July 11, 2023 Vol. 27, No. 4

April 2023 Case Update

Editor: Laura Morgan

Case Update is a Section of Family Law Member Benefit publication. Not a member of the ABA Section of Family Law? Join now to view premium content.

(Editor's Note: Some cases may be from March 2023, as they were not posted to Westlaw until after I prepared the March 2023 update on April 17, 2023.)

AGREEMENTS - PREMARITAL AGREEMENT - VALIDITY - SECOND LOOK

Rudnick v. Rudnick, 102 Mass. App. Ct. 467 (Massachusetts Court of Appeal, March 30, 2023):

The parties’ premarital agreement was fair and reasonable when it was signed, but unconscionable and therefore unenforceable at the time of divorce. Why? Because the Husband was too greedy. The agreement contained, among other things, provisions for the treatment of individual property, ownership of property in which the parties would reside during the marriage, and provided that there would be no claim for alimony, separate maintenance or support, or a division or assignment of income or assets. During the marriage, the husband twice breached the agreement by failing to take title two different properties as tenants in common with the wife. The Husband also either acquiesced to, or actually engineered, the purchase of one property by a trust in order to “circumvent” the agreement. The Husband’s taking title another property in his individual name was a “naked breach” of the agreement. “It is apparent, upon reading the agreement as a whole, that the parties intended to live together in a ‘jointly acquired marital residence’ in which the wife would have a property interest. As a result of the husband's actions during the marriage, however, the wife was left with no marital property interests, and no right to seek alimony.”

AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - RULE AGAINST PERPETUITIES

Bonilla v. Najera, 102 Mass. App. Ct. 435 (Massachusetts Appeals Court, March 22, 2023):

The Rule Against Perpetuities has been getting a workout lately. In this case, the parties' separation agreement, which did not merge into the divorce decree, provided in Article V, "The Parties acknowledge that there is one personal property located at 40 Manning Street, Roslindale, MA 02131. Both will be responsible for the expenses and maintenance of this property at a rate of 50/50. The house can only be sold or transferred by agreement of both parties." The agreement also contained a provision, Article VIII, paragraph B, that binds and benefits the parties' respective estates: "This Agreement shall be binding upon the estate of both parties and such estates shall be liable for any obligations set forth herein." Held: The restraint on alienation imposed by the separation agreement is unreasonable and unenforceable because it extends in perpetuity. Therefore, the husband is therefore entitled to pursue his petition for partition.

CHILD CUSTODY - FIRST AMENDMENT - PRIOR RESTRAINT

Walsh v. Russell, 214 A.D.3d 890, 2023 N.Y. Slip Op. 01522 (New York Supreme Court, Appellate Division, Second Department, March 22, 2023):

Mother commenced a proceeding seeking sole legal and physical custody of child, and she subsequently commenced a family offense proceeding against father. The Family Court prohibited father from posting, uploading blogs, and displaying the likeness of child and disparaging the child's relatives in any and all public forums and/or social media platforms and directed father to erase, deactivate, and delete any existing blogs and likenesses. Father appealed. Held: (1) trial court's prior restraint order directing father to erase, deactivate, and delete any existing blogs and likenesses was not tailored, for First Amendment purposes, as precisely as possible to needs of case, but (2) trial court's prior restraint order restricting father's ability to post blogs, display likeness of child, and disparage child's relatives was narrowly tailored to needs of case.

CHILD CUSTODY - KIDNAPPING - UCCJEA REGISTRATION

People v. Coulthard, No. H049755 (California Court of Appeal, Sixth District, March 30, 2023):

A jury convicted defendant David Coulthard of abducting his eight‑year‑old daughter after he failed to return the child to her mother in the United Kingdom. On appeal, Coulthard claimed, inter alia, that for him to be convicted under Cal. Penal Code § 278, the people must show that there was a valid custody order in place. He contends that because the UK High Court's return order “has not been registered it is unenforceable in this state” and “cannot be sufficient to sustain a conviction[.]” The Attorney General argued that any lack of registration pursuant to the UCCJEA “does not invalidate an international custody order.” The Attorney General further asserted that because the “custody order issued in the United Kingdom awarded primary custody to Marie and only visitation to” Coulthard, “[t]he evidence established that Marie Coulthard was M.C.’s lawful custodian and [Coulthard] had no right of custody.” Held: “We are not persuaded that Coulthard's conviction for a violation of section 278 is unsupported by substantial evidence or otherwise legally insufficient because of a failure to register in California any UK court order. ... In any event, the lack of registration in California of either the December 2017 custody order or the return order under the UCCJEA is immaterial to the question of whether the district attorney satisfied the elements of section 278 at Coulthard's trial. As noted above, section 277, subdivision (b), makes no mention of the UCCJEA or any registration requirement under that act when defining a “ ‘[c]ourt order’ or ‘custody order’ ” for the purposes of determining who is a “ ‘[l]awful custodian’ ”(id., subd. (d)) or a person “not having a right to custody” under section 278. Moreover, the UCCJEA does not contain a criminal sanction. Instead, the UCCJEA governs a separate civil legal process for child custody determinations.”

