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December 06, 2023 Case Update

October 2023 Case Update

Vol. 27,. No. 10

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 2023, as they were not posted to Westlaw until after I prepared the September 2023 update on October 15, 2023.) 

CHILD CUSTODY - CONTEMPT

Slosser v. Supance, No. 22AP-693, 2023‑Ohio‑3437 (Ohio Court of Appeals, Tenth District, Franklin County, September 26, 2023):

Mother tested positive for COVID-19. In response to the directive from a health department official that Mother and Child quarantine in her home, Mother requested that Father delay his parenting time to accommodate Child's COVID‑19 quarantine period and that Father be sole transportation provider for that parenting time. Father filed for contempt. Held: Mother’s actions and requests were reasonable and, thus, were not contemptuous; further, Mother did not refuse Father parenting time but, rather, offered alternative to Father, which he refused.

CHILD CUSTODY - HAGUE CONVENTION -

Galaviz v. Reyes, No. 22‑50203 (United States Court of Appeals, Fifth Circuit, October 11, 2023):

The U.S. District Court for the Western District of Texas refused to order the return from Texas of two children to their habitual residence in Mexico because the children were not getting free public education in Mexico. The Fifth Circuit reversed, holding that the court essentially made a custody decision, i.e., who should have custody based on which country would offer a “better” education.

(Ed note: For more Hague Convention cases, see here.)

CHILD CUSTODY - UCCJEA - HOME STATE

McNeil v. Stern, Nos. 2023‑314, 2023-315 (Louisiana Court of Appeals, 3 Cir., September 27, 2023):

Three‑month old child's home state was Louisiana under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), even though child was born in Texas, and, thus, trial court had subject matter jurisdiction over father's custody action and properly denied mother's petition to register Texas order granting custody to mother. Under UCCJEA, since child was less than six months old, its home state was state in which child lived from birth with a parent, and mother lived in trailer in Louisiana with child for at least 51 of 61 days from child's birth until father filed custody action, told social worker that her home address was in Louisiana, received unemployment benefits and food stamps in Louisiana, and listed Louisiana as her home state on legal documents.

(Ed. Note: Although this first looks like a significant contacts case, it is actually a home state case. The parties both lived in Louisiana when the child was born, the father filed for parentage and custody in Louisiana, and the mother later moved to Texas and filed in Texas in violation of a Louisiana order. The “51 of 61 days” is a red herring. [Thanks, Ron Nelson.] And for another interesting UCCJEA case discussing home state, see Geraldine H.T.B. v. Guillaume A.P.M.J., 197 N.Y.S.3d 200, 2023 N.Y. Slip Op. 05091 (New York Supreme Court, Appellate Division, First Department, October 10, 2023.)

CHILD SUPPORT - INCOME - HIDDEN INCOME

Gussio v. Gussio, No. 2020‑CA‑00785‑COA (Mississippi Court of Appeals, September 26, 2023):

Substantial evidence supported chancellor's finding that husband's financial statement understated his adjusted gross income. Husband's primary reported income was salary he received from corporation for which he was sole shareholder and decided what salary to pay himself, husband provided no evidence regarding corporation's income, husband only provided his personal tax returns but no returns for corporation or his other businesses, his financial statement disclosed he was sole owner or held 50% interest in 16 businesses but statement simply stated “not sure” regarding the value of the entities, and husband's lifestyle and spending habits showed evidence of additional income. And by the way, the money the wife received from her father was not income to her. The wife's father did not provide wife a regular allowance or pay her expenses as a form of compensation for employment, the wife's father instead paid wife's expenses from time to time during the marriage when husband unreasonably refused to pay for car repairs, medical bills, or other necessities for the wife's children, the wife's father had helped wife after her separation from husband by, among other things, loaning her money to pay her attorneys, wife testified that she owed her father the attorney fees he had paid for her, and father had no obligation to provide the financial assistance and could have stopped at any time.

(Ed. Note: See also this month Qazi v. Qazi, 196 N.Y.S.3d 780, 2023 N.Y. Slip Op. 04970 (New York Supreme Court, Appellate Division, Second Department, October 4, 2023), holding in a child support case that the father failed to prove his expenses to be deducted from income.)

CHILD SUPPORT - INCOME - IMPUTED INCOME - EARNING POTENTIAL

Yocum and Pockett, No. A178935, 328 Or. App. 613 (Oregon Court of Appeals, October 11, 2023):

The trial court imputed a monthly income to father of $12,500 per month and set his child support obligation at $1,025 per month, based on the father's potential income in the field of computer and information research science. Reversed. Although the mother presented evidence of father's significant education and job history, the record as a whole lacked non-speculative evidence showing that the father was presently capable of earning that potential salary. The father testified that he abandoned the field 11 years prior and that his skills were outdated, and the evidence showed that, while the  father did part‑time work in the field more recently, the father's income equated to $7,500 per month had it been full time and no full‑time work had been available. 

