August 25, 2007
"The August 2007 issue of the AFCC eNEWS is now available online. AFCC eNEWS is a bi-monthly e-newsletter published by the Association of Family and Conciliation Courts (AFCC). This issue of the AFCC eNEWS features a research update "Adults Are Not Good at Determining When Children Lie." Additional topics include, the Task Force on Focused Evaluations Survey, the Call for Presenters for AFCC's 45th Annual Conference, Fitting the Forum to the Family: Emerging Challenges for Family Courts, May 28-31, 2008 in Vancouver BC, Canada and an article on parenting coordination by Hon. Sandy Karlan and Linda Fieldstone, M.Ed., 11th Judicial Circuit, Miami-Dade County, Florida."
By AFCC Link to Newsletter (last visited 8-25-07 NVS)
Case Law Development: Foster Care Funding Need Not Provide Auto Liability for Teenagers
It's official law now -- teenagers do not NEED to have a car. The case, in addition to presenting a catchy policy issue to discuss, provides an excellent demonstration of statutory interpretation.
A young woman in foster care sued the county to compel payments for automobile liability insurance so that she could lawfully drive a car. The juvenile court denied her motion and the California Court of Appeals affirmed. The petitioner argued that federal and state statutes required the payments to her foster parents for auto insurance and provided a set of arguments regarding statutory interpretation that would make a fine example of the skill for new law students. She argued that federal and state statutes regarding payments to foster parents were designed to “secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.” Moreover, those statutes included requirements that payments be made for “liability insurance with respect to a child” which she argued included auto liablity insurance. (42 U.S.C. § 675(4)(a); § 11460)
The court disagreed, interpreting the statutes to exclude auto liability insurance and concluding that "The care of a minor does not require payment for car insurance (as opposed to necessities such as food, clothing, and shelter)."
In re Corrine W., (Cal. App. August 22, 2007)
Opinion online (last visited August 24, 2007 bgf)
August 24, 2007
Case Law Development: QDRO Sole Route to Waiver of Pension Rights
The Fifth Circuit Court of Appeals holds that a QDRO is the only route to waiver of pension rights upon divorce. This case involved Decedent-Husband, who was a DuPont employee and participant in its savings and investment plan (SIP). Decedent had signed a beneficiary-designation form in 1974, identifying Wife as the SIP’s sole beneficiary. Decedent and Wife were divorced in 1994. In the divorce decree, Wife agreed to be divested of “all right, title, interest, and claim in and to … the proceeds therefrom, and any other rights related to any … retirement plan, pension plan, or like benefit program existing by reason of [decedent’s] employment.” However, no QDRO was ever submitted to DuPont. Decedent never changed or removed the Wife as the SIP beneficiary.
Decedent’s estate demanded DuPont distribute SIP funds to the estate, claiming that Wife’s beneficiary designation was invalid under the Texas Family Code, which provides that spousal beneficiary designations are rendered invalid by a divorce. While the district court held that federal law preempted state law, it found that a federal common law approach applied, allowing waiver of the benefits.
The court of appeals reversed, finding that the anti-alienation provision of ERISA applied to this plan because it was a pension plan, distinguishing the district court’s common-law waiver approach as having been applied only to life insurance plans, to which the anti-alienation provision does not apply.Moreover, the court rejected the estate’s argument that a “waiver” is not an “alienation” and thus does not run afoul of the anti-alienation provision. Rather the court concluded that:
In the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision, they exempt a state domestic-relations order determined to be a QDRO, under the standards set forth in ERISA… When, as here, ERISA provides a specific mechanism – the QDRO – for addressing the elimination of a souse’s interest in plan benefits, but that mechanism is not invoked, there is no basis to formulate a federal-common-law rule. Requiring DuPont to recognize the waiver in this situation would conflict with ERISA by purporting to determine rights to pension-plan benefits in a manner not authorized by the QDRO provisions, 29 U.S.C. § 1056(d)(3), and therefore, not permitted by the anti-alienation provision, 29 U.S.C. § 1056(d)(1).
Kennedy v. Plan Administrator for DuPont Saving and Investment Plan, U.S Court of Appeals for the Fifth Circuit, August 15, 2007
Opinion online (last visited August 24, 2007 bgf)
August 21, 2007
CBS Airs "Divorce Today" Series
CBS News' Early Show is running a series on divorce. Articles and videos available on their website that professors may find useful in their teaching include:
Putting An End To Divorce Wars. Reconcilable Differences: Some Couples Seek Mediation, Not Litigation, To Keep The Peace. (article)
Divorce Among Senior Couples. Deirdre Bair, author of "Calling It Quits: Late-Life Divorce And Starting Over," speaks with Harry Smith. (video)
How Divorce Wars Take A Toll On Kids. Children Are Often Caught In The Middle Between Feuding Parents (article)
last visited August 21, 2007 bgf
Case Law Development: Collateral Attack on Previous Divorce
The Tennessee Court of Appeals reviewed the standards for permissible collateral attacks on prior divorce decrees and reemphasized the very narrow range of situations in which these attacks can be successful. The case involved a divorce action brought by Wife against her fourth Husband. Husband counterclaimed with an action for annulment, claiming that Wife's prior divorce against second Husband, now deceased, was without jurisdiction and thus void, making the current marriage invalid as bigamous. Husband argued that Wife's service of second husband by publication left that court without jurisdiction and denied second husband's due process rights. The trial court agreed, granted the annulment and divided the couple's property according to title, rather than the equitable distribution statute. The court of appeals reversed, holding that, while lack of jurisdiction can be a basis for a collateral attack on a divorce, the lack of jurisdiction must appear on the face of the record, not from parol evidence. Here, the record of the prior divorce showed that Wife had made a diligent search for second husband's whereabouts and was unable to locate him. Her deposition testimony in the current action could not be introduced to attack that finding. Moreover, to the extent publication notice was insufficient as a matter of due process, that issue was not a grounds for an attack on the prior divorce by a stranger to that action. Service of process is a personal right that can be waived (the court noted that second husband had never attacked the divorce and had, indeed, remarried himself).
Hawkins v. Hawkins, Tennessee Court of Appeals (August 20, 2007)
Opinion online (last visited August 21, 2007 bgf)
The Feminist War on Crime
Professor Aya Gruber's article "The Feminist War on Crime" appears in the most recent issue of the Iowa Law Review. Professor Gruber, of Florida International University - College of Law, argues that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology.
The Article traces the history of domestic violence reform and explains how it transformed from a grassroots populist movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the influence of the powerful victims' rights movement. This movement originated as a conservative counter to Warren Court civil liberties and employs essentialist discourse objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. The Article argues that in recent times, victims' rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda. In addition, feminists, whose original program was to vindicate women's autonomy, have begun to adopt the essentialist discourse of objectifying battered women by characterizing abused women as helpless, scared, irrational, and sick. The Article suggests that feminists simply stop advocating criminal law reforms as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for teaching domestic violence without characterizing abused women in an essentialist manner.
Read the article at SSRN (Last visited August 21, 2007 bgf)