Tuesday, December 6, 2005

Case Law Development: Malpractice in Drafting Pre-Nuptials

The Michigan Court of Appeals, in a 2-1 decision, upheld summary judgment for an attorney in a malpractice action based on his drafting of a prenuptial agreement.  The attorney had provided his client (Wife) with the agreement and instructed her to attach a list of assets to the agreement.  She did so, but without including values of the assets on the list.  When, in her subsequent divorce, the antenuptial was set aside for failure to disclose financial assets, Wife sued the attorney for malpractice.  The majority of the court of appeals upheld the trial court's summary judgment on the basis that the failure to disclose values in the asset list was only one factor in the court's decision to set aside the prenuptial, so that Wife could not prove that the attorney's negligence was the proximate cause of the court's action.

A scathing dissent castigated the attorney for his sloppy approach to drafting.  "defendant devoted a relatively small portion of his practice to family law, so it is not too surprising to discover that he left the tailoring of a boilerplate antenuptial to his client and his secretary....Attorneys are legal professionals who are hired to forge binding agreements and are best equipped to detect any fatal flaws. Just as a doctor may not provide a patient with plaster and gauze and expect the patient to set and encase her own broken leg, an attorney may not leave the most legally sensitive portion of a contract to a client's drafting skill and expect that it will survive judicial scrutiny. If a contract fails because of a flaw related to the attorney's abandonment of the drafting process, we should hold the attorney responsible."

Winkler v. Carey, 2005 Mich. App. LEXIS 2989 (December 1, 2005)
Opinion on the web at http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20051201_C255193_33_255193.OPN.PDF (last visited December 5, 2005 bgf)

December 6, 2005 in Antenuptial (postnuptial) Contracts, Attorneys | Permalink | Comments (0)

Case Law Development: Name Changes in Step-Parent Adoptions

The West Virginia Supreme Court of Appeals reversed a trial court's adoption order in which the court refused to order the change of the child's surname to that of his Mother and Step-father's name, based on the objections of paternal grandparents. 

After Father had died, the child's paternal grandparents had sought and obtained visitation rights.  When Mother remarried, Step-father formed a close relationship with child and brought an action for adoption.  Grandparents were given required notice of the action.  Grandparents objected to Step-father's request to change the child's last name to match his own.  Mother supported the name change.  The trial court denied the name change, relying on authority of the name change statute, which allows anyone who might be harmed by a name change to object and gives the court discretion as to whether to grant a name change.  The Supreme Court reversed, holding that the name-change statute was inapplicable to an adoption proceeding.  In those proceedings, the adoption statutes neither allow third-parties to object to the name change, nor does the court have discretion to deny a requested name change.  The court did note that, "in the case of a stepparent adoption where the adoptive parent is married to the child's parent, the child's parent must assent to the proposed name change."

In re Adoption of Jon L., 2005 W. Va. LEXIS 174 (December 1, 2005) Opinion on the web at http://www.state.wv.us/wvsca/docs/fall05/32703.htm (last visited December 5, 2005 bgf)

December 6, 2005 in Adoption | Permalink | Comments (0)

Case Law Development: Should Piercing the Corporate Veil Theory be Applied to a Spouse's Separate Corporate Property?

The Idaho Supreme Court rejected a novel "piercing the corporate veil" theory that would allow a right of reimbursement to the community for the value of a spouse's separate corporate interest when that corporation was the "alter ego" of a spouse. 

The general rule in Idaho provides that property owned before marriage is separate property but that the marital community may be entitled to reimbursement is that separate property has been improved by the community effort.  However, if the separate property is a spouse's corporation, the Idaho court had recognized only two situations in which the right of reimbursement arises: "if the community was not adequately compensated for a spouse's labor devoted to the separate property corporation" or "if the separate property corporation unreasonably or fraudulently retained earnings instead of distributing profits as dividends."

Wife had argued that husband's corporation (a farming corporation formed one year before the marriage that had grown from a value of about $150,000 to over a million dollars) was the husband's alter ego and the property should be subject to the general rule of reimbursement.  The magistrate agreed, ordering Husband to reimburse the community $750,000 for the Husband's efforts that enhanced the value of the corporation.  The Supreme Court of Idaho reviewed cases from a number of other community property states accepting the theory of piercing the corporate veil in property distribution but declined to adopt the theory. 

Neibaur v. Neibaur, 2005 Ida. LEXIS 177  (December 2, 2005)
Opinion on the web at http://www.isc.idaho.gov/opinions/neibaur.pdf (last visited December 5, 2005 bgf)

December 6, 2005 in Property Division | Permalink | Comments (0)

Case Law Development: Limited Jurisdiction of Magistrates in Child Support Actions

Since the mid 1980s, in response to federal welfare reform laws calling for centralized child support enforcement as well as the growing movement toward unified family courts, states have increasingly used magistrates (also called masters, commissioners, or referrees) as a critical decision point in family law matters, especially child support enforcement.  Each state has had to address the jurisdictional limitations of these administrative authorities under the statutes creating them or under the state's constitutional law and the confusion continues today.

