September 12, 2023 Vol 27, No. 1
January 2023 Case Update
Editor: Laura Morgan
(Editor's Note: Some cases may be from December 2022, as they were not posted to Westlaw until after I prepared the December 2022 update on January 20, 2023.)
CHILD CUSTODY - DISCLOSURE OF MEDICAL RECORDS
Doe v. Walsh, No. Wal‑22‑107 (Maine Supreme Judicial Court, January 5, 2023):
On March 10, 2022, the court issued its judgment, which granted Doe a divorce due to irreconcilable differences. As to the children, the trial court ordered, inter alia, that Doe would have sole parental rights and responsibilities of the children and discretion as to when and how Walsh would have contact with the children. The court also ordered that Walsh “provide his counseling records to [Doe] through [a] supervised visitation agency to [help] convince [Doe] to allow visitation with the [children] and to help [Doe] know when and how this should occur.” Walsh timely appealed. Held: Too broad. The specific language used in the judgment is problematic because the term “counseling records” is overly broad. It could be interpreted to include information that meets the definition of psychotherapy notes, which Walsh does not have an absolute right to access under federal law. Thus, Walsh may not be able to comply with the court‑ordered condition precedent to having contact with his children. “[W]e vacate that portion of the judgment so that the trial court can narrow what is required of Walsh before he may have contact with his children. Any order entered should allow Doe to evaluate Walsh's pertinent mental health to determine when and how visitation should occur. The order must do so, however, without requiring Walsh to produce all his mental health records.”
CHILD CUSTODY - HAGUE CONVENTION - CONSENT TO REMOVAL - MATURE CHILD
Davis v. Lake, No. 6:22‑CV‑00050 (United States District Court, Western District of Virginia, December 22, 2022):
Father petitioned for the return of the parties' two children to Anguilla, alleging mother's wrongful relocation to the United States under Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and International Child Abduction Remedies Act (ICARA). Held: Mother demonstrated by preponderance of evidence that father consented in the children's removal from Anguilla to the United States, where mother told father about her engagement, intended marriage, and plan to relocate to Virginia with the children more than two years before the move, father provided his consent to the move, and father offered to pay for a plane ticket for one of the children. Further, the parties' oldest child, who objected to being returned to Anguilla, had attained age and maturity at which it was appropriate to take into account her views, where child was 11 years old, was doing well in school, and was involved in local church and school activities, her testimony was based on specific aspects of her life that she found superior in the United States, rather than objection to return to Anguilla based on comfort in her new surroundings, and her objection did not appear to be product of mother's undue influence.
CHILD CUSTODY - FACTORS - RELIGION - FIRST AMENDMENT
Easterday v. Everhart, No. 22A‑DC‑1510 (Indiana Court of Appeals, January 6, 2023):
Mother was granted primary custody, with visitation to Father. Mother later moved for modification. After trial, the trial court ordered: “The Court finds that there has been a change in circumstances relating to legal custody. The Court finds that [Child's] parents hold very different views on religion. The Court having considered the evidence and in‑camera interview, finds that [Child] has made an independent well reasoned decision about her faith, which should be respected and encouraged. The Court finds that to allow [Child] to pursue and express her faith, that [Mother] should have sole legal custody of [Child] as well as primary physical custody. [Father] shall not discuss religion with [Child].” Father appealed. Held: There is “no authority ... which supports [a trial court's] conclusion that a substantial change in circumstances related to religion, without more, may support a modification of custody.... Here, the trial court's modification of legal custody in favor of Mother was based entirely on religion – Child expressed an interest in participating in religious activities at a church she attended with Mother. The trial court did not make a finding regarding, nor can we locate in the record, another substantial change in circumstances to warrant a change in legal custody. Therefore, we conclude the trial court erred4 when it awarded Mother sole legal custody of Child based solely on Child's desire to pursue and express her faith.”
