January 2021 Case Update

AGREEMENTS - PREMARITAL AGREEMENT - CONSTRUCTION

Thompson v. Wolfram, No. 19A‑DR‑2622 (Indiana Court of Appeals, December 22, 2020)

The increase in value of the husband’s retirement accounts during the marriage was marital property subject to equal division upon divorce, even though the parties had a premarital agreement defining separate property, which included retirement accounts. The agreement contained a provision that assets other than those specifically provided in agreement were marital assets, and (here’s the kicker) the agreement was silent as to how any increases of any kind in retirement accounts should be treated. 

CONTEMPT - REMEDY

Stone v. Stone, No. A20A1814 (Georgia Court of Appeals, January 29, 2021)

How far can a court go to enforce a divorce judgment’s provisions in a contempt proceeding? The divorce decree awarded the use, possession, and 1/2 interest in residence. The husband later filed a contempt against the wife, alleging she failed to pay her share of the taxes, insurance, and homeowner fees relating to the residence. The decree did not specify a remedy if the wife failed to make the required payments, and neither the divorce decree nor the settlement agreement mandated the sale of the residence for non‑compliance. The trial court erred in ordering the sale of the home.

CHILD CUSTODY - MODIFICATION - FAILURE TO VACCINATE

In re Marriage of Crouch, No. 19CA2084, 2021 COA 3 (Colorado Court of Appeals, January 14, 2021)

Father moved to modify joint medical decision‑making responsibility as set forth in parenting plan incorporated into divorce decree, seeking to vaccinate children over mother's objections that were based in part on her religious beliefs. Held: The father did not have an additional heightened burden to show substantial harm after the trial court found endangerment to children in remaining unvaccinated, in order for the court to grant the father's post‑divorce motion to modify joint medical decision‑making responsibility set forth in parties' parenting plan to allow him to vaccinate the children over the mother's objections that were based in part on her religious beliefs. Rather, that burden was only relevant to show a compelling state interest under a strict scrutiny analysis, which was inapplicable when allocating decision‑making responsibility between parents as opposed to the government interfering with a parent's constitutional right.

CHILD CUSTODY - HAGUE CONVENTION - MATURE CHILD

Avendano v. Balza, 985 F.3d 8 (United States Court of Appeals, First Circuit, January 11, 2021)

Mother filed petition for return of her minor son to Venezuela pursuant to the Hague Convention on Civil Aspects of International Child Abduction and its implementing statute, the International Child Abduction Remedies Act (ICARA). The federal district court denied the petition, and the mother appealed. Held: The district court could honor the wishes of minor child to remain with his father in United States, under the “mature child exception” to mandate of return. The eleven-year old child was clear, consistent, and rational about his desire to remain in the United States with his father, he spoke both positively and negatively about his life in Venezuela, about how the socio‑political conditions in Venezuela were poor and included food shortages, and there was no showing that the child's expressed preference to remain was product of father's undue influence. 

CHILD CUSTODY - FIRST AMENDMENT - GAG ORDER

S.B. v. S.S., 243 A.3d 90 (Pennsylvania Supreme Court, December 22, 2020)

Gag order prohibiting mother and counsel from publicly speaking about custody case via media and online, prohibiting them from directing or encouraging others to speak publicly about case, and requiring removal of publicly‑posted information about case including video of online press conference with link to reproduction of child's testimony and forensic interview was content neutral, and thus strict scrutiny standard did not apply to First Amendment free speech challenge to gag order, which followed grant of sole legal and physical custody to father who was subject of unfounded sexual abuse allegations. The restrictions were not motivated by hostility toward message and targeted only method of communication for purpose of protecting child's psychological well‑being and privacy.

MARRIAGE - COMMON LAW MARRIAGE - SAME-SEX MARRIAGE

LaFleur v. Pyfer, No. 19SC1004 (Colorado Supreme Court, January 11, 2021)

Husband filed a dissolution of marriage petition, alleging that he had entered into a common law marriage with his same‑sex partner when they held a ceremony before family and friends and exchanged vows and rings in 2003 (before Obergefell). “We accepted jurisdiction over this case ... to address whether, in light of Obergefell, a same‑sex couple may prove a common law marriage entered in Colorado before the state recognized same‑sex couples’ fundamental right to marry.” Held: “We hold that a court may recognize a common law same‑sex marriage entered in Colorado before the state recognized same‑sex couples' fundamental right to marry.”

(Ed Note: Most states have reached this result. An outlier is South Carolina’s Swicegood v. Thompson, which said no.) 

SPOUSAL SUPPORT - TERMINATION - COHABITATION

Fletcher v. Feutz, No. 566, 2019 (Delaware Supreme Court, January 22, 2021)

The Family Court's holding that the wife and her partner were not cohabiting was sufficiently supported by the record. The record showed that they routinely spent weekends together, vacationed together, entertained, helped each other with household chores, had keys to each other's separate homes, and would enter the home if the other was not able to get the door. Additionally, the wife’s partner is named as a beneficiary for her burial policy. Conversely, the partners did not contribute money to each other's mortgage or utilities, spend the majority of their non‑working time apart, did not leave personal items at each other's house, and asked permission to visit the other's home. The couple also lacked any joint account, or shared expenses, of any kind.

VISITATION - THIRD PARTY - GRANDPARENT

Blackaby v. Barnes, No. 2020‑SC‑0004‑DGE (Kentucky Supreme Court, January 21, 2021)

The paternal grandfather petitioned for visitation with his grandchild, after his son's parental rights had lapsed by virtue of his death, and after an adoption by the child's maternal grandmother had been finalized. Held: The family court was required to consider whether visitation with her paternal grandfather was in child's bests interests, even though neither the adoption nor the grandparent visitation statutes required notice to grandparents of a pending adoption petition initiated by another grandparent or the consideration of the child's best interests. The grandfather’s visitation with the child had gone uninterrupted after the adoption had been finalized, and he petitioned for visitation only after the grandmother suddenly halted his regular visits with the child.

NEWS ITEMS OF INTEREST

• Judge orders Derek Chauvin, the officer charged in the murder of George Floyd, and his wife to file rredacted public versions of confidential documents they filed under seal in December, noting the distinct possibility that Chauvin was transferring all his assets to his wife to avoid liability for a civil judgment in the Floyd case. Read Article.
• In Britain’s priciest divorce, Tatiana Akhmedova is trying to recoup part of a $615 million judgment owed by her ex‑husband by suing her elder child, who she says has been shielding his father’s assets. Read Article
• A California man killed himself and his 9-year-old son after a custody dispute with the boy’s mother about whether the child should be vaccinated. Read Article