August 12, 2006
Unmarried couple denied occupancy permits brings suit against city
The St. Louis Missouri unmarried couple with three children who were denied a housing permit because they are not married (see Family Law Prof Blog posting 3/19/06) have now filed suit. The suit, filed on their behalf by the American Civil Liberties Union on Thursday, claimed that the town of Black Jack's housing law violates the state and U.S. constitutions, as well as the Federal Fair Housing Act. It seeks unspecified damages.The ordinance prohibits more than three people from living together unless they are related by ''blood, marriage or adoption.''The ACLU said Foundray Loving, Olivia Shelltrack and their school-age children are facing fines of up to $500 per week for living in their five-bedroom home in the suburb of 6,800 because Loving is not the biological father of Shelltrack's oldest child, and the couple are not married.
Case Law Development: One Spouse's Mortgage of Entireties Property Does Not Bind Non-borrowing Spouse
For those of you who live in entireties states and like to explore some of the inticracies of this unique marital ownership form with your classes, my colleague Pat Randolph, who runs the extraordinary DIRT website and listserve sent me this interesting case:
The Missouri Court of Appeals has held that where spouse executes the mortgage of entireties property, but the granting clause indicates that the mortgage is given by the other spouse only, who owns the property as separate property, and the mortgage secures a loan to that other spouse, the non-borrower spouse’s signature does not bind her to the mortgage, and the mortgage is void when the borrower spouse dies.
Ethridge v. Tierone Bank, 2006 WL. 1280957 (Mo. App. 5/11/06)
opinion on the web (last visited August 11, 2006 bgf)
Husband and wife owned property as tenants by entireties. H, who ran the finances for the family, resolved to pay off the first mortgage and obtain funds to remodel an artist’s studio into a rental. The lender prepared documents by which husband alone borrowed the money. The deed of trust, consistent with that notion, stated that the property was owned by H, a married man, as his separate property, and there was only a signature line for him. It also had standard language warranting that the grantor of the deed owned the property.
The title report showed the wife’s interest, and in fact the wife showed up at the closing. The closing agent (a non-lawyer), noticing the discrepancy between the title report and the deed of trust, asked the wife to execute the deed of trust, which she did, knowing what she was doing and why.
Later, husband died and the wife stopped payment on the note. She pointed out that she had never executed the note, and claimed that the deed of trust was invalid as to her. The court granted summary judgment for the wife, finding the deed of trust invalid as to her, and the lender appealed.
The appeals court here concluded that there was no ambiguity in the signature process, and that there was no question that the wife executed the deed of trust in order to demonstrate that she was “joining” in the deed of trust. Nevertheless, the court agreed with the trial court that the deed of trust did not bind the entireties property because the granting clause failed to indicate the purpose of binding the spouse’s entireties interest.
Here is what the court said about the signature:
. . . Mary would have been required to "join" in the Deed of Trust, even though the real estate was David's separate property [in light of Missouri’s marital rights statutes].. Mary's act of signing and acknowledging the Deed of Trust would have been sufficient to show that she joined in a deed conveying real estate solely owned by her husband. . . . To demonstrate her joinder in the Deed of Trust, it was not necessary that she also be named as a grantor. Furthermore, Mary's execution of the Deed of Trust to convey whatever marital rights she possessed in her husband's separate property would not have caused her to be bound by the covenant of title contained therein. . . . As drafted and executed, the Deed of Trust appears on its face to show that David, acting as the grantor, conveyed real estate solely and separately owned by him and that his wife, Mary, signed the instrument to show her joinder in the Deed of Trust. Accordingly, we do not find the terms of this instrument are susceptible of more than one meaning so as to create an ambiguity.
What the Deed of Trust purported to do, however, is not determinative of what it actually accomplished. The record discloses without dispute that David and Mary owned the real estate as tenants by the entirety. While the Deed of Trust was not ambiguous, it also was not a valid conveyance because, as the trial court correctly observed, Mary was not named as one of the grantors.
