June 27, 2023 Case Update
May 2023 Case Update
Vol. 27, No. 5
Editor: Laura Morgan
(Editor's Note: Some cases may be from April 2023, as they were not posted to Westlaw until after I prepared the April 2023 update on May 15, 2023.)
AGREEMENTS - PREMARITAL AGREEMENT - SEPARATE PROPERTY - DEBT
Winrow v. Heider, No. 4D21‑3122 (Florida District Court of Appeal, Fourth District, May 24, 2023)
The parties entered into a prenuptial agreement. The agreement provided that certain property held by the husband would remain the husband's separate property with the accompanying right “to dispose of or encumber” it. The husband later took out a home equity line of credit (HELOC), and used the proceeds for marital expenses, including payment for the wife's medical procedure. While the husband described the HELOC debt as a marital liability, his financial affidavit listed all encumbrances on the property as non‑marital. In the final judgment, the trial court found the parties’ prenuptial agreement to be binding and enforceable. The trial court therefore determined that all property governed by the agreement would be distributed in accordance with its terms. Despite this determination, the trial court classified the HELOC debt as a marital debt and concluded that equity called for it to be split between the parties based on the purpose for which the proceeds of the loan were used. The trial court ordered the wife to make an equalization payment to the husband after distributing the HELOC debt. Wife appealed. Held: Nope, that HELOC was the husband’s separate debt. The prenuptial agreement provided that the Shady Pond Property, with the right “to dispose of or encumber” it, would be Husband's separate non‑marital property. Therefore, pursuant to the terms of the parties’ prenuptial agreement, the trial court should have considered the entirety of the HELOC debt to be Husband's separate non‑marital debt. Although the Husband elected to spend the amount he borrowed on marital expenses, the loan itself was incurred solely by him as non‑marital debt against his separate non‑marital property pursuant to the terms of the prenuptial agreement. In other words, the Husband's voluntary expenditure of the loan proceeds on marital expenses did not convert the loan itself into a marital debt.
ATTORNEY-CLIENT - SEXUAL RELATIONSHIP
Brown v. Virginia State Bar ex rel. Sixth District Committee, 886 S.E.2d 492 (Virginia Supreme Court, May 4, 2023)
Another reminder: No knockin’ boots with a client. Having sex with a divorce client creates new and additional grounds for divorce, which could be used to the client’s legal and strategic detriment, thus violating the the rule of professional conduct that prohibits attorneys from representing clients when there is a concurrent conflict of interest, even if condonation or recrimination be pleaded as affirmative defenses to the ground of adultery, since the client would bear the burden of that affirmative defense, and there is no guarantee such defenses will be successful.
CHILD CUSTODY - HAGUE CONVENTION - RISK OF HARM
Silva v. Dos Santos, 68 F.4th 1247 (United States Court of Appeals, Eleventh Circuit, May 26, 2023)
Father, who resided in Brazil, petitioned for child's return to Brazil under Hague Convention on the Civil Aspects of International Child Abduction (as implemented by ICARA). The district court granted the petition, and the mother appealed. Held: (1) father's testimony, which district court expressly found lacked credibility and “made no sense” could be viewed as substantive evidence that corroborated mother's testimony regarding acts of abuse, for purposes of determining whether mother established by clear and convincing evidence that child's return to father would place child at grave risk of physical or psychological harm, and (2) mother's testimony alone could constitute clear and convincing evidence that child's return to father in Brazil would place child at grave risk of physical or psychological harm, if district court found her testimony to be credible. Vacated and remanded.