So for example, we find the Supreme Court of Maine this week reversing a magistrate's amended child support order.  The trial court in the case had issues of child custody and spousal support, as well as child support issues to resolve.  The trial court referred the child support actions to a magistrate for determination.  However, the supreme court held that district courts may not refer child support issues to magistrates for decision in cases in which there are contested issues in addition to child support.

Ziegler v. Ziegler,  2005 ME 117; 2005 Me. LEXIS 129 (December 2, 2005)
Opinion on the web at http://www.courts.state.me.us/opinions/2005%20documents/05me117fo.htm (last visited December 5, 2005 bgf)

For some cases that have examined this issue in broader perspective from other jurisdictions, see

  • State ex rel. Hilburn v. Staeden, 91 S.W.3d 607; 2002 Mo. LEXIS 147(Mo. 2002) (Opinion on the web)(Statute creating administrative child support orders does not delegate exclusive judicial powers to the executive branch because the order does not become an actual court judgment until a court has reviewed and enforced it.)
  • Seubert v. Seubert, 13 P.3d 365, 2000 Mont. LEXIS 244 (Mont. 2000) (Opinion on the web)(Montana statute, to the extent it grants the Child Support Enforcement Division the power to make and enforce binding child support orders without automatic and mandatory judicial review, is an unconstitutional violation of the separation of powers clause of the Montana Constitution.
  • State ex rel. W. Va. Dep't of Health & Human Res. v. Wertman, 557 S.E.2d 773; 2001 W. Va. LEXIS 179 (W. Va. 2001) (Opinion on the web) (family law masters have no judicial power to enter a final and binding order, such as an order of incarceration for indirect contempt.)
  • Holmberg v. Holmberg, 588 N.W.2d 720; 1999 Minn. LEXIS 44(Minn. 1999) (Opinion on the web)(administrative child support process is unconstitutional because it violates separation of powers.)
  • Morgan County Dep't of Human Res. v. B.W.J., 723 So. 2d 689; 1998 Ala. Civ. App. LEXIS 693 (Ala. App. 1998)(delegating the power to administer the income withholding provisions of the Alabama Child Support Act to an administrative agency is not an unconstitutional delegation of judicial powers.)

December 6, 2005 in Child Support Enforcement | Permalink | Comments (0)

Monday, December 5, 2005

Female Community Health Volunteers in Nepal

"After the introduction of Female Community Health Volunteers (FCHVs) Program a decade ago, Nepal ’s rural population’s access to modern health system has drastically increased. Nepal health system switched from tradition-based – which is governed by faith healers - to modern one drastically reducing high infant mortality, maternal mortality as well as other diseases. Although they are regarded as volunteers, FCHVs - mostly women above 40 years old with grand children - have changed the overall health status in the country. From administering polio drops and Vitamin A capsules to Oral Rehydration Solution (ORS) and treating children with pneumonia and providing all basic health information to women including pregnant ones, this group of volunteers has covered difficult mountainous terrain in Nepal reaching the rural household with a message of good health. In a country with virtually nonexistent modern communication network, 48,307 FCHVs have developed their own way for communication massively mobilizing to administer Vitamin A capsules to 3.5 million children (6-59 months) and polio drops to 4.2 million children (aged 2-59 months) twice every year. These female health volunteers are the saviors of women and children offering basic health services at grass root level." By Keshab Poudel, Peace Journalism Link to Article (last visited 12-4-05 NVS)

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

Adult Diabetes Seen in Children

"The fact that pediatricians are vigorously treating type 2 diabetes leaves no room to sugarcoat the problem, as Dr. Masroor Kakakhel sees it. One out of seven children in the United States is overweight or obese, according to the Centers for Disease Control and Prevention, which is leading to health problems that were once isolated to adults.

Seven years ago, there were hardly any children with type 2 diabetes at the clinic, according to Kakakhel, known to his patients as Dr. K. He is the medical director of Monfort Children's Clinic in Greeley. Now, 10 percent to 15 percent of the children seen at the clinic are on their way to becoming diabetic or already have the disease that used to be seen primarily in adults." By Millete Birhanemaskel, Greeley Tribune Link to Article (last visted 12-5-05 NVS)

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

Improved Access to Health Care for Children

"The number of American children without health care coverage has been slowly but steadily declining over the past several years even as health care costs continue to rise and fewer employers provide insurance, creating a breach that states have stepped in to fill with new programs and fresh money.

The overall ranks of the uninsured continue to swell, to nearly 46 million Americans at the beginning of this year. But a landmark federal program begun in 1997 to provide health coverage to poor and working-class children and additional measures taken by states across the country have provided health insurance to millions of children who might otherwise go without.