According to the court, this argument the rejection of a finding of ambiguity, and thus there was no possible interpretation other than that the wife was simply waiving her interest in the husband's separate property. The fact that the husband had no separate property (since the property in fact was in tenancy by the entireties) didn't matter. And Missouri law was quite specific that a granting clause must accurately state the interest conveyed. Unless the granting clause stated that the property was a tenancy by the entireties, the court could not construe the document as conveying a mortgage on the interest.
Under Missouri law, then, the mortgage would have been void even as to the husband's interest, since Missouri has that "slippery" kind of tenancy by the entireties that one cotenant has no power to mortgage. But the court nevertheless reversed summary judgment for the wife because, by granting summary judgment, the trial court also had rejected the lender’s claim that it was entitled to equitable subrogation to the position of the first lender that its loan proceeds had paid.
The court concluded that, since equitable subrogation is an equitable doctrine, it is still available even when the legal documents are inadequate to create an interest. The case is not a typical equitable subrogation case, since there is no issue of priority. But equitable subrogation can also be used to avoid unjust enrichment. Here, if equitable subrogation were to be denied, the wife would wind up with a release from the purchase money debt on the property while the lender suffered an inequitable loss.
Most remarkable about the opinion is footnote 7, in which the court notes that the lender’s other claims, that the deed of trust should be reformed or that the wife was equitable estopped from denying the validity of the deed of trust, were still alive. The fact that the court did not discuss them on appeal did not mean that it viewed the trial court’s summary judgment on these issues to be correct.
Professor Randolph's Comment:
The appeals court ruling on equitable subrogation seems correct. But why in the world didn’t it proceed to consider the reformation and estoppel arguments? These would have resolved the case more clearly, and the lender’s arguments here seem quite plain. Perhaps the court wanted the trial court to look more carefully at the factual support for these arguments now that it has concluded that equitable arguments are appropriate here.
Ambiguity, of course, is not necessary for a court to grant reformation. There can be an unambiguous document, but the court can still conclude that it is not the right document to carry out the parties’ intended purpose. This seems to be evident here.
Estoppel also seems appropriate, based upon unjust enrichment. The wife knowingly accepted the proceeds and they were invested in improvement of her residence to create a rental unit out of an abandoned studio. We’ll have to wait and see, one supposes, on these issues. But the editor suspects that the court is hoping that the lender will accept “half a loaf” and take the subrogated claim and not push any harder to punish the widow. Maybe rough country justice, but hardly good precedent for our commercial system. It is also arguable, of course, that the wife was unjustly enriched when the balance of the loan proceeds
August 11, 2006
Case Law Development: Failure to Object to Absence of Attorney for Child in TPR Actions Precludes Later Appeal on that Basis
In a brief opinion, the Texas Court of Appeals raises yet another issue in the debate over how vigorously courts will enforce the child's right to representation in termination actions. The court upheld the termination of a mother's parental rights, finding that her failure to object to the absence of the child's attorney ad litem at the termination hearing waived her right to raise the issue on appeal. Dissenting Chief Justice Lopez was troubled by this outcome. She pointed out that, while the court did appoint a substitute attorney ad litem upon the failure of the original attorney to appear, the termination hearing was nonetheless heard that same day. Her dissent argues that, "Implicit in the mandatory requirement that an attorney ad litem be appointed is the requirement that the ad litem be present at the hearings in order to represent the child's interest. Just as a court's error in failing to appoint an ad litem can be raised for the first time on appeal... the ad litem's failure to appear at a hearing also should be permitted to be raised for the first time on appeal."
In the Interest of D.W., 2006 Tex. App. LEXIS 7005 (TEx App 4th Dist san antonio August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
Case Law Development: Egregious Abuse Against Child Sufficient Basis to Terminate Parental Rights as to Siblings
The Florida Court of Appeals holds that, under the terms of Florida statutes, egregious abuse directed at one sibling is sufficient, without more, to support termination of parental rights to another sibling. "The statute does not require additional proof to establish a likelihood that an abused child's sibling will also be abused. Furthermore, in some cases, a parent's conduct toward one child may demonstrate a "substantial risk of significant harm" to another child.
