(Editor's Note: Some cases may be from May 2023, as they were not posted to Westlaw until after I prepared the May 2023 update on June 15, 2023.)
AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - LIFE INSURANCE BENEFICIARY
John Hancock Life Insurance Company v. Curtin, 219 Conn. App. 613 (Connecticut Appellate Court, May 30, 2023):
The marriage between the decedent and Curtin was dissolved on August 28, 2014, and their separation agreement dated the same day was incorporated into the dissolution judgment. Paragraph 2.3 of the agreement provided: “2.3 The Husband shall maintain life insurance at his sole cost and expense in the face amount of $500,000 until the death or remarriage of the Wife. The Husband shall designate as primary beneficiary Deborah Schalm and designate as secondary beneficiary Susan Curtin. The Husband shall direct the life insurance policy company to send any and all notice, inclusive of payments owed and received, notice of the status of the life insurance policy, and proof that such life insurance remains in full force and effect to Wife. Further, the Wife shall be listed on said policy as a person who shall receive notice from the carrier of any threatened cancellation of coverage. The failure of Husband to maintain such life insurance pursuant to this paragraph shall constitute a claim and charge against his estate by the Wife in the face value amount of $500,000.” Two months prior to the rendering of the judgment of dissolution, on June 18, 2014, the decedent obtained a life insurance policy from the plaintiff in the face amount of $500,000 (policy). The decedent designated “Estate of John R. Curtin” as the primary beneficiary. He did not designate a secondary beneficiary. The decedent died testate on January 28, 2020, and the coexecutors were appointed. In July, 2020, the plaintiff [insurance company] commenced this interpleader action, alleging that it was “unable to determine to whom the amount due under the policy is payable and which of the defendants may be entitled thereto.” As relief, the plaintiff sought an interlocutory judgment of interpleader, a discharge of its liabilities upon paying the proceeds of the policy into the court, and “such other relief as the court deems proper, together with the costs and disbursements of this action, including reasonable attorney's fees, to be paid out of the amount in dispute.” Held: The separation agreement's express designation of remedy for breach of decedent's obligation to maintain life insurance policy barred decedent's daughter and decedent's former spouse from recovery on their equitable claim to policy proceeds in interpleader action. While decedent had breached agreement's requirement that he maintain life insurance in face amount of $500,000 and designate spouse as primary beneficiary and daughter as secondary beneficiary by designating his estate as policy's beneficiary, the agreement provided that failure of decedent to maintain policy in accordance with agreement “shall constitute a claim and charge against his estate by [daughter] in the face value amount of $500,000.”
ATTORNEYS - CONTEMPT
In re Martel, No. 2019‑001233, 2023‑UP‑254 (South Carolina Court of Appeals, June 28, 2023) (unreported):
“This case involves a family court judge's direct contempt citation against Appellant, attorney Lauren Martel. Martel argues the family court erred in finding her in criminal contempt at a hearing in which the judge's impartiality and temperament were questioned. We agree, and we reverse the finding of contempt.” What happened? A judge going off the rails: “On January 14, Martel filed a motion titled “Notice to Recuse to Continue and Order” seeking recusal on several grounds; the motion was accompanied by Mother's affidavit supporting her recusal request and seeking a change of venue. Martel also attached her own affidavit in support of recusal and a venue change. Both affidavits noted the judge's relationships with Father's family and Father's counsel; Mother's affidavit made a number of other troubling claims. The family court addressed the recusal motion at a January 15 hearing and found Martel in criminal contempt after she declined to answer the court's hostile questions about her affidavit. Concerned that she had a professional responsibility to her client not to become a witness in the case, Martel offered to withdraw her affidavit. The family court subsequently instructed the bailiff to take Martel into custody and told her he was reporting her to the supreme court. When she again emphasized that she did not want to become a witness to the detriment of her client, the judge responded that Martel was already a witness due to “the allegations about [him]” and noted, “I'm gonna call the Supreme Court and see what we're gonna do about you.” Later that day, the judge issued a handwritten order of contempt ordering Martel to pay a $500 fine by 12:00 p.m. on January 16, 2019.” Read more for the crazy hearing: “While Martel's own behavior during this proceeding certainly was not perfect, our review of the transcript reveals the behavior of the family court judge was vastly more problematic.”
