February 25, 2006
Case Law Development: Utah Supreme Court Removes Judge with Three Wives
The Utah Supreme Court Friday found that Judge Walter Steed flouted state law by engaging in a plural relationship with three women and ordered him to step down from office. In an opinion authored by Associate Chief Justice Michael J. Wilkins, the court affirmed the earlier decision of the Utah Judicial Conduct Commission, which had said that judges must comply with laws they are expected to uphold.
Associate Chief Justice Wilkins said that Steed brought disrepute to the office by violating Utah's bigamy statute during the 25 years he served on the bench. He wrote that “In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective. A judge ignores the clearly stated criminal prohibitions of the law at his or her peril. . . . . Civil disobedience carries consequences for a judge that may not be applicable to other citizens. The dignity and respect accorded the judiciary is a necessary element of the rule of law. When the law is violated or ignored by those charged by society with the fair and impartial enforcement of the law, the stability of our society is placed at undue risk.” News Source: Brooke Adams, The Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited February 25, 2006, reo). Download Utah ruling.pdf
Legislative Development: South Dakota Challenges Roe v. Wade
With the passage Friday of an abortion bill in the South Dakota State Senate 23-12, the stage is set for a direct attack on Roe v. Wade. The bill outlaws abortion and makes no exceptions for a pregnancy caused by incest or rape. The only exception is if the abortion was necessary to save a pregnant woman's life. Doctors performing abortions could receive up to five years in prison. The bill is expected to pass the House again and then go to Governor Mike Rounds' desk. Source: AP, MSNBC.msn.com. A video interview conducted by MSNBC with South Dakota Governor Mike Rounds following passage of this bill may be found here (last visited February 25, 2006, reo). A copy of the Enrolled Bill may be found here.
Afghanistan Legislator Calls for Enforcement of Chaperones for Women Who Travel
According to Ms. Magazine, Afghan women would be forbidden to travel without a male chaperone if a male member of the Afghanistan parliament has his way. It reports that Al-Haji Abdul Jabbar Shalgarai has called the participation of two women members of the Afghanistan parliament in a major donor’s conference “un-Islamic” and a violation of the law because they traveled without their husbands. Shalgarai said they had violated sharia law, which allows women to travel for more than three days only if they are accompanied by a male relative. Although the Afghan Constitution guarantees woman’s rights, a constitutional provision states that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” Women’s and human rights advocates have raised concerns about this provision and other language that leaves issues not addressed in the constitution or by law to adjudication by religious laws. Source: Ms. Magazine, msmagazine.com. For the complete story, please click here (last visited February 25, 2006, reo).
France Gives Gay Partners Custodial Authority
France’s highest court ruled Friday that both partners in a homosexual relationship can exercise parental authority over a child born to one of them.The decision has reopened debate over gay marriage and the adoption of children by same-sex couples, which remains illegal in that country. The decision also applies to male homosexual couples, where one of the partners is the biological father of a child. The court wrote that “The civil code is not opposed to a mother, as sole holder of the parental authority, delegating all or part of the duties to the woman with whom she lives in a stable and continuous union.” Source: Reuters.co.uk. For the complete story, please click here (last visited February 25, 2006, reo).
February 24, 2006
Case Law Development: Recognition of Custody Orders of Foreign Countries Required
The Massachusetts Supreme Court holds that a trial court must respect the custody determination of a foreign state so long as that judgment is procedurally comparable to a domestic judgment. The child in this action was born in Trinidad, West Indies and was residing in Boston with Mother. Father, who lives in Trinidad, filed a petition in the Massachusetts court to enforce a Trinidad consent decree that awarded the mother physical custody of the son, but prohibited either parent from taking the son out of Trinidad, except by agreement of the other parent or by court order. The Massachusetts Supreme Court affirmed the trial judge's order for enforcement of the Trinidad consent decree.