T.P. v. Dep't of Children & Family Servs., 2006 Fla. App. LEXIS 13254 (August 9, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
Case Law Development: Third-Party Visitation in Washington State Survives Even Without Statutory Basis
The Washington Court of Appeals determines that, while Washington statutes no longer provide third-party visitation rights, right awarded under the statute prior to the Supreme Court's decision in Troxel could still be enforced. In this case, step-father was awarded visitation with his stepdaughter in a 1998 parenting plan incorporated into a divorce decree. When he sought to enforce those rights, the trial court ruled that he had no rights given a 2005 Washington Supreme Court opinion declaring that the third-party visitation statute was frought with too many constitutional problems to be enforceable without legislative action to correct its constitutional defects. (In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005)). The Court of Appeal reversed, holding that a retroactive application of the C.A.M.A. case was improper given the the US Supreme Court's had held that the statute was not per se unconstitutional. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Moreover, the court held that even if no third-party visitation rights existed under Washington statutes, equity principles provided an alternative ground for enforcing the stepfather's visitation rights. "It is well recognized, both in Washington and nationally, that child custody and visitation orders may be established by reliance on courts' equity powers and the common law." The court referenced a recent Washington Supreme Court statement that a child's "fundamental right to a stable and healthy family life . . . include[s] independently valued protections of a child's relationship with siblings and with adults other than his or her biological parents with whom the child has formed a critical bond." In re Custody of Shields, 157 Wn.2d 126, 2006 Wash. LEXIS 495, (Wash. June 2006) (Bridge, J., concurring).
Anderson v Anderson, 2006 Wash. App. LEXIS 1691 (Div 2 August 8, 2006)
Opinion on the web (last visited August 10, 2006 bgf)
Married Persons Live Longer
An eight year study of almost 67,000 adults found those who remained alone were 58 per cent more likely to have died during the period than those who were either in wedlock, widowed, divorced or separated. Bachelors between 19 and 44 are twice as likely to die than married men in the same age group. Professor Robert Kaplan, whose findings are published in the Journal of Epidemiology and Community Health, said remaining single may be linked with "more severe isolation".
Read the story in UK News (last visited August 10, 2006 bgf)
Father Acquitted After Taking Son on a "Scared Straight" Visit to Juvenile Detention
A father and four guards at a juvenile detention center were acquitted Thursday of breaking the law by taking the man's teenage son on a frightening visit to the lockup in hopes of scaring him straight.''I don't think what you did rises to criminal conduct,'' Judge David Cashman said in acquitting the five men on charges that included conspiracy, child endangerment and unlawful restraint. ''Stupid, maybe. Immature. But not criminal.'' Anthony Donald, 39, of Penn Hills, was charged for taking his son Anthony Jr., then 13, to Shuman Juvenile Detention Center in 2005 after the boy got in trouble at school. The father knew several guards at the Pittsburgh center. In a one-hour visit, the boy was beaten and yelled at, then forced to partially strip and clean a sink with a toothbrush, authorities said.
Read the New York Times story (last visited August 10, 2006 bgf)
August 10, 2006
Use of Violence Could Become Grounds for Divorce in Greece
"A bill submitted to Parliament yesterday proposes the toughest set of measures ever seen in Greece against domestic violence and asks for the first time that smacking children be outlawed and that the use of violence by one partner against another be grounds for divorce.
