December 15, 2021 Vol. 25, No. 11
November 2021 Case Update
Editor: Laura Morgan
(Editor’s Note: Some cases may be from October, as they were not posted to Westlaw until after I prepared the October update on November 9, 2021.)
AGREEMENTS - MARITAL SETTLEMENT AGREEMENT - MODIFIABILITY OF ALIMONY
In re Marriage of Dynako, No. 126835, 2021 IL 126835 (Illinois Supreme Court, November 18, 2021)
Under the Marriage and Dissolution of Marriage Act's section governing marital settlement agreements, if a party to the dissolution does not agree that maintenance is non‑modifiable, either in whole or in part, then maintenance may be modified upon a showing of a substantial change of circumstances. “Here, the parties’ marital settlement agreement, which was incorporated into the judgment for dissolution of marriage, provided a detailed maintenance payment schedule with the specific amounts owed to Betsy by Stephen, when those amounts were due, and the duration of the payments. The agreement then provided that “[s]aid maintenance payments shall be nonmodifiable pursuant to Section 502(f).” This language demonstrated the intent of the parties to make the obligation nonmodifiable. Not only did the agreement expressly provide that the obligation was nonmodifiable, but it specifically cited the applicable provision of the Marriage Act. Based upon the clear language of the settlement agreement, we find that the parties intended to make Stephen's maintenance obligation nonmodifiable in both amount and duration, and he cannot now avoid that obligation due to any showing of changed circumstances.”
AGREEMENTS - MARITAL SETTLEMENT AGREEMENT - SET ASIDE
Robirds v. Robirds, No. 48414 (Idaho Supreme Court, November 26, 2021)
Husband's misconduct and misrepresentation warranted setting aside of property settlement in divorce action, where husband did not comply with the terms of the agreement drafted by his own attorney, as he failed to provide promised documentation regarding the marital home and retirement accounts such as evidence and documentation about the bank account from which the down payment for the home was made, the status of the parties’ residence was clearly different than originally represented by husband, and there were concerns about wife's ability to understand the settlement, as she was not proficient in English.
AGREEMENTS - PREMARITAL AGREEMENT- MAHR
Oleiwi v. Shlahi, Index No. E2020007354, 2021 N.Y. Slip Op. 21301 (New York Supreme Court, Monroe County, November 5, 2021)
Husband who was married to wife in Iraq filed suit against wife for divorce. Wife moved for declaratory judgment to enforce mahr, a prenuptial agreement executed in Iraq, and husband moved for declaration that mahr was unenforceable. Held: Although mahr entered into in Iraq as prenuptial agreement between couple to be married was not registered under New York statute requiring nuptial agreements made before or during marriage to be registered to be valid and enforceable in matrimonial action, mahr met criteria for application of comity, and thus would be recognized in couple's New York divorce; husband never suggested that mahr, which required him to pay wife 20 million Iraqi dinars upon divorce, was not authentic, that it would not be enforceable in Iraq, or that its execution in Iraq was coerced, accordingly enforcement of mahr did not violate New York's public policy favoring freedom to contract.
AGREEMENTS - PREMARITAL AGREEMENT - UNCONSCIONABILITY
Grabe v. Hokin, No. SC 20432 (Connecticut Supreme Court, November 17, 2021)
Wife brought action seeking dissolution of marriage and enforcement of prenuptial agreement, and husband filed cross complaint alleging that agreement was unenforceable. Held: No, it is not unconscionable, even though a LOT changed since the parties signed the agreement (the parties did not contemplate the births of their three children, the destruction of the husband’s house by fire, the destruction of the Yacht Club by a hurricane or the failure of Intermountain Industries when they entered into the prenuptial agreement). Still, these circumstances were not “so far beyond the contemplation of the parties at the time the agreement was made as to make enforcement of the agreement work an injustice.... we see nothing in our statutes or case law to suggest that it is the public policy of this state that a noncustodial parent is entitled to receive any form of postdissolution support for the sole purpose of ensuring that he or she has the ability to provide for the children of the marriage in the same manner as the custodial parent.”
