Section of Family Law : Masthead
Case Update Newsletter : Title
    

March/April 2010

Volume 14 : Nos. 3-4

 

 

Family Law Cases from Around the Nation

March 1 through April 30, 2010

Child Custody

Linda R. v. Ari Z.

895 N.Y.S.2d 412
(New York Supreme Court, Appellate Division, First Department, March 9, 2010)

Trial court's delegation to mental health professional of its authority, in child custody proceeding, to determine issues involving best interests of child, including commencement date for child's unsupervised visitation with her father, was inappropriate.

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

Child Custody - Hague Convention

Barzilay v. Barzilay

No. 09-2358
(United States Court of Appeals, Eighth Circuit, April 2, 2010)

Consent judgment entered in Israeli court, which purported to modify and enforce settlement agreement requiring the whole family to live in Israel in case one parent were to move there, had no preclusive effect in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, where consent judgment was silent on key inquiries of habitual residence and wrongful removal or retention under the Hague Convention.

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

Child Custody - Relocation

Taylor v. Taylor

119 Conn. App. 817
(MConnecticut Court of Appeals, March 16, 2010)

Trial court did not abuse its discretion when permitting ex-wife to relocate with parties' minor child to New York State; ex-wife was the sole custodian of a nine-year-old, an eighteen-month-old and a newborn child, she was having a hard time maintaining consistent employment at hospital, she had no family support in her current location, and ex-wife's purpose for seeking relocation was legitimate.

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

Child Custody - Stepparent

McAllister v. McAllister

No. 20090176
(North Dakota Supreme Court, March 16, 2010)

Evidence was sufficient to support finding that stepfather had established his role as child's psychological parent such that he was entitled to third-party visitation rights and parental rights and responsibilities, following divorce from mother; stepfather clearly provided child's daily care and thereby developed a close bond and personal relationship with child, stepfather had raised child from birth, and stepfather was the only father child knew.

Read opinion (ND Supreme Court @ www.court.state.nd.us)

Child Custody - Third Party

In re A.L.

No. 25086
(South Dakota Supreme Court, April 14, 2010)

The circuit court applied the grandparent visitation statute unconstitutionally when it failed to employ the parental presumption, as well as the compulsory special-weight and special-factors analysis, before ordering grandparent visitation over the objections of fit parents.

Read opinion (SD Unified Judicial System @ www.sdjudicial.com)

Child Custody - UCCJEA

Rainbow v. Ransom

No. YOR-09-421
(Maine Supreme Court, March 16, 2010)

Maine court properly exercised jurisdiction in accordance with Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), for purposes of determining child custody dispute, even though Hawaii was child's home state; Hawaii court declined to exercise jurisdiction upon conclusion of both courts that Maine was more appropriate forum given finding of domestic violence committed by father who resided in Hawaii, child and mother had significant family connections to Maine, and there was substantial evidence available in Maine with regard to child's best interests.

Read opinion (ME Judicial Branch @ www.courts.state.me.us)

Child Support

Mendoza v. Ramos

No. B211969
(California Court of Appeal, Second District, Division 7, March 3, 2010)

Imputation of income to a parent receiving California Work Opportunity and Responsibility to Kids (CalWORKs) assistance, on a petition to modify a child support obligation, would be contrary to public policy, since an unemployed parent who is in compliance with his or her CalWORKs plan is, in effect, in the process of seeking employment.

Read opinion (CA Courts @ www.courtinfo.ca.gov)

Artrip v. Noe

No. 2009-SC-000260-DGE
(Kentucky Supreme Court, April 20, 2010)

Mother, as non-custodial parent and support obligor, was not entitled to credit for Social Security Disability benefits children received on account of father's disability. Further, those benefits do not constitute the type of "independent financial resource" that would allow the trial court to deviate from the child support guidelines.

Read opinion (KY Supreme Court @ 162.114.92.72)

Webb v. Sowell

No. 26807
(South Carolina Supreme Court, April 19, 2010)

Affirming that the state of South Carolina is too small to be a nation and too big to be an insane asylum, the Supreme Court held that a trial court order that required a father to contribute to his son's college expenses violated the equal protection clause, as there was no rational basis to permit a family court to order a parent subject to a child support order to contribute to an emancipated child's post-secondary education.