“The purpose of the bill is to protect relationships based on individual dignity, self-determination and self-respect within Greek families and therefore Greek society,” said Justice Minister Anastassis Papaligouras, who presented the draft law to the Inner Cabinet before it was submitted to Parliament." Kathimernini Link to Article (last visited 8-9-06 NVS)
South African Women Protest Domestic Violence
"Thousands of women re-enacted a famous anti-apartheid march through Pretoria, South Africa, Wednesday, protesting violence against women and child abuse. Supported by politicians and women who participated in the 1956 march, the re-enactment pointed out South Africa has the world`s highest number of reported rapes and other forms of domestic violence, with a South African woman killed every six hours by an intimate partner." M & C News Link to Article (last visited 8-9-06 NVS)
Domestic Violence Increases in Hong Kong
"Ah Lin boarded a train from mainland China to Hong Kong six years ago with her four-year-old son to begin a new life with her Hong Kong husband. But instead of joy and prosperity, her life became filled with near-daily physical abuse. . . . Cases of abuse within families have tripled between 1998 and 2005. Police figures for the first half of this year show a 31 per cent jump compared with last year. Of the 719 cases reported, more than 500 involved serious assaults on women and children." Reuters, DNA World Link to Article (last visited 8-9-06 NVS)
Mom's Dieting May Influence Kids
"Mom's dieting habits can have a bad influence on the children. Some research indicates youngsters learn attitudes about dieting through observation. For some youngsters, that might mean an unhealthy fixation on body image, experts warn. . . . One study published last year by researchers at Harvard Medical School found that frequent dieting by mothers was associated with frequent dieting by their adolescent daughters. The study also found that girls with mothers who had weight concerns were more likely to develop anxieties about their own bodies. A study in the Journal of the American Dietetic Association found that 5-year-old girls whose mothers dieted were twice as likely to be aware of dieting and weight-loss strategies as girls whose mothers didn't diet." By Candice Choi, AP, Yahoo News Link to Article (last visited 8-9-06 NVS)
Woman on Trial for Drowning Quadriplegic Ex-Husband
"A few hours after Gloria Guzman called 911 to report that her quadriplegic ex-husband had drowned in a bathtub, she told police he had accidentally died as a result of her neglect. But Las Vegas prosecutors claim that an angry and embittered Guzman intentionally drowned Mark Richards over his decision to end their six-year relationship. Beginning Tuesday, a Las Vegas jury will be charged with deciding which version they believe at Guzman's first-degree murder trial." By Emanuella Grinberg, Court TV Link to Article (last visited 8-9-06 NVS)
Overweight Babies Increase
"More babies are heavy now than 20 years ago, a reality that bodes ill for their health, according to one of the first studies to look at overweight infants. The finding is controversial because some experts say there's no clear definition of obesity in the first two years of life. The study in the journal Obesity says the percentage of babies under 6 months old who were overweight or on the brink of becoming so increased from 10.4% in 1980 to 17% in 2001, according to the research on children in Massachusetts. The percentage of overweight toddlers and preschoolers also increased substantially." By Nanci Hellmich, USA Today Link to Article (last visited 8-9-06 NVS)
August 9, 2006
Case Law Development: Cell Phoone and Text Messages Insufficient to Establish Minimum Contacts for Personal Jurisdiction in Protection Order Case
In a case in which Husband's only contacts with Wife while she was in Florida were voice and text messages left on her cellular telephone while she was present in Florida, the Florida Court of Appeals held that these contacts were insufficient to establish personal jurisdiction over Husband in order to enter a protective order against him. The court found that there was no evidence that Husband knew that Wife was present in Florida at the time he left the messages on her cellular phone (the phone number was a Maryland number). Thus the order of protection was reversed for lack of jurisdiction. The court went on to explain that Wife was not without protection, because if she obtained a protective order against Husband in Maryland (where he resided), under VAWA and Florida statutes, Florida would be required to give the order full faith and credit and to enforce the order whether or not it was registered in Florida.
Becker v. Johnson, 2006 Fla. App. LEXIS 13194 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)
Case Law Development: Standard for Minor Modifications of Joint Physical Custody Arrangements
The Court of Appeals of Missouri worked through a nice little problem of statutory construction in a case that would provide a wonderful vehicle for class discussion of custody modification standards. (The case also provides yet another reason why statutes should speak in terms of "parenting time" rather then joint custody or sole custody + visitation). Missouri's child custody statute provides that a change in custody requires proof that "a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child." Caselaw requires that the change in circumstances be "substantial." However a separate statute provides that a court "may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child."
