "she acted in accordance with the terms of the agreement throughout the marriage, maintaining separate bank accounts in her own name in which she deposited income from properties she inherited from her family." Stawski v. Stawski, 843 N.Y.S.2d 544 (App. Div. 2007). A New York court upheld a maintenance award to a wife of $3,300 per month, despite the wife's argument that the amount was insufficient, when a valid prenuptial agreement required the husband to provide "suitable housing (either rented or owned)" for the wife while the parties' child resided with her and the record supported the trial court's finding that $3,300 would suffice. Cerami v. Cerami, No. 2006-08958 (N.Y. App. Div. Oct. 16, 2007). 

Paternity: A California court granted mandamus to retract a genetic testing order when the adjudicated father questioned paternity after limitations had run but failed to invoke the court's equitable jurisdiction when he alleged only that he and the mother had not been “mutually exclusive” sexual partners and that he had "heard" that the child did not look like him. Orange County v. Superior Court (Rothert), 66 Cal. Rptr. 3d 689 (Cal. App. 2007). The Sixth Circuit affirmed a judgment (including attorney's fees) against a father who claimed that permitting a woman, but not a man, to terminate a pregnancy violates the equal protection clause of the United States Constitution. Dubay v. Wells, No. 06-2107 (6th Cir. Nov. 6, 2007). An Alaska resident who failed to pay a filing fee when he filed an answer to an Idaho paternity action and subsequently suffered a default judgment was not denied due process under UIFSA upon registration of the judgment in Alaska. Fowler v. State of Alaska, 168 P.3d 870 (Alas. 2007). A Florida court held that a man who claimed to have impregnated a married woman while she was separated from her husband could not seek paternity of the child when the husband and wife reconciled prior to the child's birth. Lohman v. Carnahan, 963 So. 2d 985 (Fla. App. 2007).

Procedure: A Louisiana trial court, reversed for sealing an entire divorce file, sealed most of the file on remand but was again reversed for sealing information that "would not impinge on the safety or security of the children." Copeland v. Copeland, No. 07-CC-0177 (La. Oct. 16, 2007). A stipulation signed by an attorney that California, rather than Texas, would have jurisdiction over child support issues bound the client despite the client's claim that his attorney had no right to waive his "substantial right" to dispute the appropriate forum in which to hear the case. Knabe v. Brister, 65 Cal. Rptr. 3d 493 (Cal. App. 2007). In New Hampshire, minor children may not intervene in their parents' divorce even when their guardian ad litem has made a custody recommendation in conflict with the children's expressed wishes. In re: Stapleford, 931 A.2d 1199 (N.H. 2007).

Property: A trial court erred by discounting the value of an S corporation by applying C corporation taxation rules and further erred by applying key man and marketability discounts when the husband intended to keep his corporate interest after divorce rather than sell it.  Bernier v. Bernier, 873 N.E.2d 216 (Mass. 2007). In Alaska, a trial court may not disregard the value of one spouse's retirement account because the court did not "have a dollar value" for it but must require the parties to produce sufficient evidence to value the asset. Mellard v. Mellard, 168 P.3d 483 (Alas. 2007). Comity did not require a Maryland court to apply Pakistani law upon the divorce of Pakistanis who were long-term United States residents when Pakistani law provided that the wife could not share in the husband's admittedly valuable pension. Aleem v. Aleem, 931 A.2d 1123 (Md. App. 2007).

Family Law From Around the Nation - Fall 2007

State Bar of Texas Section Report - Family Law - Fall 2007

by Jimmy L. Verner, Jr.

Alimony: A Missouri trial court properly awarded alimony of $550 per month to an unemployed, disabled wife, aged 55, with a 9th-grade education and no computer or clerical skills, despite the husband's insistence that he could not pay that much from his monthly earnings of $3,900. Russum v. Russum, 2007 Mo. App. LEXIS 275 (Feb. 20, 2007). The North Dakota Supreme Court refused to reduce alimony payments of $5,000 per month when the ex-husband's income dropped from $400,000 to $250,000 per annum. Rothberg v. Rothberg, 727 N.W.2d 771 (N.D. 2007).

