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December 06, 2023 Case Update

September 2023 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 2023, as they were not posted to Westlaw until after I prepared the August 2023 update on September 18, 2023.) 

AGREEMENTS - PREMARITAL AGREEMENT - UNCONSCIONABLE

Auxier v. Auxier, 32 Neb. App. 230 (Nebraska Court of Appeals, September 5, 2023):

Under Nebraska law, the unconscionability of a premarital agreement is determined at the time of the execution of the agreement; there is no “second look” as in other states. So, even though wife had a disability resulting from an injury‑induced stroke during the marriage, the provision of the premarital agreement waiving alimony was not unconscionable, rendering the agreement unenforceable, even though the disability made the wife unable to work and dependent on Social Security disability benefits, and even though the husband had the ability to pay alimony, being a skilled welder and the sole owner of farmland and equipment, since disability occurred after execution of premarital agreement. 

on the other hand,

McEvoy v. McEvoy, No. 2020–09083 (New York Supreme Court, Appellate Division, Second Department, September 27, 2023):

Prenuptial agreement that stated marital property would not be created unless husband and wife placed marital earnings into joint account or titled property jointly, all property titled in individual party's name would remain separate property including income earned during the marriage, and waiving right to maintenance, was unconscionable. The wife received no benefit from the agreement as no marital assets were created during the marriage and wife relinquished all rights to any property or earnings titled in husband's name, and enforcement of the agreement would result in risk of wife becoming public charge as she had recently suffered debilitating stroke, had been unemployed since birth of parties' first child, and would be left largely without assets, while husband would retain approximately $942,000 in assets and continue making approximately $190,000 per year.

AGREEMENTS - SURROGACY AGREEMENT - PARENTAL RIGHTS

Sayler v. Sun, No. DA 22‑0133 (Montana Supreme Court, September 20, 2023):

A very weird and confusing case. Father is a Chinese national who entered the United States in May 2017 at age 20 under a student visa to study at Alabama's Auburn University in an English‑speaking business program catered to international students.1 With the financial support and assistance of his mother and remaining family in China, Father later decided to have a child in the United States through a private California surrogacy company specializing in surrogate child births in accordance with California Family Code §§ 7960 through 7962 (authorizing and providing for assisted reproduction agreements for gestational carriers and uncontested judicial confirmation of sole parentage in client parent). He reasoned that surrogacy was his best opportunity to father a child because he is a homosexual male and surrogacy is illegal in China. After engaging the California surrogacy company, Father selected a company‑associated surrogate candidate (Surrogate) who was an unacquainted 32‑year‑old single mother of two children (ages 8 and 4) residing and regularly employed in Billings, Montana. After the company conducted a lengthy and comprehensive suitability evaluation of Father and Surrogate through various associated surrogacy professionals (inter alia including a company‑provided Chinese‑speaking social worker), Father and Surrogate executed a 72‑page California law Gestational Carrier Agreement (GCA) in February 2019. In pertinent essence, the GCA provided for: (1) an in vitro fertilization procedure in California (i.e., a sperm specimen from Father, female ovum from an anonymous third‑party donor, and surgical implantation of the resulting embryo in Surrogate's uterus); (2) Surrogate's return to Montana and carriage of the implanted embryo to term for birth in Montana; (3) immediate and unconditional Surrogate relinquishment of the newborn to Father upon birth as the “sole legal parent” with no parental or custodial right or interest acquired or retained by Surrogate; (4) Surrogate's corresponding written agreement that “the best interests of the [c]hild will be served with” Father “as the [c]hild's only parent” and in his “sole legal and physical custody”; (5) Surrogate's consent and cooperation in “any legal process necessary to confirm” Father's sole “parental rights” in the child; and (6) specified compensation of Surrogate in the total amount of $53,500.00. Each party separately entered into the GCA with the advice and assistance of independent counsel. Under the GCA, a separate contract with the California surrogacy company, and with funds provided by his mother in China, Father ultimately paid more than $200,000 for the subject surrogacy services.... On January 20, 2020, a week before their upcoming January 27th civil marriage ceremony, Surrogate provided Father a proposed written premarital agreement independently drafted by her lawyer pursuant to Title 40, chapter 2, part 6, MCA. In pertinent part, the proposed agreement:

(1) included separate attached exhibits identifying various items of property, with itemized valuations, then owned individually by each party;

(2) provided that, in the event of a future marital dissolution proceeding, all property previously or subsequently acquired in either of their “sole name[s],” would be “separate non‑marital property” respectively retained and distributed to each accordingly, and thus not subject to equitable division under § 40‑4‑202, MCA;

(3) provided that “[i]t is agreed that [Surrogate] has a parent[‑]child relationship with” the subject child T.S.J. “as that term is used under [§] 40‑4‑211, MCA”; and

(4) provided that each party “fully understands the terms, provisions, and legal consequences of this agreement” upon the opportunity of each to separately consult with independent counsel if so inclined.

