November 16, 2021 Vol. 25, No. 10

October 2021 Case Update

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 September, as they were not posted to Westlaw until after I prepared the September update on October 12, 2021.)

ATTORNEY’S FEES

Levy v. Levy, No. SC20‑1195 (Florida Supreme Court, Oct. 7, 2021)

Attorney fee provision in property settlement and support agreement entitling “either party” to an award of attorney fees upon demonstrating that the other party violated the agreement was not unilateral, as provision granted both parties precisely the same contractual right to attorney fees, and therefore statute rendering bilateral a unilateral contractual clause for prevailing party attorney fees under contract entitling other party to attorney fees when required to take any action to enforce the contract did not apply to allow attorney fee award for former wife after successfully defending against former husband's motion to compel former wife to reimburse former husband for support overpayments and children's expenses, for credit against future spousal support obligations, and for attorney fees and costs.

Ed. Note: For commentary about the case, see JDSupra.

CHILD CUSTODY - HAGUE CONVENTION - HABITUAL RESIDENCE

Harm v. Lake‑Harm, No. 20‑30488 (United States Court of Appeals, Fifth Circuit, Oct. 21, 2021)

District court's finding that United States, not Ireland, was habitual residence of three‑year‑old child, under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), was not clear error, in light of evidence that child had been born in the United States, where her mother resided, and had only stayed transitorily in Ireland, where father was from, during mother's international travels as a world‑wide performing musician.

CHILD CUSTODY - HAGUE CONVENTION - DISCOVERY

Colchester v. Lazaro, No. 21‑35210 (United States Court of Appeals, Ninth Circuit, Oct. 22, 2021)

Held: (1) the district court abused its discretion by denying mother's application to have in‑depth psychological examination of six‑year‑old child by forensic psychologist; (2) the district court's wholesale denial of discovery in general, and of psychological examination in particular, was unreasonable; (3) the district court abused its discretion by denying mother's request for in‑depth psychological examination in face of specific, corroborated allegations of domestic violence and child abuse; (4) the district court's abuse of discretion in denying mother's application for meaningful psychological examination of six‑year‑old child resulted in actual and substantial prejudice to mother; and (5) statements incorporated by reference did not provide adequate factual basis for district court's rejection of mother's “grave risk” defense.

Ed. Note: Keep up to date on all Hague cases at Melissa Kucinski’s blog.

CHILD CUSTODY - MODIFICATION - CHANGE IN CIRCUMSTANCES

Kerzmann and Kerzmann, No. 20210086, 2021 ND 183 (North Dakota Supreme Court, Oct. 14, 2021)

Mother met her burden to provide prima facie showing of change in circumstances sufficient to warrant evidentiary hearing on her motion for modification of primary residential responsibility after two‑year period following entry of child custody order by submitting affidavit alleging denial of parenting time, father's failure to encourage relationship between her and children, his refusal to discuss medical issues with her, interference with access to children's school, using his position as law enforcement officer to prevent her access to school, his failure to attend to children's developmental needs, and problems with children's dental care, as well as supporting documentary evidence.

CHILD CUSTODY - SAME-SEX PARTNER - PSYCHOLOGICAL PARENT

Rosemarie P. v. Kelly B., No. S‑17960 (Alaska Supreme Court, October 9, 2021)

Two women lived together as unmarried domestic partners. One woman had a child using artificial insemination; the other helped raise the child but did not adopt the child. When the women separated, the biological mother prohibited contact between the child and the other woman, who then petitioned for custody. The superior court awarded shared custody, and the biological mother appealed. Held: Alaska recognizes awarding custody to a psychological parent in non-same sex relationships; there is no reason not to do so in same-sex relationships as well.

CHILD CUSTODY - SAME-SEX PARTNER - EQUITABLE CAREGIVER

Skinner v. Miles, No. A21A0980 (Georgia Court of Appeals, Oct. 4, 2021)

The former same‑sex partner of the mother of two children, who had adopted one child and given birth to another while in a relationship with the partner, brought an action against the mother, seeking to be adjudicated the “equitable caregiver” of the children, and requesting determination of custody and parenting time. After a bench trial, the trial court granted the partner caregiver standing as the equitable caregiver under Equitable Caregiver Act and issued a parenting plan. The mother appealed. Held: (1) the partner demonstrated that she fully and completely undertook permanent, unequivocal, committed, and responsible role in children's lives; (2) the evidence supported a finding that the partner engaged in consistent caretaking of the children; (3) the evidence supported the finding that the partner established a bonded and dependent relationship with the children; (4) the evidence supported a finding that the partner accepted full and permanent responsibilities as a parent of the children; (5) the evidence supported a finding that the children would have suffered physical harm or long‑term emotional harm if the partner were not granted equitable caregiver status and that continuing a relationship with the partner was in the children's best interest.

