September 3, 2005
Case Law Development: Modification of Limited Duration Alimony – Retroactive Application of Statute
In this case, the New Jersey appellate court decides that the statute standards for a newly created category of “limited duration alimony” should apply retroactively on any motion to modify term alimony. In doing so, the court carefully distinguishes permanent alimony, rehabilitative alimony, and limited duration alimony and considers how the standards of modification would apply tov a variety of maintenance orders.
Gordon v. Rozenwald, 2005 N.J. Super. LEXIS 260 (August 31, 2005)
The court notes that prior to the 1998 legislation, alimony statutes did not provide for limited term alimony other than that which the parties might negotiate. The court carefully distinguishes the purposes of the forms of alimony. “Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise. It is distinguishable from permanent alimony because the length of the marriage does not warrant permanent support and from rehabilitative alimony because the term is not based upon projections about time needed to acquire education or job skills.”
The limited duration alimony statute includes two standards for modification. The amount of the award may be modified upon a showing of either a change in circumstances or the nonoccurrence of circumstances that the court found would occur at the time of the award. In contrast, the length of the term may not be modified "except in unusual circumstances." The court found the application of this standard retroactively consistent with prior decisional law, which imposed a higher standard for modification of alimony when it was based on agreement and the length of the term was not determined by reference to a prediction about some future event.
The limited duration alimony statute also provides “The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded. The court holds that courts should presume that limited duration alimony is not a substitute for permanent alimony. The court provides numerous examples of when an alimony decree would and would not be a substitute. The court holds that “a party may overcome the presumption and avoid application of [the statute] by demonstrating, as part of a prima facie case, that the term is a substitute for permanent alimony premised upon a promise or expectation of alternative funds for support that has not been fulfilled or realized.”
Finally, the court reviews other cases in which divorce legislation was applied retroactively and finds that, in this case, retroactive application is appropriate because it is “consistent with the most reasonable interpretation of the Legislature's intention in supplementing the alimony law and because the curative amendment reflects decisional law…”
Case Law Developments: Prospective Adoptive Parent Has No Cause Of Action Under §1983 Based On Reputational Damage Caused By Wrongful Identification As A Child Abuser
Behrens v. Regier, 2005 U.S. App. LEXIS 18807 (11th Cir. August 31, 2005)
Father sues Florida child protection agency under §1983 for violation of his procedural due process rights when it classified him as a "verified" child abuser without giving him the benefit of a name-clearing hearing. The classification arose out of an earlier incident in which father had dropped his infant. Both civil and criminal proceedings were dismissed for a failure to establish child abuse, but the state agency maintained his name in their records as a verified child abuser. Father and his wife wanted to adopt another child and he asserted that, because of his classification in state records, they were unable to do so.
While the court readily conceded that Father’s classification as a child abuser was stigmatizing, Father was unable to show that the stigma interfered with a protected constitutional right. The court noted that not even grandparents or foster parents have a protected liberty interest in prospective adoptions, so that Father here clearly had no such right. Thus, Father was limited to state law remedies.
Text of opinion on web at http://www.ca11.uscourts.gov/opinions/ops/200414820.pdf
Case Law Developments: International Child Abduction – Equitable Estoppel May Not Bar Timely Claim
The Fourth Circuit Court of Appeals in this case reverses the trial court’s denial of Father’s petition for return of his child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. The remedy of return of a child is available only when a removal violates custody rights, not if removal interferes with visitation or rights of access. Since the trial court did not clearly establish the nature of father’s rights, the court of appeals reversed for further proceedings. The court also held that, while courts have used equitable estoppel to allow claims brought outside the one-year statute of limitations under the Act, equitable estoppel could not be applied against a petitioner whose claim is timely brought.