CHILD CUSTODY - RELOCATION
Lojares v. Silva, No. 1D22‑981 (Florida District Court of Appeal, First District, January 4, 2023):
Mother of children, who was not married to children's father, was under no legal requirement under parental relocation statute to seek court order or consult father prior to moving to different county, and thus, trial court determination that father be designated majority and residential parent based on mother's failure to seek leave of court or to consult father prior to move was clear legal error; paternity had not been established at time when mother moved to different county, and mother was entitled to statutory presumption that mothers have all of the time‑sharing and sole parental responsibility prior to a paternity and timesharing determination.
CHILD CUSTODY - TRIAL - UNAVAILABLE WITNESS
South Carolina Department of Social Services v. Scott, Case No. 2019‑001084, Opinion No. 5957 (South Carolina Court of Appeals, January 4, 2023):
S.C. Code § 19‑1‑180 deals with hearsay by children. In particular, (B)(2)(a)(v) provides that (B) An out‑of‑court statement may be admitted as provided in subsection (A) if: (2)(a) the child is found by the court to be unavailable to testify on any of these grounds: (v) substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of videotaped deposition or closed‑circuit television. In this case, the family court abused its discretion when it admitted child victim's out‑of‑court hearsay statements. The testimony elicited was insufficient to support the court's finding that child was unavailable to testify due to substantial likelihood that child would suffer severe emotional trauma from testifying at the hearing or by means of videotaped deposition or closed‑circuit television. The expert's testimony that “it is possible” child would experience severe emotional trauma from testifying and that it was “more likely than not” child would experience trauma by testifying did not establish a substantial likelihood child would suffer severe emotional trauma from testifying.
CHILD CUSTODY - UNIFORM CHILD ABDUCTION PREVENTION ACT - FACTORS
In re Marriage of Badawiyeh, No. 22CA0174, 2023 COA 4 (Colorado Court of Appeals, January 12, 2023):
In a divorce case, the court entered a dissolution decree that ordered the father to surrender the children's passports to a neutral third party before travel, and to post a $50,000 bond with the court naming the mother as the beneficiary before an overseas trip. The court then denied the father's motion for post‑trial relief with regard to the foreign travel restrictions, and the father appealed. Held: The court is required under the Uniform Child Abduction Prevention Act (UCAPA) to make a determination of the existence of a credible risk of abduction by considering all risk factors, and may not rely solely on the fact that a country is not a Convention partner with the U.S. before it imposes abduction‑prevention measures against a parent.
CHILD CUSTODY - UCCJEA - TEMPORARY ABSENCE
Antonetti v. Westerhausen, No. 1 CA‑SA 22‑0205 (Arizona Court of Appeals, First Division, January 12, 2023):
Law school exam fact pattern to follow: Father, an Italian citizen, moved to Tunisia in 2007. Mother, an American citizen, moved to Tunisia in 2013. In December 2013, Father and Mother began a romantic relationship. In March 2018, their son was born in Tunisia, acquiring dual Italian and American citizenship through his parents. In February 2020, the parties traveled with the child to Italy for a vacation. While there, the Covid‑19 pandemic struck the country, and by the end of the parties’ planned vacation, the Italian government had imposed travel restrictions. Nonetheless, Father and Mother could have returned to Tunisia with the child at that time, but they decided to remain in Italy. Shortly thereafter, Tunisia closed its borders to international travel. On April 13, 2020, Mother flew with the child to the United States on a repatriation flight reserved only for United States citizens. Although he could not join them, Father drove Mother and the child to the Italian airport for their flight. Father returned to Tunisia on June 27, 2020, the first day it reopened its borders. Mother and the child remained in Arizona, where they have lived since April 13, 2020. On November 3, 2020, Mother petitioned the superior court to establish paternity, legal decision‑making, parenting time, and child support. Father moved the superior court to dismiss the petition for lack of both subject matter and personal jurisdiction. According to Father, the child was only “temporarily absent” from Tunisia, so Tunisia remained the child's “home state” with jurisdictional priority. In response, Mother noted that before relocating to Arizona, “[t]he child had never lived anywhere consecutively longer than three months.” Mother also argued that Arizona is the child's home state because he “lived with her in Arizona for more than six consecutive months immediately prior to the commencement of the instant child custody proceeding.” Held: Under a “totality of circumstances test,” the child was not “temporarily absent” from Tunisia when he relocated to Arizona with his mother, an American citizen, and thus Arizona was child's home state, such that trial court had jurisdiction to make initial custody determination under the UCCJEA. Although father, an Italian citizen, claimed he had no reason to believe relocation was permanent until being served with mother's petition, the father admitted that the mother expressed her desire to remain in Arizona and was reluctant to return to Tunisia, the father sent e‑mails imploring mother to return to Tunisia, and the mother told the father that she believed it was unsafe for her and child to return.
