Wednesday, March 21, 2007

Case Law Development: Allegations of Wife's Attempted Murder of Husband Do Not State a Claim for Terminating His Maintenance Obligation

The Missouri Supreme Court affirms the dismissal of an ex-husband's petition to terminate maintenance based on his allegations that wife had sought to have him murdered.  The couple had agreed to a non-modifiable maintenance term in their divorce decree.  The Supreme Court noted that Missouri statutes provide that such an agreement, when found conscionable and incorporated into a divorce decree, binds the court:

A non-modification provision can cut both ways. No one can know which party will need more or deserve less as time passes. As with all contract terms, a non-modification provision is an agreed allocation of future risk, bargained for and for which consideration is exchanged. The Missouri legislature has seen fit to allow such a clause to be elevated from contractual to judicial status by incorporation into the dissolution decree. We are bound to respect the statute and to enforce these documents as agreed to and ordered.

The court rejected husband's argument that a court may reconsider the conscionability of the agreement based on later events. It likewise found that waiver was inapplicable as the attempt to murder husband would not establish a "clear and unequivocal attempt to relinquish her contractual right to maintenance so long as [husband] is living."  Finally, the court rejected the application of the public policy doctrine which prohibits an individual from receiving death benefits when they have murdered their spouse.  Reasoning that wife would not benefit from the successful murder of husband, the court found these cases inapplicable.

Richardson v. Richardson, 2007 Mo. LEXIS 39 (March 20, 2007)
Opinion on web (last visited March 20, 2007 bgf)

March 21, 2007 in Maintenance (alimony) | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Child Support for Ward of a Divorced Couple Is Not Terminated When Ex-husband Withdraws as Guardian

The Indiana Supreme Court reversed a trial court's modification of child support in a case involving a couple who had become guardians of Wife's grandson from a prior marriage. Ten years after the guardianship was established, the couple divorced.  The trial court incorporated into its decree the parties' settlement agreement, in which the couple agreed to share custody of the grandson and Husband agreed to pay Wife for some of the expenses of raising the grandson. 

After the dissolution, Husband remarried, withdrew as guardian, and sought modification of the decree's section about payments for the benefit of the grandson. The trial court granted modification, and the Court of Appeals affirmed. The Indiana Supreme Court concluded that termination of guardianship was not grounds for modifying the dissolution decree.

The court rejected Wife's argument that Husband was in loco parentis to the grandson, and thus obligated to obigated to pay child support as if he were the father, reasoning:

...it makes little sense to require child support from a person in loco parentis when that status is temporary in nature and essentially voluntary. The stand-in parent would effectively be able to choose whether or not he or she should be required to pay child support simply by choosing to continue or discontinue the relationship. It also seems unwise to create a layer of financial risk for adults who voluntarily provide financial and emotional support to children not their own. Lastly, it is difficult to imagine imposing parallel obligations on the institutions (like juvenile courts or universities) to which in loco parentis is commonly deployed.

The court did, however, find that there were no grounds for modifying the decree.  The court considered whether the agreed payments were best characterized as maintenance, child support, or disposition of property, but concluded that, regardless of the characterization, "the termination of guardianship has little practical effect" as there were no grounds for modifying the dissolution decree under any one of these theories.

In re Marriage of Snow, Indiana Supreme Court (March 13, 2007)
Opinion on web (Last visited March 20, 2007 bgf)

March 21, 2007 in Child Support (establishing) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Preference for De-Facto Parent Applies in Adoption Case rather than Placement with Relatives

The California Court of Appeals weighed the application of preferences for relatives versus caregivers in child protection cases in deciding whether a 10-year-old girl should be removed from the home of her de-facto parent and placed with her maternal aunt in Oregon.  The trial court had ordered the girl removed from her de-facto parent, placed her with her aunt with an adoption plan, and terminated the girl's parental rights.  Both the girl and her de facto parent appealed.  The court of appeals reversed, holding that the preference for placing children with relatives did not apply in this case because the child was already placed with the de-facto parent and no new placement was necessary.  While the de-facto parent had not yet been able to have the court designate her as a "prospective adoptive parent" (which provides more procedural protections), she intended to adopt the child, so that the caretaker preference standards should have been applied.  Aunt had argued that the caretaker preference could not come into play until after termination of parental rights, but the court of appeals concluded that the preference arose whenever adoption became the permanency plan.  The court concluded that the trial court had preferred placement with the aunt because it had misunderstood the impact of the relative placement and remanded for consideration of the de-facto parent's application "on a level playing field."

