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)