September 15, 2021 Case Update

August 2021 Case Update

Vol. 25, No. 8

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 July, as they were not posted to Westlaw until after I prepared the July update on August 10, 2021.)

AGREEMENTS - PREMARITAL AGREEMENT - VALIDITY - ATTORNEY MALPRACTICE

Knapp v. Ginsberg, No. B307559, 67 Cal. App.5th 504 (California Court of Appeal, Second District, Division 4, August 5, 2021)

The wife brought a legal malpractice claim against the attorney who represented her in connection with the preparation of a premarital agreement (PMA), and who approved PMA as to form on her behalf. The wife alleged that the PMA was unenforceable due to the attorney's failure to ensure that the husband signed a waiver of legal representation. The trial court granted the attorney’s motion for summary judgment, and the wife appealed. Held: (1) genuine issue of material fact as to whether boilerplate language in PMA stating that both parties were represented by counsel reflected reality precluded summary judgment; (2) trial court properly refused to grant summary judgment due to deficiencies in attorney's pleading; (3) summary judgment for attorney on basis of ratification was not proper; (4) genuine issues of material fact as to whether husband's estate had standing to challenge enforceability of PMA, and causation precluded summary judgment; (5) genuine issue of material fact as to scope of continuing representation precluded summary judgment. Reversed.

AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - MEDIATED AGREEMENT - DURESS

Matter of Marriage of Penafiel, No. 14‑19‑00240‑CV (Texas Court of Appeals, Houston (14^th Dist.), July 27, 2021)

Wife petitioned for divorce and entered into a mediated settlement agreement (MSA) with husband, but moved to set aside the MSA and amended her petition to add a tort claim for fraudulent inducement after husband failed to perform on his promises from the MSA. Held: Yep, that husband was a scoundrel. The trial judge could have reasonably concluded that husband never intended to fulfill his promises made in the MSA to obtain an annuity paying $10,000 per month to the wife and to make a $150,000 lump‑sum payment to the wife; therefore, he had the intent to defraud the wife, as element of fraudulent inducement. Further, the husband had a history of hiding community assets, and the husband, as part of a scheme to buy time to further hide and shield assets, made numerous representations through counsel indicating that he was close to obtaining the annuity and the cash, but he continually delayed performance and ultimately never performed. However, the trial court abused its discretion by allowing a double recovery, by awarding the wife the value she would have received if the trial court had made a just and right division of community property, while also awarding the wife, as damages for the husband's fraudulent inducement, the community property and other considerations she would have received under MSA.

CHILD CUSTODY - CONTEMPT - VACCINATION

Heffer v. Krebs, 196 A.D.3d 684 (New York Supreme Court, Appellate Division, Second Department, July 28, 2021)

The separation agreement provided that “[t]he parties shall continue to cooperate and consult with one another to arrive at decisions which they believe are in the best interest of the [c]hild with respect to health.” Despite this language, on two occasions, the plaintiff, without first consulting with the defendant, took the child, who had not received any vaccinations since the age of two, to get vaccinated. However, the parties’ separation agreement did not unequivocally prohibit the plaintiff from having the child inoculated. Moreover, in light of the parties’ express intention to maintain the child's enrollment in public education, and New York State's then newly enacted public school vaccine mandate requiring such inoculations in order for the child to continue to attend public school (see Public Health Law § 2164; C.F. v. New York City Dept. of Health & Mental Hygiene, 191 A.D.3d 52, 70, 139 N.Y.S.3d 273), the defendant cannot demonstrate that she was prejudiced by the failure of the plaintiff to consult with her prior to having the child inoculated.

CHILD CUSTODY - EVIDENCE - PSYCHOLOGICAL EXAMINATION

Pontillo v. Johnson‑Kosiorek, 196 A.D.3d 1163 (New York Supreme Court, Appellate Division, Fourth Department, July 16, 2021)

The assistance of psychological experts in custody proceedings may be necessary where the child has exhibited emotional and behavior problems, there is sharply conflicting testimony regarding the conduct of the parties, or a party's mental health is at issue. The dispositive inquiry is whether there was sufficient testimony from the parties and other witnesses to enable the court to resolve the custody dispute without those evaluations. Because the mother's mental and emotional health was the central issue contested in the contested custody proceeding, the trial court abused its discretion in making its determination and awarding the father sole custody of the child without first considering the results of the psychological evaluations that it ordered.

