(Editor's Note: Some cases may be from February 2023, as they were not posted to Westlaw until after I prepared the February 2023 update on March 15, 2023.)
AGREEMENTS - PREMARITAL AGREEMENT - CONSTRUCTION - WAIVER
Estate of Bell v. Estate of Bell, No. 2021‑CA‑00789‑COA (Mississippi Court of Appeals, February 21, 2023):
An antenuptial agreement in which the husband and wife agreed that they would each have the unrestricted right to dispose of their own property “free from any claim that may be made by the other by reason of their marriage, and with the same effect as if no marriage had been consummated between them,” waived the husband's ability to recover from the wife's estate, even if it did not reference the statute automatically renouncing a will if the decedent makes no provision for his or her spouse. The existence of a marriage was a prerequisite to the operation of the statute, and the husband contractually waived his ability to assert any claim against the wife's estate by virtue of their marriage. Oh, and too bad that it’s very one-sided, not our problem. The agreement was equally binding on the husband and wife, and it merely perpetuated the already‑existing disparity between the parties' estates prior to the marriage. As they say, both the rich and the poor can sleep under a bridge.
AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - OMITTED ASSETS - DUTY TO DISCLOSE
In re Marriage of Hyman, No. 2‑22‑0041, 2023 IL App (2d) 220041 (Illinois Court of Appeals, February 24, 2023):
“The 13‑year marriage of Jeffrey and Rachel was dissolved on December 31, 2015. For a period during the marriage, Jeffrey had been self‑employed, running Strong Suit LLC (Strong Suit), a consulting company that he owned. In his answers to interrogatories, Jeffrey described Strong Suit as having ceased operations in 2010, although it remained a legal entity in Delaware. He also disclosed that Strong Suit's business checking account had been closed in September 2014. In May 2015, during the dissolution proceedings, Jeffrey stated in a response to a document request that, as of May 5, he had not established any new entities or businesses beyond those already disclosed, which included Strong Suit. However, in the spring of 2015, Jeffrey had reactivated Strong Suit. In June 2015, he entered into an agreement with Fitness, Cubed, Inc. (Cubed), to provide consulting services “for no more than an average of two hours per week.” The sole consideration for these services was stock options issued by Cubed. Pursuant to the stock option agreement, Jeffrey was awarded nonqualified options to purchase 500 shares of Cubed stock at an exercise price of $7.30 per share for a nominal value of $3650. Forty of the options vested immediately, in June 2015; 20 shares vested on the first day of each month until May 2017. The vesting of options would occur only if Jeffrey continued to be a consultant on the vesting date. The stock option agreement was executed in Jeffrey's name individually, rather than that of Strong Suit, to avoid disclosure and tax issues. By the time the judgment of dissolution was entered in December 2015, 160 of the options had vested.” In February 2021, Rachel filed a petition for allocation of undisclosed marital asset, alleging that Jeffrey had failed to disclose as a marital asset his interest in Cubed and seeking the equal division of that interest. Jeffrey argued that “Rachel could have learned about the stock options of nominal value that Strong Suit was earning for its two‑hours per week of consulting for Cubed, had she decided to pursue further discovery and litigation instead of settling the case.” “Accordingly, Rachel “must be held responsible for her choice to end discovery and settle the case knowingly and self‑interestedly to secure her benefit of the bargain.” Held: Jeffrey had multiple opportunities and forums in which to fulfill his obligation to notify Rachel of the receipt of the stock options as compensation for his work for Cubed, but he failed in all instances. He cannot now complain that Rachel did not dig deeply enough after he failed to disclose the options when he should have.
