February 2021

AGREEMENTS - PREMARITAL AGREEMENTS - COERCION

Bates v. Bates, No. 3D19‑1884, 46 Fla. L. Weekly D287 (Florida District Court of Appeal, Third District, February 3, 2021)

An interesting case that draws a distinction between duress and coercion. The court held that the wife did not sign the parties’ premarital agreement under duress as that is defined. “[T]he trial court might have been correct that Wife was fearful as to what would happen if her family, who raised her in a strict Catholic household, learned of Wife's pre‑marital relations with Husband, her pregnancy and her subsequent abortion. What is missing in this case, however, is any evidence from which it could be inferred that Husband had threatened to tell Wife's family about these circumstances if Wife did not execute the prenuptial agreement. There being no evidence that Husband threatened to besmirch Wife's reputation for his own pecuniary gain, we conclude that there was not competent, substantial evidence to support the trial court's finding of duress.” The court continued, however, that the husband was guilty of coercion. “Husband repeatedly told Wife that it was a requirement that the prenuptial agreement be signed for Wife to come to the United States. More important, Husband told Wife she needed to sign the prenuptial agreement before their upcoming appointment with the Colombian embassy, implying that signing the agreement was part of the emigration process. Contrary to what Husband told Wife, immigration to the United States is not conditioned on the execution of a prenuptial agreement. These acts, combined with the time pressure aspects of the parties' courtship and Wife's vulnerable physical and emotional condition following the abortion, constitute competent, substantial evidence to support the trial court's finding of coercion.”

AGREEMENTS - POSTNUPTIAL AGREEMENTS - VALIDITY

Wills v. Wills, 72 Va. App. 743, 853 S.E.2d 536 (Virginia Court of Appeals, February 9, 2021)

A postnuptial agreement is not a “separation agreement,” and it is not a  “property settlement agreement” within the meaning of the martial agreements statute providing that a reconciliation of the parties after the signing of a property settlement agreement shall abrogate such agreement. Here, the agreement was signed less than a month after the parties were married with the intent that their marriage continue, the agreement was intended to provide the parties with the same rights and obligations as a premarital agreement, and agreement was not made in connection with the dissolution of the marriage or a separation. Kinda thought that was obvious, right?

AGREEMENTS - SEPARATION AGREEMENT - SET ASIDE - FRAUD

Paulson v. Paulson, No. 20200163, 2021 ND 32 (North Dakota Supreme Court, February 18, 2021)

After judgment, the wife moved to vacate the judgment based on fraud, misrepresentation, or misconduct, based on the former husband allegedly promising a future reconciliation and allegedly engaging in an extramarital affair. Thought the husband behaved badly, sorry, no go. The parties were well‑educated with advanced degrees, the former wife submitted no evidence to suggest she did not understand the divorce stipulation agreement, the former wife's risk of relying on an alleged promise to reconcile in the future was apparent at the time the former wife agreed to the stipulation, and the former husband's alleged affair did not constitute newly discovered evidence or fraud, as the former wife believed the former husband was having an affair before she signed the agreement.

AGREEMENTS - SEPARATION AGREEMENT - ORAL AGREEMENT - VALIDITY

In re Marriage of Zander, No. 19SC854, 2021 CO 12 (Colorado Supreme Court, February 16, 2021)

Colorado’s Marital Dissolution Act allows spouses to exclude property from the marital estate through a “valid agreement.” The Act further specifies the requisite legal formalities of all marital agreements, including an agreement to exclude property from the marital estate, including the requirement that the agreement be in writing. Thus, the parties' oral agreement to exclude their retirement accounts and inheritances from the marital estate was not a valid agreement because Colorado statutory law required that all agreements between spouses be in writing and signed by both parties.

CHILD CUSTODY - FIRST AMENDMENT

Sanavage v. Chavis, No. 19‑P‑1787 (Massachusetts Court of Appeals, March 2, 2021) (unpublished)

The mother appealed an order of child custody, arguing that several provisions in the amended judgment governing the coparenting terms and communications between the parties violated certain of her constitutional rights under the First and Fourteenth Amendments to the United States Constitution. The appellate court agreed. “We agree that a number of provisions contained within these portions of the judgment, and disputed by the mother, placed an impermissible restraint on the mother's speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother's constitutional rights and must be vacated.”

