November 10, 2021 Case Update

July 2021 Case Update

Vol. 25, No. 7

Editor: Laura Morgan

Case Update is a Section of Family Law Member Benefit publication. Not a member of the ABA Section of Family Law? Join now to view premium content.

(Editor’s Note: Some cases may be from June, as they were not posted to Westlaw until after I prepared the June update on July 10, 2021.)

AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - WARRANTY CLAUSE

Berg v. Berg, 170 N.E.3d 224 (Indiana Supreme Court, June 25, 2021)

Warranty clause in marital settlement agreement, in which “each of the parties” warranted “one to the other” that the assets and debts owned or owed, either individually or jointly, were correctly revealed and reflected in the agreement, did not preclude wife from pursuing a breach of warranty claim; the parties did not warrant as a single unit that the assets and debts were reflected in the agreement, rather, “each” party, separately, made warranties to the other party, and thus could enforce the agreement and allege a breach of warranty. Evidence supported finding that husband breach warranty clause in marital settlement agreement; under warranty agreement each party promised the assets and debts were correctly reflected in the agreement, husband's assets failed to include one account, and wife's portion of the 50/50 division of assets would have been higher if the omitted account had been included.

CHILD CUSTODY - DE FACTO PARENT

E.N. v. T.R., No. 44, Sept. Term, 2020 (Maryland Court of Appeals, July 12, 2021)

Father's romantic partner brought action seeking custody of children as a de facto parent upon father's incarceration, and biological mother, who gave permission for children to live with father, filed counter‑complaint for sole legal and physical custody. The trial court granted sole physical custody to partner and joint legal custody to partner and mother. Mother appealed. The Court of Special Appeals affirmed. On appeal to the Court of Appeals, the court held: (1) both legal parents must consent to a third‑party de facto parent relationship unless non‑consenting parent is unfit or exceptional circumstances exist, and (2) mother did not expressly or impliedly consent to parent‑like relationship between partner and children. Reversed and remanded with instruction.

CHILD CUSTODY - MODIFICATION - “MAKE-UP TIME” DUE TO COVID

Alexander v. Alexander, No. 1320, Sept. Term, 2020 (Maryland Court of Special Appeals, July 28, 2021)

After the divorce, Mother, on March 18, 2020, sent Father an email that read: “Given [S.'s] Diabetes and thus his vulnerability to getting serious complications from COVID‑19 if he contracts the Coronavirus, I plan on keeping him here at home until the CDC Coronavirus guidelines are lifted and schools are back in session. We can discuss makeup time once it is safe to do so.” During the next few days, several emails between Father and Mother were exchanged. Father took the position that Mother had no right to disobey a court order and that obeying the visitation order would not endanger S.'s health. Mother maintained that because she had been given the authority to make medical decisions for S., she had the right to ensure his safety by halting, temporarily, Father's right to have visitation with his son. Therefore, she announced that Father's weekend visitation with S., scheduled for March 20, 2020, would be canceled as well as future visitation until school reopened. Held: Trial court's decision not to award make‑up visitation time to father was not abuse of discretion, in father's motion to enforce final custody order providing father specified visitation, despite fact that mother intentionally withheld visitation from father for two months based on COVID‑19 pandemic and her concern that 14‑year‑old child's type 1 diabetes would make him more likely to have severe medical consequences if he were to contract virus; although both parties agreed at one time that make‑up time should be ordered, court was not bound by such agreement, court found it was in child's best interest to maintain schedule in final custody order, and court, which was aware of what remedies were available, was not confused as to whether it could change what had previously been ordered.

(Ed. note: So the courts are closed, no one can get a hearing on anything, but these parents should have run into court to get a change to their parenting plan, and any agreement without court approval cannot bind the parties? What planet are these judges on?)

CHILD SUPPORT - INCOME - IMPUTED INCOME - DILIGENT JOB SEARCH

Piccinini v. Waxer, No. 5D20‑528 (Florida District Court of Appeal, Fifth District, July 2, 2021)

To properly impute income to an unemployed or underemployed spouse or parent, the trial court must first find that any termination of income was voluntary, and second, that the spouse's underemployment was owing to less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. The trial court here essentially determined that Father was underemployed at his $30,000‑per‑year job. While the trial evidence supported the required finding made by the court as to the first prong for imputation of income—that Father's termination of his income from his prior, higher‑paying job was voluntary—the court made no findings as to the requisite second prong.

CHILD SUPPORT - MODIFICATION - ESCALATION CLAUSE

Matter of Sanborn, No. 2020‑0080 (New Hampshire Supreme Court, July 14, 2021)

Escalation clause in child support order, which provided for automatic modifications of child support in the future if husband's income exceeded a certain level, did not violate statute governing the modification of child support orders, in divorce proceeding; the escalation clause was not a modification of a child support order and, therefore, was not governed by child support modification statute as recalculation of the amount of child support under an escalation clause merely implemented the existing final order according to its terms, and escalation clause was triggered based on an increase in husband's income, it directed that the additional income should be run thorough the child support guidelines, and it required the parties to annually exchange their income tax returns.

