January/February 2011



Family Law Cases from Around the Nation
January 1 through February 28, 2011

Agreements - Premarital

In re Marriage of Cadwell-Faso and Faso
No. A126524
(California Court of Appeal, First District, Division 4, January 11, 2011)

Statute providing that unless a court finds that the party against whom enforcement of a premarital agreement is sought had at least seven calendar days between the date he or she was first presented with the agreement and advised to seek independent counsel, and the time he or she signed the agreement, it is presumed that the agreement was not executed voluntarily does not pertain where the party against whom enforcement is sought was represented by counsel from the outset of the transaction.

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

Pember v. Shapiro
No. 20100149
(North Dakota Supreme Court, February 8, 2011)

Premarital agreement executed by spouses on their wedding day was unenforceable, based on lack of consent; very little planning preceded creation of premarital agreement, drafting lawyer did not receive any information regarding spouses' property until the morning of the wedding, husband was not advised to seek independent legal advice and there was not time to do so, husband told the court he did not understand the agreement when it was signed or when asked about it at divorce trial, and terms apparently were inflexible.

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

Agreements - Separation

Ferguson v. Ferguson
No. 3D10-479
(Florida District Court of Appeal, Third District, February 2, 2011)

Doctrine of impossibility did not apply and thus did not preclude enforcement of marital settlement agreement's provisions governing disposition of marital residence and requiring former husband to pay equalization payment and then to refinance mortgage or list residence for sale if refinancing did not occur, even though value of residence decreased shortly after agreement was executed; decrease in value occurred during one of the periodic downward adjustments in real estate market, and economic downturns and other market shifts did not truly constitute unanticipated circumstances in a market-based economy.

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

France v. France
Nos. COA10-313, COA10-425
(North Carolina Court of Appeals, February 1, 2011)

Confidentiality provision in separation agreement between husband and wife was not a compelling countervailing public interest which outweighed public's right of access to civil court proceedings regarding the agreement; rather, court was required to determine whether proceedings should be closed based upon the nature of the evidence to be a dmitted and the facts of the specific case.

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

Alienation of Affections

Knight v. Woodfield
No. 2009-IA-01371-SCT
(Mississippi Supreme Court, January 6, 2011)

Former husband filed complaint against wife's paramour, who was resident of Louisiana, for alienation of affections. The County Court denied paramour's motion to dismiss for lack of personal jurisdiction, and paramour appealed. The Supreme Court held that: (1) paramour committed tort, in whole or in part, in Mississippi, within meaning of long-arm statute; (2) hundreds of amorous e-mails, text messages, and telephone calls from paramour to wife in Mississippi constituted sufficient minimum contacts; and (3) exercise of personal jurisdiction over paramour would not offend traditional notions of fair play and substantial justice.

Read opinion (MS Lawyers @ www.mslawyer.com)

Attorneys - Liability

Rucker v. Schmidt,
No. A08-1730
(Minnesota Supreme Court, January 5, 2011)

Attorney-client relationship between ex-husband and ex-husband's attorney in underlying divorce action did not alone establish that ex-husband and attorney were in privity, as an element of res judicata, and thus prior fraud action by ex-wife, arising from ex-husband's fraudulent valuation of a business interest for purposes of distribution of property in divorce action, did not preclude ex-wife from bringing subsequent fraud action against attorney arising from attorney's alleged role in husband's fraud; although ex-husband and attorney had a common interest in obtaining a favorable outcome in the divorce action, they did not share a mutuality of legal interest in the outcome in the divorce action.

Read opinion (MN State Law Library @ www.lawlibrary.state.mn.us)

Attorney's Fees

Simpson v. Simpson
No. COA09-1131
(North Carolina Court of Appeals, January 18, 2011)

Trial court considering mother's request for attorney's fees in child custody modification action could take judicial notice of the customary rates of local attorneys when considering the reasonableness of the hourly rate charged by mother's counsel.

Read opinion (NC Appellate Courts @ appellate.nccourts.org)

Child Custody

Rikard v. Matson
2011 N.Y. Slip Op. 00143
(New York Supreme Court, Appellate Division, Third Department, January 13, 2011)

Father and mother were so "embattled and embittered" that there was change in circumstances sufficient to warrant change in existing joint custody arrangement, pursuant to which father had primary physical custody of child, to award mother primary physical custody; while parties were able to stipulate to prior custody arrangements, they were unable to do so in instant proceedings, father alleged that mother was unwilling to cooperate with him by scheduling medical and mental health appointments for child without his consent, mother did not dispute parties' inability to cooperate and communicate, and psychiatrist's evaluation revealed "significant amount of tension" between parties and confirmed consistent and ongoing fighting between them.

