May 2022 Case Update

(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, 2022.) 

AGREEMENTS - PREMARITAL AGREEMENT  - CHOICE OF LAW

Moquin v. Bergeron, No. 4D21‑27 (Florida District Court of Appeal, Fourth District, May 11, 2022)

Nothing about Quebecois law is against Florida public policy. Thus, “We agree with Former Husband that the trial court erred in applying Florida's equitable distribution statute when equitably distributing proceeds from the sale of two marital residences under section 61.075, despite the existence of a Quebecois prenuptial agreement that clearly and unambiguously stated Quebec law applied to the distribution of the couple's property. Accordingly, we reverse and remand with instructions for the trial court to distribute the proceeds solely to Former Husband as his separate property.”

AGREEMENTS - SEPARATION AGREEMENT - VALIDITY - ILLUSORY PROMISE

Donna S. v. Travis S., No. 21‑0166 (West Virginia Supreme Court, May 6, 2022)

The parties’ mediated settlement agreement was invalid: the husband that his parents, who were not parties to the divorce, would transfer a right of way to the wife and would pay the costs associated with transferring the three acres from the marital estate to them were illusory: the husband's parents were not third‑party beneficiaries to the MSA as they were integral part of the consideration of the MSA, yet as non‑parties to the MSA, they would not be bound by its terms. 

AGREEMENTS - SEPARATION AGREEMENT  - VALIDITY - ORAL REPRESENTATIONS IN COURT

Waggoner v. Waggoner, No. 2021‑CA‑1208‑ME (Kentucky Court of Appeals, April 29, 2022)

The requirement that a separation agreement between spouses be written may be satisfied if an oral agreement is stated on the record in the presence of the judge or transcribed by a court reporter and made part of the record. BUT, “The family court was informed by Christina's attorney that the parties had arrived at a potential settlement, and he familiarized the court with its main objectives. The agreement was presented to the family court as a work in progress, not as a fait accompli. The exact terms of the agreement were never read into the record. The attorneys and parties were not present at the same time and the court had no opportunity to ask the parties if they agreed to the terms of the settlement. The language used by the family court and the attorneys in reference to the agreement is replete with conditional and contingent terms. Although the conversation was optimistic at the June 15, 2021, hearing, a possibility remained that the agreement would not be finalized.” Held: No enforceable agreement. 

CHILD CUSTODY - CONTEMPT - SANCTIONS

Kadish v. Kadish, No. 275, Sept. Term, 2021 (Maryland Court of Special Appeals, April 27, 2022)

In a modification of child custody proceeding, as a sanction for mother’s discovery violations, the trial court imposed a rebuttable presumption that the child's best interests would be served by modifying the child custody to award the father primary physical custody and sole legal custody. Held: This was not an abuse of discretion. The sanction was not disproportionate, as the mother failed to provide almost all requested discovery, during the time she failed to provide discovery or appear for depositions, her lawyer filed offensive pleadings and she traveled to Maryland and Hawaii, and the court, rather than bar evidence that could bear directly on child's best interests, safeguarded the child's “indefeasible right” to have her best interests considered by imposing a rebuttable presumption. 

CHILD CUSTODY - EVIDENCE - PARENTING TIME EVALUATOR

In re Marriage of Durocher, 319 Or. App. 223 (Oregon Court of Appeals, April 20, 2022)

The trial court acted within its discretion in precluding the custody and parenting time evaluator from submitting an evaluation or testifying at trial on a motion to modify custody, as sanction for the father's failure to comply with the court's order regarding evaluation process. The order required the parties to contemporaneously provide each other with any documents that were provided to the evaluator, the father provided approximately 200 pages of documents to the evaluator regarding the mother's parenting and fitness without simultaneously providing the documents to the mother or her attorney, the mother was interviewed without prior knowledge of what documents the evaluator had reviewed before speaking with her, and the father's failure to comply with order compromised the evaluation itself.

