Section of Family Law
Case Update
   
    December 2010
    Volume 14, No. 12

 

 

Family Law Cases from Around the Nation
December 1 through December 31, 2010

Antenuptial Agreement

Robinson v. Robinson
No. 2090682
(Alabama Court of Civil Appeals, December 10, 2010)

Antenuptial agreement was fair, just, and equitable from husband's point of view; there was no evidence of fraud or duress in the execution of the agreement, husband voluntarily signed agreement, husband had attended and graduated from law school, which included courses in contracts and estates and trusts, agreement was clear with respect to rights each party was relinquishing, agreement listed every piece of real and personal property each party owned at time of marriage, failure to disclose values of properties did not void agreement, especially given that listing of those properties put parties on notice of their existence, and husband was aware that wife's family possessed large amount of real property.

Read opinion (AL Appellate Watch @ www.alabamaappellatewatch.com)

Child Custody

In re Melancon
No. 2010 CU 1463
(Louisiana Court of Appeal, First Circuit, December 22, 2010)

Non-parent had no right of action under statutory provision that allowed for parents to agree to custody of a child, even though child conceived by artificial insemination had only one known biological parent, and that parent agreed to joint custody with non-parent, where statute disclosed a cause of action for shared or joint custody only to legal parents. Further, non-parent who sought joint custody of child with child's only known biological parent failed to allege a cause of action under statutory provision that allowed for an award of custody to a person other than a parent, absent a showing that an award of joint custody or of sole custody to either parent would have resulted in substantial harm to the child.

Read opinion (LA COA First Circuit @ www.la-fcca.org)

Smith v. McDonald
458 Mass. 540
(Massachusetts Supreme Judicial Court, December 14, 2010)

Judge lacked statutory authority to compel mother of child-out-of-wedlock who had moved out of state before paternity was established to return child to state without altering physical custody; by ordering child returned to state and awarding mother physical custody, court essentially ordered mother to return to state as well, and father had no legal rights vis-a-vis the child at the time of the move.

Read opinion (Social Law Library @ www.socialaw.com)

M.S. v. C.S.
No. 03A01-1003-DR-140
(Indiana Court of Appeals, December 7, 2010)

Order approving petition filed by mother and mother's same-sex partner for joint custody of child, who was born during the relationship as result of artificial insemination of mother with donor semen, with parenting time to partner was void and, therefore, was legal nullity that was subject to mother's collateral attack; trial court lacked statutory authority to grant petition that did not strictly comply with statutory requirements for stepparent adoption.

Read opinion (IN Courts @ courts.in.gov)

Child Support

In re Paternity of D.L.
No. 88A01-1002-JP-224
(Indiana Court of Appeals, December 21, 2010)

Presumed father, who had admitted to paternity, been ordered to pay child support, and exercised regular visitation with out-of-wedlock child for over ten years, waived claim on appeal from denial of his request to be relieved from paying child support arrearage, after genetic testing established another man as child's biological father, that trial court should have disestablished paternity upon determination that he was not hild's biological father, where presumed father never filed motions to disestablish paternity, to vacate paternity order, or for relief from judgment.

Read opinion (IN Courts @ courts.in.gov)

Department of Revenue v. Pipkin
No. 5D09-1995
(Florida District Court of Appeal, Fifth District, December 3, 2010)

On petition by Department of Revenue (DOR), on behalf of child's relative caretaker, seeking support and health insurance for the minor child, no income could be imputed to child's unknown father, whom mother allegedly refused to identify, when determining mother's child support obligation, and thus mother was responsible for 100 percent of support obligation; there was no evidence regarding unknown father's earnings or potential earnings.

Read opinion (FL Fifth District COA @ www.5dca.org)

Property Division

Shaulson v. Shaulson
No. 29978
(Connecticut Appellate Court, December 28, 2010)

Husband's expenditure of $150,000 to furnish his new home, during marriage dissolution action, constituted dissipation, as basis for charging that amount to husband's portion of divided marital assets; such expenditure was excessive and not in accordance with husband's previously "minimalist" furnishings, and the expenditures occurred in the context of husband spending no less than $250,000, and possibly as high as $485,000, for trips, gifts to his fiancee, and household furnishings.

