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February 2024 Case Update
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Assisted Reproductive Technology - IVF - Frozen Embryos - Status
LePage v. Center for Reproductive Medicine, P.C., Nos. SC 2022 0515 and SC 2022 0579 (Alabama Supreme Court, February 16, 2024):
Beginning with the proposition that “an unborn child is a genetically unique human being whose life begins at fertilization and ends at death”, and that “Alabama Constitution's recognition that human life is an endowment from God emphasizes a foundational principle of English common law,” and citing Theology Today, Genesis, Exodus, Thomas Aquinas, John Calvin, and other sources, the court concluded that cryogenically frozen embryos are legal persons, and thus within the state’s wrongful death act.
There was, as expected, a lot of commentary on this case. IMO, this is the best of the lot:
- Prof. Sonia Suter (GWU), Prof. Naomi Cahn (UVA), Alabama Supreme Court Ruling Court Could Freeze Fertility Treatment (Progress, March 4, 2024)
- Hon. James McHugh (ret.), Alabama, Religious Freedom, and Frozen Embryos (Fulcrum, Feb. 29, 2024)
- Ellen Trachman, Five Things You Should Know About the Alabama Declaration that Embryos are People (Above the Law, February 28 2024)
- Dahlia Lithwick, The IVF Ruling is About Who Gets to Raise Your Children (Slate, February 28, 2024)
- Prof. Courtney G. Joslin (UC Davis) and Prof. Mary Ziegler (UC Davis), Sam Alito is to Blame for the Alabama Supreme Court's Devastating Anti IVF Ruling (Slate, February 20, 2024)
- The Family Law Section also held a Webinar on the decision on March 5, 2024, which you may access as a Family Law Section member.
But wait! The Alabama legislature passed legislation on March 6, 2024, to shield in vitro fertilization providers from civil and criminal liability. The new law carries the unintended consequence of preventing patients whose embryos are destroyed due to clinic negligence or product malfunction from suing for damages. Of course, the legislation did not address the fundamental premise of the court’s opinion concerning the definition of personhood.
If you are revolted by this opinion, contact Resolve (National Infertility Association) and/or American Society for Reproductive Medicine (ASRM) for what you can do as a family law attorney.
Child Custody - Jurisdiction - UCCJEA - Home State
Fitzgerald v. Jackson, 307 A.3d 1283 (Rhode Island Supreme Court, February 9, 2024):
Mother is a United States citizen and Father is a citizen of Australia; the two minor children at the core of the custody dispute appear to have dual citizenship of the United States and Australia. The children have lived in Rhode Island with plaintiff since 2015. The parties were never married. After the Mother filed a complaint for custody, the Father filed an answer, requesting that the Mother’s complaint be denied and dismissed and asserting three affirmative defenses: lack of subject matter jurisdiction; lack of personal jurisdiction; and improper venue. In his answer, the Father argued that the parties had a pending action in the Family Court of Australia. The Father indicated that he entered an appearance specifically for the purpose of contesting jurisdiction. The defendant thereafter filed a memorandum of law in support of his argument that the Family Court lacked subject matter jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. Held: Yes, the Rhode Island court had jurisdiction, because there was no proceeding in Australia (it had been dismissed in 2020); Rhode Island was the children’s home state; the court had personal jurisdiction over the Father, because he appeared generally for numerous motions and conferences; venue is proper where the kids are.
Child Custody - Parenting Time - Restrictions
Beall v. Beall, No. A23A1549 (Georgia Court of Appeal, January 24, 2024):
The trial court abused its discretion denying the husband all visitation with the child, including supervised visitation, based on a finding that the husband was unable or unwilling to spend time with the child without involving girlfriend. Nothing suggested that the husband and his girlfriend engaged in any inappropriate conduct in the presence of the child, that the child was aware of girlfriend's purportedly improper behavior, including her social media posts, that mere exposure to the girlfriend would be harmful to the child, or that supervised visits would have been insufficient to prevent contact between the child and the girlfriend. Further, concerns relating to the husband's behavior did not constitute exceptional circumstances sufficient to deny the husband all access to his child; even though the husband had moved in with his girlfriend shortly after meeting her, while still married to child's mother, had ended any attempt to reconcile with the mother after the girlfriend made a suicide attempt, had reportedly undergone a radical personality change, had become estranged from his family, and had begun using steroids and human growth hormones, there was no finding that such issues had any effect on how the husband interacted with child or that husband was unfit to parent the child.