CHILD CUSTODY - CONTEMPT - AMBIGUOUS ORDER
The divorce decree provided, “Visitation: Mother and Father agree to a 2‑2‑3 weekly alternating schedule. Changes to the visitation schedule may be made at Mother's reasonable discretion.” The decree also provided, “In the event the parties disagree on issues regarding the minor children, Mother shall have the final decision‑making authority.” While Mother was given “reasonable discretion” to make changes to visitation, the decree did not define reasonable; it provided no guidance as to when in the exercise of her discretion Mother could limit visitation; it provided no direction on reinstating visitation after Mother used her discretion to limit it. When read as a whole, the decree was not sufficiently "clear, specific, and unambiguous" such that Mother would have "readily known exactly what duties or obligations were imposed" on her. Because the decree was ambiguous, the district court's assessment of contempt against Father was not justified.
CHILD CUSTODY - CONTEMPT - EDUCATION
Mother and Father are the parents of G.B.S. (Child), who was born in August 2015. Mother and Father were never married or lived together. However, Father filed an acknowledgement of paternity upon Child's birth, and he is listed as Child's father on the birth certificate. The parties’ mediated agreement concerning custody provides: “[Mother] and [Father] shall share joint custody of their minor son[.] The parties will make joint decisions of all issues impacting major areas of his life including but not limited to educational, medical, and religious/spiritual. If, after consultation, the parties cannot reach provided agreement, [Mother] shall have final decision‑making power regarding educational and medical choices and will keep [Father] informed of providers and care. Homeschooling will not be considered after the 2021‑2022 school year. Both parties shall complete any paperwork necessary to release full educational, religious and medical records to the other parent.” Mother wanted Child to attend a school with a French language program. She identified Whitney Young Elementary (“Whitney Young”), in Louisville, as her preferred school. Father wanted Child to attend Ashland Elementary School, which is in Fayette County. In the summer of 2021, Mother enrolled Child at Whitney Young, and Child began attending there in August. In response, Father filed an “Emergency Motion to Enforce and Amend Mediation Agreement.” He argued that her choice of Whitney Young was unreasonable and that it amounted to a de facto relocation in violation of his joint‑custody and timesharing rights. Father also filed a motion seeking attorney fees incurred in filing the motion. Held: (1) the mediated custody agreement, which gave mother “final decision‑making power regarding educational and medical choices” for child, did not permit mother to exercise that power in a manner that affected father's rights under agreement; (2) mother's choice of kindergarten effectively amounted to a relocation, contravening agreement's timesharing guidelines; (3) mother's exercise of her decision‑making power to select kindergarten at issue was unreasonable.
CHILD CUSTODY - MODIFICATION - EMERGENCY ORDER - DUE PROCESS
“In this custody dispute, the defendant mother, M. H., appeals from the judgment of the trial court granting the post-dissolution motion of the plaintiff father, R. H., for modification of custody and access seeking sole legal and physical custody of the parties’ two minor children. On appeal, the defendant argues that the court improperly (1) granted the plaintiff's October 30, 2019 application for an emergency ex parte order for custody of the children, (2) delegated its judicial authority by giving the plaintiff decision‑making authority over the defendant's access to the children, and (3) infringed on her privacy rights, first by allowing testimony about her medical information and, second, by including her medical information in its November 18, 2021 memorandum of decision without sealing the decision. We agree with the defendant's second claim but disagree with her remaining claims. Accordingly, we reverse in part and affirm in part the judgment of the trial court. ... On the basis of our review of the court's order, we conclude that a portion of the order pertaining to the defendant's visitation with R is an improper delegation of authority because the court effectively delegated to the plaintiff, in consultation with the child's therapist, the authority to suspend or terminate the defendant's visitation with R and its attendant obligation to consider the best interests of R pursuant to § 46b‑56 (c) before doing so.”