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

Seacord v. Seacord
2011 N.Y. Slip Op. 01084
(New York Supreme Court, Appellate Division, Third Department, February 17, 2011)

Father's willful violation of joint custody order and continued deterioration of his relationship with children's mother were a significant change in circumstances warranting modification of custody order, in the best interests of the children, to award sole custody to mother, subject to specific, liberal parenting time to the father.

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

Child Custody - Relocation

Morgan v. Morgan
No.: a-1-10
(New Jersey Supreme Court, February 8, 2011)

Should a party seeking removal of a child from the jurisdiction meet the burden of production as to good faith and that it would not be detrimental to the child, the noncustodial parent must then produce evidence opposing the move as either not in good faith or inimical to the child's interest; problems, in the form of detriment to the child, with regard to changed visitation may prove particularly important. Fact that noncustodial father saw children more than provided for in the settlement agreement and was involved in their school and sports lives did not establish de facto shared physical custody of the children with mother so as to cast issue of mother's request to remove children to another state as one of custody rather than removal.

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

Child Custody - UCCJEA

Bellew v. Larese
No. S10A1334
(Georgia Supreme Court, February 7, 2011)

As state in which child lived with parents for over two-and-a-half years before the commencement of child custody proceeding, Georgia, not Italy, was child's home state at time of commencement of divorce proceedings between mother and father, and thus Georgia court, not Italian court, had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to make initial child custody determination concerning parties' child; although Italy has not adopted the UCCJEA, Italian court's expression of jurisdiction, in Italian divorce and custody proceedings commenced by mother after she left with child for Italy on annual summer visit but did not return, prior to commencement of divorce action in Georgia, was not substantially in conformity with the UCCJEA as would permit Georgia court to defer to Italian court, where Italian court merely asked whether facts existed which met the basis for jurisdiction in that court over divorce, but failed to conduct any analysis of the home state of child or of any other factors that could be considered a substitute.

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

Child Support

Simmons v. Simmons
No. S10F1818
(Georgia Supreme Court, Feb. 28, 2011)

Employment benefits husband received, including the amount company paid for the loan on husband's truck, company's coverage of the vehicle expenses including gas, tags, insurance and repairs, company's payment of husband's cell phone, and husband's use of a company-issued credit card for items including meals and social activities, could be included in husband's gross income, for the purpose of determining husband's child support obligation in divorce proceeding; the benefits significantly reduced husband's personal living expenses.

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

State v. James
Nos. 45,955-JAC, 45,956-JAC, 45,957-JAC
(Louisiana Court of Appeal, Second Circuit, January 26, 2011)

Father is voluntarily underemployed because, in addition to working as a school bus driver, he has the training and ability to work as a part-time barber and receive more income. The father has several free hours a day, weekends, holidays and summer months during which he could earn additional income working as a barber because he is not driving a school bus during those times.

Read opinion (LA COA, Second Circuit @ www.lacoa2.org)

Jelfo v. Jelfo
2011 N.Y. Slip Op. 00819
(New York Supreme Court, Appellate Division, Fourth Department, February 10, 2011)

The trial court, in calculating husband's child support obligation, properly refused to reduce husband's income by the amount of payments that he made to assist in the support and college expenses of his children from a prior marriage; there was neither a court order nor a written agreement with respect to the support of the children from the prior marriage, and the resources available to support those children were not less than the resources available to support the children of the parties' marriage.

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

Child Support - UIFSA

Thornton v. Thornton
No. 107,334
(Oklahoma Supreme Court, January 31, 2011)

Foreign child support order requiring father to pay child support to mother that had become unenforceable in the issuing state could not be registered and enforced in Oklahoma, under the Uniform Interstate Family Support Act (UIFSA), as the law of the issuing state applied as to the nature, extent, amount and duration of payments under the order, the foreign child support order had become dormant and incapable of being revived 12 years after child became 18 years of age, and there was no evidence that dormant order had ever been revived within the proper window.

