Thursday, August 31, 2006
"A rape victim who spotted her attacker on the television show "Blind Date" got a $20 million (â‚¬15.6 million) civil court judgment, although she will likely never see a dime from her imprisoned attacker. . . . The Ventura mother of a now-12-year-old girl later told police she recognized her attacker on TV and videotaped the "Blind Date" appearance and turned it over to detectives. Her attacker had been sought since Sept. 6, 2003.In a civil suit claiming emotional distress, among other things, Superior Court Judge Vincent O'Neill this month awarded her $20 million (â‚¬15.6 million) in damages." AP, FindLaw Link to Article (last visited 9-1-06 NVS)
"North Dakota's general election in November will probably include a ballot on a Shared Parenting Initiative, a measure that would make joint child custody the default option in cases of divorce or separation unless one parent was proven to be unfit. A petition for SPI's inclusion has the required signatures and is currently being verified. But the fact that both state and federal officials have come out against the SPI may cause its defeat. . . . The proximate cause of the SPI's reduced prospects was an op-ed in the Herald by Carol Olson, executive director of the North Dakota Department of Human Services. Olson stated, "If the measures pass, the state could not certify that its programs meet federal requirements, and North Dakota would lose about $71 million in federal money for those programs during the 2007-2009 biennium." (The Initiative includes more than one measure; the support regulations basing support on a child's needs are particularly in dispute.)" By Wendy McElroy, FoxNews.com Link to Article (last visted 8-31-06 NVS)
"A judge has ordered the city to stop illegally denying aid to immigrant women and children who have been abused, according to a media report. Judge Jed Rakoff ruled Monday that city policymakers were long aware of systemic problems with computer software and training, and they moved to fix them only after a group of battered women filed a lawsuit claiming that official failure had forced women to choose between staying safe and getting needed aid, despite government policies aimed at supporting them, The New York Times reported. . . . Among the problems was a computer form filled out by caseworkers for noncitizens applying for aid. The pull-down list omitted a "battered qualified alien" category, leading to the automatic rejection of many women, the newspaper reported." AP, FindLaw Link to Article (last visited 8-30-06 NVS)
"Las Vegas bills itself as "the wedding capital of the world," but late-night revellers who decide they want to tie the knot now must wait until morning. . . . People can still get married around the clock at one of the city's few all-night wedding chapels; it will just take a bit more planning to obtain the $55 licence (29 pounds), said Cheryl Vernon, who supervises the marriage-services office in the county clerk's department. Vernon said the new office hours were not the result of a push to curb irresponsible life decisions, but simply because too few early-morning customers -- about 15-30 people -- came in to justify a late-night shift. About 300 to 500 people seek licenses on a normal shift, she said. Last year the office issued 122,259 marriage licences." By Alexandria Sage, Reuters, Yahoo News Link to Article (last visited 8-30-06 NVS)
Wednesday, August 30, 2006
Case Law Development: Incorporation of Alimony Agreement into Divorce Decree Does not Transform Contractual Alimony into Decretal Alimony
Texas is an interesting state for studying approaches to spousal maintenance. Texas courts long held that the statutes and public policy of the state precluded courts from awarding post-divorce alimony or spousal maintenance. However, the Texas Supreme Court held that parties could agree to such awards contractually and that these alimony agreements, as with other marital property agreements, even when incorporated into divorce decrees, were enforceable as contracts and governed by contract law.
In 1995, Texas adopted legislation authorizing alimony in only two circumstances: in instances of recent violence by one spouse against the other or in a long-term marriage in which one spouse is unable to support him or herself. Moreover, the legislation places strict limits on the length and total amount of alimony and provides a range of circumstances which terminate alimony, including cohabitation.
In this case, Husband had agreed to alimony in excess of the term and amount allowed by statute and that agreement was incorporated into the divorce decree. He now sought to have the alimony terminated on the statutory grounds of wife's cohabitation, even though there was no contractual agreement that alimony would be terminable on this ground. He argued that because the district court in the original divorce decree had incorporated the agreement into the decree and had ordered the parties to do all things necessary to effectuate the agreement, this "decretal" language transformed the contractual alimony payments into court-ordered maintenance payments. The trial court disagreed and the appellate court affirmed, holding that the agreement was governed by contract law rather than the family code. "The fact that a court expressly approves such an agreement and incorporates it into the final divorce decree does not transform contractual alimony payments into court-ordered maintenance payments subject to the termination and modification provisions of chapter 8 of the family code."
