Section of Family Law : Masthead
Case Update Newsletter : Title

June 2010

Volume 14 : No. 6



Family Law Cases from Around the Nation

June 1 through July 3, 2010

Agreements - Separation

Chopin v. Chopin

No. 1 CA-CV 09-0427
(Arizona Court of Appeals, Division 1, Department A, June 3, 2010)

(1) phrase "romantic cohabitation," as used in parties' spousal maintenance agreement, stating that spousal maintenance shall terminate immediately upon wife's remarriage or romantic cohabitation, meant living together and behaving as a married couple; and (2) because ex-wife and her fiance were not living together, they were not "romantically cohabitating," within meaning of spousal maintenance agreement, stating that spousal maintenance shall terminate immediately upon wife's remarriage or romantic cohabitation.

Read opinion (AZ COA Division One @


In re Marriage of Weis

No. 09SA216
(Colorado Supreme Court, June 7, 2010)

Former husband moved for finding of contempt against former wife, who had filed for bankruptcy, for her failure to pay credit card debts as contemplated by divorce decree. Held: Even though the parties waived maintenance in the form of a direct payment to the other party, they intended to treat former wife's obligation to pay the two joint credit card debts as domestic support, where the separation agreement specified that former wife was to use proceeds from sale of marital home to pay off the two credit card debts, and that while the parties waived spousal maintenance, that waiver was "consideration" for taking on debt obligations, and in the event of bankruptcy any joint debt was nondischargeable as support.

Read opinion (CO Judicial Branch @

Child Custody

Sitts v. Sitts

2010 N.Y. Slip Op. 05046
(New York Supreme Court, Appellate Division, Fourth Department, June 11, 2010)

In divorce action, the award of primary physical custody of the parties' child to the husband under joint legal custody order was not in the best interests of the children; the wife was the children's primary caregiver throughout the marriage, while the husband's involvement with the children largely consisted of attending a few medical appointments and school conferences, and he spent a significant amount of time pursuing his own recreational interests, leaving the children in the wife's car, and at the time of the custody determination, the husband had not yet obtained a permanent residence for the children, and there was no showing that the wife's alleged marital infidelity might adversely affect the children's welfare.

Read opinion (NY Unified Courts @

Child Custody - Hague Convention

Haimdas v. Haimdas

No. 09-CV-02034
(ENV)(MDG)(United States District Court, Eastern District of New York, June 8, 2010)

Mother and father mutually intended for mother to take children, who were dual citizens of England and United States, to England, and thus England was habitual residence of children for purposes of mother's claim of wrongful detention and for return of children under Hague Convention on the Civil Aspects of International Child Abduction, as implemented by International Child Abduction Remedies Act (ICARA); after father kicked mother and children out of marital home in New York, mother decided to move to England, father purchased one-way tickets for mother and children to fly to England, where mother enrolled older child in nursery school and lived with children in England for seven months before she was forcefully separated from them by border officials when arriving in New York for short visit with father, and mother never consented to father keeping children with him in New York.

Read opinion (FindACase @

Child Custody - Third Party

Vaughn v. Davis

No. 2007-CT-02065-SCT
(Mississippi Supreme Court, June 17, 2010)

After mother of out-of-wedlock child died, maternal grandmother filed a petition for custody of child. Pending the hearing, the father allowed the grandmother to retain custody. Held: the father did not relinquish the natural-parent presumption by agreeing to allow grandmother to retain temporary physical custody until hearing.

Read opinion (MS Judiciary @

Child Support

Barnes v. Department of Human Services

No. 2009-CA-00438-SCT
(Mississippi Supreme Court, June 3, 2010)

(1) federal statute that exempted social security benefits from attachment or other legal process applied to SSI, and thus preempted state statute that included SSI as gross income for purposes of calculating child support; (2) federal statute did not preclude trial judge exercising discretion to consider SSI when calculating child support; and, in concurrence by Waller, C.J., (3) trial court properly considered SSI when calculating child support obligation.

Read opinion (MS Lawyers Domain @

Adcock v. Commonwealth of Virginia, Department of Social Services, et al.

No. 1681-09-4
(Virginia Court of Appeals, June 8, 2010)

Twenty-year statute of limitations only applied to a liquidated money judgment and thus did not apply to unliquidated, ongoing child support order or preclude mother's motion to establish arrearage and interest for unpaid child support, even though amount of arrearages could be readily computed on date youngest child became emancipated, which occurred more than 20 years before mother's motion.

Read opinion (VA Supreme Court @

Child Support - UIFSA

In re Scott

No. 2009-520
(New Hampshire Supreme Court, June 3, 2010)

Massachusetts law, rather than New Hampshire law, governed duration of father's child support obligation, though New Hampshire court had properly assumed jurisdiction under Uniform Interstate Family Support Act (UIFSA) over mother's petition to review amount of child support father owed and modified parties' Massachusetts child support orders, as under the UIFSA, duration was a non-modifiable aspect of an issuing state's original child support order. New Hampshire law applied in determining whether father was required to contribute to children's college expenses, though parties' Massachusetts divorce decree stated that Massachusetts law governed such determination, as New Hampshire court had jurisdiction under Uniform Interstate Family Support Act (UIFSA) to modify parties' Massachusetts child support orders and had done so, such that it had continuing jurisdiction over child support order and authority to apply New Hampshire law to any provision of child support order that could have been modified under Massachusetts law, payment of child's college expenses was modifiable under Massachusetts law, and given that father resided in New Hampshire, which was proper forum for modifying Massachusetts child support orders, New Hampshire had materially greater interest than Massachusetts in resolving dispute.