The court concluded that both under Massachusetts statutes regarding enforcement of foreign custody orders and under principles of comity, the court was required to respect the foreign order because it was in "substantial conformity" with Massachusetts law. The "substantial conformity" test, requires proof that the foreign court had jurisdiction over the parties and over the subject matter; applied procedural and substantive law reasonably comparable to Massachusetts law; and was based on a determination of the best interests of the child. Finding that the Trinidad court met these requirements, the court could not look further to examine the substance of the underlying order.
Khan v. Saminni, 2006 Mass. LEXIS 33 (February 15, 2006)
Opinion on the web (last visited February 23, 2006 bgf)
Case Law Development: New Hampshire Husband's Divorce of Wife under Islamic Law Did Not Deprive State Court of Jurisdiction to Grant Divorce
The New Hampshire Supreme Court affirmed the trial court's divorce in this action in which Husband claimed he had already divorced his wife under his country's law. The couple were married in Lebanon in 1986 and lived for considerable periods in both the United States and the Middle East during their marriage. Husband claims that on the day before Wife filed for divorce in New Hampshire, he initiated a divorce under Islamic law by declaring "I divorce you" three times in succession in the presence of the petitioner and that he telephoned an attorney in Lebanon on the same day and declared, with two witnesses listening, that he had divorced his wife. Thus, he argued the New Hampshire court lacked jurisdiction.
New Hampshire statutes provide that a “divorce obtained in another jurisdiction shall be of no force or effect in this state . . . if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court of appeals concluded that this statute applied to foreign divorces as well and that, because both parties were domiciled in New Hampshire when the action was commenced, the trial court did not err in refusing to dismiss the divorce petition for lack of subject matter jurisdiction. The court likewise rejected Husband’s argument that dismissal was required by principles of comity, noting that comity is a discretionary doctrine and that, given that the parties and their children had been domiciled in New Hampshire for at least the past three years and the considerable burdens that Wife would have to bear in going to Lebanon to obtain a divorce, public policy dictated that the New Hampshire court retain jurisdiction.
In re Ramadan, 2006 N.H. LEXIS 15 (February 14, 2006)
Opinion on the web (last visited February 23, 2006 bgf)
February 23, 2006
Woman Accused of Molestation Gives Birth
"A woman accused of molesting a 15-year-old boy she later married gave birth to the couple's child over the weekend, the woman's lawyer said Monday. Lisa Clark, 37, gave birth to a 7-pound, 9-ounce boy Saturday, Daniel Sammons said. The baby could be put in state custody unless Clark can arrange the necessary paperwork for a friend to take temporary custody before Clark is discharged from the hospital and returned to jail, where she will be held without bond, Sammons said." USA Today, AP Link to Article (last visited 2-22-06 NVS)
Bombs and Arranged Marriage
"Two Queens brothers called in an airport bomb threat in a failed attempt to keep their sister from leaving town to get out of an arranged marriage, authorities said. Amandeep Singh, 24, and Gurpreet Singh, 26, were arrested Thursday on charges they phoned MacArthur Airport in Islip on Jan. 17 and gave a bogus tip that terrorists were planning to bomb a plane. Suffolk County police said the men were trying to stop their sister from flying to Atlanta to be with her boyfriend, ruining plans the family had made for her to marry a doctor in India." AP New York, Newsday.com Link to Article (last visited 2-22-06 NVS)
Virtual Visitation Bill
Sen. Jay O'Brien of Virginia is proposing "a bill that would allow judges to include "virtual visitation" — e-mail, instant messaging, etc. — in child-custody proceedings. "Suppose there's a divorce with joint custody, but the wife has primary custody because the children live with her," he said. "It's reasonable to think the dad could communicate with his children when he doesn't see them. This gives him the legal authority to do that."" By Bonnie Hobbs, The Connection Link to Article (last visited 2-22-06 NVS)
Petition for Same-Sex Marriage in Portugal
Marriage equality advocates in Portugal submitted a petition to Parliament on Thursday seeking civil marriage rights for same-sex couples. The petition bears 5,000 signatures was delivered to lawmakers in Lisbon, according to an Agence France-Press news report. Petitions with at least 4,000 valid signatures can influence the country's laws, as parliamentarians must consider such initiatives and decide whether or not to put the issues to a debate. Earlier this month two lesbians made headlines when they tried to register their marriage with civil authorities. The failed attempt helped mobilize gay rights activists, who claim that the marriage law is inconsistent with the Constitution, which was revised in 2004 to prohibit discrimination based on sexual orientation. By PlanetOut Network Link to Article (last visited 2-22-06 NVS)
February 22, 2006
Case Law Development: New York’s Highest Court Rules Alleged Victims of Pedophile Priests Waited Too Long to File Complaints
On Tuesday the New York Court of Appeals ruled in Zupano v. Quinn and Estate of Brendan Boyle, et al., v. Smith, that the Plaintiffs in these two sexual abuse cases were barred by the state’s statute of limitations from pursuing their claims against the Roman Catholic Diocese of Brooklyn. The plaintiffs had filed a $300 million lawsuit alleging that they were victims of 13 pedophile priests in Brooklyn and Queens. The court ruled that the alleged victims had waited too long to seek justice.