CHILD CUSTODY - VACCINATIONS
Burch v. Lipscomb, No. 2021-CA-0614-ME (Kentucky Court of Appeals, November 19, 2021)
The Mother appealed the family court’s order requiring her children to be vaccinated. The Mother contended the court violated her religious freedom and beliefs. Held: The religious exemption only applies if BOTH parents agree not to vaccinate on religious grounds. When one parent objects and the other parent does not, the court must decide as the tie-breaker. The court’s overriding consideration is serving the best interests of the each child, and that dictates vaccination.
Seymour v. Seymour, No. Yor‑21‑166, 2021 ME 60 (Maine Supreme Court, November 23, 2021)
Father moved to modify the divorce judgment, alleging that a change in circumstances had occurred because, inter alia, mother objected to having the children vaccinated, had not arranged for either child to see a pediatrician or dentist, and objected to the parties' son seeing an occupational therapist. “The safety and efficacy of vaccines for the children was a central issue in the proceeding, and Joshua provided the trial court with the website and specific printouts of the information available from the CDC. Therefore, the trial court was required—at a minimum—to take judicial notice that the vaccine schedule and safety information was on the CDC's website and represented that agency's position. Indeed, in her appellate brief, Michelle appears to concede that it is public knowledge that the information proffered by Joshua reflects the CDC's position, noting that the trial judge “no doubt, not living underneath a rock, knew what the CDC web‑based documentation provided, promoted, and promulgated.” We cannot say that the court's refusal to take judicial notice was harmless, as Michelle contends. As discussed below, a parent's adherence to medical advice is relevant to the determination as to appropriate allocation of medical and educational decision‑making. Michelle testified about the difficulty she had finding a pediatrician because of her position on vaccines and that she was not following the advice of the pediatrician she had found by refusing to vaccinate the children. The CDC documentation provides further evidence as to her failure to accept the advice of established sources of medical information, which is material to whether it is appropriate to allocate final decision‑making authority to her.”
See also Patricia Fersch, “Covid-19 Co-Parenting Update: How Does a Vaccinated Parent Co-Parent with an Anti-Vaxer?” and “Vaccine Custody Wars Update: Part II”
Danielle Campoamor, “Divorced parents are going to court over COVID-19 vaccines for their children”
CHILD SUPPORT - INCOME - EVIDENCE
Franco v. Eagle, 864 S.E.2d 675 (Georgia Court of Appeals, October 20, 2021)
Franco (the father) argued that the trial court erred by imputing $10,000 per month gross income to him because, he says, he produced reliable evidence of income – the type of evidence mentioned in OCGA § 19‑6‑15 (f) (4) (A) – in the form of tax returns and 1099 statements for tax years 2015, 2016 and 2017, and 1099s and bank records for 2018. Nothing in the subsection (f) (4) (A), however, suggests that production of the type of evidence mentioned as examples of reliable evidence of income forecloses a court from imputing income. Moreover, as stated above, OCGA § 19‑6‑15 (f) (1) (B) (ii) specifically provides that “[i]n general, income and expenses from self‑employment or operation of a business should be carefully reviewed by the court or the jury to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. Generally, this amount will differ from a determination of business income for tax purposes.” Here, the trial court found that Franco had only produced a portion of the financial information requested by Eagle; that his testimony conflicted with at least some of the documents he produced; that he provided inadequate evidence as to his income and transactions involving property in his possession and control; and that he co‑mingled his business and personal accounts. It was not error to impute income.
CHILD SUPPORT - INCOME - EXPENSE REIMBURSEMENTS
Nadeau v. Reeves, No. 4D21‑1731 (Florida District Court of Appeal, Fourth District, October 20, 2021)
Section 61.30(2)(a)13 of the Florida Statutes provides that “gross income” includes “[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses.” This provision has been interpreted to cover items such as food, housing and vehicles furnished by the employer who is paying wages. In this case, the court credited the mother with $1,538.50 in additional income based on the mother's testimony that her new husband pays for all the expenses on her financial affidavit and that she reasonably expected him to continue covering those expenses. Held: Error. You can’t impute a new spouse’s income to a parent. That provision only applies to employers and gifts from the parents of a support obligor/obligee.
