Saturday, September 10, 2005
Ontario Premier Dalton McGuinty will let down women and help the cause of political Islam if he allows faith-based arbitration to go ahead, anti-sharia demonstrators charged Thursday at an emotional rally in Toronto. The protest was one of 12 in cities across Canada and Europe, as women's and human-rights groups lobbied against a proposal to allow sharia tribunals in Ontario. . . . Earlier this week, the Premier vowed that the rights of women will not be compromised if Ontario allows Islamic law to be used in family arbitration cases under the 1991 Ontario Arbitration Act. The government is reviewing a report by former New Democratic attorney-general Marion Boyd that concluded that Muslims in Ontario should have the same rights as other religious groups to settle family disputes through faith-based arbitration as an alternative to the courts. By Marina Jiménez, Grandmail.com. http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20050909/SHARIA09/TPNational/Canada (Last visited September 10, 2005, REO).
Monaco's Prince Albert II believes he was "set up" by a former flight attendant who says she had his child. "It was a very difficult moment for me," Albert, 47, told The New York Times in Saturday's editions. He added that he's still "coming to terms" with the unintended fatherhood. By Associated Press. http://www.fosters.com/apps/pbcs.dll/articleAID=/20050910/NEWS1402/109100009 (Last visited September 10, 2005, REO).
Singer Bobby Brown has made good on his promise to put money into an educational fund for his children and to pay them child support. Brown, during a voluntary appearance in Norfolk Probate and Family Court on Wednesday, told Judge Paula Carey he's up to date with his $5,000 monthly child support payments and with his contributions to their educational fund. . . . Brown, a Boston native, was sentenced to 90 days in prison in June 2004 for missing three months' worth of child support payments. . . . Brown was jailed for a day in March of that year after he failed to pay $63,000 he owed Ward.. By Associated Press, Boston Globe, Boston.com., http://www.boston.com/news/local/massachusetts/articles/2005/09/08/bobby_brown_appears_for_child_support_hearing/ (Last visited September 10, 2005, REO).
Minnesota Vikings All-Pro defensive tackle Kevin Williams faces a court date next week stemming from an Aug. 28 arrest for domestic violence, according to police records. Minnetonka police charged Williams with fifth-degree domestic assault, a misdemeanor, after his wife called 911 during an early-morning altercation at their home that involved a 13-inch kitchen knife. By. Judd Zulgad and Kevin Seifert, Star Tribune, Startribune.com. http://startribune.com/stories/503/5606385.html (Last visited September 10, 2005, REO).
LONDON (Reuters) - The United Kingdom’s child support payments should be collected by the Inland Revenue rather than the much criticised Child Support Agency, former welfare minister Frank Field said on Thursday. "We've passed the stage where a billion pounds of maintenance has been written off as unrecoverable," Field told the BBC. "We're in a position where seven in 10 parents expecting maintenance are either getting nothing at all or only partial payment. By: Reuters, UK , Know.now. http://today.reuters.co.uk/news/newsArticle.aspx?type=topNews&storyID=2005-09-08T094530Z_01_SCH835016_RTRUKOC_0_UK-BRITAIN-CSA.xml (Last visited September 9, 2005, REO).
Critics of a new amnesty program in Michigan for parents owing back child support say the program doesn't help those who want to pay but are broke. The Detroit News said parents who owe in Michigan and begin paying on their overdue child support bills between Oct. 1 and Dec. 31 will avoid civil and criminal penalties that range from jail to restricted drivers licenses to liens on property. The full past due amount must be paid by the end of the year to qualify. More than $8.8 billion in child support is owed by 610,000 parents in Michigan . Critics say the program will only benefit well-off parents who can afford to make payments. By: UPI, Sciencedaily.com. http://www.sciencedaily.com/upi/?feed=TopNews&article=UPI-1-20050907-19151200-bc-us-childsupport.xml (Last visited September 10, 2005, REO).
