Section of Family Law : Masthead
Case Update Newsletter : Title
    

July/August 2010

Volume 14 : Nos. 7-8

 

 

Family Law Cases from Around the Nation

June 30 through August 31, 2010

Agreements - Premarital

Brummund v. Brummund

No. 20090219
(North Dakota Supreme Court, June 30, 2010)

Premarital agreement applied to appreciation in value of husband's separately owned farmland, where husband and wife each unambiguously waived any interest in the separately listed property of the other, husband's farmland was listed as his "separate property," no language restricted his separate interest in the property to its value on a specific date, wife expressly agreed that she would not "have, or acquire, any right, title or claim" in the farmland "by virtue of the marriage," and valuations provided for the items of separate property listed in the agreement were merely for compliance with statutory disclosure requirements rather than a limit of the waiver of rights to the value of the separate property on the date of the agreement.

Read opinion (ND Supreme Court @ www.ndcourts.gov)

McKenna v. Delente

123 Conn. App. 146
(Connecticut Court of Appeals, August 10, 2010)

Wife's defense of unconscionability to enforcement of premarital agreement could not be maintained in husband's dissolution action by way of a general denial, but had to be pleaded specially.

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

Agreements - Post-Nuptial

Ansin v. Craven-Ansin

457 Mass. 283
(Massachusetts Supreme Judicial Court, July 16, 2010)

Massachusetts finally, after dancing around the question for twenty years, holds that post-nuptial agreements are valid and enforceable to the same extent as prenuptial agreements. Before a marital agreement is sanctioned by a court, careful scrutiny by the judge should determine at a minimum whether: (1) each party has had an opportunity to obtain separate legal counsel of each party's own choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; and (5) the terms of the agreement were fair and reasonable at the time of execution and are fair and reasonable at the time of divorce.

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

Child Custody

Noland-Vance v. Vance

No. SD 28699
(Missouri Court of Appeals, Southern District, Division One, July 30, 2010)

Split custody arrangement in which three oldest siblings went to wife and three youngest siblings went to husband was in the children's best interests in dissolution proceeding, despite the general disfavor of separation of siblings, where there was evidence of extreme parental alienation by wife against husband and evidence suggested that older siblings were negative influence on younger siblings in causing them to be unjustifiably afraid of husband and cause further alienation from husband.

Read opinion (MO Courts @ www.courts.mo.gov)

Harrison v. Tauheed

No. 102,214
(Kansas Court of Appeals, July 16, 2010)

A difficult case balancing the best interest of the child and first amendment religious rights. Held: (1) evidence supported finding that mother's religious activities, which included going door to door on the weekends to speak with others about her faith, did not harm child; (2) evidence that child had experienced some anxious moments at school or in social settings, possibly due to mother's religion and its teachings, did not establish that child was harmed by mother's religious beliefs; (3) evidence supported finding that mother's religious beliefs and the doctrines taught to child, which included the teaching that non-Jehovah's Witnesses will suffer annihilation, did not alienate child from father; and (4) the trial court could not consider the fact that mother, a Jehovah's Witness, would not consent for child to have a blood transfusion, based on her religious beliefs, when determining child custody.

Read opinion (KS Judicial Branch @ www.kscourts.org)

In re Paternity of K.D.

No. 49A02-0907-JV-693
(Indiana Court of Appeals, June 29, 2010)

Trial court order in child custody proceeding, which prohibited mother from discussing the case in any fashion with anyone, was overbroad and an invalid prior restraint on mother's free speech rights.

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

Child Custody - Hague Convention

Blanc v. Morgan

No. 2:10-cv-02314
(United States District Court, Western District of Tennessee, July 9, 2010)

Mother's removal of child from France without father's consent was "wrongful" under Hague Convention on the Civil Aspects of International Child Abduction, regardless of whether father had agreed to allow child to travel to United States for indefinite period; child was habitual resident of France prior to removal, father's consent to child living in the United States was only for a limited duration and was contingent upon the understanding that mother intended to return with child to France, and father exercised his custodial rights prior to child's removal from France and would have continued to exercise those rights but for mother's removal of child.

Read opinion (Justia.com @ www.justia.com)

Child Custody - Relocation

In re Martin

No. 2009-556
(New Hampshire Supreme Court, August 19, 2010)

Mother's primary reason for seeking to relocate out-of-state with child, to avoid ongoing interaction with the father and to get away from him, was not a "legitimate purpose" for relocating, even though mother claimed that she also wished to receive financial and emotional support from her family; mother currently had full-time employment in state and had no comparable job prospects out-of-state, and mother's counseling records indicated that she had not had a strong relationship with her family in the past.

