Friday, September 30, 2005
When Husband took over $3,000 of cash advances on his credit card nearly three years before instituting divorce, there was insufficient evidence of wrongful intent to justify treating this action as financial misconduct. When a unilateral disposition of marital funds or assets occurs during the pendency of or just before filing a divorce, the timing alone is sufficient to prove wrongful intent. Here, however, the actions were too far removed in time from the filing of the divorce to rely on that presumption and more evidence of intent is required.
Orwick v. Orwick, 2005 Ohio 5055, 2005 Ohio App. LEXIS 4571 (September 21, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/7/2005/2005-ohio-5055.pdf
(last visited September 30, 2005 bgf)
Case Development: Parental Preference Doctrine Requires Custody to Biological Dad over Stepfather Who Had Raised Son for 12 Years
In an opinion strongly affirming the parental preference doctrine, the Nebraska Court of Appeals held that it was error to grant custody of a 13-year-old boy to the stepfather who had raised him rather than the biological father who had been "mostly absent" from the boy's life until Mother's death. The court held that “a court may not, in derogation of the superior right of a biological or adoptive parent, grant child custody to one who is not a biological or adoptive parent unless the biological or adoptive parent is unfit to have child custody or has legally lost the parental superior right in a child. Parental forfeiture means that parental rights may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection.”
State ex rel. Ephraim H. v. Jon P., 2005 Neb. App. LEXIS 231 (September 27, 2005)
Opinion on the web at http://court.nol.org/opinions/2005/september/sept27/a04-1488.htm (last visited September 30, 2005 bgf)
The case highlights the critical role temporary custody orders can have on final determinations of custody...
In a child dependency case in which the trial court setting a permanency goal of guardianship three months after the state filed the initial petition, the Illinois Court of Appeals held that, while such a speedy decision is rare, it is not a per se reversible error. Rather, Illinois statutes direct that permanency should be attained as early as possible. Under the facts of this case, the court held that the permanency goal was not against the manifest weight of the evidence. Mother had initially refused to participate in state-offered care and services for her significant mental health issues; the trial court had “eliminated the more disruptive goals of adoption and termination of parental rights, citing the mother's significant relationship with the minors”; and guardianship with mother’s aunt was an appropriate permanency goal.
A concurring opinion examines the appealability of permanency goals set within dispositional orders.
In re Faith B., 2005 Ill. App. LEXIS 885 (September 23, 2005)
Opinion on the web at http://www.state.il.us/court/Opinions/SupremeCourt/2005/June/Opinions/Html/98927.htm (Last visited September 30, 2005 bgf)
Case Law Development: Property Settlement Agreements to Divide Military Disability Benefits May Not Be Enforced By State Courts
The Supreme Court of Montana, in a 4-3 decision, held that federal preemption precludes the state from holding husband in contempt for failing to pay VA disability benefits that had been awarded to wife in the prior dissolution action. The award was made pursuant to an property settlement agreement in which Husband agreed to pay Wife a portion of his VA disability benefits each month. In holding that federal law preempted the state in enforcing such an agreement, the court expressly overruled prior precedent distinguishing maintenance agreements from the scope of federal preemption. The court emphasized that a trial court may still consider military disability retirement pay “as a source of income in awarding spousal or child support, or generally as an economic circumstance of the parties justifying a disproportionate award of marital property to the nonretiree spouse."
Two dissenting opinions strongly disagreed that federal law preempted state enforcement of voluntary maintenance agreements involving military disability benefits.
