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December 08, 2021 Case Update

March 2021 Case Update

Vol. 25, No. 3

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 February, as they were not posted to Westlaw until after I prepared the February update on March 10, 2021. I’m looking at you, New York.)


In re Adoption of Yasmin S., 308 Neb. 771 (Nebraska Supreme Court, March 26, 2021)

Same‑sex married couple sought to adopt a child. The trial court determined that it lacked authority to permit adoption by a “wife and wife” and denied the request. The same-sex couple appealed and filed a petition to bypass review by the Court of Appeals, which was granted. Held: The adoption statute allows a same‑sex married couple to adopt a minor child. The statute in question provides that “any minor child may be adopted by any adult person or persons and any adult child may be adopted by the spouse of such child's parent in the cases and subject to sections 43‑101 to 43‑115, except that no person having a husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor. If the husband or wife so joins in the petition therefor, the adoption shall be by them jointly, except that an adult husband or wife may adopt a child of the other spouse whether born in or out of wedlock.” In the language of the statute, Yasmin is "any minor child," while Kelly and Maria are "any adult person or persons." A wife is commonly understood to be "[a] married woman." Based on the understanding of that word in current usage, Kelly is a "person having a ... wife." So, too, is Maria. Under § 43‑101(1), "no person having a husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor." Here, the wife joined in the petition for adoption. The plain language of § 43‑101(1) allows a same‑sex married couple to adopt.


State ex rel. DSS v. Heard, No. 2020‑0708 (Louisiana Court of Appeal, First Circuit, February 25, 2021)

Louisiana law provides that when a payor willfully fails to withhold or pay over income pursuant to a valid income assignment order, the court, upon due notice and hearing, shall enter judgment against the payor, which sum is to be made executory, and may impose a fine against the payor, up to fifty dollars per day, for the failure to withhold or pay over the support in accordance with the provisions of the notice of income assignment. The husband’s attorney, Ms. Grodner, as the payor of income to the husband (a personal injury settlement), received two notices of income assignment from DCFS regarding the husband’s child support obligation and arrearage. Upon her receipt of those notices, she was obligated to withhold or pay over the amounts stated therein to DCFS. The husband’s attorney disagreed with and objected to the basis for DCFS's claim to an income assignment of those funds, and refused to pay over the funds to DCFS. Held: the attorney was in contempt. She was fully aware of DCFS's position that it was entitled to and had the right to those funds. Rather than resolving the dispute through the myriad of appropriate legal courses of action available to her, the attorney chose to disregard DCFS's claim and to disburse the entirety of the net settlement proceeds in the amount of $4,480.02 to the husband. Therefore, based on the record, the trial court did not err in its determination that the attorney’s conduct was willful and that she willfully failed to comply with a notice of income assignment. “Accordingly, we find no error in the trial court's rendition of an executory judgment against Ms. Grodner in the amount of $4,480.02 or in its order that Ms. Grodner to pay a fine of $25.00 per day until all sums were paid in full.”


Self v. Dittmer, 2021 Ark. App. 85 (Arkansas Court of Appeals, Division II, February 24, 2021)

For a circuit court to change custody of children, it must first determine that a material change in circumstances has transpired from the time of the divorce decree and then determine that a change in custody is in the best interest of the children. Okay, no problem with that. The court continued, though, that even though there had been a material change in circumstances, to wit, the parties failure to communicate and the children’s stated desire to live with their father, the trial court did not clearly err in finding that the best interests of the children did not warrant modification of joint legal and physical custody. “The circuit court recognized the parties’ lack of communication and the effect on their ability to effectively coparent LS. Testimony also clearly indicated that the parties had differing views on a number of issues, including bedtimes, screen‑time limits, and medical issues. But the court noted that both parents love the children, the children love both parents, the parents are both capable of being good parents, and the children were doing well at school and in their various extracurricular activities. Moreover, LS and Dittmer's counselor testified that the problem was a result of discord and lack of communication and that changing physical custody of the children would not solve the issues.”