Read opinion (NH Judicial Branch @

Divorce Procedure - Domicile

Cerutti-O'Brien v. Cerutti-O'Brien

No. 08-P-2078
(Massachusetts Court of Appeal, July 2, 2010)

Domicile of plaintiff, a spouse in a same-sex married couple, was in Florida, not Massachusetts, at time plaintiff filed divorce action, and thus trial court lacked subject matter jurisdiction over action, even though plaintiff never changed her vehicle or voter registration to Florida, maintained a separate home in Massachusetts, and denied that she had intended to make Florida her domicil; parties had moved to Florida within four days after being married and purchased a home there, taking title jointly, plaintiff had closed her business in Massachusetts after moving, and evidence showed that plaintiff had entered the marriage fully aware that defendant was adamant that she would not reside in Massachusetts because of the weather and her desire to be close to family in Florida.

Read opinion (Social Law Library @

Divorce Procedure - Gag Order

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 @


Smith v. Garber

No. 2009-SC-000738-MR
(Kentucky Supreme Court, June 17, 2010)

Putative father brought action to establish paternity of child and obtain custody upon learning from child's mother that, although born during mother's remarriage to her former husband, the child was conceived during her romantic relationship with putative father, prior to mother's first divorce from former husband. Held: Family Court was acting within its jurisdiction to order genetic testing of child despite presumption of paternity that arose as result of mother's remarriage to former husband one day prior to child's birth.

Read opinion (KY Court of Justice @

State ex rel. Wernke v. Cortez

No. 25340
(South Dakota Supreme Court, June 16, 2010)

Putative father's signature on child's paternity affidavit created a rebuttable presumption of paternity, and thus father was required to file action to contest paternity within 60 days after creation of the presumption of paternity unless he was able to show fraud, duress, or material mistake of fact.

Read opinion (SD Unified Judicial System @

Property Division

Musolino v. Musolino

121 Conn. App. 469
(Connecticut Court of Appeals, June 8, 2010)

Order that wife, not husband, was responsible for outstanding balance on credit card debt that had accrued since divorce, over and above amount husband was held accountable for under terms of divorce decree, was not abuse of discretion; husband never received notice creditor's contacts with wife, or default judgment, and wife did nothing in response to bills, notices of default, and subsequent judicial proceedings to collect on debt.

Read opinion (CT Judicial Branch @

Davies v. Beres

No. 1 CA-CV-08-0697
(Arizona Court of Appeals, Division One, Department E, June 8, 2010)

Husband's military temporary disability retired list (TDRL) benefits were not community property and thus were not apportionable to wife, in divorce proceeding; the TDRL benefits were not disposable retired pay, they were temporary in nature, they were akin to disability payments, and thus the benefits were not community property.

Read opinion (AZ COA Division One @

Fields v. Fields

2010 N.Y. Slip Op. 04871
(New York Court of Appeals, June 10, 2010)

Evidence that husband used monies derived from separate property to make down payment on townhouse acquired during parties' marriage failed to rebut statutory presumption that townhouse was marital property, where separate property contribution covered only fraction of townhouse's purchase price, remaining purchase price was paid through two mortgages, and bank account from which mortgage payments were made contained commingled marital assets and funds derived from other sources of marital income.

Read opinion (NY Unified Courts @

In re Marriage of Sonne

No. H030110
(California Court of Appeal, Sixth District, June 28, 2010)

For purposes of dividing divorcing parties' interests in husband's Public Employees' Retirement System (PERS) retirement allowance, husband's service credit that had been withdrawn by husband's previous wife, and which was subsequently reacquired during husband's marriage to wife using community funds, was husband's separate property, except to the portion of the annuity component of the retirement benefit relating to the reacquired service credit, to which wife had a claim only to a pro tanto share; pension component of retirement benefit relating to reacquired service credit had been contributed by husband's employer while husband was not married to wife, and thus was not community property. Further, trial court, in dividing divorcing parties' interests in husband's Public Employees' Retirement System (PERS) survivor benefit, could not award wife entire benefit and require wife to pay husband cost of benefit, as measured by amount that survivor benefit reduced value of husband's monthly retirement payments, since value of benefit was far greater than cost of benefit; trial court was required to select an apportionment method that reasonably reflected the relative contributions of the separate and community estates to the benefit, for instance by ordering that survivor benefit payments, when and if they came due, would be paid into a trust from which wife would receive her share of the community interest in each payment and the remainder of each payment would to go to husband's estate, heirs, or other designee.

Read opinion (CA Courts @

Dziamko v. Chuhaj

No. 453, Sept. Term 2009
(Maryland Court of Special Appeals, June 2, 2010)

Formula, in which marital share of pension was characterized as 50% of marital property portion of ex-husband's benefit accumulated under plan as of date of parties' absolute divorce, used in constituted pension order (CPO) to determine military retired pay, did not properly capture marital portion of if, as, and when interest; if ex-husband retired on reserve status, correct denominator was his total number of reserve retirement points earned, and if he retired on active duty, denominator was his total number of months of creditable military service. Agreement, which did not mention survivor benefits, that was reached on the record in divorce trial did not require designation of wife as survivor beneficiary in domestic relations order (DRO) and constituted pension order (CPO); had the parties not reached the agreement, the burden would have been on wife to expressly identify and value the survivor benefits separately from the pension payments.

Read opinion (MD Judiciary @



Case Updates This Issue

Agreements - Separation


Child Custody

Child Custody - Hague Convention

Child Custody - Third Party

Child Support

Child Support - UIFSA

Divorce Procedure - Domicile

Divorce Procedure - Gag Order


Property Division


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