 

Four days later on January 24th, without consultation with a lawyer or other legal professional, Father voluntarily signed the premarital agreement before a Billings notary public. The parties then married in a civil ceremony three days later on January 27, 2020. Following dissolution of the marriage, the court placed the child in the primary residential custody and care of Surrogate with lesser specified time with Father. Father timely appealed the District Court's judgments to the extent that they adjudicated nonparent parental rights, and a resulting parenting plan, in favor of Surrogate. Held:

1 nothing express or manifestly implicit from express language of parties' gestational carrier agreement precluded surrogate from later‑acquiring a parental interest or right in child by other legal means, such as by marriage;

2 parties' gestational carrier agreement terminated by its terms on surrogate's relinquishment of child upon discharge from hospital;

3 father voluntarily signed the premarital agreement, and thus, it was a validly formed and enforceable contract;

4 provision in parties’ premarital agreement, stating that surrogate had a parent‑child relationship with child, was not unconscionable and, thus, was enforceable; and

5 trial court erroneously adjudicated non‑parent “parental interest” in favor of surrogate, thereby placing child in primary custody of surrogate, without statutorily required predicate finding of fact that father's conduct was contrary to child‑parent relationship.

AGREEMENTS - RELIGIOUS AGREEMENT - “KETUBAH” - ENFORCEABILITY

Tilsen v. Benson, 347 Conn. 758, 299 A.3d 1096 (Connecticut Supreme Court, September 5, 2023):

The principal issue in this appeal requires us to consider the extent to which a Connecticut court may enforce the terms of a “ketubah,” which is a contract governing marriage under Jewish law, without entangling itself in religious matters in violation of the first amendment to the United States constitution. The plaintiff, Jon‑Jay Tilsen, appeals from the judgment of the trial court dissolving his marriage to the defendant, Miriam E. Benson. On appeal, the plaintiff contends that the trial court improperly (1) denied his motion to enforce the terms of the parties’ ketubah as a prenuptial agreement on the ground that doing so would violate the first amendment, and (2) issued certain financial orders that were based on a clearly erroneous finding as to his earning capacity, were not based on his net earning capacity, and did not reflect his current financial circumstances. We disagree and, accordingly, affirm the judgment of the trial court. As to the Ketubah,

After a hearing, the trial court, Klau, J., denied the plaintiff's motion to enforce the ketubah. In its memorandum of decision, the court assumed, “without deciding, that the ketubah is otherwise a valid prenuptial agreement under Connecticut law,” and it applied the “neutral principles of law” doctrine as articulated in, for example, Jones v. Wolf, 443 U.S. 595, 602–604, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979), and Thibodeau v. American Baptist Churches of Connecticut, 120 Conn. App. 666, 674, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010), to conclude that the first amendment precluded enforcement of the ketubah provision on which the plaintiff relied in support of a 50/50 division of marital property and relief from an obligation to pay alimony to the defendant. That provision states in relevant part that the parties “agreed to divorce [or, separate from] one another according to custom all the days of their life [i.e., as a continuing obligation] according to Torah law as is the manner of Jewish people. ...” In its analysis, the trial court conducted a comprehensive review of the body of case law concerning the enforceability of various religious wedding contract provisions, including (1) the New York Court of Appeals’ landmark decision in Avitzur v. Avitzur, 58 N.Y.2d 108, 446 N.E.2d 136, 459 N.Y.S.2d 572, cert. denied, 464 U.S. 817, 104 S. Ct. 76, 78 L. Ed. 2d 88 (1983), and (2) the Superior Court's decision in Light v. Light, Superior Court, judicial district of New Haven, Docket No. NNH‑FA‑12‑4051863‑S, 2012 WL 6743605 (December 6, 2012) (55 Conn. L. Rptr. 145). Observing that the parties had submitted conflicting affidavits from rabbis about “Torah law as it pertains to alimony and property division,” the trial court reasoned that enforcement of the ketubah's divorce provision would require the court to “choose between competing [rabbinical] interpretations of [the provision's] requirement that the parties’ divorce should accord with ‘Torah law’ ” and that “resolving such a dispute is precisely what the neutral principles approach forbids a court to do” under the first amendment. Accordingly, the trial court denied the plaintiff's motion to enforce the ketubah.

