September 27, 2006
Case Law Development: Costs for Recovering Abducted Child from Another Country as Child Support or Attorneys Fees
The Maryland Court of Special Appeals addressed a case that I'm inclined to assign to students at the end of the semester with the instructions, "Here, read this case about all the topics we barely touched upon in the course and don't ever let me hear you say -- 'if I can't find a job, I can always do some family law!'"
The case involves a factually and legally complicated story of Mother and Father who had a son (while Mother was married to another man). When the son was 2 1/2 years old, and while a custody action between the parents was pending in Maryland, Father abducted him and took him to Turkey. The court chronicles Mother's efforts to recover her son, which required 2 1/2 years, 11 trips to Turkey, multiple court hearings in both Maryland and Turkey, and over $350,000 in legal and private investigation fees and expenses. Simply reading the story of what happened in this case to the point of the child's return is like a short course in international child custody litigation.
However, the case before the Maryland court required even more, as Mother was awarded some of her expenses in securing her son's return to the United States, which Father challenged in this appeal and sought to avoid through a separate bankruptcy proceeding. The trial court had granted Mother $200,000 in costs in one proceeding and then $252,930 in a second hearing, which it treated as an award of counsel fees and costs. Mother sought to have the first award characterized as a contempt sanction and argued that the trial court had erred in overruling her motion to have the second award made as child support.
The court commented on the parties' motivation for this characterization dispute: "The only reason the parties are arguing over whether the court could sua sponte treat Mother's motion as one for counsel fees and costs, and whether the $ 252,930 judgment is for child support, is that they believe the answers to those questions will determine ... whether that judgment was entered in violation of the automatic stay in bankruptcy.... [T]hat issue is to be decided under federal law, not Maryland law; and federal law about what obligations are child support, or "in the nature of child support," differs from Maryland law on that subject. Therefore, our answers to these two questions do not have the significance the parties believe they do." Indeed, the court went on to explain that, while under state law "counsel fees and costs incurred by a parent in a custody case are not child support, even when they are for the benefit of the child", under federal law, these same expenses are "in the nature of child support" and thus non-dischargeable.
Regarding the characterization of the first award, the court found that the trial court had erred in characterizing that award as one for contempt, as there were no purge conditions in the first award. Rather, the court found that the trial court had retroactively re-characterized the first award in the hearing on the second award. That error required reversal and remand.
While Father prevailed in this round of the litigation, the court was not without commentary on his approach to the litigation. The court addressed Father's argument that he should not be required to pay Mother for the expenses incurred in recoverying the child because Mother's husband -- not Mother -- had actually paid those expenses. In rejecting this argument, the court noted "If nothing else, this argument is notable as a fine example of chutzpah" with a footnote that explored the definition of the term and its use by the courts.
So, read and enjoy, and save the opinion in case you have trouble convincing your curriculum committee that there is sufficient content to justify offering an advanced child custody class.
Corapcioglu v. Roosevelt, 2006 Md. App. LEXIS 219 (September 20, 2006)
Opinion on web (last visited September 22, 2006 bgf)
September 19, 2006
Man Jailed for 11 Years for Civil Contempt in Divorce Case
"Slight, scholarly and enigmatic, H. Beatty Chadwick is doing this day what he has done for the past 4,093: He is sitting in a county jail outside Philadelphia. It is a place meant for run-of-the-mill crooks just passing through on their way to comparatively luxurious state prisons. Certainly not for anyone to stay 11 years -- not for the central figure in one of the most bizarre divorce battles in American history. It hinges on a charge of civil contempt designed to force Chadwick to turn over $2.5 million the courts say he hid overseas all those years ago. Except he won't. Or can't, depending on whom you believe. So Chadwick sits.
"He's an anomaly," says his lawyer, Michael Malloy. "They don't know what to do with him."