In Zupano the plaintiff argued that he suffered abuse from 1963 to 1970 that left him mentally incapable of bringing a suit before the statute of limitations expired. In Brendan the 42 plaintiffs argued that abuse they suffered abuse from 1960 to 1985 and contended that the statute of limitations should be equitably tolled.
In rejecting the plaintiffs claims, Justice Ciparick wrote that “each plaintiff was aware of the sexual abuse he or she suffered at the hands of defendant priests. Certainly they had sufficient knowledge to bring an intentional tort cause of action against the individual priests. Plaintiffs were likewise aware that the priests were employees of the Dioceses and could have brought actions against the Dioceses, or at least investigated whether a basis for such actions existed.” Justice Ciparick also observed that the plaintiffs failed to “allege any specific misrepresentation to them by defendants, or any deceptive conduct sufficient to constitute a basis for equitable estoppel. Nor is there any indication that further discovery would yield such information.”
Plaintiff Zumpano alone contended that he suffered from a mental disability as a direct result of defendants' abuse and that he was consequently rendered incapable of protecting his legal rights. In rejecting his claim, Justice Cirparick wrote that “This argument also lacks merit as he fails to establish a continuing disability.” The Court said that its holding was in keeping with those in several other jurisdictions addressing similar issues including Pennsylvania, Michigan, California, and Maryland. Download here the slip opinion of the New_York_Court_of_Appeals_Statute_of_Limitations_decision involving child_abuse.pdf (reo)
Massachusetts Catholic Bishops Request For Gay Household Adoption Exemption Not Well Received
A request by Massachusetts' four Roman Catholic bishops to exempt Catholic social service agencies from having to place adoptive children with gay households was given a cool reception by Governor Mitt Romney. He told the The Boston Globe that he was not authorized to give such an exemption. The chairman of the House joint committee on the judiciary said there would be little support among lawmakers for an exemption from the state's antidiscrimination laws. Source: WCVB-TV, TheBostonChannel.com. Please click here for the complete story (last visited February 22, 2006, reo)
Efforts to Ban Gay Adoption “Heats Up”
It was report Monday in USA Today that efforts to ban gays and lesbians from adopting children are emerging across the United States as a “second front in the culture wars that began during the 2004 elections over same-sex marriage.” The newspaper says that the effort to pass laws for a November ballot initiative are underway in at least 16 states. Florida bans adoption by gays and lesbians although they can be foster parents. Mississippi bans adoption by gay couples, but gay singles can adopt. Utah prohibits all unmarried couples from adoption. Source: Andrea Stone, USA TODAY, usatoday.com. Please click here for the complete story (last visited February 22, 2006, reo)
Legislative Development: Virginia Legislature Sends Bill to Democratic Governor Putting Gay Marriage Constitutional Amendment on Ballot
The Virginia legislature sent a bill to Democratic Governor Timothy M. Kaine’s office on Monday that proposes a constitutional amendment to that state’s Constitution barring same-sex marriage. The measure passed the state’s senate on Friday and was approved by its House of Delegates on Monday. The bill requires that voters see the full-text of the constitutional amendment to ban homosexual "marriage" -- not just a summary. Although Kaine can veto the full-text requirement, he cannot stop the constitutional question going before the voters in the fall. Source: Kristen Gelineau, AP, The Washington Times, washingtontimes.com. http://washingtontimes.com/metro/20060220-111641-3370r.htm
Chicago Parents Battle over Circumcision