In just the past year, 20 states have taken steps to increase access to health coverage for children and their parents and nine states have reversed actions they took during the 2001-03 economic downturn to limit benefits, according the Kaiser Commission on Medicaid and the Uninsured, part of the Kaiser Family Foundation, which tracks health care trends. As a result of these and other steps, there are 350,000 fewer uninsured children in the United States than there were in 2000, the foundation reported. Over the same period the overall number of uninsured rose by 6 million." By John M. Broder, New York Times, featured in the Detroit News Link to Article (last visited 12-5-05 NVS)

December 5, 2005 | Permalink | Comments (0) | TrackBack (0)

Brad Pitt Petitions to Adopt Jolie's Children

"Actor Brad Pitt has filed legal papers in Los Angeles to adopt the children of actress Angelina Jolie, news media reported on Friday, adding that this might be a step leading to the couple's marrying.

Life & Style magazine said Pitt, 41, has filed to become the legal adopted father of Jolie's two children, Maddox, 4, and Zahara, 10 months. They will go by the last name of Jolie-Pitt when the legal steps are completed, the magazine said, quoting a representative for Pitt.

Jolie, 30, adopted Maddox from Cambodia and Zahara from Ethiopia.

"The ink isn't even dry on the adoption papers, and Brad is literally jumping for joy," the magazine quoted an unnamed "insider" as saying. "He's calling friends and telling them the great news."

Meanwhile, In Touch magazine reported that the couple is expected to marry soon and have already drawn up a prenuptial agreement, primarily to benefit the two children." By Reuters Link to Article (last visited 12-4-05 NVS)

December 5, 2005 in Adoption | Permalink | Comments (0) | TrackBack (0)

Sunday, December 4, 2005

California Court Rules Doctors Religious Beliefs Are Basis to Refuse Artificial Insemination of Unmarried Female

A California appeals court has ruled that two fertility doctors had the right to refuse to artificially inseminate a lesbian based on her marital status because it would have violated their religious beliefs. Friday's ruling reversed a lower court decision that Drs. Christine Brody and Douglas Fenton could not use religion as a defense against a lawsuit filed by Guadalupe Benitez. The panel found that the doctors were within their rights because they based their decision on Benitez's unmarried status and that discrimination based on marital status is not prohibited by state law. Source: SFGate.com. For more information, please click here (last visited December 4, 2005, reo).

The case is N. Coast Women's Care Med. Group v. Superior Court, 2005 Cal. App. LEXIS 1860 (December 2, 2005)
Opinion on the web at  http://www.courtinfo.ca.gov/opinions/documents/D045438.PDF (last visited December 4, 2005 bgf) The court's of appeals decision reversed the trial court's grant of summary judgment, holding that "We conclude the summary adjudication was erroneous because evidence presented by defendants in opposition to [plaintiff's] motion raises a triable issue of fact as to whether Dr. Brody's and Dr. Fenton's religiously-based refusal to perform IUI for [plaintiff] was based on her marital status and not her sexual orientation, and marital status discrimination was not prohibited by the Unruh Act [California Civil Rights Act] when defendants' alleged violation of the Act occurred."

December 4, 2005 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Texas Commission Announces Free Protective Order Kit for Vietnamese Domestic Violence Victims

The Supreme Court of Texas and the Texas Access to Justice Commission announced on Friday the availability of a free, self-help Vietnamese Protective Order Kit, which will enable Vietnamese-speaking victims of domestic violence to obtain court-ordered protection on their own. The Protective Order Kit was released in English and Spanish earlier this year. The free Protective Order Kit is designed to help low-income abuse victims break the cycle of violence through legal means. Source: Texas Access to Justice Commission, yahoo.com. For more information, please click here (last visited December 4, 2005, reo).

December 4, 2005 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Belgium Moving to Allow Gay Adoptions

Belgium, where same-sex marriage is already legal, is on its way to approving adoption by homosexual couples. The lower house of parliament approved the measure 77-62, the BBC reported. It must also pass the upper house before it can take effect. Sweden and Spain are the only European countries where adoption by same-sex couples is legal. Source:  UP, sciencedaily.com. For more information, please click here (last visited December 4, 2005, reo).

December 4, 2005 in Adoption | Permalink | Comments (0) | TrackBack (0)

Islamic Council of Muslim Theologians Condemns South Africa’s Constitutional Court Ruling Favoring Gay Marriage

The Council of Muslim Theologians has condemned a ruling by South Africa's Consitutional Court that paves the way for same-sex marriage in the country saying it would damage the moral fabric of society. The KwaZulu-Natal branch of the group issued a harshly worded statement calling on the South African Parliament to work to overcome the court's ruling. Same sex marriages are a violation of the limits prescribed by the Almighty, a reversal of the natural order, a moral disorder and a crime against humanity," the statement reads. "No person is born homosexual, just like no one is born a thief, a liar or murderer. People acquire these evil habits because of widespread nude and shameless social interaction." Source: Sayapolis News, gayapolis.com. For more information, please click here (last visited December 4, 2005, reo).

December 4, 2005 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Pope Emphasizes Opposition to “New Forms of Marriage”

Benedict XVI has emphasized his opposition to the proposal for "new forms of marriage that are extraneous to local cultures and that alter the particular nature of this institution." This new condemnation by the Pope was made in the speech given to the presidents of the Latin American Episcopal Commissions for the family and for life. Source: AGIonline, agi.it.com  For more information, please click here (last visited December 4, 2005, reo).

December 4, 2005 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)