Katona v. Kovacs, 2005 U.S.App. LEXIS 18881 (4th Cir. August 31, 2005)
Katona v. Kovacs, 2005 U.S.App. LEXIS 18881 (4th Cir. August 31, 2005)
Married soldiers in Iraq live more like neighbors than husband and wife; Policy on sexual activity varies from unit to unit
. . During their deployment, the request line for some married soldiers serving together in Iraq would more fittingly include tunes such as “(Can’t Get No) Satisfaction” by the Rolling Stones or “Sexual Healing” by the late Marvin Gaye. General Order No. 1, which, among other conduct issues, prohibits soldiers from drinking alcohol while deployed, also covers sexual activity. The policy on sex varies from unit to unit, but for the 94th Engineer Combat Battalion (Heavy) and its attached unit, the 535th Engineer Company (Combat Support Equipment), the policy is no sex at all, whether married or single. By Rick Emert, Stars and Stripes, Mideast edition.
http://www.estripes.com/article.asp?section=104&article=31329 (last visited September 3, 2005).
Court Won't Rehear Abortion Case
A federal appeals court Friday denied a request by Virginia's attorney general to rehear a case challenging a state law banning a type of late-term abortion.In June, a divided three-judge panel of the U.S. 4th Circuit Court of Appeals ruled that Virginia's law banning what antiabortion activists call "partial-birth abortion" is unconstitutional because the law lacked an exception to protect a woman's health. The Center for Reproductive Rights challenged the law when it was passed by the General Assembly in 2003, and a federal judge blocked its enforcement. After the appellate panel's ruling, Virginia Atty. Gen. Judith Williams Jagdmann filed a petition asking all 13 judges from the court to rehear the case, saying the state believed the panel's majority decision was "fundamentally flawed." By: Associated Press, Latimes.com.
http://www.latimes.com/news/nationworld/nation/la-na-abortion3sep03,1,1919313.story?coll=la-headlines-nation (last visited September 3, 2005).
California Senate backs same-sex marriage; Assembly next
Passionately invoking the end of slavery, the civil rights movement and Bible scriptures on love, the Democrat-controlled California Senate on Thursday became the first legislative body in the nation to approve a bill allowing gay couples to wed. “It is a very proud day,'' said the bill's author, Assemblyman Mark Leno, D-San Francisco, who hugged and kissed supporters when the bill passed.”`The Senate embraced our common humanity that all of our citizens are created equal. . . . It's historic and it's just the beginning.'' If it becomes law, AB 849 would rewrite California 's definition of marriage as being between "two persons" instead of as a union between "a man and a woman.'' The bill must still pass the Assembly, where it was narrowly defeated in June, before it reaches Gov. Arnold Schwarzenegger, who opposes same-sex marriage but supports domestic partnerships. By: Aaron C. Davis, Mercury News Sacramento Bureau, MercuryNews.com.
http://www.mercurynews.com/mld/mercurynews/news/local/states/california/northern_california/12542118.htm (last visited September 3, 2005).
Southern California Marriage fraud ring
The United States Attorney’s Office announced on Friday that a federal grand jury in San Francisco returned a superseding indictment against six individuals for conspiracy to commit marriage fraud by arranging the fraudulent marriages of Chinese nationals to United States citizens. The marriages were allegedly arranged to evade U.S.immigration law by petitioning to classify aliens as bona fide spouses of the U.S. citizens. . By: The Law News Network, LawFuel.com.
http://www.lawfuel.com/index.php?page=press_releases&handler=focus&pressreleaseid=4176&return=blur-article (last visited September 3, 2005).
September 1, 2005
22-Year-Old Man's Marriage to 14-Year-Old Girl is No Defense to Statutory Rape
A 22-year-old man who legally married a 14-year-old girl in Kansas after she became pregnant has been criminally charged in Nebraska for having sex with her. Nebraska Attorney General Jon Bruning said Matthew Koso of Falls City began a sexual relationship with the girl when she was 13. After she became pregnant, her mother gave permission in May for Koso to take their daughter to Kansas, which allows minors to get married with parental consent. ... Koso was charged with first-degree sexual assault, punishable by up to 50 years in prison.
