Section of Family Law : Masthead
Case Update Newsletter : Title
    

September/October/November 2010

Volume 14 : Nos. 9-11

 

 

Family Law Cases from Around the Nation

August 31 through November 30, 2010

Adoption

In re Adoption of Mariano

77 Mass. App. Ct. 656
(Massachusetts Court of Appeals, September 14, 2010)

By agreement, the divorcing parents of an infant son proposed a single parent adoption by which the father would relinquish all rights and duties toward the son and the mother would assume the role of sole parent. A judge of the Probate and Family Court conducted an evidentiary hearing, composed findings of fact and conclusions of law, and rejected the father's adoption surrender and the mother's adoption petition. The appellate court affirmed, holding that divorcing parents may not bargain away the best interests of their children in general, and the children's right to support, financial or otherwise, from either one of them in particular.

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

Agreements - Post-Nuptial

Holland v. Holland

No. S10A1158
(Georgia Supreme Court, October 4, 2010)

Under plain language of provision of postnuptial agreement requiring equal division of net profits from sale of lake house and defining "net profits" as net of debt on the lake house, former wife's line of credit, using lake house as collateral, proceeds of which were used to purchase the parties' marital residence and to fund the parties' joint business, constituted a "debt on the lake house," even though proceeds were not applied to improvements on the house; former wife conveyed title to lake house to bank to secure line of credit, and no language in provision limited the term "debt" to money borrowed to improve the house itself.

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

Agreements - Property Settlement

Libert v. Libert

2010 N.Y. Slip Op. 08074
(New York Supreme Court, Appellate Division, Second Department, Nov. 9, 2010)

Former wife established that equitable distribution and maintenance provisions of settlement agreement that was incorporated but not merged into parties' judgment of divorce were patently unconscionable, so as to entitle her to vacation of those provisions; although husband earned almost nine times wife's salary at time of divorce, the agreement, which was entered into while parties were not represented by counsel, made no provision for maintenance to wife, did not mention substantial marital asset of husband's vested New York State pension, and required wife to pay $700 per month, almost 75 percent of her income, in child support, and although husband was permitted to remain in marital residence, wife assumed liability for $90,000 promissory note executed when parties purchased residence.

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

Alternative Dispute Resolution

Rega v. L.S.R.

No. SAG-10-220
(Maine Supreme Court, October 12, 2010)

Trial court acted within its discretion in declining to order mediation in divorce action, where husband had been convicted of committing gross sexual assault, kidnapping, and other crimes against wife.

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

Bankruptcy

In re Combs

No. 09-72986
(United States Bankruptcy Court, Eastern District of Michigan, Southern Division, September 3, 2010)

Cause existed to grant Chapter 13 debtor's former wife relief from automatic stay, so as to allow former wife to pursue entry of eligible domestic relations order (EDRO) under Michigan law, to seek to have state court compel debtor to comply with consent judgment of divorce by paying her $855 from his future monthly pension payments, and to seek state-court remedies, other than by collection from bankruptcy estate, for debtor's past failures to comply with his obligations under consent judgment, where consent judgment transferred to former wife separate ownership interest in debtor's pension, even though EDRO was not entered, and debtor held $855 from pension payments that he received in constructive trust for former wife.

Read opinion (US Bankruptcy Court East Dist. of MI @ www.mieb.uscourts.gov)

Child Custody

Coleman v. Coleman

No. 2010-CA-000277-ME
(Kentucky Court of Appeals, October 1, 2010)

The trial court committed reversible error when it excluded the testimony of the parties' ten-year-old child without making any determination as to child's competence, in child custody modification proceeding.

Read opinion (KY Supreme Court @ www.kycourts.net)

Brumfield v. Brumfield

No. 2008-CA-01944-COA
(Mississippi Court of Appeals, November 30, 2010)

Father awarded custody on the basis that mother suffered depression and had ceased to do many household chores, even though Father had been convicted of assault and battery on the mother for hitting her with a belt in front of the children.
(Ed. Note: I actually had to read the holding twice to believe what the court had done.
Please read the dissent in this case.)

