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March 19, 2024 Vol. 28, No. 1

January 2024 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?

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(Editor's Note: Some cases may be from December 2023, as they were not posted to Westlaw until after I prepared the December 2023 update on January 15, 2024.) 

CHILD CUSTODY - JURISDICTION - UCCJEA - HOME STATE 

Phillip G. v. Korbin Steiner in and for County of Maricopa, No. 1 CA-SA 23-0187 (Arizona Court of Appeals, Division 1, December 21, 2023):

The juvenile court lacked jurisdiction under the UCCJEA to make an initial custody determination. The Department commenced these proceedings with its first ex parte custody motion on August 14, 2023, which became the pertinent date for jurisdiction. On that date, Child lived in Ohio and had done so since birth, making Ohio her home state, not Arizona. The Department repeatedly admitted as much in its filings in the juvenile court. For example, the Department's response to Father's motion to dismiss said, “The Department acknowledges that Arizona was not [Child's] home state on the date of the commencement of the proceeding.” That acknowledgement should have ended the juvenile court's initial custody inquiry. But the superior court thought it could make an initial custody determination because judges in Ohio declined to accept jurisdiction. That was wrong for two reasons. First, the timing was off. Jurisdiction must exist when proceedings start. In this context, then, the juvenile court could only determine initial custody if the Ohio courts had declined jurisdiction prior to the commencement of dependency proceedings in Arizona. That did not happen—the juvenile court conferred with the Ohio judges after giving the Department initial custody. No court in Ohio (or anywhere else) declined jurisdiction prior to the Arizona proceedings beginning on August 14, 2023. Second, important procedures were lacking. Both non home state grounds for initial custody jurisdiction require a foreign court to decline jurisdiction[.]...The juvenile court's discussions with the Ohio judges were insufficient to trigger jurisdiction because the resulting decisions denying jurisdiction did not follow the UCCJEA's procedural requirements for doing so. There is no indication the Ohio judges had formal proceedings pending regarding Child or determined within any such proceedings that Ohio was an inconvenient forum using the factors listed in the UCCJEA. 

CHILD CUSTODY - MODIFICATION - MORAL DEFICIENCY - “ONLYFANS”

Killebrew v. Gardner, No. 1927 EDA 2023 (Pennsylvania Superior Court, Jan. 3, 2024):

Does anyone remember the 1996 movie “Striptease” with Demi Moore? (From Wikipedia: “Former FBI secretary Erin Grant loses custody of her seven year old daughter Angela to her ex husband Darrell, having recently lost her job because of his arrest record.... To obtain the $15,000 needed to afford an appeal to retrieve her, Erin becomes a stripper at the Eager Beaver strip club in Miami.”) I remember thinking at the time that becoming a stripper was probably not the way to win a custody fight. Well, I might have been wrong. In this case, the mother filed for modification of custody, alleging that the child was involved in two automobile crashes while being driven by Father's wife. At the hearing, the father presented evidence that Mother had posted sexually explicit photographs of herself on the “OnlyFans” website. The trial court issued an order, upon the recommendation of the hearing officer, providing that Mother would have no contact with Child pending a scheduled forensic interview with the child. In the event that the forensic interview revealed that Child had no awareness of Mother's OnlyFans activity, the order authorized supervised telephone communication with Mother and Child but no in person contact pending a future court order. Alternatively, if Child did indicate awareness of such activity, then Mother would be permitted no contact with Child at all. The order further provided that Mother was required to delete her OnlyFans account and submit to a psychological evaluation and follow any recommendations provided to her in that evaluation. After the mother complied, she moved for a return to joint custody, which the court granted. Mother appealed. Held:

The court comprehensively considered the evidence adduced at trial concerning Mother's OnlyFans usage and fully addressed Father's arguments that Mother's past behavior on the site negatively reflected on her ability to parent Child. The court's factual findings that Mother created her OnlyFans content when Child was not present in her house, Child was unaware of Mother's activities on the site, and such activities did not pose a danger to Child's safety are supported by the record. As an appellate court, we may not disturb the trial court's reasonable conclusion, supported by competent evidence, that Mother's OnlyFans activity did not weigh against an award of custody in her favor. [Citations omitted.] Moreover, we agree with the trial court's rejection of Father's request that the court consider Mother's purported moral deficiencies as a result of her OnlyFans usage. As the trial court explained, a parent's morality is not an enumerated custody factor. Furthermore, this Court has repeatedly rejected consideration of a parent's morality or sexual lifestyle when fashioning a custody award. ... Likewise, here, where the trial court found that Mother's past usage of OnlyFans to earn supplemental income was not a detriment to her parenting of Child or to Child's safety, the court properly declined to consider this issue.

