Tuesday, February 28, 2006
Case Law Development: Court May Assert Jurisdiction to Award Child Support for Disabled Child Over 18 Years Old
The Ohio Court of Appeals resolved a jurisdictional challenge to a trial court's child support order in a case in which Mother sued for divorce and child support for the couple's child who, although over 18 years of age, had Downs Syndrome and was unable to be self-supporting. Father argued that because the court had not asserted jurisdiction over the child while still under age 18, the court lacked jurisdiction to award child support.
The appellate court upheld the trial court's child support order, holding that the child, "as one undisputedly unable to support himself due to his mental retardation, was properly found by the trial court as never having reached the "age of majority" as defined in Ohio statutes. The court interprets that statute in light of common law precedent going back to Kent Commentaries on American Law as establishing "the notion that mentally or physically disabled children should be excepted from a strictly age-based emancipation rule."
Wiczynski v. Wiczynski, 2006 Ohio 867; 2006 Ohio App. LEXIS 773 (February 24, 2006)
In the present case, although the record is clear that the child and her parents do not have significant contacts with the state of Florida, nevertheless, pursuant to [*11] the analysis applied in Yurgel and Lamon, Florida is the state where the initial custody order was entered at a time when all parties resided in the state; it was the state where the custody modification was entered, and where the modification order was reversed. Moreover, the only reason the child was in the state of The Florida Court of Appeals takes a march through the UCCJEA in a case in whioh Mother lived in Massachusetts, Father and Child lived in Tennessee, but the original custody order was rendered in Florida and Florida had retained jurisdiction over the action. The case provides a relatively clear factual pattern for teaching application of the UCCJEA provisions regarding competing jurisdictional bases.
The sequence of events in the case are:
2000 - Florida - judgment of dissolution gave Wife primary residential custody of Child. Father files a petition for modification of custody and to relocate Child with him to Tennessee.
2002 - Florida court grants Mother permission to move with the child to Massachusetts.
2004 - Florida grants Father's petition for modification of custody. Mother appeals but sends child to live with Father in Tennessee.
2005 - Florida Court of Appeals reverses judgment of modification. Father responds by filing suit in Tennessee for order granting him custody. Father argues that Tennessee has become the child's home state because she had been residing with him there for the prior year, during the pendency of the appeal in Florida.
The story from there on is a series of conflicting orders in both the Tennessee and Florida trial courts.
The Florida Court of Appeals sorts out the matter by noting that, while the Tennessee court was looking to provisions of the UCCJEA providing jurisdiction to modify a custody determination based on Tennessee having become the child's home state, the trial court had overlooked the enforcement provisions of the act providing that, because Florida had retained continuing jurisdiction to enforce its orders, Tennessee could not exercise jurisdiction to modify the custody order unless Florida had terminated or stayed its own proceeding.
Staats v. McKinnon, 2006 Fla. App. LEXIS 2677 (February 27, 2006)
Monday, February 27, 2006
Case Law Development: Threats of Remote Harm Insufficient to Support Domestic Violence Restraining Order
The North Dakota Supreme Court has clarified the standard for issuance of a domestic violence restraining order in a case in which Husband said he would burn the family home down if he did not get to keep it in a divorce action. With no physical violence involved in the incident or a past pattern of physical violence, the court found that this threat did not create a fear of an "imminent threat," which is what is required by the statute. Particularly since Wife stayed in the home after Husband made the threat and did not attempt to leave, the court found there was inadequate evidence of fear of imminent harm. The court concluded that the trial court had issued the injunction to prevent a possibility of domestic violence rather than an imminent threat and remote possibilities are insufficient to sustain an order.
Ficklin v. Ficklin, 2006 ND 40 (February 23, 2006)
Opinion on the web (Last visited February 26, 2006 bgf)
The Family Law Education Reform Project is co-sponsored by the Association of Family and Conciliation Courts (AFCC) and Hofstra Law School Center for Children, Families and the Law. The final report has been endorsed by organizations including the National Council of Juvenile and Family Court Judges, the Section of Dispute Resolution of the American Bar Association, the International Academy of Collaborative Professionals. Link to Draft Report (last visited 2-26-06 NVS)
"AFCC is an interdisciplinary and international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict." AFCC's 43rd Annual Conference entitled, "Juggling conflicts, Crises and Clients in Family Court" will be held Mary 31- June 3, 2006, in Florida. "The AFCC Annual Conference brings together innovators, thinkers and reformers. You'll interact with leading judges, mediators, lawyers, parenting coordinators, custody evaluators, researchers and others." By AFCC Link to Conference Brochure (last visited 2-26-06 NVS)
"The AFCC Innovation Mini-Grant program was created in 2005 to assist in the development or expansion of imaginative educational programs designed to improve the lives of children of separating or divorcing parents. This year, $5,000 will be awarded to an organization to provide a two-day parenting coordination training, after which trainees will provide pro bono services." By AFCC Link to Application (last visited 2-26-06 NVS)
"By the year 2015, for the first time in the history of Canadian population statistics, there will be more people over the age of 65 than under the age of 15. Even the normally staid national bureau of record-keeping, Statistics Canada, declared, "This would be an unprecedented situation in Canada," when it announced late last year the critical turning point in a population projections report.
