(Editor’s Note: Some cases may be from March, as they were not posted to Westlaw until after I prepared the March update on April 10, 2021.)
AGREEMENTS - PROPERTY SETTLEMENT - “EARNED INCOME”
A lesson in the importance of defining your terms in a marital settlement agreement. The court held that the distributions the ex‑husband received due to his purchase of a partnership interest in company that employed him as manager were not “earned income” from employment as defined in parties' separation agreement that based ex‑husband's payments of unallocated alimony and child support to ex‑wife on percentages of earned income. The partnership members' agreement provided that income the ex‑husband received by virtue of his stock of ownership was solely the result of his purchased equity interest in company, and the separation agreement provided that all income earned by the ex‑husband due to “investment of assets” distributed to him in dissolution proceeding would not be considered earned income. No doubt the partnership agreement executed by the husband was drafted with his support obligations in mind.
ATTORNEYS - DISQUALIFICATION
The parties, Lisa and Michael, never married, but shared a long‑term, romantic relationship from approximately June 2000 to March 2013. During this time, the parties purchased a home, cohabitated, and raised their daughter together. Michael did not want to marry Lisa, but promised to financially support her, who quit her job to raise their daughter. In 2005, Lisa sought legal advice from attorney Vincent Celli about her right to financial support from Michael if the parties ever ended their relationship without marrying. Lisa expressed concerns about Michael threatening to leave her, resisting marriage, and potentially misrepresenting his income and assets. Lisa also disclosed to Mr. Celli the parties' financial arrangements, lifestyles, assets, and income. Specifically, Lisa disclosed the parties' acquisition of their home and handling of finances. Given this information, Mr. Celli explained to Lisa the concept of palimony and her right to support, estimated Lisa’s potential relief, and advised Lisa not to marry Michael; if the parties married and divorced, a court would exclude the pre‑marriage years in calculating Lisa’s relief. Fast forward to 2014. Lisa filed a complaint for palimony against Michael. The parties ultimately entered into a settlement agreement. The court entered a final judgment incorporating the settlement agreement on September 4, 2018. Thereafter, Michael retained the services of Vincent Celli, who filed a motion for Michael to vacate the final judgement, re‑open discovery, and set aside the settlement agreement. Michael alleged he discovered, after entry of the final judgment, that Lisa intentionally misrepresented and concealed her income and assets during settlement negotiations. On October 19, 2018, in addition to moving to dismiss Michael’s motion and obtain attorney's fees, Lisa moved to disqualify the Celli firm from representing Michael. (Really, what was Mr. Celli thinking?) The court issued two orders on November 22, 2019: the first one, disqualifying the Celli firm, sealing the pleadings, and barring Michael from sharing the pleadings or any supporting documents with new counsel, and the second one, dismissing Michael’s motion to vacate because of the disqualifying conflict. Held: Because the motion court properly disqualified Mr. Celli and his firm, the court also properly dismissed without prejudice Michael’s motion to vacate filed by the Celli firm. The court correctly concluded it could not address this motion on the merits with disqualified counsel. BUT, “we reverse the order as it relates to sealing the pleadings and barring their further use and direct the motion court to unseal the pleadings.”
CHILD CUSTODY - INDIAN CHILD WELFARE ACT - CONSTITUTIONALITY
Foster and adoptive parents, and the states of Texas, Louisiana, and Indiana brought action against the United States, the United States Department of the Interior and its Secretary, the Bureau of Indian Affairs (BIA), and others, for declaration that Indian Child Welfare Act (ICWA) was unconstitutional. The Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians intervened as defendants. The United States District Court for the Northern District of Texas, partially granted the plaintiffs' motions for summary judgment. The defendants appealed. The Court of Appeals, 937 F.3d 406, affirmed. Rehearing en banc was granted. Held: Congress has the authority under the Indian Commerce Clause to provide minimum protections for Indian children and families in child custody proceedings under ICWA; ICWA provisions regarding placement preferences and placement and termination standards validly preempted contrary state law to extent they applied to state courts, as opposed to state agencies; ICWA’s "Indian child" classification did not violate equal protection; and administrative rules implementing ICWA did not violate Administrative Procedure Act.
Since the opinion is 325 pages, for commentary, see
CHILD CUSTODY - MODIFICATION - AUTOMATIC MODIFICATION
Parenting plan that allowed the father to automatically graduate to unsupervised timesharing upon satisfaction of predetermined conditions constituted an impermissible prospective‑based plan that did not contemplate any court intervention or decision‑making for father to graduate to unsupervised timesharing. The parenting plan prospectively allowed the father to automatically graduate to unsupervised timesharing upon regular exercise of supervising timesharing for at least three months and filing proof with court of completion of co‑parenting class, with no court participation required.
