(Editor's Note: Some cases may be from January, as they were not posted to Westlaw until after I prepared the January update on February 10, 2022.)
AGREEMENTS - PREMARITAL AGREEMENT - WAIVER OF FEES - PUBLIC POLICY
A waiver in a premarital agreement of the right to seek attorney fees is valid under the Uniform Premarital Agreement Act’s catch‑all provision as “[a]ny other matter” only to the extent that its application does not violate public policy. Here, the parties’ waiver in their premarital agreement of the right to seek an award of attorney fees was unenforceable as against public policy in a proceeding on parental rights and responsibilities in their divorce case. The litigation of parental rights required a determination of the child's best interest, and the effectiveness of the right to litigate issues related to their child's best interest could depend one party's ability to fund that litigation, including the assistance of an attorney. A party's financial circumstances could affect a court's ability, and obligation, to discern the best interest of the child.
AGREEMENTS - POST-MARITAL AGREEMENT - WAIVER OF RIGHTS - PUBLIC POLICY
The parties’ post-marital agreement and addendum, pursuant to which the wife would receive most of parties’ joint assets if husband engaged in extramarital affairs or physically harmed wife, violated Hawaii's no‑fault divorce policy by requiring that family court make determination of whether one party engaged in misconduct, and thus was void and unenforceable, even though the husband did not deny that he had violated agreement.
CHILD CUSTODY - EVIDENCE - HEARSAY
In the divorce judgment, the court awarded shared parental rights and responsibilities concerning the Needhams’ minor children. Held: “Because the court based that determination on hearsay evidence, we vacate the judgment.” In particular, evidence of Charles's substantiation by the Department [for abuse] was clearly hearsay because it recounted a statement made by an out‑of‑court declarant, the Department, offered in evidence to prove the truth of the matter asserted - that Charles had been substantiated by the Department for sexual abuse against a child.
CHILD CUSTODY - FACTORS - BEST INTERESTS
Even though certain best‑interest factors weight slightly in mother's favor, because there was evidence of mother's pattern of misbehavior, violations of court orders, and a failure to cooperate with the custody evaluation, mother was not interested in child having an emotional father‑son attachment, and there was no evidence that father would interfere with child's relationship with mother, the trial court acted within its discretion when it concluded that it was in the child's best interest to live with the parent that was most likely to ensure that the child would have a strong bond and healthy relationship with both parents and that such a goal would best be achieved by awarding father sole legal and physical custody.
CHILD CUSTODY - MODIFICATION - NO-CONTACT WITH THIRD PARTY
This month’s winner of the Peyton Place award. Keely (mother) and John (father) are the divorced parents of J. During the marriage, John had an affair with the mother’s brother’s wife Lauren (got that?), the mother’s sister-in-law. At the time of the divorce, the parties agreed to the following provision in their parenting plan: “The parties agree that [Lauren] shall never be in the presence of the minor child unless one of the parties is physically present, or unless an adult designated by the parties (such as a grandparent) is physically present. Under no circumstances may [Lauren]] be alone with the child. (“Visitation Restriction”)”. At the time of the settlement, John and Lauren were no longer involved in a relationship, but they later got back together with plans to marry. With this news, Keely sought to have the Visitation Restriction expanded to prohibit all contact between Lauren and J. John answered and filed a counterclaim seeking to have visitation modified to allow for unsupervised contact between Lauren and J. John and Lauren then married. At the hearing, the trial court modified and expanded the visitation restriction Visitation Restriction to prohibit any contact between Lauren (now J’s step-mother) and J. (Read the opinion for the trial court’s absolutely over-the-top excoriation of John and Lauren, including calling Lauren’s posting on a dating app a solicitation on a sex site.) Held: Trial court, what is the matter with you? There was no evidence that Lauren and John engaged in any inappropriate conduct in the presence of J. The trial court’s distaste of how they got together is not the issue. Reversed.
