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December 08, 2021 Case Update

May 2021 Case Update

Vol. 25, No. 5

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


Penrod v. Penrod, No. ED 109069 (Missouri Court of Appeals, Eastern District, Division 2, May 18, 2021)

After all the usual objections to the validity of a premarital agreement, the trial court found the agreement valid, and the wife appealed. Held: (1) the husband fully disclosed his assets and their values at time of antenuptial agreement's execution; (2) the wife's assets were properly disclosed prior to executing the antenuptial agreement; (3) only the party harmed by the other party's failure to fully disclose assets can complain of inadequate disclosure; (4) the amount of time wife had to review the antenuptial agreement was not procedurally unconscionable; (5) substantial evidence showed wife received adequate, independent counsel before signing the antenuptial agreement; and (6) the antenuptial agreement was substantively conscionable. Read for more details.


Wisniewski v. Dolecka, No. 1 CA‑CV 19‑0667 FC, 43 Arizona Cases Digest 33 (Arizona Court of Appeals, Division 1, May 4, 2021)

Husband petitioned for annulment, alleging wife defrauded him into marriage to obtain legal residency status. The trial court determined that husband met his burden to prove fraud by a preponderance of the evidence and entered an annulment decree. Following denial of her motion to alter or amend annulment decree, wife appealed. Held: No, fraud in an annulment case must be proved by clear and convincing evidence. Vacated and remanded.


In re Marriage of Crecos, No. 126192 (Illinois Supreme Court, May 20, 2021)

“Although this court and the lower courts have used the terms "claims" and "actions" interchangeably, we now clarify that, for purposes of appellate jurisdiction, unrelated post-dissolution matters constitute separate claims, so that a final order disposing of one of several claims may not be appealed without a Rule 304(a) finding. In this case, the September 17, 2018, fee award was a final order on a post-dissolution petition. In entering the order, the trial court included Rule 304(a) language. Consequently, the appellate court did have jurisdiction over Gregory's appeal of that order. The appellate court thus erred in analyzing the September 17, 2018, order as a pre-dissolution interim fee award and in dismissing the appeal based upon lack of jurisdiction.”


Matter of Christie BB. v Isaiah CC., No. 527802, 2021 N.Y. Slip Op. 02847 (New York Supreme Court, Appellate Division, Third Department, May 6, 2021)

“Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother's right to display the flag (see generally People v Hollman, 68 NY2d 202, 205 [1986]), if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.”


Harris v. Evans, No. 2019‑249‑Appeal, No. 2020‑79‑Appeal (Rhode Island Supreme Court, May 13, 2021)

The trial court, on remand for consideration of the father's motions to adjudge the mother in contempt of a child visitation order and request for modification of the visitation schedule, did not exceed the scope and duration of the remand order by prohibiting the parties from recording one another during pickup and drop off of the child for visitation. The  trial justice was confronted with flagrant contemptuous behavior by mother, who consistently and defiantly attempted to frustrate or disregard court's order, the prohibition was attempt to remedy her contempt and mitigate the disputes between the parents, and the order was entered while the matter was on remand.

[Ed. note: Perhaps I’m not getting it, but it seems to me that if the mother knows she is NOT being recorded, she has no reason to act reasonably; recording would help, not hurt.]


C.N. v. I.G.C., No. SC20‑505 (Florida Supreme Court, April 29, 2021)

Statute governing modification of parenting plans, including timesharing schedules, neither authorizes nor requires a trial court to set forth specific steps necessary to reestablish timesharing upon modification of a preexisting parenting plan; abrogating Munoz v. Munoz, 210 So. 3d 227, Tzynder v. Edelsburg, 184 So. 3d 583, and Witt‑Bahls v. Bahls, 193 So. 3d 35.


Christensen v. Seckin, 486 P.3d 181 (Alaska Supreme Court, May 14, 2021)

The father filed a post‑divorce motion to modify a Turkish custody order, seeking interim custody of a child who was born in Turkey, but who later spent time in Alaska for approximately one year before moving back to Turkey with his mother. The trial court dismissed the petition for lack of jurisdiction, and the father appealed. Held: (1) the parties’ custody stipulation during the time the child was in the state did not transfer jurisdiction to the trial court to subsequently modify original Turkish order; (2) the trial court lacked jurisdiction to modify Turkish order even if Alaska was child's home state; and (3) the mother's filing of custody jurisdiction affidavits did not confer jurisdiction on trial court to modify Turkish order.


