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November 2023 Case Update

Laura W Morgan


  • Alabama Court of Civil Appeals held that sufficient evidence supported the finding that the wife had not voluntarily entered into the postnuptial agreement, and, thus, the agreement was invalid.
  • Arkansas Court of Appeals affirms the trial court’s finding that there is sufficient evidence to justify a change of custody from the mother to the father, as the mother’s behavior would destroy the relationship between the father and the minor child.
  • Massachusetts Appeals Court affirms the Superior Court judgment that by trying to kill the husband, the wife committed a breach of the covenant of good faith and fair dealing implied in the separation agreement.
November 2023 Case Update
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(Editor's Note: Some cases may be from October 2023, as they were not posted to Westlaw until after I prepared the October 2023 update on November 13, 2023.) 

Agreements - Post-Marital Agreement - Duress

Hollar v. Hollar, No. CL‑2022‑1230 (Alabama Court of Civil Appeals, November 9, 2023):

Sufficient evidence supported finding that postnuptial agreement was not fair, just, and equitable from point of view of wife, against whom husband sought to enforce the agreement, and that wife had not voluntarily and freely entered into the agreement, and thus the agreement was invalid. Although the husband's attorney and attorney's staff members testified that wife, when she appeared in attorney's office on the day of the signing of the agreement, appeared to be calm and showed no signs of distress, wife testified that, based on husband's previous abusive behavior toward her, she feared for her life if she did not sign the agreement just as it was presented to her in the attorney's office.

Child Custody - Agreement - Religious Upbringing

Breiner v. Breiner, No. FBT‑FA‑15‑6049083‑S (Connecticut Superior Court, J.D. of Fairfield at Bridgeport, September 15, 2023) (posted to Westlaw November 13, 2023):

The parties’ agreement provided, “The parties agree the children shall be raised in the Orthodox Jewish tradition, and shall support those values with the children.” “[T]he principal and never‑ending conflict between the parties arises from the excessive importance placed upon their interpretations of the words “Orthodox Jewish tradition” in their parenting plan. The parties never defined with clarity their understanding of that phrase. The parties are unable to agree upon the precise meaning and their expectations, which that particular phrase was intended to represent, both during their marriage or postjudgment. A rabbi was actually employed to assist the parties in reaching a mutually satisfactory meaning of those words to no avail.” Held: The Agreement is unenforceable because of its ambiguity. “This Court cannot and will not speculate, nor attempt to define, what is not present in the written parenting agreement as it relates to what is and what is not the Orthodox Jewish tradition. ... The parties in this matter are asking this Court to interpret the meaning of the rather vague language concerning the Orthodox Jewish tradition. They are attempting to obtain relief in the form of a Court order determining what they intended with respect to the raising of their children in the Orthodox Jewish tradition and supporting those values with the children. Further, the parties seek this Court's interpretation of the provision, and the defendant, through his motion, is asking this Court to enforce this provision within the agreement.... In the present case, even if the Court were to uphold the provision under the establishment clause, it would inherently require that this Court mandate the plaintiff to provide a specific religious upbringing, which in turn, would force the plaintiff to abide by a specific lifestyle commensurate with the religious traditions at issue. A mandate of this nature would constitute government overreach, because to enforce a separation agreement which compels a parent to raise minor children in accordance with a particular religion violates the free exercise clause. Accordingly, enforcement of this provision would violate the establishment clause as well as the free exercise clause of the first amendment to the United States constitution. Likewise, the provision violates the similar protections mirrored in Connecticut's constitution.”

(opinion unavailable on the Connecticut courts website; available on Westlaw)

Child Custody - Comity - Saudi Arabian Order

Matter of Marriage of AlHaidari, No. 38084‑0‑III (Washington Court of Appeals, Division Three, November 14, 2023): 