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

In re Gray

No. 2008-655
(New Hampshire Supreme Court, April 9, 2010)

A case to remind us that a state can cede jurisdiction under the UCCJEA and yet still retain jurisdiction under UIFSA.

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

In re Zikmanis

No. 2009-275
(New Hampshire Supreme Court, April 8, 2010)

Mother's egregious conduct could not serve as basis for relieving father of his obligation to pay children's past uninsured and unreimbursed medical and dental bills, which represented a downward modification of father's child support obligations; it was clear that the downward modification was a sanction in that neither party, in their respective motions and petitions for contempt, sought modification, and the sanction, though based on mother's conduct, ultimately made children chargeable.

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

Davis v. Davis

No. 20090145
(North Dakota Supreme Court, April 6, 2010)

Father was entitled to be reimbursed for the $15,727.97 he had paid in child support from January 2004 through February 2007, which was later supplanted by the children's receipt of lump sum social security dependency benefits.

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

Parentage

In re Paternity of Janzen v. Janzen

No. 102,133
(Kansas Court of Appeals, April 15, 2010)

No evidence in the record rebutted the presumption that mother's husband at time child was born was father of child in action by child who sought judicial determination of parentage, despite stipulation in subsequent divorce decree that husband was not child's father, where there was no evidence presented that husband was not father, and divorce decree did not establish paternity in another man. (Ed. Note: Is the court really saying that parties have to bring forth evidence on matters they agree to in a divorce?)

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

In re Parentage of M.F.

No. 81043-5
(Washington Supreme Court, April 1, 2010)

Common-law remedy of de facto parentage did not extend to former stepfather who petitioned to be named de facto parent of former stepdaughter with two fit parents and to obtain residential time with her; recognition of de facto parent status would infringe on parental rights of child's existing parents, and a statutory remedy already existed by which a stepparent could obtain custody of a stepchild.

Read Majority (WA Courts @ www.courts.wa.gov)

Read Dissent (WA Courts @ www.courts.wa.gov)

Property Division

Price v. Price

No. S09A1669
(Georgia Supreme Court, March 22, 2010)

A final divorce decree which conveys property has the same force and effect as a deed and establishes title, whether or not the decree is recorded. Husband's conveyance of one-half interest in real property to new wife was voluntary and not for value and, thus, any interest she had in real property ceased at time of husband's death and did not take priority over later-recorded divorce decree between husband and prior wife which granted husband only a life-estate in property, with remainder interest to children; husband and new wife executed quitclaim deed to bolster mortgage loan application, purported $1 consideration was trivial in comparison to property's true value, and new wife failed to show she paid any consideration for property.

Read opinion (GA Supreme Court @ www.gasupreme.us)

Newman v. Patton

No. S09F1718
(Georgia Supreme Court, March 22, 2010)

Pre-marital stock options which vested prior to the marriage, but were exercised during it, were former wife's separate property and not subject to equitable division. Wife's stock options that were awarded prior to marriage and vested during the marriage were marital assets subject to equitable division upon divorce if the options vested because of efforts made by either party during the course of the marriage; otherwise, they were wife's separate property.

Read opinion (GA Supreme Court @ www.gasupreme.us)

Nunez v. Nunez

No. 5D09-939
(Florida District Court of Appeal, Fifth District, March 12, 2010)

Trial court's valuation of husband's majority interest in closely-held corporation, a marital asset that represented 93 percent of husband's equitable distribution award incident to divorce, was not supported by competent substantial evidence; corporation was not profitable, and husband's business valuation expert testified that corporation had no marketable value, yet trial court valued husband's 51-percent interest at $1.53 million based on evidence of a third party's letter of intent offering $3 million to purchase the business, even though third party had never conducted due diligence and was insolvent at time of divorce.

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

Roden v. Roden

2080984
(Alabama Court of Civil Appeals, March 12, 2010)

Court was without authority to divest husband of interest in marital residence and award same interest to adult children of parties.

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

Bhati v. Bhati

No. 09-1030
(Louisiana Court of Appeal, Third Circuit, March 10, 2010)

Trial court's denial of award of additional community assets to former wife to compensate her for her ineligibility under federal law to receive former husband's social security benefits, under governing community property statute, was proper, in proceeding on former husband's petition for community property partition, where former wife was awarded final periodic support of $1,000 per month, parties' three children were all majors, former husband contributed to children's higher education, former wife made herself employable by attaining nursing degree following divorce, and former wife received substantial money awards via disbursements from former husband's other retirement accounts.