Zheng v. Xia, 204 Conn. App. 302 (Connecticut Appellate Court, May 4, 2021)

“In the present case, the court found that “the application of [the] child support guidelines ... is inequitable and inappropriate” and ordered the plaintiff “pay to the defendant 13 percent of his net bonuses as additional child support annually. This order is a deviation from the guidelines based on [the] coordination of total family support and significant disparity in the parties’ income.” The court, however, made no specific finding as to why the child support guidelines were inequitable and inappropriate, save for alluding to the significant disparity between the parties’ incomes. That reason to deviate from the child support guidelines, i.e., disparity between the incomes of the parties, fails as a matter of law. Our Supreme Court has stated that “[i]ncome disparity may be considered ... only when the custodial parent has the higher income and deviation from the presumptive support amount would enhance the lower income [noncustodial] parent's ability to foster a relationship with the child .... This consideration is unambiguously intended to protect the noncustodial parent in circumstances where the income of the custodial parent far exceeds the income of the parent obligated to pay child support ....” That is not the situation in the present case, in which the unemployed defendant is the custodial parent who has no income aside from child support. The court, therefore, improperly considered the disparity between the parties’ incomes when it ordered the plaintiff to pay the defendant 13 percent of his net bonus income as supplemental child support. For this reason, we reverse the judgment only with respect to the lump sum, supplemental child support order.”


In re D.S., 2021 IL App (1st) 192257 (Illinois Appellate Court of Illinois, First District, Second Division, April 27, 2021)

Illinois’s Parentage Act contains a provision that identifies the population of men who are prohibited from allocation of parental responsibilities or parenting time. Subsection (a)(1) specifically identifies men who were either convicted or pled guilty to a criminal sexual offense. The father conceded he was within this class, but he filed a complaint to establish parentage, and argued that the mother’s prior consent that he parent the child precluded the mother’s motion to dismiss. Held: The mother's alleged prior consent to the father parenting of the child did not preclude relief on the mother's motion to dismiss the father's petition seeking to establish parentage and for allocation of parental responsibilities for the child under the Parentage Act on the basis that the child was conceived through nonconsensual sexual intercourse due to age of the mother, who was a minor when the child was born, and that the mother did not currently consent to the father's parenting time. Nothing in the Parentage Act bound the mother to a prior given consent, and binding the mother to a prior consent would have been contrary to the legislature's intent under the Parentage Act to give the mother complete autonomy to decide the issue of parenting rights when the child is conceived through sexual assault or abuse.


In re Marriage of Earley, No. 2020‑0051 (New Hampshire Supreme Court, May 5, 2021)

The trial court entered a final divorce decree awarding the husband part of the wife's interest in an irrevocable life insurance trust established by her parents. The wife appealed. Held: The wife's interest in the life insurance trust was not marital property, as it was subject to a spendthrift provision.

[Ed. note: Other states have held that you can't reach the spendthrift trust directly but the trust is still marital property and you can compensate owner with other assets. NH doesn't seem to allow this, since trust isn't marital property at all.]


Messick v. Messick, No. A21A0600 (Georgia Court of Appeals, May 18, 2021)

Lottery proceeds, which wife acquired from her own investment after filing for divorce but before entrance of a divorce decree, were marital property subject to equitable division in divorce proceeding against husband. Consequently, the court could not incorporate the parties’ agreement which purported to settle all property issues but did not address the lottery winnings. (Rude surprise for the wife, I’m sure. I can just see her popping that champagne bottle when she won the lottery after filing for divorce.)


Cornwell v. Cornwell, 309 Neb. 156 (Nebraska Supreme Court, May 7, 2021)

Use of immediate offset method resulting in lump sum payment to wife, rather than deferred distribution method resulting in percentage of every payment check, to value husband's disability pension for purposes of equitable distribution was warranted in divorce proceedings, though husband asserted that there was insufficient property for him to liquidate to equalize estate; divorce was contentious, immediate offset offered parties as clean as break as possible, reasons to use deferred distribution method were not present, as there was evidence of present value, amount of benefits was not unusually speculative, both parties had nonmarital property and income, and husband had access to significant funds outside marital estate. 