LOS ANGELES, Sept. 7 -- Gov. Arnold Schwarzenegger (R) announced Wednesday night that he will veto landmark legislation that would have allowed same-sex couples to marry. In a statement, Schwarzenegger's press secretary, Margita Thompson, said the governor opposes the legislation, passed Tuesday night by the California Assembly and last week by the state Senate, because he thinks the matter should be decided by California 's courts or its voters. By: By John Pomfret, WashingtonPost Staff Writer, Thursday, September 8, 2005; Page A04, Washingtonpost.com
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/07/AR2005090702020.html?referrer=email&referrer=email, (Last visited September 8, 2005, REO).
Friday, September 9, 2005
Case Law Development: Agreements to Pay Child Support Beyond Majority Enforced as Decrees; No Joinder of Tort Actions Permitted
In this case, Mother and Father agreed that both would pay for their child's post-secondary education, with a schedule for adjustments in child support. Child had a Uniform Gift to Minors Act (UGMA) account, for which Father was custodian. The Colorado Court of Appeals upheld the trial court’s adjustment of child support on terms other than those in the agreement but reversed the trial court’s removal of Father as the custodian of the UGMA account on the grounds that the trial court did not have jurisdiction over a tort of breach of fiduciary duty.
In re Marriage of Ludwig, 2005 Colo. App. LEXIS 1467 (September 8, 2005)
Opinion on the web at http://www.courts.state.co.us/coa/opinion/2005/2005q3/04CA0650.pdf (last visited September 9, 2005 bgf)
The Ohio Court of Appeals needed to unweave the tangled web of assisted reproduction and jurisdiction in this case involving three parents, from three different states, each claiming to be the legal parent of triplets. The case has made some news simply because the story is so intriguing. For law professors, this would make a great case study to help the students trace through the provisions of the UCCJA and PPKA and differentiate parentage determinations from custody decisions.
Rice v. Flynn, 2005 Ohio 4667; 2005 Ohio App. LEXIS 4205 (September 7, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/9/2005/2005-ohio-4667.pdf
(last visited September 9, 2005)
Case Law Development: Hearing Required on Motions to Modify Custodial Parent's Authority in Health Care Decisions
In this lastest installment of an extended custody battle, the Minnesota Court of Appeals holds that when a party establishes a prima facie case for limiting the custodial parent’s authority to make health-care decisions, the district court errs by failing to hold an evidentiary hearing pursuant to Minnesota's statutes.
In re Marriage Tarlan, 2005 Minn. App. LEXIS 744 (September 6, 2005)
Opinion on the web at http://www.courts.state.mn.us/opinions/coa/current/opa042257-0906.htm
(last visited September 9, 2005 bgf)
Case Law Development: Covenant Not to Solicit Establishes Goodwill as Personal, Not Subject to Division
The Florida Court of Appeals held that, for the purpose of distinguishing enterprise goodwill from personal goodwill in the valuation of a business, there is no distinction between a "non-solicitation/non-piracy agreement" and a covenant not to compete. The presence of either in a business agreement establish the goodwill component of the business as personal, thus not subject to division.
Held v. Held, 2005 Fla. App. LEXIS 14138 (September 7, 2005)
Available online at http://www.4dca.org/opfrm.html
(last visited September 9, 2005 bgf)
In a case of first impression, the Maryland Court of Special Appeals navigates the UCCJA in a case involving international marriage, simultaneous court proceedings in India and the United States, and allegations of domestic abuse of Mother and Child. The court holds that a foreign country is a "state" for purposes of the UCCJA.