CHILD CUSTODY - HAGUE CONVENTION - GRAVE HARM

Radu v. Shon, No. 20‑17022 (United States Court of Appeals, Ninth Circuit, August 31, 2021)

Persephone Johnson Shon left her husband in Germany and removed her two minor children to Arizona, where they have resided for the last two years. The Hague Convention of the Civil Aspects of International Child Abduction provides for the prompt return of abducted children so that the country of habitual residence may resolve custody disputes. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in the father's custody. To alleviate that risk, the district court ordered that the children be transferred back to Germany in Shon's custody until a German court made a custody determination. While the district court's order is permissible under the Convention, we vacate and remand for the district court to reasonably ensure compliance with its alternative remedy in Germany.

CHILD CUSTODY - MODIFICATION - ALIENATION

Sukul v. Sukul, 196 A.D.3d 661 (New York Supreme Court, Appellate Division, Second Department, July 21, 2021)

In a stipulation of settlement which was incorporated but not merged into the parties’ judgment of divorce, the parties agreed that the mother would have sole legal and physical custody of the children, with parental access to the father. The stipulation also provided that if either party moved the residence of either child beyond a radius of 75 miles from their present residence, the parties had to “confer and enter into ... fair and equitable revisions” of the parental access provisions in the stipulation. Thereafter, the mother moved with the children out of state to Georgia. The father moved to have the children returned to New York and, in effect, to modify the custody provisions of the stipulation so as to award him sole legal and physical custody of the children. The father alleged that the mother relocated with the children without consulting him beforehand or informing him where she was taking the children. The court granted that branch of the father's motion which was, in effect, to modify the stipulation so as to award him sole legal and physical custody of the children. The appellate court affirmed, noting that the mother’s testimony at trial pretty much doomed her: she testified that she did not tell the father she moved to Georgia or provide him with an address and that the father texted one of the children after the move to find out where they lived; she testified that she should be entitled to relocate with the children out of New York State despite the court order because “[t]his is a free country” [Murica!]; she testified that the father is “no good” and she did not believe he should ever see the children. By contrast, the father testified that if he were awarded sole custody of the children, he “would ensure they spend time with [the mother].” Thus, the evidence presented at the hearing established that the mother acted to alienate the children from the father, and that the father was more willing than the mother to maintain contact between the children and the other parent.

CHILD CUSTODY - TERMINATION - CONDUCT - MARIJUANA

New Jersey Division of Child Protection and Permanency v. D.H., No. A-1774-19, A-1857-20 (New Jersey Appellate Division, August 2, 2021)

A parent’s recreational marijuana use cannot suffice as the sole or primary reason to terminate parental rights under Title 30, unless the Division of Child Protection and Premanency also proves with competent, case-specific evidence that marijuana usage endangers the health, safety, or welfare of the child.

[Ed. note: Too bad the case wasn’t decided on 4/20.]

CHILD CUSTODY - MODIFICATION - UCCJEA

Swanson v. Perez‑Swanson, 206 Conn. App. 266 (Connecticut Appellate Court, Jluy 27, 2021)

“Here, although the defendant conceded that the children had continuously resided in North Carolina for more than six consecutive months with the defendant and, therefore, that North Carolina was the children's home state, that alone is not sufficient to terminate the Connecticut court's continuing jurisdiction. As provided in § 46b‑115l (a), a court of this state has continuing jurisdiction over the custody order until it has been determined that Connecticut is not the home state of the children, and that the children lack a significant relationship with the defendant who resides in Connecticut, and that substantial evidence concerning the children's care, protection, training, and personal relationships is no longer available in Connecticut. Thus, all three of the aforementioned factors must be met and, here, the court made its determination on the basis of only one factor without addressing the remaining factors. Because the court based its determination that it lacked jurisdiction solely on the fact that Connecticut is no longer the home state of the children, it erred in granting the plaintiff's motion to dismiss the defendant's motion to modify custody.”

