Friday, September 29, 2006
Case Law Development: Agreements Waiving Child Support Arrearages or Estopping Parents from Asking for Modification if Children Change Residence are Void as against Public Policy
Mother and Father had entered into a child support agreement (incorporated into a decree) that provided that both parties were estopped from seeking to modify child support based on changes in the placement of the children. The agreement also waived of any of Father's child support arrearages owed to that point. In this later action, the trial court credited Father for the time that one of the sons had lived with him. Mother argued that Father should have been estopped from requesting a credit because of the previous stipulation that child support would not depend on the child's placement. The trial court held the stipulation void as contrary to public policy because it purported to remove child support issues from the jurisdiction of the courts. The Court of Appeals of Wisconsin affirmed. However, the court, sua sponte, also held that the term in the parties' previous agreement waiving Father's prior arrearages was also void as against public policy. The court remanded for a calculation of arrearages.
On its decision to void the second part of the agreement sua sponte, the court commented:
[Father] may object that we have reached out to discuss this issue even though neither of the parties addressed it before the circuit court or on appeal. We reject this. This court may consider issues sua sponte in order to correct errors of law. ...This is particularly so where it appears that an agreement is void as contrary to public policy. ... We will not close our eyes to the fact that the agreement [Father]properly insisted is void as against public policy was agreed to in consideration of an interlocking agreement forgiving [Father's] past arrearage, itself a violation of public policy.
Motte v. Motte, 2006 Wisc. App. LEXIS 880 (September 27, 2006)
Opinion on the web (last visited September 28, 2006 bgf)
Students often have trouble conceptualizing how a court might treat the interests of third parties in marital property. This case from the Alabama court of appeals provides a somewhat tidy example:
During the marriage, Husband purchased about 15% of the shares in a closely held corporation, using marital funds. All the shareholders in the corporation had a buy-sell agreement, giving them the right to purchase stock in the event of an involuntary transfer being ordered. In a subsequent divorce, the trial court ordered Husband to transfer to Wife 300 shares of the stock or to pay to her the agreed price from the buy-sell agreement. The court of appeals of Alabama reversed, finding no error in the trial court's order to Husband to transfer the stock, but holding that the court failing to order that the company and the other shareholders have the right to purchase the shares awarded to the wife. The court reversed and remanded the entire property division and maintenance award on the basis of this error (one judge dissented on the basis that the order's allowance to Husband that he could pay the buy-sell agreement price in lieu of transferring the stock was sufficient protection of the shareholders).
In a second appeal arising out of the case, the shareholders had sought to intervene in the divorce action, but the court found no right to intervene because the husband, who was both a shareholder in the food company and a party to the buy-sell agreement, opposed the trial court's making an in-kind award of stock to the wife, and thus adequately represented the interests of both the company and the other shareholders.
Kelley v. Kelley, 2006 Ala. Civ. App. LEXIS 579 (September 22, 2006 bgf)
An attorney husband repeatedly brought suit in both state and federal court against his ex-wife, her family members (including his own son) and various attorneys and judges, all claiming wrongful motives or actions underlying wife's calling the police to report domestic violence, obtaining an order of protection against him and then testifying against him in their divorce. In this particular action, the US District Court for the Southern District of New York not only dismissed all the claims for failure to state a claim or on the basis of res judicata, but also sanctioned the attorney. Under the court's inherent authority and the authority of 28 U.S.C. § 1927, the Court ordered husband to pay the reasonable costs, expenses, and attorneys' fees incurred by the defendants in responding to the action and permanently enjoined him from "(1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court's opinion and order of injunction to his first filings."