That analysis was correct. 

(Ed. Note: The case contains a very extensive discussion of the enforcement of Ketubahs and is worth reading, if that’s your thing.)

AGREEMENTS - RELIGIOUS AGREEMENT - “MAHR” - ENFORCEABILITY

Khan v. Hasan, No. 2021-05913 (New York Supreme Court, Appellate Division, Second Department, September 20, 2023):

In this case, the parties signed a religious dower agreement known as a Mahr, which was an agreement between parties to a marriage, in accordance with Islamic law, that the husband will pay to the wife a specified sum in the event of a divorce. Husband claimed the agreement was unenforceable because religious agreements are unenforceable. Held: Religious dower agreements are generally enforceable according to “neutral principles,” but this one isn’t, because it lacked an acknowledgment complying with the statute governing marital agreements between parties. 

(Ed. Note: See Christine Albano and Laura W. Morgan, The Intersection of Sharia and Family Law: A Policy and Case Summary, 30 J. Am. Acad. Matrim. Law. 219 (2017)).

 

ATTORNEYS - DEPOSITIONS - SANCTIONS - RESTRAINING ORDER

Hansen v. Volkov, No. B311524 (California Court of Appeal, Second District, September 18, 2023):

 Don’t be a jerk (not that any of you would; you are a stellar group).  Ms. Hansen represented the wife, Mr. Volkov represented the husband in dissolution/annulment proceedings. There is no question that Volkov was an ass to an extreme degree: in addition to harassing emails, “Volkov came to Hansen's office knowing the [client’s] deposition had been canceled and without any other legitimate reason to be there, remained at the office for approximately 30 minutes despite repeated demands that he leave and then feigned injury and recorded Hansen without permission when the door Hansen had been holding open struck Volkov as he slowly left the suite.” Held: Yes, he was an extreme jerk, probably violated the Rules of Professional Conduct, but the evidence was insufficient for a reasonable trier of fact to make the findings necessary to support a restraining order with the high probability demanded by the clear and convincing standard of proof.

CHILD CUSTODY - HEARING - DUE PROCESS - VISUAL IMPAIRMENT

B.B. v. A.C.B., No. 14‑21‑00288‑CV (Texas Court of Appeals, Houston (14th Dist.), August 15, 2023):

“The issue in this appeal is whether the trial court erred in a habeas‑corpus proceeding after the pro se respondent B.B. (Father) informed the court that he was visually impaired and could not read documents served on him the day before the hearing. The trial court conducted a video hearing, did not provide accommodations to Father, and signed a habeas‑corpus order that among other things awarded A.C.B. (Mother) a $4,231.44 attorney‑fee judgment against Father. In two issues on appeal, Father argues that the trial court (1) violated his rights to due process and due course of law and (2) violated his right to due process when he was not allowed to present evidence of danger to the child. Concluding that we have jurisdiction over the final attorney‑fee judgment against Father, we reverse and remand for further proceedings related to that judgment. ... Father brought his sight impairment to the trial court's attention on multiple occasions. The trial court was aware that Father only had approximately three business hours on the day before to find somebody to help him review the documents submitted to him before the hearing. The trial court made no effort to verify, after its brief recess, whether Father's mother was able to adequately review the documents with Father. Nevertheless, the trial court admitted into evidence an exhibit, which included nine videos. The trial court also admitted the time sheet of Mother's counsel, a spreadsheet containing 25 entries documenting her reasonable attorney's fees. Father was denied the meaningful opportunity to cross‑examine her on the listed activities, who completed them, and why they were allegedly reasonable and necessary. The risk that Father, a sight‑impaired litigant, was erroneously deprived of rights is high.... Simply accommodating Father's disability would not impose great administrative or fiscal burdens on the government. Indeed, the trial court only needed to delay the hearing to make sure Father had adequate time to find someone to help him understand the exhibits. Further, there was no allegation nor evidence that the child was in any danger. Mother simply asserted that Father violated her possession rights by failing to return E.A.B. according to the possession schedule. Thus, any such delay or cost in making accommodations for Father would not be so great as to frustrate the government's interests or endanger the child....  We sustain Father's first issue.”