Characterization: A North Carolina trial court did not believe a father's claim that he intended to give a mobile home park to his son when the deed recited that consideration had been paid. Joyce v. Joyce, 2006 N.C. App. LEXIS 2502 (Dec. 19, 2006). An Illinois court denied a stepfather's claim that his wife's child support judgment against her prior husband should be part of the marital estate because the stepfather had supported the wife's children during the wife's marriage to him. In re: Edwards, No. 5-06-0046 (Ill. App. Nov. 29, 2006). A trial court's mere recitation that various witnesses had testified to certain facts did not constitute findings of fact supporting a wife's reimbursement claims to the marital home. Stone v. Stone, 2007 N.C. App. LEXIS 394 (Feb. 20, 2007).

Child support: The New Hampshire Supreme Court held that employer-provided housing, vehicle and other benefits do not constitute "gross income" for child support purposes although they can be considered under a "special circumstances" statute. In re: Clark, No. 2005-531 (N.H. Nov. 29, 2006). A New Jersey court held that neither employer contributions to a 401k plan nor accretions of plan income are income for child support purposes because they are subject to penalties on early withdrawal and "would punish the father for investing wisely to secure a stable retirement." Forrestall v. Forrestall, 2006 N.J. Super. LEXIS 319 (Nov. 28, 2006). A federal court's restitution requirement for back child support, imposed after conviction under the federal Child Support Recovery Act, does not constitute a ceiling on a state court's back child support award. Giordano v. Giordano, 2007 N.J. Super. LEXIS 3 (Jan. 9, 2007). A lump-sum Social Security disability award to a disabled obligor's child can offset the obligor's child support obligation. Diehl v. Diehl, 2006 N.J. Super. LEXIS 339 (Dec. 21, 2006). K-1 income is not necessarily income for child support purposes because "how federal income taxation statutes define 'income' is of little relevance to our interpretation of gross income under the child support guidelines." In re: Albert, 2007 N.H. LEXIS 54 (Apr. 18, 2007). Depreciation on rental property cannot be deducted from annual gross income for child support purposes. Asfaw v. Woldberhan, 2007 Cal. App. LEXIS 269 (Feb. 27, 2007).

Grandparents: A maternal grandmother who served as a surrogate mother to her grandchild for five years after the mother's death prevailed in a grandparent suit after the father curtailed visitation. E.S. v. P.D., 2007 N.Y. Slip. Op. 01336 (N.Y. Feb. 15, 2007). A paternal grandmother who occasionally babysat her two-year-old grandson failed to obtain visitation more often than the child's mother would permit because she "failed to establish even a prima facie case of the requisite harm . . . to rebut the presumption in favor of parental decision-making." Rente v. Rente, 2007 N.J. Super. LEXIS 48 (Feb. 15, 2007).

Imputing income:
Courts in Connecticut and California held that for child support purposes, a court may impute a higher than actual return to an underperforming investment. Weinstein v. Weinstein, 2007 Conn. LEXIS 4 (Jan. 2, 2007) (2.96% return imputed on investment yielding 1.24%); In re: Schlafly, 2007 Cal. App. LEXIS 521 (Apr. 10, 2007) (3% return imputed on investment yielding 1.6%). But the California court refused to impute $3,000 per month as rental FMV when the obligor lived in his mortgage-free house. In Carolan v. Bell, No. And-06-332 (Me. Mar. 1, 2007), a trial court declined to impute $300 per month income to a daughter who rented a house from her parents at $1,000 per month even though the house previously rented for $1,300 per month.

