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January 14, 2022 Vol. 25, No. 12

December 2021 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 November, as they were not posted to Westlaw until after I prepared the November update on December 12, 2021.) 


Martin v. MacMahon, No. Sag‑21‑18, 2021 ME 62 (Maine Supreme Court, December 14, 2021, revised January 4, 2022)

Martin and Marylou E. MacMahan have two biological children. Marylou’s friend Dawn Ostrande and her husband James filed for de facto parentage of the children. (The facts establishing the de facto parentage are quite amazing, but very long. Please read the case if you are interested.) Held: A putative de facto parent must prove, as to a legal parent who appears and objects to the de facto parentage petition under the Maine Parentage Act, that the parent has fostered or supported, and has understood and accepted, the putative de facto parent's bonded and dependent relationship with the child. Evidence supported a finding that legal parent, i.e., biological father who moved to another state, fostered or supported, and understood and accepted, the bonded and dependent relationship that the two children had with mother's friend and friend's husband, as statutory element for friend's and her husband's de facto parent status; there was evidence that father knew or should have known, after moving from the state, that the children were living with friend and friend's husband, yet he abdicated his financial and personal responsibility to care for the children, he expressed his appreciation to friend and friend's husband for “raising [his] girls,” and he granted friend and friend's husband temporary legal authority over the children. 

Errata Sheet


B.S. v. A.S. (New York Trial Court, December 21, 2021)

Full opinion not available yet. Most of the opinion is available here.


Muchow v. Kohler, 966 N.W.2d 910, 2021 ND 209 (North Dakota Supreme Court, November 23, 2021)

After the father’s death, the paternal grandparents filed a petition for visitation with their son’s children. Held: Grandparents did not prove by clear and convincing evidence that denial of their request for visitation would result in harm to children. Although the grandparents testified that they believed it would be harmful to the children if they were not allowed visitation, and grandparents routinely spent time with the children prior to their father's death, the grandparents failed to establish exactly how denial of visitation would have significant adverse effect on children's well‑being.


Quamme v. Quamme, No. 20210093, 2021 ND 208 (North Dakota Supreme Court, December 1, 2021)

“The district court found, without explanation, “Chad is self‑employed for child support purposes,” and the court averaged his income for the previous five years. The evidence does not support the district court's finding. Commissions are generally included in gross wages from employment, but the earning of commissions does not necessarily indicate whether the income is from employment or self‑employment. Rather, the determination of self‑employment in this context is whether the obligor directly or indirectly controls the organization providing him employment. See Wolt v. Wolt, 2019 ND 155, ¶ 6, 930 N.W.2d 589 (discussing obligor's self‑employment income from employment in a Subchapter S corporation). While the evidence may support a conclusion that Chad Quamme has some control over the amount of his commissions, there is no evidence to support a finding that he has, “to a significant extent,” an ability to “directly or indirectly” control Wells Fargo, which is the “business organization or entity” from which he earns his income. N.D. Admin. Code § 75‑02‑04.1‑01(10). We conclude the district court erred when it found Chad Quamme is self‑employed, and we reverse its decision.”


In re Marriage of Yabush, Nos. 1-20-1136, 1-21-0002 (cons.), 2021 IL App (1st) 201136 (Illinois Appellate Court, First District, December 22, 2021)

As part of the dissolution proceedings, the parties entered into an agreed judgment for dissolution of marriage, which contained a provision that required petitioner, a salesperson, to pay $2226 per month for child support at that point in time, which represented 28% of his base pay at the time, plus 28% of any bonuses or commissions petitioner received. Several years after the entry of the dissolution judgment, petitioner started his own company, which greatly increased his income: from $138,000 at the time of the dissolution judgment in 2011 to $2.2 million in 2018. In 2018, petitioner filed a petition to decrease the amount of child support he was required to pay, claiming that his increased income constituted a substantial change in circumstances and that 28% of his increased income would constitute a windfall to respondent. The trial court denied the petition, finding that the parties had contemplated petitioner’s income fluctuating and his increased income therefore did not constitute a substantial change in circumstances. Reversed. “After reviewing the language of the agreed judgment for dissolution and the parties’ testimony, we cannot find any evidence that the parties intended that, if the petitioner earned 16 times the amount he was earning at the   time of the dissolution, such a great increase would not constitute a substantial change in circumstances.”

(Ed. note: A demonstration of why Illinois was smart to get rid of the percentage of income model and switch to income shares.) 