“This appeal presents unique questions of whether Washington courts should decline subject matter jurisdiction over a child custody dispute or enforce an earlier child custody decree and agreement entered in Saudi Arabia. Father Ghassan AlHaidari challenges the Chelan County Superior Court's exercise of jurisdiction and award of temporary custody of the child, ZA, to mother Bethany AlHaidari. ... Washington's Uniform Child Custody Jurisdiction and Enforcement Act, controls. We affirm the superior court's exercise of jurisdiction on the basis [Washington’s UCCJEA], which allows Washington courts to exercise jurisdiction, despite a foreign custody decree, if a parent is subject to the death penalty if she returns to the foreign nation.” In particular, during the custody battle, the husband accused Bethany of gender mixing, adultery, and insulting Islam and Saudi Arabia. Gender mixing, a punishable crime, entails having a male friend. To prove the charge of adultery, Ghassan submitted a photograph of Bethany with a male, who Ghassan claimed to be her boyfriend. The crimes of adultery, insulting Islam, and insulting Saudi Arabia carry a death penalty in Saudi Arabia.

(Ed. Note: Washington’s UCCJEA, RCWA 26.27.051, adds a provision to UCCJEA § 105, to provide: (4) A court of this state need not apply this chapter if the law of a foreign country holds that apostasy, or a sincerely held religious belief or practice, or homosexuality are punishable by death, and a parent or child may be at demonstrable risk of being subject to such laws. For the purposes of this subsection, “apostasy” means the abandonment or renunciation of a religious or political belief.) 

Child Custody - Modification - Parental Alienation

Alsina v. Hicks, 2023 Ark. App. 485 (Arkansas Court of Appeals, Division II, November 1, 2023):

The trial court’s finding, “[Alsina] has tried to cut [Hicks] out of the minor child's life, including refusing to keep [Hicks] apprised of medical appointments on numerous occasions and having the child baptized and purposely refusing to notify [Hicks] about it until long after the fact (the Court finds this act to be contemptuous). [Alsina] now requests to move to the Seattle, Washington area with the minor child, which will only serve to make the father a non‑entity in the child's life. Such a move, combined with the Court's belief that the mother's behavior is only going to continue, would destroy the relationship between [Hicks] and the minor child.” was sufficient to justify a change of custody from the mother to the father.

Child Custody - Modification - Relocation

Dawson v. Ojeda, 303 A.3d 569 (Rhode Island Supreme Court, November 3, 2023): 

Family Court did not abuse its discretion in concluding that mother's permanent relocation with child from Rhode Island to Massachusetts was in best interests of child; mother had been primary caretaker of child, who was only 19 months old at time of ruling, relocation would enhance child's quality of life and provide for emotional and economic benefits, as mother's job in Rhode Island required long hours, while job in Massachusetts allowed her to work shorter work days and therefore spend more time with child, child would live close to mother's parents who provided daycare for child at no cost, mother had no extended family in Rhode Island, mother was willing to make arrangements for father's parenting time around his work schedule, and driving time between father's residence in Rhode Island and mother's in Massachusetts was approximately one hour and thus did not impose significant impediment on father's visitation.

Child Support - Income - Evidence

Girgis v. Girgis, 676 S.W.3d 510 (Missouri Court of Appeals, Eastern District, October 24, 2023): 

At trial, Father submitted his tax returns from 2018‑2020 into evidence. From 2018‑2020, Father worked as an independent contractor for Uber, Lyft, Postmates, Point Pickup, and Instacart. But, in 2021, Father worked only for Point Pickup. Father submitted no tax returns for 2021. As a result, the circuit court did not have a tax return showing Father's current income from his current employment situation. To show Father's 2021 income, Mother submitted Father's 2021 bank statements into evidence. Father was questioned about the bank statements and affirmed that the statements, minus certain deposits, accurately represented his current income. Nevertheless, Father contends that the circuit court erred in including certain deposits, including the proceeds from the sale of a truck, power washer, and an inheritance in his income valuation. Other than Father's testimony, he did not submit any receipts, cancelled checks, or documentation supporting the source of these deposits. Where a parent has testified about calculating income, the circuit court is “well within its discretion to find that [the] testimony was not credible and to reject that testimony.” The circuit court found “parts of Father's testimony to be credible but a vast majority not to be credible or genuine.” Because the circuit court's judgment regarding Father's income was supported by Father's bank accounts and his own testimony, it is supported by substantial evidence.

