November 10, 2021 Vol. 25, No. 9

September 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 August, as they were not posted to Westlaw until after I prepared the August update on September 10, 2021.)

AGREEMENTS - PREMARITAL AGREEMENT - VALIDITY

Andrew B. v. Abbie B., 1494 P.3d 522 (Alaska Supreme Court, September 1, 2021)

The last time the Alaska Supreme Court said anything about how to determine the validity of a premarital agreement was 1987. Time to look at that again. “We hold that a court must decline to enforce a prenuptial agreement if the party seeking to avoid enforcement proves that it was not voluntarily entered into. Proving that the agreement was not voluntarily entered into is not the same as proving that the agreement was the product of duress. Rather, the test for voluntariness is distinct, reflecting the special circumstances in which prenuptial agreements are formed. As a leading treatise on prenuptial agreements explains, parties engaged to be married are in a relationship of “extreme mutual confidence” that “presents a unique situation unlike the ordinary commercial contract situations where the parties deal at arm's length.” “Because of the confidential relationship, the courts insist that the [prenuptial] agreement be ‘voluntary’ in a way that is somewhat different from ... the common law contract doctrines of duress and undue influence.” The doctrine of duress, which invalidates a contract only when one party is actually forced into it by the other, is appropriate protection in the commercial context where parties stand at arm's length and are presumed to be acting in their rational self‑interest. But parties engaged to be married have a “tendency to think in terms of mutual interest rather than self‑interest” and so are “uniquely vulnerable to overreaching”; more protection is required to ensure that a prenuptial agreement is truly voluntary.”

CHILD CUSTODY - AGREEMENT - AGREEMENT TO ARBITRATE

Singh v. Singh, Case No. 2020‑000457 (South Carolina Supreme Court, September 8, 2021)

Mother filed various motions to vacate orders relating to parties' agreements to arbitrate issues of child custody and visitation, including post‑divorce order confirming arbitration award. Held: Didn’t think we had to say this, but no, the alternative dispute resolution (ADR) rules concerning mediation and arbitration of family court matters prohibit arbitration of children's issues including custody and visitation. A family court does not have statutory authority to approve an agreement for binding arbitration of children's issues including custody and visitation.

CHILD CUSTODY - ARTIFICIAL INSEMINATION ACT

Gatsby v. Gatsby, No. 47710 (Idaho Supreme Court, September 24, 2021)

As part of divorce proceeding involving a same‑sex marriage, the trial court granted the biological mother sole custody of a child born during the marriage and conceived through artificial insemination using a third‑party semen donor. Same‑sex spouse appealed. Held: (1) as a matter of first impression, the Artificial Insemination Act governed; (2) as a matter of first impression, the Artificial Insemination Act was applicable and available to same‑sex spouse; (3) as a matter of first impression, the spouse failed to comply with requirements of the Artificial Insemination Act and thus lacked parental rights under the Act; and (4) the evidence was sufficient to support decision to grant biological mother sole legal and physical custody of child and denying same‑sex spouse any third‑party custody or visitation. Dissent: “In this case, a married couple (albeit of the same sex) undertook to have a child together through artificial insemination. Now, during the process of divorce, the biological mother of the resulting child seeks to deprive her acknowledged spouse of any recognized legal relationship to the child, the effect of which will render the marriage a nullity and deprive the child of parental and financial support. Today, the majority agrees with the biological mother and issues a decision which effectively says that a parent who has consented to (and participated in) her spouse being artificially inseminated is not entitled to be a parent of the resulting offspring because neither she nor a physician filed a never‑used and now‑obsolete form with the State Registrar of Vital Statistics. In so holding, the majority has delegitimized the non‑biological mother's efforts to establish her parental rights and responsibilities. However, the most lasting error in this decision is not the majority's disregard of Linsay's (and also Kylee's) efforts to establish and recognize a parental relationship; it is the refusal to grapple with the consequences of this decision. I think the effect of the majority's opinion is contrary to the public policy of Idaho and jeopardizes the legal protections of a parent whose child was conceived by artificial insemination. For these reasons, I respectfully dissent.”

[Ed. note: See also this month Cook v. Sullivan, 2020‑01471 (Louisiana Supreme Court, September 30, 2021) to the same effect.]

CHILD CUSTODY - COUNSELING

In re P.H.R., No. DA 21‑0050, 2021 MT 231 (Montana Supreme Court, September 14, 2021)

The district court lacked authority, in a post‑divorce action modifying parenting plan, to compel the mother's current husband to attend family counseling, where he (the mother’s husband) was not a party to this case, nor did he at any time voluntarily submit himself to the jurisdiction of the District Court.

CHILD CUSTODY - HAGUE CONVENTION - GRAVE RISK OF HARM

Jones v. Fairfield, No. 21-35159 (United States Court of Appeals, Ninth Circuit, September 15, 2021)

The husband, a resident of France, filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute for return of the child, whom the wife had removed from France to Washington. The district court denied the petition and the husband appealed. Held: the wife’s removal of the child to Washington from France was wrongful; the district court was required to consider alternative remedies that would allow both the return of child to France and her protection from alleged grave risk of harm if returned to France; and the district court clearly erred when it implicitly found that requiring child's return to France would present grave risk of exposing child to physical harm due to COVID‑19 pandemic, as justification for denying husband's petition.