CHILD CUSTODY - EVIDENCE - RELIGIOUS PREFERENCE

Karutz v. Karutz, No. 2021‑CA‑0904‑ME (Kentucky Court of Appeals, May 24, 2022)

The mother appealed from the trial court’s order finding that it was in her child’s best interest to attend Seton Catholic School, arguing that the trial court’s order violates her constitutional right to religious freedom. The appellate court affirmed, holding that the trial court weighed the options, and chose the Catholic school for non-religious reasons, and that’s ok. “Substantial evidence supports the trial court’s decision that sending child to Seton is in child’s best interest. The trial court specifically mentioned the school’s proximity to the interstate, its later start time, its teacher‑to‑student ratio, its on‑site aftercare program, and the fact that child would know other students attending Seton. Perhaps most importantly, the trial court felt it was not in child’s best interest to attend Berea Independent because of the possibility that child might experience negative social stigma due to Mother’s pending animal cruelty case in Berea. Further, the trial court specifically noted its decision was notbased upon religious interests. Mother “bear[s] the burden of proving that the decision of the trial court was based upon religious interests and such impropriety [will] not be presumed merely because the school selected had a religious connotation in addition to its academic offerings.” Young, 295 S.W.3d at 147. We find no error.”

CHILD CUSTODY - EVIDENCE - INDEPENDENT CUSTODY EVALUATOR

A.W. v. I.C., No. B307592 (California Court of Appeals Second District, May 27, 2022)

Father argues the court reversibly erred when, in granting this request, the court “ignored” the opinion testimony of a custody investigator that Mother was relocating to Washington, D.C. as a means of keeping M.W. away from Father. But the trial court was entitled to deem the investigator’s testimony not credible, and substantial evidence supports the court’s finding that Mother’s move was not in bad faith. Father identified no other basis on which he challenges the court’s overall conclusion that the move was in M.W.’s best interest. Accordingly, we affirm

CHILD CUSTODY - MODIFICATION - AGREEMENT - THIRD PARTIES

Powell v. Knoepfler-Powell, No. CL‑2015‑6475 (Virginia Circuit Court, Fairfax County, May 5, 2022)

The property settlement agreement’s custodial term that the parties are to exercise "great care prior to introducing" their "boyfriends or girlfriends with whom they may have a romantic relationship" to their child, is void as against public policy and unenforceable. “For the Court to incorporate in its order that the parties must take ‘great care prior to introducing’ their romantic partners to their child, the Court necessarily must be able to discern what such command means here. It cannot. The restriction respecting the introduction of their romantic partners to the parties' child is hopelessly vague, unenforceable, and shall not be included in the Court's revised custodial order.”

CHILD SUPPORT - INCOME - IMPUTED INCOME - EVIDENCE

Updike v. Updike, No. 20210265, 2022 ND 99 (North Dakota Supreme Court, May 12, 2022)

The trial court properly imputed income to father on the basis of his earning capacity as an oil industry worker, rather than based on minimum wage. The law allows imputation based on minimum wage, if the party who is unemployed can show that employment opportunities with earnings at least equal to lesser of six‑tenths of state's average earnings for persons with similar work history and qualifications or 90% of obligor's greatest average gross monthly earnings are available within 100 miles of principal place of residence. Here, father failed to make such a showing, even though he argued there were no longer jobs that had previously existed in the oil industry. There was no evidence detailing the number of jobs to which father applied or pay ranges, and fact that father had accepted job outside industry did not establish that higher‑paying jobs were unavailable.

DIVORCE - NON-DISPARAGEMENT CLAUSE - OVERBREADTH

Israel v. Israel, No. 21A‑DC‑1063 (Indiana Court of Appeals, May 16, 2022): The final divorce decree contained the following clause:

The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co‑workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[,] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child's] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.

Held: To the extent the non‑disparagement clause at issue in this case prohibits each parent from disparaging the other in Child's presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment. However, the non‑disparagement clause in this case goes far beyond furthering that compelling interest to the extent it prohibits the parents from “making disparaging comments” about the other in the presence of “anyone” even when Child is not present. “Thus, the following portion of the first sentence of the non‑disparagement clause6 is an unconstitutional prior restraint and must be stricken: ‘... friends, family members, doctors, teachers, associated parties, co‑workers, employers, the parenting coordinator, media, the press, or anyone.’”