Alden v. Yarborough, No. A21A0678 (Georgia Court of Appeals, August 5, 2021)

In matter in which custody of minor children had been previously determined, mother, who had moved to North Carolina with children, brought motion for declaratory judgment seeking declaration that Georgia had exclusive jurisdiction over custody matters under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), after children were removed from her custody by North Carolina's Department of Social Services. Following denial of the motion for lack of actual and justiciable controversy, the trial court sua sponte entered order releasing jurisdiction under the UCCJEA to North Carolina. Mother appealed. Held: As matter of apparent first impression, where a trial court's decision to relinquish jurisdiction under the UCCJEA is based on its communications with a court of another state, it commits reversible error by failing to inform the parties of those communications and allow them to present facts and arguments.

CHILD CUSTODY - VISITATION - THIRD PARTY - GRANDPARENTS

Lindblad v. Lindblad, 309 Neb. 776, 962 N.W.2d 545 (Nebraska Supreme Court, July 30, 2021)

Father sought to modify custody and parenting time provisions in dissolution decree, and maternal grandparents filed a complaint for grandparent visitation. The trial court granted the grandparents’ request, and the father appealed. Held: “Our review of the record demonstrates the grandparents met their burden of proving both that it was in F.L.’s best interests to continue the relationship with her maternal grandparents and that grandparent visitation would not adversely interfere with the parent‑child relationship.” (Extensive discussion follows.)

CHILD SUPPORT - INCOME - IMPUTED INCOME

Pace v. Pace, No. 2019‑CA‑01377‑COA (Mississippi Court of Appeals, July 27, 2021)

Husband's diminished earnings, after retiring his medical license instead of participating in a drug‑addiction monitoring program, were the result of voluntary choice, and thus the chancellor acted within her discretion in ordering husband to pay $1,200 per month in child support, although husband claimed that he was disabled because of a stroke. The chancellor found that husband had the ability to earn more than $100,000 per year, husband did not present any medical evidence to support his stroke claim and continued to earn more than $100,000 per year following the alleged stroke.

Weiss v. Nelson, 196 A.D.3d 722 (New York Supreme Court, Appellate Division, Second Department, July 28, 2021)

Here, the Supreme Court improvidently exercised its discretion by imputing an annual income of $80,000 to the plaintiff when calculating her maintenance award. During this 28–year marriage, notwithstanding her college degree and various certifications, the plaintiff, who was 55 years old at the time of trial, had been a stay at home mother and homemaker for almost 10 years and had never earned more than $19 per hour from employment upon returning to work outside the home, while the defendant was the primary wage earner for the family and earned a substantial income. Moreover, the plaintiff's business was not a financial success. Based upon the record, there was no evidence that the plaintiff's past income or demonstrated future earning potential amounted to $80,000 annually. Accordingly, under the facts of this case, the court should have imputed an annual income to the plaintiff in the amount of $35,000.

DIVORCE - PROCEDURE - CONTINUANCE - COVID

Marinaro v. Marinaro, 73 Va. App. 424, 861 S.E.2d 69 (Virginia Court of Appeals, August 3, 2021)

In a divorce proceeding, the wife contacted the court the morning of the proceeding and stated she had a fever and had been exposed to an individual who tested positive for COVID‑19. The wife requested a continuance, but the court denied the continuance and proceeded with trial in the wife's absence. The wife appealed following denial of her motion to reconsider, rehear, and vacate. Held: the trial court abused its discretion in denying wife's request for continuance due to COVID‑19 pandemic, and the wife was injured by the trial court's refusal to grant a continuance due to COVID‑19 pandemic. Reversed and remanded.