Religion: When unmarried parents disagree whether a child should attend a religious or a secular school, the court must decide the matter but without taking into account conflicting religious preferences. Yordy v. Osterman, No. 95,203 (Kan. App. Jan. 19, 2007). An Arizona trial court properly granted a motion to dismiss based on absolute immunity when a mother sued the state and a court conciliator under 42 U.S.C. § 1983, alleging that the court conciliator recommended the father as primary custodian so that the child would attend the LDS church. Burk v. State, No. 1 CA-CV 06-0029 (Az. App. Mar. 12, 2007). In a divorce between Orthodox Jews, a court had no jurisdiction to consider the wife's contention that the husband's obtaining a "heter" - ecclesiastical permission to remarry without first giving the wife a "get," or religious divorce - effectively prevented the wife from remarrying. Sieger v. Sieger, 2007 N.Y. Slip Op. 01286 (App. Div. Feb. 13, 2007).

Relocation: A mother who took the parties' child from Idaho to Montana where she made a false report of domestic violence lost custody to the father. Hopper v. Hopper, 2007 Ida. LEXIS 61 (Mar. 19, 2007). A relocation agreement by Illinois parents became subject to a "best interests" determination by the court when the father accused the mother of breaching the agreement. In re: Boehmer, No. 2-06-0796 (Ill. App. Mar. 8, 2007). When an ex-spouse marries or becomes engaged to a person living in another state, Massachusetts requires the ex-spouse to prove "a real advantage" to moving (query: when would moving not be "a real advantage" to the ex-spouse?) and that the move would be in the child's best interest. Pizzino v. Miller, 2006 Mass. App. LEXIS 1327 (Dec. 26, 2006) (trial court allowed move; reversed and remanded for redetermination); Abbott v. Virusso, 2007 Mass. App. LEXIS 209 (Feb. 28, 2007) (trial court denied move; reversed and remanded for redetermination). In In re: Matchen, 2007 Ill. App. LEXIS 339 (Apr. 11, 2007), the court affirmed denial of permission to move because of the child's close relationship with the father. Dissent: A father should not have veto power over his ex-wife's proposed move.

A lesbian domestic partner who filed a custody suit in Vermont failed in her bid to prohibit Virginia's full faith and credit recognition of the Vermont judgment even though a Virginia statute declares "void" any recognition of same-sex rights originating in other states. A Virginia appellate court said that Virginia's statute did not apply, and even it it did, it would be preempted by the federal Parental Kidnapping Prevention Act. Miller-Jenkins v. Miller-Jenkins, 2006 Va. App. LEXIS 539 (Nov. 28, 2006).

The Georgia Supreme Court held that a buy-sell provision in a stockholder agreement is not conclusive of stock value upon divorce - especially when the other spouse did not sign it - because "the buy-sell price in a closely-held corporation can be manipulated and does not necessarily reflect true market value." Barton v. Barton, 2007 Ga. LEXIS 21 (Jan. 8, 2007). In contrast, a New York court affirmed a business valuation because it relied, in part, "on the yearly valuations made pursuant to the shareholders' agreement between the defendant and his brother." Daddino v. Daddino, 2007 N.Y. Slip Op. 01241 (App. Div. Feb. 13, 2007). Under the "capitalization of excess earnings" valuation method, the cost of an employee to replace the owner must be subtracted from the business' value; anything over that cost is personal goodwill. A California appellate court upheld a trial court's finding of $544,000 as an owner's replacement salary. In re: Ackerman, 2006 Cal. App. LEXIS 2056 (Dec. 27, 2006). The Iowa Supreme Court reversed a valuation of $5 million placed on trademarks owned by a business, finding the valuation to be speculative. In re: Keener, No. 05-1257 (Iowa Feb. 9, 2007). State Bar of Texas Section Report - Family Law - Fall 2007


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).

Family Law From Around the Nation - Spring 2006

State Bar of Texas Section Report - Family Law - Spring 2006

by Jimmy L. Verner, Jr.