AGREEMENTS - PROPERTY SETTLEMENT AGREEMENT - UNDERSTANDING, UNCONSCIONABILITY
Majid v. Hasson, 213 A.D.3d 1175, 2023 N.Y. Slip Op. 01035 (New York Supreme Court, Appellate Division, Third Department, February 23, 2023):
Husband and Wife married in Iraq in 1988 and thereafter immigrated to the United States. The parties have one unemancipated child. The husband commenced an action for divorce in April 2019. The wife applied for poor person status and appointment of counsel, which Supreme Court granted in June 2019. The parties thereafter engaged in discovery and, on the eve of trial, executed a settlement agreement. According to the wife, she immediately rescinded her assent and demanded the return of the agreement. When it was not returned to her, she sought, and was appointed, new counsel. The wife eventually moved to set aside the settlement agreement asserting that her lack of English proficiency and the general economic unfairness of the terms rendered the agreement unjust and unconscionable. Supreme Court denied the wife's motion in an order and entered a judgment of divorce incorporating, but not merging, the settlement agreement, thus prompting the wife's appeal. Held: Appeal denied. Wife undestood well enough. “[H]ere is no indication that this [of language] issue was even broached throughout the litigation – no request for a translator was made and the wife affirms that she herself made application to proceed as a poor person and for appointment of counsel, without apparent difficulty. The fact that English is her second language does not, in and of itself, prove that she was hindered in her understanding of the agreement, or was unaware of the implications of signing same.” As for unconscionability, the spousal support is so low that Wife may become a public charge. Remand on that issue.
After obtaining a judgment declaring that a prior judgment of divorce was void, the husband's first wife filed a complaint to the annul husband's subsequent marriage to his second wife following husband's death. The trial court held that the first wife lacked standing to bring the complaint. The first wife appealed. Held: The Lord giveth and the Lord taketh away. (1) The first wife had standing to annul the husband's subsequent marriage, after husband died, where second marriage was void as bigamous, but (2) the action to annul second marriage was barred by laches.
CHILD CUSTODY - FIRST AMENDMENT - “MOM” AND “DAD”
Rogowski v. Kirven, No. 725 WDA 2022, 2023 PA Super 33 (Pennsylvania Superior Court, March 1, 2023):
That part of the custody order that restricted the child's use of the terms “Mom” and “Dad,” or derivatives thereof, as applying only to the child's biological parents, such that child could not call his stepfather “Dad,” was not narrowly tailored to further state's compelling interest in protecting the physical and mental health of the child absent a causal link between the expression at issue and a risk of harm to the child, and thus, vacatur of that portion of the custody order imposing the speech restriction was required under First Amendment principles. The text of the trial court's order suggested that the court was more concerned that parents' mutual ill will and mistrust may have cultivated unhealthy bonds between the parents and child, not that the terms the child used to refer to her parents and stepparents were central to that process.
CHILD CUSTODY - JURISDICTION - MORE APPROPRIATE FORUM
As part of the parties’ divorce action (filed in 2021), the parties asked the Circuit Court to determine custody of the parties’ two minor children . At the time, the parties were living in Germany. In April 2022, while the father and the minor children were still living in Germany, the Circuit Court entered an order declining to exercise jurisdiction as to the custody of the minor children on the grounds that Germany was the appropriate forum to determine the issue of custody. The mother appealed. The question to be addresesd is whether the Circuit Court err in refusing to exercise jurisdiction over the custody dispute. Held: “The record makes plain that the German Court did not decline to exercise its jurisdiction on the ground that Maryland was the more appropriate forum, as required by FL § 9.5 201(a)(2). Rather, the German Court, by way of its January 2022 order, terminated simply the custody proceedings in Germany upon learning that a custody dispute was pending already in the United States as a result of Father having filed his complaint for divorce in the Circuit Court. In so doing, the German Court stated that the “earlier pendency of proceedings there precludes the continuation of the present custody proceedings relating to the same subject matter” and that the “question of the right to determine place of residence for the children of the parties is to be finally clarified in the context of the custody dispute conducted in the USA.” We see nothing in that language to indicate that the German Court was declining jurisdiction, only that the German Court was deferring to the Maryland Court to clarify the children's place of residency. That is what the Circuit Court did in the present case.”
(Ed. Note: Thanks to Melissa Kucinski for the heads up. Don’t forget to follow her blog.)