CHILD CUSTODY - PROCEDURE - PRIVILEGE
Prior waivers of privilege in a custody proceeding by the minor child's psychotherapist did not preclude the assertion of the psychotherapist‑patient privilege as to matters not previously disclosed in a later hearing. The psychotherapist first raised the issue of privilege in a motion for protective order filed prior to a continued hearing on the father's petition to modify judgment, and the previous disclosures occurred without objection at a deposition and during emergency hearing prior to her assertion of privilege.
CHILD SUPPORT - ADD-ONS - MEDICAL CARE - RESPITE CARE
“Respite care” is care provided to a disabled child to allow a parent some time to him/herself without the demands of caregiving. In this case, the court determined that respite care was a necessary expense for an adult disabled child.
CHID SUPPORT - INCOME - SOCIAL SECURITY BENEFITS
Remember: a child’s receipt of social security disability benefits on the disabled parent’s account can only be credited to that parent’s child support obligation. Thus, social security benefits paid to the children due to the father's disability could not be used to offset the child support obligation of the mother, the nondisabled obligor.
CHILD SUPPORT - INCOME - FREE RENT
Mother's rent‑free living arrangement with her parents should have been included in calculation of her weekly gross income for child support purposes in dissolution of marriage decree; mother's living arrangement reduced her living expenses and freed up more money to support child, mother was gainfully employed as high school teacher, and mother did not contribute to utility, taxes, or insurance expenses while residing with her parents.
DIVORCE - GROUNDS - ADULTERY
Matter of Blaisdell, No. 2020‑0211 (New Hampshire Supreme Court, April 1, 2021)
About time. The court overrules In re Matter of Blanchflower, a 2003 case that limited the definition of adultery to sexual intercourse between persons of the opposite sex. “Adultery” is now defined to include sexual intercourse between a married person and someone other than that person’s spouse, regardless of either person’s sex or gender.
(Ed. note: I specifically called out the nonsense of Branchflower years ago. See Laura W. Morgan, What Constitutes Adultery?, 16 No. 1 Divorce Litig. 12 (Jan. 2004). )
NAME CHANGE - JURISDICTION
Trial court did not have statutory authority to order change of child's legal name in dissolution of marriage decree; statute governing name change in dissolution of marriage actions authorizes only a name change for a woman who sought to restoration of her maiden or previous married name, and statute authorizing name change of child required mother to file petition stating in detail reason change was requested, father to be served copy of petition, and child to be given public notice of petition.
NAME CHANGE - BEST INTERESTS STANDARD
The name change statute provides that the court “may make an order changing the name or dismissing the application, as to the court may seem right and proper.” The statute does not require consideration of the “best interests of the child,” and the court will not impose such a requirement.
PARENTAGE - GESTATIONAL MOTHER
A fascinating case out of Michigan. The facts are long and involved, so please bear with me. This case arises out of the dissolution of the parties' relationship and subsequent custody dispute over their two minor children, twin girls. LeFever and Matthews, both women, began a romantic relationship in 2011. At some point during the course of the relationship, they decided to have children together using LeFever’s eggs, fertilized by a sperm donor, and implanted in Matthews’s womb. The in vitro fertilization resulted in Matthews’s pregnancy with the twins. Although the parties intended for Matthews to give birth in Ohio, where both women could be listed on the birth certificates, Matthews gave birth two months early in Michigan. At that time, the Michigan Department of Health and Human Services' Division of Vital Records permitted one father and one mother to be listed on a birth certificate. As a result of this practice, Matthews was listed as the twins' mother, and although LeFever was not listed on the birth certificates, the twins were given LeFever’s last name. The parties continued co‑parenting the twins and shared custody until Matthews experienced serious health concerns in 2016. At that time, LeFever became the twins' primary caretaker until 2018 when a custody dispute arose. In November 2018, LeFever filed a complaint for custody of the twins as well as a motion to establish interim custody and parenting time. The matter was heard by a referee who determined parentage should first be established. The case was dismissed and resubmitted by LeFever as a complaint to establish parentage.
The trial court held a hearing to establish LeFever’s standing as a parent. LeFever argued that she was the twins’ “natural mother” by virtue of her genetic connection to the children, and that Matthews, the “gestational surrogate,” was merely “the woman who carried the eggs of LeFever and the sperm of an anonymous donor.” The trial court found that LeFever was the twins' "natural and legal mother" and ordered that the birth certificates be amended to add LeFever. The trial court also awarded joint legal custody on an interim basis and set forth a parenting‑time schedule. The trial court further concluded that LeFever, by way of her genetic connection to the twins and Matthews’s lack of genetic connection, created a presumption that the best interests of the twins were served by awarding LeFever custody, while the Surrogate Parenting Act granted Matthews standing as a third party.
