Saturday, October 15, 2005
Congress is in final consideration of The International Marriage Broker Regulation Act of 2005 (IMBRA). IMBRA is a bipartisan bill that would help regulate the mail order bride industry in the United States. The legislation would limit the number of visas a U.S. spouse could seek for potential spouses. It would also have the marriage broker provide foreign spouses with information on their legal rights when they came to the United States. If the U.S. spouse had a criminal background, he would have to answer questions, and the answers would be shared with the foreign spouse. The foreign women would be informed of the rights and resources available to domestic violence victims in the United States. Senators Sam Brownback (R-KS) and Maria Cantwell (D-WA) and Representatives Frank Wolf (R-VA) and Rick Larsen (D-WA) introduced the IMBRA legislation, which subsequently has been attached to the Violence Against Women Act, which passed the House September 28 and the Senate October 4. The two versions are now awaiting final decision by a conference committee that must finalize the legislation and forward it to the President. At least three states, Texas, Washington, and Hawaii, have approved legislation that requires marriage brokers to provide male clients' criminal and marital history records to spouses. Congressional action is expected soon on the legislation as the ten-year-old Violence Against Women Act expired on September 30th of this year. For additional information on the pending federal legislation, click here (last visited October 15, 2005, reo)..
Poll Shows Americans Support Harsher Penalties for Human Trafficking and More Protection for Mail Order Brides
According to a poll conducted by Lifetime Television and Entertainment Industries Council, Inc.(EIC), 55% of Americans believe that human trafficking is a major problem within our borders, and 45% actually feel it is happening in or near their own communities. A majority (53%) say that human trafficking should carry the harshest penalties, versus drug trafficking (30%) or gun trafficking (14%). On the issue of international marriage brokers, three-fourths (74%) of those surveyed did not know that international marriage brokers operate in the United States legally. The Lifetime/EIC survey shows that while one-third (29%) of survey respondents incorrectly believed that "mail order brides" already had the option of conducting criminal background checks on their prospective "spouses," an overwhelming number of Americans (89%) support regulation that would make these background checks mandatory. The poll, conducted in conjunction with Equality Now, the International Justice Mission, Tahirih Justice Center, Vital Voices, Polaris Project, National Coalition Against Domestic Violence and the National Domestic Violence Hotline. Source. Lifetime Television. For more information, click here (last visited October 15, 2005, reo).
October 24 is the premiere of Lifetime Television's first original miniseries, "Human Trafficking," starring actors Mira Sorvino and Donald Sutherland . The story is described as “a tough, uncompromising drama about the brutal realities behind the international trafficking and brokering of women and children for sex.” The miniseries was developed with the help of a wide range of anti-human trafficking advocates and are a part of Lifetime's Emmy Award-winning campaign "Stop Violence Against Women." The International Justice Mission has endorsed the 2-part television production as a "powerful portrayal of the dignity and plight of victims in a way that motivates people to action"; Girls Inc. has commended the outreach for "shedding light on the importance of protecting girls and women from this horrible crime"; and the Vital Voices Global Partnership organization applauds the program for "presenting the terrible realities of this trans-national crime and enabling viewers to help stop this modern-day slavery." The Tahirih Justice Center Executive Director Layli Miller-Muro said, "One of the strongest tools we have in the fight against human trafficking and the international marriage broker industry is public education.” Source. Lifetime Television. For more information, click here (last visited October 15, 2005, reo).
Earlier this week, police in Britain arrested 19 people and said they had smashed a pan-European human trafficking network. The arrests are the result of two-year investigation, Operation Bluesky, in which 200 officers in Britain collaborated with counterparts in Italy, France, Holland, Belgium and Denmark to follow the gang's movements and trace its organization. According to the Times of London, the ring is suspected of taking as many as 200,000 Turkish Kurds into Britain.The illegal immigrants paid between $5,000 and $8,500 for journeys which often took months, in groups of up to 20 a time, concealed in cars, vans, trucks and aircraft. Source. United Presss International, World Peace Herald, wpherald.com. For more information, click here (last visited October 15, 2005, reo).