McCollough v. McCollough, 2006 Tex. App. LEXIS 7579 (August 25, 2006)
Opinion on web (last visited August 29, 2006 bgf)
Case Law Development: Parent's Continual Litigation to Increase Parenting Time Grounds for Granting Sole Custody to Other Parent
The couple in this case divorced in 1997 and agreed to joint legal custody of their 3-month-old child, with mother having primary physical custody and father having every other weekend visitation. In 2000 and 2002 the court approved modifications that increased father's parenting time and required mother's consultation with father on a wider range of decisions. In 2003, father moved for another modification, to further increase his parenting time and to eliminate his child support obligation. Mother responded with a motion to modify the joint custody arrangement to give her sole custody. The court denied father's motion and granted mother's request for sole custody based on the prior history of litigation:
...evidence from the family relations counselor, psychologist and court-appointed guardian ad litem.... indicated that the child suffered extensively from the detrimental effects of consistent litigation initiated by the defendant in his efforts to spend more time with the child. The court found that the frequent and repeated litigation served to harm the child and deprived him of the ability to grow and develop. The court found that the defendant failed to recognize the harm caused by his "strategy of attrition by repeatedly asking for small increases in his parenting time." Each success resulted in encouraging the defendant to seek more time. The court concluded that to break this cycle, it was in the child's best interest to deny the defendant's request for additional time.
The case includes significant excerpts from the trial testimony of the child psychologist and would provide an excellent vehicle for class discussion on the effects of extended divorce litigation on children.
Daddio v. O'Bara, 2006 Conn. App. LEXIS 390 (August 29, 2006)
Opinion on web (last visited August 29, 2006 bgf)
Case Law Development: 10th Circuit Court Rejects Challenge to Oklahoma Parental Notification Statute
In an action by medical providers to enjoin the state attorney general and others from enforcing an Oklahoma statute requiring parental notification before a minor could receive an abortion, the 10th Circuit Court of Appeals affirmed the district court's denial of the motion for the preliminary injunctive relief. Plaintiff had argued that the judicial bypass provision of the statute could not be decided with sufficient expedition. However, the court rejected this argument because the statute expressly requires prompt and expedited decisions and because plaintiff did not prove that state courts were unable to meet this requirement.
In most actions for interlocutory injunctions, the 10th circuit applies a liberal standard on the likelihood of success standard in most instances, allowing for injunctions were serious harm is threatened so long as there is a "fair ground for litigation." However, when injunctions are sought against the goverment, the plaintiff must prove the more stringent standard of a probability of success on the merits. Here, the court concluded the plaintiff was unable to meet that burden.
The court did comment that if there were evidence of the delay alleged by plaintiff, the court would have "serious concerns about the constitutionality of the bypass procedures." However, absent proof of delay, the court concluded that
in the absence of evidence to the contrary, we must presume that courts will follow the law. ...The Oklahoma Act, on its face, complies with Bellotti in that it requires Oklahoma courts to issue prompt decisions and provide for expeditious appeals, all in accordance with the best interests of the pregnant unemancipated minor. We presume they will do just that.
Nova Health Sys. v. Edmondson, 2006 U.S. App. LEXIS 21706 (10th Cir. Ct. App. August 25, 2006)
Opinion on web (last visited August 29, 2006 bgf)
Case Law Development: Child is Not Bound by Mother's Compromise of Paternity Action unless Independently Represented
A 22-year-old son brought an action for paternity and retroactive child support against his putative father. Father claims res judicata precludes the suit because in 1983, Mother had dismissed with prejudice her own paternity action pursuant to a compromise with putative father. The trial court rejected the res judicata argument, and the Ohio Court of Appeals affirmed. The court noted that the son was not represented by counsel in Mother's action and the guardian ad litem appointed for him in that action signed the settlement as to form only and the court did not obtain the approval of the GAL as to the substance of the agreement. As children have separate interests in a determination of paternity beyond the right to collect support, the court applied the general rule that
a minor child is not barred from instituting a later action to determine paternity when a prior action brought in his name has reached judgment through a stipulated agreement.... Under these circumstances, this Court finds that [son's] interests were neither determined nor considered and his rights were not adequately protected, so that he did not have a full and fair opportunity to litigate the issues pending before the juvenile court in 1983. Because [son] was not accorded his due process rights in regard to the 1983 compromise agreement, his instant claims could not be barred by the doctrine of res judicata.