CHILD SUPPORT - INCOME - EARNING CAPACITY

Banakar v. Krause, No. 01‑21‑00609‑CV (Texas Court of Appeals, Houston (1st Dist.), March 28, 2023):

The evidence showed that the father’s income for the year before the trial comprised gross earnings from his job with ERC ($9,873.00/mo.); Social Security Retirement benefits ($1,874.28/mo.); Boeing retirement benefits ($2,491.00/mo.); dividends from investment account ($83.33/mo.). However, the father asserted that the trial court should not have included his ERC earnings, because he lost his contract job six weeks before trial. The appellate court held that the father testified at trial that he was one of only “eight people in the world” with expertise in aerospace glass applications, he had worked closely with two NASA employees involved in aerospace glass projects, and he was actively looking for employment. “Viewed in the light most favorable to the trial court's ruling, this testimony supports a reasonable inference that Banakar was likely to obtain new contract work. ...Thus, we conclude that the trial court did not err in considering Banakar's ERC earnings in determining his gross monthly resources.”

CHOICE OF LAW - COMITY

In re Estate of Ahmad, No. 778 (Maryland Appellate Court, March 23, 2023):

This is not a divorce case, but it has an extensive discussion of “domicile,” and its discussion concerning application of foreign law applies to divorce judgments as well. In this appeal, M. Abraham Ahmad challenged the orders of the Orphans’ Court for Montgomery County granting summary judgment against his Petition to Caveat his father’s (Mehdi) will and denying his Petition for the Allowance of a Claim. Abraham’s central argument was that at the time of his death, Mehdi was not domiciled in Maryland but was instead a domiciliary of Iran, making Mehdi’s estate subject to the primogeniture inheritance provisions of the Iranian Civil Code. Abraham asserts that under Iranian laws, he inherited an indefeasible fixed portion of Mehdi’s estate that automatically vested at his birth and applies to all assets that can be traced to assets that Mehdi owned when Abraham was born in Iran. Held: First, Mehdi established residence in Maryland. But more importantly, “Abraham asks that we set aside a will drafted and executed under Maryland law, by a decedent domiciled in Maryland, bequeathing property located in Maryland, to beneficiaries who are also located in Maryland, solely based on the fact that Abraham was born in Iran (but no longer lives there either). We are not persuaded that the doctrine of comity is applicable under these circumstances.” Finally, “the Iranian civil law tradition of forced primogeniture heirship conflicts with Maryland’s adoption of statutory provisions allowing any competent person aged 18 or older to make a will to dispose of their estate as they see fit. Moreover, the Islamic primogeniture inheritance laws that Abraham seeks to enforce include provisions that discriminate based on both religion and sex. To disregard Mehdi’s choice as expressed in his will in favor of applying Iranian primogeniture law to Mehdi’s estate would be contrary to Maryland public policy. The orphans’ court, therefore, did not err in declining to apply the Iranian Civil Code.”

DISCOVERY - SPOUSAL PRIVILEGE

Ex Parte Suhy, Nos. CL‑2023‑0017, CL‑2023‑0018 (Alabama Court of Civil Appeals, April 7, 2023):

Mother moved to suspend Father’s visitation with children. As part of discovery, Mother moved to compel discovery of information on father's electronic devices. Father objected, arguing that the discovery request was an impermissible fishing expedition and would reveal confidential and privileged conversations with his new wife. Mother asserted that inspection of Father's electronic devices was necessary to discover whether he was exposing the children to “potential perverse fascinations and pornographic Web sites.” Trial court compelled the discovery in part, and Father appealed. Held: Trial court did not clearly exceed its discretion when it excluded from corresponding protective order any reference to items purportedly protected by spousal privilege. Father’s claim did it comply with rule that any claim regarding privileged information had to be supported by a description of the nature of the documents or communications.

