March/April 2011

 

 

Family Law Cases from Around the Nation
March 1 through April 30, 2011

Agreements - Post-Nuptial

Bedrick v. Bedrick
300 Conn. 691
(Connecticut Supreme Court, April 26, 2011)

Post-nuptial agreements do not offend public policy. Nonetheless, they require special scrutiny by the court, because the parties are not adversarial and the agreement is not like a commercial contract. In this case, the parties' postnuptial agreement, which was last amended about 18 years before marriage dissolution trial, was unconscionable at time of trial: the value of the parties' combined assets was $927,123 at time of trial but agreement provided wife with only $75,000 cash settlement, and the last amendment was written before the initial success of the husband's car wash business, before birth of parties' son, at which time parties were 41 years old, and before deterioration of car wash business.

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

Child Custody

D.M. v. D.R.
No. 2010-IA-01217-SCT
(Mississippi Supreme Court, March 31, 2011)

Biological mother was not entitled to the natural parent presumption, in child custody modification proceeding in which paternal grandparents had been awarded custody of child; mother forfeited her right to the natural parent presumption when she voluntarily relinquished custody of child and allowed maternal grandparents to adopt child, and the deaths of maternal grandparents did not "reinstate" mother's parental rights to child.

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

In re A.P.P.
No. DA 10-0470
(Montana Supreme Court, March 22, 2011)

Substantial evidence supported finding that father engaged in conduct that was contrary to his parental relationship, which supported award of parental interest to child's step father after child's mother died; the Department of Health and Human Services Child Support Enforcement Division report indicated that father had paid only 25-30% of the child support he owed, and witnesses testified that father missed many visitation opportunities with child, and step-father financially supported child, regularly helped her with her homework, attended her sporting events and school activities, provided transportation to school and other places, prepared meals for her, and took care of her while her mother worked.

Read opinion (MT Supreme Court @ searchcourts.mt.gov)

In re Kurowski
No. 2009-751
(New Hampshire Supreme Court, March 16, 2011)

Decision on the merits was justified on mother's appeal from Family Division order granting father's request to compel enrollment of parties' daughter in public school for a particular school year, even if appeal was moot on basis that the school year in question had concluded; case, which arose out of a disagreement between parties having joint parenting responsibilities for daughter as to whether she should be home schooled or enrolled in public school, involved a matter which was capable of repetition yet evading review.

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

Child Custody - Relocation

In re W.C.B.
No. 05-09-01393-CV
(Texas Court of Appeals, Dallas, April 19, 2011)

Mother's relocation of child over 700 miles from father, in violation of residency restriction in original divorce decree, constituted material and substantial change of circumstance, as required to support father's post-divorce motion to modify conservatorship of child, and appoint father as joint managing conservator with exclusive right to designate child's primary residence.

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

Child Custody - UCCJEA

Prizzia v. Prizzia
No. 1343-10-2
(Virginia Court of Appeals, April 12, 2011)

Hungary did not exercise jurisdiction over divorce and child custody under factual circumstances in substantial conformity with Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus, trial court's decision to decline to exercise jurisdiction to render initial custody determination did not comply with UCCJEA; Hungary did not have jurisdiction to make initial child custody determination as of date that wife filed action for divorce and custody in Hungary, in that child had not lived in Hungary for previous six months, and thus, Hungary was not child's home state, and trial court had not conducted statutory analysis to determine whether Virginia was inconvenient forum and whether it was appropriate for Hungary to exercise jurisdiction.

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

Child Support

Laussermair v. Laussermair
No. 4D09-4823, 36 Fla. L. Weekly D448
(Florida District Court of Appeal, Fourth District, March 2, 2011)

There was no public policy violation in the provision of the settlement agreement converting the $1200 monthly child support payment to a $750 payment into a college educational account because that provision did not relieve ex-husband of his duty to support his minor child entirely or permanently, which would have been contrary to public policy; rather, the payment was directed into an account for the benefit of the child.