The courts of appeals of Missouri have split on how to interpret these two statutes. The Southern District holds that the more lenient BIC standard should apply to any minor change in custodial arrangements while the Western District prefers the bright-line test of applying the more strict standard to any change in a joint custody arrangement and reserving the BIC standard only for changes in what is denominated as visitation in the original decree. Here, the Eastern District noted the split of authority and the costs and benefits of each district's approach. (See further reading below for excerpts) While agreeing with the Western District's bright-line test because of the benefit of predictability and ease of administration, the court transferred the decision to the Missouri Supreme Court.
The case also has some interesting facts regarding what income to include in calculating child support -- overall a nice case to construct into a class problem.
Russell v. Russell, 2006 Mo. App. LEXIS 1186 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)
One problem with the Southern District approach is the lack of a bright line test, which could lead to confusion and inconsistency from case to case. Under the Southern District approach, a trial court would be forced to decide whether the modification it wants to make is significant, drastic, or something less before it could determine what standard of proof to apply to the evidence. We agree with the Western District that this approach is impractical or illogical because it leaves the determination of what standard of proof to apply until the end of the case.
There is also the possibility of an illogical result when the Western District approach is applied. For example, a joint custodial parent who seeks only a minor modification of his parenting time would have to prove a substantial change in circumstances, while a parent with visitation rights seeking a major modification of his parenting time would only have to prove such a change would be in the best interests of the child.
Nevertheless, because the Southern District approach leaves the determination of whether to apply section 452.410.1 or section 452.400.2 until the end of the case, we find that the Southern District approach is less desirable than the Western District approach. For this reason, we agree with the Western District that if the original dissolution judgment characterizes a physical custody award as joint physical custody, then an attempt to modify the time that either parent has a child under his or her care and supervision is an attempt to modify custody, requiring the application of section 452.410.1. Accordingly, we find the trial court erroneously declared Baker to be the law.
We will now discuss when a trial court's physical custody award is properly characterized as "joint physical custody." Section 452.375.1(3) defines "joint physical custody" as "an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents." Section 452.375.1(3). Consequently, when a court's order awards significant periods of time where the child is under the care and supervision of each of the parents, the award is one of joint physical custody, regardless of what terminology the court used to designate the award. If a trial court erroneously designates an order awarding significant periods of time where the child is under the care and supervision of each of the parents as an award of sole physical custody with visitation rights to the other parent, the party awarded visitation rights may request an appellate court to modify the dissolution judgment so that it is designated as an award of joint physical custody. A court's order awarding one parent custody of the child 57 percent of the time and the other parent custody of the child 43 percent of the time is an award of joint physical custody.
(Citations and quotation marks omitted)
Case Law Development: State Statute of Limitations Applies to Actions under ICWA
The Alaska Supreme Court has held that the state''s one-year statute of limitations applies for claims brought under § 1914 of the Indian Child Welfare Act to challenge adoptions. Congress did not include a generally applicable statute of limitations in ICWA. It specified a two-year statute of limitations for one class of ICWA claims, those brought under § 1913(d) (consent procured by fraud or duress). In this case of first impression, the court rejected Father's argument that the silence in the federal statute should be read to indicate that no statute of limitations applied to his § 1914 ICWA challenge. The court disagreed, finding that, while no case has be decided that determined whether a state statute of limitations should apply in the absence of a limitations period in the federal statute, in interpreting many other federal statutes, courts regularly borrow state statutes of limitations.
ICWA is remedial legislation and must be liberally construed in favor of Indians, but we do not think that an interpretation of ICWA that would completely disregard Indian children's interests in finality and stability would be consistent with Congress's intent in enacting the statute. We therefore hold that Alaska's one-year statute of limitations provides an appropriate balance between the important federal rights of Indian tribes and families and the best interests of adopted children.