In re Marriage of Lutes, 2005 MT 242; 2005 Mont. LEXIS 416 (September 27, 2005)
Opinion on the web at http://www.lawlibrary.state.mt.us/dscgi/ds.py/Get/File-45266/04-416.pdf (last visited September 29, 2005 bgf)
Thursday, September 29, 2005
"Professor Bernard Perlmutter, Director of the Law School’s Children and Youth Law Clinic, has been selected by The Children’s Trust to receive its first annual "Champion for Children" award , in recognition of Professor’s Perlmutter’s lifetime achievement and dedication to children...The Children’s Trust was created by Miami-Dade County voters in 2002, as a dedicated source of funds, to improve the lives of children and families by making strategic investments in their futures." By University of Miami School of Law For More Information (last visited 9-28-05 NVS)
"Bernard P. Perlmutter, Esq., is Assistant Professor of Clinical Legal Education and Director of the Children & Youth Law Clinic, an in-house legal clinic at the University of Miami School of Law. In addition to his teaching duties at the Clinic and the Center for Ethics and Public Service, Bernie teaches classes in children and the law, lawyering skills, poverty law and legal ethics. He is also Director of the law school’s Public Interest Law Summer Program in Children and the Law. At the UM Children & Youth Law Clinic, Bernie trains and supervises law students who handle cases involving abused, abandoned and neglected children and adolescents in a variety of legal proceedings, including dependency and foster care, delinquency, public benefits, health care, mental health, disability, education and immigration, in addition to appellate, legislative and administrative advocacy and law reform litigation. He represented the child M.W. before the Florida Supreme Court in the landmark case of M.W. v. Davis & DCF, which resulted in the Court’s adoption of Florida Rule of Juvenile Procedure 8.350, a rule that establishes due process protections, including pre-commitment hearings and the right to counsel, for foster children committed to psychiatric facilities by the state Department of Children & Families. He has litigated numerous federal and state court class action lawsuits seeking to reform Florida’s foster care system. He has submitted amicus curiae briefs in a number of cases of national significance, including Roper v. Simmons (juvenile death penalty), GAL v. S.C. (foster child’s right to medical records privacy), DCF v. Statewide Advocacy Council (advocacy council’s access to confidential records held by Department of Children & Families), and cases affecting older foster children, immigrant children and disabled children." By University of Miami School of Law Link to Web Page (last visited 9-28-05 NVS)
Wednesday, September 28, 2005
Ex-stripper Anna Nicole Smith, the 1993 Playboy Playmate of the Year's claim to her deceased oil tycoon husband's wealth, is headed for the Supreme Court. The justices yesterday agreed to review an appeals court ruling that overturned a decision to hand Smith a $474million share of her husband Howard Marshall's $1.6 billion fortune. Her claim has been bitterly fought by Marshall's son Pierce Marshall since his father died. By: Adam Nichols, Daily News Staff Writer. Nydailynews.com.For the complete story, click here (last visited September 28, 2005, REO).
STRATFORD, Conn. A new law to take effect Saturday, will make Connecticut the 15th state to mandate insurance coverage for infertility treatments. But it will become the only state to deny the benefit to women 40-and-over, and women's advocates are concerned that more states will follow suit. . . . Most states that mandate infertility coverage don't have age limits, although New York cuts off coverage at 44 and New Jersey ends coverage at 46. According to the Centers for Disease Control, success rates for women who use assisted reproductive technology decline steadily once they reach their mid-30s. By: Susan Haigh, Associated Press Boston.com news.For the complete story, click here (last visited September 28, 2005, REO.)
In order to justify continued jurisdiction of the court over a child, must the state prove a child’s dependency as of the time of the complaint, the time of the dependency hearing or both? Ohio Courts had, at one time, required that dependency must be found only as of the date of the hearing, but a 1969 statutory amendment provided that the circumstances at the time of the complaint controlled. Apparently, in the years thereafter, some Ohio courts have continued to follow the older case precedent, creating a split in authority on the question. In this case, the Ohio Court of Appeals clarified the requirement, affirming that the statutory language controls. Dependency need only be shown at the time of the complaint to provide a basis for continued state jurisdiction of a child.
In the Matter of S.H., 2005 Ohio 5047, 2005 Ohio App. LEXIS 4559 (September 26, 2005)
A Jackson County judge on Monday blocked enforcement of a new law aimed at reducing abortions in Missouri and neighboring states. Circuit Court Judge Charles Atwell granted a request by Planned Parenthood of Kansas and Mid-Missouri for a temporary restraining order against the bill Gov. Matt Blunt signed into law Sept. 16. The General Assembly passed the bill in a special session earlier this month. Under the law, anyone helping a Missouri girl under 18 get an abortion out of state without parental consent could be sued or face misdemeanor charges. The law also requires doctors to have hospital privileges within 30 miles of where they perform abortions. By: Kevin Murphy, The Kansas City Star, kansascity.com.For the complete story, click here (last visited September 28, 2005, REO).
