Sunday, April 30, 2006
Case Law Development: No Credits Against Child Support Arrearages for Social Security Retirement Benefits Paid to Children
The Court of Appeals of Hawai'i provides a thorough review of caselaw from across the United States regarding credits toward child support for social security dependent payments. The court reversed a trial court that had applied the social security retirement beneficiary payments paid to Father's childrens as a credit against Father's child support arrearages that had accrued before his retirement.
The court noted the majority of jurisdictions that hold that an obligor's social security disability and retirement benefits paid to dependents both may be credited against contemporaneous child support obligations. (See Family Law Prof blog postings of January 8 and November 18). The question in this case, however, was whether those payments could be used to satisfy arrearages. Reviewing decisions of other states on this question, the court agreed with the majority approach and declined to allow a credit to be applied to arrearages. The court noted that "the Social Security disability payments belong to the children. To allow any part of that money to be credited towards the obligor's arrearage which was due prior to his or her date of disability would be, in essence, requiring the children to purge the obligor of contempt."
Clark v. Clark, 2006 Haw. App. LEXIS 156 (April 19, 2006)
Opinion on the web (last visited April 29, 2006 bgf)
Case Law Development: Marital Communications Privilege Protects Even Marriages With Ongoing Domestic Abuse
The US District Court for the Middle District of Georgia explored the outer limits of the marital communication privilege in a criminal case in which the government sought the testimony of the defendant's wife. The 11th Circuit has held the marital communications privilege is not available when a married couple was permanently separated at the time of communication. However in this case, husband and wife were still married and living together. The government argued, however, that husband's urging that wife get a divorce and his severely and continual emotional, physical and sexual abuse of his wife should, as a matter of public policy, exempt the marriage from the protections of the privilege.
The district court recognized that there was authority for an exception to the privilege when a spouse commits abuse and then invokes the privilege to escape liability for that abuse, however here the criminal charges did not relate to the
domestic abuse. The court also noted the "dual participant" exception in which the privilege does not apply when both spouses are engaged in criminal activity. However, the court found no authority to support the government's requested exception, noting that, "For better or worse, it appears that abusive husbands who happen to be engaged in individual criminal activity still enjoy the marital communications privilege as it relates to those other activities in the vast majority of courts in the nation."
The district court concluded that "The Government's public policy argument has a certain appeal- that spouses engaged in criminal activities should not be able to use the marital communications privilege to block their innocent spouses from testifying to these crimes... As other courts have recognized, and this Court finds persuasive, the judiciary should be extremely hesitant to play any role in determining which marriages are worth protecting. ... The Court recognizes the wisdom in the Eleventh Circuit's differentiation between permanent separations and valid marriages... However, if any court is going to further weaken the marital communications privilege to include a "single participation exception," that court should be the Eleventh Circuit."
The court then reviewed each piece of requested testimony and determined that the privilege did not apply to most of the requested testimony as it was either an observation or was not made in circumstances indicating it was confidential.
United States v. Harrison, 2006 U.S. Dist. LEXIS 23556 (April 26, 2006) bgf
Kentucky Inspector General Investigating whether Children Inappropriately Removed from Families to Increase State Foster-Care Adoptions and Federal Financial Bonuses
The Kentucky Office of Inspector General is investigating whether children whose mothers are domestic-violence victims, and others are being inappropriately removed from their families to increase state foster-care adoptions and federal financial bonuses. The matter is also under review by the Cabinet for Health and Family Services, by various grass-roots organizations and, most recently, by Gov. Ernie Fletcher. Source. Valarie Honeycutt Spears, Louisville Herald-Leader, Kentucky.com. To read the complete story, please click here (last visited April 30, 2006, reo).
It is reported that the Catholic Charities of Boston is ending its adoption program in Massachusetts for good. Its says that it will not renew a contract with the state social services department because it would be required to follow state anti-discrimination laws that says the agency could not refuse to work with same-sex couples. Source. Eyewitnessnewstv.com. To read the complete story, please click here (last visited April 30, 2006, reo).
Israel’s National Insurance Institute Allegedly Secretly Canceling Child Support Debts for Husbands Who Refuse to Give Wives a Divorce
It is claimed that Israel's National Insurance Institute (NII) is secretly canceling child support debts, at the request of the rabbinic courts administration, in cases where husbands are refusing to agree to a divorce sought by their wives. Proponents of the procedure claim that the procedure encourages men who will not agree to a divorce to change their minds. Opponents charge that the system amounts to a surrender to a husband’s extortion. Under Jewish law, only husbands can grant their wives a divorce, or get. Source. Ruth Sinai, Haaretz Corresondent, haaretzdaily.com To read the complete story, please click here (last visited April 30, 2006, reo).
Missouri child support workers are beginning a review of about 400 files in St. Louis to determine if an error in the amount owed by Herbert L. Chalmers, who murdered four women last week before taking his own life, is more widespread. Missouri officials acknowledged that a data entry error led to a mistake in calculating Chambers’ child support obligation, however, they said, he had many opportunities to correct the error. Source. Robert Patrick, St. Louis Post-Dispatch, stltoday.com. To read the complete story, please click here (last visited April 30, 2006, reo).