The case would make a fascinating case study, both for the careful legislative interpretation necessary to decide when each preference applies, and for consideration of the importance of timing and procedural posture in child protection cases. 

In re Lauren R., Cal. App. 4th District (March 19, 2007)
Opinion on web (last visited March 20, 2007 bgf)

March 21, 2007 in Adoption | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2007

New Strategies for Gay Rights?

"Aronda Kirby and Digit Murphy were once married to men, received the tax breaks for married couples and were legally permitted to take family leave if their husbands or children got sick. Both women lost those protections when they came out as lesbians, divorced their husbands and set up a new household together with their six children.

Now, with couples like Murphy and Kirby in mind, some gay rights advocates who previously fought for ''marriage or nothing'' are shifting strategies. Rather than fighting to legalize marriage for same-sex couples, they're lobbying for the protections marriage provides.

Those who follow the movement say bills taking that approach that were introduced this year in Rhode Island and Washington state could signal a broader change in tactics, although some gay marriage advocates fear it could undercut more than a decade of work." AP, N.Y. Times Link to Article (last visited 3-19-07 NVS)

March 19, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Criminal Intimate Abuse Declining?

"Criminal violence against intimate partners has dropped nearly two-thirds in recent years and has reached a record low, preliminary government figures show. Current and former spouses, as well as unmarried couples, have reported falling victim to criminal abuse far less than they did in the 1990s, according to the federal Bureau of Justice Statistics.

Domestic violence experts are quick to point out that the trend has not lessened the demand for shelters for victims, but they credit new laws, expanded services and better enforcement for a shift in public awareness. They say continued efforts to educate people are needed for more improvement." By Frank Greve and Anthony Lonetree, StarTribune.com Link to Article (last visited 3-19-07 NVS)

March 19, 2007 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Adopted Partner as Heir to Estate

"On an island liberally sprinkled with the affluent and well-connected members of such clans as Bush, du Pont, Rockefeller and Cabot, the Watson family occupies a special place. The family, descendants of Thomas J. Watson Sr., the founder of I.B.M., owns more than 300 acres worth nearly $20 million on the northern tip of this sea-splashed idyll 90 miles northeast of Portland. Over four decades, various Watsons summering here have flown helicopters and other aircraft; driven antique cars and collected scrimshaw. The family has held an annual square dance at their compound, Oak Hill.

Recently, though, the Watson name has surfaced in a different context, a most unusual lawsuit. It concerns Olive F. Watson, 59, granddaughter of the I.B.M. founder and daughter of Thomas J. Watson Jr., the company’s longtime chief executive; and Patricia Ann Spado, 59, her former lesbian partner of 14 years.

In 1991, Ms. Watson, then 43, adopted Ms. Spado, then 44, under a Maine law that allows one adult to adopt another. The reason, Ms. Spado has contended in court documents, was to allow Ms. Spado to qualify as an heir to Ms. Watson’s estate. But less than a year after the adoption, Ms. Watson and Ms. Spado broke up. Then in 2004, Ms. Watson’s mother died, leaving multimillion-dollar trusts established by her husband to be divided among their 18 grandchildren.

Re-enter Ms. Spado with a claim: Because she was adopted by Olive F. Watson, she said, she is technically Thomas J. Watson Jr.’s 19th grandchild and is therefore eligible for a share of the trusts." By Pam Belluck and Alison Leigh Cowan, N.Y. Times Link to Article (last visited 3-18-07 NVS)

March 19, 2007 | Permalink | Comments (0) | TrackBack (0)