Cohabitation - Property Rights

Chambliss v. Chambliss, No. 2023‑CA‑00087‑COA (Mississippi Court of Appeals, November 7, 2023): 

Chad Chambliss and Laura Chambliss married on August 15, 1987. They divorced after nine years; however, they began living with each other two months later. They eventually remarried on May 10, 2011. Eleven years later, they separated, and Laura filed for divorce. On November 10, 2022, the Lamar County Chancery Court entered a judgment granting a divorce to Laura on the ground of adultery. The court ordered Chad to pay Laura thirty percent of his Merrill Lynch retirement account and $1,800 per year for twelve years to allow her to purchase health insurance. The court also ordered Chad to pay $3,500 toward Laura's attorney's fees. On appeal, Laura contends that the chancellor erred by not awarding her (1) any portion of Chad's two other investment accounts; (2) the amount of the distribution of the Merrill Lynch account; (3) alimony; and (4) sufficient attorney's fees. Finding no error, we affirm the chancery court's final judgment. Held: (1) wife was not entitled to equitable division of husband's non‑marital retirement accounts to which he contributed when he and wife were divorced but living together; (2) chancellor acted within her discretion in awarding wife 30% of husband's marital retirement account; (3) chancellor acted within her discretion in declining to award wife alimony; (4) chancellor acted within her discretion in ordering husband to pay $3,500 toward wife's attorney's fees; and (5) chancellor's award of attorney fees to wife was sufficient.

Divorce - Procedure - Discovery - Sanctions

Lee v. Lee, No. WD 85856 (Missouri Court of Appeals, Western District, November 7, 2023): 

Wife's inaction and complete refusal to respond before sanctions to written discovery requests by husband amounted to a deliberate disregard for the authority of the trial court, warranting imposition of sanctions in striking wife's pleadings and denying wife's attempt to present evidence at hearing on husband's petition for marital dissolution. Wife failed to respond to written discovery without any explanation even after a court order, and trial court struck wife's pleadings after ten months of husband's initially serving wife with the discovery request and after four months of non‑compliance with trial court's discovery order.

(Ed. Note: See also Matter of Marriage of Noor and Chowdhury, 329 Or. App. 162 (Oregon Court of Appeals, November 15, 2023) (sufficient evidence supported trial court's decision to impose sanctions on husband by striking his pleadings regarding finances and entering order of default regarding financial issues pursuant to rule governing sanctions for failure to make discovery, in marital dissolution proceeding; husband was ordered to produce documents, court file contained husband's email response to order compelling production of documents which was substantially the same as his earlier deficient responses, and court provided husband opportunity to provide testimony explaining why he was unable to access his financial documents and court found his testimony was not credible).)


Parentage - Egg Donor

Matter of S.D.S., 371 Or. 573 (Oregon Supreme Court, November 28, 2023): 

Egg donor filed petition for declaratory judgment that she was legal parent with parental rights and responsibilities with respect to child conceived by artificial insemination and born to gestational surrogate under contract with biological father. Father, who had previously obtained judgment declaring him to be sole and exclusive legal parent of child, answered and filed separate petition, again seeking declaratory judgment establishing him as child's sole legal parent. Held: Statute (Or. Rev. Stat. § 109.258) did not apply to create presumption that egg donor who did not give birth to child conceived by artificial insemination and born to gestational surrogate under contract with biological father was child's legal parent and, thus, did not provide egg donor with legal basis, independent of her genetic connection to child, for declaration of legal parentage with parental rights and responsibilities, where statute applied only to create evidentiary presumption of paternity based on blood test results when paternity was in dispute, and there was no dispute concerning egg donor's genetic link to child. Egg donor's genetic connection to child conceived by artificial insemination and born to gestational surrogate who had entered into agreement with child's biological father, without more, was insufficient legal basis for declaring that egg donor was child's legal parent with parental rights and responsibilities; donor was not in committed relationship with father and did not plan to raise child in home with father, donor always intended that father would have complete legal control over any male embryos and sole legal custody of any male offspring, and donor had hoped only to be recognized as mother and to have parenting role with respect to any male offspring.