CHILD SUPPORT - DEPENDENT - CHILD TAX DEDUCTION
Unmarried father moved to be able to claim the parties' minor child each year as his dependent pursuant to the Internal Revenue Code, and mother requested a court order allowing her to claim the child every other year. The trial court awarded the dependent child tax deduction to the parties on alternating years. Father appealed. Held: The trial court did not provide the required justification for awarding the dependent child tax deduction to minor child's parents, who had joint legal custody and equal timesharing, on alternating years, rather than to only father, who had higher adjusted gross income and thus qualified for the deduction under IRS rule. The trial court could not bind third parties, like the IRS, by its orders and instead could only have ordered the father to sign a waiver in favor of the mother as the noneligible party for a stated, sound reason reliably related to the support of the child, and trial court did not state a reasonable nexus to support assigning the exemption to mother for the alternating years.
CHILD SUPPORT - EXTREME HIGH INCOME EARNER
A.G.W. v. C.L.C, No. 2D22 126, 48 Fla. L. Weekly D388 (Florida District Court of Appeal, Second District, February 17, 2023):
The parties never married but produced a child in 2009. A 2012 final judgment of paternity set the Father's monthly child support obligation at $2,000. The Mother has had full custody since birth; the Father has never met the child. The Father went on to become a professional baseball player, after which the parties entered into a settlement agreement that was incorporated into an amended final judgment in 2016. Therein, the parties agreed that the Father's monthly child support obligation was $8,000, which “shall be non modifiable through December 31, 2018[,] for any reason, as the Father's contract with the [baseball team] is guaranteed through this date.” The Father agreed to “prepay” the support due through the end of 2018 via two lump sum payments made during 2016. The parties agreed to exchange financial information in December 2018 “to assess whether a modification is appropriate.” Following that exchange, in July 2019, the Mother filed a supplemental petition for modification of child support, alleging a substantial change in circumstances. In particular, she alleged that whereas the Father's annual salary at the time of the 2016 amended final judgment was $2,300,000, it had now increased more than four fold to $9,750,000. The Mother later amended the petition in April 2020 to add additional details, including that the $9.75 million income figure was just base salary and did not include additional income from product endorsements. She also sought attorney's fees. Winning this month’s brass balls award, the Father's May 2020 response to the amended petition included a counter-petition for downward modification of child support. As grounds, he alleged that, during the same period that his $2.3 million income more than quadrupled, the Mother's gross annual salary also rose, from approximately $46,000 to $66,700. Based solely on that increase, the Father alleged that there was no longer any need for the existing support amount “as the minor child's needs can clearly be met at a lower amount,” and he sought a variation of more than five percent below the Child Support Guidelines amount. He also asked for an award of attorney's fees. At the trial, the court recognized that the guidelines would call for a monthly obligation of $25,522. The court also found that “the total monthly need for the minor child is” $3,891.50. The court further found that “it would not be a fair and just result to require the Father to pay child support in the amount provided by the Child Support Guidelines as same substantially exceeds the actual bona fide needs of the child. The Child Support Guidelines reflects almost four times as much money as the Mother would bring in on her own on a monthly basis.” Based on that finding alone, the trial court granted the Father's counter-petition and reduced the amount of his monthly support obligation that the parties had agreed to by more than half, to the amount it found as the child's current need. The Mother appealed. Held: The trial court misapplied section 61.30(1)(a) and the authorities construing it by expressly basing the child support obligation only on need and declining to give legal effect to the Father's undisputed good fortune. Further, the court failed to address the Father's “heavier burden” to establish a reduction from the parties' prior agreement to a higher monthly support amount. The Father agreed to that amount when he was earning considerably less money per year, in a written agreement that was incorporated into the 2016 judgment and expressly contemplated modification based on financial developments. Yet the court did not appear to consider the legal effect of that agreement in deciding the petitions. This too was error.