Read opinion (NH Judicial Branch @ www.courts.state.nh.us)

Child Custody - Third Party

Davis v. Swan

No. COA09-321
(North Carolina Court of Appeals, August 17, 2010)

Evidence in child custody action was sufficient to support finding mother acted inconsistently with her constitutionally protected parental status and thus to grant former partner joint legal custody and secondary physical custody of child; there was evidence that the partied jointly decided to have a child and that biological mother would be the one to get pregnant, that former partner helped choose sperm donor, attended doctor's appointments, and was present during birth, that the parties announced the birth of "our daughter" as "proud parents," that child referred to biological mother as "mom" and former partner as "mama," that former partner was involved in the day-to-day parenting of the child and had been appointed guardian in biological mother's will, and that biological mother encouraged and fostered emotional bond between former partner and child and assumed, up until time of separation, that she and former partner would be child's parents.

Read opinion (NC Courts @ www.nccourts.org)

In re LaPiana

2010-Ohio-3606
(Ohio Court of Appeals, Eighth District, August 5, 2010)

After separation of lesbian couple, non-parent partner had standing to apply to juvenile court for visitation or other parental rights with respect to two children conceived through anonymous artificial insemination and born to mother-partner during partners' committed relationship.

Read opinion (OH Supreme Court @ www.supremecourt.ohio.gov)

H.M. v. E.T.

2010 N.Y. Slip Op. 06313
(New York Supreme Court, Appellate Division, Second Department, August 3, 2010)

Where the same-sex partner of a child's biological mother consciously chooses, together with the biological mother, to bring that child into the world through artificial insemination by donor (AID), and where the child is conceived in reliance upon the partner's implied promise to support the child, a cause of action for child support has been sufficiently alleged.

Read opinion (NY Unified Courts @ www.courts.state.ny.us)

Child Custody - Visitation

Pratt v. Pratt

No. 2090249
(Alabama Court of Civil Appeals, August 20, 2010)

Trial court could not delegate to father the discretion to determine the location of mother's visitation with children and whether her visits could be extended beyond minimum two-hour period, and thus, remand was necessary so that trial court could establish a sufficiently specific visitation order for mother; trial court's visitation award, as written, vested the father and the visitation supervisors with nearly complete discretion in determining when, where, and how the mother exercised her current visitation rights, and it also granted a third party the right to decide when and if the mother's visitation rights should be expanded.

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

Child Custody - VisitationThird Party

Snyder v. Spaulding

No. DA 10-0027
(Montana Supreme Court, July 13, 2010)

Trial court considering mother's motion to modify or terminate order for paternal grandparent's contact with grandchildren was required to make a determination as to mother's fitness and allow mother to present evidence that modification or termination of the contact order was in the best interests of her children or was necessary because the contact was unduly interfering with her primary role in the children's upbringing; if court determined she was a fit parent, mother's views on continued visitation and the best interests of her children were entitled to deference.

Read opinion (MT State Law Library @ searchcourts.mt.gov)

Child Support

Lang v. Social Sec. Admin.

No. 09-1927
(United States Court of Appeals, 8th Circuit, July 15, 2010)

An excellent case to remind us that a child support obligor's Social Security benefits may be garnished to satisfy the child support obligation, with a lesson on how to do it.

Read opinion (US COA Eighth Circuit @ www.ca8.uscourts.gov)

Misthopoulos v. Misthopoulos

297 Conn. 358
(Connecticut Supreme Court, July 13, 2010)

Trial court could not make child support award of 20 percent of husband's annual net cash bonus, which exceeded child support guidelines, absent findings as to why guidelines were inequitable or inappropriate; court's determination that husband's substantial assets and superior earning capacity, the extraordinary disparity in parental income, and the significant and essential needs of the wife including, but not limited to, the need to provide a home for the children did not justify the deviation.

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

(Ed. Note: The result in this case was a foregone conclusion given the court's opinion in Maturo v. Maturo.)

Smedley v. Lowman

No. 620 MDA 2009
(Pennsylvania Superior Court, July 30, 2010)

Even though accompanied by fully vested pension benefits, father's personal choice to retire at age fifty-two and receive a pension representing only half of his former salary was a voluntary reduction of income for child support purposes.