Parentage - Presumption of Paternity - Competing Presumptions

Matter of R.R., No. 123,833 (Kansas Supreme Court, November 22, 2023): 

Biological father filed paternity action requesting declaration of paternity and shared legal custody of child. The presumed father, the man who was married to the mother at conception and birth and was named on the child’s birth certificate, moved to intervene. The trial court denied the biological father's petition and declared the presumed father to be child's legal father. The Supreme Court held: First, the clear and convincing evidence standard did not apply to district court's analysis of competing statutory presumptions in paternity action under Kansas Parentage Act (KPA). Rather, the biological father who brought the action seeking declaration of paternity and shared legal custody had the ultimate burden to establish, by preponderance of the evidence, that his biological presumption was founded on weightier considerations of policy and logic, including the best interests of the child, than presumption favoring presumed father who was married to mother at time of child's conception and birth and signed the child's birth certificate. Second, as to this case, substantial competent evidence supported district court's findings that factors regarding nature of relationship between presumed father and child, and between mother and presumed father, as well as relationships of child and mother to child's biological father, weighed in favor of finding that presumed father's statutory presumption of paternity under Kansas Parentage Act. The presumed father’s being married to the mother at time of child's conception and his being named as the child's father on birth certificate outweighed the biological father's statutory presumption of paternity, based on genetic test results. Although the mother was in the process of divorcing the presumed father and there was a possibility that the mother and the biological father could have additional children together, the presumed father had been far more committed to father child than had the biological father as he had provided for child for all of child's life, and the presumed father would continue to co‑parent child's brother with mother.

Property Division - Community Property - Reimbursement From Community

In re Marriage of Motiska and Ford, 96 Cal. App.5th 1291, 315 Cal. Rptr.3d 89 (California Court of Appeal, First District, Division 4, November 8, 2023): 

Cal. Fam. Code § 2640(b) provides that “[i]n the division of the community estate, ¼ unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source.” This statute creates a substantive right of reimbursement that can be relinquished only by an express written waiver by the contributing spouse, and in the absence such a written waiver the donative intent of the contributing spouse does not bar reimbursement. Here, Husband's sale of nursery business owned and operated prior to marriage to corporation formed after marriage for $1 was sale to corporation, and not contribution to acquisition of community estate, and thus husband did not have statutory right of reimbursement for nursery based on its actual value, as his separate property; husband decided to sell nursery to corporation and set sale price at $1, for tax reasons, without any involvement or interference by wife or others. 

Property Settlement Agreement - Construction - Cryptocurrency

Wohlt v. Wohlt, No. 22A‑DR‑2685 (Indiana Court of Appeals, October 27, 2023): 

The property settlement agreement contained a paragraph that awarded the husband all the assets of his business. Turns out that business owned lots of crytocurrency of which the wife was not aware. Fraud? Nope. “Taken together, these provisions did not impose any duty upon Husband to proactively search the Echo software and hardware and to disclose what he discovered there prior to entering into the PSA. Although formal discovery requests could have been propounded to Husband to discover the assets of Echo, in the PSA, Wife waived her right to formal discovery. Instead of conducting discovery, Wife agreed that she had made an independent inquiry and investigation of her legal rights and privileges which she deemed necessary to be fully informed, and Wife certified that she had complete knowledge of all relevant information prior to entering into the PSA. We find this waiver of discovery and certification of full knowledge to be significant to any claim of constructive fraud here. ... Here, Wife could have had access to information about Echo's business assets, yet she waived that right according to the terms of the PSA she voluntarily executed. In addition, while Husband and Wife warranted to each other that they relied on the “full and complete disclosure of the other person upon entering into” the PSA, warranting reliance on full disclosure is not warranting that such full and complete disclosure has actually been made to the other party.”

Property Settlement Agreement - Construction - Military Retirement Benefits

Phelps v. Phelps, No. A23A0646 (Georgia Court of Appeals, October 27, 2023):

The parties were divorce in 2003. The decree contained this provision:

The [Wife] is awarded, as an equitable division of property, 25 [percent] of the [Husband's] military retirement income. The parties were married for [12] years, during which time the [Husband] performed at least [12] years of credible military service. This court has competent jurisdiction to govern these parties with regards to the division of the [Husband's] military retirement[,] and this action and the [Husband's] rights under the Soldiers and Sailors Civil Relief Act were observed.