BANGKOK — The foreign ministries of Japan and Thailand agreed Thursday to set up a joint task force to combat human trafficking, according to a press release from the Thai side. The agreement was reached during a high-level annual meeting — the Japan-Thailand Political Partnership Consultation — in Bangkok on Thursday. In July, Japan's National Police Agency revealed that 51 foreign women were trafficked into Japan and forced into the sex industry or other forms of exploitation in the first half of this year. Of those, 17 were Thai nationals. Source. Japan Today, japantoday.com. For more information, click here (last visited October 15, 2005, reo).
Friday, October 14, 2005
Case Law Development: Postnuptial Agreement that Conditions Maintenance on Absence of Adultery allows Parties to Raise Issue of Adultery even if Not a Grounds for Divorce
The Virginia Court of Appeals decided a case involving an interesting postnuptial agreement in which husband agreed to pay alimony to wife upon divorce. The agreement provided that husband would pay more alimony if wife proved adultery and further provided that if husband proved wife's adultery, "she agrees to relinquish her rights under this agreement. For the purposes of this agreement, proof of adultery is defined as; unaltered photographic or video representation of adultery; or, a finding of guilty of adultery in a court of law." When wife filed for divorce and sought to enforce the agreement, husband filed interrogatories asking about wife's sexual activities outside of marriage. The trial court struck the interrogatories and, when husband filed an amended answer to allege wife's adultery as a defense to her request for mainenance, the trial court struck the amended answer as well. According to the trial court, husband could not seek discovery of adultery unless he filed a cross-complaint for divorce on the grounds of adultery, which husband did not do.
The court of appeals reversed, finding that husband's interrogatories were well within the scope of discovery under Virginia rules of civil procedure and that his answer rightly raised the defense provided by the agreement. The court of appeals found no grounds for the trial court's interpretation that husband would be required to sue for divorce on the grounds of adultery in order to raise the issue.
Hall v. Hall, 2005 Va. App. LEXIS 401 (October 11, 2005)
Opinion on the web at http://www.courts.state.va.us/opinions/opncavwp/2021044.pdf (last visited October 13, 2005 bgf)
In a case of first impression, the Wisconsin Court of Appeals holds that a father's consesnt to termination of his parental rights and the subsequent adoption of the child by a stepparent does not extinguish father's obligation to pay for child support arrearages. The court interpreted the language of the adoption statute as terminating all obligations arising after the adoption but not extinguishing past obligations. Moreover, the court noted that TPR and consent to adoption affect only the father's legal duties to the child, not to the other parent. However, the court pointed out that "while child support is ordered to benefit the child, it actually is an obligation owed to the recipient parent."
Hernandez v. Allen, 2005 Wisc. App. LEXIS 891 (October 12, 2005)
Opinion on the web at http://www.courts.state.wi.us/ca/opinion/DisplayDocument.html?content=html&seqNo=19917 (last visited October 13, 2005 bgf)
Case Law Development: Court may not Impute Income to Starving Artist Wife upon Husband's Motion to Modify Maintenance
The Massachusetts Court of Appeals reversed a trial judge's reduction of alimony in a case involving an aspiring artist mother. The couple in this case divorced when they were in their late 40s, with a 13-year-old son and twin 6 year olds sons. Wife stayed home with the children and painted. The trial court suggested that Wife would have to think about a different career in the future if her painting didn't pan out. The trial court granted alimony and suggested that it was likely the Husband would have to continue to pay that alimony until retirement.
Three years later, with wife's painting career improving but still not generating a positive cash flow, Husband moved to reduce alimony, claiming that wife was voluntarily unemployed and should be credited with larger earning capacity and that she had reduced expenses. Husband also argued that he had fewer assets because he had transferred income-producing assets to his mother. Vocational experts for both parties testified regarding Wife's ability to earn more income than her painting was providing.