CHILD CUSTODY - MODIFICATION - RELOCATION
Amber GG. v. Eric HH., No. 535490, 2023 N.Y. Slip Op. 03059 (New York Supreme Court, Appellate Division, Third Department, June 8, 2023):
The trial court denied the mother’s petition for relocation. Held: Reversed. “Although we recognize the importance of an ongoing relationship between the father and the children, the foregoing proof reflects that the mother is, by far, the more involved parent and the primary caregiver, that the lives of the mother and the children would be enhanced by the relocation to Florida, that the children want to make that move, and that the mother is willing to facilitate significant visitation between the children and the father if it occurs. As such, Family Court's determination denying the mother's relocation request is not supported by a sound and substantial basis in the record. Thus, we grant the petition and remit this matter to Family Court to establish an appropriate schedule of parenting time for the father and to ensure that he have regular phone and/or video calls with the children.”
Father requested that the child move from the mother’s home in Pennsylvania to the father’s home in Germany. The court granted the father’s petition, and the mother be responsible for the cost of transporting the child between residences. Mother appealed. Beyond this dry recitation of the posture of the case are heartbreaking facts. The mother and father, along with their child, the child’s two half-siblings, the father’s father, all moved to Germany for the father’s posting with the U.S. Army. The mother became gravely ill, and she wanted to return to the United States for further treatment. At some point between December 2019 and February 2020, the mother, the child, and the maternal half‑sibling, moved back to the United States; the father, the paternal half‑sibling, and the paternal grandmother remained in Germany. The parties decided to end their marriage in 2022; the father petitioned for primary custody in February 2022 and filed a notice of proposed relocation. The trial court held a custody hearing on August 31 and September 19, 2022. On October 26, 2022, the trial court granted father's request for relocation and awarded him primary custody of the child. The trial court delineated its reasons for the award contemporaneously with the custody order. Held: The trial court did not err in granting the relocation request. The father testified that the child spent an inordinate amount of time on the computer when in mother's care, that father would be able to provide child with opportunities to travel countries in Europe and to have opportunities not then available to him, and that child would be able to be part of a program before and after school which would provide extra homework care and sports, music, and literary activities, and father had shown a great interest in child's progress in school, while mother had not tracked what had been happening in child's education. However, the trial court's custody order making the mother responsible for paying all costs of the child's travel between the mother's residence in the United States and the father's residence in Germany for two out of three periods of the mother's partial custody, and making her responsible for travel costs from Germany to the United States during the third period was manifestly unreasonable, because the cost sharing requirements could not achieve the order's intent of limiting periods between visits with the mother to no more than three or four months, as the mother could not afford the price of international flights during the periods when the custody exchanges would take place, as the mother was “deemed disabled” and her sole income was social security disability benefits.
CHILD CUSTODY - MODIFICATION - SELF-EXECUTING CLAUSE
Three years following final judgment of divorce and decree awarding mother and father joint legal custody of their then two‑year‑old daughter, and awarding mother primary physical custody, mother filed an emergency petition for change of custody and visitation, based on allegations that father had been showering nude with daughter in an outdoor shower at his house and had also taken photographs of her in the nude. The trial court granted the mother’s request to limit father to supervised visitation and, inter alia, required him to submit to regular drug testing. Held: (1) evidence supported trial court's decision limiting father's visitation and requiring it to be supervised; (2) trial court's order that any positive drug test or failure to adhere to other requirements in parenting plan would result in loss of visitation were impermissible self‑executing visitation provisions; and (3) trial court's final order prohibiting father from having an outdoor shower as a condition of his right to visitation with daughter did not infringe upon father's constitutional rights to liberty.
CHILD CUSTODY - PROCEDURE - CHILD TESTIMONY
Pursuant to mother's timely request that trial court interview child, who was older than age 12, trial court had a statutory duty to interview child in chambers to determine child's wishes as to who should have had exclusive right to designate child's primary residence, and thus trial court's decision not to interview child was error in divorce proceeding. Child was older than age 12, child was able to express her wishes, statute did not require that mother file a written motion, mother made court aware of request when court could have acted on it, mother e‑mailed letter to court coordinator requesting child be interviewed, mother called court nearly 20 times to schedule interview, mother reiterated her request at trial, and mother submitted two written requests after trial. This error was harmful error, as it caused mother to give up right to jury trial based on false premise in divorce proceeding.