In re Marriage of Kaufman, 485 P.3d 991 (Washington Court of Appeals, Division 2, April 27, 2021)

Geoffrey and Heidi Kaufman negotiated a property settlement agreement that was fully incorporated into their marriage dissolution decree. The property settlement agreement and dissolution decree provided for an equal division of the Kaufmans’ community property, including Geoffrey's military retirement, and awarded Heidi permanent, “non‑modifiable” spousal maintenance. Under the spousal maintenance provision, Heidi was to receive monthly spousal maintenance payments equal to 50 percent of Geoffrey's monthly United States Department of Veteran's Affairs (VA) disability benefit or 50 percent of the amount of monthly military retirement he waived to receive VA disability benefits. If Geoffrey's VA disability benefit increased, Heidi would receive a proportionate increase in her share. There was no appeal of the dissolution decree.  In 2018, Geoffrey's disability rating increased, which permitted him to concurrently receive the full amount of his military retirement and VA disability benefits without waiver, increasing his overall monthly income. Predictably, because that’s what these guys do, Geoffrey then stopped paying Heidi spousal maintenance. Heidi filed a motion to enforce the spousal maintenance provision of the dissolution decree. The trial court granted Heidi's enforcement motion and awarded her back payments and attorney fees. Geoffrey appealed the order granting Heidi's motion to enforce the dissolution decree, arguing that the spousal maintenance provision in the dissolution decree violated federal and state law, making it void. He also asserts that the unappealed dissolution decree could not have res judicata effect because the spousal maintenance provision was void from its inception. Finally, Geoffrey argues that the trial court erred by awarding Heidi attorney fees below. Heidi requests attorney fees on appeal. Held: No, the order was not void under Howell v. Howell, 137 S.Ct. 1400 (2017).

The Howell Court emphasized that the state court ordered the military spouse to indemnify his former wife "dollar for dollar" to restore the portion of retirement pay that was lost. Id. at 1406. The state court's decision "rested entirely upon the need to restore [the nonmilitary spouse's] lost portion." Id. The Court recognized that any attempt to " reimburse' " or " `indemnify' " the nonmilitary spouse was merely a semantic difference and ultimately inconsistent with Congress's intent to exclude disability benefits from military retirement that could be divided and awarded in a dissolution. Id. Such indemnification was improper under the federal statute and Mansell. Id. Significantly, the Howell Court did not address res judicata or mention Mansell's footnote 5, leaving the res judicata analysis to the state courts.

Heidi argues that under the doctrine of res judicata, the trial court properly enforced the final, unappealed 2008 dissolution decree. Even if the trial court made a legal error in the dissolution decree, she contends the trial court did not lack subject matter jurisdiction to enter the dissolution decree, nor was the dissolution decree otherwise void. We agree. Pay up.


Watret v. Watret, No. 08‑20‑00124‑CV (Texas Court of Appeals – El Paso, April 26, 2021)

After the divorce decree was entered incorporating the parties' agreement, the wife moved for clarification of the decree, requesting division of the husband's military retirement benefits. The court issued a clarifying order and a qualified domestic relations order (QDRO), awarding the wife 50% of nine years of the husband's military retirement benefits. The husband appealed. Held: (1) the divorce decree's terms regarding the division of the husband's military retirement, which was missing details including what percentage of the husband’s military retirement was awarded to each party, were ambiguous, and thus trial court could issue order of clarification [ya think?]; (2) the trial court had the authority to render a qualified domestic relations order (QDRO) to reflect the trial court's clarification of the parties' divorce decree as to the amount by which the husband's military retirement account was to be divided, as the QDRO did not change the substantive division of property made in the original decree, and the court was permitted by rule to render a QDRO or similar order if one had not been provided previously. 