Garg v. Garg, 2005 Md. App. LEXIS 179 (September 2, 2005)
Opinion on the web at http://www.courts.state.md.us/opinions/cosa/2005/1707s03.pdf (last visited September 9, 2005 bgf)
Case Law Development: One Spouse's Sole Contribution Not Sufficient Justification for Failure to Divide Marital Property
In a 4-2 decision, the Arkansas Court of Appeals reverses (for the second time) a trial court's award of a retirement fund to the wage earning spouse from a 12-year marriage. The case presents a window into the stubborn influence of the historical source of funds approach to property division. Making the case even more interesting are the couple involved. Husband is 66 years old and Wife is 60. Husband was disabled when the couple married while wife worked as a nurse (though by the time of the divorce, she also was disabled). Wife's retirement funds when the couple were married were worth about $22,000. By the time of the divorce the retirement funds were worth over $240,000. The trial court awarded all of the retirement funds to wife, applying what appeared to be a source of funds analysis. (The court provides lengthy excerpts from the trial court's opinions, which include statements like "... the length of the marriage was twelve, almost thirteen years. I have been married thirty-four years. It doesn't seem extremely long.")
The court of appeals reversed, requiring the trial court to consider the equitable factors required by Arkansas statutes and to provide specific justifications for any division other than equal. On remand, the trial judge again awarded the entire fund to Wife.
The majority sees the trial court's justification as inadequate, emphasizing the strength of the presumption that equal is equitable and the importance of recognizing marriage as an economic partnership. The dissent would defer to the trial court's conclusions that Husband had not contributed to the marital estate and that the relative needs of the parties were such that an unequal division was warranted. Clearly, the trial judge will have to divide the retirement funds this time on remand. It remains to be seen whether any division other than equal could survive yet another appeal.
Baxley v. Baxley, 2005 Ark. App. LEXIS 562 (September 7, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20050907/ca041131.html
(last visited 9/9/05 bgf)
Thursday, September 8, 2005
The Human Rights Campaign has developed a series of color-coded maps of the United States that give a "snapshot" of state laws relating to same-sex relationships. Featured maps include: Statewide Marriage Laws, Relationship Recognition, and Second-Parent/Stepparent Adoption Laws. By the Human Rights Campaign. Link to Website (Last visited 9-7-05 NVS)
In an opinion that reveals just how difficult it is to draft air-tight agreements, a majority of the Texas Court of Appeals allowed a wife’s claim of economic contribution to the marital home, despite a post-nuptial agreement dividing the parties’ properties, waiving claims against each other’s estates, and designating the marital home as community property.
Moroch v. Collins, 2005 Tex. App. LEXIS 7359 (September 6, 2005)
Opinion on the web at http://www.courtstuff.com/cgi-bin/as_web.exe?c05topin.ask+D+12311
Wednesday, September 7, 2005
The California Legislature made history Tuesday as the Assembly passed a bill to legalize same-sex marriage. With no votes to spare, California 's lawmakers became the first in the United States to act without a court order to sanction gay marriages. The measure was approved after three Democratic lawmakers who abstained on a similar proposal that failed in June changed their minds under intense lobbying by bill author Assemblyman Mark Leno (D-San Francisco) and gay and civil rights activists.. . . The bill, which would change California's legal definition of marriage from "a civil contract between a man and a woman" to a "civil contract between two persons," now goes to Gov. Arnold Schwarzenegger. He has signaled that he will veto it. By Nancy Vogel, Los Angeles Times, latimes.com.
http://www.latimes.com/news/local/politics/cal/la-me-gaymarriage7sep07,1,5420306.story?coll=la-news-politics-california (Last visited September 7, 2005, REO).
Despite all of her external ruggedness, Lt. Eva Crouch starts to cry just thinking about losing custody of her daughter. A member of the Kentucky National Guard, Crouch's family life changed dramatically when she was deployed in 2003. Now, more than a year after her return, Crouch has finally won the latest round in a court battle and custody of her daughter. . . . There are currently about 360 single parents in the Kentucky National Guard. However, there are no laws specifically protecting them from losing custody because of a deployment. Eva Crouch says her case is illustrative of a need for better safeguards to protect single-parent soldiers in custody disputes. Crouch estimated her legal fees cost about $10,000, and she lost a year with her daughter. By Associated Press, WKYT TV Newsfirst, http://www.wkyt.com/Global/story.asp?S=3807600 (Last visited September 6, 2005, REO).