CHILD SUPPORT - FEDERAL STIMULUS PAYMENTS
Josefina O. v. Francisco P., 213 A.D.3d 1158, 2023 N.Y. Slip Op. 01031 (New York Supreme Court, Appellate Division, Third Department, February 23, 2023):
Family Court did not have jurisdiction to direct father to remit to mother federal stimulus payments received by father for the benefit of the children under the guise of a temporary order of child support in proceeding on mother's family offense petition and subsequent action for divorce, since federal stimulus payments were subject to equitable distribution; stimulus payments were not paid for the benefit of the minor children, but rather were parties' advance refund for tax credit earned pursuant to parties' last tax return, which was jointly filed, and there were no circumstances present in which tax refund could be seized to satisfy child support obligations.
CHILD SUPPORT - INCOME - IMPUTED INCOME - LIFESTYLE
Evidence of father's lifestyle and activities indicated he continued to live a lavish lifestyle and that he was working as a recruiter and scout for a sports marketing agency again, despite his claim that he was still unemployed, and, thus, supported modification of father's child support obligations from $190 to $937 per month based on imputed annual income of $100,000, where father attended several sporting events, including with floor seats, father said he went to games for personal entertainment, but later said if he noticed a potential client he would have pursued it, only days before the rehearing father stated he was called to California to recruit and scout a potential player, father continued to own his home and pay utilities, and 2018 tax return reflected gross income of $145,362.
CHILD SUPPORT - INCOME - MILITARY DISABILITY PENSION, MILITARY PENSION
Paul and Ellen were divorced; there are three children of the marriage. Paul has two sources of income: a military disability benefit of $2,571.85 monthly and a military pension of $2,491.00 monthly. Paul’s first wife, not Ellen, receives a monthly payment of $622.75 from his military pension and a monthly payment of $189.72 for a Survivor Benefit Plan (SBP). Ellen receives a monthly payment of $327.00 from his military pension as part of the property division. Paul that argued the payments made to his ex wives should be deducted from his total gross income when calculating his child support obligation. The district court disagreed, and Paul appealed. Held: Reversed. First, “the allocation of $622.75 to Paul Reed's first ex wife should not be included in his calculation of income for child support because the funds are the property of his first ex wife. The payment is specifically included in the property division in Paul Reed and his first ex wife's divorce judgment.” Second, “[t]he monthly payment of $327.00 to Ellen Reed from Paul Reed's military pension is Ellen Reed's property and should not be included in calculating Paul Reed's income. The monthly payment of $327.00 to Ellen Reed is included in the divorce decree in the section dividing the property between the parties.” Third, “[t]he monthly SBP payment of $189.72 was correctly included in Paul Reed's income. The SBP payment is not included within the division of property in the divorce judgment.”
CHILD SUPPORT - MODIFICATION - UNCLEAN HANDS
In re Marriage of Cohen, No. G060697 (California Court of Appeal, Fourth District, Division 3, February 16, 2023):
Dismissal of former husband's appeal from order granting wife's motion to dismiss husband's request for order terminating spousal maintenance and modifying child support was not warranted, under disentitlement doctrine, based on husband's repeated failures to comply with spousal maintenance and child support orders; there was no evidence that husband had disobeyed challenged order by filing requests for orders without being current on his obligations, and husband's repeated noncompliance with support orders was insufficient ground for depriving him of right to seek judicial review of trial court's dismissal order based on disentitlement.
CHILD SUPPORT - TERMINATION - AGE OF MAJORITY - AGREEMENT
Former husband's child support obligation continued through daughter's 21st birthday, despite language in marital dissolution agreement that child support terminated when children turned 18 or became legally emancipated, and thus contempt order was warranted based on failure to pay. The provision terminating support at 18 was unenforceable since the children had a vested right in child support until age 21, and the former husband presented no evidence to demonstrate that the daughter became emancipated prior to turning 21.