Jocelyn P. v. Joshua P., No. 2125, Sept. Term, 2019 (Maryland Court of Special Appeals, April 29, 2021)

Dissolution of marriage action was brought. After bench trial, the trial court ordered that the parties' cryopreserved pre‑embryo be jointly awarded to the parties, such that no transfer, release, or use of the frozen embryo would occur without the signed authorization of both parties, and wife appealed. Held: (1) courts should first look to the preference of the parties in any prior agreement expressing their intent regarding pre‑embryos; (2) in absence of express agreement as to what to do with parties' remaining pre‑embryos upon dissolution of parties' marriage or partnership, courts should seek to balance the competing interests; (3) it is impermissible for court to consider financial and economic distinctions between the parties, the number of existing children, or reasonable alternatives when determining disposition of pre‑embryos; (4) courts should take particular care to ensure that parties' prior agreement manifests the parties' actual preferences; (5) progenitors, not fertility centers, must expressly and affirmatively designate their own intent with respect to disposition of pre‑embryos; (6) boilerplate language in third‑party form contracts that lack expression or direction from the progenitors will not qualify as express agreement regarding what to do with pre‑embryos; (7) courts should incorporate third‑party form contracts within the balancing factors when determining disposition of pre‑embryos; (8) frozen pre‑embryo cannot be classified simply as an interest in property because it concerns interests of far broader dimension; (9) disputes that arise during dissolution of the parties' marriage or partnership involving the custody of cryogenically preserved pre‑embryos should be resolved utilizing a blended contractual/balancing‑of‑interests approach; (10) mutual contemporaneous consent approach, whereby cryopreserved pre‑embryos are stored until the parties reach an agreement, is not appropriate standard to be used when determining what to do with parties' remaining pre‑embryos; and (11) parties' in vitro fertilization (IVF) contract did not express the parties' preference concerning disposition of their pre‑embryos upon divorce. Vacated and remanded.


Sievert v. Ali, 309 Neb. 246 (Nebraska Supreme Court, May 21, 2021)

In dissolution of marriage proceeding, trial court could rely on a buy‑sell agreement contained in limited liability company's (LLC's) operating agreement to determine the value of husband's ownership interest in the LLC. The experts differed as to whether adjusted asset method, market approach, or income approach was best measure of the LLC's value, and husband's expert testified that wife's expert significantly overvalued the interest.


Oudheusden v. Oudheusden, No. SC 203300 (Connecticut Supreme Court, April 27, 2021)

The trial court did not improperly "double count" the value of the husband's two closely held businesses while also considering husband's income from those businesses when awarding alimony to wife, upon the couple's divorce. Although the court awarded the wife 50 percent of the fair market value of those businesses in its equitable division of property to the wife, the assets spinning off the income the husband would use to pay the alimony award were awarded entirely to the husband.


In addition to the Family Law Quarterly, the Journal of the American Academy of Matrimonial Lawyers, and the Children’s Rights Journal, check out:

Lucy Dempsey, Note, Equity over Equality: Equal Protection and the Indian Child Welfare Act, 77 Wash. & Lee L. Rev. Online 411 (April 2021)

Jennifer J. Harman, Demosthenes Lorandos, Allegations of Family Violence in Court: How Parental Alienation Affects Judicial Outcomes, 27 Psychol. Pub. Pol'y & L. 184 (May 2021)

Noor‑ul‑ain S. Hasan, Jurisdictional Boomerang: How the Uniform Child Custody Jurisdiction and Enforcement Act Amplifies Hardship for Domestic Violence Survivors, 56 Gonz. L. Rev. 405 (2020/2021)

Jeffrey A. Parness, Nongendered Childcare Parentage, 56 Gonz. L. Rev. 465 (2020/2021)

Alyssa G. Rao, Note, Rejecting ‘Unjustified’ Rejection: Why Family Courts Should Exclude Parental Alienation Experts, 62 B.C. L. Rev. 1759 (May 2021)



U.S. Citizenship Transmission and Assisted Reproductive Technology 

"A bill to amend child custody provisions in Greece's civil code disregards risks for domestic violence victims that would put women and children in jeopardy, Human Rights Watch said today. The bill, "Reforms regarding parent‑child relations and other family law issues," is expected to be introduced in parliament in early May 2021. It would redefine the "best interests of the child" in Greek law and presume equal shared custody of children in cases of separation or divorce. Any exceptions, including in cases of domestic violence, would require a potentially lengthy court process. The proposed changes contravene international law, which requires that custody determinations be based on assessment of the best interests of the individual child, and do not ensure sufficient protections for domestic abuse victims and their children."

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