(Editor's Note: Some cases may be from January 2023, as they were not posted to Westlaw until after I prepared the January 2023 update on February 15, 2023.)
AGREEMENTS - PREMARITAL AGREEMENTS - CONSTRUCTION
Gray v. Fidelity Brokerage Services, LLC, No. 119,317, 2023 OK 7 (Oklahoma Supreme Court, February 8, 2023):
The children of a profit‑sharing plan's sole participant (now deceased) brought an action against a brokerage firm for injunctive relief and an order declaring the children the primary beneficiaries of the plan and of the participant's individual retirement account (IRA), and an order that the participant's surviving wife counterclaimed for an order declaring her the sole beneficiary based on the order of succession be dismissed. Held: The surviving wife’s premarital agreement with the deceased participant barred the wife from making any claim to the plan's assets. The plan was specifically identified in the agreement, the agreement specified that the wife and the participant acknowledged that the majority of the participant's worth at the time of the marriage was in the plan, plan and its value were known to wife when antenuptial agreement was executed, agreement stated that plan was participant's separate property, the same as it would have been if he had remained unmarried, and the participant had exclusive possession of rights to the plan.
AGREEMENTS - PREMARITAL AGREEMENTS - INDEPENDENT KNOWLEDGE
Fordeley v. Fordeley, No. 2021‑T‑0020, 2023‑Ohio‑261 (Ohio Court of Appeals, Eleventh District, January 30, 2023):
A premarital agreement is enforceable only if the party claiming validity demonstrates that the challenging party entered into the agreement with the benefit of either full disclosure or his/her full independent knowledge of assets. Here, the trial court's determination that the parties’ premarital agreement was invalid on the grounds that the wife did not have full knowledge and understanding of the value the of husband's businesses when she entered agreement was not an abuse of discretion. Although the wife had done well in school and did bookkeeping, banking, and secretarial work for the businesses, the wife was 19 years old at time she entered agreement, the work provided wife with knowledge of nature and extent of the husband’s businesses but not their value, and the fact that expert testimony was necessary to value the businesses for purposes of division of assets supported the conclusion that the wife did not have full knowledge or understanding of the value of the businesses.
ATTORNEY’S FEES - CONTUMACIOUS CONDUCT
Condo v. Condo, 212 A.D.3d 573, 182 N.Y.S.3d 98, 2023 N.Y. Slip Op. 00391 (New York Supreme Court, Appellate Division, First Department, January 31, 2023):
The Special Master (SM) had the legal authority to award legal fees, such authority deriving from a contractual agreement between the parties that by its plain language granted the SM authority not only to reallocate payment of her own fees if a party was uncooperative in the proceedings presided over by the SM, but also to award counsel fees for a “failure to cooperate” if a party, through their conduct, sought to obstruct or delay the process or cause the other party to incur unnecessary legal fees. The Appointment Order, read as a whole, evinces the parties' intent to grant the SM this broad authority to award fees in relation to any conduct, including litigation in other venues, that aimed to thwart the timely distribution of the marital artwork. The wife’s contumacious conduct is well documented. A fee award of $1,050,250 (you read that right) was warranted.
(Ed. Note: George Condo is a visual artist whose works are highly valued.)
CHILD CUSTODY - CONTEMPT - CALLING STEP-FATHER “DADDY”
The trial court ordered: “The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party's spouse or significant other in such a way, that party shall correct the Child.” The court held: “[W]e find this restriction to be a content‑based restriction because the purpose of the restriction was to limit the message that the Child conveyed through use of the terms "Mom" or "Dad" to denote a biological, familial relationship with the person rather than a non‑biological, familial relationship as exists in the case of a step‑parent. Therefore, this restriction is subject to the strict scrutiny standard.” Under that standard, the restriction must fail. “We cannot, however, agree that the restrictions the trial court placed on the Child's use of the terms "Mom," "Dad," of a derivative thereof, were narrowly tailored to further Pennsylvania's compelling interest absent a finding by the trial court that the use of the term "Dad" or "Daddy" to refer to Stepfather caused harm or will cause harm to the Child.”