Read opinion (Unified Judicial System of PA @ www.aopc.org)

Brown v. Hines-Williams

No. 09-FM-120
(District of Columbia Court of Appeals, August 26, 2010)

Father's military housing allowance was "income" for the purpose of calculating his child support obligations, pursuant to statute defining a parent's gross income to include salary or wages, veteran's benefits, a contract resulting in regular income, or a significant perquisite or in-kind compensation representing a regular source of income or reducing living expenses.

Read opinion (DC COA @ www.dcappeals.gov)

Ziino v. Baker ex rel. Estate of Wellman

No. 09-15065
(United States Court of Appeals, Eleventh Circuit, August 11, 2010)

Plaintiff's privately negotiated agreement with former domestic partner, whereby partner executed promissory notes representing half of her estimated future inheritance from her father with intent of equalizing their assets for the benefit of their child, did not qualify as an enforceable judgment for child support, for purposes of plaintiff's action seeking to execute levy on assets held in trust for former domestic partner.

Read opinion (US COA Eleventh Circuit @ www.ca11.uscourts.gov)

Needham v. Needham

No. 2D09-545
(Florida District Court of Appeal, Second District, August 11, 2010)

Trial court was required to consider evidence that wife had custody of teenage daughter from earlier marriage in its child support determination on dissolution of wife's current marriage, where child support judgment did not address wife's expenses associated with teenage daughter and contained nothing to suggest that trial court had even considered effect of older child.

Read opinion (FL Second District COA @ www.2dca.org)

Marriage

U.S. v. di Pietro

No. 09-13726
(United States Court of Appeals, Eleventh Circuit, August 27, 2010)

Statute imposing criminal liability on any individual who knowingly enters into marriage for purpose of evading federal immigration laws does not unconstitutionally preempt Florida's marriage laws which purportedly recognized validity of marriages entered into for any purpose.

Read opinion (US COA Eleventh Circuit @ www.ca11.uscourts.gov)

Property Division

Commodity Futures Trading Com'n v. Walsh

Nos. 09-3742-cv, 09-3787-cv
(United States Court of Appeals, Second Circuit, August 13, 2010)

Question of whether "marital property" within meaning of New York Domestic Relations Law included proceeds of fraud could be certified to New York Court of Appeals, in securities enforcement action against ex-wife as relief defendant, since resolution of question could end involvement of spouse in that litigation, plain language of statutes involved did not indicate answer, question involved value judgments and important public policy choices, no controlling precedent of Court of Appeals existed, issues similar to those raised had not been litigated often.

Read opinion (US COA Second Circuit @ www.ca2.uscourts.gov)

Pruitt v. Pruitt

No. 4719
(South Carolina Court of Appeals, August 4, 2010)

Home that husband and wife lived in during marriage was nonmarital property, despite wife's argument that home was transmuted into marital property, where husband cleared lot on which home was built and began construction of home before marriage, home was largely finished by time of marriage, land on which home was built was gift from husband's mother to husband, and wife did not show that any improvements to home that she contributed to were paid for with marital funds.

Read opinion (SC Judicial Dept. @ www.judicial.state.sc.us)

Same-Sex Marriage

Gill v. Office of Personnel Management

No. 09-10309-JLT
(United States District Court, District of Massachusetts, July 8, 2010)

Same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts, brought action alleging that, due to operation of Defense of Marriage Act (DOMA), they were denied certain federal marriage based benefits that were available to similarly situated heterosexual couples, in violation of equal protection principles embodied in Fifth Amendment's Due Process Clause. Federal officials moved to dismiss, and plaintiffs moved for summary judgment. Held: (1) court could not redress inability of surviving same-sex spouse of deceased federal employee to enroll in Federal Employees Health Benefits (FEHB) program; (2) DOMA violated core constitutional principles of equal protection; (3) there was no rational relationship between DOMA and Congress's goal of preserving status quo; and (4) purported administrative burden presented by changing patchwork of state approaches to same-sex marriage in distributing federal marriage based benefits did not provide rational basis for DOMA.

Read opinion (US District Court District of MA @ pacer.mad.uscourts.gov)

See also companion case Massachusetts v. U.S. Dept. of Health and Human Services, No. 1:09-11156-JLT (United States District Court, District of Massachusetts, July 8, 2010).