DIVORCE - STANDING - GUARDIAN

Flory v. Flory, 2023 WY 29, 527 P.3d 250 (Wyoming Supreme Court, April 10, 2023):

To obtain a divorce, the plaintiff must establish that irreconcilable differences exist in the marital relationship. Whether the differences between the parties truly are irreconcilable and of such a nature that the marital relationship must be terminated is uniquely personal and volitional. The structure of Wyoming's statutory grounds for divorce does not support a conclusion that the legislature intended to include filing for a divorce as part of a guardian's or conservator's powers.

DIVORCE - PROCEDURE - MOTION TO REOPEN - TIME LIMIT

Mason v. Mason, No. 1D22‑1871 (Florida District Court of Appeal, First District, April 12, 2023):

Eleven years after entry of final judgment of dissolution adopting marital settlement agreement (MSA), ex‑wife filed motion for relief from the MSA, alleging that ex‑husband committed fraud in his family law financial affidavit in the dissolution proceedings. The trial court denied the motion on the basis that the limitations period had run. Ex‑wife appealed. Held: Ex‑wife, who sufficiently alleged ex‑husband had committed fraud, was allowed by statute to bring motion for relief from 11‑year‑old MSA. The plain text of procedural rule, Fla. Fam. L.R.P. 12.540(b), which provided that there was “no time limit” for motions contesting a judgment based on fraudulent financial affidavits in marital cases, allowed ex‑wife to bring motion for relief from 11‑year‑old marital settlement agreement adopted by family court in final judgment for dissolution. The statute was clear and unambiguous, and ex‑wife had sufficiently alleged that ex‑husband fraudulently and intentionally failed to disclose or assign value to various marital assets in her motion for relief from MSA, supported by an expert report detailing the omissions and discrepancies.

PARENTAGE - STANDING

Scott v. Benson, No. 20210922 (Utah Supreme Court, April 20, 2023):

Oh, what a tangled web we weave. “Utah law permits parents to establish the paternity of their child by signing and filing a voluntary declaration of paternity (VDP) with the Office of Vital Records and Statistics. Sarah Benson and Taylor Scott, an unmarried couple, signed a VDP in which they both represented that Scott was the father of Benson's child (Child). Problem was, Scott was not Child's biological father, and both Scott and Benson knew that when they signed the VDP. After they submitted the VDP to the state, Benson continued to allow Scott to act as a father to Child, much as she had since Child's birth. But she eventually cut off contact between Scott and Child. Scott filed a complaint, asserting he was Child's father and asking the court for joint legal and physical custody. Benson challenged the VDP and asked the court to declare that Scott was not Child's father. The district court applied the Utah Uniform Parentage Act and concluded that the VDP should be set aside because of the parties’ fraud and a mutual mistake. But it also concluded that, under the Act, Scott should be adjudicated to be Child's father. Benson appealed, and the court of appeals affirmed. Before us, Benson argues that the court of appeals misinterpreted the Act because once the district court concluded that the VDP was the product of fraud and mistake, the Act did not provide a path for Scott to continue to assert that he should be deemed to be Child's father. We reject Benson's reading of the Act and affirm.”

PROPERTY DIVISION - CLAIM PRECLUSION - DOMESTIC ABUSE

Rivera v. Hillard, 306 Cal. Rptr.3d 493 (California Court of Appeal, First District, Division 4, March 29, 2023):

The provisions of the parties’ marital settlement agreement incorporated into a Virginia divorce decree, which released all claims that the husband and the wife may have had against each other with respect to property distribution, did not release the wife from the husband's claim for restitution under Domestic Violence Prevention Act (DVPA) for out‑of‑pocket expenses incurred as result of the wife's abuse in removing cash and personal property from the marital residence that the husband had been awarded exclusive use and possession in divorce, after the wife obtained a temporary restraining order under false pretense that excluded the husband from the residence, where the release was limited to claims concerning property distribution “up to the date of the execution of this agreement” and thus did not apply to claim under DVPA that accrued six weeks later.