(Ed. Note: The opinion also addressed whether the mother had the unilateral right to baptize the child over the father’s objection when the order was for joint custody. Nice discussion of the issue of parents’ rights to raise their children in their chosen religion.)
CHILD CUSTODY - CONTEMPT - PROPER SANCTION
“The only sanction the trial court levied against the father upon finding him in contempt for his failure to comply with visitation provisions in the previous custody judgments was to modify custody. Such a “punishment” is inappropriate, and the trial court erred in entering its “temporary order” awarding the mother sole physical custody of the child. Because the father has demonstrated that he has a clear legal right to the relief that he seeks in his petition, the petition is granted and the writ is due to be issued.”
CHILD CUSTODY - CONTEMPT - SOCIAL MEDIA POSTING
Hayes v. Hayes, 2023 Ark. App. 19, 659 S.W.3d 555 (Arkansas Court of Appeals, Division IV, January 25, 2023):
The parties’ property settlement agreement contained the following provision: “The Wife and Husband shall at all times in good faith endeavor to maintain in all the children respect and affection for the other party.” The standard order contained the following provision: “Welfare of Children: The children are to be kept in a proper and wholesome environment at all times. Both parties are enjoined and restrained from making derogatory remarks about the other parent in the presence of the child or children, and from allowing others to do so.” The father filed a motion for contempt alleging he married his girlfriend on June 4, and the parties’ eldest minor child was invited to attend but declined. The child then arrived at the wedding with the mother. The child posted a “Snap” on Snapchat from the car that stated, “[T]his may be really unhealthy but my dads getting married [right now] and instead of going to the wedding me, my mom and I are sitting outside the church waiting for them to leave so we can see how trashy her dress Is.” The father alleged that this was an example of an “ongoing and systematic effort” on the mother’s part to alienate the affections of the children from him and, further, that the mother “has improperly endorsed and approved, in concert, bad and hurtful conduct on the part of [the child] towards her father.” In addition to asking that a civil fine be imposed, the father asked the court to fashion a punishment to remedy this particular situation. At the conclusion of the hearing, the circuit court found the wife in contempt, orally ruling in part as follows:
The Court is making a finding that the plaintiff is in contempt of this Court. Her candid testimony today is a clear picture of that. It was her idea to take her minor daughters to the wedding of their father, and the reason she went to the wedding was to cut off who else she needed to cut out of her life, people that continued to have a relationship with the defendant need to be cut from her life. That is a clear contemptuous behavior. It's appalling. If my jail wasn't so full I might even put her in there. And so full of COVID. Just appalling behavior. Bad parenting.
The mother appealed. Held: Tacky [but is it really if the daughter already did not like dad’s new wife? I thought it might have been a nice bonding excursion for the mother and daughter - like an episode of Say Yes to the Dress], but not contempt.
The situation here involved an isolated incident—Jessica taking her daughters with her to watch from outside William's wedding. Although William's contempt petition alleged that the wedding incident was an example of an “ongoing and systematic effort” on Jessica's part to alienate the affections of the children from their father, the circuit court's ruling that found Jessica in contempt was based on the wedding incident. These orders on which the court found Jessica in contempt related only to the parties, not third parties, such as William's new wife. The Snap posted by [the child] was directed at the new wife, and neither Jessica nor William was aware of the Snap until the day after it was posted. Based on the evidence presented, William appears to have a good relationship with his children. While the children refuse to be around William's new wife and child, this is a choice that he has admittedly allowed and perpetuated by continuing to maintain separate houses and spending time with MC1 and MC2 only during his scheduled visitation.