Knapp v. Bayless, 2006 Ohio 4414; 2006 Ohio App. LEXIS 4344 (August 28, 2006)
Opinion on the web (last visited August 29, 2006 bgf)
The Ohio Court of Appeals clarified the jurisdiction of a court to enforce agreed-to amendments to property division judgments in a case in which the divorce judgment had provided that husband would receive 50 percent of the marital portion of wife's pension. When the first QDRO prepared pursuant to this judgment was rejected by the plan administrator becuase of uncertainty as to the portion of the pension that was marital, the parties signed an amended QDRO which gave husband a full 50 percent of the wife's total pension. Wife sought to amend that QDRO, claiming that she never intended to relinquish her premarital interest in the plan and that she had misread the amended QDRO. The trial court sua sponte vacated the amended QDRO, finding that without the wife's intended consent to the amended QDRO, it lacked jurisdiction to have entered it.
The court of appeals reversed. While the court did agree that the trial court's jurisdiction to enforce a post-decree modification depended on the agreement of the parties, the court concluded that there was no evidence to support wife's claim that she did not agree to the amended QDRO, as she conceded that she had given her attorney authority to sign the QDRO. The court pointed out that "The attorney-client relationship is considered to be a limited agency. The attorney has no implied power to do more than relates to the proper conduct of a suit, and cannot, without specific authority, bind the client. However, it is beyond question that a duly authorized attorney may enter into an agreed judgment entry the terms of which will be binding on his or her client. " Thus, wife was bound by her attorney's actions and the trial court had jurisdiction to enter the order. To the extent relief was available for her mistaken agreement, it would be under Ohio's relief from judgment rule to have the original order set aside.
McGee v. McGee, 2006 Ohio 4417; 2006 Ohio App. LEXIS 4343 (August 28, 2006)
Opinion on the web (last visited August 29, 2006 bgf)
Even before a proposed child custody initiative has been approved for the ballot in North Dakota, an argument is raging about whether its language would cost the state $71 million over two years in federal aid to families. The possibility, raised by a regional U.S. Department of Health and Human Services administrator who was asked to review the measure, has prompted charges of bureaucratic intimidation. The ballot initiative requires joint child custody arrangements in divorces, if one of the former spouses wants the option and both are considered fit parents. It limits either parent's child support payment to "the actual cost of providing for the basic needs" of the couple's child or children.
Read the AP story from the Grand Forks Herald (last visited August 28, 2006 bgf)
Tuesday, August 29, 2006
"Kyle Elizabeth McConnell admits she has a habit of marrying men. But while a lawyer for the 46-year-old says McConnell is simply a serial monogamist, Michigan authorities claim McConnell was a polygamist. They allege she went from from one spouse to the next before they realized she had cleaned out their bank accounts." By Emanuella Grinberg, Court TV, Cnn.com Link to Article (last visited 8-28-06 NVS)
"The Connecticut Supreme Court on Monday overturned a mother's conviction on charges that she contributed to her 12-year-old son's suicide by creating an unsafe and unhealthy home. Judith Scruggs of Meriden was convicted of risk of injury to a minor in 2003, a year and a half after her son, J. Daniel, hanged himself with a necktie in his closet. Legal experts said it was thought to be the first time a parent had been convicted over a child's suicide.
Scruggs said her son killed himself because he was bullied at school, and she filed a federal lawsuit against Meriden school officials contending they should have stopped it. The case inspired a new state law requiring schools to report bullies to authorities, and many school districts revamped bullying policies.
In court three years ago, authorities testified that the Scruggs home was so dirty that the medical examiner had to climb over heaps of debris to get to the boy's body. Scruggs' trial defense attorney countered that no psychologist or counselor ever testified that her home was a factor in the boy's death, but Scruggs was convicted and sentenced to probation.
In Monday's ruling, Justice William Sullivan wrote that the law used to convict Scruggs was unconstitutionally vague and ordered the trial court to acquit her." AP, CNN.com Link to Article (last visited 8-28-06 NVS)
Monday, August 28, 2006
The Utah Supreme Court has upheld its grandparent visitation statute. The statute does not require a showing of harm to the child, but does limit the circumstances in which grandparents may bring an action for visitation. Those situations include "where a family has been divided by some turn of fate--death, divorce, loss of custody, a missing person, or a declaration that a parent is unfit or incompetent."