DOMESTIC VIOLENCE - FAMILY ABUSE - “HUMILIATING REMARKS”

A.A.R. v. Rustad, (Oregon Court of Appeals, May 25, 2022)

While working from her marital home, petitioner was leading a video meeting with several colleagues when respondent, who was her father‑in‑law, interrupted the meeting by loudly making humiliating remarks about her at the screen and refusing to leave despite repeated requests from petitioner and her coworkers. Having reviewed the record, we conclude that  while  respondent’s  behavior  was  reprehensible,  the  evidence was insufficient to establish that he “represents a credible threat to the physical safety of the petitioner.”

(Ed. note: For more on in-laws behaving badly, see news items below.)

MARRIAGE - COMMON-LAW MARRIAGE - VALIDITY

Escalante v. Lidge, No. 21‑50097 (United States Court of Appeals, Fifth Circuit, May 19, 2022)

Remember, you can get common-law marriage, but you can’t get common-law divorced. In this case, the putative common‑law wife of a driver who was killed in a crash with a semi‑truck brought a wrongful death action against the semi‑truck's out‑of‑state corporate operator, and another putative wife, who had an earlier common‑law marriage to the driver, joined as an intervenor. Held: the driver had established a common-law marriage with putative wife number 1, which was never formally dissolved. Thus, his purported common-law marriage with putative wife number 2 was void as bigamous. Thus, plaintiff, as putative wife number 2, was out of luck. 

MARRIAGE - VALIDITY - CHOICE OF LAW

In re Estate of McDonald, No. 126956, 2022 IL 126956 (Illinois Supreme Court, April 21, 2022)

Old McDonald died December 15, 2017. Previously, on May 30, 2017, his brother Shawn had been appointed his guardian. But wait! On July 11, 2017, without the prior knowledge or consent of his guardian or the court, Old McDonald participated in a purported wedding ceremony with Ellizzette. After Old McDonald died, Ellizzette. On December 22, 2017, Shawn filed a petition for declaration of invalidity of marriage pursuant to section 301(1) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act). On March 7, 2018, Shawn voluntarily withdrew his petition for declaration of invalidity of marriage. On the same day, Shawn filed his response to Ellizzette's motion to vacate his appointment as administrator, asserting that, although Ellizzette may have participated in a marriage ceremony with John, John lacked the capacity to enter into a legally valid marriage contract because he was a ward subject to plenary guardianship. In support of this position, Shawn cited sections 11a‑17(a‑10) and 11a‑22(b) of the Probate Act (id. §§ 11‑17(a‑10), 11a‑22(b)). Now here’s the interesting issue: Ellizzette replied, asserting that section 11a‑22(b) of the Probate Act was inapplicable to a marriage contract. She contended that the validity of a marriage is governed by section 301 of the Marriage Act (750 ILCS 5/301 (West 2016)). Further, she argued that a challenge could not be made to the validity of the marriage since John was deceased and section 302(b) of the Marriage Act provides: “In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2) and (3) of Section 301.” Id. § 302(b). Held: the validity of the parties' marriage was governed by provisions of Probate Act setting out the process whereby a guardian may obtain the ability to consent to the ward's marriage, rather than by the provision of the Marriage Act setting out standard for capacity to consent to marriage.

MARRIAGE - CONSANGUINITY - STANDING

Doe v. McSweeney, No. 21-2191-cv (United States Court of Appeals, Second Circuit, May 9, 2022)

Ewwww. John Doe filed suit against Defendant Michael McSweeney, the City Clerk of the City of New York, challenging the constitutionality of two New York statutes that prohibit and criminalize incestuous marriages. Doe alleges that he “wishes to make a proposal of marriage” to either his parent or adult child (the Complaint does not say which) and that “if the [m]arriage [p]roposal were met with an affirmative response,” he “wishes and intends . . . to obtain his marriage license” from the relevant municipal authorities in New York City. The Defendant sought to dismiss the action based on the Plaintiff’s lack of standing. (Really? That’s why?) “As alleged in the Complaint, Doe ‘wishes to” propose marriage to his biological parent or adult child, and ‘if’ that proposal is ‘met with an affirmative response,’ he then ‘wishes and intends . . . to obtain his marriage license,’ at which point he expects that his license request will be denied. This is not enough to allege an injury in fact. To be sure, threats of future injuries may suffice for standing purposes, but the ‘threatened injury must be certainly impending to constitute injury in fact’ and mere ‘allegations of possible future injury are not sufficient.’ Doe’s putative injury is far from ‘certainly impending’; rather, his injury only obtains at the end of a ‘highly attenuated chain of possibilities.’”

