Section of Family Law : Masthead
Case Update Newsletter : Title

February 2010

Volume 14 : Number 2



Family Law Cases from Around the Nation

February 1 through February 28, 2010

Child Custody

Tammaro v. O'Brien

76 Mass. App. Ct. 254
(Massachusetts Appeals Court, February 11, 2010)

Evidence was sufficient to support trial court's decision to allow mother to remove children from Massachusetts to New Hampshire; there was evidence mother, who had a new employment position that represented a positive change both financially and professionally, had established good, sincere reasons for wanting to move to New Hampshire, which was much closer to her new position, although new position was still in Massachusetts, that move would put the children in a new home on a one-acre lot in a quiet neighborhood, close to a new elementary school, that having mother 20 minutes rather that 90 minutes away from home would be beneficial for the children, and that father could continue his visitation.

Read opinion (Social Law Library @

Child Support

Fleck v. Fleck

2010 ND 24
(North Dakota Supreme Court, February 17, 2010)

Child support calculation that imputed income to former wife who worked part-time on basis that her husband worked full-time in same field did not comport with guidelines and was erroneous as a matter of law; there was no evidence that former wife was underemployed under administrative code definition of that term, district court extrapolated from less than 12 month period to determine former wife's income, and there was no support in guidelines for court to extrapolate income based on hourly income of former wife's husband on unsupported assumption that she could find employment in position identical to husband's.

Read opinion (ND Supreme Court @

Strait v. Strait

No. 1 CA-CV-08-0721
(Arizona Court of Appeals, Division 1, Department E, February 11, 2010)

It would be unjust to consider the entire amount of the one-time, $168,000 settlement payment received by former husband from insurer, in settlement of former husband's suit against insurer relating to mold damage to home that former husband purchased after the marriage dissolution, as former husband's gross income, for child support purposes, if all or some of the settlement payment represented a recoupment of lost capital or represented funds needed to remediate the property damage.

Read opinion (AZ Court of Appeals Division One @

Fernandez v. Fernandez

222 P.3d 1031
(Nevada Supreme Court, February 4, 2010)

A stipulation entered between parties incident to divorce in which they each waived the right to seek modification of a child support order even in the event of changed circumstances was unenforceable on public policy grounds; thus, mother's purported part performance of stipulation in which parties agreed not to seek upward or downward modification of father's child support obligation did not serve to estop father from contesting the stipulation's enforceability; and father was required to establish changed circumstances for purposes of seeking downward modification of child support.

Read opinion (NV Judiciary @

Tomlinson v. Tomlinson

119 Conn. App. 194
(Connecticut Court of Appeals, February 2, 2010)

Former husband's obligation to make unallocated payments of alimony and child support to former wife, pursuant to separation agreement incorporated into marriage dissolution judgment, was not subject to modification, even after change in custody, i.e., former husband now had primary physical custody of the two children, where the separation agreement provided that former husband's payment obligation was nonmodifiable except in the case of former wife's death, remarriage, or cohabitation, none of those events had taken place, and there was no indication that the children's support needs had been affected by the change in custody.

Read opinion (CT Judicial Branch @

Divorce - Arbitration

Campbell v. Campbell

Nos. 2006-CA-001803-MR, 2006-CA-001827-MR
(Kentucky Court of Appeals, February 5, 2010)

Arbitration agreement in domestic relations case stating, that the family court judge delegated his power to enter findings and conclusions in family court to the arbitrator, and which additionally gave arbitrator authority to sanction by awarding attorney fees, and to sanction for contempt, constituted improper delegation of decision- making authority to third party in violation of family court's constitutional decision-making authority; had General Assembly intended for family court judges to be able to delegate their duties to third parties outside court system, domestic relations commissioners would not have been abolished.

Read opinion (KY Supreme Court @

Divorce - Jurisdiction

Harris v. Harris

No. 49A04-0905-CV-256
(Indiana Court of Appeals, February 17, 2010)

Trial court in marital dissolution action did not have in personam jurisdiction over husband, who was in the military and serving overseas when wife commenced action, and thus court did not have jurisdiction to divide the marital property or order husband to pay a spousal allowance, as husband never lived in Indiana at any time during the parties' marriage, and husband did not have contacts with Indiana sufficient to satisfy the Due Process Clauses of the United States and Indiana Constitutions; husband's only contacts with Indiana were paying a financial allotment to wife by sending a check to her or depositing it into an account, such contacts were incidental to wife's decision to move to Indiana with the parties' child, and such contacts did not constitute husband purposefully availing himself of the privilege of conducting activities in Indiana.

Read opinion (IN Courts @

Property Division

In re Marriage of Sonne

No. S166221
(California Supreme Court, February 22, 2010)

Only the annuity portion of husband's Public Employees' Retirement System (PERS) retirement allowance for a period of service before the marriage, and not the pension portion of the allowance, became community property when the community redeposited contributions in husband's member account to replace contributions and interest that had been transferred to a nonmember account and then withdrawn, because only the annuity derived from husband's and wife's community contributions.

Read opinion (CA Courts @

Rodriguez v. Rodriguez

2010 N.Y. Slip Op. 00944
(New York Supreme Court, Appellate Division, Second Department, February 9, 2010)

Trial court in divorce action impermissibly engaged in double counting of husband's income in valuing his medical practice, which was equitably distributed as marital property, and in awarding maintenance to wife; valuation and distribution of practice involved calculating the husband's projected future excess earnings and converting a certain amount of those earnings into an asset, and the amount of maintenance was based on husband's total income, which necessarily also included the excess earnings produced by practice.

Read opinion (NY Unified Courts @

In re Marriage of Abrell

No. 107755
(Illinois Supreme Court, February 4, 2010)

As a matter of first impression, accrued vacation and sick days are not marital property subject to distribution in a dissolution of marriage action, but when a party has actually received payment for vacation and/or sick days accrued during marriage prior to a judgment for dissolution, the payment for those days is marital property subject to distribution.

Read opinion (IL Courts @

Spousal Support

Sallaberry v. Sallaberry

No. 4D08-2124
(Florida District Court of Appeal, Fourth District, February 17, 2010)

Evidence regarding husband's prior ability to support the marital household at $5,000 per month was insufficient by itself to support trial court's imputation of gross annual income of $80,000 to husband, for purposes of calculating his alimony and child support obligations.

Read opinion (FL Fourth District COA @

Ashby v. Ashby

2010 UT 7
(Utah Supreme Court, February 9, 2010)

Contract between husband and wife that she would financially support him while he attended medical school in exchange for promise that he would provide her with lifestyle commensurate with someone holding medical degree was enforceable if contract was made in good faith and was not so one-sided as to prevent district court in divorce proceedings from fulfilling equitable and statutory obligations. However, a student support contract, entered between spouses during their marriage, with terms so unfair as to unreasonably constrain a district court's ability to do equity between divorcing spouses is unenforceable.

Read opinion (UT Courts @

Marshall v. Marshall

119 Conn. App. 120
(Connecticut Court of Appeals, February 2, 2010)

Language in dissolution judgment, stating that no modification of periodic alimony award to wife was to be permitted based on wife's employment, earnings, or income from any source, did not restrict consideration of wife's income sources should husband seek modification in the event of wife's cohabitation and, therefore, did not violate statute permitting modification on that basis; section of financial order relating to nonmodification was entirely unrelated to portion permitting modification based on cohabitation.

Read opinion (CT Judicial Branch @



Case Updates This Issue

Child Custody

Child Support

Divorce - Arbitration

Divorce - Jurisdiction

Property Division

Spousal Support


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