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February 13, 2024 Case Update

July 2023 Case Update

Vol. 27 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 2023, as they were not posted to Westlaw until after I prepared the June 2023 update on July 15, 2023.) 

AGREEMENTS - PREMARITAL AGREEMENT - ISLAMIC MAHR

Alulddin v. Alfartousi, No. 1 CA‑CV 22‑0642 FC, 99 Arizona Cases Digest 17 (Arizona Court of Appeals, Division 1, June 27, 2023):

Trial court had jurisdiction to enforce husband's and wife's Islamic marriage contract, under which husband agreed to pay wife an offered dowry of $15,000 and a postponed dowry of $10,000, by applying neutral principles of law governing premarital agreements, and thus the First Amendment ecclesiastical‑abstention doctrine did not apply. The trial court limited its analysis to the language in the contract and did not consider religious doctrines or customs, the contract by its plain terms required husband to pay wife a total dowry of $25,000 when she demanded it, and trial court did not need to assume the role of a religious court or consider ecclesiastical matters to enforce the contract as written. Applying neutral principles, the husband failed to show that he did not voluntarily enter into the Islamic marriage contract with wife, as required to support husband's claim that the contract was unenforceable; husband did not present any evidence to suggest that his religion “mandated” or “compelled” him to sign the contract, husband described the contract as “customary” in a Muslim marriage, husband testified that wife had brought the contract to their meeting with their Imam and that he had “no problem” with her doing so, and contract stated the dowry provisions were “completed by the acceptance and approval of both sides[.]”

ANNULMENT - CAUSE

Wederstrandt v. Kol, No. 2022‑C‑01570 (Louisiana Supreme Court, June 27, 2023): 

Fun fact: Statute providing that a marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment did not provide a cause of action to nullify a marriage that allegedly was entered into for the purpose of violating federal immigration laws; the statute provided only three sources of nullity of marriage and had no “catchall” provision. Two dissents. 

CHILD CUSTODY - BEST INTERESTS OF CHILD - CHILD’S WISHES

Prioleau v. Agosta, 220 Conn. App. 248 (Connecticut Appellate Court, July 4, 2023): 

Trial court acted within its discretion in granting the relief sought in mother's post-judgment motion, namely that the trial court amend its parenting‑time order to allow her to have parenting time on the third weekend of each month. The mother testified that the child had expressed a desire to spend more time socializing with friends and that child was unable to do so when she spent weekends with her father. The trial court reasonably could have concluded, upon reconsideration of the evidence from trial, that it was in child's best interests to spend one weekend each month with mother to allow for more socializing with friends.3): 

CHILD CUSTODY - CONTEMPT - WILLFULL CONDUCT

Craig K. v. Michelle K., No. 535404, 2023 N.Y. Slip Op. 03892 (New York Supreme Court, Appellate Division, Third Department, July 20, 2023):

Trial court acted within its discretion in finding that mother did not willfully violate portion of child custody order which entitled father to twice‑weekly phone contact with child, and thus denial of father's violation petition was warranted; father failed to identify direct interference by mother and acknowledged that child would tell him that he did not want to communicate, and child's resistance to speaking with father did not establish that mother willfully interfered with or influenced child's decision.

CHILD CUSTODY - STANDING - SAME-SEX PARTNERS

Pueblo v. Haas, No. 164046 (Michigan Supreme Court, July 24, 2023): 

Former same‑sex partner filed action against mother, her former partner, seeking joint custody and parenting time for child born to mother during their relationship. Mother sought summary disposition. The trial court granted the motion and dismissed the case. Former same‑sex partner appealed. The Court of Appeals affirmed. The Supreme Court reversed. Held: (1) former same‑sex partner was entitled to limited extension of equitable parent doctrine to allow individuals in same‑sex relationships, who were prevented from marrying due to State's unconstitutional ban on same‑sex marriage but nonetheless developed de facto parent‑child relationships with children born or adopted by their same‑sex partners during the time they would have otherwise been married, to seek custody or parenting time with a partner's child; overruling Lake v Putnam, 316 Mich.App. 247, 894 N.W.2d 62, and (2) former same‑sex partner adequately pleaded a claim for equitable parent status. 