PROPERTY DIVISION - CLASSIFICATION - INTERSPOUSAL GIFT

Lewis v. Fulkerson, No. 2020‑CA‑0978‑MR (Kentucky Court of Appeals, April 22, 2022)

Substantial evidence supported trial court's finding that funds deposited by husband into wife's transfer‑on‑death trust was a gift, and was wife's non‑marital property, in wife's action for dissolution of marriage; even though attorney who drafted the trust document had laid out an estate plan that included the trust, plan's design was not followed, as wife retained sole control over the trust as both settlor and trustee, at the time funds were transferred, husband was aware that parties' marriage was on less than solid ground and that wife's financial insecurity was a reason for staying in the marriage, husband had a pattern of making “peace offerings” to wife in the form of valuable assets, and husband could have used other tools to transfer money to wife upon his death for her benefit.

PROPERY DIVISION - MILITARY PENSION

Williams v. Williams, No. 2017‑002358, Opinion No. 5910 (South Carolina Court of Appeals, May 25, 2022)

The husband appealed the family court's determination it had jurisdiction over him to divide his military retirement benefits. Held: No, it didn’t. Reversed. Under 10 U.S.C.A. § 1408(c)(4), a court can divide military retirement benefits only if "the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court." Here, the family court did not have jurisdiction over the husband because he did not reside in the state, he was not domiciled in the state, and he did not consent to the jurisdiction of the court, and the trial court should have determined that first. The case contains an extensive multi-state discussion of USFSPA, and is excellent reading for that issue. 

(Ed. note: Our own Mark Sullivan is cited in footnote 14.) 

PROPERTY DIVISION - MARITAL HOME - VALUATION

Herron v. Herron, No. 2021‑CA‑00090‑COA (Mississippi Court of Appeals, April 26, 2022)

When valuing the marital home, there was $75,000 difference between the husband's and wife's valuations, the wife's valuation was based on a home appraisal by a bank before a major home remodel two years before divorce, the husband's appraisal was provided to him five months after the filing of the divorce and was less than the purchase price couple paid for home. What’s a trial court to do? The trial court was entitled to use its independent judgment to determine that the tax assessor's valuation of $147,594 for the marital residence was the most accurate value for the residence, and when taking judicial notice of the assessor's valuation, the trial court noted that assessor was a disinterested third party.

REPRODUCTIVE RIGHTS - CONSTITUTIONALITY

Benson v. McKee, No. 2020-66-Appeal (Rhode Island Supreme Court, May 4, 2022)

In 2019, the Rhode Island General Assembly enacted the Reproductive Privacy Act, G.L. 1956 chapter 4.13 of title 23 (the RPA), effectively granting a right to abortion in

line with Roe, and repealing certain statutes otherwise prohibiting abortion in Rhode Island that were flatly unconstitutional. Held: Plaintiffs lack standing to challenge the statute, either as members of the voting public, an unborn child (who dose not have 14^th amendment rights), or by way of derivative standing. And, by the way, the statute is constitutional. 

SPOUSAL SUPPORT - INCOME - IMPUTED INCOME

In re Marriage of Wirth, 319 Or. App. 169 (Oregon Court of Appeals, April 20, 2022)

Evidence supported finding that husband's wages from voluntary overtime should be excluded from income for purposes of spousal support calculation in marital dissolution proceeding; husband's income would decrease due to changes at work over which husband had no control, and husband would not continue to work voluntary overtime on a regular basis. Evidence supported finding that wife, who was not currently employed outside home, could return to work as a dental assistant, for purposes of calculating wife's income when determining spousal support award in marital dissolution proceeding, despite wife's testimony that her back problems prevented her from bending over a dentist's chair, where wife had formal training and 18 years of experience working as a dental assistant, and wife had worked as a dental assistant up until approximately five years before trial.