PROPERTY DIVISION - CLASSIFICATION - PERSONAL INJURY SETTLEMENT

Thornhill v. Thornhill, No. 14‑21‑00324‑CV (Texas Court of Appeals, Houston (14th Dist.)., April 11, 2023):

Suzanne Marie Thornhill appeals the trial court's final decree of divorce dissolving her marriage to William Scott Thornhill. In two issues, Suzanne contends that the trial court erred in (1) characterizing personal injury settlement proceeds as Scott's separate property, and (2) awarding Suzanne only two years of spousal support in light of her alleged permanent disability. Because the trial court erred in characterizing the settlement proceeds as separate property, we affirm the final decree in part and reverse and remand in part. Here, the settlement agreement provided that the Thornhills were to satisfy certain obligations from out of the total proceeds, and it earmarked $50,000 in cash to Suzanne individually and $1,150,000 in cash plus the monthly payments “for the benefit” of Scott. The settlement agreement did not, however, expressly allocate any particular amounts as being for certain types of damages. The “for the benefit” language indicates certain proceeds were to be used for Scott's benefit, but it does not indicate that those proceeds were intended as separate property. Indeed, the proceeds would be for Scott's benefit whether they were compensation for pain and suffering, lost wages, medical expenses, or something else. Both Scott and Suzanne testified that the money received was used during the marriage to benefit them both. The “for the benefit” language was more likely a reflection that Scott himself was not signing the settlement agreement. Because a proper construction of the settlement agreement does not establish that the monthly annuity payments were Scott's separate property and Scott did not present any other evidence demonstrating that the monthly annuity payments are his separate property, Scott failed to meet his burden of proving by clear and convincing evidence that the monthly annuity payments were his separate property.

PROPERTY DIVISION - FACTORS - CHILD ABDUCTION

S.C. v. R.N., 2023 N.Y. Slip. Op. 23092 (New York Supreme Court, New York County, April 5, 2023):

Beginning with the proposition that when the Plaintiff Mother abducted the child to India, “Plaintiff's [mother] extreme course of action may have permanently limited and seriously harmed the child's life and her future prospects in all regards”, the court concluded by awarding all the marital property to the Husband. “Considering the various relevant factors, and especially in consideration of Plaintiff's outrageous and egregious conduct in absconding with the child, a distributive award of marital assets 100% to Defendant and 0% to Plaintiff is equitable and just.”

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PROPERTY DIVISION - STATUTE OF LIMITATIONS

Read v. Read, No. COA22‑782 (North Carolina Court of Appeals, April 18, 2023):

The parties married on June 16, 1990, and they separated in September 2001. Although the parties separated in 2001, neither party filed for absolute divorce after the statutory one‑year waiting period. However, they regularly engaged in child custody and child support litigation related to medical expenses for their three children. On 21 November 2018, seventeen years after the parties separated, the wife filed a complaint seeking absolute divorce and equitable distribution of the marital estate, which only consisted of marital debt. The husband argued that the wife was time barred from bringing a claim for equitable distribution. Held: Nah, time limits in the statutory scheme only apply once the action is filed. “During this seventeen‑year period, in which the parties lived separate and apart but had not filed for absolute divorce, neither party was released from the bonds of matrimony, nor had they executed a written agreement for equitable distribution. Accordingly, on the facts of this case, neither party should have a reasonable expectation that the distribution of their marital debt was settled. Further, by their conduct in failing to make a claim for absolute divorce or equitable distribution, both parties consented to the delay. Therefore, the claim is not time barred, and does not violate the legislative intent of the Equitable Distribution Statutes.”

SPOUSAL SUPPORT - TERMINATION vs. MODIFICATION - COHABITATION

Gillenwater v. Redmond, No. 2021‑CA‑01378‑COA (Mississippi Court of Appeals, April 4, 2023):

Husband moved to terminate Wife’s periodic alimony on the grounds that she was cohabiting. The trial court modified, but did not terminate the obligation, and Husband appealed. Held: The trial court did not abuse its discretion by modifying, rather than terminating, former husband's periodic alimony obligation to former wife, although splitting of household expenses by former wife and her cohabitor provided some mutual support to former wife, and cohabitor's work around their house provided some services of monetary value. The benefit to the Wife by splitting the household expenses and the in‑kind services received reduced, but did not eliminate, her need for alimony. Further, there was a great disparity between the wage‑earning capacity of the former wife and the former husband, the former wife's living expenses would be higher if she was not cohabitating, and the former wife would struggle to support herself without alimony payments from the former husband.