Read opinion (OK Courts Network @ www.oscn.net)

Divorce Procedure

Strack v. Strack
2011 N.Y. Slip Op. 21033
(New York Supreme Court, Essex County, February 3, 2011)

In a decision sure to gladden the hearts of New York matrimonial lawyers, the court held that the new no-fault provision based on irretrievable breakdown of the parties' relationship for a period of at least six months is a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it, including the right to trial by jury of the issues of the grounds for granting the divorce.

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


In re Marriage of Akon
No. 27922-7-III
(Washington Court of Appeals, Division 3, February 10, 2011)

Mother's first marriage in Sudan to biological father of children constituted valid cultural marriage for purposes of stepfather's attempt to claim presumption of paternity based on alleged invalidity of first marriage due to biological father's failure to complete payment of dowry; both mother and biological father testified that they there was a valid cultural marriage, there was evidence that the parties intended to marry, received the blessing of their local authority, consummated the marriage, and substantially paid the dowry.

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

Parentage - Personal Jurisdiction

Bergaust v. Flaherty
No. 0650-10-4
(Virginia Court of Appeals, January 11, 2011)

Putative father, who lived in France where he and mother had sexual intercourse, did not "conceive or father" child in Virginia so that he was subject to statutory provision governing long arm control over child support matters, although he visited mother and child in Virginia, had his picture taken with child, and acknowledged paternity in Virginia by referring to child as his daughter; words "conceived" and "fathered" referred to the act of procreation, rather than to making oneself the father by acknowledgment, and statute did not confer jurisdiction over claims that did not arise from a defendant's acts in the state.

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

Raftopol v. Karma A. Ramey
No. 18482
(Connecticut Supreme Court, January 5, 2011)

Biological father and his same-sex domestic partner, the intended parents, brought action against surrogate mother, who was carrying embryos created using eggs recovered from a third party egg donor and fertilized with sperm contributed by biological father, seeking declaratory judgment regarding validity of gestational agreement under which surrogate mother agreed to terminate her putative parental rights and to consent to adoption of any resulting children by father's domestic partner. The Superior Court, Judicial District of Waterbury, entered judgment finding gestational agreement valid, found intended parents to be the legal parents of the children, and ordered the department of public health to issue a replacement birth certificate. Department appealed. Held: (1) surrogate mother, a gestational carrier, had no parental rights with respect to the children, to whom she bore no biological relationship; (2) superior court had jurisdiction to declare domestic partner a legal parent; and (3) as a matter of first impression, an intended parent who is a party to a valid gestational agreement may become a parent without first adopting the children.

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

Read concurrence

Property Division

Fillingim v. Fillingim
No. 10-0013
(Texas Supreme Court, January 14, 2011)

Mineral rights were characterized as community property at time of divorce decree and were divided between husband and wife through decree's residuary clauses, and thus trial court lacked jurisdiction to modify that division; husband did not attend final hearing or offer any proof that mineral rights deeds were a gift from his parents and were separate property, as required to rebut the presumption that the mineral rights were community property, and, although divorce decree did not specifically divide the mineral deeds, the schedules included residuary clauses that awarded each party a "one-half interest in all other property or assets not otherwise disposed of or divided herein."

Read opinion (TX Supreme Court @ www.supreme.courts.state.tx.us)

Wolcott v. Wolcott
78 Mass. App. Ct. 539
(Massachusetts Appeals Court, January 6, 2011)

Trial judge acted within his discretion in taking into consideration fact that wife had been convicted in criminal court of soliciting murder of husband, in dividing marital estate for purposes of divorce proceeding, where judge did not consider wife's misconduct solely for its negative emotional impact on marriage but instead noted that wife's effort to have husband murdered caused husband to take on total responsibility for children's care, made husband totally responsible for maintaining marital home, and diminished husband's ability to focus on life and work issues, and judge did not base award of marital property purely on basis of wife's blameworthy conduct.

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

In re Marriage of Slater
No. 06DS0016; A137465
(Oregon Court of Appeals, December 29, 2010)

Trial court valued husband's chiropractic business at $500,000, which included the value of the business's net tangible assets and its goodwill value, assuming the execution of a noncompetition covenant. Court of Appeals held: (1) valuation of husband's chiropractic business could not be predicated on an assumption that husband would execute a noncompetition covenant, and (2) goodwill inhering to husband's chiropractic business as an entity was minimal.

