Family Law Prof Blog

Case Law Developments: Judicial Bias in Custody Decisions

With one judge dissenting, the Michigan Court of Appeals reversed a trial court’s parenting time decision on the basis that the judge was biased against mother's status as primary wage earner.  The appellate court provides plenty of details about the trial, which involved fascinating contrasts of cultural perspectives on the role of women.

Peric v. Peric, 2005 Mich. App. LEXIS 2143(August 30, 2005)

Text of opinion on the web at http://courtofappeals.mijud.net/DOCUMENTS/OPINIONS/FINAL/COA/20050830_C259222_50_259222.OPN.PDF

Appellate court found that the trial court demonstrated a "deep-seated favoritism such that the exercise of fair judgment does not appear possible.”  The court concluded that the trial judge was biased against mother’s role as primary breadwinner and favored her husband’s Eastern European, traditional views.  The per curiam opinion reviews numerous examples of the trial court’s statements evincing bias and its disregard for mother’s evidence of father’s irresponsibility, domestic violence in his parent’s home (where he lived) and other negative evidence.  The court reversed for a new hearing before a different judge. Justice Joel P. Hoekstra dissented.

BGF

Case Law Developments: Child Support – Presumptions as to Overpayments and Underemployment

In an interesting case involving an attorney father who overpaid child support and then fell in arrears after he quit his high-paid position to become a public defender, the Tennessee Court of Appeals held that overpayments are to be treated as gifts unless proven otherwise.  The court also found that the attorney's decision to change jobs was a voluntary underemployment which would not justify lowering child support.

DeWerff v. DeWerff, 2005 Tenn. App. LEXIS 555 (August 31, 2005)
Text of Opinion on web at http://www.tsc.state.tn.us/OPINIONS/TCA/053/DeWerffOPN.wpd

In this case, an attorney father overpaid his child support for a time and then later fell into arrears when he voluntarily abandoned a $188,000-a-year law practice to take a public defender position at $33,000 a year.  The Tennessee Court of Appeals upheld the trial court’s decision to treat the overpayments as a gift and to base child support on father’s earning capacity due to his voluntary underemployment.

On the issue of the nature of overpayments, the court indicated that the payor has the burden to show that the payments are anything other than a gift.  “Obligor parents may be given a credit against their child support obligation for amounts paid on behalf of their child when those payments are for necessities that the custodial parent either refused or failed to provide.… In order to successfully assert a claim that such payments were necessary, the claiming party must demonstrate that the child needed the goods or services provided; that the custodial parent had a legal obligation to provide the goods or services; that the custodial parent failed to provide the goods or services; and the cost of those goods or services. Likewise, we hold that a party asserting that payments knowingly made in excess of his/her child support obligation were intended to be prepayments has the burden of demonstrating that such intent existed at the time the payment was made and that such intent was communicated to the obligee parent.”

On the issue of voluntary underemployment, the court held that “a finding of "willfulness" does not require a finding that the obligor chose to become under or unemployed to intentionally avoid child support obligations…. Although we are not insensitive to a person's right to pursue happiness and to make reasonable employment choices, an obligor parent will not be allowed to reduce his child support obligation as a result of voluntarily choosing to work at a lower paying job.”

BGF

Case Law Developments: Sanctions for Bad Faith Divorce Litigation

In two cases, the Texas Courts of Appeals recently were called upon to review trial court sanctions in divorce litigation.  The first case presented an easy case for sanctions, notable only for the audacity of the petitioner.  The second case presents a much more difficult case, highlighting the sometimes precarious nature of practice for divorce practitioners.

Kramer v. Kramer, 2005 Tex. App. LEXIS 7084 (August 30, 2005)

Upholding sanctions for groundless litigation against petitioner Mother, who filed suit for divorce as next friend for her son, who had been left incapacitated in an accident. She filed the suit knowing that her son’s wife had been appointed his legal guardian.  While she later dismissed the action, the Texas 13th District Court of Appeals (Corpus Christi) upheld the trial court’s sanctions on the basis that Mother had no standing to bring an action for divorce on her son’s behalf and that the action was brought solely for the purposes of harassment.

In the Interest of K.A.R., 2005 Tex. App. LEXIS 7080 (August 30, 2005)

In a much closer question of sanctions, the Texas Fourteenth District (Houston) Court of Appeals, in a 2-1 decision, affirmed an order of sanctions against a petitioner and his attorney.  The case involved protracted litigation, in which father had moved to modify the terms of the custody decree.  Over the course of the proceeding, father apparently changed his mind about proceeding with the motion.  Father eventually committed suicide shortly after the trial.  The Court of Appeals noted that other trials courts might not have ordered sanctions and that some of the basis for the trials court’s sanctions were ill-considered, it held that the trial court sanction was justified by one of its bases: the failure of both attorney and client to attend a court-ordered mediation.   Attorney had been unable to attend the mediation because of a conflicting trial setting, but the trial court found that attorney could have notified it earlier of the conflict.  Father failed to attend the mediation because he did not desire to further participate in any proceedings. 