CHILD SUPPORT - UIFSA

Monteith v. Monteith, No. Cum‑20‑299, 2021 ME 40 (Maine Supreme Court, July 27, 2021)

Mom sought to enforce a Maryland child support order in Maine. When she registered the orders, Dad objected, arguing that the Maryland court did not have subject matter jurisdiction to enter that child support order in the first instance, because the parties had not filed consents in the Maryland court allowing it to take jurisdiction. Held: sorry, Mom, you are out of luck. Even though everyone clearly consented for Maryland to take jurisdiction by their appearances and litigation of the case, your failure to file those consents makes the Maryland order void.

JURISDICTION - PERSONAL JURISDICTION - SERVICE OF PROCESS

Evans v. Evans, No. 201108 (Virginia Supreme Court, July 15, 2021)

Methods of service of process are in a hierarchy of preference: primus personal, deinde substituted, deinde constructive, from the most effective to the least effective. The sequencing of methods of service of process means that the more likely methods of achieving due process (personal service and substituted service) must be reasonably attempted before the least likely method (constructive notice) can be used, if at all, as a last resort. Therefore, the wife did not properly use service by order of publication to obtain long‑arm personal jurisdiction over the husband in divorce proceeding, where she did not attempt to use substituted‑service provisions of long‑arm statute by serving Secretary of the Commonwealth and she did not provide husband's last‑known address or certify by affidavit that personal service had been attempted but was unsuccessful, and the wife's first and only attempt at service was constructive service by order of publication, for which surrounding circumstances, including that the wife did not allege that the husband lived in a county where service was published in a local paper and that the wife indicated she had contact with the husband a month before she filed the complaint, did not provide the court with confidence of efficacy.

PROPERTY DIVISION - TRACING

Parkoff v. Parkoff, 195 A.D.3d 936 (New York Supreme Court, Appellate Division, Second Department, June 23, 2021)

Best have some documentation for your tracing argument. “Here, the plaintiff only offered his own testimony in support of his claim that the shares of General Telephone & Electronics Corporation and Socony Mobil Oil Company, Inc., stock that he acquired before the marriage were the sole source of the shares of Verizon and Exxon Mobil stock that were acquired during the marriage, and that he acquired additional shares in these companies solely through stock splits and dividend reinvestment. The plaintiff's self‑serving testimony, without more, was insufficient to overcome the marital property presumption.”

SPOUSAL SUPPORT - INCOME - IMPUTED INCOME - “VOLUNTARY” RESIGNATION

Nielsen v. Nielsen, No. 0010‑21‑4 (Virginia Court of Appeals, July 27, 2021)

That “voluntary” resignation was the father really being fired, and so he is not voluntarily underemployed. “The trial court acknowledged that there "was no gun to his head" when husband accepted a "voluntary separation package" from Verizon. The court nonetheless made a factual finding that husband's departure from Verizon was not voluntary. The court reasoned that voluntary meant "unconstrained by interference, not impelled by outside influence." See Voluntary, Black's Law Dictionary (11th ed. 2021). The court concluded that husband was impelled to leave Verizon "because of circumstances outside his control," which included changes in his employment, responsibilities, and job title.”

(Ed. note: For my friends in Virginia, I’d say that even though the court cites Antonelli, the essential holding in that case is essentially dead.)

TRIAL PROCEDURE - NOTICE

Threatt v. Threatt, No. A21A0637 (Georgia Court of Appeals, June 25, 2021)

The trial court provided the wife with notice of a pre‑trial status hearing, which the wife failed to attend due to her mistaken belief that hearing was occurring at a later date. This notice did not inform the wife that the case would proceed to trial, and the trial court provided the wife with no other notice that it would conduct a trial. Thus, the wife lacked sufficient notice of the trial on husband's divorce petition, and the trial court was not permitted to proceed to trial on petition. The trial court erred when it denied the wife’s motion for a new trial.

LAW REVIEW ARTICLES OF INTEREST

Andrew M. Albritton, Comment, Separation Equality: Retroactive Community Property Regimes for Long‑term Same‑Sex Couples, 30 Tul. J. L. & Sexuality 153 (2021) (email me if you want a copy)

Courtney G. Joslin, (Not) Just Surrogacy, 109 California Law Review 401 (2021)

Raymond C. O'Brien, Child Support and Joint Physical Custody, 70 Cath. U. L. Rev. 229 (Spring 2021)

Alexa R. Schwartz, Note, Too Many Chips on the Table: A Call for the Bifurcation of Money and Custody in Divorce, 49 Hofstra L. Rev. 865 (Spring 2021) (email me if you want a copy)

Sharon Shakargy, The Outlawed Family: How Relevant Is the Law in Family Litigation?, 47 Mitchell Hamline L. Rev. 568 (April 2021)

Wendy Shea, Legal Representation for Children: A Matter of Fairness, 47 Mitchell Hamline L. Rev. 728 (April 2021)

Emma Walters, Note, Broadening the Escape Clause: How the UCCJEA Can Protect Female Survivors of Domestic Violence, 109 Calif. L. Rev. 1199 (June 2021)

Don’t forget the latest issues of:

Journal of the American Academy of Matrimonial Lawyers, Vol. 33

Children’s Legal Rights Journal, Vol. 41

Family Court Review, Vol. 59

Family Advocate, Summer 2021