Trial court granted the reduction in alimony.
The Massachusetts Court of Appeals reversed. The opinion contains plenty of scoldings:
First, the court of appeals noted that the trial court properly scolded the Husband for trying to argue changed circumstances in his reduced income, because his employment income had actually increased since the divorce. Moreover, the trial court noted that it would not consider Husband's argument that he had reduced income from assets because he had transferred those assets since he had transferred the assets to his mother with the clear expectation that she would return them at a future date and he did not declare any income from those interests as of the time of the divorce. The trial court noted that Husband was "asking the Court to reduce his present support obligations in order to allow his future assets to be protected, preserved and enhanced -- all at the expense of the [wife] and the parties' three unemancipated children, whom he is obligated to support."
The appellate court had some scolding of its own to do. In reversing the trial court's decision, the court found that there was no change in circumstance from the original decree. While conceding that imputing income may be appropriate in modification in certain circumstances where there is evidence that an obligee is deliberately choosing to deflate their income, the court noted that those were not the circumstances in this case. Rather, the court concluded, the trial court's decision was based on the "judge's personal disapproval" of the wife's "avocation." The appellate court noted that at one point the judge had commented, "I'd love to be a professional golfer." He told the wife, "You may be a fine artist, but the term . . . 'starving artist' exists for a reason. . . . You can't keep losing money, ma'am. If you want to, that's your business, but he's not going to subsidize [your avocation]." The court emphasized the caution "against relying unduly on the income-earning potential of a wife and mother who has been out of the regular job market for decades.... Such caution is appropriate in this case, where the wife has dedicated herself and expressed commitment to her vocation as an artist, whether or not she could earn more money in a clerical position."
Kelley v. Kelley, 2005 Mass. App. LEXIS 951 (October 11, 2005)
Massachusetts opinions are available online at http://massreports.com/slipops/ (last visited October 12, 2005 bgf)
Case Law Development: Divorcing Couples Bound by Characterizations of Property for Tax Purposes even if Sham Transactions
If families characterize transactions as gifts to one spouse for gift tax purposes, may the court characterize the nature or intended recipient of that transaction differently for purposes of determining the marital estate? In this case, Husband’s parents, in order to avoid federal gift tax liability, twice wrote $10,000 checks to their son and separate $10,000 checks to their daughter in law in order to help with remodeling the couple’s home. When Husband and Wife divorced, Husband claims that the $20,000 given to Wife was actually intended as a gift solely to Husband and so should not be included in the marital estate. The trial court agreed, but the Georgia Supreme Court held that “Although it is permissible to legitimately arrange one's affairs so as to minimize or avoid taxes, it is impermissible to engage in sham transactions designed to camouflage the actual situation. Equity will not relieve the parties from such sham agreements." (internal quotations and footnotes omitted)
Wife also argued that the trial court erred by failing to consider the value of Husband’s in-kind economic benefits as income for purposes of calculating child support. Wife argued that the value of Husband’s employer’s contributions to health insurance and pension benefits, for example, should have been included in the income calculation. The supreme court disagreed, noting that Georgia statutes allow but do not require consideration of fringe benefits in calculating the gross income for purposes of setting child support. Since the benefits in this case were not considered a part of Monson's gross income for income tax purposes, and were not for daily personal living expenses, such as automobile or housing expenses, the court held that the trial court need not have included these benefits in the income calculation. The court also noted that an amendment to the child support statute that would be taking effect in January 2006 specifically provided that fringe benefits "shall be counted as income if they significantly reduce personal living expenses. "
Hayes v. Hayes, 2005 Ga. LEXIS 659 (October 11, 2005)
Opinion on the web at http://www.gasupreme.us/pdf/s05f0738.pdf (last visited October 12, 2005 bgf)
As a side note, this case came to the supreme court as part of its pilot project to grant all non-frivolous discretionary appeals in domestic relations cases.
