Section of Family Law : Masthead
Case Update Newsletter : Title
    

May 2010

Volume 14 : No. 5

 

 

Family Law Cases from Around the Nation

April 30 through May 31, 2010

Agreements - Premarital

Barber v. Barber

No. 2009 CA 0780
(Louisiana Court of Appeal, First Circuit, May 7, 2010)

Provision of prenuptial agreement in which parties waived their right to interim spousal support violated public policy, and, thus, had to be stricken from agreement.

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

Child Custody

Stocks v. Stocks

2080941
(Alabama Court of Civil Appeals, April 30, 2010)

What does it take to be an unfit parent? Clear and convincing evidence supported the trial court's finding that mother was an unfit parent, in child custody proceeding in which paternal grandmother and paternal aunt and uncle were named custodians of mother's two special needs children; mother tested positive for drugs, mother appeared to be abusing prescription drugs following several health problems, after mother's health problems were resolved she had minimal contact with her children, she never telephoned the paternal grandmother to check on the status of her child, she did not provide financial assistance to her children and she kept and cashed the children's social security checks.

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

Matthews v. Matthews

72 A.D.3d 1631, 899 N.Y.S.2d 496
(New York Supreme Court, Appellate Division, Fourth Department, April 30, 2010)

Substantial evidence supported family court's decision to reduce father's visitation rights with children to one weekend every three months; father frequently disparaged mother in children's presence and consistently used his religion in attempt to alienate mother from children. Family court did not abuse its discretion in prohibiting father from discussing religion with his children; court found that father harmed children by disobeying court orders concerning mother's right to choose children's religious upbringing and by using his religion to alienate children from their mother.

Read opinion (NY Unified Courts @ www.nycourts.gov)

Pierron v. Pierron

486 Mich. 81
(Michigan Supreme Court, May 11, 2010)

(1) Proposed change of schools would not legally effect a change in established custodial environment and therefore did not require ex-wife to show by clear and convincing evidence that the change was in children's best interests; (2) when decision in child custody matter would not modify established custodial environment, trial court must consider applicability of all "best interests" factors but need not make substantive factual findings concerning an irrelevant factor; and (3) "reasonable preference of child," as a "best interests" factor in child custody matter, does not require that child's preference be accompanied by detailed thought or critical analysis.

Read opinion (MI Courts @ courts.michigan.gov)

Debra H. v. Janice R.

2010 N.Y. Slip Op. 03755
(New York Court of Appeals, May 4, 2010)

Former same-sex domestic partner of child's biological mother brought action for child custody and visitation, seeking joint legal and physical custody of child who was born during parties' valid Vermont civil union but conceived through artificial insemination prior to parties' union. Partner moved for hearing on whether she stood in loco parentis to child and whether mother should be equitably estopped from denying partner's parental relationship with child. The Court of Appeals held that: (1) equitable estoppel doctrine could be invoked to bar child's biological mother from denying partner's parental relationship with child; (2) whether to expand category of persons who have standing to seek child custody and visitation was subject for Legislature; (3) under Vermont law, partner was "parent" of child; and (4) as a matter of comity, partner was "parent" of child for purposes of conferring standing upon partner to seek visitation and custody of child under New York law.

Read opinion (NY Unified Courts @ www.nycourts.gov)

Child Custody - Hague Convention

Nicolson v. Pappalardo

No. 10-1125
(United States Court of Appeals, First Circuit, April 30, 2010)

Child's habitual residence was Australia immediately prior to mother's retention of child in United States, as element of father's wrongful retention claim against mother under the Hague Convention on the Civil Aspects of International Child Abduction, despite mother's alleged pre-birth declaration to father that she would move back to the United States and her alleged intent at time of birth not to remain in Australia.

Read opinion (US COA First Circuit @ www.ca1.uscourts.gov)

Cuellar v. Joyce

No. 09-35068
(United States Court of Appeals, Ninth Circuit, May 7, 2010)

Fact that mother's lawyers provided their services pro bono in proceedings on her petition for return of her daughter to Panama, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, did not render an award of fees and costs inappropriate.

Read opinion (US COA Ninth Circuit @ www.ca9.uscourts.gov)

Abbott v. Abbott

78 USLW 4373
(United States Supreme Court, May 17, 2010)

After mother removed child from Chile to the United States, non-custodial father brought suit under the Hague Convention on the Civil Aspects of International Child Abduction seeking order requiring child to be returned to Chile. The Supreme Court held that the father's ne exeat right granted by Chilean family court was "right of custody" under Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, Gonzalez v. Gutierrez, 311 F.3d 942.

Read opinion (Legal Information Institute @ www.law.cornell.edu)

Child Support

Maturo v. Maturo

296 Conn. 80
(Connecticut Supreme Court, May 4, 2010)

Order that, in addition to awarding wife $636 per week in child support based on weekly family income of $4,000, required husband to pay as child support 20% of net annual cash bonus was impermissibly inconsistent with child support guideline principles that support payments not exceed 15.89% of weekly income above $4,000 and that percentage decrease as income level rises; husband's bonuses ranged from $489,000 to $1.368 million in prior years.

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

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

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

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

In re Marriage of Baumgartner

No. 109047
(Illinois Supreme Court, May 20, 2010)

Son's incarceration alone was insufficient to establish that he was self-emancipated, in ex-husband's action to terminate his obligation to pay for a portion of son's college expenses, and thus remand was required to allow the trial court to determine whether son's incarceration showed his intent to abandon his mother's home and earn his own support.