"Researchers estimate that more than 100,000 teenage girls in this country are having sex with men at least six years older. The greater the age difference with her sex partner, the more likely a girl is to have been forced to have sex, to come from a single-parent home, to live in poverty, and to get pregnant. Statistics about girls having sex as young as Koso’s wife are hard to come by. But of sexually active American girls from 15 to 17, more than a third sleep with guys three years older or more, and one in 15 pairs up with somebody at least six years older. Of girls in that age group who give birth, more than half conceive with men in their 20s." (Scott Canon, The Kansas City Star)
Case Law Development: Paternity Actions - statutes of limitations, equitable tolling, intentional infliction of emotional distress
R.A.C. v. P.J.S., 2005 N.J. Super. LEXIS 258 (N.J. App. Ct. August 31, 2005)
A year after being told by his ex-wife that their youngest son, then thirty years of age, had been fathered by another man, Plaintiff sued the biological father for paternity. He also sought damages for emotional distress and unjust enrichment. Following DNA testing, an order establishing parentage was entered; a summary judgment awarded plaintiff $ 109,696.82 representing the funds expended by plaintiff to support and educate D.C. On appeal the New Jersey Superior Court Appellate Division clarified a number of issues that arise in the context of these cases:
- The doctrine of equitable tolling could apply to the statute of limitations in a paternity action such as this but the discovery rule is inappropriate.
- Recovery in a paternity action is limited to reimbursement for only that support which would be part of a child support order, and not for support that plaintiff may have provided out of a sense of moral obligation.
- Pre-judgment interest is not generally available in paternity actions, as there is rarely a fixed date and amount defendant could have paid prior to the judgment.
- New Jersey will not recognize an intentional infliction of emotional distress claim arising out of adultery, which is essentially the damages claimed in this action as plaintiff had not alleged any damage to his relationship with his son.
Text of the opinon on the web at http://www.judiciary.state.nj.us/opinions/a6130-02.pdf
On the statute of limitations issue, the court provides a scholarly analysis of the purposes of statutes of limitations, differentiating a procedural or remedial statute, which governs common law causes of action, and substantive or jurisdictional statute of limitations, which govern statutory actions that did not exist at common law. Finding that the statute of limitations in paternity actions would fall under the latter category, the court held that whether tolling doctrines should apply turned on an analysis of legislative intent. The court rejected application of the discovery rule to paternity actions but saw no reason not to allow application of equitable tolling:
"Plaintiff's action allows an acknowledgement of responsibilities and a reconciliation of obligations. It is not calculated to disrupt fragile familial relationships or to leave a young child bereft of required paternal guidance. In these circumstances, resort to the statutory limitations period acts as a shield rather than the sword for a party whose conduct deserves no such protection. Therefore, we affirm the orders entered denying defendant's motion to dismiss the complaint as time-barred."
On the dismissal of the common law claims, the court distinguished a prior case allowing an IIED claim, as that case had arisen before the New Jersey legislature had abolished its heart balm causes of action. The court concluded that recognizing a cause of action for emotional distress in these actions would violate public policy:
"Our Heart Balm Act ... abolished causes of action for alienation of affections, criminal conversation, seduction, and breach of contract to marry.... Although plaintiff argues that he is not seeking to recover for interference with his marital relationship, but for the emotional pain he endured upon learning that the true paternity of his child was hidden from him, the underlying conduct is the same. His claim as asserted is, in essence, a claim that another man slept with his wife behind his back. Although he alleges that adultery is not the basis for his cause of action, that does not seem to be the case at all. To the extent that plaintiff's claim is one for destruction of the parent-child relationship, such a claim would embroil the court in a microscopic examination of how that relationship has been affected by defendant's conduct and would make the child the focal point of any litigation. "
The Secret Lives of Retired Judges