A Cook County, Illinois judge last Friday ordered a mother not to circumcise her 8-year-old son until the court can hear arguments from the child's father. He opposes the operation, and the court must decide whether the operation will cause the child physical and emotional harm and is not in the boy's best interests. The ex-husband contends that the operation is an “unnecessary amputation.” Source: Judy Peres, Chicago Tribune, montereyherald.com. Please click here for the complete story (last visited February 22, 2006, reo)
Supreme Court to Hear Partial Birth Abortion Ruling
The United States Supreme Court has agreed to review the question of whether a federal statute banning “partial birth” abortions is constitution. The Court said Monday that it will review the decision of a panel of the 8th Circuit Court of Appeals in the case Carhart v. Gonzalez. In that case, the 8th Circuit ruled that the federal statute was unconstitutional because it lacked an exception for the health of the mother. The Second and Ninth federal Circuits have also found similar laws to be unconstitutional. Download Here the Eightn_Circuit_Partial_Abortion_Decision.pdf (reo).
February 21, 2006
Case Law Development: Contempt in Enforcing Lump Sum Alimony
The Florida Court of Appeals has held that, although contempt is not available in Florida to enforce equitable distribution, it is available in case of nonpayment of alimony. The court upheld its use in this case where husband failed to pay lump sum alimony which had been ordered after husband failed to comply with the court's order that he pay wife a share of the proceeds of sale of equitably distributed property.
Bongiorno v. Yule, 2006 Fla. App. LEXIS 1970 (February 17, 2006)
Opinion on the web (last visited February 21, 2006 bgf)
Case Law Development: Plenty of Property Division Issues
The Alaska Supreme Court reviewed a multitude of property division issues in a case that reads like a family law final exam (!) Without giving away too much of the answer, here are some of the questions the court decided:
- Suppose Wife, a dermatologist, earns nearly five times more than her husband, an unemployed nurse, but is a parapalegic, with a high risk of future medical problems that would render her unable to work. Is maintenance appropriate? (no)
- Should Wife's significant health issues justify granting her a majority of the marital assets despite her higher earnings? (yes)
- Should a court give great weight in property division to the fact that Wife's parents made considerable loans to the couple during the marriage and that Wife contributed substantial separate funds to the marriage? (Limited weight is enough - no need to, in effect, provide an accounting)
- If wife's medical practice during the period the couple was separated generated substantial profits - profits in excess of what might be attributed to her efforts alone -- should those excess profits be treated as marital property even though one cannot prove goodwill in the medical practice and even though Alaska holds that earnings during separation are separate? (whew! The answer is yes, the excess profits should be valued and treated as marital property).
- Where the court required Wife to make a cash payment to Husband, was the court also required to give Wife a credit for the costs and taxes involved in liquidating property? (No, not if the court didn't order the sale and there was no indication that the sale was required or imminent).
- Need the court include loans from parents as marital debt to be divided if the parents have never demanded payment and there is evidence that they did not treat the loans as enforceable obligations? (No, the court need not characterize these "loans" as marital debts)
- If a court erroneously classifies one spouse's $1200 gift to another as marital property in a case with a marital estate over 2.8 million dollars, is this reversible error? (No, "The process of classifying marital property in a divorce is not an end in itself but simply serves to inform the trial court's decision on the ultimate issue of what constitutes an equitable distribution of the marital estate.")