Commentary: “Catch-22 Condoms: If Catholics Use them, They’re Sinning, If They Don’t, They could Die”
Regular readers of this Blog may find Toronto Sun columnist Marianne Meed Ward’s critical overview the Catholic Church’s policy regarding the use of condoms of interest. She writes that “The explosion of AIDS, particularly in Africa where social mores tolerate male promiscuity but demand female availability to husbands. It's a death sentence for monogamous wives, who are infected by their husbands. Add to that the special burden of being a devout Catholic wife: You're not allowed to use a condom to deter an AIDS infection, because the by-product of condoms is pregnancy prevention. And pregnancy prevention is considered "intrinsically evil" according to the Catholic catechism.” She finds that there is dissent on the application of this policy coming from various high-ranking Church officials. Source. Marianne Meed Ward, Torontosun.com. To read Ms. Ward’s commentary, please click here (last visited April 30, 2006, reo).
This case rose from alleged sexual abuse suffered by a minor child between November 1, 1995, and December 31, 1997. On February 2, 2003, the child turned eighteen and in August 2003 she reported the alleged abuse to the Sheriff’s Department. The action was dismissed by the trial judge because the alleged sexual abuse had occurred more than three years before the criminal information was filed on October 8, 2004, and because Ark. Code Ann. § 5-1-109(h)(8) (Supp. 2003) no longer provided that the statute of limitations on a violation of section 5-14-108 commenced to run on the victim’s eighteenth birthday.
The Arkansas Supreme Court reversed the trial judge’s ruling and reasoned that because the alleged criminal acts occurred between 1995 and 1997 when section 5-14-108 applied, the criminal action could be filed within three years of the act or acts, or within three years of the alleged victim’s birthday on February 2, 2003, when she turned eighteen. The action was filed October 8, 2004, well within three years from the alleged victim’s birthday. The slip opinion of the Arkansas Supreme Court in PDF format can be found by clicking here (last visited April 30, 2006, reo).
Saturday, April 29, 2006
The Louisiana State Senate approved a near-total ban on abortion on Wednesday of this week, allowing abortion only to save a woman's life. A person who performs an abortion in violation of this statute could be fined from $10,000 to $100,000, be sentenced to a jail term of one to ten years, or a combination of a fine and jail time. The ban is a “trigger law,” meaning it will only go into effect if Roe v. Wade is overturned. Governor Kathleen Blanco has told reporters she would sign “some kind of abortion bill,” reports the Times-Picayune. Source. Feminist Daily News Wire, feminist.org. You can find the complete story by clicking here (last visited April 29, 2006, reo).
California lawmakers on Tuesday defeated legislation that would have informed women considering an abortion that a fetus feels intense pain during the abortion procedure. The measure would have also provided women with the option of giving the fetus anesthesia beforehand to lessen the pain. Source. Steven Ertelt, lifenews.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
A transsexual who was born a boy was awarded a state pension from the women’s retirement age of 60, rather than the men’s retirement age of 65. The claimant was born in 1942 and later had gender dysphoria diagnosed, underwent sex-change surgery in 2001 and shortly afterwards claimed a state pension. The British Department for Work and Pensions had refused to pay her a pension on the ground that she was still officially a man, and that she was not yet 65. Source. Anthony Browne, Timesonline.com. You can find the complete story by clicking here (last visited April 29, 2006, reo). The Opinion of the European Supreme Court can be found by clicking here (last visited April 29, 2006, reo).
In Iowa, the DesMoines Register reports that seventeen Republican state lawmakers have asked a judge to let them join a lawsuit over the right of Iowa gays and lesbians to marry. The 11 senators and six representatives filed affidavits in a Polk County, Iowa contending that they have an interest in any proposed change in "fundamental public policies" set by law. They contend that their interest as lawmakers "in establishing social policy, controlling the budget in response to current social policy and maintaining the consistency of Iowa's laws with declared social policy" would be impeded by any adverse ruling. Source. Jeff Eckhoff, DesMoines Register, desmoinesregister.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Regular readers of this Blog may find the article written by Monisha Bansal of the CNSN News Staff of interest. She reviews the current status of the proposed federal constitutional marriage amendment and forecasts that a vote on it is expected in the United States Senate June 6. She also provides useful background about the Federal Marriage Amendment and the technical requirements for ratification. Source. Monisha Bansal, CNSNews.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Conference of Ministers of Evangelical Lutheran Church of Iceland in Heated Debate over Allowing Homosexual Couples to Marry
According to the Icelandic National Broadcasting Service, RÚV, a "heated debate" took place on Thursday of this week when a group of ministers of the Evangelical Lutheran Church of Iceland challenged their colleagues to permit the Church to marry homosexual couples. It is reported that a committee is drafting a resolution that includes language that would permit ministers to bless the relationships of homosexuals. Some ministers want to go even further and marry homosexual couples. The Bishop of Iceland said that many wedding ceremonies had become "phony" with no connection to the true values and solemnest of matrimony. Source. Icelandreview.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
Nobody under age 16 will be able to marry in Kansas under legislation worked out by that state’s House and Senate negotiators this past Wednesday. The legislation was triggered by a case where a 22-year-old man got a 14-year-old girl pregnant and married her in that state. Under the legislation, persons 16 and 17 can marry if they have parental or judicial permission. Source. The Wichita Eagle, AP, kansas.com. You can find the complete story by clicking here (last visited April 29, 2006, reo).