Davey v. Dolan, 2006 U.S. Dist. LEXIS 68960 (September 26, 2006 bgf)
Thursday, September 28, 2006
"Many middle-class young adults are staying on their parents’ health insurance long after college these days. It’s an interesting trend. But in no way is it a solution to the growing problem of the uninsured. If anything, it is a stopgap measure that helps the more fortunate while sapping the political will for sweeping change. With 47 million Americans uninsured, the nation’s health system is in crisis. More and more people are seeking treatment in emergency rooms because they have nowhere else to go. By one estimate, unpaid hospital bills have reached $45 billion annually, raising the cost of health insurance by 8.5 percent for those who are insured.Among the uninsured are more than a quarter of adults between ages 18 and 34. As Jennifer Lee reported recently in The Times, states are responding to the problem with legislation to allow children to stay on their parents’ health insurance longer. New Jersey is one of eight states that have passed such a “piggyback” statute just since 2003." Amherst Times Link to Article (last visited 9-27-06 NVS)
"The elderly man in the emergency room was covered with bruises, some purple and others fading to yellow. Despite signs of dementia, he told the same story over and over: His wifes burly home health aide had beaten him. But the health aide and the wife insisted he had fallen. Now it was up to the members of Orange Countys Elder Abuse Forensic Center to decide which story was true.
As the man lay on a gurney, he was interviewed by a team from the center: a geriatrician, a social worker and an investigator from the sheriffs office. The bruises on the mans chest, they determined, were the result of being punched. There were bloody outlines of a shoe on the mans leg. His clear, consistent story, and cognitive tests, persuaded the prosecutor to charge the aide with a felony.
At the center here, public health and law enforcement officials are learning to speak the same language and using the same forensic techniques as those popularized on the three C.S.I. television series to diagnose elder abuse and neglect. For decades, the techniques have been the state-of-the-art approach for investigating child abuse and domestic violence. But elder abuse has lagged far behind, suffering from a lack of financing, research and data." By Jane Gross, N.Y. Times, Herald Tribune Link to Article (last visited 9-27-06 NVS)
Wednesday, September 27, 2006
Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees
The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"
The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man). When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey. The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses. Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.
However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding. The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs. Mother sought to have the first award characterized as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support.
The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do." Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.
Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award. That error required reversal and remand.
While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.
So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.
Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)
CNN reports on a divorce proceeding in which the court ordered Husband to disclose assets and his refusal resulted in a civil contempt judgment in which Husband could choose between jial or disclosing the assets. Eleven years later, Husband remains in jail and the case has generated a dozen pleas to the Delaware County courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, 12 to federal courts, two of those to the U.S. Supreme Court.
Read the CNN report (last visited September 27, 2006 bgf)
Janet Langjahr of the Florida Divorce Law Blog reports on a new study conducted in Florida that finds that girls perform better academically after their parents in turbulent marriages divorce. The people behind the study believe that bitter fighting between parents adversely affects girls worse than divorce does. Boys, however, did not benefit academically from divorce under similar circumstances. Boys appear to suffer more from the loss of the father in the household, and often act out after their parents separate.
Read the article in The Gainesville Sun (last visited September 26, 2006 bgf)
Yesterday the House of Representatives passed the Child Custody Protection Act (S. 403) by a margin of 264-153. Last year the House passed a version of this bill called the Child Interstate Abortion Notification Act (H.R. 748). The Senate passed the Child Custody Protection Act (S. 403) in July, but Senate Democrat leadership blocked it from moving to conference.
For dueling press releases on the legislation from the US Newswire see the statement of Family Research Council President Tony Perkins and that of the National Abortion Federation (last visited September 27, 2006 bgf)
Tuesday, September 26, 2006
"The FLER Project argues that a re-orientation of family law teaching is overdue. The new family law curriculum would present the bedrock doctrinal and constitutional principles of the case law, but it would put these rulings in their historical and sociological context. Then it would explicitly link that context to the pressures facing American families and American family law today. This new family law would then venture beyond content and context to deal explicitly with lawyers' conduct -- the ethical issues lawyers face and the response to their behavior offered in studies like Sarat and Felstiner's Divorce Lawyers and their Clients. Finally the new family law curriculum would emphasize the acquisition of a broad range of skills in listening, counseling, communicating, managing and more."