(Ed. note: Call me crazy, but an ability to co-parent, which the court specifically found the parties lacked, seems to be the sine qua non of joint legal custody. The fact that both parents love the kids and are good parents on their own isn’t enough. Your editor has real problems with this decision.) 


Matter of A.B., No. 20A‑MI‑1580 (Indiana Court of Appeals, February 24, 2021)

“In this consolidated appeal, three parents appeal the denials of their petitions to change their children's gender markers as set forth on the children's birth certificates. We reverse and remand with instructions.” The court framed the question thus: “ The question is whether a parent has the authority to ask a court to amend the gender marker on a minor child's birth certificate.” The court concluded, “Considering the broad language of Indiana Code section 16‑37‑2‑10(b), and the wide authority of parents to make decisions about their children's lives, we conclude the trial court in C.V.’s case erred in stating C.V.’s father lacked the authority to request a change to the gender marker on C.V.’s birth certificate.”


F.F. v. State, No. 530783, 2021 NY Slip Op 01541 (New York Supreme Court, Appellate Division, Third Department, March 18, 2021)

New York public health law requires children from the ages of two months to 18 years to be immunized from certain diseases. Initially, the school vaccination law contained two exemptions to this requirement: a medical exemption requiring a physician's certification that a certain vaccination may be detrimental to a child's health, and a non‑medical exemption that required a statement by the parent or guardian indicating that he or she objected to vaccination on religious grounds. In 2019, the New York legislature repealed the religious exemption to vaccination requirements. Plaintiffs parents were granted religious exemptions from their children's schools prior to the repeal, and now seek a declaratory judgment that the repeal be declared unconstitutional and the legislation enjoined. Held: The repeal of the religious exemption withstands constitutional scrutiny. First, there was no showing of anti-religion animus. The repeal “was motivated by a prescient public health concern.” Second, there was no error in the legislature failing to hold hearings, when it had experts and “spirited floor debate.” Finally, “the religious exemption previously created a benefit to the covered class, and now the elimination of the exemption subjects those in the previously covered class to vaccine rules that are generally applicable to the public. In fact, the sole purpose of the repeal is to make the vaccine requirement generally applicable to the public at large in order to achieve herd immunity.”


In re Marriage of Levites, No. 2‑20‑0552, 2021 IL App (2d) 200552 (Illinois Appellate Court, Second District, March 3, 2021)

Husband filed petition against Wife for dissolution of marriage. Wife filed petition seeking to relocate with child to another state, partly on the basis of violent attack against mother carried out by father's friend. The court concluded that Wife had “good reason to be fearful” of Husband. This conclusion is obviously based on the attack and the trial court's belief that, while it could not say that Husband commissioned, planned, or participated before the fact in the attack, Husband’s actions after the attack suggested that he at least approved of the attack. Moreover, the fact that Husband posted bail for the attacker allowed the attacker to remain unincarcerated and represented an implicit threat by Husband (acting through others) to Wife’s safety. STILL, relocation denied. “However, in the court's eyes, the circumstances and reasonableness of respondent's motives for relocating were not decisive on the central question of whether the move would be in S.L.’s best interests. Under the second factor, the court considered petitioner's motives for resisting the proposed relocation and determined that, because of petitioner's interest in S.L. and the likelihood that the rancorous relationship between the parties would mean that such a move would sever petitioner's parental bonds with S.L., his opposition was sincerely motivated toward maintaining his role in S.L.’s life. Our review of the record shows that there was evidence supporting these conclusions.”

See also this video.