CHILD SUPPORT - INCOME - EMPLOYER PAID HEALTH INSURANCE

Howard v. White, No. And-21-131, 2024 ME 9 (Maine Supreme Court, January 25, 2024):

An “in kind payment,” included as gross income for child support purposes, is typically in lieu of a direct monetary payment. The party seeking to include a fringe benefit in “gross income,” for child support purposes, must offer proof, beyond the existence of the benefit, that a benefit actually reduces the other parent's personal living expenses, and the amount of that reduction. The value of father's employer paid health insurance did not count as an in kind benefit that increased father's gross income for child support purposes absent any evidence that father's personal living expenses were reduced by his employer's contributions to his health insurance premiums.

DIVORCE PROCEDURE - ABATEMENT 

Roik v. Roik, No. A-2522-21O (New Jersey Superior Court, Appellate Division, January 18, 2024):

Husband filed complaint for divorce against wife, and parties negotiated a matrimonial settlement agreement (MSA) and agreed that the MSA would be incorporated into a judgment of divorce. Husband died prior to uncontested divorce hearing date and entry of final judgment. The action abates, right? Not so fast. The parties’ son, as executor of husband's estate, moved to substitute estate as real party in interest, enforce MSA, for a constructive trust, or alternatively to intervene in divorce litigation. Wife opposed motion and filed cross motion to dismiss the divorce. The trial court granted wife’s motion, and the executor appealed. Held: Overwhelming evidence supported the finding that a final judgment would have been entered prior to husband's death in divorce proceedings, but for scheduling delay of divorce hearing, and thus supported entry of final judgment incorporating matrimonial settlement agreement (MSA), which husband and wife signed prior to husband's death. Wife's reasons for wanting divorce hearing as opposed to divorce on the papers was based on her understanding it would be more cost effective and a desire to give associate representing her some courtroom experience, wife settled case despite knowing husband did not own life insurance policy, and there was no evidence that wife planned on objecting to either entry of judgment or MSA. 

PARENTAGE - MARITAL PRESUMPTION

B.C. v. C.P., No. 8 WAP 2023 (Pennsylvania Supreme Court, January 29, 2024):

Man with whom woman had an affair during her marriage filed a complaint to establish paternity of child who was born during that marriage to her husband. The trial court refused to apply the marital presumption. Held: The trial court erred when it declined to apply the presumption of paternity, namely that a child born to a married woman is the child of the woman's husband, on ground that any damage to marriage was “water under the bridge,” as the couple had reconciled with complete awareness of the events that had occurred. The marital couple had already acknowledged extramarital affair, subsequent birth of child, and their marital separation, and although marital couple had separated prior to the filing of the paternity action, they had reconciled by the time the action was litigated. Hence, the trial court erred by giving primary importance to couple's marital separations, which occurred prior to the filing of paternity action by mother's former affair partner, while giving no substantive consideration to the intact status of couple's marriage at time paternity action was litigated. 

PROPERTY DIVISION - CLASSIFICATION - IRREVOCABLE TRUST 

Gartrell v. Gartrell, No. CL-2023-0288 (Alabama Court of Civil Appeals, January 12, 2024):

Generally, the assets of an irrevocable trust are considered the property of a third party, for the purpose of equitable distribution in a divorce proceeding. Here, the corpus of a trust and trust income received by the husband as a beneficiary of a trust did not qualify as marital property subject to equitable division, in divorce proceeding. The wife did not argue for dissolution of the trust, and no trust assets were ever distributed to the husband, so the trust assets remained the property of a third party and, thus, were not subject to equitable division, and the wife had no evidence that the trust distributions were used to pay for marital expenses. 

PROPERTY DIVISION - FROZEN EMBRYO 

Freed v. Freed, No. 23A DC 129 (Indiana Court of Appeals, January 26, 2024):

Following dissolution of marriage between mother and father, mother petitioned to be awarded parties' cryopreserved pre embryo, which was created and frozen prior to dissolution of marriage, for purpose of implantation. The trial court found mother's interest in using pre embryo by attempting to implant it outweighed father's interest in avoiding parenthood, and awarded mother the pre embryo. Father appealed. Held: In resolving disagreements over a couple's cryopreserved pre embryos after that couple divorces, a court should first look for an enforceable agreement regarding the disposition of the pre embryos in the event of divorce. In the absence of enforceable agreement regarding the disposition of pre embryos in the event of divorce, the court should seek to balance the parties' interests. A contemporaneous consent approach, whereby cryopreserved pre embryos are stored until parties reach an agreement, is not appropriate approach in resolving disagreements over a couple's pre embryos after that couple divorces, because the parties will likely never agree. The trial court here properly considered appropriate factors in weighing parties' interests, and thus evidence was sufficient to support trial court's finding that mother's interest in using pre embryo for implantation outweighed father's interest in avoiding parenthood. The trial court's error in finding that father was relieved of potential burden of child support in awarding pre embryo to mother for implantation was harmless. 