Dissent

CHILD CUSTODY - HAGUE CONVENTION - MATURE 12-YEAR OLD - UNDUE INFLUENCE

McElligott v. McElligott, No. 23‑3175 (RK) (RLS) (United States District Court, District of New Jersey, September 12, 2023):

Stephen McElligott petitioned for the return of his minor child C.M., whom Stephen sought to return to Ireland. Of particular interest in this case was the court’s finding that the affirmative defense, that the child wished to remain in the United States, was the product of undue influence: “The Court finds, without question, that C.M.’s desire to remain in the United States and not return to Ireland is the product of undue influence. The Court finds that the child's wrongful detention in New Jersey for what now is approaching a year among his mother and her close‑knit family, all of whom view Petitioner very negatively and apparently have no hesitation in expressing same in front of C.M. — coupled with the welcome American accoutrements such as summer camps, cellphones, and private gyms that were not afforded to him in Ireland — have understandably but improperly contributed to his desire to remain here.” Thus, “The Court finds that Petitioner has established a prima facie showing of wrongful removal and/or retention under the Hague Convention. Furthermore, the Court declines to exercise its discretion and denies the Petition based on the wishes of the child affirmative defense, because the Court finds that C.M.’s opposition to returning to Ireland results from undue influence, both intended and unintended, from his residence with Respondent's family in New Jersey for the past nine months. For the following reasons, the Petition is granted and Respondent is ordered to return C.M. to Ireland.”

For another Hague Convention case that raised similar issues, see Luisa JJ. v. Joseph II., No. CV‑23‑1391 (New York Supreme Court, Appellate Division, Third Department, September 21, 2023) 

(Ed. Note: Don’t forget to check MKFL Family Law Across Borders Blog,  for the latest international cases.)

CHILD CUSTODY - RELOCATION - EVIDENCE - EVIDENCE OF ABUSE

Cowan v. Cowan, No. 83082‑1‑I (Consolidated with No. 83860‑1‑I and No. 84148‑3‑I) (Washington Court of Appeals, Division One, August 28, 2023):

The trial court considered the DVPO as the determinative “court order” that governed the children's residential time and supported the application of the rebuttable presumption in favor of relocation. However, as observed by the trial court, even if the parenting plan was the proper “court order,” the rebuttable presumption would still favor relocation because Amanda had custody of the children 57 percent of the time, and thus Joshua only had 43 percent custody—lower than the 45 percent threshold. We nevertheless take this opportunity to hold that the “order” as contemplated in RCW 26.09.525(2)(b) cannot be an order that is not otherwise defined in RCW 26.09.410(1).

CHILD CUSTODY - STANDING - PARENTAL STATUS

Quiceno v. Bedier, No. 3D23‑203 (Florida District Court of Appeal, Third District, August 23, 2023):

In 2016, Quiceno gave birth to J.Q. She identified her then‑partner as the father on the birth certificate. Quiceno subsequently wed Bedier. During the marriage, Quiceno obtained a judgment disestablishing J.Q.’s putative father's paternity. Bedier did not, however, adopt J.Q. or seek to establish paternity. In late 2021, Bedier filed a petition seeking to dissolve the marriage. In his petition, he alleged there were “three minor children born to the parties,” including J.Q., and he sought equal timesharing and shared parental responsibility. In an affidavit, he identified himself as the “father” of J.Q. and indicated that the child lived with him since birth. He further noted that “Paternity of [J.Q.] [was] disestablished by Final Judgment” in 2018. Held: The trial court erred in granting Bedier any custody or parental rights. The disestablishment of the putative father’s paternity during marriage did not concomitantly establish child's paternity in the mother’s husband, and the husband did not adopt child or otherwise seek to establish paternity.