CHILD CUSTODY - JOINT CUSTODY - DECISION MAKING AUTHORITY - COVID-19 VACCINATION
Nagel v. Nagel, 292 A.3d 1198 (Rhode Island Supreme Court, May 3, 2023)
On September 17, 2020, the Family Court entered a final judgment of divorce between the parties that (1) provides for joint legal custody of their two pre-adolescent daughters, requiring the parties to share in all major decisions regarding their children's health, including elective medication choices; and (2) grants plaintiff mother primary physical placement of the children. On March 17, 2022, the plaintiff mother filed a motion for relief after final judgment seeking (1) the Family Court's permission to vaccinate both children for COVID‑19, consistent with the recommendation of the children's pediatrician; and (2) an award of full custody of the minor children, specifically with respect to final decision‑making authority over their medical care. The defendant father filed an opposition to plaintiff mother’s motion and a cross‑motion to prevent the children's vaccination. “After the trial concluded, the trial justice issued a thorough written decision finding that both parties chose Dr. Powers together and that neither party had objected to any previous recommendations. Based on these findings, the trial justice ultimately permitted plaintiff to follow Dr. Powers's recommendation and vaccinate the children for COVID‑19. The trial justice determined that defendant's refusal to follow the advice of Dr. Powers and his opposition to his children's receipt of the COVID‑19 vaccine was not objectively unreasonable behavior, and therefore declined to hold him in contempt. In balancing the evidence before her, the trial justice highlighted the lack of uniformity of expert opinion regarding whether children should receive the COVID‑19 vaccine and acknowledged the expertise of the American Academy of Pediatrics (AAP), the Centers for Disease Control (CDC), and the Association of American Physicians and Surgeons (AAPS).” Held: “We cannot conclude that the trial justice was clearly wrong to accept that Dr. Powers's recommendation is well grounded in her professional experience as well as the guidance provided by the AAP and the CDC. Furthermore, our review of the record satisfies this Court that the trial justice did not improperly exercise her discretion in determining that it is in the best interests of these children to give plaintiff the decision‑making authority to follow the advice of Dr. Powers and to receive the COVID‑19 vaccine.... Finally, the trial justice appropriately considered, yet denied, plaintiff's request for full custody and final decision‑making authority over the children's medical care and treatment. The trial justice noted that this dispute between the parties is the first of its kind for these parties and also acknowledged the absence of evidence needed for the court to upset the existing joint legal custody arrangement. Based on the trial justice's measured and comprehensive resolution of this issue, we conclude that the trial justice did not abuse her discretion in evaluating the evidence before her relative to the parties’ respective requests for relief after final judgment."
CHILD CUSTODY - MODIFICATION - INABILITY OF PARENTS TO COMMUNICATE
Kuebler v. Kuebler, No. 362488 (Michigan Court of Appeals, May 11, 2023)
The mother moved to modify the custody provisions of the parties' consent judgment of divorce, under which the father received sole physical and legal custody of the parties' children and the mother received supervised parenting time. The trial court entered its order modifying custody to joint legal custody, and awarding the mother additional parenting time. The father appealed. Held: Hey, Madame Trial Court! These parties are so antagonistic, joint custody will never work. These parents were so completely incapable of making decisions about their children together that they could not even agree on name for their youngest child and ultimately submitted that matter to trial court! The parents had a documented inability to communicate with each other, and the parents had not reached a significant decision on any issue discussed in the prior one‑year period without the aid of third parties. Order vacated with and remanded for further proceedings consistent with this opinion.
CHILD CUSTODY - REMOVAL FROM JURISDICTION - INITIAL CUSTODY DETERMINATION
Brandon v. Coffey, 77 Va. App. 628, 886 S.E.2d 780 (Virginia Court of Appeals, May 16, 2023)
When a court is making its initial custody determination, it does not have to go through an express relocation analysis. “A relocation analysis of this matter is not required, as Coffey and the child never ‘relocated.’ Instead, the trial court decided as an initial matter where the child would reside."
CHILD CUSTODY - STANDING - STEP-FATHER
In re J.N.M., No. 04‑22‑00430‑CV (Texas Court of Appeals, San Antonio, April 26, 2023)
Following the mother's death from complications arising from COVID‑19, the child's former stepfather filed a motion to modify the parent‑child relationship, seeking to be appointed the child's temporary sole managing conservator in suit affecting the parent‑child relationship (SAPCR). The maternal grandparents filed a petition in intervention and plea to jurisdiction, seeking the stepfather's dismissal from the SAPCR for lack of standing. The stepfather then filed an original petition to intervene asserting standing and seeking sole managing conservatorship of child. The court granted the grandparents’ plea, and the former step-father appealed. Held: The step-father demonstrated that he had actual care, custody, and control of the child for at least six months ending not more than 90 days preceding date of filing of petition, and thus he had standing to file an original petition to intervene in suit affecting the parent‑child relationship (SAPCR).