CHILD SUPPORT - INCOME - INHERITANCE - DISTRIBUTIONS
In re Marriage of Dahm‑Schell and Schell, No. 126802, 2021 IL 126802 (Illinois Supreme Court, November 18, 2021)
Wife filed for a dissolution of marriage. During the pendency of the dissolution, husband's mother died and he inherited approximately $615,000, which the parties stipulated was husband's non-marital property. The inheritance was not included in calculating husband's child support and maintenance obligations. BUT the inherited mandatory retirement distributions DID constitute income for purposes of child support and maintenance calculations. “[U]nder the plain language of the Act, Mark's receipt of the mandatory distributions and withdrawals from the inherited IRAs are included in the statutory definition of “income” for the purpose of calculating his support obligations... Classifying the distributions and withdrawals as income does not constitute impermissible double counting because the inherited IRAs had not been previously imputed to Mark as income for support purposes... In addition, the fact that Mark has chosen to reinvest the mandatory distributions and withdrawals into his own retirement account is of no effect in the determination of support and maintenance obligations, which are based on income from all sources. Consequently, Mark's nonmarital mandatory distributions and withdrawals received and reinvested in his own retirement accounts are not excluded from the statutory definition of “income” under the Act.”
CHILD SUPPORT - INCOME - SOCIAL SECURITY DERIVATIVE BENEFITS
Weaver v. Weaver, 532136, 2021 N.Y. Slip Op. 05764 (New York Supreme Court, Appellate Division, Third Department, October 21, 2021)
Child began receiving social security derivative benefits (benefits received on account of a parent’s disability/retirement). Father argued for a deviation down from the presumptive award based on the child’s receipt of those benefits. Sorry, no can do (unlike almost every other state that provides a credit). “Where, as here, a child is not receiving the benefit of a parent's full‑time earnings and higher salary level because of illness/disability, the federal government provides a derivative disability award to the child (see Matter of Graby v. Graby, 87 N.Y.2d 605, 611, 641 N.Y.S.2d 577, 664 N.E.2d 488 [1996]). However, a child's disability benefit is “intended to supplement existing resources, not to displace or reduce a parent's obligation to support his or her child[ ]” (Matter of McDonald v. McDonald, 112 A.D.3d 1105, 1107, 976 N.Y.S.2d 338 [2013] [internal quotation marks and citation omitted]).”
INTIMATE PARTNER VIOLENCE ‑ RESTRAINING ORDER
J.F. v. D.F., 2021 NY Slip Op 51046(U) (New York Supreme Court, Monroe County, Oct. 22, 2021) (Dollinger, J.)
"The parties were divorced in November 2013, and, pursuant to the Judgment of divorce and separation agreement, shared joint custody and equal residency of their three children, ages 19, 17 and 11. The relationship between the parents has been rocky, with numerous applications being made over the years for modification of custody, orders of protection, and the like. This latest dispute has its roots in the COVID pandemic, with Father initially filing an application in October 2020 alleging that Plaintiff Mother was not following State mandated COVID protocols with respect to the children. Further applications have followed, with the Mother's initial cross‑motion, filed in November 2020, containing a request for an Order of Protection. That request is supported by the Mother's affidavit, pointing primarily to emails sent by the father, many of which accuse her of violating COVID protocols regarding out of state travel and quarantine. Her Affidavit contains upwards of 50 pages of email exchanges between the couple, which the Mother contends demonstrate harassment sufficient to support an order of protection. Father has now moved to dismiss this application, insofar as it seeks an order of protection." Held: No order of protection. The relevant statute provides, ""A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:. . .3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." The ex‑husband's annoying emails don't fit the bill. While they were certainly annoying, "there is simply no way to conclude that the Father's texts were sent with "no legitimate purpose." Even assuming they were misguided and in some cases, flat out wrong, they were aimed at a legitimate subject of debate — the appropriate measures of COVID prevention protocols, something any parent certainly has a "legitimate" interest in."