CHILD CUSTODY - MODIFICATION - SUBSTANTIAL CHANGE IN CIRCUMSTANCES
At the time of the divorce, the parties stipulated to joint legal custody with the mother designated as the domiciliary parent, and the parties agreed to shared (50‑50) physical custody. Thereafter, the mother sought modification of physical custody, alleging the following changes in circumstances since the stipulated custody judgment: (1) the mother and child evacuated to Texas due to Hurricane Delta and the father remained in Lake Charles; (2) the mother returned custody of the child to the father for his parenting time, but the child did not want to stay with him and his current girlfriend, and the child only stayed for 1 night; (3) since that night, the child lived exclusively with the mother, and father has not had any overnight visitation, but has seen the child a couple of times while the parties meet for the exchange; (4) the child has Covid-19, and when the mother informed the father, he denied it and his sent a text message to the mother, threatening to beat her up. Held: I would say you have stated a prima facie case for a change in custody.
CHILD CUSTODY - UCCJEA - INITIAL JURISDICTION
Husband, who resided in Utah, filed petition for divorce in Utah and motion for temporary orders seeking custody and visitation. Wife, who had relocated with child to Idaho, subsequently filed petition for divorce in Idaho. Husband filed motion to dismiss wife's petition. Wife filed motion in Utah court to stay Utah proceeding and transfer child custody jurisdiction to Idaho court. She also filed motion in Idaho court to accept jurisdiction. In Idaho, the magistrate denied wife's motion to accept jurisdiction and granted husband's motion to dismiss. Wife's petition for immediate appeal was allowed. Held: You people need to bone up on UCCJEA. Utah, not Idaho, had jurisdiction to decide initial child custody issue under the UCCJEA. Further, the UCCJEA provision governing determination of child's home state when child was less than six months of age did not apply solely to children who were older than six months or require that child had continuously lived from birth until six months of age.
CHILD SUPPORT - AGREEMENT - UNCONSCIONABLE
Poirier v. Demasi, 201 A.D.3d 977, 2022 N.Y. Slip Op. 00448 (New York Supreme Court, Appellate Division, Second Department, January 26, 2022)
Father filed action to vacate child support provisions set forth in stipulation of settlement and judgment of divorce as violative of the Child Support Standards Act nd as unconscionable. Mother filed counterclaim for an award of child support arrears. Held: Sorry. An agreement, however, is not unconscionable merely because, in retrospect, some of its provisions were improvident or one‑sided. Here, the plaintiff failed to establish, prima facie, that the child support provisions of the stipulation and judgment of divorce were unconscionable.
CHILD SUPPORT - MODIFICATION - MEDICAL EXPENSES
The mother established a material and unforeseen change in circumstances since the judgment of divorce and original child‑support order which warranted modification of father's child‑support obligation. The mother provided extensive testimony regarding how the child's autism‑spectrum‑disorder diagnosis had affected her needs, and therefore her expenses, as she got older; the mother submitted a financial statement reflecting child's expenses, receipts for items purchased for child, child's education and medical records; testimony from the child's opined regarding the child's specific needs and abilities surrounding her diagnosis; the mother provided further support that the child's current expenses were unforeseeable at the time of the parties’ divorce.
DIVORCE - JUDGMENT - CONSTRUCTION
This month’s winner of the frivolous appeal award. The judgment provided “[Lessard] is awarded an absolute decree of divorce from [Johnson] on the grounds of irreconcilable differences, all in accordance with the provisions of the North Dakota Century Code.” The judgment also specifically states that “[e]ach party is free to remarry at any time after entry of Judgment herein.” Johnson argued that the district court only granted Lessard a divorce, failed to grant both parties a divorce, and thus the court lacked jurisdiction to take any further action. Held: Are you friggin’ kidding me? “Johnson's reading of the judgment to grant Lessard a divorce from Johnson but not grant Johnson an award of divorce from Lessard is nonsensical and frivolous. We conclude Johnson's argument on appeal is flagrantly groundless, devoid of merit and demonstrates persistence in the course of litigation evidencing bad faith. We therefore order Johnson pay attorney's fees[.]”