CHILD CUSTODY - UCCJEA - INCONVENIENT FORUM

Gabriel v. Pierre, 217 A.D.3d 944, 192 N.Y.S.3d 177, 2023 N.Y. Slip Op. 03463 (New York Supreme Court, Appellate Division, Second Department, June 28, 2023): 

The family court properly exercised its discretion in deferring jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in proceeding on father's petition to modify order of custody. The original order awarded mother custody of parties' three children and awarded father parental access, and the mother moved to another jurisdiction. The court determined that New York was an inconvenient forum and that the state the children resided in was more appropriate forum. The court weighed the appropriate factors in making its determination, including the length of time the children had resided outside the state, the nature and location of the evidence required to resolve the pending litigation, and the familiarity of the court of each state with the facts and issues in the pending litigation. 

CHILD SUPPORT - DUTY TO SUPPORT - ADULT DISABLED CHILD

Wadman v. Wadman, 532 P.3d 1015, 2023 UT App 69 (Utah Court of Appeal, June 23, 2023): 

The child support act’s automatic adjustment provision, which terminated a parent's child support obligation when child graduated from high school unless exception applied, did not prevent or limit the trial court's ability to order the father to financially support his adult son who was diagnosed with tuberous sclerosis. The statutory definition of child included “a son or daughter of any age who is incapacitated from earning a living,” and if son was “incapacitated,” he remained a “child” for regardless of his age or high school graduation status. 

CHILD SUPPORT - INCOME - PAYCHECK PROTECTION PROGRAM

Houck v. Houck, 217 A.D.3d 1556, 192 N.Y.S.3d 368 (New York Supreme Court, Appellate Division, Fourth Dept., June 30, 2023): 

Support magistrate reasonably considered money that father received from the federal Paycheck Protection Program (PPP). While father's business suffered a temporary downturn due to the COVID‑19 pandemic, PPP money received by father brought his income back up to an amount that was generally consistent with what it had been prior to the pandemic, which sufficiently reflected father's ability to provide for his children.

CHILD SUPPORT - INCOME - IMPUTED INCOME - FAILURE TO WORK OVERTIME

Allison v. Allison, 363 So.3d 1129 (Florida District Court of Appeal, Second District, June 21, 2023): 

The evidence did not support the magistrate's finding that the former wife was voluntarily underemployed as a flight attendant based on her purported failure to prove that she could not relocate or pick up additional shifts. The former wife testified that she had investigated a transfer but learned none was available and that transferring would not fix scheduling problems, there was no evidence that former wife could have transferred or how such transfer might be achieved, and former husband simply testified that he was not aware of any actions former wife had taken with respect to seeking a transfer. Further, the evidence did not support the magistrate's finding that the former wife was voluntarily underemployed based on maternal grandmother's purported availability for child care if former wife worked full time. The former husband testified that he had picked up children from the former wife's mother when the former wife was not present, but, at most, such evidence showed that the mother had occasionally helped with childcare, rather than that she would be regularly available if the former wife began working full time.

CHILD SUPPORT - UIFSA - JURISDICTION TO ENFORCE

Ritchey v. Ritchey, No. 2021–07679, 2023 N.Y. Slip Op. 03810 (New York Supreme Court, Appellate Division, Second Dept., July 12, 2023): 

A quick point to remember about UIFSA. When a state enters an initial child support order, it retains continuing, exclusive jurisdiction to modify so long as one of the parties or the child is a resident of that state. When all the parties and the child have left, the state loses that continuing, exclusive jurisdiction to modify. BUT, the state can always enforce its own order (until another state modifies the order), even if the parties have left. 