CHILD CUSTODY - MEDIATED AGREEMENT - HAGUE CONVENTION - ENFORCEABILITY
In re Marriage of Mwinyelle, No. 2 CA‑CV 2022‑0057‑FC (Arizona Court of Appeals, Division Two, February 8, 2023):
The parties’ mediated agreement provided that “no parent shall be required to give consent to travel to countries that are not signer [sic] to the Hague convention.” Post‑mediation, the parties exchanged drafts of a final decree in which the father approved and adopted the mother’s redlined change of “Hague Convention” to the “Hague Abduction Convention.” However, the parties never agreed on a final version of the draft decree and the father moved the trial court to set aside this provision, inter alia, arguing that the Hague Convention provision regarding international travel with the children should be set aside because he had assented to the agreement with the “material understanding” that Ghana was signatory to the referenced Hague Convention. Held: The father has not met his burden of showing either that there was no mutual assent to the Agreement or that his unilateral mistake would make a provision unenforceable. He acknowledges that during mediation, Sharla “requested a term providing that the other parent's consent would be required before either parent could travel to countries that were not parties to the Hague Abduction Convention.” Examining the entire provision, which is the objective manifestation of the father’s assent to the contract, the parties agreed that any international travel required the other parent's consent—belying his argument that he believed he could travel to Ghana without the mother’s consent. Moreover, the term “Hague Convention” is not ambiguous placed in its context of a separation agreement provision governing international travel with the parties’ minor children and the mother’s stated intent during mediation for including the provision.
CHILD CUSTODY - ORDER - INJUNCTION - RENTING OUT THE CHILDREN’S ROOM
Gardner and Katherine McKenney are the parents of two children who were twelve and thirteen at the time of trial. Gardner contends that the trial court lacked the authority to enjoin him from renting out the children's bedrooms in their absence and that the evidence was insufficient to support the injunction. Held: Affirmed. Although the husband argued there was no evidence to support the trial court's implied finding that the room‑rental injunction is in the children's best interest, the evidence clearly supported the trial court’s finding that the injunction was necessary for the child’s mental health. (Read the case for the testimony concerning the child’s mental health.)
CHILD CUSTODY - VISITATION - IN LOCO PARENTIS
The former boyfriend filed a complaint to establish custody and visitation in loco parentis as to the former girlfriend's child. Held: Continuing the former boyfriend's in loco parentis status was not in the best interests of his former girlfriend's child, even though there was evidence that the former boyfriend and the child had a good relationship. The former boyfriend had not assumed all obligations incident to parental relationship, the former boyfriend's continued efforts at contact with the child contrary to the former girlfriend's consent, as well as his actions toward the former girlfriend, fell woefully short in minimizing the child's exposure to harmful parental conflict, the former boyfriend's parenting role with the child diminished significantly once the parties separated, and the child's school had issued a “stay away” letter to the former boyfriend because he had entered the school without permission in an attempt to contact child.
CHILD SUPPORT - UIFSA - FOREIGN ORDER
DCFS ex rel. Lannelongue-Navarro v. Lannelongue, No. 22‑CA‑220 (Louisiana Court of Appeal, Fifth Circuit, February 1, 2023):
The child was born in Spain; the parents married in Nevada but had physically separated by the time of the child’s birth. The mother, a resident and domiciliary of Malaga, Spain, represented by a Spanish pro bono attorney, filed a custody and support proceeding against the father in Spain. The Spanish court issued a judgment (the “Spanish Order”), which awarded custody of the then minor child and ordered child support to be paid by the father in the amount of _1,000 per month. The Spanish Order was made final, and no appeal had been filed within the time period allowed by law. The mother then began the process of registering the Spanish Order in the State of Louisiana, the father’s state of residence and domicile. The Jefferson Parish District Attorney's Office filed a Petition to Register the Child Support Order of Another State for Enforcement. The father filed his Notice of Objection to Registration of Foreign Order, contesting the registration of the Spanish Order on several grounds: (1) he first learned of the Spanish Order in October 2018, when contacted by Orleans Parish's Department of Children and Family Services, and he is not fluent in Spanish; (2) he questioned the child's paternity and argued that he was denied due process. (The father contended that he did not receive notice and was not given an opportunity to be heard, and he was not served with a petition or notice of the proceedings. He claimed the Spanish Order was obtained by fraud, and the mother and her family had his contact information. He also alleged that counsel for the mother contacted him earlier threatening legal action if he did not contact her to resolve the legal situation regarding the minor child.) Held: Louisiana had proper jurisdiction to issue a child support order against he father.