Researchers at Yale School of Medicine have found that 85 percent of embryos transferred during in vitro fertilization fail to become live births, highlighting the need for improving diagnostic techniques to identify viable embryos. Published in the August issue of Fertility and Sterility, the study reviewed seven years of U.S. statistics from all the fertility clinics that report data on reproductive techniques. Director of the Yale Fertility Center, Pasquale Patrizio, M.D., professor in the Department of Obstetrics, Gynecology & Reproductive Sciences led the project. By: News-Medical.Net. For the complete story, click here (last visited September 28, 2005, REO).
Married couples in Colombia will soon be able to untie the knot in as little as one hour and for just $15 (£8.50), bypassing costly lawyers, legal hurdles and the long delays most unhappy couples can expect before a divorce. By: The Guardian, guardian.co.uk.For the complete story, click here (last visited September 28, 2005, REO)
Tuesday, September 27, 2005
Courts in agricultural states are reluctant to split up family farms upon divorce. Here’s yet another example of a family farm divorce from the Court of Appeals in Nebraska. The court, while willing to recognize Wife’s contribution to Husband’s farm, was unwilling to find that the farm had become marital property because of that contribution. The case is interesting from a litigation perspective in that the court relied on Husband’s will (Husband was still alive) as evidence of the couple’s understanding of their ownership interests in the property. As well, the couple had executed an antenuptial agreement protecting Husband’s property interest in the farm, yet they rescinded the agreement during the marriage. The court held that rescinding the agreement did not act to transmute separate property into marital property.
Nygren v. Nygren, 14 Neb. App. 1; 2005 Neb. App. LEXIS 227 (September 20, 2005)
Opinion on the web at http://court.nol.org/opinions/2005/september/sept20/a03-1042.htm (Last visited September 27, 2005 bgf)
For some more perspectives on farm divorces, see John S. Slowiaczek & David A. Domina, The Equitable Distribution of Farms, 18 J. Am. Acad. Matrimonial Law. 357 (2003) (“A farm that has passed from generation to generation is not just an asset to be divided but a way of life. Divorce directly challenges the ability of both spouses to continue that lifestyle and to preserve the farm for the next generation. Current equitable distribution policies may tend to overly protect the farmer at a significant cost to the farmer's spouse.”)
Case Law Development: Protective Orders may be Issued to Protect Victims upon Release of Perpetrators from Prison
The Court of Appeals of Massachusetts affirmed a trial court's decision to grant a protective order against a defendant who was being released after eight years in prison. Wife had a protective order against her ex-husband, who had been convicted of raping two of her children, but let it lapse while he was in prison. Learning of his imminent release, she filed for another protective order. The court of appeals treated the trial court's decision as an extension of the previous order, even though it had lapsed, because "prison is the ultimate restraining order." Husband argued that there was no basis for extending the protective order because he had no direct contact with plaintiff or the children in eight years so there was no basis for determining that wife or son were in reasonable fear of imminent serious physical harm. The Court of Appeals disagreed. The seriousness of his previous attacks on both wife and children was relevant. Moreover, while in prison, he had engaged in "ominously controlling and wrathful behavior" including accusing wife and children in the press and over the internet of bringing false charged and encumbering and transferring marital assets, were sufficient ground for issuing a protective order when he planned to live in the same general area as Wife and the son.
Vittone v. Clairmont, 64 Mass App. Ct. 479, 2005 Mass. App. LEXIS 852 (September 10, 2005)
Available on the web at http://www.socialaw.com/slip.htm?cid=15483&sid=119
(last visited September 27, 2005 bgf)
Case Law Development: Consideration of Health of Marriage Relevant in Apportioning Wrongful Death Award
For those of you who teach issues of consortium claims and other rights incident to marriage, the California Court of Appeals has provided a fascinating angle on these issues. Two members of a three-judge panel held that, in apportioning a wrongful death award, a trial court may consider evidence that the deceased’s marriage was in trouble and thus may award the widow less than a child who had a close relationship with the deceased. One of the three judges dissented in a strongly worded and thorough opinion, in which he maintained that this evidence should be irrelevant to an apportionment decision. The judges agreed that one may not recover for grief in wrongful death but differed in their interpretation of precedent that allowed recovery for the pecuniary value of companionship and society. The majority found apportioning the majority of the wrongful death award to the adult daughter of the deceased was entirely appropriate in light of testimony that the decedent was contemplating divorce before his death and that he had an exceptionally close relationship with his daughter. The dissent saw this approach as a “"profound injustice" that “turned the case into the equivalent of a fault divorce for a dead man.”