PARENTAGE - STATUTE OF LIMITATIONS

J.M. v. C.G., 212 N.E.3d 776 (Massachusetts Supreme Judicial Court, July 19, 2023): 

Putative biological father was barred from bringing suit to establish paternity more than one year after another man's execution of voluntary acknowledgment of parentage, even though statute permitting suit to establish paternity prohibited such action only if child's birth occurred during the mother's marriage or within 300 days of its termination. Allowing putative father to bring claim would render inoperable the one year time limit for challenging execution of the voluntary acknowldgement, and without the time limit, the acknowledgment would be open to challenge indefinitely, depriving the child of the stability that paternity statutes were meant to provide. 

PROPERTY DIVISION - ABATEMENT DUE TO DEATH OF PARTY - JURISDICTION OF COURT TO ENFORCE ORDERS 

Estate of Jones v. Jones, 2023-Ohio-2115 (Ohio Court of Appeals, Eleventh District, June 26, 2023)

The trial court's protective order governing the parties' use and disclosure of healthcare records in their divorce action and its order requiring the husband to pay the special master's fee were fixed rights and liabilities prior to the death of the wife, and thus the trial court retained jurisdiction to enforce such orders after the wife died prior to final resolution of the parties’ action, although action was dismissed upon wife's death. The protective order comprehensively protected both parties' confidential healthcare records and ordered the destruction of such records within 45 days of dismissal or final divorce decree, and the husband did not challenge the order. 

PROPERTY DIVISION - CLASSIFICATION - APPRECIATION OF SEPARATE PROPERTY 

Naranjo v. Ochoa, No. 4D21-3084 (Florida District Court of Appeal, Fourth District, July 5, 2023):

Appreciation of wife's nonmarital advanced inheritance from her mother was not result of “efforts” of either wife or husband, for purposes of statute defining marital assets to include appreciation of nonmarital assets resulting from efforts of either party during marriage, and thus appreciation was not marital asset and was not subject to equitable distribution in marital dissolution proceeding, though research and selection of mutual funds into which inheritance was invested were done as joint marital venture; inheritance was invested in mutual funds using buy and hold strategy, increase in value was attributable to persons who were managing mutual funds, and value of inheritance grew by passive appreciation. 

Matter of Marriage of Craven, 326 Or. App. 709 (Oregon Court of Appeals, July 6, 2023)

Evidence of effect of payment of taxes on capital gains over the years on growth of an investment account brought into marriage by husband, which passively grew from $324,635 when parties were married to $3,477,673 at time of dissolution of marriage, was relevant to the trial court's determination in marital dissolution action of the extent of wife's contribution to growth of fund, for purposes of determining whether presumption of equal contribution by both spouses to marital assets had been overcome, and thus trial court's denial of husband's request to take judicial notice of such evidence was legal error. The trial court's determination that wife had contributed to the appreciation through the payment of taxes did not eliminate the need to determine the “magnitude” of her contribution. 

PROPERTY DIVISION - CLASSIFICATION - SEVERANCE, BONUS PAY

Hudson v. Hudson, 532 P.3d 272 (Alaska Supreme Court, July 7, 2023):

Trial court was required to examine the purpose of the specific severance and bonus pay at issue before determining whether severance and bonus pay amounted to separate property, in divorce case in which husband had received severance and bonus pay related to employment during the marriage but had received these amounts after parties' separation. In a separate point, Wife's conduct before separating from husband, consisting of declining to tell husband wife was planning to leave him, did not amount to economic misconduct, as could inform trial court's equitable division of property in divorce proceeding, despite husband's contention that wife's failure to inform him of her plans to leave resulted in his decision to take a severance package offered by his employer instead of continuing to work in higher paying position, even if wife's deception occurred when marriage was breaking down; wife's concealing of her plans from husband did not constitute use of personal property or result in any financial benefit to wife, and there was no evidence that wife's actions negatively impacted value of marital estate or decreased husband's share of marital estate. 