The majority and dissenting opinions’ characterizations of the attorney’s conduct differed dramatically:

The majority held that, “When Clarke chose to cancel the court-ordered mediation, she effectively usurped the court's role and displaced the court as decision maker. By taking it upon herself to countermand that which the court had ordered, Clarke interfered with a core function of the court.”
The dissent disagreed that failing to attend a court ordered mediation should be considered a per se basis for sanctions. The dissent commented on the position the attorney was placed in given her client’s volatile mental state:

“Ironically, the circumstances of this case aptly demonstrate the indispensability of restraints on the trial court's inherent power to sanction. Because, against the backdrop of multiple settings and appearances inherent in the practice of law generally, attorneys in family law cases represent, advise, and seek to achieve the goals of clients who are often governed by powerful, sometimes overwhelming, emotions. Securing their cooperation with motion and trial settings can be difficult. In most cases, attorneys are able to effectively counsel their clients to ensure full participation, but there are those times when a client will be completely uncooperative despite the attorney's best efforts. In those cases, as in this case, the attorney should not be sanctioned for conduct attributable solely to an unpredictable and irrational client.”

BGF

Case Law Development: Procedure Required in Approving Parenting Plans

In this case, the Wisconsin Court of Appels reviews the proper procedures surrounding the parties' submission of parenting plans where the parents contest placement. “Here, the court adopted the mother's parenting plan in toto because the father had not submitted his at the time of the scheduling conference. We hold that this was improper. First, the court should not have considered placement and custody issues when the father had not yet received a copy of the mother's proposal. Our statutes, as well as due process, contemplate such an exchange. Moreover, because we conclude that a scheduling conference is not a pretrial conference, the father did not waive his right to object to his wife's proposal when he failed to submit his own plan prior to the scheduling conference. Indeed, the father had no notice, statutory or otherwise, that the court might consider custody and placement at that time. Hence, he was entitled to his day in court. Finally, even if we assume waiver on the father's part, the paramount concern in placement and custody decisions is the best interests of the minor child. Although the court may consider one party's uncooperative behavior a salient factor, it must clearly articulate how the parent's recalcitrance bears on the child's best interests. Accordingly, we reverse the decision below and direct the trial court to hold a new hearing on custody and placement.”

Guelig v. Guelig, 2005 Wisc. App. LEXIS 760 (August 31, 2005)
Opinion on the web at http://www.wisbar.org/res/capp/2005/2005ap000346.htm (last visited September 5, 2005 bgf)

Case Law Developments: GAL Reports as Evidence

The Maine Supreme Court has held that introducing into evidence a guardian ad litem’s report that contains hearsay evidence does not violate due process rights of a parent in a child protection hearing.

In re Chelsea C., 2005 Me. LEXIS 114 (August 31, 2005) (bgf)

Helping Children Handle Disaster-Related Anxiety

"Children sense the anxiety and tension in adults around them. And, like adults, children experience the same feelings of helplessness and lack of control that disaster-related stress can bring about. Unlike adults, however, children have little experience to help them place their current situation into perspective. Each child responds differently to disasters, depending on his or her understanding and maturity, but it’s easy to see how an event like this can create a great deal of anxiety in children of all ages because they will interpret the disaster as a personal danger to themselves and those they care about." Preschool children need the opportunity to discuss concerns and be reassured that they are safe. Grade-school age children ask many questions and benefit from clear, simple answers, not false reassurance. Adolescents may down-play their real concerns. By the National Mental Health Association. For More Information

Star Chicago Bears Linebacker is baby's dad

David Haugh, of the Chicago Tribune, reports that Tyna Robertson, who gave birth to the Chicago Bears star middle linebacker Brian Urlacher's son three months ago, has agreed in court that the Bears star is the baby's father. And the boy can use Urlacher's last name, both sides agreed Friday. But other issues involving visitation and child support were not resolved during a court hearing. . . .  Robertson, 33, is the same woman who sued dancer Michael Flatley for $35 million in March 2003, saying he had raped her, and accused a Naperville, Illinois doctor of inappropriate touching in a story she later recanted. Reporter Cindy Wojdyla Cain of the Chicago Sun-Times reports that Urlacher's court appearance drew several curiosity seekers, including a county judge who also waited to get an autograph for her teenage son. By David Haugh, Chicagotribune.com and Cindy Wojdyla Cain, Suntimes.com.

http://www.suntimes.com/output/news/cst-nws-urlacher03.html (last visited September 4, 2005); http://www.suntimes.com/output/news/cst-nws-urlacher03.html (last visited September 4, 2005).

Unmarried together: seniors choosing to cohabitate

The number of men and women who are 65 and older and choose to live together without getting married has nearly doubled in a decade, according to a study by the Census Bureau as reported in an October 2004 article posted online by the AARP. Of the 9.7 million unmarried partners who were cohabiting in 2000, the Census counted 266,600 couples in the 65-plus group. This number more than doubled since 1989, according to the Census Bureau. Furthermore, many experts think the numbers are now much higher and they are expected to climb even further as baby boomers age and Americans generally stay healthy and live longer. So what stops so many seniors from tying the knot? Among other things, it is often the prospect of financial loss, according to the same October 2004 article posted by AARP. By:  Patrick Lange, Sunherald.com.

http://www.sun-herald.com/NewsArchive4/090405/tp17de17.htm?date=090405&story=tp17de17.htm  (Last visited September 4, 2005).