After a six‑day trial, the court concluded that Matthews failed to carry her burden to establish parentage. LeFever was awarded full legal and physical custody and the trial court ordered that Matthews’s name be removed from the twins’ birth certificates. However, the trial court granted parenting time to Matthews defendant pursuant to her standing as a third party. Matthews appealed, and challenged the trial court's finding that she is not a natural parent. She argued that the trial court misinterpreted the Child Custody Act when it found that she is not a “natural parent,” that it misapplied the Surrogate Parenting Act to the facts of this case, and that the trial court's order implicated her federal constitutional rights to substantive due process and equal protection under the law.
Held: “However, we conclude that the trial court improperly interpreted the term "parent" as defined by MCL 722.22(i) in the Child Custody Act ("CCA"), MCL 722.21 et seq., as requiring a genetic connection, and misapplied the Surrogate Parenting Act ("SPA"), MCL 722.851 et seq. Accordingly, we vacate the trial court's order and remand this case for further proceedings.”
PROPERTY DIVISION - MILITARY PENSION
The former wife filed an emergency motion to enforce the retirement pay provision of the parties’ marital settlement agreement incorporated into divorce decree, after the former husband retired from military service and began receiving service‑related disability benefits after waiving his military retirement pay. The trial court granted the wife's motion for enforcement, holding that the wife was entitled to the amount of military retirement benefits agreed to in MSA, regardless what name was attributed to that compensation. The husband appealed. Held: The rule announced in Howell v. Howell, 137 S.Ct. 1400, prohibiting a district court from ordering a veteran who elects to receive combat related special compensation (CRSC) to reimburse the veteran's spouse for waived retirement pay applied retroactively to former wife's action to enforce terms of MSA.
(Ed. note: No. The trial court did not make the original order; the parties agreed to the amount the wife would receive. Justice Breyer made it clear that parties can avoid the harsh results articulated in Howell by entering into an agreement that considers the ramifications of a retirement waiver by: (1) an agreement to “take account of the contingency that some military retirement pay might be waived,” and (2) an agreement to “take account of reductions in value when it calculates or recalculates the need for spousal support.” Howell, 137 S. Ct. at 1406. That’s exactly what the parties did here. Compare the recently decided Matter of Marriage of Kaufman, No. 53366‑9‑II (Washington Court of Appeals, Division 2, April 27, 2021) which held that even if errors offended public policy by violating prohibition against dividing military disability benefits, any public policy grounds relied on were not applicable, given that property settlement agreement was fully incorporated into final, unappealed dissolution decree.)
NEWS ITEMS OF INTEREST
NEW BOOK OF INTEREST
I buy books and read them. Yes, I know it’s out of style, but I do. In the last year and a half, I’ve read Jill Elaine Hasday’s Intimate Lies and the Law (Oxford University Press, 2019); Deborah L. Rhode’s Adultery: Infidelity and the Law (Harvard University Press, 2016); and Cynthia Lee Starnes’s The Marriage Buyout: The Troubled Trajectory of U.S. Alimony Law (New York University Press, 2014). They were all fascinating, and I’m glad I read them. I also just bought the recently published Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020) bu William N. Eskridge Jr. And Christopher R. Riano. The last one, clocking in at 743 page, is by far the most daunting, and I confess I don’t know if I will get through it. And while I learned a lot from these books, I don’t know if I will ever actually use and cite them in a brief.
A recent book I bought and read was not only interesting, and a good read, it is a book I know I will use and reach for with every new project I have. Sanford N. Katz, former Chair of the ABA Family Law Section and former editor-in-chief of the Family Law Quarterly, just came out with the third edition of Family Law in America (Oxford University Press, 2021). This wonderful, compact volume covers (1) marriage-like relationships and informal marriage, including premarital agreements; (2) marriage, including all the recent developments in same-sex marriage; (3) divorce, including property distribution, alimony, child support, and child custody; (4) child protection; and (5) adoption. Every topic is heavily footnoted with cases and statutes, but what I liked most about the book was that I could find in the text a nice statement of the law that we all know, swear we know, but then can’t find the case that says that very thing. Think of it like a very manageable, pithy version of Homer Clark’s The Law of Domestic Relations in the United States, but totally up to date and readable. By the way, the third edition of Clark’s hornbook will be published May 24, 2021. I’ll have that on my shelf too, but I’ll reach for Katz’s Family Law in America first.