December 08, 2021 Case Update

December 2020 Case Update

Volume 24, No. 12

Laura Morgan

Ed. Note: I provided my first Case Update for December 2000, making this issue my 20th Anniversary Issue. I hope to keep doing this for 20 more years. Happy New Year to you all, and may the remainder of 2021 be better than 2020 (and the first seven days of 2021). Here’s to better days ahead. Stay safe and healthy, my friends.

Cases

(Ed. Note: Some cases are not posted to Westlaw until almost four weeks after decision; hence, some cases herein may be from November, since they were not posted until after I prepared the November update on December 10.)

CHILD CUSTODY - AGREEMENTS - RELIGIOUS EDUCATION

Ball v. Ball, No. 1 CA CV 19 0787 FC, 33 Arizona Cases Digest 15 (Arizona Court of Appeals, Division 1, December 10, 2020)

Parenting plan stating each parent "may" take the children to a church or place of worship of his or her choice during their parenting time, and also stating that both parents agreed that the children "may" be instructed in the Christian faith, permitted father to take the children to any place of worship, whether it was Christian or non Christian, and thus father did not violate parenting plan by taking children to allegedly non Christian place of worship; second clause stating that child “may” be instructed in Christian faith was permissive and did not limit unambiguous language of the first clause. Ecclesiastical abstention doctrine under the First Amendment prohibited the trial court, when interpreting religious education provisions of parenting plan adopted as part of divorce decree, from considering ecclesiastical matter of whether the church that father attended was part of the Christian faith; the court debated what or was not within the definition of Christianity, and permitted into evidence a chart that compared the tenets of father's church with Christian beliefs.

CHILD CUSTODY - PSYCHOLOGICAL EXAMINATION

Ludwigsen v. Ludwigsen, No. 2D20 1228 (Florida District Court of Appeal, Second District, December 2, 2020)

The trial court did not depart from essential requirements of law by compelling psychological examination of father in dissolution proceeding for purposes of determining whether he was able to care for his minor daughter, although the order to compel failed to explicitly state that the father's mental health was in controversy. The trial court made factual findings in the order by incorporating testimony of law enforcement officer who arrived and assisted during the precipitating incident, as well as testimony of father himself, and reviewing court was permitted to review both record and factual findings to determine whether "in controversy" and "good cause" requirements supporting psychological examination were established.

CHILD CUSTODY - VISITATION - NON-DELEGATION OF AUTHORITY

Kelly v. Kelly, 29 Neb. App. 198 (Nebraska Court of Appeals, November 24, 2020)

In a dissolution of marriage action, trial court exceeded its discretion by giving a therapist sole authority to adjust the father's visitation from therapeutic visits in the first phase of phased parenting plan, to supervised visits in second phase, without any scheduled review or reevaluation by the court.

CHILD SUPPORT - DUTY TO SUPPORT - PARENTAGE

Denelle v. Denelle, No. 617 WDA 2020, 2020 PA Super 277 (Pennsylvania Superior Court, November 25, 2020)

Following divorce, the mother filed complaint for child support against the putative parent. The trial court dismissed the complaint, holding that there was no legal basis to impose a child support obligation on the putative parent. Held: The putative parent did not actually sign an acknowledgment of paternity, and thus there was no legal basis to impose a child support obligation on the putative parent. The county domestic relations office did not properly authenticate the acknowledgment of paternity, the putative parent denied signing acknowledgment of paternity, the signature on the acknowledgment of paternity was inconsistent with the putative parent's handwriting, and the acknowledgment was signed with a surname not used by putative parent.