The statute recognizes that when a family unit has been touched by these events a situation may arise where the child's interests differ from those of the parent. This is particularly true where the direct family line between grandparents and grandchildren has been severed, leaving the "in-law" relationship as the only remaining adult connection. Id. § 30-5-2(2)(c), (e), (f). Recognizing the potential for conflict in the relationship between the parent and the "in-law" and the resulting potential for interference with the grandparent-grandchild relationship, the statute provides an avenue for grandparents and grandchildren to maintain their relationship"
Court noted that the statute was not especially clear and urged the legislature to clarify the statute.
In re Estate of Thurgood, 2006 UT 46; 2006 Utah LEXIS 138 (Utah Supreme Court
August 25, 2006)
Opinion on the web (last visited August 27, 2006 bgf)
The Alaska Supreme Court takes a flexible approach to the questions of whether it is proper to consider prospective inheritance in a property division. The court noted that the issue is one that has split American jurisdictions, with a majority of American jurisdictions regarding expected inheritance as too uncertain to be used as a factor in property division. However, the court decided to take the approach of a substantial minority of states, and concluded that "it is not inherently improper for a court to consider the possibility of inheritance in some cases. Because property divisions cannot be reopened, however, courts must be cautious in using this factor." The court outlined factors the court should consider:
An absolute prohibition on considering prospective inheritance is unwarranted, but we think any such consideration (1) must be limited to immediate family members, (2) must be limited to inheritances that are not just possible but virtually certain, and (3) must treat the prospect as simply one factor and not give it inordinate weight. The likelihood of inheritance should not lead to a greatly disproportionate division of assets; but if inheritance is virtually certain, the court may give it some weight in considering how to divide the property.
Krize v. Krize, 2006 Alas. LEXIS 123 (Alaska Supreme Court August 25, 2006)
Opinion on web (last visited August 27, 2006 bgf)
Case Law Development: Child Support Obligation for Medical Expenses Includes Costs of Child's Therapist
The New Jersey Court of Appeals addressed the financial responsibility incurred by a couple's divorce settlement in which the father was to pay most of the children's uninsured medical expenses. The child's therapist was a licensed, certified social worker. Father argued that he should not have to pay for the therapist's services because she was not a psychologist or a physician and because the children had not been diagnosed with a mental illness. The cour rejected this argument, reasoning that:
Viewing the protracted and acrimonious nature of the ongoing litigation between these parties, as focused on the children and their relationship with their parents, it would be myopic to conclude that these children have not been subjected to significant stress, trauma, and turmoil that warranted professional intervention. Moreover, paragraph 10 of the parties' property settlement agreement specifically provides that the terminology "uninsured medical expenses" is to be "interpreted broadly" to include not only psychological or psychiatric treatment, but "any other healthy related care." Certainly, the services of Ms. Roll, as found by the judge, fall within this broad definition of unreimbursed expenses of the children.
Tafaro v. Tafaro, New Jersey (August 25, 2006)
Opinion on the web (last visited August 27, 2006 bgf)
Post amended August 31, 2006: Thanks to Pieter Droppert of the New Jersey Family Law Blog, for pointing out my confusion in a prior version of this post. His point there -- that readers (and fellow bloggers) -- should never consider blog commentary on cases to be a substitute for reading the cases themselves is one with which I wholeheartedly agree!
Friday, August 25, 2006
American Indians who enjoy sizable monthly payments from their tribe's casino profits may have to split the cash in a divorce — even when the former spouse isn't a tribal member, the Minnesota Court of Appeals has ruled. In a decision that may be a first in the nation, the court decided the $84,000 a Prior Lake woman received each month as a Shakopee Mdewakanton Sioux Community member is income, not a gift or an inheritance. Since the money is income, "any such payments received during the tribal member's marriage are marital property subject to division upon dissolution," the court concluded.
The Supreme Court of Pennsylvania has issued a thorough analysis of the constitutionality of its grandparent visitation statute, upholding the statute. The opinion proivdes a catalogue of the state court opinions regarding whether a finding of harm to the child is necessary before grandparents can be given visitation, concluding that it would join those states that do not require such a finding. A concurring opinion suggests that the time has come to analyze these cases from a child's rights perspective, providing a description of the historical development of children's rights and how that analysis should be applied in these cases. One justice dissenting, arguing that a showing of harm to the child should be required.