These projections, which were shaped by various growth scenarios, predicted fertility rates ranging from a low of 1.3 babies per woman to a high of 1.7 babies per woman. That puts Canada in line with the growing roster of nations beset by declining fertility: France, 1.9; Australia, 1.7; Germany, 1.3; Italy and Spain, 1.2, Japan, 1.2; Korea, 1.1. Only the United States is conspicuous among its industrialized neighbours for a fertility rate that continues to remain above what is known as replacement level, with 2.01 babies per woman. The main reason for this difference seems to be in the fertility rate among women aged 24-29, which has been cut almost in half in Canada and many of the other nations with declining fertility, but which remains virtually unchanged in the U.S., where more traditional values prevail, says demographer Alain Belanger, the demographer behind Statistics Canada's latest projections." By Anne Marie Owens, National Post, canada.com Link to Article (last visited 2-26-06 NVS)
Sunday, February 26, 2006
The United States Supreme Court will hear arguments Tuesday in the legal fight over the fortune of oil entrepreneur J. Howard Marshall II between the one-time Playboy Playmate of the Year, Vickie Lynn Marshall, a/k/a Anna Nicole Smith, and 67-year-old E. Pierce Marshall, the deceased’s billionaire's youngest son. Smith and Marshall married in 1994 in Houston when she was 26 and he was 89. Smith died just 14 months later. The narrow question before the court is whether a federal court has subject matter jurisdiction to hear a dispute involving state probate matters. (reo) You may download Petitioner's Brief in Case 04-1544_Here.pdf You may download Respondent's Brief in Case 041544_Here.pdf
A New Jersey appeals court ruled Thursday that a woman who bore two sons to a multi-millionaire does not have a palimony claim to his estate beyond a $100,000 bequest. She was also permitted to occupy a house owned by the multi-millionaire until their surviving son turns 25. Their son received $1.5 million and the house.
The deceased left an estate valued between $21 and $36 million when he died in 2000. He had been married three times and at the time of his death, had been married to his third wife for about thirty years. Although separated from his third wife for many years, the deceased had indicated prior to his death that he did not wish to go through a divorce because it would result in his wife receiving one-half of their assets, which he believed would disrupt his business and real estate interests. The deceased met his mistress in January 1990 and two children were later born of the relationship. Their relationship continued for at least ten years.
The Court of Appeals said that the “critical issues to be determined in the palimony trial were whether plaintiff and [the deceased] lived together in a marital type relationship and whether [the deceased], either expressly or impliedly,” promised the mistress he would provide support for her for the rest of her life. If those questions were answered in the affirmative, then, said the court, “it would then be necessary to determine whether plaintiff gave adequate consideration in exchange for the promise and the amount required in a present value lump sum payment” to satisfy the deceased’s obligation.
In rejecting the palimony claim, the court initially summarized the law followed by New Jersey courts: “The fundamental principle upon which courts decide palimony cases is that “the formation of a marital-type relationship between unmarried persons may, legitimately and enforceably, rest upon a promise by one to support the other.” In re Estate of Roccamonte, 174 N.J. 381, 392 (2002). “[T]he right to support in that situation does not derive from the relationship itself but rather is a right created by contract. A palimony contract may be oral and may be either express or implied.” It said that “A critical element of a palimony claim is cohabitation for a significant period of time” and observed that another panel of the court had recently reiterated that failure to prove cohabitation in a marital-type relationship is fatal to a palimony claim.
The apparent key to court rejecting the palimony claim rested upon the decision by the deceased to insist upon separate households for himself and plaintiff. The deceased and the mistress “had a romantic relationship,” said the court, however, the deceased “continued, by choice, not necessity, to live separately and spend some limited time with her occasionally at a home he provided for her, at one of his homes, or on an occasional trip.” The court emphasized that “a palimony cause of action continues to require actual cohabitation in a marital-like relationship. That continues to require living together in a household or households under the same roof or roofs on a regular basis as dictated by the circumstances.” McDonald v. Mavety, February 23, 2006 (reo). Download here the slip opinion, McDonald v. Mavety.pdf
Saturday, February 25, 2006
The Utah Supreme Court Friday found that Judge Walter Steed flouted state law by engaging in a plural relationship with three women and ordered him to step down from office. In an opinion authored by Associate Chief Justice Michael J. Wilkins, the court affirmed the earlier decision of the Utah Judicial Conduct Commission, which had said that judges must comply with laws they are expected to uphold.