CHILD CUSTODY - STEP-PARENT

In re Morris, No. 2020‑0125 (New Hampshire Supreme Court, Oct. 19, 2021)

The father appealed a decision of the trial court awarding “custody and school placement” of his biological child (Child) to the child’s step-mother/father’s former wife. “Because we conclude that the circuit court erred in applying solely a best‑interests‑of‑the‑child standard to determine the parental rights and responsibilities between Father and Stepmother with respect to Child, we reverse and remand.”

CHILD CUSTODY - VISITATION - MODIFICATION - COVID

Mercedes E.H. v. Dexter R.N., 197 A.D.3d 1038, 2021 N.Y. Slip Op. 05082 (New York Supreme Court, Appellate Division, First Department, Sept. 28, 2021)

Trial court providently exercised its discretion in modifying temporary order of visitation to require father to pick up child from mother's home after the conclusion of mother's workday on Thursday afternoons, instead of requiring father to pick up child from school on Friday afternoons, in light of the fact that child was attending school from mother's home due to COVID‑19 pandemic; trial court reached fair and practical compromise by changing day of father's pickup to compensate for reduction in his parenting time on weekends and by providing father opportunity to participate in child's remote schooling on Fridays.

CHILD SUPPORT - IMPUTED INCOME

Snowden v. Jaure, 495 P.3d 882, 2021 WY 103 (Wyoming Supreme Court, Sept. 21, 2021)

The trial court’s decision to impute Mother's income at $3,975 reasonable under the circumstances. Mother testified that she was laid off in January 2020 with the downturn in the oil and gas industry, and then she voluntarily decided not to seek other employment due to the coronavirus pandemic. Mother further testified that she refrained from seeking other employment as she had done in the past because she did not want her younger children enrolled in daycare during the pandemic. While Mother may have understandably refrained from seeking work to care for her children during the pandemic, she also testified that she anticipated returning to work with her previous employer in approximately one or two months. The evidence at trial established that she had made approximately $5,300 per month with Blueprint, the employer she anticipated returning to, and her 2019 W‑2 from Blueprint in fact shows that she earned $52,245.39, which would amount to approximately $4,300 per month. Based on the record before us, we can find no abuse of discretion in the court's decision to impute Mother's gross monthly income at $5,300 per month, and net monthly income at $3,975, with the increased support to begin the following month.

Franco v. Eagle, No. A21A0875 (Georgia Court of Appeals, Oct. 20, 2021)

Husband's submission of tax returns, Form 1099 statements, and bank records did not preclude trial court from imputing $10,000 per month gross income to him when establishing amount of child support in divorce proceeding, even if such documents were type of reliable evidence of income listed in child support guidelines pertaining to gross income; husband only produced portion of financial information requested by wife, husband's testimony conflicted with at least some of the documents he produced, he provided inadequate evidence as to his income and transactions involving property in his possession and control, and he co‑mingled his business and personal accounts.

Ed. Note: For comparison cases where the appellate court held that imputing income was not supported by the evidence, see Lockhart v. Lockhart, 863 S.E.2d 174 (Ga. Ct. App. Sept. 27, 2021) and In re Marriage of Sinha, 2021 IL App (2d) 191129 (Ill. Ct. App. 2d Dist. Sept. 30, 2021).

CHILD SUPPORT - INCOME - NON-TAXABLE MILITARY BENEFITS

Jefferson v. Jefferson, No. 2020‑CA‑00642‑COA (Mississippi Court of Appeal, Sept. 21, 2021)

Non-taxable federal payments to the father for basic allowable subsistence, basic allowable housing, cost of living allowance, and clothing entitlements were earned income for purposes of the father’s child support calculation, because the payments were earned by the father and assisted him with the payment of his monthly expenses. Further, the father was not entitled to a reduction in his child support obligation to account for the requirement that he pay all visitation‑related travel expenses for child. There was no evidence that the father’s obligation to pay transportation costs for visitation hindered his ability to continue the visitation arrangement, and when the mother paid to send the parties’ son to Japan for visitation, the high cost of airfare “broke” her, and the father chose to reside in Japan in his post‑military career.