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

In re Goodlander
No. 2009-309
(New Hampshire Supreme Court, Feb. 25, 2011)

Wife's interest in any future distributions of a trust of which she was a beneficiary was mere expectancy, and therefore wife did not have vested interest in distributions and distributions were not marital property, where wife's hope for a discretionary distribution from the trust was not a fixed, certain, and absolute right, as trustee had discretion to make distributions for beneficiary's "education and maintenance in health and reasonable comfort" after investment directors exercised discretion in making distributions to the trust from larger trusts, and beneficiary had no power to force distributions.

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

Finear and Finear
No. 060084D3; A138783
(Oregon Court of Appeals, February 16, 2011)

Trial court did not abuse its discretion in failing to award wife an interest in husband's separately held inheritance assets; although husband commingled inheritance funds by using them as the source of family's support, husband expressed intention to retain the inheritance as a separate property, and wife would achieve economic self-sufficiency through award of indefinite spousal support and equal division of the appreciation of property that was due largely to husband's investment of time, labor, and inheritance funds.

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

Baker v. Bielski
No. 28732
(Hawaii Court of Appeals, January 31, 2011)

Real estate commissions, which husband earned in part or in whole during the marriage but did not expect to receive until after the date of the conclusion of the evidentiary part of the divorce trial, were part of the marital estate, although commissions were for units in a project that had not yet been constructed and husband testified that other escrows had been cancelled because the units were in condominium projects with financial problems, where husband did not have to perform any additional duties to receive his escrow commissions or do anything after the marriage was dissolved to earn those commissions, husband's existing escrows were not for units in projects with financial or other problems or any other evidence that those escrows might not close, and, presumably, husband's expectancy was based on a contractual agreement.

Read opinion (HI Judiciary @ www.courts.state.hi.us)

Same-Sex Marriage

In re Estate of Ranftle
81 A.D.3d 566, 2011 N.Y. Slip Op. 01407
(New York Supreme Court, Appellate Division, First Department, Feb. 24, 2011)

Decedent (male) was lawfully married in Canada to another male. The decedent's brother challenged the will. The court held that the legislature's failure to authorize same-sex couples to enter into marriage in New York or require recognition of validly performed out-of-state same-sex marriages could not serve as expression of public policy for State; thus, legislative action or inaction did not qualify as exception to marriage recognition rule in absence of express statutory prohibition, and the marriage would be recognized.

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

New Law Review Articles of Interest

W. Sherman Rogers, The Constitutionality of the Defense of Marriage Act and State Bans on Same Sex Marriage: Why They Won't Survive, 54 Howard Law Journal 125 (Fall 2010)

Charles M. Cannizzaro, Comment, Marriage in California: Is the Federal Lawsuit Against Proposition 8 about Applying the Fourteenth Amendment or Preserving Federalism?, 38 Pepperdine Law Review 161 (December 2010)

Sherif Girgis, Robert P. George, & Ryan T. Anderson, What is Marriage?, 34 Harvard Journal of Law & Public Policy 245 (Winter 2011)

Mark Strasser, On Same-sex Marriage and Matters of Conscience, 17 William & Mary Journal of Women and the Law 1 (Fall 2010)

Joanna Nairn, Is There a Right to Have Children? Substantive Due Process and Probation Conditions That Restrict Reproductive Rights, Stanford Journal of Civil Rights & Civil Liberties 1 (April 2010)

Maryl Sattler, The Problem of Parental Relocation: Closing the Loophole in the Law of International Child Abduction, 67 Washington and Lee Law Review 67 (Fall 2010)

Deborah J. Anthony, A Spouse by Any Other Name, 17 William & Mary Journal of Women and the Law 187 (Fall 2010)

Heather MacClintock, Sexism, Surnames, and Social Progress: The Conflict of Individual Autonomy and Government Preferences in Laws Regarding Name Changes at Marriage, 24 Temple International & Comparative Law Journal 277 (Spring 2010)

Robin H. Ballard, Amy Holtzworth Munroe, Amy G. Applegate, and Brian D'onofrio, Factors Affecting the Outcome of Divorce and Paternity Mediations, 48 Family Court Review 16 (January 2011)

Volume 49 FAMILY COURT REVIEW Number 1 (January 2011)


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


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