Read opinion (MS Judiciary @ www.mssc.state.ms.us)

Charara v. Yatim

09-P-1189
(Massachusetts Appeals Court, Nov. 23, 2010)

Child custody determination by the Jaafarite Court in Lebanon was not decided under law in substantial conformity with Massachusetts law governing child custody cases, and thus was not entitled to deference in Massachusetts divorce action; while the best interests of the child standard employed by Massachusetts courts was child-centered and required a gender-neutral analysis, there was a presumption in the Jaafarite Court in favor of the father, and if both parents were fit, the father would be awarded custody. Lebanese child custody agreement in which mother had agreed to give guardianship of the children to father was obtained under duress and was thus unenforceable in Massachusetts divorce action, where the parties had agreed to return to Lebanon for the purposes of obtaining a religious divorce there and had agreed that the mother would receive custody of the children, mother entered into the custody agreement in Lebanon because she knew she could not obtain custody under the substantive law of the Lebanese court and was merely attempting to secure visitation, and, under governing law in the Lebanese Court, the mother would not have been awarded custody had she sought custody in that court.

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

Child Custody - Relocation

In re Heinrich

No. 2009-305
(New Hampshire Supreme Court, September 17, 2010)

In divorce proceedings, issue of whether mother could relocate to Florida with parties' children was required to be determined pursuant to burden-shifting test under statute governing parental petitions for relocating residence of child, not pursuant to best interests of the child standard pursuant to statute generally governing parenting plans and determination of parental rights and responsibilities; statute governing relocation petitions was not expressly limited to relocations proposed after entry of a final divorce decree.

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

Cass v. Cass

No. 10-27
(Louisiana Court of Appeal, Third Circuit, Nov. 17, 2010)

Statutory factors addressing whether relocation would enhance general quality of life for both relocating parent and child and addressing current employment and economic circumstances of each parent favored former husband's proposed relocation with child to Texas, although former wife's salary allowed her to adequately provide for child's needs; military base at which former husband and child would live offered myriad of activities wherein child would spend time with other families who shared commonality of being in the military, relocation would benefit child's educational development, and relocation was necessary per former husband's obligation to the military, would improve his salary, and would facilitate his retirement in fewer than four years.

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

Child Support

In re Marriage of Reeves

237 Or. App. 126
(Oregon Court of Appeals, September 1, 2010)

Stipulated judgment of dissolution providing that child support would continue up to age 23 so long as child was unmarried and a full-time student neither violated the law nor contravened public policy and, thus, was enforceable.

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

Prisco v. Stroup

Nos. 09-FM-1159 and 09-FM-1401
(District of Columbia Court of Appeals, September 2, 2010)

Court would use Virginia child support guidelines where parties had a choice of law clause designating the law of Virginia as controlling to child support.

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

Upson v. Wallace

No. 07-FM-572 et al.
(District of Columbia Court of Appeals, September 9, 2010)

Under the Uniform Interstate Family Support Act (UIFSA), territorial jurisdiction is waivable, and any challenge to the subject matter jurisdiction of the court based on territorial limitations in child support proceedings must be raised at the outset of the litigation. (Ed Note: This decision is at odds with every other UIFSA decision considering the issue, holding that subject matter jurisdiction is never waivable and can be raised at any time.)

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

Ashworth v. Ehrgott

No. 49A05-0912-CV-727
(Indiana Court of Appeals, September 16, 2010)

Trial court did not abuse its discretion when it did not give ex-husband a credit against his child support obligation of $75 per week for his transportation expenses from California to Indiana to exercise parenting time with the children; ex-husband made $133,500 per year and ex-wife's only income was the alimony from ex-husband, and when ex-wife filed her petition to relocate from Tennessee to Indiana, ex-husband did not request travel expenses or an adjustment to his child support, even though his travel expenses from Tennessee to Indiana were the same then as they were from California to Indiana. Trial court did abuse its discretion in ordering ex-husband to pay child's private school expenses as added child support; there was no agreement between the parties to share the costs of private school, and child's attendance at Christian preschool, especially in light of his subsequent attendance at public kindergarten, did not prove that parties agreed to send their children to private schools.

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

Mullin v. Roy

No. S10F1120
(Georgia Supreme Court, September 20, 2010)

Trial courts have authority under the child support guidelines statute, as revised in 2007, to order lump-sum payment of child support obligations; the revised statute authorizes trial courts to specify "in what manner, how often, to whom, and until when the [child] support shall be paid." Husband's claim that the order was improper because it precluded any future modification of his obligation, regardless of the children's needs, was not ripe for adjudication; husband's concerns were based wholly on speculation about what might or might not occur at some point in the future.