Read opinion (IL Courts @ www.state.il.us/court)

Lauderman v. State, Dept. of Family Services ex rel. JEN

No. S-09-0100
(Wyoming Supreme Court, May 28, 2010)

Evidence supported finding that mother was voluntarily unemployed, in child support modification proceeding; mother was previously employed as a welder, after she was let go she decided to be a stay-at-home mother, and she testified that there were welding jobs available in her town that she was physically capable of performing, but she did not apply for the jobs because she did not want to leave her children. On the other hand, evidence was insufficient to establish that father was voluntarily underemployed, in child support modification proceeding; father owned his own drywall business, father testified that there was no work available, and father looked for work in other job fields.

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

Parentage

H.M. v. E.T.

2010 N.Y. Slip Op. 03756
(New York Court of Appeals, May 4, 2010)

Birth mother of child conceived by artificial insemination petitioned, under Uniform Interstate Family Support Act (UIFSA), to have her former same-sex partner adjudicated parent of child, and sought award of child support retroactive to child's birth. The Court of Appeals held that the Family Court had subject matter jurisdiction to adjudicate biological mother's petition for child support.

Read opinion (NY Unified Courts @ www.nycourts.gov)

Juanita A. v. Kenneth Mark N.

2010 N.Y. Slip Op. 03758
(New York Court of Appeals, May 4, 2010)

Putative father could properly assert equitable estoppel defense to prevent child's mother from asserting biological paternity in action seeking adjudication of paternity and award of child support; mother acquiesced in development of close relationship between child and another father figure, namely mother's husband, mother led putative father to reasonably believe he was not father, mother's husband was listed as child's father on child's birth certificate, husband was biological father of child's older and younger siblings, child had referred to mother's husband as her father for most of her life, and child's best interests would not be served by having someone besides mother's husband declared her father.

Read opinion (NY Unified Courts @ www.nycourts.gov)

Property Division

Smith v. Smith

No. 0134, Sept. Term, 2009
(Maryland Court of Special Appeals, May 28, 2010)

Husband's accrued annual leave and sick pay for which he received payment following retirement, which occurred prior to divorce, was marital property subject to equitable distribution, where payment was repayment of debt owed to husband for value of services rendered by husband during marriage.

Read opinion (MD Judiciary @ mdcourts.gov)

Alexander v. Alexander

No. 79A02-0906-CV-528
(Indiana Court of Appeals, May 20, 2010)

Trial court appropriately applied minority and marketability discounts to the value of wife's minority ownership interest in company, for purposes of equitably dividing marital assets incident to divorce; although wife stood to inherit from her parents a controlling interest in the company, the future or potential value of her interest was irrelevant for valuation purposes, and, at time of divorce, wife's minority interest was subject to several restrictions.

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

Borley v. Smith

No. 35751
(Idaho Supreme Court, May 11, 2010)

Stock allocations that had been granted by husband's employer, during time husband and wife were married, as compensation for concessions made by husband's union in employer's bankruptcy and restructuring, were a form of deferred compensation in which wife had a community interest, for purposes of division of property in divorce, even though husband did not acquire the stock, and thus community interest did not vest, until after divorce was final.

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

Dupay v. Dupay

No. 20090266
(North Dakota Supreme Court, May 11, 2010)

Windfall from lump sum personal injury settlement several years earlier had not ceased, but continued to benefit former husband, and, therefore, allocating net settlement proceeds over period of 133 months remaining until child reached age of majority remained appropriate for calculating husband's income for child support in connection with motion for modification; husband used settlement to pay off debts, purchase home, and make investments, which improved his overall financial condition and standard of living, which would have been shared with child if child lived in husband's household.

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

Spousal Support

Child v. Child

No. 3D08-3237
(Florida District Court of Appeal, Third District, May 5, 2010))

Evidence was sufficient to support trial court's conclusion that self-employed husband's financial documents and testimony did not demonstrate the accuracy of his reported income, and thus, trial court acted within its discretion in imputing income to husband for purposes of determining appropriate spousal support award incident to divorce; while husband's tax returns showed a reported range of gross income from $13,004 to $27,772, on such salary, he was able to pay credit card bills ranging from $3,000 to $15,000 per month, while voluntarily paying the mortgage on the marital residence in addition to supporting the parties' two minor children.

Read opinion (FL Third District COA @ www.3dca.flcourts.org)

Torts

Segal v. Lynch

No. a0805-08
(New Jersey Superior Court, Appellate Division, May 2, 2010)

Father brought action individually and as guardian ad litem for his children against their mother for intentional infliction of emotional distress, alleging that she engaged in extreme and outrageous conduct designed to poison his relationship with his children. The Superior Court, Law Division, Morris County, dismissed and awarded mother $42,913 in bad faith counsel fees. Father appealed. The Appellate Division held: (1) Heart Balm Act did not bar father's action; (2) action had to be barred as inimical to and irreconcilable with the best interests of the children, as a matter of first impression; (3) action by one parent against another for intentional infliction of emotional distress must be brought in Family Part, and (4) mother was not entitled to bad faith counsel fees.

Read opinion (Rutgers School of Law @ lawlibrary.rutgers.edu)

 

   

Case Updates This Issue

Agreements - Premarital

Child Custody

Child Custody - Hague Convention

Child Support

Parentage

Property Division

Spousal Support

Torts

 

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