CHILD SUPPORT - ADD-ON EXPENSES - RESIDENTIAL PROGRAM
Ning–Yen Y. v. Karen K., 211 A.D.3d 622, 180 N.Y.S.3d 161 (New York Supreme Court, Appellate Division, First Department, December 22, 2022):
Expenses for a residential treatment program were properly treated as medical or therapeutic, rather than educational. Why did this matter? The parties’ parenting agreement provided that the children's educational costs were to be allocated 70% to the father and 30% to mother, while unreimbursed, nonelective medical, therapeutic, and psychiatric expenses were to be allocated 92% to father and 8% to mother. The treatment program did not offer classes or course credit, the child took on‑line courses and classes at local high school from which he received his high school diploma, and the record made it clear that the overriding purpose of enrolling the child in a therapeutic boarding school was to provide the child with intensive psychiatric and substance misuse treatment in a residential setting.
(Ed. Note: This distinction can also matter in a guidelines case, where medical expenses are covered by educational expenses are not.)
CHILD SUPPORT - INCOME AVERAGING
Quamme v. Quamme, No. 20220197 (North Dakota Supreme Court, January 5, 2023):
The district court found Chad Quamme's income was $207,110 in 2015; $177,773 in 2016; $99,174 in 2017; $105,320 in 2018; and $111,059 in 2019. The court found Chad Quamme's income fluctuates, his income has increased for the past three years and will likely continue to increase and return to an amount similar to the first two years when he was employed at Dougherty, and therefore it is appropriate to average his income over five years. The court explained its decision, but the evidence does not support the court's finding that Chad Quamme's income fluctuates and is likely to return to an amount similar to that under his prior employment. Chad is not self‑employed. His income while working at Wells Fargo has increased each year, but it has not fluctuated substantially in the three years he has worked there. The court therefore should not have averaged income.
CHILD SUPPORT - DISSIPATION - PRELIMINARY INJUNCTION
In re Marriage of Patel, No. 1‑21‑1650, 2022 IL App (1st) 211650 (Illinois Appellate Court, First District, December 16, 2022):
The wife was entitled to a preliminary injunction and the establishment of a child support trust to prevent the husband from dissipating assets from the sale of property. The former husband had failed to pay court‑ordered child support and maintenance for two months, the former husband was without any income and was unable to meet his court‑ordered obligations, and there was a fair question of whether court would find former wife was entitled to proceeds from sale.
CHILD SUPPORT - MODIFICATION - FAILURE TO EXERCISE PARENTING TIME
Brendel v. Morris, No. 359226 (Michigan Court of Appeals, January 12, 2023):
Start with the basics: Courts are permitted to modify child support orders whenever changed circumstances demand, even if the child support award was negotiated as part of a consent judgment of divorce. Here, the fact that the father exercised minimal parenting time constituted changed circumstances warranting modification of the mother’s obligation to pay to father a one-time lump-sum child support payment of $100,000 for the benefit of the children. The parties had anticipated sharing equal parenting time, justifying an award of child support from mother to father to ensure the children's needs were met in his care, and the existing child support order diverted funds away from the primary custodian that should be available for the children's care.