CHILD CUSTODY - JOINT LEGAL CUSTODY - DECISION MAKING - SCHOOL

Wolf v. Oestreich, No. A20‑0235 (Minnesota Court of Appeals, February 22, 2021)

“Joint legal custody” under Minn. Stat. § 518.003, subd. 3(b) (2018), “means that both parents have equal rights and responsibilities, including the right to participate in major decisions determining the child's upbringing, including education, health care, and religious training.” A joint legal custodian's status as the provider of a child's “primary residence” does not modify the rights and responsibilities of either joint legal custodian unless the district court orders otherwise. In other words, neither party having joint legal custody has a preferred right to determine a child's upbringing, including education, and primary residence is not determinative on school choice. Under these principles, the father did not have the right to unilaterally enroll their child in new school.

CHILD SUPPORT - INCOME - RESTRICTED STOCK UNITS (RSUs)

In re E.J.S., No. 80912‑1‑I (Washington Court of Appeals, Division 1, February 16, 2021)

The mother's vested and delivered restricted stock units (RSUs), which were a form of equity‑based compensation consisting of contractual promises by her employer to deliver shares of stock at future date once the RSUs vested, counted as “income” for purposes of calculating child support in proceeding on father's motion to adjust prior child support order, whether or not the RSUs were simultaneously liquidated. The mother's RSUs were a “gain” taxable as ordinary income at delivery whether or not simultaneously cashed in, and they were not specifically excluded from gross monthly income under the child support statute.

DIVORCE - ABATEMENT

Johnson v. Johnson, 72 Va. App. 771, 853 S.E.2d 550 (Virginia Court of Appeals, February 9, 2021)

In Virginia, it is orthodoxy that the court speaks only through its written orders. Thus, when the wife died after the divorce hearing had concluded and the court announced its ruling, but before a decree on the merits had been entered by the circuit court, unless the circuit court's oral announcement regarding its decision to grant the divorce constituted the point in time at which the marriage was dissolved, the  wife's death terminated the subject matter jurisdiction of the circuit court to do so. Since there was no written order, the divorce abated.

DIVORCE - GROUNDS - CRUEL AND INHUMAN TREATMENT

Thorton v. Thorton, No. 2019-CA-01073-COA (Mississippi Court of Appeals, February 23, 2021)

Conduct supporting habitual cruel and inhuman treatment, as grounds for divorce, does not have to be physical abuse. Evidence of emotional abuse is sufficient if it is more than mere unkindness, rudeness, or incompatibility, and is instead along the lines of habitual ill‑founded accusations, insults, and threats. So what did the husband do here that constituted habitual cruel and inhuman treatment? The husband tried to force the wife out of the home by making conditions so uncomfortable that she would leave, he regularly and repeatedly called the wife "devil" and said she was dumb or stupid, he physically attacked the wife on multiple occasions, one of which the daughter witnessed, and he made the wife afraid to be around the husband.

PARENTAGE - GENETIC TESTING

Department of Revenue o/b/o T.H.W. v. D.E.B., No. 2D20‑271 (Florida District Court of Appeal, Second District, February 12, 2021)

The trial court lacked subject matter jurisdiction to order genetic testing of alleged biological father, who was non‑party to child support action. The only issue before court was Department of Revenue's (DOR) child support petition and, maybe, the purported father's request to disestablish his paternity. Until the purported father's paternity was disestablished, and there was pending action to establish the alleged biological father's paternity, the trial court could not order the alleged biological father to undergo genetic testing at the DOR's expense and with its assistance.

PROPERTY DIVISION - CLASSIFICATION - INTERSPOUSAL TRANSFER BY DEED

In re Marriage of Blaine, No. 19SC967, 2021 CO 13 (Colorado Supreme Court, February 16, 2021)

Colorado’s Dissolution of Marriage Act excludes from the definition of marital property “property excluded by valid agreement of the parties.” Does a deed qualify? Nope, sorry. The deed for the marital home, executed by the husband, which conveyed the home to the wife as her separate property, was not a “valid agreement” under the Dissolution of Marriage Act, and, thus, the home remained subject to the presumption of marital property . Although the deed was a “marital agreement” signed by the husband, it was not signed by the wife, as required by the statute.