Corder v. Corder, 2005 Cal. App. LEXIS 1506 (September 26, 2005)
Available on the web at http://www.courtinfo.ca.gov/opinions/documents/G033608.PDF (last visited September 27, 2005 bgf)
September 27, 2005 | Permalink
Monday, September 26, 2005
In Rehabilitating Partnership Marriage As A Theory Of Wealth Distribution At Divorce: In Recognition Of A Shared Life, Alicia Brokars Kelly describes the basic contours of marital partnership theory and establishes that the theory has been extensively adopted and integrated into contemporary divorce law. The article traces the historical origins of the concept as well as the emergence of partnership marriage in contemporary family law. The article also delineates how partnership theory has been rejected, distorted, or only partially applied. Alicia Brokars Kelly, Rehabilitating Partnership Marriage As A Theory Of Wealth Distribution At Divorce: In Recognition Of A Shared Life, 19 Wis. Women's L.J. 141 (2004). Link to Article (NVS)
"Women are more likely than men to keep joint possessions when getting divorced, according to research. Men on average wanted their ex to keep 19 items from a list of 24 including the home, photographs and pets, while women wanted the men to get just eight. While women did not particularly want items including the television, CDs, DVDs, and toaster, they were keen their ex-husband did not get them. YouGov polled 3,515 people in May and June for Yorkshire Building Society. The poll found men were keen for their ex to keep items including the bed, television, wedding album, lawnmower and garden accessories, house plants, coffee machine, Monopoly board and the family pet." By BBC News, UK Edition Link to Article (Last visited 9-25-05 NVS)
Sunday, September 25, 2005
The Oregon Court of Appeals considered, as a matter of first impression, whether parenting time plans may interfere with a custodial parent’s religious practices with her child. Though it declined to establish a bright-line rule, the court reversed the trial court's award of a traditional weekend parenting time arrangement that interfered with the religious practices of mother and her then 10-year-old daughter.
In re Christison, 2005 Ore. App. LEXIS 1224 (September 21, 2005)
Opinion on the web at http://www.publications.ojd.state.or.us/A123354.htm (last visited September 24, 2005 bgf)
The case is a good example of how difficult it can be for courts to fairly balance non-traditional religious practices that may strain relationships between the other parent and the child.
Draft legislation introduced by Utah State Senator Greg Bell would do away with Utah’s state policy that grants a waiver of the divorce waiting period for couples with young children who are required to attend a class for divorcing parents. . . . Lori Nelson from the Family Law Section of the Utah State Bar urged lawmakers to get rid of the waiting period entirely. Nelson said most couples have spent at least three months working out their finances and separation of property anyway. Sometimes, partners use the waiting period to harass their soon-to-be-former spouse. And the law is unfair. Because couples with children can waive the cooling-off time, they can be divorced in as little as a few weeks, while couples without children have to wait three months or spend more money and time trying to convince a judge to waive the waiting period. By: Rebecca Walsh, The Salt Lake Tribune, sltrib.com.Click here for complete story. (Last visited September 25, 2005, REO).
A lawsuit filed Thursday claims that officials in Denton County,Texas have violated the Texas Constitution by paying for attorneys appointed in divorce cases. The lawsuit seeks to bar the county from making any more payments to attorneys representing children in cases not involving Child Protective Services or the state. It is alleged that the lawsuit was brought after it was learned that District Court Judge Vicki Isaacks was billing the county for attorneys she appointed to represent children in divorce cases. . . . Texas family law specifies that counties are responsible for paying for attorney appointments in CPS and criminal cases, including nonpayment of child support. However, Professor Jack Sampson, who co-wrote Sampson & Tindall's Texas Family Code, said the county isn't obliged to pay attorney fees in private cases. By: Dave Moore / Denton Record-Chronicle, The Dallas Morning News, dallasnews.com.Click here for complete story. (Last visited September 25, 2005, REO).
MULTAN, Pakistan - A Pakistani man cut off the nose and lips of his 19-year-old sister-in-law after she went to court for a divorce in a tribal area of the central province of Punjab, police said on Thursday. . . . Pakistan‘s attitudes to violence against women have come under an international spotlight since the Washington Post quoted President Pervez Musharraf saying this month that many of his compatriots believed that crying rape was a fast way to make money and get a visa for Canada. By: Asim Tanveer, New Brisbane News, leadingthecharge.com.Click here for complete story. (Last visited September 25, 2005, REO).