CHILD SUPPORT - UIFSA - “FOREIGN COUNTRY” - CHILD SUPPORT TRUST

In re A.H., Nos. 1‑19‑0572, 1‑19‑0783, 1‑21‑0017, & 1‑21‑0185 (Cons.), 2023 IL App (1st) 190572 (Illinois Appellate Court, First District, August 17, 2023): 

Mother filed petition, individually and as parent of her triplet sons, seeking enforcement and modification of a child support order entered against father by a court in Thailand. The trial court entered orders requiring father to pay over $76,000 in past due child support under the Thai judgment, to pay $4.5 million into trusts for prospective modified child support, to pay $2 million in retroactive modified child support, to pay over $2 million in attorney fees and costs, and to pay $50,000 in sanctions for filing pleadings in bad faith. Father appealed and appeals were consolidated. Held: Thailand was not “foreign country” within meaning of Uniform Interstate Family Support Act provisions that set conditions for when foreign country's child support order may be modified and applied Act to proceedings involving obligees residing in foreign countries, and thus Act's modification provisions did not apply to preclude trial court from considering and adjudicating mother's petition to modify Thai judgment that ordered father to pay child support; while mother and sons resided in United Kingdom, Thailand had not been declared foreign reciprocating country under federal law, Thailand had not established reciprocal arrangement for child support with Illinois, and Thai law did not make any direct provision for enforcement of foreign child support judgments in Thai courts. Further, evidence supported conclusion that creation of child support trusts was necessary to protect sons' best interests, as supported creation of trusts under Marriage and Dissolution of Marriage Act, in proceedings on mother's petition for enforcement and modification of child support order entered against father by court in Thailand; father had history of not paying child support, trial court had found it necessary to appoint receiver because father failed to comply with certain orders to make payments, father engaged in suspicious litigation tactics to protect his interests and assets, father acted to prevent sons from inheriting under his will, and it would have been difficult and expensive for father to obtain insurance policy to secure child support payments. 

PARENTAGE - STANDING - IN LOCO PARENTIS

Brownlee v. Powell, No. 2022‑CA‑00196‑SCT (Mississippi Supreme Court, August 10, 2023):

In 2014, Jessica Powell’s daughter, E.R.L., was born. E.R.L.’s natural and legal father is Ryan Lowery, who has been an active parent in her life and assumed all responsibilities of parenthood. Jessica and Pam Brownlee began their romantic relationship in early 2014, just before E.R.L.’s birth, and the couple lived together throughout their relationship until their breakup in 2019. Even though Pam and Jessica cohabited from 2014 to 2019, they did not marry. On December 19, 2019, approximately two months after the couple's breakup in October 2019, Pam filed her Petition to Establish Custody and Visitation, in which Pam initially custody of E.R.L. Pam then withdrew her request for custody, and sought only visitation under the doctrine of loco parentis. The Chancellor denied all requests for relief by Pam. Held: Reversed.  “This Court has recognized third party visitation for those standing in loco parentis in very limited, unique situations[.] ... Jessica contends that the only cases that have permitted third party visitation absent a finding that the natural parents are unfit fall into two categories: the cases of spouses who believed a child was theirs biologically and were married to the mothers and thus enjoyed in loco parentis standing and grandparents, whose rights are addressed by statute. Pam argues that the doctrine of in loco parentis is not limited to these two situations. We agree. We have never said it is applicable only in these two situations, but we have said it is only applicable in very limited, unique situations.... The floodgates are not open for any third party visitation if the circumstances do not rise to this level, but Pam deserves an opportunity, at least, to provide proof of whether she meets this very limited, unique situation.”

PARENTAGE - SHARED LEGAL CUSTODY - IN LOCO PARENTIS

Taylor v. Smith, No. 368 MDA 2023, 2023 PA Super 160 (Pennsylvania Superior Court, September 6, 2023):

The biological father filed a complaint for child custody against the mother's paramour, who thought he was the child's father and raised child with mother until her death. The bio dad sought sole legal and physical custody of child. The trial court awarded shared legal and physical custody of child to biological father and mother's paramour. Bio dad appealed. Held: The trial court did not abuse its discretion in determining that award of shared legal and physical custody was in child's best interest.

(Ed. Note: The dads will be played by Paul Reiser and Greg Evigan.)