Thursday, October 13, 2005
"In one of the most costly and hard-fought custody battles in Connecticut family court history, Guilford cosmeceutical magnate Nicholas V. Perricone only started winning the moment he stopped fighting.
In a strongly worded opinion, New Haven Complex Litigation Docket Judge Lynda B. Munro recently declined to follow either the joint custody recommendation of the court-appointed psychiatrist or Munro's own joint custody order of 11 months earlier. Instead, invoking her judicial duty to rule in the best interests of the child -- the couple's 7-year-old daughter -- Munro awarded the husband sole legal custody.
Multimillionaire Perricone -- a nationally known skin doctor, best-selling health writer and anti-aging guru -- successfully markets wrinkle creams for as much as $570 for a 2-ounce bottle. The small army of lawyers and experts for the warring parents may be paid with Perricone's money, but it's his wrinkle cream that they may end up needing before the case is over.
Madeline Perricone's pendente lite award for legal fees and costs was a stunning $750,000. Both parents, Munro noted in her opinion, "are wealthy beyond the normal person's ken and able to finance this litigation ad nauseum. Indeed the pendente lite litigation was an obscene display by the plaintiff of his ability to retain seemingly endless strategic resources -- but he stopped and agreed in March 2004 to joint custody." From that point, Munro observed, his ex-wife "is the one who has not been able to stop."" By Thomas B. Scheffey, The Connecticut Law Tribune Link to Article (last visited 10-12-05 NVS)
Wednesday, October 12, 2005
Two years after New Jersey embarked on an ambitious plan to improve its troubled child welfare system, an independent panel charged with monitoring a court-ordered overhaul of New Jersey’s child welfare agency found the state had largely failed at putting key measures in place to fix the system and keep children safe. According to the report, New Jersey is failing to provide the most basic services. Welfare workers are failing to monitor children regularly and children have failed to receive regular checkups or have their medical records updated. The efficiency of the adoption process, a problem that other child welfare systems have addressed to great success, is still lagging, leaving children to languish in foster-care limbo. The report was released on Tuesday. Source: Richard Lezin Jones and Tina Kelley, The New York Times, NYtimes.com. For the complete story, click here (last visited October 13, 2005, reo).
A coalition of patient advocacy groups, medical organizations and concerned citizens Tuesday launched an effort to seek voter approval of a state constitutional amendment designed to ensure that any stem cell research, therapies and cures permitted by federal law will continue to be allowed in Missouri. The amendment, called the Missouri Stem Cell Research and Cures Initiative, is the first state measure in the nation that would clearly protect the right of patients to have their diseases and injuries treated with any stem cell cures allowed by federal law. Source: PRNewswire, biz.yahoo.com. For addition information, click here (last visited October 12, 2005, reo).
Maria Guevara, age 18, who no longer lives with either parent but has her own apartment, has sued her parents for child support. She says that she had a strained relationship with her father, who she said physically abused her when she was younger -- a charge he denies -- and she said her mother was too strict, setting an early curfew and denying her money for restaurants and fashionable clothes. Following her move from her mother’s home, she sued her parents for child support in Nassau Family Court. Under New York law, young people between the ages of 18 and 21 fall into a special category: They are old enough to move out of their parents' house, but young enough to be supported by them in most cases, according to some legal experts. Cases in New York of this kind have reportedly been decided for and against persons in Ms. Guevara’s situation. Source: Ann Givens, Newday, newsday.com. For the complete story, click here (last visited October 12, 2005, reo).
In the California November 8 special election, abortion opponents have their best chance in three decades of changing California’s designation as arguably the most pro-choice" state in the nation. Proposition 73 has sparked a highly charged battle that has evenly divided voters. The measure requires a physician to notify a parent or guardian 48 hours before performing an abortion on a girl under 18 years old. It exempts girls who obtain a judicial waiver or face a medical emergency. Source: Bill Ainsworth, San Diego Union Tribune, signonsandiego.com. For additional information, click here (last visited October 12, 2005, reo).