PROPERTY SETTLEMENT AGREEMENT - UNCONSCIONABILITY, DURESS 

Amoia v. Amoia, 222 A.D.3d 1386, 202 N.Y.S.3d 615, 2023 N.Y. Slip Op. 06632 (New York Supreme Court, Appellate Division, Fourth Department, December 22, 2023):

Parties’ property settlement agreement was properly set aside on the grounds of unconscionability and duress where: (1) husband presented agreement, prepared by his attorney, to wife for signing, agreement provided that wife would receive approximately $38,000 annually in child support and $22,000 annually in spousal support with no interest in marital residence and its furnishings, no interest in marital share of business and real property, and no interest in stock account worth approximately $178,000, husband had significant annual earnings while wife was not employed, and wife was not represented by counsel when agreement was signed; (2) video taken when husband presented agreement to wife showed that husband did most of talking and wife said very little, wife often appeared surprised, distraught, and emotional, and husband made threats of wife losing custody, parties' children learning of wife's indiscretions, and publication of private, personal communications and pictures sent by wife to male friend, together with threats of likely criminal prosecution. 

(Ed. Note: See also Sleiman v. Sleiman, 222 A.D.3d 1333, 202 N.Y.S.3d 583, 2023 N.Y. Slip Op. 06609 (New York Supreme Court, Appellate Division, Fourth Department, Decmeber 22, 2023)

(terms in separation agreement were unconscionable and the product of overreaching by husband, in divorce proceeding, where husband was represented by counsel but wife was not at time parties entered into agreement, neither the agreement nor pretrial discovery included full disclosure of husband's finances yet agreement required wife relinquish her equitable share in almost all marital property, including any interest in husband's business, agreement did not provide wife with any child support for the parties' two minor children, agreement did not provide maintenance for wife, and agreement stated that husband would automatically obtain full custody of parties' children if wife became engaged or remarried).) 

SPOUSAL SUPPORT - INCOME - IMPUTED INCOME

Breen v. Breen, 222 A.D.3d 1202, 202 N.Y.S.3d 478, 2023 N.Y. Slip Op. 06566 (New York Supreme Court, Appellate Division, Third Department, December 21, 2023):

An interesting case on imputing income, because the court used two different method for imputing income, one for the husband, one for the wife. For the wife, the court imputed $15,000, based upon: (1) her most recent tax return, (2) that the wife had been a homemaker since the birth of the parties' oldest child in 1991, and (3) that her teaching certification had long lapsed and that she had only held part time jobs outside the home on a sporadic basis. For the husband the court imputed $99,281, the New York State Department of Labor statistics, based upon: (1) the husband’s employment record, showing that in 2014, the husband accepted a position with a state agency, initially earning an annual salary of $90,000, and climbing to $106,503 by his departure in June 2019. At that time, the husband accepted a position with a different state entity earning an annual salary of $150,000, (2) the husband conceded that he was terminated for cause from that position during the pendency of the trial, and (3) the court noted the husband's retirement age and declined to impute that $150,000 income to him. Rather, the court properly exercised its discretion in using New York State Department of Labor statistics to impute $99,281, the median wage for an attorney in the Capital Region, as income to the husband. This was not an abuse of discretion.

(Ed. Note: See also Mohamed v. Abuhamra, 222 A.D.3d 1344, 2023 N.Y. Slip Op. 06614 (New York Supreme Court, Appellate Division, Fourth Department, December 22, 2023))
(trial court did not abuse its discretion using husband’s last produced income tax return to impute income, where husband hid bank accounts, transferred funds, emptied safe deposit boxes, and schemed with his brother and a friend to under report his financial status and income).) 

SPOUSAL SUPPORT - TERMINATION - COHABITATION 

In re Marriage of Larsen, No. 1 23 0212, 2023 IL App (1st) 230212 (Illinois Appellate Court, First District, Second Division, December 29, 2023:

Ex husband filed a petition to terminate spousal maintenance, alleging that ex wife was cohabiting with third party on a resident, continuing conjugal basis and that the relationship constituted a de facto marriage. Held: Nope. The evidence showed that ex wife and third party often did not spend time with each other during the week, that they did not share a residence, there was no evidence of third party taking out garbage, doing laundry, or other everyday household chores one would expect a partner to do in marital like relationship, and evidence showed that they did not share any joint financial accounts of any kind and that there was active choice by both ex wife and third party to not further their relationship in numerous ways, emotionally and practically. 