DIVORCE - FINAL ORDER - FIRST AMENDMENT RIGHTS
Kassenoff v. Kassenoff, 213 A.D.3d 822, 2023 N.Y. Slip Op. 00850 (New York Supreme Court, Appellate Division, Second Department, February 15, 2023):
During a pre-trial conference, the plaintiff's attorney proposed language for an order directing that “neither party shall contact the other party's employer, colleagues at work, anyone associated with their employment for any purposes whatsoever, and ... they shall not disparage, embarrass, or seek to interfere with that party's employment.” The defendant's attorney objected to the proposed language, noting that the plaintiff's employer was also the defendant's former employer, and contended that the restriction upon the defendant from contacting anyone associated with her former employer should be limited to a restriction on discussing “the plaintiff or the matrimonial [action], those issues.” Thereafter, the plaintiff's attorney submitted a proposed order to the Supreme Court which included provisions prohibiting the defendant from communicating with any employee of the plaintiff's employer “regarding the Plaintiff, ... the facts and circumstances of this divorce (in the broadest meaning of the terms), the facts and circumstances of the parties’ marriage prior to the filing of this divorce, or the parties’ children,” and further prohibiting both parties from “criticizing, denigrating or disparaging the other on any form of social media.” The court signed the order, and the defendant subsequently moved to vacate the order. Held: “Here, we agree with the defendant that the restrictions placed upon her communications with employees of the plaintiff's employer are “not tailored as precisely as possible to the exact needs of this case”. Specifically, the restriction prohibiting the defendant from discussing the children with any employee of the plaintiff's employer, which is a restriction never discussed or negotiated during the court conference that precipitated the settlement of the order dated May 25, 2021, was not necessary to prevent professional reputational harm to the plaintiff or financial or emotional harm to the children. Therefore, we vacate the restriction on the defendant's ability to discuss the children with any employee of the plaintiff's employer. We reject the defendant's contention that the remaining restrictions on her communications with employees of the plaintiff's employer, and the restrictions on the parties’ statements on social media, were constitutionally impermissible.”
DIVORCE - PROCEDURE - MOTION TO REOPEN
“New York's so‑called “plenary action rule” requires a party seeking to modify or vacate a separation agreement that survives a final judgment of divorce to file a plenary action on the contract instead of a motion to open, modify or vacate the divorce judgment. This certified appeal requires us to determine whether New York's plenary action rule is procedural or substantive for choice of law purposes. The trial court concluded that the rule was substantive and dismissed for lack of subject matter jurisdiction the motion, filed by the plaintiff, Elana Gerson, to open and set aside the final judgment of divorce. The Appellate Court agreed that the New York rule was substantive but disagreed that the trial court lacked subject matter jurisdiction and, therefore, concluded that the plaintiff's motion should have been denied instead of dismissed. Gershon v. Back, 201 Conn. App. 225, 253–54, 242 A.3d 481 (2020). We affirm the judgment of the Appellate Court.”
(Ed. Note: How was the case in Connecticut? After the New York divorce, both parties moved to Connecticut, and a modification action was filed in Connecticut to modify child support and spousal support. “Wife then filed a motion to open and set aside the divorce judgment, which is the operative motion at issue in this appeal. In her motion, the wife claimed that she had learned during the modification proceeding that the divorce judgment ‘was obtained through the fraudulent conduct of the defendant’ in that he ‘made material misrepresentations of fact to the court and to the plaintiff in his sworn financial statement provided at the time of the settlement.’”)
DIVORCE - PROCEDURE - SUBPOENA - CLERGY
The parties disagreed about whether they were married in 2017, with plaintiff stating that they were married, and defendant stating that the Coptic Orthodox Church Bishop “blessed” their relationship, but did not marry them. The Bishop moved to quash a subpoena, refusing to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place. The crux of the motion to quash was premised on First Amendment, for to would conflict the Bishop’s sincerely held religious belief that he, as clergy of the Coptic Orthodox Church, cannot testify in a non‑religious court “brother against brother.” Held: The Court does not have a sufficient factual basis to find that either (i) Bishop A.B. personally has a religious belief that he cannot come into a civilian court to testify “brother against brother,” or that (ii) even if he had such a belief, that it is applicable here, where he is not being asked to testify against a co‑religionist but instead to describe a public factual event, and both parties (the only people who could plausibly be considered to be a person “against” whom he is testifying) are instead asking him to testify about those facts.