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

Sharlow v. Sharlow

908 N.Y.S.2d 287
(New York Supreme Court, Appellate Division, Fourth Department, October 1, 2010)

In a divorce action, Supreme Court did not abuse its discretion in imputing income of $45,000 to the husband for the purposes of calculating his maintenance and child support obligations; the record established that husband consistently underreported his income as a plumber, the testimony of husband and documentary evidence presented at trial concerning his income was less than credible, and the $45,000 in imputed income was based upon the average salaries of plumbers as reported by the New York State Department of Labor, husband's history of earnings, and the evidence that he worked under the table.

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

Millette v. Millette

No. S-13315
(Alaska Supreme Court, October 8, 2010)

Evidence supported finding that nutritional supplements for autistic child were a reasonable health care expense, in post-divorce action filed against father to obtain reimbursement for half of child's health care expenses; the supplements were purchased directly from clinic treating child, the charges appeared on invoices from the clinics, and the supplements were recommended by child's health care providers.

Read opinion (AK Courts @ www.courts.alaska.gov)

Autrey v. Autrey

No. S10F1806
(Georgia Supreme Court, Nov. 22, 2010)

Evidence supported finding that husband's income was $12,500 per month, for purposes of calculating his child support obligation following divorce; husband, a self-employed home builder, earned income of $373,000 and $806,000 in the two years prior to divorce, and there was also evidence of large distributions to husband from his business and of a transfer of $125,000 to a newly created company owned by his brother on the day divorce papers were served.

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

In re Marriage of Ross-Ooley and Ooley

No. 09CA2188
(Colorado Court of Appeals, Nov. 10, 2010)

Social Security survivor benefits that wife received on behalf of son from prior marriage as result of his father's death were not includable in wife's gross income for purposes of calculating husband's support obligation for their daughter in action for dissolution of marriage; those benefits were son's financial resource, and wife received them in a representative capacity for son.

Read opinion (CO Judicial Branch @ www.courts.state.co.us)

Bruckstein v. Bruckstein

2010 N.Y. Slip Op. 07929
(New York Supreme Court, Appellate Division, Second Department, Nov. 3, 2010)

Father failed to establish that loss of his employment was unavoidable, that program attended by parties' son did not qualify as summer camp, or that program's cost was unreasonable, as would support downward modification of his obligation to pay two-thirds of the expense of parties' son's summer camp expenses, as father had agreed to in stipulation of parties' divorce action, which was incorporated but not merged into their judgment of divorce.

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

J.M. v. D.A.

935 N.E.2d 1235
(Indiana Court of Appeals, Oct. 29, 2010)

The trial court's imputation of potential earnings to father, for the purpose of calculating his child support obligation, was not an abuse of discretion, in child support modification proceeding; father worked a variety of jobs earning between 12 to 15 dollars per hour, father was terminated from his last job either for job abandonment or absenteeism, father applied for unemployment benefits but was denied, and father decided not to look for another job but to go to school full time.

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

Child Support - UIFSA

Deazle v. Miles

2010 N.Y. Slip Op. 07170
(New York Supreme Court, Appellate Division, Second Department, October 5, 2010)

Mother established that New York had been and remained her residence at the time she commenced proceeding for modification of child support, even though she also maintained residence in Philadelphia where she worked and parties' child attended school, and, therefore, New York retained continuing, exclusive jurisdiction over support order pursuant to Uniform Interstate Family Support Act (UIFSA) and family court had subject matter jurisdiction over mother's petition for upward modification of support, despite father's residence out-of-state; mother presented, among other things, lease for New York apartment that listed herself and child as tenants during relevant time period, check for partial payment of monthly rent payable from her bank account held at New York credit union, which listed her address as being in New York, and New York driver's licenses and voter registration cards.

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

Divorce Procedure - Discovery

Schreiber v. Schreiber

2010 N.Y. Slip Op. 20271, 904 N.Y.S.2d 886
(New York Supreme Court, June 25, 2010)

Wife was not entitled, in matrimonial action, to unrestricted turnover of hard disk drive from husband's office computer, either in form of original hard disk drive or in form of its clone, where wife's request was overbroad, in that it sought general access, unlimited in time, to the entirety of husband's business and personal data stored on office computer and wife proposed no discovery/issue resolution protocol; however, wife would be granted leave to renew request upon papers responsive to identified deficiencies.

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

(Ed. Note: This case is from June, but I discovered it in the last month.)

Parentage

Jeannette GG. v. Lamont HH.