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

Draughn v. Draughn
Nos. S10A1599, S10A1600
(Georgia Supreme Court, March 7, 2011)

Child's enrollment in online high school program after he stopped attending private high school, with school's agreement that he would graduate as a student of the school upon completion of online coursework, constituted "attending school," for purposes of father's agreement to pay monthly child support after child reached age 18 while child was enrolled in and attending a secondary school on a full-time basis until child graduated from secondary school or reached age 20, whichever came first; legislative and executive branches endorsed and regulated online learning opportunities for state students.

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

Culver v. Culver
127 Conn. App. 236
(Connecticut Appellate Court, March 15, 2011)

Oral agreement between father and mother, under which father agreed to pay for children's private school expenses in exchange for being relieved of his child support obligations, was unenforceable, and thus trial court could order father to pay $225,000 in past due child support, even though father submitted evidence that he had contributed nearly $480,000 to his children's private school expenses, since marriage dissolution judgment between father and mother required any modification of child support to be in writing and executed with the same formality as judgment; father's voluntary acceptance of a subsequent obligation to pay private school tuition did not lessen his court-ordered child support obligation.

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

In re Estate of Hicks
No. DA 10-0459
(Montana Supreme Court, April 19, 2011)

Death benefits from Social Security paid to former husband's children upon his death did not apply towards husband's continuing child support obligation, pursuant to terms of unambiguous parenting agreement which required husband's estate to pay sum of $550 per child per month in same manner that his child support obligation would have continued as if he had survived, and which did not provide for credit against child support for payments from outside source.

Read opinion (MT State Law Library @ searchcourts.mt.gov)

Maslow v. Edwards
No. 5D10-655
(Florida District Court of Appeal, Fifth District, April 15, 2011)

For purposes of calculating child support obligation of father, who received veteran's disability benefits of $440 per month for himself and an additional monthly benefit of $159 for his minor son, the $159 paid to father for the benefit of his son would be included in father's income and the total family income figure.

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

Iliff v. Iliff
No. 09-0753
(Texas Supreme Court, April 15, 2011)

When a child support obligor is intentionally unemployed or underemployed, the intent to avoid child support need not be proven under Texas Family Code for the trial court to apply the child support guidelines to obligor's earning potential instead of to actual earnings, disapproving DuBois v. DuBois, 956 S.W.2d 607; Woodall v. Woodall, 837 S.W.2d 856

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

In re Marriage of Williams
No. DA 10-0355
(Montana Supreme Court, April 5, 2011)

Husband's income in amount of approximately $200,000 per year from his business increased standard of living of children and, therefore, income should have been included in calculation of husband's child support obligation; husband used funds to subsidize his standard of living by paying for airplane, airplane's service, his pilot license, and condominium, and funds were used to pay down business debt, which increased husband's personal worth.

Read opinion (MT Supreme Court @ searchcourts.mt.gov)

Tamayo v. Arroyo
No. 2009-34-Appeal
(Rhode Island Supreme Court, April 1, 2011)

Payments made on regular basis to father from National Guard for living quarters, uniforms, and other living expenses and locality pay constituted "income" subject to inclusion in calculating father's child support obligation, regardless that such income was not reportable to Internal Revenue Service. Trial court's reliance on father's tax return for determining income from father's rental properties, in which return father claimed loss, without considering or reviewing father's income, expenses and abundance of testimony related to that issue, was clear abuse of discretion, in calculating father's income for purposes of child support.

Read opinion (RI Judiciary @ www.courts.ri.gov)

Trabucco v. Trabucco
944 N.E.2d 544
(Indiana Court of Appeals, March 28, 2011)

In light of husband's self-employment as a board-certified urologist, the significant fluctuations in his income over the past several years, and his failure to adequately document his actual income at the time of the final hearing, trial court's decision to use an income-averaging approach to calculate husband's weekly gross income for child support purposes was not clear error.

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

Child Support - UIFSA

Sidell v. Sidell
No. 2009-159-Appeal
(Rhode Island Supreme Court, April 19, 2011)

Family court, as the "issuing state" of child support order that father sought to enforce, had permissive, continuing jurisdiction to enforce the order under the Uniform Interstate Family Support Act (UIFSA), though neither father, mother, nor child resided in the state, as the order was the controlling order and had not been modified by a tribunal of another state that assumed jurisdiction under the UIFSA.