(Ed. Note: See also Meeker v. Meeker, No. COA22 931 (North Carolina Court of Appeals, January 2, 2024)
(competent evidence supported trial court's finding that ex wife was not cohabiting with another man, even though ex wife had engaged in sexual relations with the man earlier in their relationship and did stay most nights at his home for two years; sexual relationship between them did not continue, she stayed over most nights to care for him, as the man's mental health was deteriorating, they did not show any public displays of affection, share a room, or share expenses, there was no mutual assumption of marital duties, rights, or obligations, and ex wife maintained separate residence and did not financially benefit from relationship);

In re Marriage of Saunders, No. 3 23 015, 2024 IL App (3d) 230151 (Illinois Appellate Court, Third District, January 9, 2024)
(trial court determination that former wife engaged in a de facto marriage with boyfriend, which warranted termination of former husband's maintenance obligation to former wife, rather than an intimate dating relationship, was against the manifest weight of the evidence; while former wife was involved in a dating relationship with boyfriend, they did not comingle finances, they maintained separate homes, former wife never met boyfriend's father, even though he lived next door to boyfriend, they never did chores together, boyfriend never did laundry at former wife's house, and boyfriend married someone else less than two months after his relationship with former wife ended).)

THIRD-PARTY VISITATION - “STEP-PARENT”

Matter of Satas, No. 2021-0419, 2024 NH 4 (New Hampshire Supreme Court, January 24, 2024):

Generally, the assets of an irrevocable trust are considered the property of a third party, for the purpose of equitable distribution in a divorce proceeding. Here, the corpus of a trust and trust income received by the husband as a beneficiary of a trust did not qualify as marital property subject to equitable division, in divorce proceeding. The wife did not argue for dissolution of the trust, and no trust assets were ever distributed to the husband, so the trust assets remained the property of a third party and, thus, were not subject to equitable division, and the wife had no evidence that the trust distributions were used to pay for marital expenses. 

TORTS - INTENTIONAL INTERFERENCE WITH CUSTODIAL RIGHTS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Glegg v. Hurk, No. 4D2023-0026 (Florida District Court of Appeal, Fourth District, January 10, 2024):

Father brought tort action against mother and stepfather, alleging intentional interference with custodial rights and intentional infliction of emotional distress (IIED) arising from stepfather's alleged conspiracy with mother to keep then teenaged daughter in Florida rather than having her return to Canada. Held: Alleged actions or inactions of stepfather, including providing housing and transportation for daughter and failing to intervene in mother's relationship with daughter, did not constitute intentional interference with custodial rights, and were nowhere near the level of outrageous conduct necessary to establish father's claim for intentional infliction of emotional distress (IIED) relating to father's custodial rights, despite father's contention that stepfather's conduct was a conspiracy to engage in “kidnapping” of daughter, who stayed in Florida rather than returning to father's custody in Canada; father's contention was wildly exaggerated, stepfather was not involved in relationship between daughter and her parents, and stepfather left all decisions relating to custody and daughter's residence to mother and father. 

LAW REVIEW ARTICLES OF INTEREST: 

Joshua Zitzer, Family Advocate Family Advocate, Winter 2024, Vol. 46, No. 3: Addiction and Other Impairments.

Samantha Lamka, Empowering Children's Rights Where They Matter: Implementing Child Inclusive Mediations in Divorce Proceedings, 39 Ohio St. J. on Disp. Resol. 149 (Dec. 2023)

Makaela Stevens, When the Child Adopts the Parent: Considering Attachment and the Psychological parent Doctrine in Kansas Adoptions, 72 U. Kan. L. Rev. 247 (Dec. 2023)

Stephanie L. Tang, Consideration of Ameliorative Measures in International Child Abduction Cases Post-Golan, 54 Seton Hall L. Rev. 687 (2024)

NEWS ITEMS OF INTEREST 

Celebrity News
Esther King, Jeannie Mai Asks Judge Not to Enforce Prenup with Ex Jeezy, Citing 'Concerns' She Didn't Have Time to Review (People, January 19, 2024) (Ed. Note: Who are these people?)

Kevin Costner, Christine Baumgartner Divorce Final (TMZ, February 15, 2024)

Other New Items of Interest
Who Needs Cupid? Professors Discuss the Legal Benefits and Challenges of Singlehood (featuring the incomparable Naomi Cahn) (University of Virginia Law School, February 9, 2024)

Sarah Cooper, I Lost Custody of My Dog (posted to YouTube February 13, 2024)

Hillary Frey, In Defense of Divorce (Slate, February 15, 2024) (discussing This American Ex-Wife by Lyz Lenz)

Elliot Haspel, The Paradox of Stay-At-Home Parents (The Atlantic, February 9, 2024)

Neal Augenstein, [New] D.C. Law Removes Waiting period Before Divorce (WTOP News, February 5, 2024)