COHABITATION - FRAUD
Deschane v. Klug, No. 360677 (Michigan Court of Appeals, December 15, 2022):
Plaintiff Allan Deschane and Defendant Tracy Klug started dating in 2008 and then chose to live together in a house that Tracy owned. Allan and Tracy had children together and combined their resources. In April 2020, Tracy used inherited money that had been transferred by wire into the parties’ joint bank account to purchase another home, which was then titled in her name only. Three months after that, Tracy ended the relationship and asked Allan to leave the new home. That prompted Allan to file suit alleging that Tracy had defrauded him and that he was entitled to a share of each home and the parties’ joint bank account. The trial court thought otherwise and awarded summary disposition to Tracy on Allan’s claims for fraud, quantum meruit, and unjust enrichment. “We conclude that the trial court correctly refused to recognize any interest of [Allan] in either home or any right to a share of the inherited money that passed through the parties’ joint bank account, so we shall affirm.” Any representations Tracy made had been mere future promises and Allan had not demonstrated that he relied on the representations. For the quantum‑meruit and unjust‑enrichment claims, there was no evidence of any contract separate from the parties’ relationship.
DIVORCE - DISCOVERY - CORRESPONDENCE
Lehrman v. Lehrman, 211 A.D.3d 582, 179 N.Y.S.3d 659 (New York Supreme Court, Appellate Division, First Department, December 20, 2022):
Lawyers! Keep your client on a leash! The husband moved to compel the wife’s production of copies of all communications between her (directly or through her attorneys or representatives) and Cantor Fitzgerald (a global financial services company), where the husband was a partner. Turns out husband’s partnership with Cantor Fitzgerald was terminated shortly after the wife called the CEO of Cantor Fitzgerald. “[Husband] attributes such termination to a conversation [Wife] had with the wife of Cantor Fitzgerald's CEO, during which, he claims, [Wife] asked if the CEO would act as the parties’ divorce mediator and warned she would be serving a subpoena on Cantor Fitzgerald. Although [Wife] disputes [Husband’s] characterization of the call and denies asking the CEO to serve as mediator, she does not deny that a call occurred and acknowledges that she stated, during that call, that her lawyers had decided they needed to depose him. Given the temporal proximity of the call and the termination of the financially significant partnership interests, the motion court properly found the communications between plaintiff (or her counsel or other representatives) and Cantor Fitzgerald discoverable. .... Accordingly, [Husband] should be able to further probe this area, which falls within the broad scope of discovery permissible as to financial issues in matrimonial actions.”
PARENTAGE - PARENTAGE BY ESTOPPEL
V.L.‑P. v. S.R.D., No. 477 MDA 2022, 2023 PA Super 1 (Pennsylvania Superior Court, January 6, 2023):
In October 2008, a daughter was born to unmarried parents. The mother consistently maintained and told the father that no one else could be the father. He signed the acknowledgment of paternity. Starting six months following birth, the father began enjoying alternating weekend periods of time with his daughter. As the child grew, the father attended doctor's appointments, parent‑teacher conferences, and athletic events involving the child. Almost every night, the father telephoned or FaceTimed the child. These communications inevitably ended with “I love you” being expressed by both the child and the father. Further, the child developed a close relationship with the father’s extended family. In 2020, the father stopped paying child support; he said it was because of Covid-related income reduction, but it just happened that he stopped paying child support when he received results from Ancestry.com that supported the conclusion that the daughter was not his biological child. The father also tapered off and then ceased any communication with the child. The mother then requested child support; the father requested genetic testing. Held: The presumption of paternity does not apply, because the parties were never married. “Nevertheless, the trial court applied the doctrine of paternity by estoppel, reasoning that it is “beyond any doubt that [Child's] future life would be better if [Appellant] were to remain as her legal father.” The court acknowledged that there is a legitimate question about whether Appellant is Child's biological father; but the court concluded Child's best interests must be the overarching concern. We are constrained to disagree with the trial court's analysis. ... Here, Appellant has presented a colorable claim of fraud.... Certainly, if genetic testing confirms that Appellant is not Child's biological father, then he will have successfully proved fraud....n so holding, however, we decline to accept Appellant's position that Child's best interests are completely irrelevant in paternity disputes involving claims of fraud. To the contrary, we simply do not hold, as the trial court did, that a child's best interests are elevated over the interests of a party who has been defrauded. The analysis in cases such as these should turn on their unique facts and consideration of all the relevant circumstances, which necessarily includes evidence of fraud and the child's best interests. Only in cases where fraud is proven, will the “overriding equities” favor disestablishing paternity, even if doing so would otherwise be against the child's best interests. Based upon the foregoing, we hold that Appellant has put forth sufficient evidence of fraud such that he is entitled to genetic testing to prove his claim.”