Associate Chief Justice Wilkins said that Steed brought disrepute to the office by violating Utah's bigamy statute during the 25 years he served on the bench. He wrote that “In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective. A judge ignores the clearly stated criminal prohibitions of the law at his or her peril. . . . . Civil disobedience carries consequences for a judge that may not be applicable to other citizens. The dignity and respect accorded the judiciary is a necessary element of the rule of law. When the law is violated or ignored by those charged by society with the fair and impartial enforcement of the law, the stability of our society is placed at undue risk.” News Source: Brooke Adams, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited February 25, 2006, reo). Download Utah ruling.pdf
With the passage Friday of an abortion bill in the South Dakota State Senate 23-12, the stage is set for a direct attack on Roe v. Wade. The bill outlaws abortion and makes no exceptions for a pregnancy caused by incest or rape. The only exception is if the abortion was necessary to save a pregnant woman's life. Doctors performing abortions could receive up to five years in prison. The bill is expected to pass the House again and then go to Governor Mike Rounds' desk. Source: AP, MSNBC.msn.com. A video interview conducted by MSNBC with South Dakota Governor Mike Rounds following passage of this bill may be found here (last visited February 25, 2006, reo). A copy of the Enrolled Bill may be found here.
According to Ms. Magazine, Afghan women would be forbidden to travel without a male chaperone if a male member of the Afghanistan parliament has his way. It reports that Al-Haji Abdul Jabbar Shalgarai has called the participation of two women members of the Afghanistan parliament in a major donor’s conference “un-Islamic” and a violation of the law because they traveled without their husbands. Shalgarai said they had violated sharia law, which allows women to travel for more than three days only if they are accompanied by a male relative. Although the Afghan Constitution guarantees woman’s rights, a constitutional provision states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” Women’s and human rights advocates have raised concerns about this provision and other language that leaves issues not addressed in the constitution or by law to adjudication by religious laws. Source: Ms. Magazine, msmagazine.com. For the complete story, please click here (last visited February 25, 2006, reo).
France’s highest court ruled Friday that both partners in a homosexual relationship can exercise parental authority over a child born to one of them.The decision has reopened debate over gay marriage and the adoption of children by same-sex couples, which remains illegal in that country. The decision also applies to male homosexual couples, where one of the partners is the biological father of a child. The court wrote that “The civil code is not opposed to a mother, as sole holder of the parental authority, delegating all or part of the duties to the woman with whom she lives in a stable and continuous union.” Source: Reuters.co.uk. For the complete story, please click here (last visited February 25, 2006, reo).
Friday, February 24, 2006
The Massachusetts Supreme Court holds that a trial court must respect the custody determination of a foreign state so long as that judgment is procedurally comparable to a domestic judgment. The child in this action was born in Trinidad, West Indies and was residing in Boston with Mother. Father, who lives in Trinidad, filed a petition in the Massachusetts court to enforce a Trinidad consent decree that awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. The Massachusetts Supreme Court affirmed the trial judge's order for enforcement of the Trinidad consent decree.
The court concluded that both under Massachusetts statutes regarding enforcement of foreign custody orders and under principles of comity, the court was required to respect the foreign order because it was in "substantial conformity" with Massachusetts law. The "substantial conformity" test, requires proof that the foreign court had jurisdiction over the parties and over the subject matter; applied procedural and substantive law reasonably comparable to Massachusetts law; and was based on a determination of the best interests of the child. Finding that the Trinidad court met these requirements, the court could not look further to examine the substance of the underlying order.
Khan v. Saminni, 2006 Mass. LEXIS 33 (February 15, 2006)
Opinion on the web (last visited February 23, 2006 bgf)
Case Law Development: New Hampshire Husband's Divorce of Wife under Islamic Law Did Not Deprive State Court of Jurisdiction to Grant Divorce
The New Hampshire Supreme Court affirmed the trial court's divorce in this action in which Husband claimed he had already divorced his wife under his country's law. The couple were married in Lebanon in 1986 and lived for considerable periods in both the United States and the Middle East during their marriage. Husband claims that on the day before Wife filed for divorce in New Hampshire, he initiated a divorce under Islamic law by declaring "I divorce you" three times in succession in the presence of the petitioner and that he telephoned an attorney in Lebanon on the same day and declared, with two witnesses listening, that he had divorced his wife. Thus, he argued the New Hampshire court lacked jurisdiction.