INTIMATE PARTNER VIOLENCE - SECOND AMENDMENT
United States v. Rahimi, No. 21-11001 (United States Court of Appeals, Fifth Circuit, February 2, 2023):
We warned you! Alert readers will remember that I digested U.S. v. Perez‑Gallan, PE:22‑CR‑00427‑DC (United States District Court, Western District of Texas, Pecos Division, November 10, 2022) in the November case update. In that case, the court reasoned that because the framers didn't care about domestic abuse or intimate partner violence, well, those abusers can have all the guns they want! "[T]he historical record does not contain evidence sufficient to support the federal government's disarmament of domestic abusers. And without historical support, § 922(g)(8) does not overcome Bruen's presumption that the Second Amendment protects an individual's possession of a firearm. Thus, § 922(g)(8) is unconstitutional." To back up this nauseating conclusion, the court reasoned that in 1874, yes, 1874, "If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." The court also noted that "prominent domestic violence researchers agree that even into the early twentieth century, judges were "more likely to confiscate a wife beater's liquor than his guns."
The Fifth Circuit has reached the same conclusion in this case: a three‑judge panel of the federal Fifth Circuit Court of Appeals ruled that the federal prohibition on gun possession for people subject to domestic violence restraining orders (DVROs) is unconstitutional under the Second Amendment, holding that § 922(g)(8) “falls outside the class of firearm regulations countenanced by the Second Amendment.” Although the panel stated that the statute “embodies salutary policy goals meant to protect vulnerable people in our society,” it noted that “Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right.” Accordingly, the court concluded that § 922(g)(8) “is an ‘outlier[ ] that our ancestors would never have accepted.’ ”
For further commentary, see “Originalism Is Going to Get Women Killed” (Madiba Dennie, The Atlantic, February 9, 2023)
PROPERTY DIVISION - CLASSIFICATION - JOINT TITLE GIFT PRESUMPTION
Prior to the marriage, the wife purchased a residential property. After the parties married in 2012, both spouses and their children lived together in the house. In 2017, the couple were experiencing financial difficulties and decided to refinance the house to pay off other debts. As part of the refinancing, the bank prepared a deed and other documents. One of the documents she signed was a special warranty deed (the Deed) which added the husband’s name as a grantee. The wife testified she never asked the bank to add the husband’s name to the Deed and she did not intend to gift the husband a portion of the property. The trial court entered a final decree of divorce, concluding the house was the wife’s separate property. On appeal, the husband contends that the Deed transferred him a one‑half interest in the House as his separate property, and the wife claims that she owns the entire interest because she never intended to make a gift to him. Held: The Deed does not contain a separate property recital and does not create the separate property presumption as the husband contends. Further, the trial court could have concluded that the wife rebutted the presumption of a gift by testifying she had no donative intent and she only intended to refinance the house to pay off debts because of the financial issues in the marriage.
PROPERTY DIVISION - CLASSIFICATION - SPECULATIVE BENEFITS
Wife's prospective interest in receipt of retirement benefits pursuant to her law firm's partnership agreement was too speculative and, thus, was mere expectancy that did not constitute marital property subject to equitable distribution, in proceeding for dissolution of marriage; wife's right to future retirement income through law firm based on partnership agreement was not sufficiently concrete, reasonable, or justifiable, value could not be determined without speculation, as stream of payments involved variables, risks, and requirements that were not fixed and were impossible to determine, and retirement income was not carried as a liability by law firm, was not guaranteed, was not transferable, was not saleable, was not funded, and could be entirely eliminated at any time.
PROPERTY DIVISION - UNEQUAL SHARE
Matter of Marriage of Flores and Escalona, 324 Or. App. 235, 24 P.3d 540 (Oregon Court of Appeals, February 1, 2023):
The trial court did not abuse its discretion when it awarded the 60% of the marital property to the wife, i.e., three of five residences. The marital property comprised five residential properties, including wife's residence, one property located out of country, and a residence leased to the couple's adult children. The husband's past earnings were much greater than reported, he continued to maintain an active business for several days every week, despite claims of his age of 66 years and longstanding health problems, and the wife's income from housekeeping business was below minimum wage, had remained unchanged for years, and was durably low.