PARENTAGE - STANDING - THIRD PARTY
Wood v. Critz, No. 2021‑CA‑0902‑MR (Kentucky Court of Appeals, January 6, 2023):
This case concerns the right of Brian Strain to intervene post‑judgment in a dissolution action between Jason Wood and Michelle Ann Critz to establish himself as the biological father of S.J.W. and thereby seek custody and timesharing rights. Jason appeals from the February 24, 2021 order sustaining Brian's motion to intervene and the July 15, 2021 order sustaining Brian's motion to amend final judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm because Brian's motion to intervene was timely under the circumstances, his motion for CR 60.02 relief was brought within a reasonable amount of time given the fraud that occurred which prevented his appearance to be heard regarding paternity in the dissolution matter, and the DNA test warranted relief.
PARENTAGE - TERMINATION OF PARENTAL RIGHTS - SURROGACY - UCCJEA (and so much more!)
In re Adoption of L.U., No. 428 WDA 2022, No. 1 WDA 2023, No. 2 WDA 2023 (Pennsylvania Superior Court, January 6, 2023):
Fasten your seat belts; it’s going to be a bumpy ride. (Yes, I know it’s supposed to be “bumpy night”, but humor me.) The case technically turns on application of the UCCJEA regarding the custody of three children, but it’s so, so much more. Background: The “father” was listed as female on his birth certificate, but the father testified that he was not a binary male or female at birth, and that he always considered himself to be male. The father underwent surgeries to correct unspecified ‘anomalies’ and have his ova (eggs) harvested and stored. After this history, the father and the mother met. The mother had no knowledge of any of this. (The parties’ first child, GU, was conceived through intrauterine insemination, which was performed by the father, a registered nurse. The mother was under the impression at that time that the father was using his own sperm, but of course, that was not the case. The father was unable to provide sperm, and the father has refused to disclose the source of the sperm. The custody of this first child is not at issue.) Now to this case. The mother went on to carry and give birth to three more children, who were conceived through in vitro fertilization (IVF). The mother carried the pregnancies and was listed as the mother on all three birth certificates, while the father was listed as the father. The mother believed that the father’s sperm was being used to conceive the children, until she learned during West Virginia custody litigation that this was not the case. “During the West Virginia litigation, Mother became aware that the eggs used in the birth of the parties’ Children actually came from Father, who had his own eggs harvested and stored years prior” and sperm was from a third party unknown to the mother. The father then moved to terminate the mother’s parental rights, arguing that the mother had no parental rights, “because the Children were conceived using his eggs, not hers, and because he was listed as the father on the Children’s birth certificate. Thus, Father appears to argue that he is the mother in fact, and the father by law.” Yes, you read that he right, he is arguing is both the mother and the father. Held: The Orphan’s Court did not have jurisdiction to adjudicate the termination of parental rights case under the UCCJEA because of the prior proceeding in West Virginia.
(Ed. Note: As Ellen Trachman points out in Above the Law, the issue not addressed in the case is that of the switched gametes. “The bigger issue is that separate from the parentage and gestational carrier claims appearing ludicrous, the allegation of switched reproductive material, without the knowledge or consent of the mother, is incredibly disturbing.” You got that right, sister.)
(Ed. Note: Anyone remember the Robert Heinlein story, "All You Zombies"? In that story, a young man (later revealed to be intersex) is taken back in time and tricked into impregnating his younger, female self (before he underwent sexual reassignment surgery); he turns out to be the offspring of that union, with the paradoxical result that he is his own mother and father. As the story unfolds, all the major characters are revealed to be the same person, at different stages of their life.)