Radu v. Shon, 11 F.4th 1080 (United States Court of Appeals, Ninth Circuit, August 31, 2021)

Father filed petition for return of children to Germany pursuant to the Hague Convention and ICARA, after mother wrongfully removed children. The District Court (Arizona) granted the father's petition and ordered the mother to return the children to Germany, but ordered an alternative remedy that the mother retain temporary custody and care for the children until a custody determination in a German court after finding a grave risk of psychological harm to the children if the children remained in the father's custody. The mother appealed. Held: The record did not adequately support whether the alternative remedy to have the children returned to Germany in the mother's custody had a high likelihood of performance through supportive reinforcement under the Hague Convention. Vacated and remanded.

CHILD CUSTODY- PARENTING PLAN - COMPELLED COUNSELING - COMPELLED MEDIATION

Russell v. Russell, No. DA 21‑0050 (Montana Supreme Court, September 14, 2021)

The father filed a post‑divorce motion to amend the existing parenting plan and a proposed amended parenting plan. Following mediation, the trial court issued an order and amended the parenting plan. Held: (1) the trial court lacked authority to compel the mother's current husband to attend family counseling; (2) the trial court abused its discretion when it failed to incorporate the parties’ stipulation regarding communication with the children into the plan; (3) the trial court court could not order the parties to mediate future parenting disputes without including a requirement that they each provide written informed consent; and (4) the trial court acted within its discretion when it split the tax dependency deductions between mother and father.

CHILD CUSTODY - PARENTING PLAN - MODIFICATION

Bruno v. Moreno, No. 2D20‑3172 (Florida District Court of Appeal, Second District, August 25, 2021)

Change in time‑sharing schedule and parenting plan was not warranted as a contempt sanction for mother's failure to abide by the time‑sharing terms of final judgment of paternity; father's motion for civil contempt and enforcement of the final judgment did not request change in time‑sharing schedule and parenting plan, and thus mother was not put on notice that she would have to defend against such a request, and the trial court's order did not address whether changing the time‑sharing schedule and parenting plan was in the best interests of the child, as is required by statute.

CHILD CUSTODY - PLEADING

Pascal v. Pino, No. A21A0913 (Georgia Court of Appeals, September 22, 2021)

Mother filed post‑divorce petition to modify child custody, visitation, and child support. Father counterclaimed to modify child support. After trial, the court awarded primary physical custody of the children to father. Mother appealed. Held: The father did not request custody in a complaint or counterclaim, so the remedy was beyond the scope of the pleadings. Reversed.

CHILD CUSTODY - TERMINATION OF PARENTAL RIGHTS - INCARCERATION

In the Interest of T.H., No. 123,504 (Kansas Court of Appeals, August 20, 2021)

Clear and convincing evidence in the record did not support termination of father's parental rights based on a finding that father's incarceration on conviction for distributing controlled substances indicated unfitness, although father would remain incarcerated for several years. In particular, there was no evidence in the record that indicated that father was addicted to drugs or participated in any drug‑related activities in child's presence, child lived with father successfully despite father's criminal history, father followed case plan, father supported child financially before and after incarceration, and father worked with extended family to provide child stability and permanency while he was incarcerated.

CHILD CUSTODY - UCCJEA

Schutter v. Siebold, No. WD 84011 (Missouri Court of Appeals, Western District, August 24, 2021)

After the Missouri court entered its original orders, the father moved to modify child custody and for temporary custody and support, moved to quash the mother's garnishment of his wages, and moved for family access, alleging that the mother, who had since moved to Texas with their son, had denied him contact with his son, significant changes in income had occurred, and that the mother had denied him access to the child's medical records. Mother moved to dismiss, claiming the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. The trial court bought it, and dismissed the case. Held: Nope. First, the UCCJEA doesn’t apply to child support orders. Second, although the trial court found that it did not have exclusive continuing jurisdiction to modify child custody and that, even if it did, Missouri was an inconvenient forum, sections 452.745 and 452.770 did not deprive the trial court of jurisdiction to rule on the father's family access motion. “A trial court has inherent power to enforce its own judgments and should see to it that such judgments are enforced when called upon to do so.”

