July 14, 2021 Case Update

June 2021 Case Update

Vol. 25, No. 6

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 May, as they were not posted to Westlaw until after I prepared the May update on June 10, 2021.)

ADOPTION - CONSENT - FAILURE TO SUPPORT

Matter of Adoption of A.M.P., No. CV‑20‑174, 2021 Ark. 125 (Arkansas Supreme Court, June 3, 2021)

The trial court erred when it determined that father had a duty of child support, despite divorce decree expressly stating neither party shall pay support, and finding that father's consent to stepfather's adoption of child was not required based on father failing significantly, without justifiable cause, to provide for the support of the children for at least one year, based in part on father's failure to pay support when he was not legally obligated to do so. Further, the adoption consent statute required proof of both a failure of support and care, and there was no evidence that father failed to provide for the children's care, as he routinely exercised his visitation in the years following the divorce and provided food and shelter to the children during visitation.

CHILD CUSTODY - HAGUE CONVENTION

Nowlan v. Nowlan, No. 5:20‑cv‑00102 (United States District Court, W.D. Virginia, June 10, 2021)

Father, a Canadian citizen, petitioned the United States Department of State for the return of his five‑year‑old child from the United States to Canada under the Hague Convention on the Civil Aspects of International Child Abduction after the mother removed the child from Canada. The District Court held that: (1) the father's proposed exhibits were relevant; (2) statements made by the child relating to potential sexual abuse were admissible under the residual exception to the hearsay rule; (3) the district court would independently conduct its own factual findings as to the child's habitual residence; (4) the district court would give little weight to the father's stipulation in the mother's Canadian proceeding three years prior; (5) the district court would give no weight to a Virginia Circuit Court opinion finding that Virginia was the child's "home state" under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); (6) the child's habitual residence was in Canada when the mother removed the child from Canada; (7) the mother's removal of the child was in violation of the father's custody rights; and (8) the father was exercising his custody rights of the child when the mother removed the child from Canada.

(Ed. note: Don’t forget to check Melissa Kucinski’s blog for international cases.)

CHILD CUSTODY - JOINT CUSTODY - GRANDPARENT

Steedley v. Gilbreth, No. A21A0356 (Georgia Court of Appeals, May 21, 2021)

“As we explained in Steedley II, ‘[c]ustody disputes between a parent and close third‑party relatives, including grandparents, are governed by OCGA § 19‑7‑1 (b.1).’ 352 Ga. App. at 180, 834 S.E.2d 301. Although in Steedley II, we remanded this case to the trial court with instructions for the trial court to engage in proper fact-finding and the analysis required by Clark to support its custody award to the Grandmother, that is not what the trial court did; instead, citing OCGA § 19‑9‑3, the court entered an order setting out a joint custody arrangement between the Mother and the Grandmother. This was error.”

CHILD CUSTODY - STANDING

Guzman v. Guzman, 2021 OK 26 (Oklahoma Supreme Court, May 21, 2021)

Following the separation of the married adoptive parent and the step‑parent of a child, same-sex partners, the step‑parent filed a petition for parentage, seeking to establish her parental status as to the child, and for a determination on custody and support. The trial court granted the adoptive parent's motion to dismiss the step‑parent's parentage action for lack of standing. The Court of Civil Appeals reversed. The Supreme Court, however, held that the step‑parent lacked standing to seek rights to child custody or visitation. “Our decision in Schnedler concerned a question of first impression in Oklahoma: whether our laws recognized a non‑biological same‑sex co‑parent's right to seek custody and visitation on the same grounds as the legal, biological, same‑sex co‑parent when the couple was unable to legally marry in Oklahoma. Under those specific facts, we held that they must. However, Schnedler is limited in nature and does not extend any additional rights to step‑parents, grandparents, or others. Schnedler does not apply to legally married couples. Because parental rights have not been bestowed on step‑parents via statute or the common law, Carmen has no standing to seek custody and visitation with the child. The Court of Civil Appeals appears to have applied Schnedler to the facts of this case solely because the parties were in a same‑sex relationship. This was in error. We hold the trial court correctly granted Adrieanna's motion to dismiss Carmen's petition for paternity.”

CHILD CUSTODY - UCCJEA - HOME STATE - NEWBORN

In re Z.H., No. No. 20‑0377 (West Virginia Supreme Court, June 11, 2021)

The mother lived in Virginia, but she gave birth to the child at issue in a West Virginia hospital. While the mother and baby were still in the hospital after the birth, the West Virginia DHHR assumed legal custody of the child. The West Virginia court ultimately terminated the mother’s parental rights.