CHILD SUPPORT - DEVIATION - HIGH INCOME

Good v. Ricardo, No. 2020–01452, 2020 N.Y. Slip Op. 07192 (New York Supreme Court, Appellate Division, Second Department, December 2, 2020)

Reasons articulated by Support Magistrate for calculating child support on combined parental income of $327,390 in excess of the statutory cap of $148,000 to the extent that she determined that father's child support obligation was $6,650 per month were not supported by the record, where father was paying 80% of significant add on expenses for the children, including uncovered health expenses, educational expenses, extracurricular activity expenses, summer camp and sleep away camp, a trip to Europe, and electronics, he was also paying $1,600 per month for child care expenses, and the mother admitted she was only incurring child care expenses in the amount of $520 per month.

CHILD SUPPORT - INCOME - INHERITANCE

In re Marriage of Dahm Schell, 2020 IL App (5th) 200099 (Illinois Appellate Court, Fifth District, November 30, 2020)

During the pendency of the dissolution, the husband's mother died and he inherited approximately $615,000, which the parties stipulated was husband's nonmarital property. The inheritance was not included in calculating father's child support and maintenance obligations. Held: (1) as a matter of first impression, distributions or withdrawals taken from a party's individual retirement account (IRA) that were not previously imputed to the party as income are “gross income” and “net income” for purposes of calculating maintenance and child support, and (2) the distributions that husband received from inherited individual retirement accounts (IRA) not previously imputed to husband as income must be included as income in calculations for determining child support and maintenance.

CHILD SUPPORT - INCOME - RESTRICTED STOCK UNITS

Normandin v. Normandin, No. 2016-CA-0451-DG (Kentucky Supreme Court, December 17, 2020)

Restricted stock units (RUSs), awarded annually by husband's employer and vesting three years later, were a form of deferred compensation representing payment for services over the three year vesting period, and thus the marital portion of each RSU allotment, for purposes of equitable distribution in dissolution of marriage proceeding, was the proportion of time in each three year vesting period that was marital; value of the RSUs was reported as ordinary income on husband's wage and tax statement in the year of vesting and appropriately taxed at that time, and grants were a means of hiring and retention for employer. Restricted stock units were to be treated as deferred marital income to be added proportionally to each spouse's gross monthly income in determining child support in dissolution of marriage proceedings.

CHILD SUPPORT - MODIFICATION - CHANGE IN CUSTODY

Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (Nebraska Supreme Court, December 11, 2020)

Agreement between biological mother and her female former partner, who had in loco parentis status, to change from joint custody arrangement to sole custody arrangement was a material change in circumstances warranting modification of support related provisions relating to allocation of children's school tuition expenses and mandatory contributions to children's college savings funds, where mother and former partner shared child related expenses equally under joint custody arrangement, mother had sole legal and physical custody under new custody arrangement, and former partner's financial circumstances had changed since entry of original judgment incorporating parties' settlement agreement and parenting plan.

DIVORCE - PROCEDURE - DISCOVERY

Noble v. Noble, No. 2020 077, 2020 VT 105 (Vermont Supreme Court, December 4, 2020)

The wife's grandfather, now deceased, established a trust in his full control until his death, then held for the benefit of the wife's grandmother (his wife) during her life. Upon wife's the grandmother's death, a share of the trust assets was directed to an ongoing trust for the benefit of grandfather's children, including wife's father. The trust further provided,

Upon the death of any such child [including father], the Trustees shall pay over so much of the share designated for his or her benefit then remaining in the hands and possession of the Trustees, free of all trusts, under this instrument to or for the benefit of such person or persons in the class consisting of the issue of said child, in whatsoever manner, either outright or in trust, with different interests in different appointees (including the creation of new powers of appointment and the imposition of lawful conditions upon any appointee) as said child shall appoint by a will executed after the death of the Settlor referring specifically to the power herein given.

In the divorce action, the husband moved for permission to engage in discovery of wife's father, as trustee, concerning the trust's assets. Held: the court did not err in denying the motion to allow discovery. The plain language of the statute unequivocally precludes a subpoena for information concerning the trust's assets because wife's interest in the trust, even if it is properly characterized as vested, is subject to modification or divestment.