CHILD CUSTODY - PROCEDURE - BIAS OF JUDGE
Rockett ex rel. K.R. v. Eighmy, No. 21‑3903 (United States Court of Appeals, Eighth Circuit, June 22, 2023):
In another case of a judge behaving badly (see In re Martel, above), in this case, a state court judge during a custody proceeding personally escorted two minor children to jail, standing there while they removed their clothes and belongings, and then came back an hour later to release them, in order to “teach them a lesson” when they refused to back down from their resistance to leaving Hollywood to live with their mother temporarily. The father then sued the judgment pursuant to 42 U.S.C. § 1983. Held: The judge’s actions, were nonjudicial and thus, not entitled to judicial immunity from the father's § 1983 action alleging violation of children's First, Fourth, and Fourteenth Amendment rights. The children could not be held in contempt for disorderly contemptuous or insolent behavior because they were not present in the courtroom, and even assuming the judge could have ordered someone else to take the children to jail, he could not put them there himself under state law.
CHILD SUPPORT - DE FACTO CHANGE IN CUSTODY
Vaysburd v. Vaysburd, No. 2019–13395, 2023 N.Y. Slip Op. 03039 (New York Supreme Court, Appellate Division, Second Department, June 7, 2023):
In many states, a de facto change in custody of a child will entitle the new custodian to a credit on his/her child support obligation, under the theory that the parent is paying for child support directly. Not in New York. “Additionally, the defendant argues that the Supreme Court erred in calculating his child support obligation by applying the statutory rate of 25% for two children instead of the statutory rate of 17% for one child. He contends that since the parties’ son has been living with him the court should have applied the statutory rate of 17%. The defendant's contention is without merit. Without a modification of custody, the defendant's obligation remains the same despite a de facto change of custody of the parties’ son.”
CHILD SUPPORT - INCOME - IMPUTED INCOME
Miller v. Miller, 216 A.D.3d 1154, 189 N.Y.S.3d 732, 2023 N.Y. Slip Op. 02872 (New York Supreme Court, Appellate Division, Second Department, May 31, 2023):
The wife testified at the trial that her amended 2017 tax return showed that she had an annual income of $45,436 from her business, Lavish Layette. However, the bookkeeper for Lavish Layette testified that the wife received disbursements from the business in 2017 totaling $64,836.71. Based upon the wife’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the wife. Further, the Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income and the needs of the children. Under the circumstances presented, the court providently exercised its discretion in doing so.
Anyanwu v. Anyanwu, ___ N.Y.S.3d ___, 216 A.D.3d 1128, 2023 N.Y. Slip Op. 02859 (New York Supreme Court, Appellate Division, Second Department, May 31, 2023):
Here, the Supreme Court providently exercised its discretion by imputing $92,942 in annual income to the husband when computing his maintenance and child support obligations. In particular, the husband’s testimony as to his income in 2017, coupled with the undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full‑time position had merit, provided a basis for the court, in the exercise of its discretion, to impute income to the husband. Moreover, while the husband is correct that the court should not have, sua sponte, taken judicial notice of information regarding the husband’s income on a certain website, this error was harmless. The husband’s own admission to earning more than $96,000 in 2017 provided an independent basis for the court to impute income to him in the amount of $92,942 per year.
PARENTAGE - PUTATIVE FATHER - STATUTE OF LIMITATIONS - CONSTITUTIONALITY
Mother of child filed suit for divorce against her husband, and child's putative biological father intervened to bring avowal action to establish paternity and custody of child born to mother during marriage to husband. Trial court dismissed putative father’s action. He appealed. Held: Putative biological father of child had no fundamental constitutional right to parent child, who was presumed to be child of mother's husband because child was born during mother's marriage to husband, and thus statute requiring putative father to institute avowal action to establish paternity within one year from the day of birth of the child was not unconstitutional as applied to putative biological father under federal and state due process and equal protection clauses.
