August 3, 2007
Case Law Development: Division of Increased Value of Separate Property in Missouri Explained
The Missouri Court of Appeals reviewed the division of the increased value of several pieces of real property that were Husband's separate property in an opinion that nicely demonstrates the operation of the "proportionate share" approach to dividing increased value.
The case involved a couple who were divorcing after thirteen years. They had entered into a antenuptial agreement before the marriage that declared that each party would keep their separate property as separate; however, Husband failed to plead the antenuptial as an affirmative defense so that the court of appeals held that the trial court had erred in allowing the agreement to be introduced into evidence.
The properties at issue included some unimproved land Husband had owned before the marriage and an additional parcel of land he inherited during the marriage. Under Missouri law, property owned before marriage or acquired by gift, bequest or devise is separate property. However, Missouri also applies the rule that income from separate property is marital and the the increase in the value of separate property may be considered marital to the extent it is the product of marital contributions. The trial court had held that the entire equity of both parcels was marital property because of improvements that were financed by rental from the properties and loans paid by marital funds. However the court of appeals reversed the trial court's calculation, noting that the increased value that is marital should be determined by a percentage reflecting the ratio of marital contribution to total contributions.
The case provides detailed financial accounting for each item of property and would make an excellent exercise for students in considering the various approaches used to divide increase in value.
Holman v. Holman, 2007 Mo. App. LEXIS 1073 (July 26, 2007)
Opinion online (Last visited August 2, 2007 bgf)
Case Law Development: Abuse of Discretion in Change of Custody Actions
The Florida Court of Appeals split over whether the trial court had abused its discretion in changing custody from Mother to Father based on Mother's failure to have child vaccinated, her frequent moves, and Father's remarriage and improved home circumstances. The case presents a fascinating window into how difficult it is to separate out financial considerations from the custody determination. Mother had refused to have her child given the chicken pox vaccine, because of her concerns with the vaccine, and the child contracted chicken pox at age 4. Mother also had not taken the child to the doctor as often as Father and had moved six times in four years. Mother claimed that her moves and the fact that she had not taken the child to the doctor as often as Father were due to her financial circumstances. In particular, she argued that she waited for Father to take the child to the doctor because child was insured by Father's wife and Father had refused to give Mother a copy of the insurance card. The majority found Father's remarriage of 2 1/2 years and stable and economically improved home life, along with Mother's moves and neglect of medical appointments, were changed circumstances sufficient to change custody. The dissent found these same circumstances to simply be a choice between the relative financial security of a couple when, "in every other aspect, the parties have an equal capacity and disposition to provide the child with her needs."
San Marco v. San Marco, 2007 Fla. App. LEXIS 11413 (July 25, 2007)
Opinion on line (last visited August 2, 2007 bgf)
Case Law Development: New Jersey Determines Standards for Ineffective Assistance of Counsel in TPR Cases
The Supreme Court of New Jersey resolved a number of issues regarding ineffective assistance of counsel in cases involving termination of parental rights. In an opinion that provides a thorough survey of various state approaches to the issues presented, the court held that:
- the right to effective assistance of counsel in New Jersey is both statutory and constitutional
- the standard for reviewing effective assistance of counsel should be the Strickland standard rather than the "fundamentally fair" standard used by some states.
- the procedure for post trial examination of ineffective assistance claims should be by direct appeal rather than in post trial motions in the trial court.
In the Matter of Guardianship of AW and AR, 2007 NJ LEXIS 908 (NJ Sup. Ct. July 25, 2007)
Opinion online (last visited August 2, 2007 bgf)
August 2, 2007
Case Law Development: Dividing Proceeds of Wrongful Death Award upon Divorce
The Iowa Supreme Court addressed equitable division of a wrongful death award. The case involved a couple who were divorcing after a 22-year marriage. Fifteen years earlier, the couple's oldest son was killed in an auto accident. His mother witnessed the accident. Both parents filed wrongful death actions and settled their separate claims, with mother receiving a settlement of over $400,000 more than father. Both parents received payments on the settlements, which were treated as marital income by the couple. Upon divorce, the court divided the future payments made to either party to be divided equally. Mother argues that she should have been awarded a larger share of the payments because the difference between her and her husband's awards represented the compensation for the emotional distress she suffered from witnessing the accident. However, the court was unable to determine the portion of the award that was attributable to her emotional distress and concluded that an equal division of the award was not inequitable.
In re Marriage of Arends, 2007 Iowa App. LEXIS 846 (July 25, 2007)
Opinion online (last visited August 1, 2007 bgf)
Case Law Development: Adoption of Parent Does Not Sever Grandparent's Ties to Grandchildren
The Indiana Court of Appeals held that if a parent is adopted, that adoption does not sever the grandparent's ties to the parent's children. In this case, grandmother had been granted visitation rights to mother's child. Thereafter, mother, who was 22 years old, was adopted by cousins. Mother then sought to terminate the grandmother's visitation rights arguing that the grandmother was no longer the child's grandmother by virtue of that adoption. Mother did not further argue that visitation was not in the child's best interests.