PROPERTY DIVISION - CLASSIFICATION - AGREEMENT TO EXCLUDE

Zamora v. Zamora, No. SD 37807 (Missouri Court of Appeals, Southern District, September 12, 2023):

Jane filed a petition to dissolve her marriage to Hugo, and Hugo filed a counter‑petition to dissolve the marriage. The only portion of the judgment at issue on appeal is the trial court's determination that two parcels of real property improved with homes, the Warren property and the Highlandville property (collectively “the properties”), were marital property and not Jane's separate property. Held: Jane did not meet her burden of proving the Acknowledgements signed by Hugo qualify as valid written agreements of the parties excluding the properties as marital property. Specifically, viewing the plain language of the Acknowledgements signed by Hugo, neither document references Section 452.330 (despite each document referencing Section 474.150 (gifts in fraud of marital rights) and Section 513.475 (homestead exemption)). Neither document references marital property or contains any language whereby Hugo purports to waive his marital interest in the properties. Each document does refer to the respective properties as the “separate estate and property” of Jane, but we decline to hold this language is sufficient to qualify each Acknowledgement as a “valid written agreement of the parties” excluding the properties as marital property under Section 452.330.2(4) and thereby overcoming the presumption of marital property. Instead, the Acknowledgements signed by Hugo indicate Jane may transfer the properties without further action by Hugo. This does not amount to a “valid written agreement of the parties” for Hugo to waive his marital interest in the properties.

PROPERTY DIVISION - CLASSIFICATION - SAME-SEX MARRIAGE

Candelaria v. Kelly, 535 P.3d 234 (Nevada Supreme Court, September 14, 2023):

Holding by United States Supreme Court in Obergefell v. Hodges, 135 S.Ct. 2584, that same‑sex couples had fundamental right to marry on same terms and conditions as opposite‑sex couples, did not require court to “backdate” start of same‑sex couple's marriage to year that parties' relationship became serious, as opposed to year in which parties formally married, in divorce proceeding in which parties disputed whether certain property was separate or community property. Because state did not recognize common‑law marriage, all couples, whether same‑sex or opposite sex, had to comply with solemnization requirement. 

PROPERTY DIVISION - FROZEN EMBRYOS - CONTRACT

Reeder v. Reeder, No. C‑220631, 2023‑Ohio‑2678 (Ohio Court of Appeals, First District, Hamilton County, August 2, 2023): 

After wife filed for divorce from husband, the parties entered into a separation agreement and parenting plan that resolved all the marital disputes except the disposition of the parties’ singular embryo stored at fertility facility. The trial court awarded wife possession of embryo and ability to use that embryo to achieve pregnancy without husband's express, written consent. Husband appealed. Held: The court must enforce the terms of the cryopreservation contract between the parties and fertility storage facility which required a showing of express, written consent of both parties separate from the contract as a condition to allow one party to use the embryo to achieve pregnancy.

 

Jocelyn P. v. Joshua P., No. 0561, September Term, 2022 (Maryland Appellate Court, September 6, 2023):

An oral agreement between a husband and wife during their marriage that each of three viable pre‑embryos would be given chance at life was enforceable, without the limitation that the parties had to be in an intact marriage. The parties agreed to undergo in vitro fertilization (IVF) and agreed that each viable pre‑embryo would be given chance at life, husband did not rebut wife's assertion that each pre‑embryo would be given such chance, “no matter what,” and the agreement was supported by adequate consideration, as both the husband and wife provided their respective genetic materials and the wife provided additional consideration in form of significant physical side effects that she endured during the procedure and donated so much time to effort that she had to shift away from full‑time to part‑time work. 

 

Smith v. Smith, No. A23A0896 (Georgia Court of Appeals, September 18, 2023):

When the couple filed for divorce, at issue was a single cryopreserved embryo. Concluding that the embryo is marital property, and applying Georgia's equitable division of property doctrine, the trial court granted the divorce and awarded custody of the frozen embryo to the wife. Held: Reversed. The court began with acknowledging the three approaches taken by the court in determining disposition of an embryo: (1) contract; (2) balancing; (3) contemporaneous mutual consent. The court followed the majority approach by first looking at any contractual provisions, and failing that, balancing the parties’ interest. The problem with this case was that the contract the parties signed, which was hopelessly confusing, contradictory, and overlapping. The trial court focused on divorce-specific language, while the appeals court focused on broader language concerning disposition. 