Child Custody - Parenting Time - Step-Father
Williams v. Vraa, No. 20230248, 2024 ND 30 (North Dakota Supreme Court, February 22, 2024):
Intro: Williams filed a petition for nonparent visitation in March 2023. In his petition and declaration, Williams argued he was a consistent caretaker of the child and had a substantial relationship with the child. Vraa moved to dismiss the petition in April 2023. The district court dismissed Williams's petition for failing to plead a prima facie case for nonparent visitation, finding Williams did not meet the required elements of a consistent caretaker. The court did not expressly rule on whether Williams pleaded a prima facie case of having a substantial relationship with I.H.L. or that denial of visitation would result in harm to I.H.L. Williams appeals. Held: Reversed and remanded: (1) the district court misapplied the law in determining step father failed to meet requirement that child lived with him for not less than 12 months; (2) the step father's allegations supported showing that he regularly exercised case of child and made day to day decisions for child, as would support finding that step father was consistent caretaker in order to establish prima facie showing for nonparent visitation; (3) the step father's allegations supported showing that he established a bonded and dependent relationship with child with the express or implied consent of mother, as would support finding that step father was consistent caretaker in order to establish prima facie showing for nonparent visitation; (4) the district court misapplied the law in determining former step father failed to show a bonded and dependent relationship with child; (5) the step father presented sufficient evidence to demonstrate he had a substantial relationship with child, as would show prima facie case for nonparent visitation; and (6) the step father presented sufficient evidence to demonstrate that denial of his visitation with child would result in harm to child, as would show prima facie case for nonparent visitation.
Child Support - Enforcement - Statute of Limitations
Office of Child Support Enforcement v. Milner, No. CV 23 120, 2024 Ark. App. 117 (Arkansas Court of Appeals, February 21, 2024):
You can run, but you can’t hide. An Alaska support order registered in Arkansas was fully enforceable and collectible, even though the twins that were the subject of the support order were 26 years old and doing well, and the obligor was homeless and living with his brother. Under UIFSA, Alaska's essentially unlimited limitations period for collecting missed child support payments applied, Arkansas law provided collection procedures and remedies since the support order was registered in Arkansas, the obligor's child support arrears were reduced to judgment by operation of Alaskan law, Arkansas law provided no limitation on enforcement of child support judgment, and the obligor never sought modification of support. The judgment against the obligor for an arrearage of nearly $15,000 and nearly $18,000 in interest is now due.
Child Support - Income - Imputed Income - Good Faith Efforts
Dimmler v. Dimmler, 2024 ND 20, 2 N.W.3d 652 (North Dakota Supreme Court February 8, 2024):
The father argued that the court the district court clearly erred by imputing higher income, because, he claimed, he was adequately employed at the time of trial because he obtained work as soon as possible after he lost his pilot job. Held: No, you could have gotten a better job in your field. “Dustin Dimmler's evidence aligns more with Updike than Rathbun because he found a job in the area, but did not show why he could not find employment within his qualified field or his required level of qualification. On this record, the district court did not abuse its discretion by imputing Dustin Dimmler's wages. Moreover, the court's findings were not induced by an erroneous view of the law, evidence supports the findings, and this Court is not left with a definite and firm conviction the district court made a mistake.”
Divorce - Proceedings - Open Hearing - First Amendment
Falconi v. Eighth Judicial District Court in and for County of Clark, 543 P.3d 92, 140 Nev. Adv. Op. 8 (Nevada Supreme Court, February 15, 2024):
In June 2022, the Eighth Judicial District Court amended its local rules. Under NRS 125.080 and the newly amended local rules, a child custody matter is automatically closed and a family court proceeding must be closed upon the request of a party. In practice, this means that a party has the right to prohibit the public's access to court proceedings without a judicial determination having been made that closure is necessary and appropriate. However, the public has a constitutional right of access to court proceedings. Because the local rules and the statute require the district court to close the proceeding, they eliminate the process by which a judge should evaluate and analyze the factors that should be considered in closure decisions, and by bypassing the exercise of judicial discretion, the closure cannot be narrowly tailored to serve a compelling interest. Thus, these local rules and NRS 125.080 violate the constitutional right of access to court proceedings. Accordingly, we hold that EDCR 5.207, EDCR 5.212, and NRS 125.080 are unconstitutional to the extent they permit closed family court proceedings2 without the exercise of judicial discretion.