All in all, a fabulous case for summarizing the current state of the law of grandparent visitation and the underlying policies driving the different approaches.
An unpublished opinion from the Michigan Court of Appeals provides a good example for students to see how the courts assess credibility and the impact of a determination that a party is attempting to hide assets or otherwise mislead the court.
There were many issues addressed in the case, but one of the most fascinating was the isssue of the court's authority to split Husband's interest in a business. Wife had added husband's business partners as necessary partners in the divorce, alleging that they had conspired with Husband to try to conceal marital assets. Husband claimed that the court was without jurisdiction to split the business (located in Arizona) because it was property of his partners. The court of appeals affirmed the trial court's finding that there was insufficient proof that the partners had any interest in the property.
There was no written agreement evidencing [partner's] ownership interest in
the business. His name was not included on the real estate deed, nor was it ever
included in any bank documents, nor any corporate documents on file with the
Arizona Corporations Commission. His name was never even identified on the
corporate books and records of the company. The transaction was not recorded
anywhere. The (business’) accountant . . . testified that he never met [partner].
There was no indication on [partner's] tax return that he had an ownership
interest in [the business]
Even if there had been partners, the court of appeals noted that the trial court properly refused to
ignore reality when defendant obfuscates his various property holdings through a maze of real or nonexistent entities. Although the trial court determined that plaintiff had not proven that a conspiracy existed, the trial court nonetheless had the authority to determine the extent of defendant's interest in various properties for the purpose of adjudicating a fair and equitable division of marital property.
Similarly, the trial court's determination to divide the income from Husband's sale of a business interest was influenced by the Husband's credibility. Husband claimed that the $28,000 he had received had been spent on marital debts. The court held that the Wife had met her bruden of proving that there was a sale and amounts were owed Husband as a result of the sale. Husband had the burden to prove that the money had been received and spent on marital debts. As he failed in that proof, the trial court treated the income as a marital asset.
To read more about the case, see the blog post and comments by Jeanne Hannah at her Michigan Family Law Blog (thanks Jeanne!)
Birry v. Birry, (August 24, 2006)
Opinion on the web (last visited August 25, 2006 bgf)
The Iowa Court of Appeals upheld a trial court's award of child support in a case in which the parties had stipulated to "joint physical placement" and a "joint parenting plan" for their child. Father argued that the child support award treated him as though he were not the custodial parent, when he was a joint custodian according to the agreement. Under Iowa law, the child support obligation of parents who provide "joint physical care" of a child is calculated using the "offset method." "In the offset method each parent should be deemed the noncustodial parent on the guidelines chart for purposes of calculating the support each would owe the other. One child support obligation is offset against the other parent's child support obligation, rather than requiring a monthly exchange of child support payments."
However, the trial court had calculated support as though Mother had custody and Father had visitation. The appellate court that, even though the parties had termed their arrangement "joint custody", they did not in fact have joint physical care as actual overnight time with father was "approximately one-third of nights and an average of approximately one-third of the hours of a year." Thus it was proper to calculate child support as though mother were primary custodian.
In re Marriage of Reeves, 2006 Iowa App. LEXIS 997 (August 23, 2006)
Opinion on web (last visited August 25, 2006 bgf)
Thursday, August 24, 2006
"The Tennessee Prison for Women has long recognized the need for mothers and their children to bond while the children are young. Each week, the prison sponsors a weekend visitation program that allows children between the ages of three months and five years (up to their 6th birthday) to spend a weekend with his/her inmate mother/grandmother. Through recent renovations, the Tennessee Prison for Women has established separate quarters away from the general inmate population for the child visitation program. Through the efforts of this program, infant and toddler children of qualifying inmates may be given the opportunity to bond with their incarcerated mothers during approved hours on the weekends.
An approved child visitation will allow only one child per visit, however a total of sixteen children may stay with their mothers in single cell units in the new visitation space dedicated for the program. The child and mother eat their meals in a more relaxed family setting within the unit. There is also space dedicated for activities designed to foster child development. Future plans include an outdoor recreation area that will have playground equipment and picnic tables." Tennessee.Gov, Department of Correction Link to Article (last visited 8-23-06 NVS)