New Hampshire statutes provide that a “divorce obtained in another jurisdiction shall be of no force or effect in this state . . . if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court of appeals concluded that this statute applied to foreign divorces as well and that, because both parties were domiciled in New Hampshire when the action was commenced, the trial court did not err in refusing to dismiss the divorce petition for lack of subject matter jurisdiction. The court likewise rejected Husband’s argument that dismissal was required by principles of comity, noting that comity is a discretionary doctrine and that, given that the parties and their children had been domiciled in New Hampshire for at least the past three years and the considerable burdens that Wife would have to bear in going to Lebanon to obtain a divorce, public policy dictated that the New Hampshire court retain jurisdiction.
In re Ramadan, 2006 N.H. LEXIS 15 (February 14, 2006)
Opinion on the web (last visited February 23, 2006 bgf)
Thursday, February 23, 2006
"A woman accused of molesting a 15-year-old boy she later married gave birth to the couple's child over the weekend, the woman's lawyer said Monday. Lisa Clark, 37, gave birth to a 7-pound, 9-ounce boy Saturday, Daniel Sammons said. The baby could be put in state custody unless Clark can arrange the necessary paperwork for a friend to take temporary custody before Clark is discharged from the hospital and returned to jail, where she will be held without bond, Sammons said." USA Today, AP Link to Article (last visited 2-22-06 NVS)
"Two Queens brothers called in an airport bomb threat in a failed attempt to keep their sister from leaving town to get out of an arranged marriage, authorities said. Amandeep Singh, 24, and Gurpreet Singh, 26, were arrested Thursday on charges they phoned MacArthur Airport in Islip on Jan. 17 and gave a bogus tip that terrorists were planning to bomb a plane. Suffolk County police said the men were trying to stop their sister from flying to Atlanta to be with her boyfriend, ruining plans the family had made for her to marry a doctor in India." AP New York, Newsday.com Link to Article (last visited 2-22-06 NVS)
Sen. Jay O'Brien of Virginia is proposing "a bill that would allow judges to include "virtual visitation" — e-mail, instant messaging, etc. — in child-custody proceedings. "Suppose there's a divorce with joint custody, but the wife has primary custody because the children live with her," he said. "It's reasonable to think the dad could communicate with his children when he doesn't see them. This gives him the legal authority to do that."" By Bonnie Hobbs, The Connection Link to Article (last visited 2-22-06 NVS)
Marriage equality advocates in Portugal submitted a petition to Parliament on Thursday seeking civil marriage rights for same-sex couples. The petition bears 5,000 signatures was delivered to lawmakers in Lisbon, according to an Agence France-Press news report. Petitions with at least 4,000 valid signatures can influence the country's laws, as parliamentarians must consider such initiatives and decide whether or not to put the issues to a debate. Earlier this month two lesbians made headlines when they tried to register their marriage with civil authorities. The failed attempt helped mobilize gay rights activists, who claim that the marriage law is inconsistent with the Constitution, which was revised in 2004 to prohibit discrimination based on sexual orientation. By PlanetOut Network Link to Article (last visited 2-22-06 NVS)
Wednesday, February 22, 2006
Case Law Development: New York’s Highest Court Rules Alleged Victims of Pedophile Priests Waited Too Long to File Complaints
On Tuesday the New York Court of Appeals ruled in Zupano v. Quinn and Estate of Brendan Boyle, et al., v. Smith, that the Plaintiffs in these two sexual abuse cases were barred by the state’s statute of limitations from pursuing their claims against the Roman Catholic Diocese of Brooklyn. The plaintiffs had filed a $300 million lawsuit alleging that they were victims of 13 pedophile priests in Brooklyn and Queens. The court ruled that the alleged victims had waited too long to seek justice.
In Zupano the plaintiff argued that he suffered abuse from 1963 to 1970 that left him mentally incapable of bringing a suit before the statute of limitations expired. In Brendan the 42 plaintiffs argued that abuse they suffered abuse from 1960 to 1985 and contended that the statute of limitations should be equitably tolled.
In rejecting the plaintiffs claims, Justice Ciparick wrote that “each plaintiff was aware of the sexual abuse he or she suffered at the hands of defendant priests. Certainly they had sufficient knowledge to bring an intentional tort cause of action against the individual priests. Plaintiffs were likewise aware that the priests were employees of the Dioceses and could have brought actions against the Dioceses, or at least investigated whether a basis for such actions existed.” Justice Ciparick also observed that the plaintiffs failed to “allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information.”
Plaintiff Zumpano alone contended that he suffered from a mental disability as a direct result of defendants' abuse and that he was consequently rendered incapable of protecting his legal rights. In rejecting his claim, Justice Cirparick wrote that “This argument also lacks merit as he fails to establish a continuing disability.” The Court said that its holding was in keeping with those in several other jurisdictions addressing similar issues including Pennsylvania, Michigan, California, and Maryland. Download here the slip opinion of the New_York_Court_of_Appeals_Statute_of_Limitations_decision involving child_abuse.pdf (reo)