In his 2021 petition for declaratory judgment, the Husband asked the trial court to clarify this provision, contending that the divorce court intended that the Wife receive 25 percent of the retirement he would have received at the time of the divorce, not 25 percent of his final retirement amount including years of service accumulated post‑divorce. Held: Governing military retirement law at the time divorce decree was entered, rather than military retirement law codified after parties' divorce, applied to construction of divorce decree awarding wife of a portion of husband's military retirement income accumulated post‑divorce.

Spousal Support - Modification/Termination - Attempted Murder

Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538 ((Massachusetts Appeals Court, November 16, 2023): 

To effect the gradual division of property under a separation agreement, Mark Schenkman (husband) made monthly payments to his former spouse, Julie Rabinowitz (wife). After the wife tried to kill the husband, payments ceased. The wife filed an action for breach of contract in the Superior Court, and the husband asserted that the wife's attempt to murder him excused his further performance. Following a jury‑waived trial, judgment entered for the husband on the contract claim. We affirm. . . . Here, the judge concluded that, by trying to kill the husband with a hatchet, the wife committed a breach of the covenant of good faith and fair dealing implied in the separation agreement. The judge reasoned that this breach by the wife “excused” the husband's obligation to continue making the monthly payments for the division of the value of the dental practice. (No other provisions of the separation agreement are at issue.).... A fact finder could also conclude that the wife tried to seriously injure the husband and impair his ability to fund the carefully structured monthly payments with income derived from the ongoing dental practice. In the judgment of the fact finder, such precipitous and violent conduct could be viewed as a breach of the implied covenant of good faith and fair dealing because the wife took some action that will ‘have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.’”

Third-Party Visitation - Grandmother - Adoption by Step-Mother

In re L.D.R.S., No. 2023‑T‑0026, 2023-Ohio-3765 (Ohio Court of Appeals, Eleventh District, Trumbull County, October 16, 2023): 

After the biological father was granted legal custody of child and paternal grandmother was granted companionship rights with child, father filed motion for termination or modification of grandmother's visitation on ground that child had been adopted by stepmother. The trial court granted motion, and Grandmother appealed. Held: As matter of first impression, the juvenile court abused its discretion in terminating grandmother's companionship rights with child on statutory ground that she was divested of such rights by virtue of stepmother's adoption of child. The statute governing termination of biological parents of adopted person of all parental rights and responsibilities did not apply to relatives of the biological parent in a stepparent adoption, and thus father, as spouse of adopting stepparent, and grandmother, as relative of father, were exempt from statute. 

Third-Party Visitation - Grandparents - Modification - Standing

Namdar‑Yeganeh v. Namdar‑Yeganeh, A23A0999, A23A1000 (Georgia Court of Appeals, October 26, 2023): 

Under the plain language of OCGA § 19‑7‑3 (b), grandparents can either file an “original action” – provided the parents are separated and the grandchild is only living with one parent – or they can intervene in certain specified existing proceedings. On the other hand, subsection (c) (2) specifically lists the groups of persons who may petition to modify grandparent visitation once it is granted – the legal custodian, the guardian, or parent of the child. And under the plain language of the statute, the grandparents do not fall into any of these three categories. Further, to the extent any ambiguity exists in the statutory scheme, we “apply the concepts of expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).” Since grandparents are named as persons who may initiate an action to visit with their grandchildren, but not listed among the persons who may seek to modify an existing grandparent visitation order, under these long‑standing tenets of statutory construction, we conclude that the Grandparent Visitation Statute does not authorize a grandparent to initiate an action to modify an existing grandparent visitation order.

Torts - Extortion

Tran v. Nguyen, No. G061633 (California Court of Appeal, Fourth District, Division 3, November 28, 2023):

Civil Code sections 1566, 1567, and 1570 establish a right to rescission in cases in which a person's consent to a transaction was obtained by “menace”: threats of confinement, of unlawful violence to the person or his or her property, or of injury to a person's character. This is effectively the civil version of extortion. Here, Nguyen allegedly threatened to expose the existence of plaintiff's child birthed by another woman during his marriage; we conclude such a threat falls within the statutory prohibition. However, because the cause of action which seeks rescission sounds in contract, rather than tort, no emotional distress damages are recoverable. Because the civil extortion/rescission cause of action does not give rise to emotional distress damages, we find no error in the portion of the court's order sustaining Nguyen's demurrer to Tran's separate cause of action for intentional infliction of emotional distress.

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