DIVORCE - PROCEDURE - TIME TO SHUT UP
Z.U. v. F.U., 2023 N.Y. Slip. Op. 50090 (New York Supreme Court, New York County, February 7, 2023):
The duration of this divorce action and post judgment proceedings is approaching the quarter century mark. But, neither that length of time nor the fact that this is the 50th motion sequence fully captures the Jarndyce like history that has transpired between these parties and in this courthouse. Like that fictional case imagined by Dickens in "Bleak House," this litigation has seen "processions" of jurists and "great bundles of papers." It too is "so complicated that no [person] alive knows what it means," and the case "still drags its dreary length before the court, perennially hopeless." Prior jurists who have handled this matter have described it as "long," "tortuous," "convoluted," involving "scores of motions," "endless," and "seemingly interminable." It has been noted that "much of the history involves the bad conduct of the parties, particularly that of defendant, which has created needless problems for the judges and staff of New York County Supreme Court and caused a constant and unconscionable drain on precious judicial resources." Indeed, Justice Saralee Evans (retired) presided over the case until she felt compelled to recuse herself.
For more bad behavior, read the case. (Ed. Note: How appropriate the caption, Z.U. v. F.U.)
PROPERTY DIVISION - FROZEN EMBRYOS
There is a whole lotta law out there about the disposition of frozen embroyos in a divorce action. When I searched the law review database in Westlaw for ti(embryo), I came up with 329 articles. A very cursory review of these articles evinces differing approaches to the question, but no case ever relied on the principles concerning the buying and selling of humans as chattel goods, i.e., slavery, until now. As summarized by the ABA Journal, “Richard E. Gardiner of Fairfax County, Virginia, ruled that a divorced woman seeking the embryos could sue on the basis of a law that governs the partitioning and distribution of goods or chattels on real property. Gardiner said the law is not limited to goods or chattels on land being partitioned, given an 1849 version of the law titled “partition of slaves and other chattels.” Slaves could be sold under the old law even though they were not annexed to the land. Given the “origins and evolution” of the current law, Gardiner reasoned, it permits goods or chattels to be partitioned as personal property not annexed to land.” Well, after Justice Alito cited a 17th century witch hunter as legal precedent in Dobbs, can we expect any less?
PROPERTY DIVISION - HEARING - COMIC BOOKS
The trial court did not abuse its discretion in awarding the husband his comic book collection without hearing evidence from an appraiser as to its value, in husband's action against wife seeking dissolution of marriage and equitable distribution of assets; court's decision to permit husband to retain the comic book collection was not related to the court's assessment of its value, but rather its conclusion that the parties’ marriage was of a short duration and wife did not contribute to the acquisition, preservation, or appreciation in value of any of husband's assets. Wife's argument that trial court should have considered husband's comic book collection in determining the financial positions of the parties and its award of alimony was inadequately briefed, on appeal in husband's action against wife seeking dissolution of marriage and equitable distribution of assets, where wife did not brief argument separately from her argument that court erred in awarding husband the comic book collection without having heard evidence from an appraiser with respect to its value.
PARENTAGE - STANDING - BIOLOGICAL FATHER
Alleged biological father of children brought action against children's biological mother and her husband, to whom mother was married at time of children's birth and who was listed as father on children's birth certificates, seeking to establish paternity, custody, and support. After genetic test results indicated 99.9% statistical probability that alleged father was children's biological father, the trial court established paternity of children in alleged biological father. Biological mother appealed, and husband cross appealed. Holding: Alleged biological father lacked standing to bring action.
(Ed. Note: The states vary widely on whether a putative biological father may assert parentage of a child born to an intact marriage. See Jeffrey A. Parness, Faithful Parents: Choice of Childcare Parentage Laws, 70 Mercer L. Rev. 325 (2019)).
PARENTAGE - IVF - NON-BIOLOGICAL PARENT
Glover and Junior legally married in Pennsylvania couple and planned and conceived a child together. They: jointly purchased sperm together from a sperm bank (the agreement with the cryobank listed Glover as the “Intended Parent” and Junior as the “Co Intended Parent”); jointly signed an agreement with the fertility clinic (Glover signed as “Patient” and Junior signed as “Partner”); jointly went through the in vitro fertilization (IVF) process, with Junior injecting Glover with fertility drugs on a daily basis; jointly consulted an attorney about Junior completing an adoption process for the child after birth; and each signed affidavits with the attorney indicating that the other was intended to be a parent of the child. Despite all these steps, the Pennsylvania Superior Court held this was not enough to establish the non-biological parent’s parentage. The majority held that the parties did not have an enforceable contract and therefore, Junior was not a parent.
