August 18, 2007
Oklahoma Will Not Appeal 10th Circuit Same-Sex Adoption Decision
The Oklahoma State Department of Health will not appeal further the decision of the United States 10th Circuit Court of Appeals triking down a 2004 law aimed at same-sex adoptive parents. (See Family Law Prof post on the decision) Tom Cross, the state Health Department's deputy general counsel, said the agency could not meet the requirements to have the 10th Circuit reconsider its opinion. The agency does not believe that the U.S. Supreme Court would take up the case, he said.
Read the Tulsa World article (last visited August 18, 2007 bgf)
Case Law Development: Modifying Alimony in the Golden Years
After an 18 year marriage dissolved, Husband was ordered to pay alimony to Wife. Twenty-six years later, Husband (now 67 years old and in poor health) retires and sells his entire interest in his business, leaving him with social security benefits as his sole income. In response to Husband's motion to modify alimony, the trial court ordered that his alimony be reduced from $ 78,000 to $ 1 per year.
The Supreme Court of Connecticut, noting that it is a rare case in which it will reverse a trial court's decision to modify alimony, found that the trial court's focus on Husband's poor health and reduced income was too narrow.
We conclude that, in reducing the defendant's alimony obligation from $ 78,000 to $ 1 per year, the trial court improperly focused on the fact that the defendant's monthly income had been reduced from $ 14,880.14 to $ 1640, and failed to give proper consideration to the defendant's other financial resources. In addition, although the trial court properly considered the fact that the defendant had retired and was in poor health, it failed to give due weight to the plaintiff's health and financial situation. Accordingly, we conclude that, although the trial court properly determined that there had been a substantial change in circumstances justifying a modification of the defendant's alimony obligation, the trial court abused its discretion in determining the amount of that modification. We recognize that a finding of abuse of discretion in making financial awards in marital dissolution cases is very rare..... Nevertheless, in light of the extreme nature of the modification order and the trial court's misconception and misapplication of the statutory criteria, we are compelled to conclude that this is one of those rare cases.
Simms v. Simms, 2007 Conn. LEXIS 321 (August 14, 2007)
Opinion online (Last visited August 18, 2007 bgf)
Case Law Development: No Separate Cause of Action Available to Request Extended Visitation Under Texas Family Code
The Texas Court of Appeals, in a matter of first impression, holds that a custodial parent ("a possessory conservator" under the language of the Texas statutes) may not bring an independent cause of action seeking extended visitation. Such a request must, the court holds, be made before or at the time of an original custody order or a subsequent modification order.
If a possessory conservator fails to ask for extended visitation under section 153.317 until after the modification order is issued, then the request is untimely by virtue of the statute itself. Generally, a possessory conservator may seek a modification of a possession order under section 156.101 only when modification is otherwise justified under one of the three enumerated grounds: (1) the circumstances of the child or other party affected by the order have materially and substantially changed; (2) the child is at least twelve years old and wishes to change his or her primary residence; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months....Thus, we conclude and hold that a request for extended visitation must be requested before or at a hearing on a modification request that meets these statutory prerequisites as well.
The court noted that, while the extended visitation statute does not expressly dictate decision based on a best interests standard, the general policy of the family code declare the best interests standard to govern in all child custody decisions. Moreover, because original custody decisions and modification decisions are governed by the best interests standard, requests for extended visitation, which necessarily must be heard at the same time, are also governed by that standard.
In the Interest of C.A.P., Jr. and M.M.P., 2007 Tex. App. LEXIS 6616 (August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)
Case Law Development: No Private Cause of Action under Child Abuse Reporting Statutes
The Minnesota Supreme Court has held that the state's Child Abuse Reporting Act does not create a private cause of action against mandatory reporters for failure to report suspected child abuse to authorities. The court thus affirmed the district court's dismissal of this count of the plaintiff's claim. However, the plaintiffs had also pled a common law negligence claim. While the district court did not strike that claim, it did exclude all evidence related to the hospital's responsibility to report suspected child abuse to outside authorities. The supreme court held that this was error because the plaintiffs presented a prima facie case that the ordinary skill and care expected in the medical profession required the hospital to report a child with suspicious injuries as a victim of suspected child abuse. Two dissenting judges would have affirmed the district court's exclusion of
evidence as well, reasoning that the plaintiffs had failed to make a sufficient offer of proof.
Becker v. Mayo Found., 2007 Minn. LEXIS 455 (Minnesota Supreme Court August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)
Case Law Development: Contempt Appropriate Remedy for Failure to Abide by Divorce Decree's Hold Harmless Provision
In a divorce decree, Husband was ordered to make certain credit card and mortgage payments and to hold Wife harmless with regard to the debts. Husband failed to do so and Wife requested that he be held in contempt. The trial court ruled that it could not use contempt as a remedy for failure to abide by hold-harmless agreements. The Indiana Court of Appeals reversed, holdindg that while contempt could not be used to remedy noncompliance with a money judgment, Ind. Code § 31-15-7-10(1) made contempt an available remedy for other noncompliance with a dissolution decree. Because the noncompliance in this case did not involve a money judgment, the trial court could properly use its contempt powers to enforce the order.
Mitchell v. Mitchell, 2007 Ind. App. LEXIS 1805 (August 8, 2007)
Opinion online (last visited August 18, 2007 bgf)
August 15, 2007
Case Law Development: Divorce Courts may not Prohibit Oral Testimony
The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual
circumstances.” The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules.
The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes." Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.
The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources. However, on balance, that did not justify the violation of basic trial procedures.
That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.”
Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."
Elkins v. Superior Court (California Supreme Court August 6, 2007)
Opinion online (last visited August 13, 2007 bgf)
Passport Denials as Effective Tool in Collecting Delinquent Child Support
The Associated Press reports that new passport requirements that have complicated travel this summer also have uncovered untold numbers of child support scofflaws and forced them to pay millions. The State Department denies passports to noncustodial parents who owe more than $2,500 in child support. Once the parents make good on their debts, they can reapply for passports.
Read the New York Times article (last visited August 15, 2007 bgf)