(Ed. note: Compare cases from other jurisdictions that hold a deed is sufficient to change the classification of property under the theory that the execution of the deed is a gift to the other party. E.g., Saba v. Khoury, 36 Arizona Cases Digest 8 (Ariz. Ct. App. Jan. 21, 2021); McDavid v. McDavid, 19 Va. App. 406, 451 S.E.2d 713 (1994).)

PROPERTY DIVISION - JOINTLY OWNED BUSINESS

Orwig v. Orwig, Nos. 20200123, 2021 ND 33 (North Dakota Supreme Court, February 18, 2021)

After the husband the wife for the divorce, the corporations co‑owned by the parties suedthe  wife for unauthorized transactions on the corporations' behalf. The actions were subsequently consolidated. Held: Yes, this was a good idea to decide these actions together in order to disentangle the parties’ corporate interests. And, yeah, the wife was bad: the court found that the wife breached her duty to the corporations and the husband, wasted corporate and marital assets, diverted corporate assets, and engaged in malicious and dishonest conduct, that the corporations suffered financially as a result of the wife's conduct, and that the corporations, without her interference, were viable, profitable businesses.

SPOUSAL SUPPORT - FACTORS - BREAKDOWN OF MARRIAGE

Fronsaglia v. Fronsaglia, 202 Conn. App. 769 (Connecticut Appellate Court, February 23, 2021)

Under Connecticut’s alimony statute, Conn. Gen. Stat. § 46b‑82(a), the court may consider the causes of the breakdown of the marriage when fashioning its award. Thus, the trial court was permitted to take into consideration the husband's extramarital affair with his twenty‑two year old employee, his paying all of his mistress's bills, and his taking vacations and trips with his mistress and paying all her expenses, all of which, understandably, made his wife very upset and contributed to the breakdown of the marriage.

LAW REVIEW ARTICLES OF INTEREST

Milfred D. Dale and Desiree Smith, Making the Case for Videoconferencing and Remote Child Custody Evaluations (RCCES): the Empirical, Ethical, and Evidentiary Arguments for Accepting New Technology, 27 Psychol. Pub. Pol'y & L. 30 (Feb. 2021)

Sharon A. Donovan and Kayla H. Quama, Unsettled Issue in a Divorce Suit: Should Granted, Unvested Stock Options Constitute a Marital Asset or a Separate Asset?, 34‑FEB Utah B.J. 17 (Jan./Feb. 2021).

Olivia Harrison, Statistically Speaking: The Long‑term Effects of Domestic Violence on Children, 41 Child. Legal Rts. J. 63 (2021)

Amy Holtzworth‑Munroe, Connie J. Beck, Amy G. Applegate, Jeannie M. Adams, Fernanda S. Rossi, Lily J. Jiang, Claire S. Tomlinson, Darrell F. Hale, Intimate Partner Violence (IPV) and Family Dispute Resolution: A Randomized Controlled Trial Comparing Shuttle Mediation, Videoconferencing Mediation, and Litigation, 27 Psychol. Pub. Pol'y & L. 45 (Feb. 2021)

Samuel Kan, CFP, Divorce and the Collapse of the Three‑Legged Stool: Setting Servicemembers up for Success in the Age of BRS and COVID‑19, 66 Wayne L. Rev. 409 (Winter 2021)

Note, In the Best Interests of the Child Asylum‑Seeker: A Threat to Family Unity, 134 Harv. L. Rev. 1456 (2021).

Rachel M. Patterson, The Child Welfare Hyper Surveillance State: Reimagining Supporting Parents with Mental Illnesses in 1028 Hearings, 48 Fordham Urb. L.J. 545 (2021).

Linda J.Ravdin, Premarital Agreements and the Gray Divorce, 48 Est. Plan. 4 (Jan. 2021)

Tamlyn Sbar, The Risks and Rewards of Mediating a Pro Se Divorce, 38 No. 1 GPSolo 23 (Jan./Feb. 2021)

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Recently Published Family Law Quarterly Issues

Family Law Quarterly, Vol. 54, No. 1 (2020): Preserving Families: Parent Representation, Immigration Reform, and LGBTQ+ Rights

Family Law Quarterly, Vol. 54, No. 2 (2020): Recent Developments in Family Law