PROPERTY DIVISION - CLASSIFICATION - COMMINGLING
The parties agreed that the funds from the sale of Cardinal stock were placed into joint retirement accounts, and marital funds were deposited as well into the accounts. Jeffery's 401(k) account was also rolled over and interspersed into the joint retirement accounts. Jeffery does not dispute that his separate moneys were comingled with marital funds. Neither party could explain to the circuit court what funds were marital funds and what funds were proceeds from the sale of stock. The parties were married and lived together for fifteen years prior to their separation in May 2017. Their testimony clearly indicated that what might have been separate funds from the exercise of the stock options was commingled with marital funds. In this case, Jeffery failed to show that the funds maintained their separate character primarily because of the difficulty of tracing such funds over the course of a nineteen year marriage at the time of the divorce.
PROPERTY DIVISION - CLASSIFICATION - SICK-PAY
Barzonni v. Gamble, No. 2021 CO 32, 2023-Ohio-894 (Ohio Court of Appeals, Seventh District, March 10, 2023):
In August 2020, the domestic relations court issued a decree of divorce dividing the parties’ marital property. Among other terms, the decree provided that Husband would pay Wife $3,300 per month in spousal support. The court based the spousal support award on a disparity in income. Specifically, at the time, Husband earned $130,000 per year through his occupation as the chief assistant prosecutor for the Columbiana County Prosecutor's Office. Wife, on the other hand, had never earned more than $12,000 per year during the marriage. Two months later, in December 2020, Husband moved for modification of spousal support, based on his retirement. In February 2021, Wife moved for relief from judgment—that is, relief from the divorce decree—pursuant to Civ.R. 60(B). Wife alleged that Husband had received approximately $96,000 upon his retirement from the prosecutor's office, which monies represented a payout of Husband’s sick/vacation benefits. Wife argued that the sick/vacation benefits were earned during the marriage, were marital property, and were subject to equitable division. Wife claimed that Husband, in violation of R.C. 3105.171(E), willfully failed to disclose the existence of the sick/vacation benefits during the divorce. Held: Husband had a valuable monetary interest in the sick/vacation benefits, which interest he acquired by working during the marriage. That interest constituted a benefit to him payable upon retirement. Thus, the sick/vacation benefits fit squarely within the definition of marital property as set forth in R.C. 3105.171(A)(3)(a)(ii). However, Wife failed to provide evidence that would establish that Husband engaged in fraud, misrepresentation, or other misconduct in a manner that would allow her to establish a ground for relief under Civ.R. 60(B)(3).
PROPERTY DIVISION - JURISDICTION - ENFORCEMENT - POST-DEATH
In re Marriage of Krilich, No. 1-22-1198, 2023 IL App (1st) 221198 (Illinois Appellate Court, First District, First Division, March 6, 2023):
In 1985, a judgment for dissolution of marriage was entered for Robert Krilich and Lillian Krilich, requiring both parties to leave at least half of their respective estates to children or grandchildren of the marriage. In 2020, Robert executed a will that allegedly failed to comply with the terms of the judgment. Following Robert's death in 2021, his children brought a petition to enforce the judgment against the representatives of Robert's estate (Donna Krilich and Walter Morgan) (collectively, respondents). Respondents moved to dismiss for lack of jurisdiction, alleging that Robert was domiciled in Florida at the time of his death, he owned no Illinois real estate, and respondents themselves had no contacts with Illinois that would subject them to personal jurisdiction. The circuit court denied the motion, respondents filed an interlocutory appeal. Held: The circuit court retained its jurisdiction to enforce its judgment of dissolution entered 36 years prior, even after the husband's death. The circuit court had jurisdiction over the original dissolution action, the circuit court expressly retained jurisdiction to enforce the terms and conditions of the judgment pursuant to its inherent power to enforce its orders, and the husband's death did not leave courts powerless to rectify his alleged wrongdoing. And the testator's children could bring petition against representatives of testator's estate to enforce terms of judgment of dissolution, because the representatives were not being sued as individuals, but were being sued in their capacity as representatives of the testator's estate.