DIVORCE - PROCEDURE - RESIDENCE

Senjab v. Alhulaibi, No. 81515, 137 Nev. Adv. Op. 64 (Nevada Supreme Court, Oct. 21, 2021)

Wife, a Syrian citizen, filed a divorce complaint against Husband, also a Syrian citizen, while the parties were in the United States on student and dependent visas. The trial court dismissed the action, and Wife appealed. Held: Divorce jurisdiction requires mere residence, rather than domicile. Reversed.

PROPERTY DIVISION - CLASSIFICATION - APPRECIATION

Eis v. Eis, 310 Neb. 243, 965 N.W.2d 19 (Nebraska Supreme Court, Oct. 1, 2021)

The entire tract of 120 acres that the husband brought to marriage, and on which marital home was situated, was “marital property” subject to equitable distribution upon dissolution of marriage. Husband argued that wife was entitled only to a share of the appreciation of the home and the garage. However, there was no evidence of the value of the tract as separate from the home, or that wife's contributions did not contribute to appreciation in value of tract itself, and the husband and wife continually borrowed against tract throughout marriage, and they paid off loans either directly with wages of both parties or from an account in which their assets were commingled.

PROPERTY DIVISION - CLASSIFICATION - INHERITANCE, COMMINGLING

Herr v. Herr, No. 47941 (Idaho Supreme Court, Oct. 8, 2021)

Two investment accounts that husband opened during the marriage were community property, even though first account was initially husband's separate property because he created it with proceeds from an inheritance, where gift from husband's brother was transferred into the account, gift was community property because it was given to both husband and wife for the purpose of remodeling their home, gift was commingled with husband's separate property, husband did not trace the portion of the account that was his alone, and commingled funds were used to then open second account.

PROPERTY DIVISION - OMITTED ASSET

Hilton v. Hilton, No. 47487 (Idaho Supreme Court, Sept. 27, 2021) (rehrg. dismissed Nov. 1, 2021)

The parties’ agreement, incorporated into the decree, contained a detailed lists of the parties’ community property, but it did not mention any separate property, including DataBlaze, a software company of which the husband owns a 60% share. The stipulation and the Decree were drafted by the wife’s lawyer, and included detailed lists of specific items constituting each party's equitable share of the community property. The lists included both large and small items, ranging from the retirement and investment accounts to “the Mickey Mouse apron and oven mitt.” Neither the stipulation nor the decree mentioned any separate property. Further, early in the divorce proceedings, the husband filed a motion for partial summary judgment asserting that DataBlaze was his separate property. The magistrate court ruled in Lance's favor and entered an order granting summary judgment. The wife never moved for reconsideration or requested Rule 54(b) certification so she could appeal this order. Over two years after the Decree issued, the wife filed a petition with the magistrate court seeking to divide an allegedly omitted community asset: DataBlaze. Held: You divided oven mitts but you “forgot” to divide DataBlaze? I don’t think so. “Cynthia knew the summary judgment order determined DataBlaze to be Lance's separate property. She also knew that the stipulated Decree, drawn up by her own attorney, divided all the community property—right down to the last oven mitt. Then, mere months after successfully obtaining higher child support from Lance, based on his separate property holdings, Cynthia filed a petition to divide DataBlaze as an omitted community property asset, arguing for a lump sum of its retained earnings. It hardly requires a reference to hornbook law to recognize that Cynthia cannot apply the retained earnings of an asset—previously adjudicated to be separate property—when attempting to increase child support, and months later claim that same asset is omitted community property.”

PROPERTY DIVISION ‑ SEPARATE PROPERTY ‑ PET

Matter of Marriage of Niemi, 496 P.3d 305 (Washington Court of Appeals, Divsion 1, Oct. 4, 2021)

The trial court awarded two dogs (Mr. Bear and Kona) to the husband as his separate property, but also ordered that the wife could visit the dogs. Held: The trial lacked the authority to order the husband to make the dogs available to the wife for visitation.