CHILD SUPPORT - CREDITS - DIRECT PAYMENTS ON BEHALF OF CHILD
Manley v. Manley, No. 2021-CA-00700-COA (Mississippi Court of Appeals, May 2, 2023)
The father argued that his in-kind contributions for the children’s expenses (i.e., financing a vehicle, a vehicle tag, and vehicle insurance for both children; vehicle repairs for their daughter; and apartment rent for their son) entitled him to a credit on his child support obligation. Even setting aside the fact that the father did not prove he paid these expenses, even if he did, he doesn’t get a credit. The father chose to make these contributions to the children, contributions that were not required by the parties’ separation agreement. The father made these contributions at his peril.
CHILD SUPPORT - INCOME - GIFTS TO PARENT
Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 209 N.E.3d 573 (Massachusetts Appeals Court, May 2, 2023)
The trial court properly determined that the father's unallocated support obligation would not be reduced based on fact that mother's parents gave her annual financial gifts and paid certain child‑related expenses. Any assistance the mother received from her parents was voluntary on their part, as the parents had no legal obligation to support the mother or her children.
CHILD SUPPORT - INCOME - INTEREST PAYMENT ON ARREARAGES
Rodgers v. Commissioner of Internal Revenue, No. 18079‑17, T.C. Memo. (RIA) 2023‑56 (United States Tax Court, May 9, 2023)
A taxpayer's gross income generally encompasses all income from whatever source derived, specifically including interest. For divorced or separated taxpayers, alimony or separate maintenance payments were generally also includable in the recipient's gross income during the year at issue (and were deductible from the payer's gross income). This general rule is inapplicable, however, for payments in an amount fixed by the terms of a divorce or separation instrument that were made or treated as made to support the payer's children. Consequently, such child support payments were not includable in the gross income of the recipient (and were not deductible by the payer). Thus, interest on past due child support obligation accrues by statute and must be included in any judgment fixing amount of child support arrearages, even if party seeking payment has not requested interest award.
DIVORCE - PROCEDURE - DELAY IN ENTRY OF DECREE OF DIVORCE
LeFors v. LeFors, No. 29660 (South Dakota Supreme Court, May 24, 2023)
There was no abuse of discretion in circuit court's decision to delay entry of divorce decree until after 20 years of marriage and to enter a decree of separate maintenance instead, in order to ensure wife and children's long‑term financial stability by making wife eligible for military benefits, including health insurance at minimal cost, commissary and base exchange privileges, and base ID allowing access to medical facilities, despite husband's argument that such decision would force him to complete 20 years of military service; record did not show that husband had expressed to the court any intention to seek discharge prior to 20 years of service, but husband had every incentive to continue to that point, which would benefit him, as well as wife and children.
MARRIAGE - VALIDITY - PLACE OF CELEBRATION
Hoffman v. Hoffman, No. 1 CA‑SA 23‑0001, 95 Arizona Cases Digest 12 (Arizona Court of Appeals, Division 1, April 27, 2023)
California marriage of husband and wife, who were first cousins, was not contrary to strong public policy exceptions under Arizona law that would preclude Arizona from recognizing their California marriage, and thus California law, rather than Arizona law, governed whether the marriage was valid, under Arizona statute governing validity of marriages contracted in another state. The Arizona statute governing void and prohibited marriages authorized marriages between first cousins if they presented evidence to superior court judge that one of the cousins was unable to reproduce, and husband had a vasectomy before the marriage.