"Brad Pitt and Jennifer Aniston took one more step toward divorce last Friday when a retired judge in Los Angeles signed an official "judgment of dissolution" for their marriage. Just how much authority does a retired judge have? Quite a bit, if you're in California. Judges who leave the bench in any state can to into practice as private mediators or arbitrators. In the Golden State, they can also hire themselves out as "private judges." If both parties to a civil case agree to hire a private judge, they can do so with the prior permission of the county court. A private judge then takes an oath of office and serves exactly as if he were on the bench for the duration of that case. (Not all private judges are retired judges. Some are lawyers who have never served on the bench.) An unhappy couple might hire a private judge to bypass the delays that come with using the state court system. They might also choose to pay for their judge to avoid unwanted publicity. Private trials are often held as "settlements conferences," the details of which do not become part of the public record." By Daniel A. Engber. Link to Article
August 31, 2005
Access to Abortion Pared at State Level
This year's state legislative season draws to a close having produced a near-record number of laws imposing new restrictions on a woman's access to abortion or contraception. Since January, governors have signed several dozen antiabortion measures ranging from parental consent requirements to an outright ban looming in South Dakota. Not since 1999, when a wave of laws banning late-term abortions swept the legislatures, have states imposed so many and so varied a menu of regulations on reproductive health care. Three states have passed bills requiring that women seeking an abortion be warned that the fetus will feel pain, despite inconclusive scientific data on the question. West Virginia and Florida approved legislation recognizing a pre-viable fetus, or embryo, as an independent victim of homicide. And in Missouri, Gov. Matt Blunt (R) has summoned lawmakers into special session Sept. 6 to consider three antiabortion proposals. By Ceci Connolly, Washingtonpost.com.
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/28/AR2005082800981.html (last visited August 30, 2005).
New Texas law could mean death penalty for doctors performing abortions
Texas doctors who perform abortions without parental approval or after the third trimester could face capital murder charges because of a new law that takes effect this week, a prosecutors group says. The Texas District and County Attorneys Association has outlined that scenario in its new book updating the Texas penal code and in public presentations around the state. The group says such charges could occur under the new law because of the 2003 fetal protection law. Key legislators said Monday that wasn't their intent. (Thanks to Professor Paul Caron for the tip.) By: Kelly Shannon, Associated Press, HoustonChronicle.com.
http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/3330600 (last visited August 31, 2005).
Are boys better off without fathers?
(Open Forum--Opinion) Peggy Drexler's new book, "Raising Boys Without Men: How Maverick Moms Are Creating the Next Generation of Exceptional Men," contends that father-absent homes -- particularly "single mother by choice" and lesbian homes -- are the best environments for boys. While "Raising Boys" may seem like a harmless, feel-good affirmation for "maverick moms," it could have a damaging impact on children by affecting both the choices women make and family law. Drexler, who is in San Francisco this week for book signings and related events, contends that sons from fatherless families "grow up emotionally stronger," "have a wider range of interests and friendships" and "appear more at ease in situations of conflict" than boys from "traditional" (i.e., father- present) households. Her research, however, is flawed. By Glenn Sacks, Open Forum, San Francisco Chronicle, SFGate.com.
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/08/31/EDG8LEFOKI1.DTL (last visited August 31, 2005.
August 30, 2005
Case Law Development: Reformation Unavailable as Remedy for Unambiguous but Inequitable Property Division Agreements in Family Court
Gorman v. Gorman, 2005 R.I. LEXIS 166 (August 26, 2005)
In what the Supreme Court of Rhode Island terms a "close and troubling case," the court reversed a trial court order reforming the terms of a settlement agreement in a dissolution action. Husband and wife negotiated an agreement regarding property distribution, which they requested the family court in their dissolution action approve. The agreement contained a provision that divided all of Husband's specified stock option plan from his employment through a QDRO. However, Wife was unaware that Husband's employment also included a separate stock bonus plan that could not be subject to a QDRO. Two months after the divorce was finalized and the court had approved that agreement, Wife moved for "clarification" of the agreement and to reopen the judgment under Rhode Island's relief from judgment rule.
The trial court found the agreement ambiguous, given the negotiations and understandings of the parties, and ordered that the agreement be reformed to divide all of Husband's stock according to the agreement.
The Supreme Court held that the trial court erred in finding the agreement ambiguous as the provision clearly identified the stock option plan that would be subject to division. The fact that Husband had an interested in a different stock bonus plan did not make the agreement ambiguous. The court noted that, were this an ordinary contract, that finding would end the analysis. In this case, it meant that reformation was not a remedy available to the family court.