(Column) Gallant Americans are risking life and limb in Iraq to defend home and country. But they never dreamed they might lose their children, too. When Army National Guard Spc. Joe McNeilly of Grand Ledge, Mich., came home after 15 months in Iraq , he found that a family court "referee" had taken away his joint custody of his 10-year-old son and given full custody and control to the boy's mother. . . . Michigan State Rep. Rick Jones has introduced legislation (HB 5100) providing that absences for military service cannot be used against a parent and that a permanent custody arrangement cannot be established while a parent is on active duty. He is hearing from legislators in other states who want to sponsor similar bills. By: Phyllis Schlafly, Townhall.com. http://www.townhall.com/columnists/phyllisschlafly/ps20050905.shtml (Last visited September 6, 2005, REO). Additional information: California Moving Protections For Military While Congress Lags Behind, August 21, 2005, http://mensnewsdaily.com/blog/2005/08/california-moving-protections-for.htm (Last visited September 6, 2005, REO).
The Vermont Supreme Court will hear arguments on whether a former Vermont woman can avoid paying child support because of her religious beliefs. The Vermont Office of Child Support in 2003 received a court order allowing it to suspend the driver's license of Joyce Stanzione, a former Vermont resident who has not paid child support since she separated from her husband in 1991.Stanzione is a long-time member of the Twelve Tribes Messianic Community in Florida and is not allowed under church law to have an income, said Jean Swantko, her attorney. Suspending her license because she has no income violates the First Amendment of the U.S. Constitution, which protects religious freedom, said Swantko, who is also a member of the Twelve Tribes Community. Information from: The Times Argus, Boston.com news.
http://www.boston.com/news/local/vermont/articles/2005/09/05/woman_says_religion_prevents_her_from_paying_child_support/ (Last visited September 7, 2005, REO). Additional information: TimesArgus.com, http://www.timesargus.com/apps/pbcs.dll/article?AID=/20050905/NEWS/509050320/1003 (Last visited September 7, 2005, REO).
Tuesday, September 6, 2005
Case Law Developments: Trial Court May Not Enter “Reasonable Visitation” Order If Specific Parenting Time Plan Requested
In this case, the Michigan Court of Appeals provides us with fabulous final exam question material and interesting analysis of some unique issues.
The issue of first impression presented by the case was whether trial courts may order "reasonable visitation" when one party has requested a specific parenting time. The Michigan Court of Appeals held that, under the terms of Michigan's custody statutes, a trial court must enter an order detailing specific parenting times if a party requests, even if the request is oral and during the pendency of the hearing.
In addition to the parenting time issues in this case, however, the Court of Appeals reviewed:
- division of pension survivor benefits, including the trial court's distribution of a portion of husband’s separate property;
- division of a personal injury award;
- transmutation of husband’s contribution to the purchase of a family home; and
- effect of a post-nuptial agreement of the division of property.
Pickering v. Pickering, 2005 Mich. App. LEXIS 2126 (August 30, 2005)
Text of opinion on web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20050830_C253342_46_253342.OPN.PDF
Case Law Developments: Jurisdiction of Court to Order Partition of Cohabitant's Property in Protective Order Action
In a case involving a six-year litigation between cohabitants, the New Jersey appellate court held that the trial court did not err in ordering equitable partition of cohabitant's property even though the action had been brought initially as a protective order action. The court found that the partition remedy, while not within the scope of the protective order statute, was within the trial court's general equitable powers and that the court could include partition with the protective order action, rather than requiring that a separate case be filed.
Mitchell v. Oksienik, 2005 N.J. Super. LEXIS 267 (September 2, 2005)
Case Law Developments: Jurisdiction of Court to Assign Veteren's Disability Payments in Divorce Decree
The Virginia Court of Appeals bars collateral attack of a divorce decree incorporating an agreement to assign veteren's disability benefits.
Winfree v. Winfree, 2005 Va. App. LEXIS 330 (August 30, 2005)
Text of opinion on web at http://www.courts.state.va.us/opinions/opncavtx/2391043.txt