Bernstein v. Benchemoun, No. 2021‑01520, 2023 N.Y. Slip Op. 02637 (New York Supreme Court, Appellate Division, Second Department, May 17, 2023)
Evidence supported determination that there was not a cognizable marriage between the parties in New York, in purported wife's action against purported husband for divorce and ancillary relief; even though the parties were married in a Jewish religious ceremony in Florida and executed a ketubah, which was a Jewish marriage contract, they did not obtain a marriage license, and although purported wife contended that a marriage was solemnized in New York when the parties executed a second ketubah, the rabbi who supervised the execution of the second ketubah testified that he never solemnized a marriage and could not have solemnized a marriage since the parties were already married under Jewish law.
NAME CHANGE - BEST INTERESTS OF CHILD
E.R.J. v. T.L.B., No. 20220199 (North Dakota Supreme Court, May 9, 2023)
Evidence supported trial court's finding under Uniform Parentage Act that hyphenating child's surname in response to father's petition was in child's best interest. The trial court found that hyphenating child's surname would facilitate her relationship and emotional ties with her father and her paternal extended family, mother had legally assumed her new husband's surname and thus child no longer shared surname with any members of her household, trial court expressed concerns about mother's willingness to facilitate father's paternal relationship with child, and trial court found that surname change would not adversely affect any of child's peer relationships because she was still very young and had not developed significant school relationships or understanding of her name's meaning.
PROPERTY DIVISION - ENFORCEMENT - DRO
Welch v. Welch, No. COA22‑448 (North Carolina Court of Appeals, May 2, 2023)
Remember, a QDRO or similar order enforcing a division of assets does not change the underlying order. Thus, the trial court had the authority to grant the former wife's request for a post‑judgment domestic relations order to effectuate the distribution of a portion of the former husband's individual retirement account (IRA), even though the consent order distributing half of IRA to wife specified “trustee to trustee transfer” as principal means of effectuating distribution, rather than a domestic relations order. The statute of limitations for actions upon a judgment or decree of a court did not apply, and the former wife's request did not seek award different from original equitable distribution order.
PROPERTY DIVISION - VALUATION - CAPITAL LOSS CARRYOVER
Anderson v. Anderson, No. 20220287, 2023 ND 86 (North Dakota Supreme Court, May 9, 2023)
The trial court overvalued a marital asset comprising a $27,000 capital loss carryover by erroneously designating the loss carryover it as an income tax credit in the distribution of the marital estate. The capital loss carryover could only be claimed as a deduction, not as a credit, and there was thus no circumstance in which it could be worth $27,000 as a matter of law.
PROTECTIVE ORDER - MENTAL INJURY
C.M. v. J.M., No. 852, September Term, 2022 (Maryland Appellate Court, May 24, 2023)
Sufficient evidence supported trial court's finding that father mentally abused child and that such acts were done intentionally or with conscious disregard or indifference to child's welfare, as supported issuance of final protective order. The court concluded that child was “frightened,” “scared,” and “fearful” of father's anger and father's refusal to accept his sexual orientation, court relied on, among other things, its interview with child and text message father sent child day before their interaction, in which father stated that child was being “heavily manipulated” by mother and sister, and court also heard mother's testimony that when she picked child up from father's house after incident and asked if child was okay, child responded, “I am now.” The relief set forth in trial court's final protective order against father with respect to one of his two children, prohibiting father from abusing, or threatening to abuse, child, entering child's residence, visiting child unless child was comfortable doing so, and using phone calls and/or text messages to abuse child regarding his sexual orientation and/or religion, went to addressing substantial risk of harm to child and risk of future harm, and thus relief was warranted under domestic abuse statute.