The mother asserted that West Virginia did not have jurisdiction, and the court agreed that West Virginia did not have home state jurisdiction. As to “home state” jurisdiction, the court concluded, “[T]o clear up any misunderstanding, we now hold that when determining whether a court has home state subject matter jurisdiction over the custody of a child who is less than six months old, [the UCCJEA] direct[s] the court to consider where the child lived from the child's birth to the commencement of the proceeding in which custody is at issue. Events prior to birth, and the child's living arrangements after the commencement of the proceeding, are not relevant to the determination of whether the court has home state subject matter jurisdiction. Thus, in this case, the home state jurisdiction analysis is limited to an examination of the time between Z.H.'s birth and the DHHR's commencement of this proceeding in court. The DHHR sought an order to ratify its assumption of emergency custody just one day after Z.H.'s birth. During this one day, Z.H. was admitted to a hospital in West Virginia. A hospital stay of this nature is obviously a temporary situation. Moreover, a hospital is not a location where a child ‘lives with a parent or a person acting as a parent.’ It cannot be said that Z.H. ‘lived’ in the Bluefield Regional Medical Center during that one day.”

Dissent

CHILD SUPPORT - MODIFICATION- PROFESSIONAL ATHLETE

Rodriguez v. Starks, 194 A.D.3d 1063, 2021 N.Y. Slip Op. 03325 (New York Supreme Court, Appellate Division, Second Department, May 26, 2021)

The Family Court properly denied the mother's objection to the Support Magistrate's order granting the father's petition for a downward modification of his child support obligation based upon the terms of the 2008 consent order. “The father established a substantial change in circumstances based upon his testimony that, after a 12–year career in the NFL, he was no longer able to play football and generate the same income. However, the Family Court should have granted the mother's objection to so much of the Support Magistrate's order as provided that the dismissal of her petition for an upward modification of the father's child support obligation was with prejudice to the filing of any subsequent petition for modification of child support.”

EVIDENCE - COMPUTER FRAUD AND ABUSE ACT

Van Buren v. United States, No. 19-783 (United States Supreme Court, June 9, 2021)

Not a family law case, but it does have implications for family law attorneys dealing with spouses mucking around in their partners’ computers. The Computer Fraud and Abuse Act (CFAA) criminalizes “unauthorized” access to a computer. The big question has been what counts as unauthorized access. The statute speaks of two ways of violating the statute: “access without authorization” and “exceeding authorized access.” The cases did not draw a sharp distinction between the two. The Supreme Court lent some clarity: “Access without authorization” and “exceeding authorized access” both call for the same basic test: A gates-up-or-down inquiry. To violate the CFAA, a person needs to bypass a gate that is down that the person isn't supposed to bypass. As the court puts it, a person needs to enter "particular areas of the computer‑ such as files, folders, or databases‑that are off limits to him." Under this view, the two ways of violating the statute work together. The prohibition on "access without authorization" bans entering a computer one is not authorized to access, "targeting so‑called outside hackers‑those who access a computer without any permission at all." The prohibition on "exceed[ing] authorized access bans "entering a part of the system to which a computer user lacks access privileges." That language "target[s] so‑called inside hackers‑those who access a computer with permission, but then exceed the parameters of authorized access by entering an area of the computer to which that authorization does not extend." Under this interpretation, it seems that reading stuff on a spouse’s computer is not a violation of the CFAA, unless that stuff is password protected.

Please Read, The Supreme Court Reins In the CFAA in Van Buren by Prof. Orin S. Kerr, from which I shamelessly copied the above description of the case.

INTIMATE PARTNER VIOLENCE - STALKING - TEMPORARY RESTRAINING ORDER - SECOND AMENDMENT

Dean v. Bevis, No. 2D20-2348 (Florida District Court of Appeal, Second District, June 4, 2021)

Because allowing a stalker access to his firearms is such a great idea! Jaclyn Bevis obtained a temporary injunction protection against stalking against W. Alecs Dean. The temporary injunction also provided “Respondent shall not use or possess a firearm or ammunition,” and “Respondent shall surrender any firearms and ammunition in Respondent's possession to the Lee County Sheriff's Department.” The injunction notified the parties that a hearing would be held eight days hence (on April 7, 2020) to determine whether the trial court should issue a final judgment of injunction for protection against stalking. Naturally, Mr. Dean objected to giving up his guns - this is Florida, after all. Officers served the injunction on Dean on March 31, 2020, and Dean contends that the officers seized his firearms and ammunition. On April 6, 2020, Dean filed a motion for immediate release of property and asserted that the trial court was without authority to order the seizure of his firearms and ammunition based only on a temporary injunction for stalking. He requested an immediate return of his firearms and ammunition until the trial court held a hearing and a final order was entered on the injunction petition. After a hearing on Dean's motion for immediate release of property, the trial court denied Dean's motion, and the final hearing was set on Bevis's injunction petition. Dean then filed this interlocutory appeal. Held: “Under the limited allegations contained in her petition, the trial court erred by relying on the provision that it “may grant such relief as the court deems proper,” § 784.0485(5)(a), to include in the temporary stalking injunction provisions that infringed upon Dean's constitutional right to keep and bear arms as provided for in the Florida Constitution. See Art. I, § 8, Fla. Const. Therefore, we reverse the temporary injunction to the extent that it prohibited Dean from possessing firearms and ammunition and ordered their surrender. We otherwise affirm the temporary injunction.”