DIVORCE - PROCEDURE - SERVICEMEMBERS CIVIL RELIEF ACT

Bilger v. Bilger, No. 20210072, 2021 ND 144 (North Dakota Supreme Court, August 5, 2021)

Under 50 U.S.C. § 3932(b), a servicemember may apply to stay the action if the requirements of military duty affects the servicemember's ability to appear. Bilger did not apply for a stay asserting his military duty affected his ability to appear and defend the action. Therefore, he forfeited the available protections of the Act. Bilger voluntarily submitted to the jurisdiction of the district court. The Servicemembers Civil Relief Act applies in this case; however, Bilger did not invoke the protections of the Act by claiming his military duty affected his ability to defend the action. Therefore, the court did not err in denying Bilger's motion to dismiss the action and vacate the judgment.

INTIMATE PARTNER VIOLENCE - PERSONAL JURISDICTION

Mucha v. Wagner, No. 307PA20, 2021-NCSC-82 (North Carolina Supreme Court, August 13, 2021)

Nonresident ex‑boyfriend lacked minimum contacts with North Carolina sufficient to permit trial court to exercise specific personal jurisdiction over him under due process clause for purpose of ex‑girlfriend's motion for domestic violence protection order (DVPO) against ex‑boyfriend, although ex‑boyfriend placed numerous unwelcome cellular telephone calls to ex‑girlfriend, who was living in North Carolina; ex‑boyfriend had no reason to know that ex‑girlfriend was in North Carolina when he called her, as ex‑girlfriend had just moved there from another state, unbeknownst to ex‑boyfriend, neither ex‑boyfriend nor ex‑girlfriend had any prior ties to North Carolina, and ex‑girlfriend's cellular telephone number, which ex‑boyfriend called, was not linked to a physical address in North Carolina.

MARRIAGE - CAPACITY

Malousek v. Meyer, 309 Neb. 803, 962 N.W.2d 676 (Nebraska Supreme Court, July 30, 2021)

Deceased's children and special administrator of estate brought action against purported husband of deceased and his adult son, seeking declaratory judgment that various property interest changes, as well as marriage, made shortly before her death were void and invalid. Held: Purported wife lacked requisite mental capacity to marry purported husband and execute real and personal property transfers in favor of husband and his adult son shortly before her death due to cancer, and, thus, transfers and marriage were void and invalid; at least until month before her death, she had consistently maintained she would not marry again and that she intended to leave all of her assets to her children when she died, with exception of remarking she should probably leave purported husband a small amount, but marriage and transfers contravened her wishes and occurred at a time when she experienced periodic delirium related to her illness and treatment.

PROPERTY DIVISION - CLASSIFICATION - INCOME TAX REFUND

Paoli v. Paoli, No. 2020‑CA‑0295‑MR (Kentucky Court of Appeals, July 15, 2021)

Just as income earned during the marriage is marital property, an income tax refund based on that income is also marital property.

PROPERTY DIVISION - VALUATION - MARITAL HOME

In re Marriage of Ramsey and Holmes, No. B305584 (California Court of Appeal, Second District, Division 4, August 17, 2021)

“Acknowledging that there is a dearth of authority that might have guided the family court in the evidentiary dilemma it faced, we conclude the family court erred by using the total amount of the mortgage payments when calculating the community property interest in the house, in light of the evidence that a significant portion of those payments went to interest, taxes, and insurance rather than to principal. While we understand that the court was hampered by the parties’ failure to introduce evidence establishing exactly what portion of those payments went to reduce the principal on the mortgage, the Supreme Court made clear in Moore that the amounts paid for interest, taxes, and insurance cannot be used when determining the community property percentage share.”

LAW REVIEW ARTICLES OF INTEREST

Mark A. Leinauer, The Moral Sex: How Policing the Moral Development of Daughters Harms Gay Parents in Custody Disputes, 36 Berkeley J. Gender L. & Just. 1 (2021)

Tom S. Tanimoto, Child Custody Considerations in a COVID‑19 Era and Thoughts for the Future, 25‑SEP Haw. B.J. 12 (Sept. 2021)

(If you would like a copy of the Tanimoto article, contact me at [email protected])