Read opinion (LA Third Circuit COA @ www.la3circuit.org)

Gilliam v. McGrady

No. 090958
(Virginia Supreme Court, April 15, 2010)

Marital property presumption normally applicable to assets arrived at during the marriage did not apply to husband's trust fund tax debt that he incurred alone during the marriage by failing to withhold necessary federal income taxes and social security taxes from his employees' wages, and thus, rather than imposing upon wife the burden of showing that the debt was husband's separate liability, trial court should have imposed a burden upon husband to show that the tax liability was a marital debt to be divided equally; equitable distribution statute recognized no marital debt presumption equivalent to its marital asset presumption, and evidence indicated that husband incurred the debt fully on his own despite wife's monthly requests that husband address and resolve the matter with the IRS.

Read opinion (VA Supreme Court @ www.courts.state.va.us)

Barrett v. Barrett

No. 35763
(Idaho Supreme Court, April 23, 2010)

Trial court was permitted to consider evidence beyond a deed in determining whether property that was once separate had been transmuted to community property; determination of whether property had been transmuted was a question of fact turning on intent and, in making this factual determination, courts were free to consider all relevant evidence regarding that intent.

Read opinion (ID State Judiciary @ www.isc.idaho.gov)

In re Taber-McCarthy

No. 2009-180
(New Hampshire Supreme Court, April 9, 2010)

Changed circumstances, namely the decline of the stock market, did not provide valid grounds for modifying distribution order awarding former wife one half of former husband's retirement investment account based on value of account on date prior to downturn in stock market; although distribution of funds was to occur after account's devaluation, the situation did not amount to fraud, undue influence, deceit, misrepresentation, or mutual mistake of the sort that would have justified a modification of former wife's award.

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

Same-Sex Marriage

Dickerson v. Thompson

2010 N.Y. Slip Op. 02052
(New York Supreme Court, Appellate Division, Third Department, March 18, 2010)

Trial court had subject matter jurisdiction over action for equitable and declaratory relief seeking dissolution of a same-sex civil union validly entered into outside of New York.

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

Spousal Support

Flaherty v. Flaherty

120 Conn. App. 266
(Connecticut Court of Appeals, March 30, 2010)

In accordance with the preference in favor of modification of alimony and child support, ambiguous nonmodification provisions in a separation agreement that is incorporated into a marital dissolution decree are construed to permit modification; however, nonmodification provisions that are clear and unambiguous are enforceable.

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

Vollmer v. Vollmer

Nos. 2D08-6319, 2D09-211
(Florida District Court of Appeal, Second District, March 5, 2010)

Trial court's finding that divorced father's income decreased by 17%, so as to support a 17% reduction in father's monthly alimony payments, was not supported by competent substantial evidence; trial court heard evidence as to four different methods of calculating the reduction in father's income, and arrived at its figure by averaging the results of the four methods.

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

In re Marriage of Hall

No. 101,834
(Kansas Court of Appeals, March 5, 2010)

Former wife had an insurable interest in former husband's life as long as she was entitled to receive the child support and maintenance payments that district court had ordered former husband to pay in divorce decree, and thus district court did not err by ordering husband to cooperate with wife's attempts to obtain insurance on his life at her expense.

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

Myers v. Myers

No. 20080911-CA
(Utah Court of Appeals, April 2, 2010)

Evidence was insufficient to establish that former wife formed a relationship resembling marriage with her parents' foster son, as required to establish cohabitation, and thus former husband was not entitled to termination of his alimony obligation; foster son stayed in an upstairs bedroom with other foster children while wife slept on a couch in the basement of her parents' house, and even though they had a boyfriend-girlfriend relationship, and engaged in sexual contact, they did not establish a common household, they did not share expenses, and they did not share space or meals. (Ed. Note: Eww.)

Read opinion (UT State Courts @ www.utcourts.gov)

 

   

Case Updates This Issue

Child Custody

Child Custody - Hague Convention

Child Custody - Relocation

Child Custody - Stepparent

Child Custody - Third Party

Child Custody - UCCJEA

Child Support

Parentage

Property Division

Same-Sex Marriage

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.