However, the trial court was not outside its authority to refuse to enforce the agreement. "As a result of the fundamental difference between ordinary business contracts and spousal agreements, family courts should and do monitor such agreements with special attention and with a concern for the equities of the situation." The appropriate approach, according to the court, would be for the family court either to have "directed the parties to negotiate a new Property Settlement Agreement for review and approval by the court or simply ordered the parties to proceed to trial." It remanded for the trial court to proceed accordingly, in the "fervant hope" the parties would be able to reach a negotiated resolution. While noting that "we perceive no evidence of unethically sharp dealing on the part of defendant or his attorney," the court did caution to attorneys in general that, "it is incumbent upon parties seeking court approval of a proposed property settlement agreement to bring the salient features of the agreement to the attention of the Family Court justice."
Case Development: Relief from Spousal Tax Liability
Neal v. Commissioner of Internal Revenue, T.C. Memo 2005-201, 2005 Tax Ct. Memo LEXIS 201 (August 24, 2005)
We tell students that a divorce judgment does not necessarily affect the obligations a spouse might have to creditors. Here's a lovely tax court opinion to make the point clear.
Two doctors are married and have three children. They maintain separate finances throughout their marriage. Doctor Mom pays nearly all the household expenses, takes care of the kids, and earns professional awards. Doctor Dad cheats on his taxes and his wife, spends lavishly (and secretly) on himself and his lover, and drives himself into bankruptcy twice. When Doctor Mom finally gets the picture, she's given a divorce judgment that orders Doctor Dad to pay "all outstanding joint Federal income taxes as well as any other future tax liability having been incurred during the course of the parties' marriage."
But Doctor Mom still has to deal with the IRS on the unpaid tax liabilities from their joint tax returns. In this proceeding, she requests equitable relief from liability for taxes incurred during her marriage. The opinion makes it clear that, even under the egregious facts of this case, equitable relief is not lightly granted. The court notes that two of the prerequisites for equitable relief (whether petitioner had knowledge of or reason to know of Alimam's nonpayment of the taxes due and whether petitioner would suffer economic hardship if not granted relief from joint and several liability) are "difficult questions." In balancing all the facts, however, the court decides that Doctor Mom has paid enough.
Opinion on the web at: http://www.ustaxcourt.gov/InOpHistoric/NealRuthE.TCM.WPD.pdf
Case Law Developments: A Case Study of Termination of Parental Rights Procedures
In re Dakota H., 2005 Cal. App. LEXIS 1351 (August 26, 2005)
This termination of parental rights case not only clearly describes the procedural stages of a termination case, but also demonstrates how the shift in the burden of proof and presumptions at various stages makes all the difference in the outcome. Moreover, the case is an example of a heart-wrenching story that leaves one wondering how well the legal system really serves the children and families involved.
Full text of opinion at: http://www.courtinfo.ca.gov/opinions/documents/D045824.PDF
What makes the case difficult is the delicate balance of interests painted well by the court in its opinion. The child was a six-year-old boy with autism, removed from his mother after both he and she were victims of domestic violence. Mom’s bond with her six year old autistic son was loving and strong. However, her inability to leave her abusive husband for over a year and her poor compliance with court-ordered services along with her own low-level cognitive functioning, meant that the case progressed from permanency through reuniting to permanency through adoption. The adoptive home that awaited him was one with highly competent caregivers with previous experience in adopting and caring for special needs children. Tragically, the entire story, from the assertion of jurisdiction to the termination of parental rights, took over two years. The court of appeals rejects Mother's arguments that the delays in the action violated her due process rights and that termination should have been denied under the beneficial parent-child relationship exception.
While breaking no new ground in terms of the law of termination of parental rights, the case would nonetheless be well worth assigning as a case study for students in clinical programs or advanced seminars on child protection.