SPOUSAL SUPPORT - TERMINATION - MARRIAGE LIKE RELATIONSHIP

In re Marriage of Edson, 2023 IL App (1st) 230236 (Illinois Appellate Court, First District, June 20, 2023): 

Ex husband filed a petition to terminate spousal maintenance payments, alleging that ex wife was cohabiting with another party. The trial court held, based on the totality of the circumstances, that although Richard had established that there was a substantial romantic relationship between the ex-wife’s paramour Curt and Julee, the ex-wife, he had failed to meet his burden, based on a preponderance of the evidence, in establishing a de facto marriage at least as the date the petition was filed. In particular, the trial court found that the relationship lacked the depth of commitment necessary for the court to find a de facto marriage, and that “a deeper dive” revealed something better described as an exclusive social companionship with occasional benefits, rather than a de facto marriage. The trial court further emphasized that if the two were to separate, they could do so with “nothing more than a final phone call or perhaps a text” and that there “exists nothing between the two that would require unwinding or disentanglement.” After an extensive analysis of the case law and the facts, the appellate court affirmed, finding the trial court did not err by finding a committed long-term intimate relationship, but no a de facto marriage. 

TORTS - BREACH OF PROMISE TO MARRY - FRAUDULENT INDUCEMENT

Moore v. Humble, Nos. A23A0204, A23A0205 (Georgia Court of Appeals, June 21, 2023): 

“The record shows that the parties began a romantic relationship in 2013, and Humble (girlfriend) moved in with Moore (boyfriend) the following year. Although the couple discussed the possibility of marriage, it is undisputed that Moore repeatedly informed Humble that he would not marry her without a prenuptial agreement. In 2016, Moore presented Humble with an engagement ring, of which they each contributed half the cost. The couple held themselves out as being engaged, although they did not set a wedding date. The prenuptial agreement was never executed as they were unable to agree to its terms. In late 2018, Humble broke off the engagement after finding text messages on Moore's phone to other women containing sexually explicit content and solicitations to engage in sexual acts. Humble then sued Moore for breach of promise to marry, fraud, trover, and punitive damages. ... Moore contends that the trial court erred by denying his motion for summary judgment as to the claim for breach of promise to marry because the prenuptial agreement was a condition precedent, and its absence renders the promise unenforceable. We agree .... Moore next argues that the trial court's denial of his motion for summary judgment on Humble's claim for fraudulent inducement was error because there is no evidence of record to show that he did not intend to marry her, so long as the prenuptial agreement was in place. Because Humble cannot show that Moore did not intend to marry her at the time of the engagement, we agree.”

 

LAW REVIEW ARTICLES OF INTEREST

Emma Guida, Terms and Conditions Matter: Marriage Equality in Birthright Citizenship, 32 Tul. J. L. & Sexuality 245 (2023)

Marian A. J. van Dijk, Sven Zebel, Ellen Giebels, Power Asymmetry and Early Intervention in Divorce, 29 Psychol. Pub. Pol'y & L. 383 (August 2023)

NEWS ITEMS OF INTEREST

When we left Kevin Costner last month, his estranged wife Christine was asking for $248,000 per month in child support for their three children, in addition to Kevin paying 100% of private school tuition, fees for extracurricular activities, and all health care expenses. The judge gave Christine some major side-eye, and awarded $129,755 per month in child support, slightly more than the guidelines provided. 

We saw it coming. Citing 303 Creative as support, Judge Dianne Hensley is refusing to perform gay weddings due to her avowed Christian beliefs. 

Birdnesting has become a more popular way to share custody.

The hard life of poorly education women with children after divorce.

Watch out for renewed GOP assaults on no-fault divorce.                                                                          See also.

A bill to regulate surrogacy in the Netherlands has been introduces.

For the latest international cases, be sure to check Melissa Kucinski’s familylawacrossborders.com/blog