PROPERTY DIVISION - ENFORCEMENT - CONSTRUCTIVE TRUST
“The trial court explicitly found that, prior to and during the divorce proceedings, Husband deliberately deceived and defrauded Wife and breached his fiduciary duties towards her. Given this finding, the trial court determined that the most equitable way to ensure that Wife got the future distribution of proceeds to which she was entitled, from all the Bakken and Energy A and B Units, was to hold all the Units in a constructive trust. As the trial court noted, these are contingent assets, and their future growth is a material part of their economic benefit. By requiring Husband to hold the Units in a constructive trust, any proceeds or income related to the Units are preserved for the mutual benefit of the parties, and Wife's marital share may be distributed to her without risk of unjustly enriching either party. ... The trial court did not abuse its discretion in determining the Energy A and B Units were marital assets, arranging for their deferred distribution, and effectuating that distribution through a constructive trust. We vacate the Court of Civil Appeals decision and affirm the trial court.”
PROPERTY DIVISION - FROZEN EMBRYOS
“This case returns to us on appeal from an order entered by the Circuit Court for Baltimore County, Maryland, determining the disposition of a pre‑embryo generated through the process of in vitro fertilization (“IVF”).2 The parties, Jocelyn P. (“Jocelyn”) and Joshua P. (“Joshua”), resorted to the IVF process during the course of their marriage after they attempted, unsuccessfully, to conceive a child by natural means. The couple managed to produce three viable pre‑embryos for uterine implantation after Jocelyn gave up her job and endured years of emotional and physical pain and suffering. The implantation of the first pre‑embryo resulted in a miscarriage, while implantation of the second happily culminated in the birth of the parties’ first child, F.P. Unfortunately, after F.P.’s birth, Jocelyn and Joshua's relationship deteriorated and the parties ultimately sought dissolution of the marriage. After agreeing to settlement terms on all other matters, the fate of the parties’ third pre‑embryo—which Jocelyn desires to use for implantation and Joshua desires to destroy—remained in dispute.... The circuit court, in reaching its decision, relied entirely on Joshua's testimony that the parties did not specifically discuss giving the embryos a chance at life outside their marriage. The court's holding, therefore, added a qualifier to the parties’ clear oral agreement—i.e., to give each pre‑embryo a chance at life, no matter what, except in the event of divorce—to which Jocelyn and Joshua never actually agreed. We cannot, under an objective theory of contract interpretation, accede to the court's revision of the parties’ oral agreement.”
PROPERTY DIVISION - MILITARY PENSION - USFSPA PRE-EMPTION
Kathleen M. Parish, now known as Kathleen M. Spence, filed a motion to modify alimony. The district court dismissed the motion for lack of subject matter jurisdiction. Kathleen appeals. A dissolution decree (Decree) had awarded each party an interest in the couple's retirement properties and in addition had awarded Kathleen alimony that could be modified if her former spouse, Robert J. Parish, accepted a veteran's disability pension. The Decree was not appealed. Robert accepted a veteran's disability pension, thereby reducing his retirement benefits and consequently reducing the value of Kathleen's share of his benefits under the Decree, and Kathleen sought to modify alimony. The district court evidently believed that the original alimony award was improper and, in any event, believed it was being asked to divide Robert's veteran's disability benefits, which it concluded it could not do because it was preempted by federal law. The district court dismissed the matter for “lack of subject matter jurisdiction.” Contrary to the district court's reasoning, it was merely being asked to consider modifying alimony based on a reduction in Robert's non-disability pension he shared with Kathleen. The district court had jurisdiction to consider the request to modify alimony. Reversed. “Our examination of the special alimony provision in the Decree shows that it does not indemnify Kathleen for the reduction of her share of veteran's retirement pay. It does not require division of Robert's disability benefits. It merely provides that if Robert's retired pay is reduced by his election of disability benefits, Kathleen may seek a modification of alimony. The reduction of the value of Kathleen's share of retirement pay would be a relevant consideration in a modification of alimony analysis. The district court was not being asked to enforce a preempted or otherwise void provision.We do not read Mansell and Howell as prohibiting a provision that permits a court to take into consideration the receipt of disability benefits when calculating awards in family law. The district court had jurisdiction over the request to modify alimony, and the alimony provision in the Decree was enforceable and not void.” And by the way, res judicata bars the husband’s defenses.