SPOUSAL SUPPORT - TERMINATION - “SUPPORTIVE RELATIONSHIP”

Proveaux v. Proveaux, No. 1D21‑3410 (Florida District Court of Appeal, First District, March 29, 2023):

Fla. Stat. § 61.14(1)(b)(1) provides, “The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists.” Section 61.14(1)(b)(2) goes on to list factors of a supportive relationship. Husband moved to terminate alimony claiming Wife was in a supportive relationship with her boyfriend. The trial court denied the petition, and Husband appealed. Held: Wife and her long‑term boyfriend were in supportive relationship, even if Wife and her boyfriend’s relationship did not meet all the factors listed in alimony statute. Wife and her boyfriend had been in a committed, serious relationship for at least 14 years, cohabited more than 10 years, Wife and her boyfriend purchased property as joint tenants with right of survivorship, and Wife and her boyfriend shared household duties and pooled assets so as to share household and grocery expenses.

TORTS - TORTIOUS INTERFERENCE WITH PARENTAL RIGHTS

Qiu v. Huang, 77 Va. App. 304, 885 S.E.2d 503 (Virginia Court of Appeals, April 18, 2023):

Qiu (the father) and Sharon Yip (the mother) were married in 1995, and their daughter, M.Q., was born in 2005. The parties separated when M.Q. was eight years old. A few months later, the mother began divorce and custody proceedings and also sought pendente lite relief. Two years later, in 2016, while the divorce and custody proceedings were ongoing, the father filed the pro se tort complaint that is the subject of this appeal. In that complaint, he alleged that two of the mother's acquaintances and one of her attorneys were tortiously involved in the custody dispute: Chaoyu Huang, the mother's friend; Anna Ouspenskaya, M.Q.’s piano teacher and someone with whom the mother had a “deep friendship and intimate relationship”; and Arlene Starace, the mother's attorney during the first part of the divorce and custody proceedings. The complaint also named Arnold Small, Ph.D., a therapist who treated both M.Q. and the father. The father alleged in his complaint that Huang, Ouspenskaya, and Starace tortiously interfered with the father's parental and custodial rights intentionally and without his consent. With regard to Huang and Ouspenskaya, the complaint alleged that they encouraged the mother to leave the father, helping her formulate and implement a departure plan that included taking M.Q. with her. The father further alleged that Ouspenskaya encouraged M.Q. to view her as a “substitute” parental figure. With regard to Starace, the complaint alleged that she, too, intentionally interfered in the father's parental and custodial relationship with M.Q. in various ways. Additional facts pleaded made clear that none of the three women physically took M.Q. from the father or the mother. Instead, they merely encouraged and aided the mother in leaving the father and in obtaining a divorce and award of shared custody. The complaint also averred that the women “played a role in physically, mentally and emotionally alienating M.Q.” from her father without his consent, “severely damaging the [parent‑child] relationship.” The trial court dismissed all counts, and the father appealed. Held: The holding in Padula‑Wilson is sufficiently analogous to this case to control the outcome here. Preliminarily, to the extent the father's allegations constitute a claim that third parties Huang and Ouspenskaya attempted to convince M.Q. that her father abused her in order to deprive him of her love and companionship, those allegations, standing alone, do not implicate the tort of interference with parental rights but only of alienation of affection, which is not recognized by Virginia law. Further, to the extent the father contends that the defendants’ alienation efforts were for the ultimate purpose of interfering with his parental and custodial rights, these allegations fail to state a claim of tortious interference with parental rights as that action has been recognized in Virginia.

WITNESSES - EXPERT WITNESS - EXCLUSION - IMPUTATION OF INCOME

Holland v. Holland, No. 5D23‑36 (Florida District Court of Appeal, Fifth District, April 6, 2023):

Former Wife's treating physician, Dr. Tran, expressed in his deposition the opinion that she had certain medical conditions that would render her disabled from a full‑time practice as an optometrist. The court excluded Dr. Tran’s proposed testimony on the basis of Daubert; the trial court concluded that Tran's disability opinion was so lacking in several of the Daubert criteria that it would be excluded. Error: “Under the circumstances present in this case, the potential problems with the bases for Tran's disability opinion, such as considering the wrong patient's test results and failing to consider other available information, would have been proper fodder for an intense cross‑examination of Dr. Tran, but they do not demonstrate a basis for disqualification under Daubert in this bench trial. We are compelled to agree with Former Wife that the trial court abused its discretion in excluding Tran's disability opinion testimony, and we reverse for further proceedings.” Concomitantly, the trial court’s imputation of $106,525 in annual earnings to Former Wife, which assumed full-time employment, is error. “Undisputed evidence showed she had earned no more than $55,000 while working a reduced schedule each year during the marriage. By completely excluding Dr. Tran's disability testimony, Former Wife was unable to fully address that issue. Reversal is required. We need not address the additional bases for reversing imputation of income urged by Former Wife.”