PROPERTY DIVISION - MILITARY BENEFITS - COMBAT RELATED SPECIAL COMPENSATION
Randolph v. Sheehy, 76 Va. App. 356, 882 S.E.2d 19 (Virginia Court of Appeals, January 10, 2023):
The parties divorced and reached a property settlement agreement that was ratified by the circuit court into a final divorce decree. Under the agreement, the wife was to receive 50% of the marital share of the disposable military retired pay for her former husband. The agreement also prohibited the husband from taking any action to reduce the amount of her share, including any election to receive disability pay instead of retired pay, and the husband agreed to indemnify the wife if any actions he took reduced the amount she was to receive. Two years later, wouldn’t ya know it, the husband retired from the United States Navy and sought to receive tax‑free disability pay as well as Combat‑Related Special Compensation (“CRSC”). The effect was to reduce his disposable military retired pay, decreasing the amount that the wife received. After the wife petitioned for a rule to show cause, the husband ultimately indemnified her under their agreement. Still, the court issued an order requiring the husband to revoke the CRSC election. We find the court was without authority to issue such an order. Of course this is the right result. Federal law preempts a state court in a divorce matter from ordering a retired veteran to give up compensation to which he is statutorily entitled. 10 U.S.C.A. § 1408.
PROPERTY DIVISION - PENSION - POST-DIVORCE CONTRIBUTIONS
In re Marriage of Belthuis, No. B315673 (California Court of Appeal, Second District, Division 2, January 4, 2023):
Under the traditional time rule, the fraction of service during marriage divided by total service must be “multiplied by the final plan benefit to determine the community interest.” That is because the community property interest at issue—the right to retirement benefits—“is a right to draw from a stream of income that begins to flow, and is defined, on retirement. “[E]ven though an employee spouse while married might have earned less in early career years than in the later prime of a career that might occur post-separation, the right to the ultimate benefit, at least in part, still accrued during the earlier marriage. This entitles the marital community to evenly share in the ultimate benefit based solely on the ratio of the duration of the marriage to the duration of the total employment service, regardless of the amount of the benefit specifically attributable to service or salary during the marital years or any breaks in service.” The community thus retained a property interest in the final pension benefits, as increased by post‑separation promotions. That the value of the benefits at retirement “is reflective of an employee's subsequent [post‑separation] salary increases cannot alter or diminish the stature of the community's interest in those rights.”
PROPERTY DIVISION - VALUATION - GOODWILL
Lamm v. Preston, 522 P.3d 1246 (Idaho Supreme Court, January 9, 2023):
“While this Court has not, until now, employed the specific terminology of personal goodwill versus business goodwill in our holdings, we have consistently held that an individual's knowledge, background, and talent are personal assets rather than community property. ... Thus, these cases instruct us that business goodwill is community property while personal goodwill is not.” Here, the magistrate court permissibly employed an expert's approach to valuation of the husband's 25 percent interest in a limited liability company (LLC), formed as part of sale of the husband's business and for which husband worked following sale, under which methodology identifiable assets of interest were community property with any additional value being attributable to husband's personal goodwill. The use of this approach avoided the court having to split the husband’s interest equally, which would have essentially left the husband and wife as business partners, and the buyer of the business stated it would not have sought to acquire the business without the husband's ongoing involvement in the company.
VISITATION - THIRD PARTY - GRANDPARENTS
Borja v. Borja, 522 P.3d 699 (Arizona Court of Appeals, Division 1, December 20, 2022):
After finding that grandparent visitation would be in the best interests of the children, the court ordered the paternal grandparents visitation on Easter, Thanksgiving, and Christmas, allowed the grandparents discretion to schedule full weekend visits every month and two weeks of time during summer months, and required the ex‑wife to facilitate five hours of visitation on or near each child's birthday and each grandparent's birthday. Held: Too much! Compliance with the visitation order would require the ex‑wife to disrupt every celebration every year, mandatory visits with grandparents for all family celebrations was more than a minimal burden, and the award of visitation discretion to the grandparents overshadowed the ex‑wife's superior right to the care, custody, and control of her children.