CHILD SUPPORT - ADD-ON EXPENSES - PRIVATE SCHOOL

Rabalais v. Rabalais, No. 23‑164 (Louisiana Court of Appeals, Third Circuit, October 18, 2023):

In determining whether a private school education is necessary to meet needs of child, as could support inclusion of private school tuition in child support obligation, stability and continuity, as referred to in statute governing inclusion of private school expenses in support obligation, are illustrative, but not exclusive, of the types of needs which may be satisfied by sending a child to private school. Here, the evidence was sufficient to support finding that a private school education was necessary to meet needs of child, as would support inclusion of private school tuition in child support obligation of ex‑husband, who was non‑domiciliary parent under parties' joint custody decree; expert testified that child had adjustment disorder and that, due to bullying and cyber issues, and fact that child had described being unhappy and depressed at her previous public school, child's needs were not being met at child's previous public school.

DIVORCE - PROCEDURE

Shell v. Shell, No. 442 EDA 2023, 2023 PA Super 195 (Pennsylvania Superior Court, October 3, 2023):

Husband and Wife married in 1988 and lived in Florida. In May 2019, the two separated and never lived together again after Husband was moved to a senior living facility in Pennsylvania. Two years later, Wife filed a complaint in divorce, alleging that the parties have lived separate and apart for at least one year and that the marriage was irretrievably broken. Husband never answered the complaint. On August 9, 2022, while the divorce action was Husband died, following which Administrator applied for and was granted letters of administration and substituted as a successor party. Wife meanwhile praeciped to withdraw the divorce complaint and discontinue the divorce action. Administrator responded by petitioning to set aside Wife's praecipe. Held: Since the grounds for divorce had not been established (under PA law, in a divorce case, all allegations in a complaint are deemed denied unless admitted), the Wife’s rights were to be determined under probate law, not divorce law. 

PROPERTY DIVISION - CLASSIFICATION - ENHANCED VALUE OF PROFESSIONAL PRACTICE

Strickland v. Strickland, Nos. 1D21‑3894, 1D22‑2506, 48 Fla. L. Weekly D1999 (Florida District Court of Appeal, First District, October 11, 2023):

Former Husband owns his dental practice, Spanish Trail Dentistry, and the company which owns the building it operates from, Biggs & Strickland. The trial court classified both companies as nonmarital assets. While this means the companies themselves do not have their value divided after marriage dissolution, “[t]he enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both,” is a marital asset. Former Wife tried to prove that both Spanish Trail Dentistry and Biggs & Strickland increased in value during the marriage. The trial court found that Former Wife failed to show the value of Spanish Trail Dentistry increased but did show the value of Biggs & Strickland increased. That increase resulted from the paydown of the mortgage on the building. Section 61.075(6)(a)(1)(c) states “[t]he paydown of principal of a note and mortgage secured by nonmarital real property” is a marital asset “if the note and mortgage secured by the property are paid down from marital funds during the marriage.” The trial court's order does not discuss this issue, but it apparently decided the funds Biggs & Strickland used to pay down the mortgage on the building were marital funds. The only source of income of Biggs & Strickland is the rental income it receives from Spanish Trail Dentistry. This results from a lease agreement signed between the two companies in which Spanish Trail Dentistry pays a set amount of money to Biggs & Strickland to rent the space used for the dental practice. Biggs & Strickland then uses that money to pay down the mortgage. At no point does the money cross over into Former Husband's hands personally. The money went directly from Spanish Trail Dentistry to Biggs & Strickland. Both are nonmarital assets, making the money nonmarital. And the rent payments were an essential expense of the nonmarital business. While a party cannot hide the results of marital efforts in a nonmarital company to avoid their classification as marital property, there was no evidence that Former Husband stored, or comingled, marital assets in his companies.

PROPERTY DIVISION - MILITARY DISABILITY BENEFITS - CONTEMPT

Moore v. Moore, 2023 Ark. App. 436, 675 S.W.3d 474 (Arkansas Court of Appeals, October 4, 2023):

“Linzy argues that the circuit court erred in denying her motion for contempt because the parties had a contractual agreement read into the court record at the divorce hearing that Collin would pay Linzy 32 percent of his military retirement pay and that Collin willfully violated the agreement by taking actions to reduce Linzy's agreed upon share of his military retirement pay.... The problem in this case is that the monetary amount Linzy was to receive as the former spouse was uncertain at the time of divorce, although the parties had been able to determine a percentage of the retirement pay to which Linzy would be entitled—32 percent. Both the agreement read into the record and the decree indicate that the military would calculate Linzy's portion and pay her directly. Until that time, Collin was to pay pursuant to the temporary order, which set an amount at $459, which was what Collin “predicted” Linzy's share would be... His military retirement statements did not show the disability. It was his understanding that the disability waiver was a “variable” used “in computation of former spouse benefits.” He was aware at the time of divorce that his military disability rating was 20 percent and claimed he provided this document during discovery in 2017. Linzy, on the other hand, testified that she was not aware of the document. Linzy agreed that after the 2017 order was entered, she continued to receive about $270 monthly for the military retirement but sued him in because she thought she should be getting more. Both parties described different understandings of the 2017 order as it pertained to the retirement issue.” No contempt: “he percentage of retirement had been determined at the time of the divorce decree, but the monetary amount was uncertain. Although the parties agreed that it would be 32 percent, there was no reference to gross pay, net pay, or disposable pay. The divorce decree, which Linzy approved, only referenced 32 percent of “retired pay.” The payments Collin had been making pursuant to the temporary order were based on “predictions.” The decree provided that Linzy's portion would be based on the military's calculations. These calculations, unfortunately, were different than the parties anticipated. The parties litigated this issue in 2017 and reached a settlement. When Linzy filed the present contempt action, nothing had changed. Linzy was receiving the same amount she had received since the military issued its first check directly to her in December 2016. Given the record before us, we cannot say that the circuit court clearly erred in denying the motion for contempt.”