"The Family Law Education Reform Project (the "FLER" Project") is co-sponsored by the Association of Family and Conciliation Courts (AFCC) and the Center for Children, Families, and the Law at Hofstra Law School. This Final report is based on a series of dialogues between family law academics and practitioners from many disciplines, a FLER Project survey, and research conducted by law students at Hofstra University and Northeastern University."
By Mary E. O'Connell and J. Herbie DiFonzo, Co-Reporters Download (last visited 9-25-06 NVS)
Saturday, September 23, 2006
"Teri Lee feared her ex-boyfriend would kill her. After he was arrested in July and charged with attacking her with two butcher knives, she predicted it.
"Ms. Lee stated she was afraid for her life and was very afraid that the defendant would make bail and come to her house and kill her," an investigator reported in July.That was two months ago, before Friday morning when, police say, Steven Van Keuren broke into Lee's Washington County home and killed her and a friend. Police shot and wounded him. Lee's four children, ranging in age from 6 to 12, were home at the time of the shooting about 4:30 a.m., but there are no indications that the suspect went after them." By Howie Padilla and Tom Ford, Star Tribune Link to Article (last visited 9-23-06 NVS)
Friday, September 22, 2006
Husband went to the business he jointly owned with Wife in the evening and, in the course of an ensuing argument, yelled, "Would you like to hurt me? Would you like to kill and hit me? Would that make you feel better?", banged a stapler on the counter, threw a water bottle in her direction, and refused to leave the jointly-owned business during the late night hours. Wife called the police who refused to make Husband leave because it was a jointly-owned business. When she returned to the business the next day to find Husband there, she sought a protective order, testifying that she was afraid of Husband, that there had been prior explosive episodes and that she thought Husband was "out of control." The North Carolina Court of Appeals upheld the trial court's decision to enter an order based on its finding that Wife "was placed in fear of continued harassment that rose to such a level as to inflict substantial emotional distress" and that Husband's actions amounted to domestic violence.
A dissent argued that the trial court had failed to make sufficient findings of fact on the record.
Wornstaff v. Wornstaff, 2006 N.C. App. LEXIS 1975 (September 19, 2006)
Opinion on the web (last visited September 21, 2006 bgf)
The Supreme Court of Montana held that the statute of limitations barred an action for premarital child support in a case in which the parties had two children in 1981 before they were married in 1986 and then sought divorce after 17 years of marriage. The trial court granted the ex-wife retroactive premarital child support, as well as a portion of the ex-husband's retirement benefits. On appeal, the court reversed and remanded. The 10-year statute of limitations in Mont. Code Ann. § 27-2-201 barred the ex-wife's claim for premarital child support. At no time between the birth of the child in 1981 and the parties' marriage in 1985 was an order of child support issued, and while the ex-husband might have had a moral obligation to support the child, under the laws in effect at the time, he did not have a legally-imposed obligation. The child for whom support was sought was 23 years old at the time of the parties' dissolution trial and was no longer residing with the ex-wife. The court also reversed the trial court's division of the ex-husband's retirement benefits. The trial court erred in using the "self-only annuity" benefit amount and the trial court was to recalculate the ex-wife's marital portion based on the ex-husband's net annuity.
Momsen v. Momsen, 2006 MT 233, 2006 Mont. LEXIS 445 (September 19, 2006)
Opinion on the web (last visited September 21, 2006 bgf)
Here's an interesting case for exploring some of the practical aspects of timing in divorce actions. Students sometimes ask: "what difference does it make who files the divorce action?" This case from the Georgia Supreme Court, affirming the trial court's realignment of the parties, provides one fine answer to that question: The husband filed a divorce action against the wife. The wife filed an answer and counterclaim for divorce. Later, the wife moved to add the corporation and paramour and to file an amended answer and counterclaim setting forth claims of fraudulent conveyance and conversion against them. After granting that motion, the trial court realigned the parties, making wife plaintiff and all others defendants. The Georgia Supreme Court affirmed, holding that becuase wife had the greater burden of proof regarding alimony, adultery, attorney's fees, and fraudulent transfers and had brought the additional claims, the procedural rights that a plaintiff typically exercised at trial, including the important right to make opening and closing arguments, belonged to the party bearing the greater burden of proof.