DIVORCE - PROCEDURE - ESTOPPEL

Kaur v. Singh, No. 80090, 136 Nev. Adv. Op. 77 (Nevada Supreme Court, December 10, 2020)

A real soap opera for facts, folks. Buckle up. Rajwant (wife) and Jaswinder Singh got married in India in 1989, moved to California in 1993, and have lived together ever since. In 2004, they filed a joint petition for divorce in Las Vegas, claiming they were Nevada residents. Because the couple filed a witness's affidavit corroborating their residency, the district court entered the divorce decree without holding a hearing. Shortly thereafter, Rajwant married Jaswinder's brother in India. Rajwant claims that Jaswinder ordered her to marry his brother for immigration purposes. About three weeks later, Rajwant and Jaswinder returned to California, without Jaswinder's brother, and the couple continued living together in California. Then, in 2018, Rajwant discovered that Jaswinder married another woman in India, so she filed for divorce in California. After initially filing a response and request for dissolution of the marriage, Jaswinder filed an answer arguing the parties were already divorced, referencing the 2004 Nevada divorce decree. In January 2019, Rajwant moved the Eighth Judicial District Court to set aside the 2004 divorce decree under NRCP 60(b) on two grounds: (1) the parties never resided in Nevada, so the district court did not have jurisdiction and the divorce decree was therefore void; and (2) Jaswinder forced her to sign the divorce decree, which they had jointly submitted to the district court for approval, so it was obtained by fraud. She also contended she could not read the 2004 divorce pleadings, which were written in English, and thus did not know what she was signing. Jaswinder answered that Rajwant's motion to set aside the 2004 divorce decree, filed in 2019, was untimely. He also argued Rajwant was judicially estopped from challenging the divorce decree. Held: The trial court erred when it applied the doctrine of judicial estoppel to the wife. Only after considering the appropriate factors may the doctrine be applied. Under a five factor test for determining whether judicial estoppel applies, courts will consider: whether (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.

DIVORCE - PROCEDURE - GAG ORDER

Delgado v. Miller, No. 3D20 580 (Florida District Court of Appeal, Third District, December 2, 2020)

The magistrate included three paragraphs at the end of the recommended order which are the subject of this petition:

13. Neither party shall disclose or reveal to any 3rd party, directly or indirectly, through any social media or otherwise, the details of any financial information, including but not limited to income or employment information, of any nature, of the other party.

14. Neither party shall contact, directly or indirectly, the other party's existing clients and/or employers and/or contractors or potential clients and/or employers and/or contractors, other than through the legitimate discovery process provided by the Rules of Civil and Family Procedure.

15. Neither party shall engage in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior.

Held: Neither the trial court nor the general magistrate made findings of necessity, nor did they engage in any tailoring to narrow or limit the scope to those extrajudicial statements substantially likely to materially prejudice the trial. Indeed, paragraph fifteen of the order, which purports to prohibit either party from “engag[ing] in any social media of any nature which comments, directly or indirectly, on the other party's emotional or mental health or personal behavior,” is so overbroad as to render its boundaries indiscernible.

(Ed. note: The Miller of this case is Jason Miller, Senior Adviser to the Trump 2020 re-election campaign. For a tad more about this case, see these articles: "From Trump Aide to Single Mom" and "Trump campaign strategist Jason Miller tells judge he'll be unemployed after Dec. 15.")

S.B. v. S.S., No. 39 WAP 2019 (Pennsylvania Supreme Court, December 22, 2020)

In a custody proceeding, after affirmance of an order granting sole custody to the father, the father moved for sanctions and other relief to prohibit the mother and her counsel from speaking publicly about case, which involved allegations of sexual abuse by father, and from posting an online press conference by counsel with links to the reproduction of the child's testimony and the forensic interview. The trial court issued the gag order, and the mother appealed. Held: (1) gag order was content neutral under First Amendment free speech clause; (2) gag order furthered important governmental interest of protecting child's emotional well being and privacy; (3) gag order was sufficiently narrowly tailored to serve important governmental interest; (4) gag order was not unconstitutionally vague; and (5) free speech protections afforded by Federal and State Constitutions were coextensive with respect to gag order.