Alexander v. Alexander, No. COA19‑391, 2021‑NCCOA‑61 (North Carolina Court of Appeals, March 16, 2021)

This matter concerns the custody of the child (the “Child”) who was born to Plaintiff Amy H. Alexander (“Mother”) and Defendant Edward D. Alexander (“Father”). Father is now deceased; therefore, his custody claim has abated. The remaining dispute is between Mother and Father's parents, Intervenor‑Defendants Charles and Claria Alexander (“Grandparents”), and concerns whether Grandparents should enjoy visitation rights with the Child of their deceased son. Held: Trial court erred in two fundamental ways when it awarded visitation to Grandparents. First, the trial court failed to apply the presumption that child's mother's determination regarding with whom her child associated was in child's best interests. Second, the trial court's order granting child's paternal grandparents visitation every other Christmas and Thanksgiving, as well as every other weekend, against child's mother's wishes, impermissibly interfered with parent‑child relationship between mother and child such that grandparent visitation statute was unconstitutional as applied to mother; as child's sole custodial parent, mother had right to determine with whom child spent major holidays, mother was entitled to spend such holidays with child, and mother had the right to direct how child spent a large majority of weekends.


Greenbank v. Vanzant, No. 1 CA‑CV 20‑0300 FC, 39 Arizona Cases Digest 59 (Arizona Court of Appeals, Division 1, March 9, 2021)

Bonnie Vanzant (“Grandmother”) appealed the trial court’s ruling dismissing with prejudice a visitation enforcement action, which rendered void a prior stipulated order granting Grandmother visitation with her grandchild (“the Visitation Agreement”), and quashing a civil arrest warrant against the child's mother, Aasya F. Greenbank (“Mother”). “Arizona was the home state of the child under the Uniform Child Custody Jurisdiction and Enforcement Act. In 2012, the superior court entered the Visitation Agreement, a negotiated order granting Vanzant visitation privileges with her minor grandchild. Mother, however, immediately moved with the child to Canada, where she embarked on a long history of violating the agreement. In 2019, Mother obtained an order from a Canadian court modifying the agreement. The Arizona superior court then concluded that under the UCCJEA, the Canadian court's order automatically divested Arizona of exclusive, continuing jurisdiction. The superior court quashed a civil arrest warrant issued to remedy Mother's persistent violations of the Visitation Agreement and then dismissed with prejudice the entire matter. Although the result is arguably inconsistent with the spirit of the UCCJEA, we affirm because the superior court's orders are supported by the underlying Arizona statutes' plain language.”

(Ed. note: No, no, no. Arizona was the home state, as a parent continued living in Arizona so that no other place could strip it of jurisdiction or power. The Canadian order was a violation of the UCCJEA. The Arizona court could consult with the Canadian court, but it could not recognize an order that was granted by the Canadian court before the Arizona court determined that it no longer possessed jurisdiction. And Arizona could only determine that it would no longer exercise its jurisdiction under forum non conveniens, which doesn't apply in this case.) 


Nannan L. v. Stephen L., 191 A.D.3d 533, 2021 N.Y. Slip Op. 01001 (New York Supreme Court, Appellate Division, First Department, February 16, 2021)

The Support Magistrate properly imputed income to the father based on cash and in‑kind support provided by his family, both prior to and after the filing of his petition for a downward modification of child support obligations, including payment for various in‑patient drug treatment programs, medical, and dental care, and other expenses; father sold securities gifted to him by his family to purchase real property in his name then sold that property shortly after filing the petition, placing the proceeds in a trust from which he lived for a period of several years, eventually depleting those assets, and father's family had been paying for him to live rent‑free in a two bedroom apartment and gave him a substantial monthly stipend for his personal use.


Matter of Greenberg, No. 2019‑0734 (New Hampshire Supreme Court, March 24, 2021)

Vested restricted stock that father received from employer constituted income, not an asset, for child support purposes, even if father did not sell it; stock awards were part of father's total compensation package, and operated as a bonus.

Same holding:

In re E.J.S., No. 80912‑1‑I (Washington Court of Appeals, Division 1, March 22, 2021)


Halterman v. Halterman, 2021‑NCCOA‑38 (North Carolina Court of Appeals, March 2, 2021)

Mother's “petition to register foreign child custody and support order” of three Florida orders was subject to dismissal for lack of subject matter jurisdiction based on its failure to comply with statute governing requirements for registration of a foreign support order under the Uniform Interstate Family Support Act (UIFSA), notwithstanding father's own petition to register the orders under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and to modify custody in North Carolina.