SPOUSAL SUPPORT - FACTORS - FAULT - DESERTION
Payne v. Payne, 77 Va. App. 570, 886 S.E.2d 752 (Virginia Court of Appeals, May 9, 2023)
On appeal, the wife contended, inter alia, that the trial court abused its discretion by (1) finding that she deserted the marriage, (2) denying her an immediate award of permanent spousal support based on that fault. Held: Sufficient evidence supported finding that the wife deserted the marriage: “With their relationship under strain, husband and wife began to sleep in separate bedrooms before wife left the marital home in early January 2019. When wife returned to the marital home, she and husband continued living apart from each other. Although they shared a residence and continued contact, they no longer shared a joined life consistent with marriage. Indeed, wife averred that during this period she and husband “lived separate and apart ... without cohabitation, and with the intent to remain separate and apart permanently.” Wife admitted that she conditioned her remaining in the marital home on husband's participation in marital counseling. When husband did not respond to her demand, wife left the marital home and moved into an apartment. In her motion for reconsideration, wife acknowledged that she left the marital home as a means of self‑care, “to get better mentally.” Husband testified that he did not force wife to leave the marital home, did not tell wife to leave the marital home, and did not tell wife that he wanted a divorce. According to husband, when wife left the marital home the first time, she told him that “[s]he did not want to be there.” Even as her physical residence varied, wife maintained marital separation from husband from the time she initially left the marital home in January 2019 through the entry of the final decree of divorce in December 2021....Wife physically left the marital home after husband did not respond to her request for marriage counseling. The evidence establishes that she took additional actions to terminate or discontinue all indicia of the marital relationship: wife chose to live in a spare bedroom, in her parents’ home, and in a separate apartment to be separate from husband; she did not hold herself out as married; and she stopped contributing to marital debts and obligations. Husband's testimony reflects that he did not seek or compel marital separation. He testified that wife told him that she “just had to leave.” Combined, this evidence supports the trial court's finding of desertion.”
SPOUSAL SUPPORT - FACTORS - STANDARD OF LIVING DURING THE MARRIAGE - PAYMENT OF ADULT CHILD’S EXPENSES FOR MISSION
Rothwell v. Rothwell, No. 20210493‑CA, 2023 UT App 50 (Utah Court of Appeals, May 11, 2023)
The trial court awarded the wife spousal support, and included in that award certain expenses the wife incurred for her adult children. The husband asserted on appeal “that the religious mission costs for the parties’ adult child was not an appropriate line item to include in Jenea's need calculation because that cost would continue for a short period of time but he would be required to continue paying alimony based on that amount for many years. ... Here, there was evidence that Jenea and Shaun paid for their oldest son's mission while they were married and that, at the time of trial, Jenea was paying the cost of their daughter's mission alone. Moreover, the parties had two more children that could elect to serve missions at a later time, at least one of whom was “currently planning on serving [a religious] mission.” The fact that Jenea was continuing to incur an expense that was part of her standard of living during the marriage supported the court's inclusion of that expense in its needs calculation. And since it was uncertain whether Jenea would incur the same expense for her remaining two children, the end date for Jenea's need was uncertain. Thus, it was not an abuse of the district court's discretion to include the mission expense in its calculation of Jenea's needs and its award of alimony.”
SPOUSAL SUPPORT - INCOME - IMPUTED INCOME - EARNING CAPACITY
In re Marriage of Stine, No. 4‑22‑0519, 2023 IL App (4th) 220519 (Illinois Appellate Court, Fourth District, May 23, 2023)
“In this case, William challenges the circuit court's factual finding Shelli was unable to work due to the time and effort she must expend to care for Lily. William maintains Lily was eligible for nursing care that would allow Shelli to obtain employment and the decision to forgo such employment to care for Lily was a voluntary decision. The evidence shows Lily is profoundly disabled and requires constant supervision and assistance. At home, Lily does not receive the amount of approved nursing assistance due to staffing shortages and, even when nursing assistance is available, she still requires the assistance of Shelli. Lily is eligible to live in a nursing home with government assistance. However, Shelli and William agreed Lily would not receive the same level of care in a nursing home as provided by Shelli, and the evidence presented of such an opportunity was otherwise limited. After our review, we conclude, based upon the evidence presented, the court could reasonably find Shelli was unable to work (obtain an income‑paying job) due to the time and effort she must expend to care for Lily. The court's finding is not against the manifest weight of the evidence and, therefore, the court did not abuse its discretion by considering Shelli's inability to work when evaluating whether to impute income to Shelli or when reviewing the statutory maintenance factors.”