PARENTAGE - ESTOPPEL

Montgomery County Department of Social Services, on Behalf of Donavin E., No. 528367, 2021 N.Y. Slip Op. 03489 (New York Supreme Court, Appellate Division, Third Department, June 3, 2021)

The Montgomery County Social Services Department petitioned to establish paternity of the child's alleged father. The Family Court denied the alleged father's request for a genetic marker test on the basis of equitable estoppel and adjudicated him the father. The alleged father appealed. Held: the alleged father was not equitably estopped from denying paternity or seeking genetic marker test. “Based upon our review of the record as a whole, we find that Family Court erred in denying Reymond F's request for a genetic marker test, resulting in equitably estopping him from denying paternity. The trial testimony established that the mother and Trini G., the mother's boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co‑parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He further testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father.”

PARENTAGE - PUTATIVE FATHER

Corey D. v. Travis R., No. 20‑0020 (West Virginia Supreme Court, June 2, 2021)

The trial court's failure to apply the statutory directive of declaring the putative father to be the legal father of the child based upon the DNA test results was clear error. The statute provided that undisputed blood or tissue test results which show a statistical probability of paternity of more than 98% shall legally establish the man as the father of the child, and the paternity test results for the child in this case showed a statistical probability of paternity of 99.99% for the putative father. Further, the trial court lacked jurisdiction to declare the mother's boyfriend, with whom she had long‑term, on‑again/off‑again relationship, to be the child's legal father and to direct that his name be placed on child's birth certificate, thereby resulting in a de facto adoption, because jurisdiction for adoption proceedings was in the circuit court, not the family court, and thus, family court's order was void or voidable and did not provide the child with a true establishment of legal paternity.

PARENTAGE - GESTATIONAL SURROGACY

In re Schnitzer, No. A167020, 312 Or. App. 71 (Oregon Court of Appeals, June 3, 2021)

Very, very convoluted facts, so please read the opinion if you wish to know the ins and outs of the relationships of the parties, their efforts at gestational surrogacy, and the contract the parties signed. In essence, and this is waaaaay too simple a reading, the intent of the parties won the day.

Excellent discussion of the case by Ellen Trachman

PROPERTY DIVISION - ENFORCEMENT - STATUTE OF REPOSE

Schwab v. Schwab, No. 2019AP1200, 2021 WI 67 (Wisconsin Supreme Court, June 22, 2021)

The ex‑wife filed a contempt motion seeking to enforce the parties’ 25‑year‑old marital property agreement's provision regarding the division of the ex‑husband's military pension. Held: the 20‑year period, as prescribed by statute of repose on actions on judgments, in which ex‑wife had to file her contempt motion to enforce the marital property agreement's provision in question began to run when the pension became available to ex‑husband, 20 years after the entry of judgment.

PROPERTY DIVISION - VALUATION - BUY-SELL AGREEMENT

Seivert v. Alli, 309 Neb. 246, 959 N.W.2d 777 (Nebraska Supreme Court, May 21, 2021)

“One of the disputed issues at trial was the marital value of Tyron A. Alli, M.D., P.C. (Alli P.C.), a corporation of which Alli was the sole shareholder. Alli formed Alli P.C. in 1998. Alli worked as a gastroenterologist with what became Midwest Gastrointestinal Associates, P.C. (MGI). After forming Alli P.C., Alli assigned his employment agreements with MGI to Alli P.C. Alli was also a shareholder of MGI.