CHILD SUPPORT - ADULT DISABLED CHILD

O'Roake v. State ex rel. Department of Family Services, Child Support Enforcement Division, No. S‑21‑0017, 2021 WY 98 (Wyoming Supreme Court, August 31, 2021)

A parent's legal obligation for the support of his child “continues past the age of majority in cases where the [child is]: (i) Mentally or physically disabled and thereby incapable of self‑support ....” Wyo. Stat. Ann. § 14‑2‑204(a)(i) (LexisNexis 2021). In its decision letter, the district court made the following relevant findings: “[T]he minor child suffers from a mental or physical disorder, phenylketonuria disorder, and is unable to support himself due to that disorder. It would be unjust and inappropriate for [Mother] to continue to pay all the related expenses without contribution from [Father].” The district court ordered Father to continue to pay half of the dietary costs ($375 per month) after high school “so long as the child is enrolled full‑time in college.” Held: This doesn’t make sense. The district court found ZAO incapable of self‑support because of his PKU but ordered Father to pay for ZAO's dietary needs only if ZAO is enrolled full‑time in college. Either ZAO is capable of self‑support, or he is not. In conditioning post‑majority support on college attendance, the district court's order contradicts its finding that ZAO is incapable of self‑support. This Court cannot reconcile the inconsistency. Reversed and remanded.

CHILD SUPPORT - UIFSA - REGISTRATION OF OUT–OF-STATE ORDER

Chalmers v. Burrough, No. No. 121,108 (Kansas Supreme Court, August 27, 2021)

A Florida court former KU basketball superstar Mario Chalmers to pay support for his child. When he later asked to modify the amount of the order, he tried to register the order in a Kansas district court where the child was living, pursuant to the Uniform Interstate Family Support Act. The Sedgwick Co. District Court temporarily modified the order. Burroughs then moved to set the modification aside; Chalmers realized he had failed to include a copy of the Florida order with the registration materials pursuant to legal requirements and moved the court to allow him to add the Florida order to the record. Held that as a matter of first impression: the father's failure to properly register his out‑of‑state child support order did not deprive the district court of subject matter jurisdiction.

PROPERTY DIVISION - EQUITABLE SHARE

Roetter v. Roetter, No. 20A‑DC‑2150 (Indiana Court of Appeals, August 20, 2021)

“The trial court attempted to account for the statutory factors favoring Wife when it awarded Wife fifty‑five percent of the marital estate after setting aside various assets and debts. (Appellant's App. Vol. II at 17) (“Due to the disparity of the party's [sic] income and earning abilities, the Court finds that wife should receive 55% of the net marital estate.”). However, the trial court's fashioned remedy is completely meaningless in light of the portions of the net gross marital estate the trial court individually assigned to each party. These assignments effectively excluded the parties’ premarital assets and debts from the marital estate. The facts and circumstances before the trial court clearly indicated that Wife was entitled to a share of the marital estate larger than the twenty‑five percent she received, and therefore, we reverse the trial court's division of property and remand with instructions for the trial court to fashion a remedy closer to the fifty‑five, forty‑five split Wife requested. On remand, the trial court shall consider the $12,000 payment Husband made to Wife while the divorce was pending as a payment made in lieu of additional maintenance, and the trial court shall not consider the payment as part of the fifty‑five, forty‑five split. See, e.g., Eye, 849 N.E.2d at 706 (remanding with instructions for trial court to consider the relevant statutory criteria before determining an unequal distribution of marital estate was warranted).”

PROPERTY DIVISION - RESTRICTED STOCK UNITS

Vanderveer v. Vanderveer, 310 Neb. 196 (Nebraska Supreme Court, September 24, 2021)

To apply the time rule to the stock units, it is essential that the court be presented with evidence from which it can determine whether the unvested stock options or stock retention shares were granted as compensation for past, present, or future services. As such, if the husband wanted to rely on the time rule to argue that some or all of his unvested RSUs were nonmarital, it was his burden to prove, by a preponderance of the evidence, that at least some portion of the RSUs granted during the marriage were granted as compensation for future services. He failed to meet that burden, and thus the trial court did not err in classifying all the RSUs as marital. Further, because the husband regularly earns significant RSU income and can reasonably be expected to earn it in the future, there is a rebuttable presumption that some amount of RSU income should have been included when computing his total income under the Guidelines.

SPOUSAL SUPPORT - INCOME - INCOME AVERAGING

In re Marriage of Pletcher, 68 Cal.App.5th 906, 283 Cal. Rptr.3d 728 (California Court of Appeal, Fourth District, Division 3, September 10, 2021)

In calculating Mitchell's income, the trial court's approach was simple: take the last 12 months of income, run it through the DissoMaster software program, and award the program's recommendation. Generally, there is nothing wrong with that approach. The ultimate yardstick, however, is still a party's ability to pay, and a computer program is only as good as the data it is fed. The inquiry into a party's ability to pay is prospective in nature. Although the evidence is necessarily historical, the court is attempting to forecast what the party will be able to pay as the litigation progresses. In most cases, this is not particularly challenging. A review of the payor's income over a 12‑month period is normally adequate, as most people's income does not fluctuate dramatically from year to year. The husband, however, is not most people. The evidence was clear and undisputed that the husband’s income varied wildly from year to year. Between 2014 and 2019 he made, on the low end, $490,000 in a year, and on the high end, $1,590,000. Moreover, the evidence was clear as to why this was the case; for his profit‑based clients, he had to beat his previous high watermark in order to make any money. For this reason, it was error to conclude that having earned $1,590,000 in 2019, the husband would continue making that amount throughout the remainder of the litigation (which, if the temporary spousal support hearing is any indication, could go on for many years).