PROPERTY DIVISION - TRANSMUTATION - TRACING

Walker v. Walker, No. 1 CA‑CV 23‑0036 FC, 106 Arizona Cases Digest 24 (Arizona Court of Appeals, Division 1, October 3, 2023):

“The mere fact that the property was commingled does not cause it to lose its separate identity, as long as the separate property can still be identified.” Wife showed that the bank account had a balance of $10,889 when she deposited the loan proceeds. Husband does not dispute that the loan proceeds were Wife's separate funds. Wife wrote five identifiable checks less than a week after depositing her separate funds. Thus, the funds were traceable and did not lose their identity. Husband argues that because the checks repaid community debts and expenses, Wife gifted the funds to the community, rendering them commingled and untraceable. But a spouse's use of separate funds to pay a community debt does not transmute the balance of the separate funds into community property.

SPOUSAL SUPPORT - INCOME - LIVE-IN GIRLFRIEND

Schmidt v. Schmidt, No. 5D22‑466, 48 Fla. L. Weekly D1975 (Florida District Court of Appeal, Fifth District, October 6, 2023):

As part of its consideration of Former Husband's ability to pay, the trial court attributed to him the entire $35,000 annual income of his live‑in girlfriend, including governmental benefits for the care of her two children. No, you can’t do that. “As a matter of factual findings, the trial court also erred. It would appear that the trial court, inexplicably, assumed that neither the girlfriend nor her children had any deductions or expenses of their own to be paid from her own income; thus, imputing 100% of her income to Former Husband. The trial court's additional factual assumption, that the girlfriend's income went into a joint account shared with Former Husband, is directly contrary to the record evidence which shows it went into her separate account. There was no evidence to support any of those assumptions.”

THIRD-PARTY VISITATION - GRANDFATHER - FAVORITISM

Hutson v. Hutson, No. 2022‑CA‑00569‑COA (Mississippi Court of Appeals, October 3, 2023): 

Paternal grandfather petitioned for grandparent visitation with grandchild. The trial court dismissed the action and found parents were justified in denying grandfather visitation with grandchild. Held: “Here, we affirm the chancellor's ruling. We presume that parents know what is in the best interest of their child. Both Jacob [father] and Theresa [mother] testified that Michael's [grandfather’s] favoritism toward Jane [grandchild] over their other children was causing problems in their family and emotionally harming Theresa's two other children. There was testimony that when all the children were at Michael's house, Jane would be allowed to do things that the two other children were not allowed to do. There was also testimony that the grandparents would provide more for Jane financially and would support Jane's extracurricular activities more than the other children to the extent that Theresa's older children noticed the difference. Based on the evidence in the record, we conclude that the chancellor's decision was not clearly erroneous. The factual question before the chancellor was one of reasonableness and, based on the testimony from the Hutsons (a majority of which Robin did not contradict), the chancellor found that the Hutsons acted reasonably. We find no reversible error.”

NEWS ITEMS OF INTEREST

Celebrity Divorce News:

Al Pacino to Pay $30,000 a Month in Child Support to Noor Alfallah for Baby Son.

Other News Items of Interest:

Florida Bar Considers Proposed Advisory Opinion on Lawyers’ and Law Firms’ Use of Generative Artificial Intelligence (AI).

In Light of Use of Generative AI, Judge Issues Order That Signature of Counsel Constitutes an Affirmation That All of the Pleading Contents Have Been Validated for Accuracy and Authenticity. 

More than a Dozen Judges Have Released Official Guidance on Using Generative AI Tools in Litigation.

Thought that Voisine v. U.S., 579 U.S. 686, 136 S.Ct. 2272 (2016) prohibited the possession of firearms by persons convicted of domestic violence? Think again.In U.S. v. Rahimi, the Supreme Court will consider whether “an individual that no sensible society would allow to have a gun” may nonetheless do so under the Second Amendment and Bruen.

See also Dahlia Lithwick on Rahimi.  

Colorado enacts Donor-Conceived Persons and Families of Donor-Conceived Persons Protections Act; opens proposed regulations to comments.

The Case Against Family Court.

Navajo Nation Mulls Legalizing Same-Sex Marriage.