(Ed. Note: I am not thrilled with this opinion. I am cited, Laura W. Morgan, Strengthening the Lock on the Bedroom Door: The Case Against Access to Divorce Records On Line, 17 J. Am. Acad. Matrim. Law. 45, 59 (2001) (“[T]he trend in the case law has been clear: divorce court records are open to the public, and the privacy rights of the individual must yield to the First Amendment when all factors are equal.”). But I must say that was really cherry picking by the Court. The article noted that child custody cases are in a different class, with first amendment rights often yielding to privacy rights (footnote 21). I also followed up this article with Laura W. Morgan, Preserving Practical Obscurity in Divorce Records in the Age of E Filing and Online Access, 31 J. Am. Acad. Matrim. Law. 405 (2019), where I noted the trend toward less open access. So I think the reasoning of the court is somewhat shaky.)
(Thanks to Marshal Willick for the heads up on the case.)
Evidence - Bank Records - Hearsay
Vindel v. Stewart, No. 3D22 757 (Florida District Court of Appeal, Third District, February 7, 2024):
A nice lesson on what you have to have to get bank records admitted as evidence. Here, the court determined that bank records from a Honduran bank (submitted as evidence of a marital assets), to wit, a letter provided by a local international representative office with the wife's Honduran bank records failed to meet the foundational requirements for authentication of business records, and thus records were inadmissible hearsay. The letter stated that the local office was licensed serve as a liaison between the bank and prospective customers in the United States, but the letter failed to certify that the offered records were made at or near the time of the occurrence or from information transmitted by a person with knowledge that the records were kept in the regular course of activity of bank, or that the records were made as a regular practice in the course of regularly conducted activity of the bank.
Evidence - Expert Testimony - Hearsay
In re Marriage of Lietz, 99 Cal. App.5th 664, 318 Cal. Rptr.3d 63 (California Court of Appeal, Fourth District, Division 3, February 8, 2024):
Mathematical equations and theorems are a proper subject of judicial notice. However, the trial court did not abuse its discretion in excluding as hearsay wife's appraisal expert relating case specific fact that lot size where marital home was situated was 10,400 square feet and not 9,000 square feet indicated in county property records, based on city plat map attached to both parties' appraisal reports. The expert claimed that “basic arithmetic” and “simple geometry” would establish that fact. But the court required expert testimony to explain and substantiate wife's calculations of lot size, wife did not present any such testimony, she presented no evidence that plat map was to scale and would accurately show size of angles which might be necessary to accurately calculate lot size.
Marriage - Validity - Marriage License
Spalter v. Spalter, No. 2023–03602, 2024 N.Y. Slip Op. 00465 (New York Supreme Court, Appellate Division, First Department, February 1, 2024):
The parties took part in a religious wedding ceremony officiated by a rabbi under a chuppah, with 29 guests and featuring traditional Jewish rites and blessings. They signed a ketubah [Jewish wedding contract] in the presence of two witnesses, a separate document that stated they were entering into a “marriage that is binding under Jewish law” but not “legally recognized” under New York law and an arbitration agreement referring to them as “husband to be” and “wife to be,” in which they authorized the Beth Din to preside over marital disputes. However, they never obtained a civil marriage license, and according to the presumptive husband, held themselves out as single, lived separate lives and only entered into the religious marriage to facilitate their children's acceptance into day schools and the family into synagogues. At the time of the ceremony the parties had two children together, and now have four, three of which are children with special needs. Held: As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license does not invalidate the marriage. While the parties signed a document that stated that their marriage was not “legally recognized” under New York law, the parties consented to the marriage, especially in light of their acknowledgment in that same document that they were “entering into a marriage that is binding under Jewish law.”