Ball v. Ball, No. ED 109532 (Missouri Court of Appeals, Eastern District, November 23, 2021)

In a UIFSA case, the father's failure to include an authentic, certified copy of the entire foreign judgment in his petition to register and modify such judgment as to child support did not implicate trial court's subject matter jurisdiction over the judgment, where the father only filed non‑authenticated, non‑certified copies of the father's and mother's four‑page dissolution of marriage judgment and 12‑page parenting plan, omitting the marital settlement agreement and support order.


Stephenson v. Stephenson, No. 2020‑CA‑01201‑COA (Mississippi Court of Appeals, Nov. 23, 2021)

The principle that a husband has the right to choose and establish the matrimonial domicile, whereas the wife has only a duty to acquiesce and follow, is no longer good law; sufficient evidence supported chancellor's finding that the husband's unilateral decision to move and leave his wife behind was unreasonable and, therefore, wife did not desert husband by continuing to live in the established marital home.


Hepworth v. Hepworth, No. 48478 (Idaho Court of Appeals, Nov. 23, 2021)

Amy Marie Hepworth, nka Amy Marie Evans, appeals from the district court's decision affirming the magistrate court's orders of post‑judgment interest pursuant to Idaho Code § 28‑22‑104(2). Amy alleges the district court erred because it concluded the divorce decree was the judgment referenced in I.C. § 28‑22‑104(2), thereby precluding Amy from obtaining prejudgment interest pursuant to I.C. § 28‑22‑104(1). In this case, the relevant judgment was not the divorce decree but, instead, the later‑entered 2017 and 2018 money judgments. As a result, Amy was eligible for an award of prejudgment interest pursuant to I.C. § 28‑22‑104(1). Accordingly, we reverse the district court's decision affirming the magistrate court's order and remand the case for further proceedings consistent with this opinion. ... In this case, only after the magistrate court entered the 2017 and 2018 monetary judgments were there judgments that contained a readily ascertainable monetary value for the asset at issue. Accordingly, the 2017 and 2018 money judgments are the relevant judgments for the purposes of I.C. § 28‑22‑104(2). Consequently, Amy my is entitled to prejudgment interest under I.C. § 28‑22‑104(1) from the date James received money from the sale of the shares until the entry of the 2017 and 2018 money judgments.


Robirds v. Robirds, 499 P.3d 431 (Idaho Supreme Court, November 26, 2021)

Husband's misconduct and misrepresentation warranted setting aside of property settlement in divorce action, where husband did not comply with the terms of the agreement drafted by his own attorney, as he failed to provide promised documentation regarding the marital home and retirement accounts, such as evidence and documentation about the bank account from which the down payment for the home was made, the status of the parties’ residence was clearly different than originally represented by husband, and there were concerns about wife's ability to understand the settlement, as she was not proficient in English. Moreover, Husband's position on appeal in divorce action, that court erred in determining that retirement accounts were community property, was frivolous, unreasonable, and without foundation, and thus warranted award of attorney's fees to wife; husband was so convinced that the accounts were undeniably his separate property that he refused to provide the necessary documentation that would have allowed his attorney the opportunity to prove that the accounts were indeed his separate property.


In re Marriage of Reichental, No. 2d Civil No. B307255 (California Court of Appeal, Second District, Division 6, December 29, 2021)

Trial court did not abuse its discretion in including husband's girlfriend as protected person in domestic violence restraining order (DVRO) prohibiting wife from entering property where husband was residing with his girlfriend, harassing or surveilling them, communicating with them, or coming within 50 yards of them, although girlfriend was not party to the proceeding for dissolution of marriage in which the order was entered. Girlfriend lived with husband, and trial court found good cause to include girlfriend based on wife's conduct in chasing girlfriend on the freeway, falsely accusing girlfriend and husband of disabling her home security system, and surveilling husband and girlfriend from neighbor's property. 


Yourko v. Yourko, No. 0363‑21‑1 (Virginia Court of Appeals, December 21, 2021)

“The final decree and equitable distribution order and military pension division order require husband to indemnify and guarantee payment of a sum certain derived from military retirement pay. The net result of this impermissible indemnification is that, after DFAS' allocation of benefits, husband is required to pay 140% of his retirement benefits to his former spouse. This outcome is flatly prohibited under Howell and the character of the circuit court judgment was such that the court “had no power to render it.” Accordingly, the orders are void ab initio for lack of power.” What to do? Remand for the trial court to set the marital share of military pension, reconfigure the equitable distribution award, and perform any necessary balancing of relevant factors to establish appropriate spousal support and child support levels.

(Ed. note: This opinion OVERRULES prior cases in Virginia which permitted such indemnification contracts, although these cases pre‑dated the US Supreme Court decision in Howell.)