Johnson v. Johnson, No. A20A2061 (Georgia Court of Appeals, March 2, 2021)

The husband argued that the trial court erred by requiring him to carry a life insurance policy greater than the total amount of alimony and child support. In a departure from most other states, the court held that the statutes do not limit the value of any such insurance to the future child support obligation or alimony obligation. The amount is within the trial court's discretion.


In re Z.W.E. v. L.B., No. 1190748 (Alabama Supreme Court, March 26, 2021)

The term “child” as used in the Uniform Parentage Act (2002) § 102(5), does not include an unborn child. Thus, the alleged father lacked the capacity to challenge the husband’s status of the legal father of the unborn child.


Sebestyen v. Sebestyen, No. 1 CA‑CV 20‑0072 FC, 39 Arizona Cases Digest 56 (Arizona Court of Appeals, Division 1, March 9, 2021)

“Husband argues that the court erred when it determined that his United Parcel Service pension plan benefits were a form of deferred compensation and therefore contained a community property interest. He argues, rather, that the benefits arose from his disability and loss of wages and are therefore his sole and separate property upon dissolution. The issue on appeal is whether Husband acquired the benefit by “onerous title”—which is acquired “by labor or industry of the spouses” or in “exchange for community property” and therefore community property—or by “lucrative title”—which is acquired by any way that is not through “onerous title,” including compensation for his personal well‑being or lost wages and therefore Husband's sole and separate property on dissolution of marriage. For the reasons stated below, we hold that even when eligibility for a pension is based on a disability, when the pension plan calculates that benefit based solely on accrued years of service, the benefit is earned entirely through “onerous title” as a form of deferred compensation, making the portion of the benefit earned during marriage community property subject to distribution on dissolution of marriage.”


Roth v. Roth, No. 2D19‑2559 (Florida District Court of Appeal, Second District, March 3, 2021)

The nonmarital property belonging to an injured spouse who has acquired a personal injury award during the marriage, for purposes of equitable distribution in a dissolution action, includes the portion of the damage award for pain and suffering. So far, so good - the court is following the analytic approach. Here, however, there was no allocation to pain and suffering in the settlement agreement, and so the entire personal injury award was deemed marital. “The court cannot be faulted for failing to parse details it did not have; neither party introduced any evidence showing the components of the award.” But what the court giveth, the court taketh away. “Absent any evidence that the dissipation resulted from either party's intentional misconduct, it was an abuse of discretion to include the dissipated funds in the equitable distribution scheme.”

For another decision this month on personal injury awards, where the court concluded the award was nonmarital property, see Cherry v. Cherry, No. CV‑19‑363, 2021 Ark. 49 (Arkansas Supreme Court, March 4, 2021)


Estate of Aubert v. Wilson, No. S17573 (Alaska Supreme Court, March 26, 2021)

“This appeal concerns the equitable division of property in divorce. After filing for divorce from her husband, the wife moved to bifurcate proceedings so the parties could be immediately divorced, with their property to be divided later after trial. The superior court granted the motion and issued the divorce decree in the wife's favor. Shortly after the divorce decree, but before the property division trial, the husband died and his estate was substituted as a party. After trial, the superior court divided the marital property 90% to 10% in favor of the wife. ... We hold that, as a general matter, the superior court did not abuse its discretion in awarding a disproportionate share of the marital property to the wife in light of her greater needs. But because the superior court erred in classifying several items, we reverse or vacate some of its rulings and remand for further proceedings consistent with this opinion.... The estate argues that the superior court abused its discretion in dividing the marital estate because it "based this 90/10 allocation at least partially on the fact that one party was the estate of a deceased spouse," which constituted "consideration of an improper factor." The estate argues that at the time of separation "Debra was not the economically disadvantaged party" and that "the parties' relative earning capabilities did not favor Debra." The estate also asserts that the balancing factors should "create a division of assets closer to 50/50." The estate's argument that the court improperly considered David's death is unpersuasive.61 David's death could be properly considered as an element of "the circumstances and necessities of each party." Because David is deceased, Debra's relative financial needs are far greater. This disparity is a reasonable basis to order an unequal division of the marital estate.