PROPERTY DIVISION - PENSION - STATUTE OF LIMITATIONS
“When Jon and Tamara Holliday divorced in 2009 after 24 years of marriage, the district court divided Jon's not‑yet‑payable retirement account with the Kansas Public Employees Retirement System equally between them. It directed Tamara to prepare a qualified domestic relations order “to effectuate this division.” In 2021, as Jon readied for retirement, he asked the court to extinguish Tamara's interest in his KPERS account. He claimed her judgment from the divorce had gone dormant because she did not send a copy of it to KPERS as instructed. The district court rejected this argument, but a Court of Appeals panel agreed with it. On review to resolve the conflict, we hold K.S.A. 2020 Supp. 60‑2403(c) tolled the dormancy period until Jon's benefits from his KPERS account became payable. We reverse the Court of Appeals panel that held otherwise and affirm the district court.”
Anne and Steven married in 1975. Steven subsequently began working at the Rhode Island Department of Corrections as a Senior Probation Counselor, a position he held for the rest of the marriage. Anne, on the other hand, went to work for the Town of Coventry in 1986. She initially worked part‑time and earned no benefits, but began working full‑time for the town in 1992 after filing for divorce from Steven on May 26 of that year. During the course of the divorce proceedings, neither party conducted discovery, nor prepared expense sheets under oath. Steven drafted a proposed property‑settlement agreement and presented it to Anne and her counsel. Anne accepted the property‑settlement agreement, modifying it only insofar as to require that Steven provide health insurance coverage until she remarried. Anne's counsel did not request financial disclosures from Steven or take any steps to inquire about the existence of assets not identified in the property‑settlement agreement. The parties signed the property‑settlement agreement on September 19, 1992, and the Family Court incorporated and merged the property‑settlement agreement into the final judgment entered on February 1, 1993. On June 27, 2017, Anne filed a motion for post‑judgment relief seeking an award of one‑half interest of the marital portion of Steven's pension. Anne did not allege that Steven engaged in any fraud or misrepresentation, but asserted that Steven “concealed” the pension by “not address[ing] this asset at the time of the Divorce” and by “not mak[ing] this asset known to [Anne] or her Counsel.” On October 12, 2021, a written order entered enforcing paragraph 33 of the property‑settlement agreement and awarding Anne one‑half of the marital portion of Steven's pension. Steven filed a notice of appeal prior to entry of an order stating the retroactive amount owed. On August 1, 2022, the trial justice ordered that Steven owed Anne monthly payments of $414.35 from November 2005 to July 2022, which reached a total of $83,284.35. Steven appealed. Held: Statute providing for 20‑year limitations period for actions on judgments applied to former wife's action to reopen final divorce judgment that incorporated and merged property‑settlement agreement, and thus time for former wife to file motion to reopen judgment accrued on date that judgment was entered. Anne’s action was thus time barred.
PROPERTY DIVISION - PET
Husband filed for divorce from wife. The only contested issue was ownership of the parties' dog. Held: Pet animals are property under Vermont law and are therefore subject to division in divorce proceeding. In addition to considering the listed equitable distribution factors, in the case of a pet, the court may consider two additional factors: “ the welfare of the animal and  the emotional connection between the animal and each spouse.” “Applying the two ... factors, the court found that husband and wife were each able to meet Zola's needs, including providing play time and medical care. The court found that each party had strong emotional bonds with Zola, although wife's seemed to be greater. It found that husband's unilateral and unexplained decision to cut off contact between wife and Zola was troubling and called into question his regard for Zola's emotional attachment to wife. Considering the above, it concluded that the two factors favored assigning Zola to wife.” “We ... hold that the trial court was within its discretion in assigning Zola to wife, and that the court's findings are supported by the evidence and the findings support its determination.”
LAW REVIEW ARTICLES OF INTEREST:
News Items of Interest:
SCOTUS will decide whether subjects of domestic‑violence restraining orders can be banned from gun ownership, pursuant to 18 U.S.C. § 922(g)(8). U.S. v. Rahimi, No. 22‑915. Because putting guns in the hands of domestic violence perpetrators is always a good idea!See the opinion here.
I just love a good high-income child support case. Kevin Costner’s wife Christine asks 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.
Kevin responded that guideline support based on the parties’ incomes is $123,620, and that Christine’s request was inflated and exaggerated to support her own lifestyle, including $126,000 in just one year for plastic surgery.