For more on the case, see Ellen Trachman, Georgia Appellate Court Issues Whiplash Embryo Ruling (Above the Law, September 20, 2023)

PROPERTY DIVISION - PRESERVATION OF CLAIM

Brown v. Brown, No. No. COA22‑870 (North Carolina Court of Appeals, September 5, 2023):

By filing an equitable distribution affidavit in ongoing child‑custody action that was initiated after the parties' separation but while parties were still married, the wife did not assert claim for equitable distribution. Pursuant to the applicable statute, the wife was required to raise an equitable distribution claim in a separate civil action, together with the divorce action, or as a motion in the cause. Thus, following the entry of the judgment of absolute divorce, the wife was precluded from asserting a claim for equitable distribution and the trial court was precluded from adjudicating a supposed claim for equitable distribution. Ouch. 

RESTRAINING ORDER - HARASSMENT - FIRST AMENDMENT

S.B.B. v.L.B.B., No. A‑0305‑21 (New Jersey Superior Court, Appellate Division, September 6, 2023):

Per Skoloff & Wolfe, representing the appellant: “The case stem from a domestic violence complaint filed by a husband, based on a video made by his wife, in which she called her life a nightmare because she had not received a get nearly two years after her husband had left her and their three children. [The wife’s] video, which contained no threats of violence or obscene language, is similar to other videos increasingly made in recent years by “agunot” (“chained women” in Hebrew), the term used for women whose husbands refuse to grant them divorces even though their marriages are effectively dead (and in some cases, even civilly adjudicated). After [the wife’s ] video was posted to social media, her husband took her to a Union County domestic violence court, claiming her video was harassment. The judge agreed and entered a restraining order.” Held: Restraining order vacated on First Amendment grounds. The video [the wife] made “was intended to get a get” from her husband—an objective the Court noted was “unquestionably legitimate.” Finally, in language that will protect other New Jersey women who speak out in similar ways, the Court ruled that “calls to exhort social pressure ¼ would necessarily fall under the aegis of First Amendment protection ...”

(Ed. Note: Skoloff and Wolfe, who represented the wife in this case, described the case.)

SPOUSAL SUPPORT - MARITAL STANDARD OF LIVING - NECESSARY EXPENSES

Knight v. Knight, No. 20210080‑CA, 2023 UT App 86 (Utah Court of Appeals, August 10, 2023):

After an interesting discussion of trust issues (read the case if you are interested in that), the discussed what expenses may be deducted from income to determine need for purposes of alimony. “Rebecca alleges that the district court improperly reduced her claimed expenses related to home maintenance, including expenses for snow removal, pool and spa maintenance, and landscaping. She argues that Jared took care of these tasks during the marriage and she should now be compensated for the cost of hiring other individuals to accomplish these tasks. In her words, ‘Rebecca's marital standard of living was that someone else did the pool maintenance, snow removal, and landscaping. Since that person has moved out, she is left without the standard of living to which she was accustomed.’” Held: Nice try, but no. “The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard. We can only imagine the chaos that would ensue if divorcing partners could expense every task their former spouses previously performed.” On the other hand, the court agreed with the wife that the court should not have eliminated her claimed for expenses for personal grooming, based on the fact that the husband had not claimed such expenses for himself. The court “disregarded Rebecca's evidence of historical spending and substituted a figure provided by Jared's counsel with no evidentiary basis. Jared's counsel's thoughts on what makes ‘quite a nice budget’ are irrelevant. The court's inquiry should have been rooted in Rebecca and Jared's marital standard of living, as indicated by their historical spending.”

TORTS - REPLEVIN - RESTITUTION - ENGAGEMENT RING

Johnson v. Settino, No. 22‑P‑941 (Massachusetts Appeals Court, September 13, 2023):