King v. King, No. 1D19‑3280 (Florida District Court of Appeal, First District, March 4, 2021)

A class on how NOT to value an insurance company and calculate income from a Sub-S corporation. Every point on appeal was sustained.


Potter v. Potter, No. 1D20‑603 (Florida District Court of Appeal, First District, March 15, 2021)

Parties were married for nine years, divorced, remarried less than a year later, and were married another eight years. Held: lengths of multiple marriages may be combined when calculating length of marriage in an alimony determination, and the trial court acted within its discretion in combining lengths of parties' two marriages in determining alimony.


Dolan v. Dolan, No. 20‑P‑76, 99 Mass. App. Ct.284 (Massachusetts Appeals Court, March 2, 2021)

While a judge may not consider capital gains income derived from an asset received in the divorce as income in determining an appropriate award of alimony in a modification of alimony proceeding, a judge can consider that income when making the threshold material change in circumstances determination.


Sejal Singh, Does Teaching Yoga to Children in Public Schools Violate the Establishment Clause of the First Amendment?, 41 Child. Legal Rts. J. 27 (2021)

Natasha Wasil, Note, Ohio's Love‑Hate Relationship with Marital Agreements: Why Ohio Should Lift its Prohibition on Postnuptial Agreements, 69 Clev. St. L. Rev. 511 (2021)


Jessica Markham, Representing Federal Employees and Their Spouse in Divorce: A Practical Guide (ABA 2021)

NEXT MONTH: A review of the nifty, handy-dandy one volume Family Law in America by Sanford N. Katz, former Chair of the ABA Section of Family Law.


ABA Opinion 498 - The Ethics of the Virtual Office.

Some commentary on the opinion.  

Japanese court rules that the government’s ban on same-sex marriage is unconstitutional.

Remote hearings fall short of the full courtroom experience, according to a new study.

American Rescue Plan’s expanded child tax credit creates thorny issues for parents who alternate claiming child each year on taxes.

Connecticut, typical of other states, faces a horrendous backlog in the family court.

Relatedly, divorce rates are dropping, because parties can’t get a hearing, or they are staying together through the pandemic because they can’t afford to get divorced.

In Hawaii, House Bill 1096 seeks to revise the Uniform Parentage Act to allow a person of any gender to establish parentage at a child’s birth. The stated purpose of the bill is “to update parentage laws that reflect outdated, cisheteronormative concepts of families, parenthood, and parental rights.

A judge in Windsor, Ontario has ruled that a parent’s vocal disbelief about COVID-19 is a factor in a child custody case.

Connecticut to consider bill, the Connecticut Parentage Act, that would extend parental status to non-biological, unmarried, and same-sex couples

West Virginia House of Delegates passed a bill prioritizing 50/50 physical custody.

Finally, in the department of “No sh*t, Sherlock”, the pandemic has been a disaster for women, as women have borne the brunt of job loss (in the U.S., 275,000 women left the workforce, compared with 71,000 men), and domestic violence has spiked.

See also Naomi Cahn, How Women Can Take Control in a Post-Pandemic World

But women aren’t angry at the pandmic. Women are angry at a system that devalues them at every turn.

“Since the pandemic began there have been torrents of stories about how women's careers have been crushed or they have left their jobs altogether because they're doing the lioness's share of domestic labor , especially child‑rearing, in heterosexual households. In February of this year, NPR opened a story with the assertion that this work has "landed on the shoulders of women" as if that workload had fallen from the sky rather than been shoved there by spouses.”

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