Troxel tweaked: Troxel (530 U.S. 57) continues to ripple through the states. In Pennsylvania, “non-biological grandparents” who stand in loco parentis to a child’s parent have standing to seek visitation rights despite Troxel. Peters v. Costello, 891 A.2d 705 (Pa. 2005). A Kansas appellate court engrafted Troxel’s requirements onto Kansas’ stepparent visitation statute to make it constitutional. Riggs v. Hem, 129 P.3d 601 (Kan. App. 2006) (after musing whether it would “offend botanists” by “grafting the branch of a pear tree onto an apple tree”). Absent an allegation of parental unfitness, forcing a parent to defend against a grandparent visitation claim itself violates parents’ rights to make decisions about their children. E.g., Conlogue v. Conlogue, 890 A.2d 691 (Me. 2006) (collecting cases). However, a fit parent seeking to regain custody of a child does not enjoy Troxel’s protections because Troxel applies only to a parent who has custody of a child. In re: L.V., 38 Cal. Rptr. 3d 894 (Cal. App. 2006).

So far away: Moving to Indiana to make video documentaries for a fundamentalist missionary can lose custody for a mother in Alabama. Ex parte Snider, 2005 Ala. LEXIS 205 (Nov. 18, 2005). An Oregon court allowed the children to accompany their mother to Norway when it found that the father played “a far more limited role” in caring for the children than did the mother. Hamilton-Waller v. Waller, 123 P.3d 310 (Ore. App. 2005). When a New York mother moved to Colorado without first telling the father - and said she was staying whether or not the child returned - the trial court properly granted custody to the father. Willis-March v. Wilkerson, 803 N.Y.S.2d 231 (App. Div. 2005).

QDROs and death:
When divorced and remarried father died, second wife received his survivor benefits as against children from first marriage because there was no QDRO to effectuate assignment of rights awarded to first wife in divorce. Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir. 2006). A Maryland court allowed a post-mortem amendment to a QDRO caused by “inadvertent drafting mistakes.” Eller v. Bolton, 2006 Md. App. LEXIS 38 (Mar. 31, 2006).

Same-sex relationships:
A challenge to the Defense of Marriage Act (permits a state to deny full faith and credit to same-sex marriages from another state) failed because the same-sex couple wasn’t married in any state. Smelt v. County of Orange, California, 2006 U.S. App. LEXIS 11243 (9th Cir. Apr. 4, 2006). In Massachusetts, where same-sex marriage is allowed, nonresident same-sex couples have no right to issuance of a marriage license. Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006). In two recent cases, lesbian partners have been allowed to proceed with parental rights suits against former partners despite fact that partners were not “parents” because their former partners were inseminated artificially by third persons. In re: Parentage of L.B.,122 P.3d 161 (Wash. 2005) (en banc); In re: Parentage of A.B., 837 N.E.2d 965 (Ind. 2005).

Parentage disputes: Paternity fraud is intrinsic (not extrinsic) fraud, so Florida’s one-year limitations statute barred a suit to recoup child support. Parker v. Parker, 916 So. 2d 926 (Fla. App. 2005). South Carolina’s Supreme Court held that there is no limitations period for a paternity suit. Smith v. Doe, 623 S.E.2d 370 (S.C. 2005) (mother filed suit in behalf of mentally handicapped 34-year-old). After a wife’s death, her former lover was equitably estopped from seeking a determination of parentage against widower when former lover had reason to know he was child’s father and widower married wife knowing she was pregnant by another man. Robert P. v. Vito C., 804 N.Y.S.2d 802 (App. Div. 2005). When surrogate parents “decided to keep the triplets for themselves,” an Ohio appellate court made them pay back their $20,000 fee and $24,000 in expenses plus awarded attorney’s fees against them. J.F. v. D.B., 2006 Ohio App. LEXIS 1074 (Mar. 15, 2006) (quite a saga - four lawsuits, conflicting interstate rulings).

An agreement to terminate parental rights (along with child support obligation) is void as against public policy in California. Kristine M. v. David P., 37 Cal. Rptr. 3d 748 (Cal. App. 2006). In Georgia, a court should reject such an agreement when it is not in the child’s best interest. Taylor v. Taylor, 623 S.E.2d 477 (Ga. 2005). Being convicted of a felony in itself does not justify termination, says a California appellate court. The facts underlying the felony must show parental unfitness. In re: Baby Girl M., 38 Cal. Rptr. 3d 484 (Cal. App. 2006).