In the Matter of Adoption of Erin G., 2006 Alas. LEXIS 117 (August 4, 2006) bgf
August 4, 2006, Decided
Indiana Supreme Court Lets Gay Adoption Stand
Indiana's Supreme Court denied transfer of a court of appeals decision that allows unmarried couples, including those of the same sex, to adopt children through a joint petition that gives both partners equal custody. The April ruling by the Indiana Court of Appeals had overturned a lower court's ruling that state law limits adoption to married couples and individuals. In a dissenting opinion from the denial of transfer, Judge Dickson argued that "by denying transfer in this case, we are missing a valuable and important opportunity to minimize uncertainty and confusion until such time as the legislature provides explicit superceding reclarification." In re Adoption of M.W., 2006 Ind. LEXIS 675 (August 3, 2006)
Opinion on the web (last visited August 9, 2006 bgf)
Indiana's Supreme Court denied transfer of a court of appeals decision that allows unmarried couples, including those of the same sex, to adopt children through a joint petition that gives both partners equal custody. The April ruling by the Indiana Court of Appeals had overturned a lower court's ruling that state law limits adoption to married couples and individuals. In a dissenting opinion from the denial of transfer, Judge Dickson argued that "by denying transfer in this case, we are missing a valuable and important opportunity to minimize uncertainty and confusion until such time as the legislature provides explicit superceding reclarification."
In re Adoption of M.W., 2006 Ind. LEXIS 675 (August 3, 2006)
NY Legislature Passes Bill to Provide Right to Counsel in Child Custody Proceedings
Laura K. Abel, Deputy Director, Poverty Program, Brennan Center for Justice at NYU School of Law reports that on August 4th, the New York State legislature passed a civil right to counsel bill The bill would extend to matrimonial proceedings in NY Supreme Court involving child custody the statutory right to counsel already guaranteed for child custody proceedings in NY Family Court. Up until now, an odd loophole in NY State law provided a right to counsel for the parents in child custody proceedings in Family Court but not in the Supreme Court (where divorces are heard).
Laura K. Abel, Deputy Director, Poverty Program, Brennan Center for Justice at NYU School of Law reports that on August 4th, the New York State legislature passed a civil right to counsel bill
civil right to counsel billand it is now awaiting signature by the Governor.
The bill would extend to matrimonial proceedings in NY Supreme Court involving child custody the statutory right to counsel already guaranteed for child custody proceedings in NY Family Court. Up until now, an odd loophole in NY State law provided a right to counsel for the parents in child custody proceedings in Family Court but not in the Supreme Court (where divorces are heard).
For the complete text of the bill Download s8096a10447_cl.pdf (August 9, 2006 bgf)
For the complete text of the bill Download s8096a10447_cl.pdf (August 9, 2006 bgf)
August 8, 2006
Law Bans Married Massage Therapist From Sex With Husband
"LaRae Lundeen Fjellman could lose her state license as a massage therapist for having sexual relations with her husband. Her husband, Kirk Fjellman, is a former client. He saw her professionally from October 2000 to May 2002, and the two say they started dating in July 2002. But when they consumated the relationship a few months later, they ran afoul of a Minnesota law that bans massage therapists from having sexual relations with former clients for two years.
"There's no harm, no victim," Kirk Fjellman said. "What's this about?"" Yahoo News Link to Article (last visited 8-7-06 NVS)
Chinese Parents Seek Missing Children
"Taking a page out of the US military's handbook, parents in China have printed up playing cards with photos of their missing children in an effort to find them, state press reported.
The first batch of 10,000 playing cards with photos of 27 missing children were printed this month in the eastern province of Jiangsu, according to Xinhua news agency. Families of the missing children each paid 600 yuan (75 dollars) to have their child's photo placed on the cards, Shen Hao, the organizer of the project, told Xinhua. Telephone numbers of people who can be contacted if someone recognizes the child are placed under each photo." AFP, Yahoo News Link to Article (last visited 8-7-06 NVS)