The court concluded that "The mother's decision to legally sever ties with the grandmother did not automatically and for purposes of the Grandparent Visitation Act sever all of the grandmother's ties with her biological grandson."
Handshoe v. Ridgway (In re J.E.M.), 2007 Ind. App. LEXIS 1657 (July 23, 2007)
Opinion online (last visited August 1, 2007 bgf)
Case Law Development: Reinstating Parental Rights after Termination
The California Court of Appeals has held that an individual who has had her parental rights terminated may not thereafter seek reinstatement of her legal rights through the presumed parenthood statute. The case involved a mother whose parental rights were terminated and her child was adopted by his sibling's father, who thereafter allowed the child contact with the mother. When the state brought a second dependency action against the adoptive father, both the mother and the child moved to allow mother to intervene in the action as a de facto parent.
Mother argued that allowing assertions of presumed parent status when parental rights were previously terminated is proper in a second dependency proceeding against an adoptive parent, because “[f]or many children who were adopted by relatives or family friends, the social, emotional relationship between biological parent and child continues.” Mother’s children wanted to return to her and mother’s social worker supported her position.
The court found that the plain language of the statute, however, would allow a collateral attack on a termination action and concluded that “any exception to the statute for circumstances such as those here would have to come from the Legislature. There is simply no statute that would allow [Mother] to be designated a presumed mother after the termination of her parental rights."
In re Cody B., 2007 Cal. App. LEXIS 1238 (July 27, 2007)
Opinion on line (last visited August 1, 2007 bgf)
Battle over Benefits for Couples Entering Civil Unions in New Jersey
The New York Times reports that couples who enter into a civil union in New Jersey still face significant hurdles in having their employers recognize their partners for purposes of benefits.
Read the story (last visited August 2, 2007 bgf)
Professor Dave Hoffman of Temple University School of Law has posted a fascinating report on an investment device that looks something like Divorce Insurance at his blog "Concurring Opinions" Couples purchase an annuity which pays out in 25 years, or immediately if they divorce.
July 31, 2007
Case Law Development: Single Family Housing Ordninace Constitutional
Many family law textbooks begin with an examination of the definition of "family" -- with zoning law cases taking center stage in the debate. The most recent opinion on the constitutionality of formal definitions of "family" comes from the Iowa Supreme Court, which in a 4-3 decision held that a city zoning ordinance that prevents multi-family dwellings in some neighborhoods does not breach the Equal Protection clause. The split opinion presents great reading for our students.
The case involved a suit by a landlords' association challenging the Ames Iowa single-family zoning ordinance. Ames is a university city experiencing an inflow of students into established residential areas. The landlord association challenged the constitutionality of the ordinance based on its definition of "family" as "Any number of people related by blood, marriage, adoption, guardianship or other duly-authorized custodial relationship."
However the Supreme Court found the definition rationally related to a legitimate government objective and noted that "It is the City's prerogative to fashion remedies to problems affecting its residents.... The court's power to declare a statute or ordinance unconstitutional is tempered by the court's respect for the legislative process."
The dissent argued that the city's family definitions are outdated and unconstitutionally restrictive. "Today it is not unusual to see a group of unrelated single persons living together and sharing expenses.... The simple fact is that in today's modern society the overinclusive and underinclusive examples identified in this dissent and by other courts that have found similar ordinances unconstitutional are closer to the norms than to the extremes,"
Ames Rental Property Association v. City of Ames, (Iowa Supreme Court July 27, 2007)
Opinion online (last visited July 30, 2007 bgf)
Case Law Development: Dividing Increase in Asset Value
In a case that would provide a fine basis for a class discussion problem, the Supreme Court of Iowa considers equitable distribution of asset appreciation in a 15-year marriage. The court held that the trial court had erred in not dividing the increase in the value of both spouses’ premarital assets. The trial court had awarded each spouse the passive increase in the value of their premarital assets but had divided the increase it attributed to marital efforts.
The Supreme Court reversed, finding that marital contributions were of little help in determining what was equitable in a 15-year marriage:
We do not find the parties’ respective contributions to the marriage justify treating the parties differently. Michele’s biggest criticism of Ted is his “failure without good cause to contribute financially to the marriage consistent with his earning capacity.” However, we have never held or even insinuated that spouses should maximize their earning potential or risk being punished in the distribution of the parties’ property.