Read opinion (RI Judiciary @ www.courts.ri.gov)

Divorce - Enforcement of Judgment

Greenwood v. Greenwood
No. S11A0622
(Georgia Supreme Court, April 26, 2011)

Former wife filed motion for contempt, alleging that former husband failed to comply with divorce decree's provision requiring former husband to refinance marital residence before certain date in order to remove former wife completely from mortgage on residence. The Superior Court found former husband to be in willful contempt, converted penalty into lien on residence, and refused to force sale of residence. Former wife applied for discretionary review. The Supreme Court held: (1) trial court's decision to convert penalty into lien constituted impermissible modification of decree, and (2) trial court's decision not to force sale of marital residence constituted impermissible modification of decree.

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

Divorce Procedure - Arbitration

Lang v. Levi
No. 1425, Sept. Term, 2009
(Maryland Court of Special Appeals, April 1, 2011)

Procedural requirements of Maryland Uniform Arbitration Act (MUAA) did not apply to Beth Din, a rabbinical court, where parties knowingly and voluntarily agreed to arbitrate their disputes under Jewish substantive and procedural law, and expressly waived application of Maryland law and the procedural aspects of the MUAA.

Read opinion (MD Judiciary @ mdcourts.gov)

Divorce Procedure - Parties

Luster v. Luster
128 Conn. App. 259
(Connecticut Court of Appeals, April 26, 2011)

As a matter of first impression, a conservator may bring a civil action for dissolution of marriage on behalf of a conserved person, and the conservators for the husband had the authority to file a cross complaint for divorce on behalf of the husband, if the husband's interests best could be protected through the filing of such an action.

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

Concurrence

Parentage

Clark v. Edens
No. 108,187
(Oklahoma Supreme Court, April 12, 2011)

Former husband's presumptive paternity of a child born during parties' marriage was not rebutted by a finding in divorce decree that there were no children born of the marriage, as a pleading or other representation that informed trial court that there were no children of the marriage removed issues of guardianship, custody, medical care, support, education, and visitation from determination in divorce proceeding, but did not necessarily resolve parties' relationship to an undisclosed child born during the marriage and subject to statutory presumption of paternity, and issue of former husband's paternity for any children born during the marriage was not before trial court or actually litigated, in that divorce was granted on former wife's petition and former husband's waiver.

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

Property Division

Adams v. Adams
459 Mass. 361
(Massachusetts Supreme Judicial Court, April 14, 2011)

Present value of husband's partnership interest in his employer, relating to husband's employment as a hedge fund manager, could be assigned to marital estate for purposes of equitable distribution in divorce action, where partnership interest entitled husband to share of large profit pool and partnership interest encompassed both a reasonably predictable stream of future distributions based on consistency of past distributions of partnership profits, and enforceable contractual right to future distributions on withdrawal or retirement through nonvested withdrawal payments made over ten years, though husband's annual share of partnership's surplus profits was tied partially to success of hedge funds he managed and was susceptible to variability of financial markets; husband's 16-year performance as partner provided watermarks for distributions of partnership profits he received in poor-performing and high-performing years.

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

Ryan v. Ryan
No. 71A03-1009-DR-453
(Indiana Court of Appeals, March 28, 2011)

Sudden drop in property values which prevented parties from selling two marital homes for previously agreed-upon minimum amount under terms of property settlement agreement and divorce decree constituted exceptional circumstances justifying extraordinary relief and thus provided trial court grounds to entertain former husband's motion for relief from judgment more than one year after entry of decree of dissolution under rule recognizing "any reason justifying relief from the operation of the judgment."

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

Orloff v. Orloff
No. 2D09-3059
(Florida District Court of Appeal, Second District, March 30, 2011)

Husband's corporation, which remained a corporation solely owned by him both before and after marriage, was a non-marital asset for purposes of equitable distribution, although it was reincorporated in Florida during the marriage; husband used solely nonmarital assets to form the corporation.