TRUSTS - MARITAL TRUST - UNJUST ENRICHMENT

Wallace v. Torres‑Rodriguez, No. 3D21‑244 (Florida District Court of Appeal, Third District, May 11, 2022)

Trustee of husband and wife's irrevocable trust brought action against husband's girlfriend, alleging that husband gave away to girlfriend approximately $5 million dollars of marital property without wife's consent and in contravention of their marital agreement and irrevocable trust, and asserting claims of constructive fraud, avoidance of fraudulent transfers, aiding and abetting breach of fiduciary duty and aiding and abetting fraudulent transfers, and imposition of a constructive trust. The trial court entered judgment imposing a constructive trust, denying relief as to trustee's other claims, and finding that girlfriend's position had changed such that constructive trust was inequitable as to some assets. Trustee appealed and girlfriend cross‑appealed. Held: Girlfriend, you absolutely were on notice that this was not kosher. You knew you did not have the right to receive tenancy by the entirety properties from the husband such that your decisions regarding the money constituted a change of position that would a render constructive trust inequitable as to some assets; you knew you were receiving marital property, as evidenced by your continued questions to husband as to whether he had filed the necessary gift tax return documents with the IRS; and you never determined if wife had consented to the transfers. Constructive trust should be on all your ill-gotten gains. 

ARTICLES OF INTEREST

Volume 55, No. 2 of the Family Law Quarterly: “Family Law During COVID‑19: Practical Responses and Systemic Innovations”

Christine Wakeman, Natalie Webb, Lacey Stevenson, Marital Property Agreements: Family Law Attorneys' and Estate Planning Attorneys' Top Tips for Each Other, 14 Est. Plan. & Community Prop. L.J. 525 (Spring 2022)

NEWS ITEMS OF INTEREST

David Hodson, OBE MCIArb, Some Practical Pitfalls with England’s New Divorce Law. (Lexis-Nexis Family Law, April 28, 2022)

The battle over same-sex marriage continues. It will, in fact, never end. Jake Thomas, Judge Strikes Lesbian's Name from Child's Birth Certificate in Divorce Row. (Newsweek, May 20, 2022)

See also Ellen Trachman, The Bad News Is That Nonbirthing Moms Now, More than Ever, Need to Adopt Their Own Children. The Good News Is That at Least Some States Are Making That Easier. (Above the Law, June 1, 2022)

And you thought your in-laws were bad. Esha Mitra and Jessie Yeung, Indian Couple Sue Their Son and Daughter-In-Law for Not Giving Them Grandchildren. (CNN, May 17, 2022)

Mary Harris, The Other Medical Treatment Endangered by the Fall of Roe. (Slate, May 12, 2022)

Along the same lines, Stephanie Kirchgaessner, IVF Treatment Faces ‘Clear and Present Danger’ From US Anti-Abortion Effort. (The Guardian, May 12, 2022)

Peter Charles, Getting Divorced but Still Living Together? Here are Some Tips. (LegalReader, April 27, 2022)

Ellen Trachman, Colorado is Poised to Pass a Groundbreaking Donor-Conceived Person Protection Act (Above the Law, May 4, 2022)

See also on the same topic, Naomi Cahn and Sonia Suter, Fertility Treatment Use Is on the Rise - New Legislation Could Increase Protections for Donors and Families in an Industry Shrouded in Secrecy. (The Conversation, May 3, 2022)

Liz Dye, Texas Supreme Court Does the Very Least it Could Possibly Do to Protect Trans Kids. (Above the Law, May 13, 2022)

Noncustodial parents and the gig economy. (Office of Child Support Enforcement, May 16, 2022)

And finally, just because I like this case:

Bryan v. Kittinger, No. COA21‑98, 2022‑NCCOA‑201 (North Carolina Court of Appeals, April 5, 2022): Planned community's restrictive covenant that prohibited animals, livestock, or poultry of any kind, except household pets not bred or maintained for commercial purposes, permitted the keeping of chickens as household pets.