Perry v. Schwarzenegger

No. C 09-2292 VRW
(United States District Court, Northern District of California, August 4, 2010)

Two same-sex couples brought action against Governor of California, Attorney General, Director and Deputy Director of Public Health, and county clerks, challenging California voter enacted constitutional amendment restricting valid marriage as one between a man and a woman, and alleging violation of due process and equal protection under the Fourteenth Amendment. Proponents of amendment intervened on behalf of defendants, and city and county intervened on behalf of plaintiffs. Court held: (1) witness was qualified to testify as expert in history of marriage in United States; (2) witness testimony constituted inadmissible opinion testimony that would be given essentially no weight; (3) constitutional amendment violated Due Process Clause of Fourteenth Amendment; and (4) constitutional amendment violated Equal Protection Clause of Fourteenth Amendment.

Read opinion (US Courts Ninth Circuit @ www.ce9.uscourts.gov)

Spousal Support

Remillard v. Remillard

297 Conn. 345
(Connecticut Supreme Court, July 13, 2010)

Romance is not dead. (See last month's opinion in Chopin v. Chopin.) In this case, the Court held that term "cohabitation," as used in the parties' separation agreement, stating that alimony shall terminate upon ex-husband's cohabitation with unrelated female, required a sexual or romantic relationship.

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

In re Marriage of Reaves

No. 159809983; A139446
(Oregon Court of Appeals, July 28, 2010)

Former husband's voluntary contributions to his retirement benefits, which went towards survivor benefits for his current wife, was appropriately recognized as income for purpose of calculating former husband's post-retirement income and determining an appropriate spousal support obligation, on his motion to terminate his obligation; former husband's retirement income was available to him to spend as he wished, and the fact that he chose to spend part of it to secure a benefit for his current wife did not make it any less a resource that was available to him.

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

Torts

Bridges v. Wooten

No. A10A0782
(Georgia Court of Appeals, August 26, 2010)

Alleged actions of ex-husband's parents, in supporting ex-husband and allowing him to live with them while knowing that ex-husband was not paying child support to ex-wife, did not give ex-wife a cause of action against parents for aiding and abetting felony abandonment of a child; statute governing offense of child abandonment did not provide a basis to infer that the legislature intended to create an implicit civil cause of action for damages caused by its violation, and other remedies, such as a contempt action, existed for ex-husband's failure to pay child support.

Read opinion (FindLaw @ caselaw.findlaw.com)

Heller v. Somdahl

No. COA09-1016
(North Carolina Court of Appeals, August 3, 2010)

Evidence in alienation of affections action was sufficient to support finding that husband and wife had a happy marriage with genuine love and affection; husband presented evidence that he was married to wife, and that the family was "happy" and "loving, just a normal all around family," wife testified that before the marriage's disruption, "I was very much in love" with husband and that "He was very much in love with me," there was testimony that husband always came home into the house after work and kissed wife on the back of the neck, there was testimony that husband and wife participated in the Marine Corps Ball "and stuff like that," there was testimony that they had intercourse "three to four times per week," there was evidence that the couple talked nearly every day when husband was deployed to a foreign country and sent regular e-mails, and there was evidence that, to friends of the family, wife appeared "to be a normal and happy wife," and the couple had a "warm, loving relationship." Evidence in alienation of affections action was sufficient to support finding that defendant's wrongful and malicious actions caused wife's alienation and that a reasonable person in defendant's position would believe that wife's affections would probably be alienated; husband presented evidence that defendant arrived at the marital home and "[tried] to drag [wife] off," that defendant called husband's home and told husband that it was "none of [his] business what his wife did" and that wife was "a grown woman," husband also presented evidence that defendant threatened wife, wife testified that if she broke the heart of the person with whom she was having her affair, defendant and defendant's spouse "were going to break my legs, make sure my children were hurt, [and] my husband would find out about it," testified that defendant prevented husband from talking with wife by moving her phone around the house so that wife would get bad reception," and testified that person with whom she was having the affair purchased a ring for her, but defendant took the ring and said that wife wasn't going to get it until she was separated and divorced from husband, evidence also indicated that defendant arranged numerous activities to keep wife away from husband, and defendant testified that she allowed wife to attend defendant's party at which alcohol was served even though she knew wife did not drink alcohol responsibly and that, during at least part of the affair, she was aware wife was married and resided in the marital home. (Ed Note: Doesn't this case illustrate it's time to get rid of alienation of affections?)

Read opinion (NC Courts @ www.aoc.state.nc.us)