(Ed. note: Come for the frivolity, stay for the rest of the unsupported arguments. There are plenty.)
PROPERTY DIVISION - FACTORS - TAX CONSEQUENCES
The husband argued that the trial court erred regarding the value of the marital share of his ownership interest in PriceWaterhouseCooper (PWC) “by not appropriately considering the tax consequences to the parties in the equitable distribution of this asset.” Specifically, he contended that because he will be liable for taxes on the entirety of his ownership interest when he receives payment for it from PWC, the trial court was required, as a matter of law, to reduce wife's share of the asset by some amount. Held: No, a trial court may be required to consider tax consequences, but this “consideration” does not require a trial court to reach a particular result or to reduce the award in light of the taxes that will be paid, at some point, by one of the parties.
PROPERTY DIVISION - FACTORS - HOMEMAKER SERVICES
Macklin v. Johnson, Nos. 18‑FM‑976 & 18‑FM‑1153 (District of Columbia Court of Appeals, February 10, 2022)
“The husband suggests that even if monetary contributions are a basis to award a spouse an equitable interest in the other's separately‑held property, homemaker services—childrearing, cooking, cleaning, daily chores, etc.—are not. Our precedents have not resolved this issue. Today, we hold as a matter of first impression that substantial homemaker services can indeed entitle a spouse to an equitable interest in real property purchased by the other spouse before the marriage and used as the family home.”
SPOUSAL SUPPORT - INCOME - IMPUTED INCOME
The trial court imputed a yearly income of $28,000 to the wife, based on the salary the wife made nineteen years ago when she last worked as a teacher. Held: Trial court, you misconstrued Brennan v. Brennan, 184 So. 3d 583 (Fla. 4th DCA 2016), to say that you can’t impute income at a level higher than a party ever earned. The proper amount to impute to the wife would be what she could earn now, based on the wife’s qualifications and the current job market. Remand to determine that amount.
In its final judgment, the trial court found Former Wife to be in “good physical and mental health” and “immediately self‑supporting” but that she “chooses not to maximize her earning potential.” To that end, the court wrote that although Former Wife's real estate license had been reinstated since 2013 (the first year of the marriage), she was voluntarily unemployed and had failed to exert a good faith effort to become gainfully employed as a full-time real estate agent. The court then imputed an annual income of $51,554 to Former Wife, which, according to the trial testimony of Former Husband's expert, not only was in the low end of the range of income that he opined that Former Wife could immediately earn as a realtor, but was also the median income for a licensed real estate agent, according to the United States Census Bureau. Held: Yeah, that’s sufficient evidence to impute income to the Former Wife.
LAW REVIEW ARTICLES OF INTEREST
Sylvie Armstrong, Commercial Surrogacy: Building Families Outside of Family Law, 33 Hastings J. Gender & L. 3 (Winter 2022)
Dona Playton, The Hybrid Guardian Ad Litem: Adopting Standards of Practice to Improve the Quality of Representation for Children in Custody Cases, 22 Wyo. L. Rev. 103 (2022)
Jennifer P. Schrauth, She's Got to Be Somebody's Baby: Using Federal Voluntary Acknowledgments to Protect the Legal Relationship of Married Same‑Sex Mothers and Their Children Conceived Through Artificial Insemination, 107 Iowa L. Rev. 903 (January 2022)
Ruth Zafran, Step‑Parent as Fiduciary, 25 Lewis & Clark L. Rev. 1183 (2022)
Law and Contemporary Problems, Duke Law, Volume 5, Issue 1 (2022): Sex in Law
NEWS ITEMS OF INTEREST
Patricia Fersch, Should All States Adopt ad Presumption of Joint Custody? (Forbes, Feb. 21, 2022)
If you have a case, law review article, or news item you think is worthy of note, feel free to drop me a line at [email protected]