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

Spousal Support

In re Marriage of Kochan
No. B215355, 11 Cal. Daily Op. Serv. 3066, 2011 Daily Journal D.A.R. 3613
(California Court of Appeal, Second District, Division 8, March 9, 2011)

Trial court abused its discretion in basing spousal support obligation on obligor's hypothetical income if he retired from California State University ( CSU) and then returned to work half-time at CSU while simultaneously collecting his pension under the California Public Employees' Retirement System (CalPERS) Faculty Early Retirement Program (FERP), even if obligor was guaranteed FERP employment pursuant to a collective bargaining agreement, where obligor chose to continue his full-time employment without retiring, absent evidence that obligor planned on retiring but then altered those plans to prevent an anticipated increase in income.

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

Hutchings v. Hutchings
No. 105,981, 2011 OK 17
(Oklahoma Supreme Court, March 8, 2011)

Order awarding wife $250 per month in alimony for a period of three years was insufficient and an abuse of discretion, in divorce proceeding, and thus recalculation of alimony award to $1,500 per month for a period of three years was warranted; the parties had been married for over 22 years when they separated, husband's income was more than three times that of wife, wife's current income potential was insufficient to meet her meager living expenses, wife had no opportunity for advancement without additional education, wife's education goals were reasonable, and wife was unable to meet her monthly needs while living in a one-bedroom apartment while husband was living a lavish lifestyle.

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

Visitation - Grandparent

Craig v. Craig
No. 106,537
(Oklahoma Supreme Court, April 12, 2011)

Paternal grandparents, who sought visitation with grandchild solely based upon assertion that father, who was child's non custodial parent, wanted them to exercise his visitation rights with child, were precluded from obtaining court ordered visitation with grandchild, which mother opposed, without application of the grandparent visitation statute; grandparents' rights to court compelled visitation were statutory; overruling, Sicking v. Sicking, 996 P.2d 471 and Hartness v. Hartness, 994 P.2d 1196.

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

Law Review Articles of Interest in Family Law

Volume 41, Number 1 (Fall 2010), California Western International Law Journal: Symposium on DOMA and Issues Concerning Federalism and Interstate Recognition of Same-Sex Relationships

Vol. 25 American Journal of Family Law No. 1 (Spring 2011)

Deseriee A. Kennedy, Children, Parents & the State: The Construction of a New Family Ideology, 26 Berkeley Journal of Gender, Law & Justice 78 (Winter 2011)

Emmalee M. Miller, Are You My Mother? Missouri Denies Custodial Rights to Same-Sex Parent, 75 Missouri Law Review 1377 (Fall 2010)

Comment, Legislating After Janice M.: The Constitutionality of Recognizing De Facto Parenthood in Maryland, 70 Maryland Law Review 525 (2011)

Meredith Larson, Don't Know Much about Biology: Courts and the Rights of Non-biological Parents in Same-sex Partnerships, 11 Georgetown Journal of Gender and the Law 869 (2010)

Melissa A. Kucinski, The Pitfalls and Possibilities of Using Technology in Mediating Cross Border Child Custody Cases, 2010 Journal of Dispute Resolution 297 (2010)

Sonja Seehusen, Same Sex Marriage: Does the Constitution or State Constitution Support Same sex Marriages?, 14 University of the District of Columbia Law Review 133 (Spring 2011)

Courtney G. Joslin, Searching for Harm: Same-Sex Marriage and the Well-Being of Children, 46 Harvard Civil Rights-Civil Liberties Law Review (2011)

Audrey C. Stirnitzke, Transsexuality, Marriage, and the Myth of True Sex, 53 Arizona Law Review 285 (Spring 2011)

Elizabeth F. Emens, Regulatory Fictions: on Marriage and Countermarriage, 99 California Law Review 235 (Feb. 2011)

Anthony E. Varona, Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage, 19 Columbia Journal of Gender and Law 805 (2010)

Mark Strasser, Public Policy, Same-Sex Marriage, and Exemptions for Matters of Conscience, 12 Florida Coastal Law Review 135 (Fall 2010)

Erez Aloni, Incrementalism, Civil Unions, and the Possibility of Predicting Legal Recognition of Same-sex Marriage, 18 Duke Journal of Gender Law & Policy 105 (Fall 2010)

 

  
    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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