In a study released by the Institute for Marriage and Public Policy, estimates of the percentage of gays who marry where it is legal to do so vary. For example, it estimated that 14.3 percent of the gays and lesbians in the western province of British Columbia had married while 3 percent and 5 percent of Belgium's gays and lesbians married. It also estimated that from 5.9 percent to 16.7 percent of those in Massachusetts had married. Source. David Crary, AP, Washingtonpost.com. You can find the complete story by clicking here (last visited April 29, 2006, reo). You can find the Institute site by clicking here (last visited April 29, 2006, reo).
Friday, April 28, 2006
Case Law Development: What are Misdemeanor Crimes of Domestic Violence for Purposes of Federal Firearms Statute?
The United States Tenth Circuit Court of Appeals joins many other circuits in its interpretation of 18 USC 921(a)(33)(A), which makes it unlawful for any person previously convicted of a "misdemeanor crime of domestic violence" to possess a firearm. The court upheld application of the statute to an individual convicted of criminal assault, which does not require proof of a domestic relationship. The court concluded that "While the [statute's] definition of a "misdemeanor crime of domestic violence" is not a model of clarity or preciseness, we agree with our sister circuits that neither the syntax nor the grammar of the statute require the predicate misdemeanor offense to have a domestic relationship element. We agree with the First, Eighth, and Ninth Circuits that Congress's use of the singular noun "element" is indicative that the misdemeanor offense only requires one element, namely, the use of force."
United States v. Heckenliable, 2006 U.S. App. LEXIS 10475 (April 27, 2006) bgf
The Michigan Supreme Court has held that the preemption provision of the Employee Retirement Income Security Act (ERISA) does not preclude a named beneficiary from waiving the proceeds from a life insurance policy. The court concluded that while a plan administrator is required by ERISA to distribute plan proceeds to the named beneficiary, the named beneficiary can then be found to have waived the right to retain those proceeds. In this case, the Wife who had waived her right to life insurance proceeds could not retain those proceeds that had been delivered to her by the Plan Administrator of an employer-provided life insurance policy when Husband had failed to change the name of the beneficiary prior to his death.
Sweebe v Sweebe, 2006 Mich. LEXIS 690 (April 26, 2006)
Opinion on the web (last visited April 28, 2006 bgf
Thanks to Jeanne Hannah's Updates in Michigan Family Law Blog for the case.
The Georgia Supreme Court considered the retroactive application of family law rulings in a case in which the question was whether alimony obligations survive the death of the obligor parent. The court affirmed the trial court's decision that husband's estate could not be held in contempt for failing to continue to pay the alimony obligation. The trial court had concluded that the normal rule that death of the obligor terminates the agreement should apply because the settlement agreement's provision that Wife was entitled to alimony until she remarried or died did not evidence a manifest intention to reverse that rule.
The issue for the Supreme Court was whether that rule, drawn from a 1981 Georgia Supreme Court decision, should be applied retroactively to the couples' incorporated settlement agreement entered in 1975. The court concluded that it would apply the general rule that "a judicial decision announcing a new rule is retroactive unless the decision itself expressly makes it a matter of pure or selective prospectivity or, after examining whether retroactive application would adversely affect operation of the new rule and weighing the inequity imposed by retroactive application, we subsequently conclude application of the new rule would cause unjust results to those who justifiably relied on the former state of the law." Applying that rule to this case, the court noted that there had been conflicting authority on the issue of whether alimony terminates upon death of the obligor. The authority wife argued supported her position was a narrowly drawn case and a plurality opinion which set itself out as an exception to the general rule that a recipient spouse's claim for alimony terminated upon the death of the obligor spouse. A subsequent decision that overruled that authority did not indicate that it should be applied prospectivity only. Accordingly the court concluded that retroactive application would not result in "substantial inequitable results that amounts to the injustice or hardship that would authorize a holding of nonretroactivity."
Findley v. Findley, 2006 Ga. LEXIS 254 (April 25, 2006)
Opinion on the web (last visited April 28, 2006 bgf)
Case Law Development: Achieving a Clean Break May Justify Unequal Distribution of Property in Divorce
The Supreme Court of Georgia affirms a trial court's division of marital property in such a way that wife (who had moved to New Zealand) was awarded the real property and personalty in New Zealand and Husband was awarded the real property, personalty, and business in Georgia. This division resulted in an unequal distribution of assets, but the court held that equitable division did not require equality. The fact that the division achieved a "rough parity" between the parties, along with a justification of attempting to leave the parties as entangled as little as possible, supported the award.
Waters v. Waters, 2006 Ga. LEXIS 243 (April 25, 2006)
Opinion on the web (last visited April 28, 2006 bgf)