Case Law Developments: Criminal Child Abuse - Dangerous Parents
State v. Petithory, 2005 Iowa Sup. LEXIS 115 (August 26, 2005)
"Parents can commit a crime by exposing their children to danger--even if the parents themselves pose the danger. In this case, a baby girl lost her life because of her father's meth abuse; coming down from a high, he fell asleep while she sat in a running bathtub." Father argued that the criminal neglect statute, requiring proof that he “knowingly or recklessly exposes [the child] to a hazard or danger” could not extend to situations in which the danger is the parent himself. The Iowa Supreme Court disagrees with plenty of citations to “common sense”, maxims of statutory construction, and excerpts from expert testimony about the effect of methamphetamine abuse on parenting.
Full opinion on the web at: http://www.judicial.state.ia.us/supreme/opinions/20050826/03-1679.asp
August 29, 2005
Law Review Article: Public and Private Ordering of Marriage
In The Public and Private Ordering of Marriage, Brian Bix explores the appropriate extent of public and private ordering of marriage and marriage-like relationships. He presents an overview of public and private ordering and discusses common objections to private ordering including creation of agreements contrary to the public interest, harm to third parties, and the possible inability of the parties to protect their own interests. He suggests that both individual autonomy and protection of the vulnerable might be achieved through the creation of a menu of acceptable relationship options potentially coupled with procedural protections similar to those applied to premarital agreements. Prof. Bix concludes by urging consideration of the role of marriage from individual and societal perspectives, identification of marital structures necessary to achieve the functions of marriage, and the extent to which the state should favor some forms of private ordering over others. Brian H. Bix, The Public and Private Ordering of Marriage, 2004 U. Chi. Legal F. 295 (2004). Link to Article
The Law Commission of Canada (a law reform agency advising Parliament on improvement of Canadian law) has considered whether individuals should be allowed to designate whether their relationships are governed by particular law. Their report, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships, discusses the merits and problems associated with governance through private law (such as contract), ascription (set of obligations presumed to meet the needs of most people), and registration (an orderly framework for choosing rights and responsibilities). Link to Commission Report
To begin thinking about the rights and obligations of marriage, visit a website listing them. Rights and Obligations
August 28, 2005
Case Law Development: Child Support when Child is Incarcerated
Rodney P. v. Stacy B., 2005 Ky. LEXIS 245 (August 25, 2005)
This case of first impression, the Kentucky Supreme Court examines child support obligations for an incarcerated child. Here, Mom had custody of two children. She moved to modify Dad’s child support payments based on Dad’s increased income. Dad responded that, because the oldest child was in state custody for status and delinquency offenses, child support should be calculated based on Mom's custody of one child rather than two. Mom did not provide any evidence that she was providing support for the incarcerated child or had expenses related to her custody of him. Dad argued that, because the state could sue him to collect the costs of support for the son, if he were also ordered to pay Mom support for the son, he would end up paying twice.
The court reviews the few cases across the United States involving incarcerated children and child support, noting that, while most held that parents had a continuing duty of child support for an incarcerated child, those cases were ones in which the parent was seeking to terminate the support obligation entirely under an emancipation theory. Here, Dad was not seeking to terminate his support obligation, but rather to have support calculated as if he were the custodial parent of the incarcerated son. The court agreed with this approach.
Text of opinion at http://www.kycourts.net/Supreme/SC_Opinions.shtm
Concern rises over abortion language in UN draft treaty
The inclusion of unprecedented language in a draft treaty to protect and promote the rights of persons with disabilities; allowing sexual and reproductive health services to become a human right, was met by widespread support of governments participating in a United Nations session. However, it is feared that the language that the document could be used to turn abortion rights into international law. Pro-life NGOs around the globe are concerned that no EU member states have challenged the language, including Malta amongst other states where abortion is either illegal or heavily restricted. Among such countries are also Portugal, Poland and Ireland. According to the Catholic News website CWNews.com, the draft article reads that persons with disabilities are to be provided with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services, where according to the same source, in UN vernacular, sexual and reproductive services translates as abortion. By Ruth Davies, MaltaMedia.com.
http://www.maltamedia.com/news/2005/eu/article_7204.shtml (last visited August 28, 2005).