2010 N.Y. Slip Op. 07429
(New York Supreme Court, Appellate Division, Third Department, October 21, 2010)

In proceedings on mother's application to vacate acknowledgment of paternity on the ground that it was signed under duress, mother's testimony was sufficient foundation for expert testimony as to effect of domestic violence on mother's ability to exercise free will in connection with execution of paternity acknowledgment; mother testified that during her four-year relationship with man she named as father of her child in the acknowledgment, she endured ongoing physical, financial and emotional abuse from him, including incidents in which he burned her with cigarettes, dragged her across the floor, and forced her to have sex with him, and that while she was still on pain medication following child's birth by cesarean section, he insisted she sign paternity acknowledgment.

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

Baker v. Lankford

No. A10A1211
(Georgia Court of Appeals, October 5, 2010)

Mother's former husband, who was married to mother at the time child was born and was listed as the father on child's birth certificate, had an interest in legitimation proceeding brought by child's putative biological father, for purposes of former husband's motion to intervene in the legitimation proceeding; former husband was the child's legal father, with parental and custodial rights to the child, when he filed the motion to intervene.

Read opinion (Findlaw @ caselaw.findlaw.com)

Property Division

Brown v. Brown

No. 1015, Sept. Term, 2008
(Maryland Court of Special Appeals, September 30, 2010)

Residence that was owned by husband and wife as tenants by entirety, but was deemed to be non-marital property in parties' agreement, was not "marital property," within meaning of statute providing that real property held in tenancy be entirety was marital property unless excluded by valid agreement, with result that trial court did not have authority to transfer title to wife in divorce action under another statute permitting trial courts to transfer ownership of interest in principal residence of parties upon determination that residence was marital property.

Read opinion (MD Judiciary @ www.mdcourts.gov)

Tillman v. Altunay

No. 4D09-883
(Florida District Court of Appeal, Fourth District, September 29, 2010)

Trial court could not equitably distribute husband's stock portfolio in dissolution of marriage action without accounting for the decline in its value from $100,555.80 to $40,796.38 between the date husband filed petition for dissolution and date of the final hearing.

Read opinion (FL Fourth District COA @ www.4dca.org)

Bingley v. Bingley

No. 02S03-1002-CV-122
(Indiana Court of Appeals, September 29, 2010)

Husband's health insurance benefits, received as part of his pension and paid for by his employer, constituted a marital asset subject to division in dissolution proceedings, regardless of husband's inability to liquidate the benefits or assign a definite value; the benefits were vested, in that husband had a present right to them, husband owned the insurance policy and was the party who benefited from it, and the benefits were not subject to divestiture in future years.

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

Lasater v. Guttmann

No. 2364, Sept. Term, 2008
(Maryland Court of Special Appeals, September 13, 2010)

Confidential relationship did not exist between husband and wife that would support wife's breach of confidential relationship claim against husband to recover marital losses allegedly sustained through husband's financial mismanagement of marital assets, where allegedly mismanaged assets were held jointly such that wife had access to them, and wife was capable of handling and understanding financial matters.

Read opinion (MD Judiciary @ www.mdcourts.gov)

Hook v. Hook

No. WD-09-059
(Ohio Court of Appeals, Sixth District, Wood County, September 3, 2010)

Evidence supported trial court's finding that gifts from wife's parents of shares of stock were intended to be wife's separate property, and thus shares of gifted stock and all of traceable assets purchased with liquidated shares were non-marital property for purposes of equitable distribution in divorce action; evidence indicated that gifts of stock were always made to wife alone, shares concerned family-owned businesses, and stock gifts were made to parents' children for estate planning purposes.

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

Tannen v. Tannen

No. A-4211-07T1
(New Jersey Superior Court, Appellate Division, August 31, 2010)

In a matter of first impression, wife's beneficial interest in discretionary support trust was not an asset held by her, so it was improper to impute income from the trust to her in determining husband's alimony obligation; (2) trusts were improperly added as parties to divorce proceeding; (3) trusts' request for counsel fees on appeal in divorce proceeding was premature.

Read opinion (Rutgers Law Library @ lawlibrary.rutgers.edu)

McKissack v. McKissack

No. 2009-CA-00259-COA
(Mississippi Court of Appeals, October 12, 2010)

Money totaling $542,000, which was obtained from $900,000 withdrawal by husband from his company and deposited and held in certificates of deposit in husband's name, were not commingled with marital funds so as to be converted to marital property that would be subject to equitable distribution in divorce action under family-use doctrine, notwithstanding that husband spent separate part of $900,000 withdrawal on family expenses.