Read opinion (CT Judicial Branch @ www.jud.state.ct.us)

Smith v. Smith
No. 02A03-1005-DR-276
(Indiana Court of Appeals, December 20, 2010)

Trial court abused its discretion in division of marital estate in dissolution action by making net award to wife of $11,441, which was more than 100% of the marital estate, and net award to husband of -$4,978; property division could not exceed the value of the marital assets without being considered an improper form of maintenance and an abuse of discretion.

Read opinion (IN Courts @ courts.in.gov)

McMurry v. McMurry
No. S-10-0039
(Wyoming Supreme Court, December 15, 2010)

Trial court acted within its discretion in equally dividing assets even if a significant portion of property was husband's separate property and traceable to gifts from his father, in divorce action, as it was still within jurisdiction of trial court to divide between husband and wife, incidental to dissolution of the marriage and the distribution of all marital assets, based on equitable considerations including wife's ill health and current living expenses, to which witness testified.

Read opinion (WY Judicial Branch @ www.courts.state.wy.us)

Angell v. Angell
No. A09-349
(Minnesota Supreme Court, December 9, 2010)

Award to wife as beneficiary of son's Servicemembers' Group Life Insurance (SGLI) and federal death gratuity program was not in the nature of a support obligation or subject to unfair hardship provision of property division statute which allowed court to award a spouse up to one half of non-marital property and, thus, was not exempt from federal anti-attachment statutes; Congress spoke with force and clarity in directing that such proceeds belonged to the named beneficiary and no other.

Read opinion (MN State Law Library @ www.lawlibrary.state.mn.us)

Spousal Support

In re Marriage of Harris
Nos. CC 0630166; CA A136179; SC S057887
(Oregon Supreme Court, December 20, 2010)

Significant asset distribution upon dissolution of marriage and the financially comfortable lifestyle available to wife during the marriage did not disqualify her from an award of compensatory spousal support based on her contributions in helping husband through the years it took for him to obtain his dental degree; wife would almost certainly have received same distribution of marital assets if she and husband had married after he completed dental degree, and husband still had a remaining 17-to-27 year highly productive earning career.

Read opinion (OR Judicial Dept. @ www.publications.ojd.state.or.us)

New Feature!
New Law Review Articles of Interest

Margaret Ryznar, All's Fair in Love and War: But What About in Divorce? The Fairness of Property Division in American and English Big Money Divorce Cases, 86 North Dakota Law Review 115 (Dec. 2010)

The Honorable Roderick L. Ireland, In Goodridge's Wake: Reflections on the Political, Public, and Personal Repercussions of the Massachusetts Same sex Marriage Cases, 85 New York University Law Review 1417 (Nov. 2010)

Brianna F. Issurdutt, Child Custody Modification Law: The Never Ending Battle for Peace of Mind, 10 Nevada Law Review 763 (Summer 2010)

Jill E. Tompkins, Finding the Indian Child Welfare Act in Unexpected Places: Applicability in Private Non Parent Custody Actions, 81 University of Colorado Law Review 1119 (Fall 2010)

Robin S. Lee, Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal to Return Our Children, 17 Cardozo Journal of Law & Gender 109 (Fall 2010)

Amy D. Ronner, When Courts Let Insane Delusions Pass the Rational Basis Test: The Newest Challenge to Florida's Exclusion of Homosexuals from Adoption, 21 University of Florida Journal of Law and Public Policy 1 (April 2010)

Kristen M. Benvenuti Pytel, Left out No Longer: A Call for Advancement in Legislation for Posthumously Conceived Children, 11 Journal of Law in Society 70 (Fall 2009/Winter 2010)

 

  

    Cases digested from the following sources: Aspen Family Law Update, The Family Law Reporter (BNA), FindLaw Family Law Update, and USA Lawyers’ Weekly.
 
  
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