MARRIAGE - COMMON LAW MARRIAGE - SAME-SEX MARRIAGE
Swicegood v. Thompson, No. 28067 (South Carolina Supreme Court, November 10, 2021)
In this case, the court of appeals held that the parties could not establish a common law marriage on its findings that: (1) section 20‑1‑15 of the South Carolina Code (2014), which prohibited same‑sex marriage, operated as an impediment to the formation of a common law marriage between same sex couples; and (2) Petitioner and Respondent lacked the requisite intent and mutual agreement to enter a legally binding common law marriage as a matter of law. We’re going to reverse that first holding. The statute that prohibited same-sex marriage is unconstitutional, and thus void ab initio. Thus, the parties could have established a common law marriage. “Accordingly, the statute cannot serve as an impediment to the recognition of a same sex marriage predating Obergefell. Because the court of appeals erred in holding the statute constituted an impediment, we vacate that portion of the court of appeals opinion, but affirm the ultimate result reached by the court of appeals that no common law marriage was established.”
PARENTAGE - VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
Scott v. Benson, No. 20210280‑CA, 2021 UT App 110 (Utah Court of Appeals, October 21, 2021)
Ex‑boyfriend who had no biological connection to child filed paternity action seeking judicial declaration that he was child's legal father and joint legal and physical custody. Mother filed counter‑petition, challenging the ex‑boyfriend's paternity, and alleging that the voluntary paternity declaration previously executed by the parties was fraudulent. Held: (1) the ex‑boyfriend claimed to be child's genetic father and executed a valid declaration of paternity to that effect, and thus ex‑boyfriend was the child's declarant father pursuant to the Uniform Parentage Act; (2) the voluntary declaration of paternity was not void ab initio for fraud.
Johnson v. Edelstein in and for County of Maricopa, No. 1 CA‑SA 21‑0072, 56 Arizona Cases Digest 10 (Arizona Court of Appeals, Division 1, October 26, 2021)
Putative father Mikel signed a VAP when the child was born in December 2017. Two years later, the biological father Andre filed an action for paternity when a DNA test showed he was the biological father. The superior court entered a paternity judgment in Andre’s favor. Mikel then intervened, moved to set aside the judgment, and also petitioned to establish parenting time, legal decision‑making, and child support. The court denied Mikel’s requests and further set aside Mikel’s VAP. Held: the court erred by setting aside Mikel’s paternity judgment without a cognizable basis under A.R.S. § 25‑812(E). “Under that provision, a paternity judgment based on a voluntary acknowledgment can be challenged “only on the basis of fraud, duress or material mistake of fact,” and only for a period of six months; after that time, it can be attacked only in exceptional circumstances, such as fraud on the court. A.R.S. § 25‑812(E); Ariz. R. Fam. Law P. 85(c)(1), (d). Applying the plain language of A.R.S. § 25‑812(E) and Rule 85 (which is expressly incorporated into the statute), we hold that these time limitations apply even to a genetic father's paternity petition challenging a voluntary acknowledgment signed by someone else. Accordingly, and because Andre offered no timely, cognizable ground under § 25‑812(E) to set aside Mikel’s paternity judgment, we accept jurisdiction and grant relief by vacating Andre’s paternity judgment and reinstating Mikel’s paternity judgment.
TORTS - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Mason v. Mason, 497 P.3d 431 (Washington Court of Appeals, Division 2, October 19, 2021)
The ex-wife brought an action for abuse of process and intentional infliction of emotional distress against her ex-husband and the attorney who represented him during dissolution proceedings, based on allegations that the defendants obtained child‑support and protection orders against the ex-wife to damage her immigration status. Both defendants moved to dismiss for failure to state a claim and, alternatively for summary judgment. The trial court granted the motion, and the ex-wife appealed. Held: Not so fast there. Trial court abused its discretion by granting the motions to dismiss without first inquiring into the ex-wife’s need for an interpreter. She had put the court on notice of her lack of fluency in English by filing a complaint that included multiple statements expressing difficulty she experienced understanding prior legal proceedings due to her language limitations, including that parties' prior divorce and modification proceedings were like a “babble of voices” from her perspective and that she struggled to communicate with her English‑speaking attorneys. Further, the ex-wife’s claims for abuse of process and intentional infliction of emotional distress against the defendants were not barred by collateral estoppel or res judicata, as neither claim was actually litigated in prior dissolution proceedings, and tort claims were not identical to any issue addressed in dissolution proceedings.