Good luck grading!
Fortson v. Fortson, 2006 Alas. LEXIS 23 (February 17, 2006)
Opinion on the web (last visited February 20, 2006 bgf)
Case Law Development: Kansas Court of Appeals Affirms Grandparent and Stepparent Visitation Where Parent's Refusal in Unreasonable
The Kansas Court of Appeals decided two cases interpreting its Stepparent and Grandparent Visitation statute, granting visitation over the objection of the parents in both cases.
In the first case, involving a stepparent visitation, the court found that the statute's grant of unlimited discretion in granting visitation violates the due process requirements set forth in Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). However, the court found that it could engraft on the statute the limitations set forth in other visitation statutes in order to satisfy constitutional standards. Accordingly the court held that a trial court may order stepparent visitation "upon a finding that (1) the visitation is in the child's best interest, and (2) there exists a substantial relationship between the child and the stepparent." The court noted that
"the trial court must give material weight and deference to the position of a fit parent and ... not substitute its judgment for the parent's, absent a finding of unreasonableness." The mother, who had divorced stepfather, had proposed that stepfather not have visitation with her 7-year-old unless the child wanted that visitation. The trial court had denied visitation but the court of appeals reversed, finding mother's proposal unreasonable and concluded that it "abdicates all parental guidance over the child and is tantamount to no visitation plan at all."
In re Marriage of Riggs, 2006 Kan. App. LEXIS 130 (February 17, 2006)
Opinion on the web (last visited February 20, 2006 bgf)
In a second case decided the same day, the court rejected an argument that the courts should give absolute deference to the decision of two fit parents in an intact family to cut off grandparent vistitation. Instead the court of appeals noted that the Kansas grandparent visitation statute requires only a showing that the grandparents have a substantial relationship with the grandchildren and the court must presume that parents are acting in their children's best interest and give their decisions "special weight." Under that standard, the court affirmed a trial court's decision to grant grandparent visitation to children whom the grandparents had last seen when the children were 3 and 1 year old. The parents had cut off contact with grandparents after Grandparents had insisted that parents pursue investigation and counseling of an incident of alleged sexual abuse of the 3 year old by a cousin. The trial court found that decision to be "unreasonable, arbitrary and punitive." The court concluded that there was a substantial relationship between the grandparents and the 3 year old and, to the extent there was only a "developing relationship" with the one-year-old child, the court concluded that the need to treat siblings similarly justified granting the motion for visitation with the younger child as well.
Davis v. Heath, 2006 Kan. App. LEXIS 124 (February 17, 2006)
Opinion available on line (last visited February 21, 2006 bgf)
Case Law Development: Interpreting Settlement Agreements Strictly
How should courts interpret marital settlement agreements: with the strict construction of standard contract law or with a more flexible approach drawn from equity? Should we police marital settlement agreements with the same degree of judicial control as we do other fiduciary contracts? With a thumb on the scales toward which side? Should forfeitures in such contracts be disfavored more or less than in other contracts?
The Florida Court of Appeals recently split over these questions involving an agreement providing Wife an option to purchase the marital home. The majority, in a very brief opinion, affirmed the trial court’s decision to strictly enforce Wife’s deadline for closing, reasoning that the contract provided a deadline which Wife had the opportunity to act within but chose not to because she had obtained an unfavorable interest rate.
The dissent argued that the contract itself did not specify that time was of the essence and that courts interpreting settlement agreements should sit as courts of equity. The dissent’s viewed the former wife's request for additional time to close on the property as arising from the former husband's refusal to allow the former wife to purchase the property through the assistance of third parties so that she could procure a more favorable interest rate. According to the dissent, “the sale proposed by the former wife would have accomplished the parties' intentions under the agreement. The trial court's and the majority's resolution of the matter frustrates those intentions and runs afoul of equitable principles.”
McCutcheon v. Tracy, 2006 Fla. App. LEXIS 1145 (February 1, 2006).