PROPERTY DIVISION - LUMP-SUM MILITARY DISABILITY PAYMENT
Lump sum disability benefits payment that the husband received from the Department of Veterans Affairs during the marriage constituted non marital property and was therefore not subject to equitable distribution following parties' divorce, even though wife argued at least part of such award was marital property. While the parties did not cite any Georgia appellate decisions that directly addressed such issue, under federal law, VA benefits were not liable by attachment, levy, or seizure by or under any legal or equitable process whatever, and state courts in several other jurisdictions had determined the anti attachment clause of such federal law prohibited the categorization of VA disability benefits, including lump sum retroactive benefits, as a marital asset.
PROPERTY DIVISION - MILITARY RETIREMENT PAY - COVERTURE FRACTION
Use of “months” rather than “reserve points” in formula to calculate marital portion of former husband's military retirement plan pay was a clerical mistake in divorce decree, for purpose of rule allowing correction of clerical mistake in judgment; Defense Finance and Account Service (DFAS) formula used “months” to calculate pay upon retirement from active duty and “reserve points” to calculate pay upon retirement from reserves, husband had retired from reserves, and, while divorce decree assigned wife a 50% interest in husband's disposable retirement pay, incorrect term precluded wife from obtaining any pay. Proposed correction or clarification of clerical mistake in divorce decree to calculate husband's military retirement pay using “reserve points” rather than “months,” as husband had retired from the reserves, would not modify the judgment, which awarded wife 50% of husband's military retirement pay; clarification or correction would still determine what proportion of husband's retired pay was earned during the marriage and would in no way alter the 50% adjudicated to wife.
PROPERTY DIVISION - MILITARY RETIREMENT PAY - INDEMNITY
The parties entered into a marital settlement agreement. The court incorporated the marital settlement agreement into the final order of the court, and entered a Military Pension Division Order that memorialized the parties agreement. Under the terms of the MPDO, Wife was entitled to 30% of Husband’s “disposable military retired pay.” The MPDO further provided, “Furthermore, if [Husband] takes any action, including additional waiver of retired pay for disability compensation which reduces the former spouse share she is entitled to receive, then he shall indemnify her by giving to her directly the amount by which her share or amount is reduced as additional property division payments which do not terminate upon her remarriage or cohabitation.” Wouldn’t you know it, husband then received military disability pay, so that DFAS calculated the Wife’s share of the husband’s disposable military retirement pay to be only $253.20 per month rather than $1,202.70 she bargained for. The trial court, relying on Howell, held that federal law preempted Virginia law on questions involving the divisibility of military retirement benefits, and it could not enforce the indemnity agreement. The wife appealed. Held: We would agree with the trial court if today were Opposite Day, but today is not that day. Howell only forbids court ordered indemnification; Howell does not address whether spouses could voluntarily agree to indemnify a former spouse in the event military retirement pay is reduced.
(Ed. Note: Virginia joins other states that have likewise held that a contractual indemnity provision is not impermissible on the basis of Howell. See Jones v. Jones, 505 P.3d 224, 230 (Alaska 2022); Martin v. Martin, 520 P.3d 813, 819 (Nev. 2022); In re Marriage of Weiser, 475 P.3d 237, 249 (Wash. Ct. App. 2020). Congratulations to our Mark Sullivan for his victory in this important case.)
PROPERTY DIVISION - MILITARY PENSION - JURISDICTION
In re Marriage of Sullivan, 306 Cal. Rptr.3d 215 (California Court of Appeal, Fourth District, Division One, March 21, 2023):
“We therefore reject the trial court's ruling that a service member must explicitly and specifically consent to the court's authority to divide her military retirement.... Based on our interpretation of the statute, we conclude that Lisa consented to the court's jurisdiction over her to divide her military pension. It was Lisa who chose to file her petition for dissolution of marriage in a California court. By doing so, she voluntarily submitted herself to the court's jurisdiction and consented to its personal jurisdiction over her in any matter related to the dissolution proceeding. The division of Lisa's military retirement benefits (attributable to her Navy employment both before and after the marriage) was directly related to her request for confirmation of her separate property and division of the community property.”