Jessee v. Jessee, 74 Va. App. 40, 866 S.E.2d 46 (Virginia Court of Appeals, December 14, 2021)

A contract entered into by the progenitors regarding the disposition of pre-embyros before their separation or divorce alleviates constitutional concerns and serves as a more traditional, equitable, and realistic approach. Such preexisting agreements regarding pre‑embryos promote serious discussions between the parties prior to participating in IVF, minimize misunderstandingsthat might arise in the future, provide certainty for progenitors, and decrease the likelihood of litigation. If a contract exists, it should be the controlling mechanism to resolve the dispute. Absent such a contract, a court should employ a balancing approach, which balances the parties’ interests to best respect their opposing constitutional rights. This approach addresses constitutional concerns by taking the parties’ competing constitutional interests into account. “Balancing the parties’ respective interests in preserved pre‑embryos requires consideration of numerous factors. Those circumstances include the parties’ intended use for the pre‑embryos, their “original reasons for undergoing IVF,” “the reasonable ability” of the party seeking the pre‑embryos to have biological “children through other means,” and “the potential burden on the party seeking to avoid becoming a genetic parent.”  In addition, courts should consider the possibility of a party's “bad faith and attempt to use the frozen pre‑embryo[s] as leverage in the divorce proceeding.” Finally, the court should consider any other factors pertaining to the parties’ procreational autonomy. 


Innes v. Innes, 500 P.3d 259, 2021 WY 137 (Wyoming Supreme Court, December 14, 2021)

The trial court's decision to award the wife $200,000, rather than $334,789.18, representing half of the equity in the marital residence, half of the equity in the parties' rural property, and half of the assets of the family business, was not arbitrary or an abuse of discretion. In addition to the marital residence, property, and family business assets, the court considered that the wife's student loans were paid during the marriage, the court considered certain horses, personal bank accounts, vehicles, and horse trailers, and the expense the husband paid for marriage counseling, and the court intended the $200,000 to be an equalization payment rather than half of the marital assets. 


Matter of Marriage of Leaver, 499 P.3d 222 (Washington Court of Appeals, Division 3, November 30, 2021)

Substantial evidence did not support findings that husband's depression and severe anxiety were not disabling and that he had potential to reenter workforce, as justification for denying lifetime maintenance and ordering maintenance that would decrease over period of two years; husband introduced uncontested testimony from his psychiatrist and neuropsychological evaluator that his mental health rendered him disabled and that his prospects to re‑enter workforce, after more than 20 years as stay‑at‑home parent, were low, but court instead adopted opinion of wife, who was not involved in husband's mental health treatment and was not expert qualified to testify about impact of his mental health on his capacity to work, that husband could return to work fulltime and become financially independent.


Hattaway v. Coulter, (Alabama Civil Court of Appeals, December 17, 2021)

“On December 24, 2018, Hattaway presented Coulter with a Christmas gift bag. Coulter stated that, when Hattaway handed her the bag, she knew that “it was going to be something big” because he pulled out his telephone and started making a video recording.1 Inside the gift bag was a Christmas ornament with a two and one‑half carat diamond ring, valued at $32,000,2 attached to it. According to Hattaway, when Coulter pulled out the ornament from the gift bag, he dropped to one knee and asked Coulter to marry him. Hattaway testified that, when she responded affirmatively to his proposal of marriage, he placed the ring on her finger. Coulter disagreed, testifying that Hattaway did not propose marriage to her when she opened the gift and never informed others that they were engaged. She did state, however, that when she received the gift she “assumed” that the ring was an engagement ring. Hattaway testified that when he gave Coulter the ring he did not explicitly state that he expected her to return the ring if she did not marry him.” Engagement off. Held: Return the ring. 


Kristopher J. Hilscher, “Beat the Clock”: Deadlines in a Military Divorce Case, 96‑FEB Fla. B.J. 40 (Jan./Feb. 2022)

Louise Melling, Religious Exemptions and the Family, 131 Yale L.J. Forum 275 (Nov. 5, 2021)


Ruler of Dubai must pay ex-wife over $700 million in divorce settlement.
(MacKenzie Scott says, “Hold my beer.”) 

Australia sees rise in vaccination disputes in family court.
(Yes, we are not the only idiots in the world.)

What happens when divorced parents disagree on vaccinating their child?

Former Tampa judge suspended from law practice over romantic relationship with [divorce] client.

Impact of the COVID-19 pandemic on state child support enforcement programs.

Sperm donation boomed during the pandemic.