Tuesday, October 11, 2005
Case Law Development: Child Custody Dispute Between Cohabitants Results in Gestational Mother Being Given Custody Rights Even Though She has No Genetic Connection to the Children
In a groundbreaking and controversial 4-1 decision, the Supreme Court of Tennessee granted custody of triplets to their gestational mother as against the children's genetic father. The couple had lived together and intended to raise the children together. Father's sperm was used to fertilize donated eggs for his partner. Because Mother had no genetic connection to the children, Father argued that she should have no right to custody of the children.
The majority opinion filed Wednesday and written by now-retired Chief Justice Frank F. Drowota, III, upheld the lower court decisions that awarded joint custody to the parents, with the mother as primary custodian, providing for visitation for the father and ordering him to pay child support. The Supreme Court decision was based, in part, on the triplets’ unmarried parents’ “demonstrated” intent prior to and during the pregnancy that the woman who bore them would be the mother. In addition, the majority concluded that “sound policy and common sense favor recognizing gestation as an important factor for establishing legal maternity.”
In a separate dissenting opinion, Justice Adolpho A. Birch, Jr., said the majority “reached beyond existing law to produce a palatable result....Unless our legislature acts, I fear that this narrowly tailored solution designed for this specific case will be used as precedent for other cases involving reproductive technolgy,”
In Re C.K.G., 2005 Tenn. LEXIS 812 (October 6, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/054/CKGOpn.pdf (last visited October 9, 2005 bgf)
Read the article in The Tennessean, quoting Professor Susan Brooks of Vanderbilt regarding the importance of the case.
Read the Tennessee Courts’ Press Release on the decision.
Case Law Development: Ohio Supreme Court Upholds Constitutionality of Grandparent Visitation Statute
The Ohio Supreme Court resolved a split among its districts and upheld the constitutionality of its grandparent visitation statute. In the case, Father and Mother had never married, but had a child together. Mother had custody until the child was about 2 years old, when Mother died. Maternal Grandparents obtained an order of custody over child. After continued legal skirmishes, father finally obtained custody when the child was five years old. Grandparents filed a motion seeking visitation. The juvenile court denied the motion, concluding that under the standards established by the US Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), Grandparents had not presented evidence sufficient to overcome the required presumption that Father's decisions regarding visitation were in the child's best interest.
The court of appeals reversed and the Ohio Supreme Court agreed. The court distinguished the Ohio statute from that of the Washington statute in Troxel. Unlike the Washington legislation, Ohio statutes specifically require judges to consider the parents' wishes in determining whether visitation with a non-parent is in the child's best interest. Moreover, unlike the Washington visitation statute, the Ohio statute allows only a limited class of persons to seek custody.
Harrold v. Collier, 2005-Ohio-5334 (October 11, 2005)
Opinion on the web at http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf (last visited October 11, 2005 bgf).
Read about the decision in the New York Times.
The Supreme Court of Iowa determined the role trust income should play in setting marital property divisions and alimony. Wife was the beneficiary of a family trust. While the trust was irrevocable, it could be modified by the settlor father and the amount of any income distribution from the trust was at the discretion of the co-trustees (Wife's father and four of her siblings). Income allocated to each beneficiary but not distributed to them is added back to the principal of the trust.
The court held that because Wife no right to the allocated, but undistributed, income from the trust, it would not be appropriate to treat the undistributed income from the trust as a current source of financial support in setting alimony. The court also stated that this income would not be considered marital property because Husband had done nothing to contribute to this income from the trust (which was, itself. clearly separate property as the trust existed before the marriage).
Despite this treatment of the trust and its unallocated income as separate property, the court found it proper to consider the value of Wife's expectancy in the trust In dividing the marital property. The court noted that Wife's interest in the $5 million trust was worth a present value of more than $ 550,000. The court commented that "Although Deborah's father has the power to change the beneficiaries of the trust, there is no evidence indicating he is likely to do so...Clearly, it is permissible to consider Deborah's future interest in this trust in determining an equitable division of the parties' property."