REPRODUCTIVE HEALTH SERVICES
United States of America v. Lauren Handy, No. 22-096 (CKK) (United States District Court, District of Columbia, February 6, 2023):
A judge’s power to bind is limited to the issue before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold.” So said Judge Friendly. This court thus opines that in Dobbs v. Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022), the Supreme Court did not hold that no provision of the U.S. Constitution confers a right to an abortion. The Supreme Court held only that the 14th Amendment does not confer such a right. Maybe the 13th Amendment’s prohibition of involuntary servitude confers the right. Let’s brief that, shall we?
SPOUSAL SUPPORT - ARBITRATION AWARD
The parties’ settlement agreement, which was incorporated into their divorce decree, provides: “Binding Arbitration; In the event that the parties disagree on the calculation of alimony to be paid by [Charles] to [Vinci] each year beginning on February 15, then and in that event, the parties will submit the issue to binding arbitration. The arbitration will be conclusive and binding upon the parties in any court of competent jurisdiction.” The husband objected to compelled arbitration, arguing the dispute arises not from a disagreement about the calculation of alimony, but rather concerns resolution of an ambiguity in the portion of the divorce decree providing for alimony. Specifically, the husband claims an ambiguity exists in the document as to how much alimony he owes following his retirement. “Charles frames the dispute as whether he is “required to pay alimony to [Vinci] at all since retiring from his employment with INPO, not how much does he owe her now that he is retired.” Charles’ attempt to create a distinction between the legal claim he seeks to be addressed and the one the parties agreed to arbitrate is mere semantics, not substance.” Judgment affirmed.
SPOUSAL SUPPORT - INCOME - COVID-19 BENEFITS
Husband's receipt of temporary COVID‑19 pandemic unemployment assistance benefits totaling approximately $16,085 was not “income,” for purposes of determining husband's ability to pay alimony to wife, in marital‑dissolution proceeding; both common knowledge at the time of trial court's decision regarding alimony and common sense indicated that husband was not going to continue receiving the temporary benefits, and the trial court did not find that the temporary benefits represented husband's earning capacity.
SPOUSAL SUPPORT - TRANSITION vs. REHABILITATIVE
Transitional spousal support addresses short‑term liquidity needs associated with splitting one household into two; rehabilitative spousal support addresses training, education, work‑readiness, and human capital development. Here, the trial court erred by awarding transitional rather than rehabilitative alimony to the husband. There was no evidence in this record that the husband needed transitional spousal support. He was awarded approximately $660,000 in the property settlement, including significant liquid assets held in several checking accounts. What the husband needed was sufficient time to improve his skills and retool his business plan to increase his income. That is what the district court's well‑reasoned rehabilitative spousal support award was shaped to do. This is not a case of transitional support but instead one of rehabilitative support, and the court of appeals erred in concluding otherwise.
TORTS - JURISDICTION OF DIVORCE COURT
Wife filed for divorce, and filed an amended complaint to a add tort claim for emotional and physical abuse. The magistrate judge granted the divorce on the grounds of irreconcilable differences, divided the parties’ real and personal property, and awarded spousal maintenance. The magistrate judge did not address the wife's tort claim. The husband and wife both appealed, and the district court remanded for consideration of the tort claim. On remand, the magistrate judge court awarded the wife damages for her tort claim. The husband appealed, and the district court affirmed. Husband appealed. Held: The magistrate judge lacked the authority in a divorce proceeding to decide the wife's separate tort claim, overruling Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988). While the magistrate judge had jurisdiction, the magistrate judge lacked authority in divorce proceeding to decide wife's separate tort claim for emotional and physical abuse in which she requested damages in excess of $10,000. The order limiting the case types which could be assigned to magistrate courts did not give a magistrate court the authority to decide civil cases seeking damages in excess of $10,000, and the tort claim was not ancillary to the divorce proceeding, as it did not aid, decide, or enforce the divorce or any divorce‑related matters such as spousal maintenance, child custody, child support, or community property disposition.