Prenuptials: After 18 years of marriage and four children, with husband’s net worth in excess of $22 million, the Georgia Supreme Court enforced a prenuptial agreement that granted wife $2,900 per month of alimony for four years and husband all the marital assets. Mallen v. Mallen, 622 S.E.2d 812 (Ga. 2005). In another case, the Georgia Supreme Court held that husband’s failure to disclose his income was material to wife’s decision to waive alimony and thus affirmed trial court’s denial of husband’s summary judgment motion. Corbett v. Corbett, 2006 Ga. LEXIS 204 (Mar. 27, 2006). A North Carolina court reversed a summary judgment for husband when wife questioned the voluntariness of the prenuptial agreement which was presented to her while en route to the wedding. Kornegay v. Robinson, 625 S.E.2d 805 (N.C. App. 2006).  An Oregon appellate court held that a choice-of-law clause in a premarital agreement meant that California law governed construction of the agreement but Oregon law applied to the property division. Procter v. Mavis, 125 P.3d 801 (Ore. App. 2005).

Child support: A California trial court erred when it included the value of stock as income for child support purposes because the stock - unlike stock options - was given in exchange for a capital asset, not as part of an employee compensation package. In re: Marriage of Pearlstein, 40 Cal. Rptr. 3d 910 (Cal. App. 2006). An attorney who filed suit for fees against his former client’s estate accepted an assignment of the former client’s interest in a child support arrearage owed by the former client’s ex-husband, but a Florida court held that the child support arrearage belonged to the children, not the estate. Thurlow v. LaFata, 915 So. 2d 737 (Fla. App. 2005). In California, a portion of a lump-sum unallocated personal injury settlement can be considered as income for child support purposes when it includes compensation for lost income and earning capacity. In re: Marriage of Heiner, 39 Cal. Rptr. 3d 730 (Cal. App. 2006). A change in exchange rates for Swiss francs constituted a material change of circumstances for child support purposes. Hixson v. Sarkesian, 123 P.3d 1072 (Alas. 2005).

Characterization: Stock options given to a husband three days before he filed for divorce were not part of the marital estate because the husband acquired them after the parties separated and to induce him to take a new job. Robertson v. Robertson, 885 A.2d 470 (N.J. Super. App. 2005). A Florida trial court was reversed for failing to consider 100% of a husband’s vacation time as a marital asset subject to division on divorce. Purpura v. Kelly, 913 So. 2d 110 (Fla. App. 2005).

Valuation: A trial court erred by failing to make “an active appreciation analysis” with respect to the increase in value of a business owned 95% as husband’s separate property, but trial court did not err by refusing to apply minority discount to wife’s 5% share of business because husband was buying out wife’s interest. Hanson v. Hanson, 125 P.3d 299 (Alas. 2005). Personal goodwill should not have been included in a Louisiana court’s valuation of a separately incorporated endoscopy center because it served merely as an extension of husband’s medical practice. Rao v. Rao, 2005 La. App. LEXIS 2354 (Nov. 4, 2005).  

A Pennsylvania appellate court affirmed an award of 100% of the martial estate plus equitable reimbursement of $83,830 to wife after husband obtained his M.D. and Ph.D. and completed his residency during marriage. Wang v. Feng, 888 A.2d 882 (N.J. Super. 2005). A California wife who siphoned off nearly all the husband’s IRA to pay bills and taxes during marriage could not be held liable for breach of fiduciary duty because legislature enacted statute creating the duty after parties’ marriage. In re: Walker, 2006 Cal. App. LEXIS 613 (Apr. 27, 2006). When parties both delayed transfer of part of 401k to wife, and the 401k declined in value, an Alabama court required the parties to share the loss. Buchanan v. Buchanan, 2005 Ala. Civ. App. LEXIS 736 (Dec. 9, 2005).