Iowa is a no-fault state. … It is important to remember marriage does not come with a ledger. … Spouses agree to accept one another “for better or worse.” Each person’s total contributions to the marriage cannot be reduced to a dollar amount. Many contributions are incapable of calculation, such as love, support, and companionship. “Financial matters . . . must not be emphasized over the other contributions made to a marriage in determining an equitable distribution.” … Nor do we find it appropriate when dividing property to emphasize how each asset appreciated—fortuitously versus laboriously—when the parties have been married for nearly fifteen years.
The court did, however, allocate to husband $22,000 of debt that he had incurred after wife’s petition for divorce. Because husband was unable to explain why he had incurred this debt or how it had been spent, the court found it equitable to allocate this debt exclusively to husband. The opinion provides a fine summary of Iowa law on dissipation of marital assets and division of debt.
In Re Marriage of Fennelly, (July 20, 2007)
Opinion online (last visited July 30, 2007 bgf)
2007 Kids Count Data Book available
The 18th Annual Kids Count Data Book is now available from the Annie E. Casey Foundation. The data book provides national and state-by-state information and statistical trends on the conditions of America’s children and families. Among the key indicators the data book tracks are infant, child and teen deaths; low-birthweight babies, teen births, high school dropout, teens not in school and not working, children living in families where no parent has full-time, year-round employment; children living in single-parent families, and percentage of children in poverty.
July 30, 2007
Case Law Development: Florida Supreme Court Requires Adoption Agencies to Notify Unmarried Biological Fathers of Paternity Registry
In a decision that clarified a number of issues that had split the Florida appellate courts, the Florida Supreme Court has held that an unmarried father's parental rights may not be terminated based solely on failure to register in the putative father registry. "We hold that the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file a claim with the Florida Putative Father Registry only if the father was served with notice under section 63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within the thirty-day period."
The court did not eliminate the requirement that unmarried father's register in order to prevent the termination of parental rights. "The entire statutory scheme would be frustrated, including the interest in prompt adoption proceedings, if an unmarried biological father could avoid having his parental rights terminated prior to an adoption, even though he failed to comply with the requirements of section 63.062(2). In fact, section 63.054(1) contemplates that the termination of parental rights proceedings will operate against unmarried biological fathers in order to promote finality and certainty by providing that an unmarried biological father must file a claim of paternity with the Registry."
However, the court went on to analyze the notice an adoption agency must provide an unmarried biological father before the statutory registration requirement attaches. The court's statutory interpretation side-stepped constitutional challenges to the paternity registry.
The court noted that registration alone is insufficient to prevent termination of parental rights of unmarried fathers. The fathers must also file an affidavit of commitment in the court in order to establish and preserve his right to be made a party to any proceeding to terminate parental rights and to establish that his consent is required to the proposed adoption.
Heart of Adoptions v. J.A., Florida Supreme Court (July 12, 2007)
Opinion online (last visited July 27, 2007 bgf)
Family History, Not Genes, Predicts Divorce
Forbes magazine reports on an Australian twin study indicating that family history is more predictive of divorce than genetic history. "Adults whose own parents had split had nearly twice the risk of going through a divorce themselves, the researchers found. But there is no "gene" for divorce, so to speak, said lead researcher Robert M. D'Onofrio, an Indiana University psychologist. "Genetic factors that influence both generations do not [significantly] account for that increased risk," he said. The findings are published in the August issue of the Journal of Marriage and Family."
Read the Forbes article (last visited July 27, 2007 bgf)
Case Law Development: Ohio Supreme Court rules that domestic violence laws don't conflict with a state ban on gay marriage
Settling an issue that has split the Ohio Supreme Courts (see 2/15/07 Family Law Prof post), the Supreme Court of Ohio has upheld the constitutionality of the state's criminal domestic violence laws as applied to unmarried couples. In a 6-1 decision, the Ohio Supreme Court ruled that the domestic violence law does not conflict with the state's same-sex marriage ban merely because it protects unmarried cohabitants by extending protection to persons living together 'as a spouse.' Chief Justice Thomas Moyer said in the opinion that lawmakers included many groups under the domestic violence law, not just unwed couples, and that describing people's living arrangements isn't the same as creating a law approximating marriage. Ohio's constitutional amendment goes beyond merely prohibiting same-sex marriage but also prohibits the government from creating any approximations to marriage. 'The state does not create cohabitation; rather it is a person's determination to share some of life's responsibilities with another that creates cohabitation,' Moyer wrote. 'The state does not have a role in creating cohabitation, but it does have a role in creating a marriage.' In considering what would be legislation that violates the amendment, the court pointed to civil unions: “The second sentence of the amendment prohibits the state and its political subdivisions from circumventing the mandate of the first sentence by recognizing a legal status similar to marriage (for example, a civil union).”
State v. Carswell, ___Ohio St.3d___, 2007-Ohio-372 (July 25, 2007)
Opinion online (Last visited July 27, 2007 bgf)