SPOUSAL SUPPORT - MODIFICATION - CHANGE OF CIRCUMSTANCES - IMPUTED INCOME
Backman v. Backman, No. A22‑0602 (Minnesota Court of Appeals, May 1, 2023)
The husband brought motion to modify spousal support, alleging that the wife's health had improved since the dissolution of marriage, that she was earning income through employment, and that she had the potential to increase her earned income. After denying the husband's motion for a vocational evaluation of wife, and his motions for reconsideration thereof, the court denied the husband's modification motion, finding no substantial change in circumstances, and awarded wife a portion of her attorney fees. The husband appealed. Held: The district court erred by not engaging in the analysis required by the rule governing physical and mental examinations, but had instead denied the husband's motion for vocational evaluation of wife based on the court's erroneous finding that it was precluded from imputing potential income to wife. The dissolution decree's omission of an express requirement that the wife increase her earning capacity by obtaining education or vocational training did not preclude the court from imputing potential income to wife when calculating her gross income. Remand for consideration of the wife’s potential income and vocational evaluation.
TORTS
Herbert v. Herbert, No. 2021‑CA‑01291‑COA (Mississippi Court of Appeals, April 25, 2023)
Mark Herbert sued Nina Herbert, his estranged wife, for six different causes of action after she decided to leave him and terminate their marriage. Overkill? Surprise! The husband is a practicing attorney. He sued his wife for: (1) intentional infliction of emotional distress, (2) verbal assault, (3) conversion, (4) fraudulent misrepresentation, (5) defamation and slander, and (6) breach of contract. As to: (1) intentional infliction of emotional distress, no, your wife leaving you is not intentional infliction of emotional distress. Grow up; (2) verbal assault, no, your wife calling you a motherf*&#er and flipping you the middle finger is not verbal assault, no, there’s no such action as verbal assault; (3) conversion, no, “Mark makes gross allegations of conversion without identifying the most basic element for a claim of conversion: the property that was converted.” Not very good lawyering there. (4) fraudulent misrepresentation, no, your wife telling you she loved you when you now think she didn’t is not fraudulent misrepresentation. Seriously? “Although Mark argued these statements “now appear to be false,” the mere possibility of fraud can never meet the requirements of pleading [fraud] with particularity.” (5) defamation and slander, no, “Mark failed to sufficiently plead his claim for defamation and slander. Mark did not include names of the individuals to whom the statements were directed other than “in affidavits” and to undisclosed friends and family”; (6) breach of contract, no, any contract for services between spouses is void. Fees for the wife? I would hope so! The husband told the wife, when she left him, “I will never, ever agree to an uncontested divorce. Never. You do not have the grounds for a contested divorce. I will fight against that with every fiber of my being. You will face at least two years of pain and embarrassment.... And remember we signed a prenuptial agreement. You are exposing yourself to serious financial issues.” The appellate court held that the trial court erred in denying the wife attorney’s fees, because the lawsuit was clearly filed for spite and was frivolous.
LATE BREAKING NEWS
United States Supreme Court upholds the Indian Child Welfare Act from constitutional challenge. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Couglin, No. 22-227 (United States Supreme Court, June 15, 2023). More next month!
LAW REVIEW ARTICLES OF INTEREST:
Family Law Quarterly, Volume 56, Numbers 2&3: Family Law and the Supreme Court (2022-2023)
LaToya Baldwin Clark, The Critical Racialization of Parents' Rights, 132 Yale L.J. 2139 (May 2023)
Melissa Gustafson, Indian Child Welfare Act: A Roadblock in a Native Child's Pathway to Permanency, 40 Alaska L. Rev. 61 (June 2023)
Marlene Eskind Moses and Ansley Owens Tillett, Consideration of Animals in Tennessee Divorces, 59‑JUN Tenn. B.J. 46 (May/June 2023)
Jessica Pacwa, Marriage and Divorce (Annual Review 2023), 24 Geo. J. Gender & L. 671 (2023)
Catherine E. Smith, “Children's Equality Law” in the Age of Parents' Rights, 71 U. Kan. L. Rev. 539 (May 2023)
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