Parentage - Presumption of Paternity - Intact Marriage
Kish v. Kish, No. 636 MDA 2023, 2024 PA Super 23 (Pennsylvania Superior Court, February 12, 2024):
David, the presumptive father of C.M.S.K. (“Child”), born in March 2018, appeals from the April 20, 2023 order directing genetic testing. Under the law of presumptive paternity, “[G]enerally, a child conceived or born during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence. ...” This presumption however applies only where the underlying policy of the presumption, i.e., to preserve marriages, would be advanced by its application. It is well settled that the presumption of paternity is inapplicable when there is no longer an intact marriage to preserve. Here, David suggests an intact marriage existed at the time of Child's birth as well as at the time of the subject proceeding. He highlights that he and Mother were married; he was not sterile; and he had access to Mother. Notwithstanding, the record supports the trial court's finding that David’s and Mother's marriage was “clearly not an intact marriage presently.” While David and Mother remained married, David stated that, at the time of the subject hearing, he was not residing with Mother. He acknowledged that he was unaware of where she currently resided due to her ongoing drug addiction. Further, at the January 2023 hearing in the underlying custody matter, David recognized the unstable nature of his relationship with Mother, admitting that they were on and off and had indeed separated for an unspecified period. No error in not applying the presumption.
Property Division - Classification - Transmutation
Demenno v. Demenno, No. S 18142 (Alaska Supreme Court, February 28, 2024):
The question on appeal was whether the husband’s premarital business transmuted to marital property. The trial court said that property can't transmute by contract. The Supreme Court said, What? Of course property can transmute by contract, but there was no contract here: “On this record, we agree with the superior court's characterization that the parties' marriage was ‘one long negotiation.’ The parties never reached the mutual assent to be bound or meeting of the minds required to form a contract. We therefore affirm the court's ultimate conclusion that ALC did not transmute through contract [even though trial court was wrong in holding that property COULD NOT transmute by contract.”
(Thanks to Brett R. Turner for the heads up on this case.)
Property Division - Pension - FERS - Preemption
Matter of Batchelor, No. 490, Sept. Term, 2022 (Maryland Appellate Court, February 28, 2024):
Former wife's estate brought action against former husband for specific performance, breach of contract, and conversion after he had received, as beneficiary, proceeds of former wife's federal employee retirement account, although he had waived right to it in property settlement agreement. Held: Federal Employees’ Retirement System Act (FERSA) preempted the claims by the former wife's estate against the former husband to recover the proceeds he received as the designated beneficiary of the wife's thrift savings plan and thus preempted, on conflict grounds, claims for specific performance, breach of contract, and conversion, even though husband had waived rights to plan in property settlement agreement. The wife or her estate never notified the appropriate authority about the settlement agreement in accordance with FERSA, subjecting the funds to legal process would violate FERSA's anti attachment provision that prohibited funds from being “subject to execution, levy, attachment, garnishment, or other legal process,” and the wife did not abide by the process for changing the beneficiary.
Property Division Valuation Shareholder Agreement
Cronan v. Cronan, 307 A.3d 183 (Rhode Island Supreme Court, January 24, 2024):
The Husband was an equity partner in Rhode Island Medical Imaging (RIMI). The Husband argued that the value of his interest should be determined in accordance with the shareholder agreement (value $366,200), while the Wife argued that the proper valuation of the Husband's equity interest was $1,229,000, which, according to her expert, was its fair market value. Held: the magistrate did not err by holding that the shareholder agreement was a binding agreement between the medical practice and the Husband, the agreement dictated the value of the Husband's buy out value upon his retirement, and that to accept the Wife's position would have been inequitable because she would have received a far greater value and portion of an asset that the Husband was not likely to receive.
Law Review Articles of Interest
- Jessica Feinberg, Multi Parent Custody, 108 Minn. L. Rev. 1489 (February 2024).
- Philip de Sa e Silva, Throuples and Family Law, 108 Minn. L. Rev. 1559 (February 2024).
- Stephanie L. Tang, Best Interests of the Child and the Expanding Family, 14 UC Irvine L. Rev. 263 (January 2024).
- Jane K. Stoever, Removing the Bias of Criminal Convictions from Family Law, 35 Yale J.L. & Feminism 1 (2024).
And don’t forget your new issues of The Family Advocate and The Family Law Quarterly.
AI News
- Court sanctions attorney for Mr. Chen for submitted a brief with non-existent cases invented by ChatGPT in Zhang v. Chen, No. E202085 (British Columbia Supreme Court, February 23, 2024).
- And $2,000 Sanction in another AI hallucinated citation case, Smith v. Farwell, No 2282CV1197 (Massachusetts Superior Court, Norfolk County, February 12, 2024).
Other News Items of Interest
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