Read opinion (MS Judiciary @ www.mssc.state.ms.us)

Bandini v. Bandini

No. 49A04-1001-DR-26
(Indiana Court of Appeals, October 8, 2010)

In the absence of any limiting language, the phrase "military retirement/pension plan" in parties' property settlement agreement, which provided that ex-wife would receive fifty percent of ex-husband's "military retirement/pension plan," encompassed ex-husband's gross retirement pay, before any deductions for Survivor Benefit Plan (SBP) costs or amounts waived to receive Veterans' Administration (VA) disability benefits.

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

Richter v. Richter

2010 N.Y. Slip Op. 07218
(New York Supreme Court, Appellate Division, Fourth Department, October 8, 2010)

Funds from husband's inheritance used to purchase and improve out-of-state real property were commingled with marital funds in joint account, and thus property was marital property for purposes of distribution in divorce action, absent evidence that joint account was established solely for the purpose of convenience.

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

Noble v. Noble

2010 N.Y. Slip Op. 08401
(New York Supreme Court, Appellate Division, Third Department, Nov. 18, 2010)

In divorce action, record supported Supreme Court's finding, for purposes of equitable distribution of parties' marital property, that husband wastefully dissipated marital assets; there was evidence that husband liquidated his 401(k) account, invested the money in his two businesses, and borrowed over $700,000 to cover business costs, and, while obligated on those debts and with businesses operating at a loss, he made unsecured loans to friends and business associates, none of which was repaid, and, despite court-imposed restrictions on his spending, he engaged in extensive travel and spent thousands of dollars on restaurants, country club dues, and furnishings for his apartment, while failing to pay child support, maintenance, and mortgage on marital home.

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

Property Division - Constructive Trust

Tupper v. Roan

CC CV0610-0435; CA A136095; SC S057373
(Oregon Supreme Court, Nov. 12, 2010)

Settlement agreement incorporated into marriage dissolution decree, containing generic requirement that each party maintain "an" insurance policy insuring his or her life in an amount of not less than $100,000 and naming the other spouse as trustee on behalf of any supported child, but also stipulating to imposition of constructive trust on proceeds of "any" life insurance policy owned by a spouse at time of his or her death, as remedy if the spouse was not in compliance with agreement's requirement of naming other spouse as trustee on behalf of any supported child, clearly identified as an object of the agreement the life insurance policy obtained by husband after marriage dissolution, which named husband's girlfriend as beneficiary, and thus, wife had a vested equitable interest in that life insurance policy, as element for imposition of constructive trust as common-law remedy for unjust enrichment. However, genuine issues of material fact as to whether former husband's girlfriend gave valuable consideration for being named as beneficiary of former husband's life insurance policy, which he obtained after marriage dissolution, and as to whether girlfriend had notice of former husband's obligation, under settlement agreement incorporated into marriage dissolution decree, to maintain an insurance policy of at least $100,000 naming former wife as trustee on behalf of any supported child, precluded summary judgment for either former wife or girlfriend, in former wife's action against girlfriend seeking to impose a constructive trust, based on unjust enrichment, on a portion of the proceeds of the life insurance policy that named girlfriend as beneficiary.

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

Same-Sex Marriage

In re Marriage of J.B. and H.B.

No. 05-09-01170-CV
(Texas Court of Appeals, Dallas, August 31, 2010)

Texas courts have no subject-matter jurisdiction to adjudicate a divorce petition in the context of a same-sex marriage, under the statute limiting marriage to opposite-sex couples and prohibiting the State from giving effect to a right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex, even if the marriage was entered in another state that recognized the validity of same-sex marriages.

Read opinion (TX Fifth District COA @ www.5thcoa.courts.state.tx.us)

Spousal Support

Zahringer v. Zahringer

124 Conn. App. 672
(Connecticut Appellate Court, Nov. 2, 2010)

Evidence supported conclusion that payments made by former wife's father to former wife following parties' divorce were loans, not gifts, for purposes of former spouses' cross-motions for modification of former husband's obligation to pay former wife unallocated alimony and child support; former wife testified that she had begun borrowing money from her father because her alimony funds were insufficient to maintain lifestyle for her and parties' children in manner that they had lived prior to parties' divorce, and former wife's father testified that he had loaned former wife money with the intention that she would repay him, and trial court specifically found father's testimony to be credible.

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