MGI is the operating branch of Midwest Endoscopy Services, L.L.C. (MES). Upon employment with MGI, a physician may be invited to become a member of MES. Alli P.C. became a member of MES, and, like all members of MES, it had a 5.88‑percent ownership interest. ... Although the district court did not believe it was bound to follow the terms of the buy‑sell agreement in determining Alli P.C.'s interest in MES, it did ultimately conclude that the value was best determined by applying the terms of the buy‑sell agreement. Under the circumstances, we cannot say that was an abuse of discretion. According to [husband’s expert], [wife’s expert] significantly overvalued Alli P.C.'s interest in MES by including Alli P.C.'s income under the employment agreement when valuing Alli P.C. using the income approach, by failing to consider the buy‑sell agreement, by failing to consider that other recently departed physicians had their interests in MES bought out pursuant to the buy‑sell agreement, and by generally failing to apply discounts for lack of marketability and lack of control. The district court was entitled to ascribe weight to [husband’s expert’s] testimony and thus conclude that [wife’s expert’s] valuation was flawed. A number of appellate courts have held that trial courts do not commit reversible error by following a redemption agreement's determination of value rather than that of an expert who fails to consider the agreement in forming an opinion as to value. The district court did not abuse its discretion in valuing Alli's business interests.”

SPOUSAL SUPPORT - INCOME/FINANCIAL RESOURCES - POST-DISSOLUTION GIFTS

Honke v. Honke, 960 N.W.2d 261 (Minnesota Supreme Court, May 26, 2021)

In a post-dissolution motion, the ex-husband moved to terminate spousal support, based on the ex-wife’s receipt of two substantial gifts totaling $500,000 from her parents. The district court determined that the spousal maintenance statute prohibited it from considering the principal of these cash gifts as a financial resource available for the ex-wife’s self‑support. At the same time, the court imputed income to the ex-wife based on the potential investment returns from the cash gifts and amended the maintenance award accordingly. Held: Reversed. “[W]e ultimately conclude, consistent with the position as argued by Charles, that the principal of post‑dissolution gifts, including cash gifts, qualifies as a "financial resource" within Minnesota's maintenance statute.”

TORTS - MALICIOUS PROSECUTION

Budd v. Walker, No. 122,446 (Kansas Court of Appeals, May 21, 2021)

Talk about a bad breakup! Lisa Tanking filed for divorce from Donald Budd, alleging a common-law marriage. Lisa was represented by H. Reed Walker of Overland Park, Kansas. Walker filed a petition for divorce in Johnson County District Court. A few weeks after filing, Budd filed a motion to change venue because Tanking did not live in Johnson County. (She was in the process of moving to Johnson County when the petition was filed.) This motion prompted Walker, on Tanking's behalf, to dismiss the lawsuit without prejudice on September 30, 2016, and then refile a second case in the Johnson County District Court the same day, at which point Tanking was a Johnson County resident. Budd did not contest the venue thereafter. Shortly after the refiling of the divorce case in Johnson County, Budd filed an action in Wyandotte County seeking a declaratory judgment that no common‑law marriage existed between Budd and Tanking. This petition did not seek a division or allocation of any shared property. This filing prompted the district judge presiding over the Johnson County divorce case to stay the case on comity grounds as Budd's case filed in Wyandotte County could possibly be dispositive of whether Budd and Tanking were common‑law married. Budd's Wyandotte County declaratory judgment action proceeded to a bench trial. The district court made a finding that a common‑law marriage did not exist. The district court then found that Tanking had an equitable interest in the house she and Budd owned together and that she was entitled to a baby grand piano in Budd's custody as her separate property. The Johnson County case was dismissed due to the Wyandotte County District Court finding there had been no marriage between Tanking and Budd.

Now, the nub of this case: While Tanking's appeal regarding the common-law marriage was still pending before the Supreme Court, Budd filed his present suit against Tanking and Walker, alleging malicious prosecution for the filing of the divorce actions in the Johnson County District Court. Budd alleged that the filing and continuation of the common‑law marriage claim was without probable cause and with malicious intent. In April 2019, Budd and Tanking reached a settlement agreement in the malicious prosecution case. The case against Walker proceeded, with the jury returning a verdict with a damage award of $110,394.41.

Held: Reversed and remanded. Walker argues the district court erred in denying his motion for summary judgment because Budd could not satisfy all the elements of a malicious prosecution claim based on the uncontroverted material facts. He makes the same argument concerning his motions for a directed verdict and judgment as a matter of law. First, Walker argues he had probable cause to file the Johnson County suit as a matter of law. Second, Walker argues the outcomes from both the Wyandotte County and Johnson County judgments were not favorable terminations on the merits for Budd because the Johnson County divorce case was dismissed on procedural grounds and because Tanking was awarded her equitable interest in the home, even though that equated to no payment to her. Yes, he’s absolutely right, the district court erred in not granting Walker judgment as a matter of law on the grounds that the termination of the underlying action was not in favor of Budd.