PARENTAGE - IMMIGRATION - "LEGITIMATE CHILD"

Schreiber v. Cuccinelli, No. 18 3215 (United States Court of Appeals, 10th Circuit, November 24, 2020)

The issue in this case was whether a father's adopted child could qualify as his "legitimate" child for the purposes of section 1010(b)(1)(C) of the Immigration and Nationality Act, when the child was not his biological child. Mr. Schreiber and his wife were U.S. citizens living in Kansas. In 2012, Mrs. Schreiber's niece moved from her native South Korea to Kansas to live with the Schriebers and attend high school. In 2014, the Schreibers adopted the niece under Kansas law with the consent of the child's parents. Kansas issued the child a new birth certificate listing the Schreibers as her parents. In 2015, Mr. Schreiber filed a petition to have his adopted child classified as his "child" for the purposes of the Act. The Board of Immigration Appeals determined legitimization only applied to a parent's biological children. The Tenth Circuit concluded the BIA correctly interpreted the Act's plain meaning, and thus, did not err in ruling that a parent's non biological child could not be his "legitimized" child within the meaning of the Act. Furthermore, the Court concluded the district court properly declined to review Mr. Schreiber's "late blooming" gender discrimination challenge to the BIA's final agency action.

PROPERTY DIVISION - CLASSIFICATION - DEBT

Price v. Peek, No. 0852 20 3 (Virginia Court of Appeals, December 22, 2020)

Post marital transfer of marital debt from one financial institution to another did not change its classification, and therefore, under the parties’ property settlement agreement, that allocated “all marital debts” to ex husband, ex husband remained solely responsible for that debt following the post marital transfer; original loan was marital debt, parties refinanced the original loan through bank after they divorced, and parties used the new loan from bank to pay entirety of the original loan with another financial institution, and thus the debt in the form of the loan from bank was readily traceable to the original marital loan from another financial institution, and fact that the parties transferred the marital debt to a different bank did not change its nature.

PROPERTY DIVISION - CLASSIFICATION - INTER VIVOS TRUST

Dayal v. Lakshmipathy, No. WD 19 049, 2020 Ohio 5441 (Ohio Court of Appeals, Sixth District, November 25, 2020)

The trial court ruled that the property held in the husband's irrevocable trust was marital property for purposes of division of property and ordered the husband to reimburse wife the sum of $397,500 for her share of money he had withdrawn from checking and investment account to pay income taxes. The wife appealed and the husband cross appealed. Held: The property the husband conveyed to the wife under the trust constituted an inter vivos gift, and thus, was her separate property in divorce. The language of the trust reflected the husband's intent to donate the property as a gift in that it stated the property was held “as separate property” by the trust for the benefit of the trust beneficiaries and “not as community property.” Further, the husband sought to shield several million dollars from potential federal estate tax liability by creating the trust naming wife as the beneficiary, funding it, and filing a federal tax return evidencing the transfer, and there was no evidence in the record to suggest that husband attached conditions to the establishment of the trust.

PROPERTY DIVISION - MILITARY PENSION - DATE OF DIVORCE

Weiland v. Weiland, 307 Neb. 882 (Nebraska Supreme Court, December 4, 2020)

Dissolution of marriage decree that awarded wife half of the military retirement points accumulated by husband during the marriage entitled wife to an award calculated as if husband had retired at the time of the property division, rather than continuing to serve for nearly ten additional years, but not a fixed dollar amount; Uniformed Services Former Spouses’ Protection Act (USFSPA) directed use of a “date of divorce” approach to valuing military retirement benefits in a dissolution of marriage proceeding, rather than a “date of retirement” approach that would have given wife the benefit of husband's post divorce service and promotions, but fixed award would deprive wife of the benefit of cost of living adjustments to which she was entitled.