“Under current Massachusetts law, it is generally held that an engagement ring is in the nature of a pledge, given on the implied condition that the marriage shall take place. If the contract to marry is terminated without fault on the part of the donor, the donor may recover the ring. The central question presented in this appeal is how “fault” must be assessed in this context.” (Internal quotation and citations omitted.) The trial judge found that the plaintiff was mistaken in his belief that the defendant was having an affair and thus, the plaintiff had to bear the fault for the parties’ separation. He awarded the engagement ring and one of the two wedding bands to the defendant. Plaintiff appealed. Held: Reversed. After a review of how the various states approach the problem, the court held that it would analyze the problem under the “conditional gift fault‑based approach,” i.e., the court considers the facts of the particular case and makes a fault determination to resolve which party owns the ring. Under this approach, the defendant was the party at fault: “We now turn to review the judge's finding of fault in this case. Rather than assess the plaintiff's conduct, it appears that the judge focused his attention on the defendant's conduct: “The Court finds that [the plaintiff] has failed to show by a preponderance of the evidence that [the defendant] was having a sexual affair.” Yet, that was not the plaintiff's burden, nor what the plaintiff set out to prove. Rather, the plaintiff sought to establish that he was without fault and thus entitled to return of the rings in accordance with De Cicco. As foreshadowed in his opening statement, the plaintiff attempted to show that his termination of the engagement was based on circumstances which reasonably led him to lose faith and trust in the defendant. The question was never whether the defendant was actually having an affair; it was whether the plaintiff terminated the engagement without fault....  That the defendant was not at fault and did not want to end the engagement does not mean that the plaintiff was at fault. In removing the reasonableness of the plaintiff's conduct from the calculus, the judge failed to consider whether the circumstances were such that the plaintiff may have been justified or had adequate cause to break off the engagement, in other words, that he may have been “without fault,” the relevant inquiry[.]”

(Ed. Note: See Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 44 A.L.R.5th 1 (Originally published in 1996).) 

LAW REVIEW ARTICLES OF INTEREST:

Michael P. Boulette, Seungwon R. Chung, Abby N. Sunberg, Public Access, Private Lives, 80‑AUG Bench & B. Minn. 14 (August 2023)

Rabea Benhalim, Oppression in American, Islamic, and Jewish Private Law, 94 U. Colo. L. Rev. 149 (Winter 2023)

Samantha Fitzgerald, Considering Vulnerability of Abuse as a Facet of Identity: A Call for Reform in Child Custody Proceedings, 82 Md. L. Rev. 1103 (2023)

Rose Holden Vacanti Gilroy, The Law of Assisted Reproductive Technologies for LGBTQ+ Parents: A Recognition Regime of Family Law Built in Opposition to the Regulatory Regime, 38 Berkeley J. Gender L. & Just. 109 (2023)

Kellen Johansen, Parents V. COVID: The Core and the Limits of the Parental Right to Direct Education, 101 Or. L. Rev. 423 (2023)

Toby Kleinman and Daniel Pollack, Is It Ethical for a Family Court Judge To Make Decisions After a Custody Trial?, New York Law Journal, September 21, 2023

Yehezkel Margalit, From (Moral) Status (Of the Frozen Embryo) to (Relational) Contract and Back Again to (Relational Moral) Status, 20 Ind. Health L. Rev. 257 (2023)

Karin Carmit Yefet and Ido Shahar, Divorced from Citizenship: Palestinian‑Christian Women Between the Church and the Jewish State, 48 Law & Soc. Inquiry 89 (February 2023)

NEWS ITEMS OF INTEREST:

In Celebrity Divorce News:

Sophie Turner has filed a Hague action against Joe Jonas in the Southern District of New York, alleging that Joe has wrongfully retained their two children in the United States, and that their habitual residence is England.But wait; just when I thought we’d get an interesting Hague case, they enter into a temporary custody agreement.

Jason Sudeikis and Olivia Wilde settle their child custody/child support case; he’ll pay $27,500 per month.

Who is really the master of the art of the deal? Melania.

Angelina Jolie slams “biased” judge, urges domestic violence training for courts.

Did you know that celebrity divorce filings peak in March and August?

(NB: I will never, ever link to a story regarding Jada Pinkett Smith.)

Other News Items of Interest:

California legislature passes “Piqui’s Law,” aiming to protect children from abusers during custody disputes.Text of Legislation

Stupid lawsuit regarding the breakup of a marriage: A man sued a hospital for allowing him to watch his wife’s C-section, which he claims led to the breakdown of his marriage, because the experience traumatized him. (Don’t worry; the suit was dismissed.)

In advance of the 8th Special Commission meeting, the Hague Conference on Private International Law has released a report on child abduction case statistics.

Legal recognition of 3-plus-parent families slowly expanding.

How to recognize financial abuse in domestic voilence cases.

Am I afraid that ChatGPT or other generative AI programs will put me out of a job? No, I do not.

See: Eviction firm’s brief has made-up cases. 

Client claims ineffective assistance of counsel upon learning his attorney used artificial intelligence to write his closing statement.

An interesting take on ART: Motherhood on Ice: The Mating Gap and Why Women Frees Their Eggs, by Marcia C. Inhorn.