PROPERTY DIVISION - PET DOG
Animals are personal property subject to distribution by the trial court in a marital dissolution action. Thus, the trial court did not err when it awarded the family pet to Wife. The trial court, however, also entered this order: “The [C]hildren shall be permitted to bring Roxy to Husband's home during their parenting time as they are also able to bring any other of their personal effects to Husband's home during their parenting time. Neither parent shall attempt to influence the [C]hildren to convince them to bring Roxy or to not bring Roxy to Husband's home.” Wife appealed, arguing that the trial court erred in giving the children control over her personal property. Husband argued that the trial court’s order was within its discretion, just as if had ordered that the children be allowed to bring a toy or game. Held: “Accordingly, while Roxy might be considered a member of the family, under Indiana law, she is Wife's personal property, and the Children cannot be awarded discretionary decision making authority to transport Wife's personal property to Husband's residence during parenting time. Although the trial court undoubtedly endeavored to reach a fair solution under difficult circumstances, the statute does not contain a provision for pet visitation, and it is not the province of this court to step in and fashion a remedy where the Legislature has abstained from doing so. Therefore, we reverse the trial court's Decree which allows Roxy to travel back and forth between the parties’ households during parenting time.”
PROTECTIVE ORDER - MENTAL ABUSE - SEXUAL ORIENTATION
The Circuit Court for Anne Arundel County entered a final protective order against C.M. (“Father”) on grounds that he was mentally abusive to his 12 year old son (“N.”) regarding his son's sexual orientation. Held: Affirmed.
(Ed. Note: Please read the case for more details of father’s behavior toward his children.)
TORTS - ALIENATION OF AFFECTIONS - STATUTE OF LIMITATIONS
The statute of limitations on the former husband's claim of alienation of affection against a man with whom the former wife had an extramarital affair accrued at time of affair and not when the former husband knew or had reason to know of the affair. Therefore, the former husband's claim was time barred; the discovery rule did not apply to the tort of alienation of affection.
(Ed. Note: Why not abolish the tort and be done with it? This decision makes it that much harder to bring an action for alienation of affections. Affairs are, by their nature, conducted in utmost secrecy and parties to affairs lie. For this reason, some states apply the discovery rule to the tort. See Misenheimer v. Burris, 360 N.C. 620, 637 S.E.2d 173 (2006); Turner v. PV Intern. Corp., 765 S.W.2d 455 (Tex. Ct. App. – Dallas, 1988). Please, just put a bullet in the heart of alienation of affection and call it a day.)
NEWS ITEMS OF INTEREST
New York Magazine special focus on divorce, “It’s Over”:
• Five Marriage Counselors on What Therapy Can’t Fix.
• How Rich People Get Divorced in Secret.
• Why You (Probably) Shouldn’t Get a Prenup.
• The First Great Date I Had After My Divorce.
• The Awkward Zoom Divorce is Here to Stay.
• All My Divorced Friends Are Sharing Custody of Their Pets.
• 9 Women on the Moment They Knew Their Divorce Was Over.
• My Marriage Was Never the Same After That.
• Everyone Announces Their Divorce Like a Celebrity Now.
Spanish TV Star Ana Obregón Reveals Surrogate Baby Is Her Late Son's. (BBC News, April 5, 2023.) (Ed. Note: For more on grandparents hiring surrogates to produce children fathered by a late son, see The Legal and Medical Ethics of PostMortem Sperm Retrieval on Behalf of Grandparents)
LEGISLATION OF INTEREST
Many states are now enacting the Indian Child Welfare Act into their own state law. After Nebraska, New Mexico, Oklahoma, Iowa, Michigan, California, Wisconsin, Minnesota, and Washington, Wyoming becomes the latest.