Moore v. Moore, 2006 Ga. LEXIS 579 (September 18, 2006)
Opinion on the web (last visited September 21, 2006 bgf)
The 9th U.S. Circuit Court of Appeals, upheld the constitutionality of a program adopted in California in 1997 to cut down on fraud. The program, called Project 100%, involves sending unarmed investigators from the district attorney's office to arrive unannounced at the homes of welfare applicants to verify assets and look for other disqualifying information. They conduct interviews, determine if eligible dependents live there and certify an "absent" parent does not live there. The ACLU had challenged the program as a violation of the 4th Amendment rights of the families thus investigated.
The majority in the 2-1 decision said the case was controlled Wyman v. James, 400 U.S. 309 (1971) In which the court had allowed social workers to visit homes in New York to determine eligibility. Using sworn peace officers "does not cause the home visits to rise to the level of a search in the traditional criminal law context," Judge A. Wallace Tashima wrote for the 2-1 panel. The court also cited a 2002 California Supreme Court decision upholding a home visit program in Los Angeles County and said the "underlying purpose of the home visits is to verify eligibility for welfare benefits, and not for general law enforcement purposes."
In dissent, however, Judge Raymond Fisher said it was unlawful for an investigator from the district attorney's office to go "walking through the applicant's home in search of physical evidence of ineligibility that could lead to criminal prosecution either for welfare fraud or other crimes unrelated to the welfare application." He went on to argue that "Nor do I agree with the majority's improper discounting of the Appellants' heightened privacy interest in their home. In the majority's view, even if the home visit is a search, it is reasonable because the Appellants' relationship with the state as potential welfare recipients "reduce[s] the expectation of privacy even within the sanctity of the home." Maj. Op. at 11517. To support this conclusion, the majority relies on Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987), a case that upheld the constitutionality of a warrantless search of a probationer's home. By suggesting that welfare applicants may be treated the same as convicted criminals, the majority ignores the limits implicit -- and explicit -- in Griffin."
Sanchez v. County of San Diego, 2006 U.S. App. LEXIS 23788 (September 19, 2006 bgf)
Opinion on web
A Maine couple accused of tying up their 19-year-old daughter, throwing her in their car and driving her out of state to try to force her to get an abortion were doing so because the baby's father is black. The daughter escaped and called police, who arrested her parents. The parents were apparently taking their daughter to New York to try to force her to get an abortion there, police said. The parents were arraigned Monday on kidnapping charges. The judge set bail at $100,000 each and ordered the Kampfs to have no contact with their daughter. They posted bail Tuesday afternoon.
Read the whole story in the New York Times (last visited Sept. 22, 2006 bgf)
The New York Times reports that "Almost half of U.S. fertility clinics that offer embryo screening say they allow couples to choose the sex of their child, the most extensive survey of the practice suggests. Sex selection without any medical reason to warrant it was performed in about 9 percent of all embryo screenings last year, the survey found. Another controversial procedure -- helping parents conceive a child who could supply compatible cord blood to treat an older sibling with a grave illness -- was offered by 23 percent of clinics, although only 1 percent of screenings were for that purpose in 2005. For the most part, couples are screening embryos for the right reasons -- to avoid passing on dreadful diseases, said Dr. William Gibbons, who runs a fertility clinic in Baton Rouge, La., and is president of the Society for Assisted Reproductive Technology, which assisted with the survey."
Read the whole story in the New York Times (last visited September 22, 2006 bgf)
Thursday, September 21, 2006
The Association of Family and Conciliation Courts (AFCC) Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation is being held October 19-21, 2006 in Atlanta.
AFCC's Seventh International Congress on Parent Education and Access Programs is being held on October 22-23, 2006 in Atlanta.
Link to Conference Information and Registration (last visited 9-21-06 NVS)