The dissenting judge found the majority's consideration of Wife's expectation of a future trust income to be deeply troubling, saying that the opinion "casts a dark cloud over the principle of equitable distribution" and "subverts, if not denigrates, the core concept of a marriage as an equal partnership." The dissent concludes that, "The concept of an equitable division of property has taken on a new meaning in Iowa as a result of this case, far removed from the concept declared by our legislature and articulated by this court in the past. It means that future inheritance has now been injected as a factor in the division of property in all cases. It means a spouse may be deprived of the right to share in an equal distribution of the property of the marriage at the time of the divorce when the spouse is expected to receive an inheritance in the future. "
In Re Marriage of Rhinehart, 2005 Iowa Sup. LEXIS 137 (October 7, 2005)
Opinion on the web at http://www.judicial.state.ia.us/supreme/opinions/20051007/04-0494.asp (last visited October 9, 2005 bgf)
Monday, October 10, 2005
"Affectionately known as "Jay" to his family, colleagues and friends, Professor James G. McLeod, husband, father, grandfather, law professor, author, lecturer and raconteur died suddenly at his home on Tuesday. He was 57.
Professor McLeod graduated with his LLB from The University of Western Ontario in 1971 and an LLM from the University of London England in 1972. He was called to the Bar in 1974 and taught a variety of courses at the Western's Law School and the Ivey School of Business. He held the position of associate dean (administration) in the Faculty of Law.
Jay's lectures were legendary amongst students, lawyers and judges for their insight, clarity and humor. A leading expert in Canadian Family Law, Jay is the author and/or editor of the leading family law publications in Canada, he has also acted as consultant to the Canadian Bar Association as well as the provincial and federal governments on family law issues. His works have been cited with approval by every Court in the country including many times by the Supreme Court of Canada.
When it came to family law, Jay was the conscience of the country by not shying away from challenging Court decisions when they did not meet his high standards for logic and consistency. He was a giant in the legal profession and the country is a great deal poorer as a result of his passing. Jay almost single handedly made the practice of family law in Ontario respectable. His contribution to the development of family law in Canada was surpassed only by the esteem in which he was held by his colleagues and judiciary and the reverence of his students. In life Jay made us laugh. In death we mourn his memory." By University of Western Ontario Link to Announcement (last visited 10-09-05 NVS) Link to Prof. McLeod's Faculty Page (last visited 10-09-05)
The Pennsylvania State Supreme Court recently adopted new child support guidelines that decrease the support obligation for the majority of parents, especially those in the upper income levels. The effect will be significant for some parents, with decreases of as much as 30 percent. The changes to the economic support calculations were based partly on a national study of the costs of raising children by David M. Betson, an economics professor at Notre Dame. The state also used Mr. Betson's research, developed for the U.S. Department of Health and Human Services and used by two-thirds of the states, for the previous review in 1999. When Mr. Betson updated his research four years ago, the cost of child-rearing expenses decreased …
by Mike Bucsko for the Pittsburgh Post-Gazette
http://www.post-gazette.com/pg/05283/585835.stm (last visited October 10, 2005 bgf)
Sunday, October 9, 2005
In recognition of Domestic Violence Awareness Month, the American Bar Association’s Commission on Domestic Violence is offering a series of Workshops on Domestic Violence and the Law each Wednesday in October. The Workshops are held from 12:00 p.m.-1:30 p.m. EST and are offered as nationwide teleconferences. On Wednesday, October 12, Rob Valente, Policy Consultant, National Network to End Domestic Violence, will give a program titled, “Reauthorization Of The Violence Against Women Act: Where Are We And Where Do We Go From Here?” One must register online with the ABAat its website to receive the program. Source: ABA. Click here for more information (last visited October 9, 2005, reo).