The case has produced an Everest of court papers -- a dozen pleas to the Delaware County courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, 12 to federal courts, two of those to the U.S. Supreme Court." AP, CNN.com Link to Article (last visited 9-19-06 NVS)
May 02, 2006
Case Law Development: Contempt for Violating Sealed Records Order in Divorce Action
The Louisiana Court of Appeals provides an interesting case study on the difficulties of controlling speech of divorcing spouses. In this case, wife had made allegations of abuse against husband in the divorce proceeding and was unable to prove the allegations. The divorce record was sealed and the court ordered that "each party shall refrain from making disparaging comments of any kind about each other to the minor children; and shall also refrain from harassing or annoying conduct directed at each other." When wife passed out copies of the divorce petition containing the allegations of abuse to fellow parishioners at church, the court held her in criminal contempt. Wife wrote letters to friends and family which described her ongoing disputes with her ex husband but did not repeat the allegations of abuse. The trial court once again held Wife in contempt; however, the court of appeals reversed, finding that the letters did not violate the court's order that Wife not repeat the allegations of abuse.
Arrington v. Arrington, 2006 La. App. LEXIS 971 (April 26, 2006)
March 11, 2006
Case Law Development: Arkansas Supreme Court Rules Father Has No Rights to Child Born Without His Knowledge As He Failed to Adequately Protect His “Opportunity Interest”
The Arkansas Supreme Court, over the dissent of the Chief Justice, ruled Thursday in Escobedo v. Nickita that a biological father has no right to the custody of his biological daughter born out of wedlock because he failed to take “positive steps” to legitimate the child. It held that his "opportunity interest" in forming a relationship with his infant daughter was "adequately protected by his receipt of an adoption notice four business days before an adoption hearing regarding a child he did not know existed. He failed to adequately protect those interests.
The parties had a brief romantic relationship which resulted in an unprotected sexual encounter in March of 2004. The biological father, Mr. Escobedo, did not see or talk with the mother after this encounter, and did not know that the encounter had resulted in her pregnancy. A petition for adoption was filed on November 19, 2004, two weeks before the baby was born and almost a month before Mr. Escobedo knew that his encounter had resulted in a pregnancy and consequent birth.
Mr. Escobedo contended that once he found out he might be the father, due to the exclusion of the biological mother’s boyfriend as the father, he took positive steps to legitimate the child including paternity testing and registering with the Arkansas Putative Father Registry. However, the court found that his paternity petition was filed a month after the adoption petition and a week after the adoption hearing. His registry with the putative-father registry was still later. Consequently, the majority ruled that Mr. Escobedo had taken no significant steps to prepare for the custody of the child, which is required under Arkansas law.
In his dissent, Chief Justice Hannah said that under Lehr v. Robertson, 462 U.S. 248, 262 (1983), a putative father's attempt to establish a substantial relationship with his child determines the constitutional protection afforded the relationship. In this case, because of the short notice and the subsequent actions taken by the father following actual notice, Lehr provided him with constitutional protection. In Lehr the Court ruled that the State has an obligation to adequately protect an unwed father's "inchoate interest in assuming a responsible role in the future of his child." Escobedo v. Nikita, No. 05-315, Supreme Court of Arkansas. The Slip Opinion of the Arkansas Supreme Court can be found here (last visited March 11, 2006, reo)
March 10, 2006
Case Law Development: New Jersey Supreme Court Requires Appointed Counsel for Indigent Parents Facing Coercive Incarceration for Non-payment of Child Support
The New Jersey Supreme Court has joined a number of other states in concluding that, even when a court is pursuing civil child support enforcement proceedings, if an indigent litigant faces a risk of incarceration, he or she has a right to assigned counsel. The Court rejected the contention that a judge can adequately protect an indigent parent by conducting a "thorough and searching ability-to-pay hearing. However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of his or her liberty, process is what matters." The court concluded that from now on in enforcement hearings, "parents facing potential incarceration must be advised of their right to appointed counsel if they are indigent and, on request and verification of indigency, must be afforded counsel. Otherwise incarceration may not be used as an option to coerce compliance with support orders."
In considering the practical implications of its ruling the court commented: "We realize that unless there is a funding source for the provision of counsel to indigent parents in [child support enforcement] proceedings, coercive incarceration will not be an available sanction. We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor. We trust that the Legislature will address the current issue as well."
Pasqua v. Council, 2006 N.J. LEXIS 171 (March 8, 2006)
Opinion on the web (last visited March 9, 2006 bgf)
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)
November 19, 2005
New York Family Court Judge Admonished For Abusing Contempt Power
The New York Commission on Judicial Conduct publicly admonished Family Court judge Richard S. Lawrence for holding a litigant in contempt for sighing, fidgeting and turning his back in his Nassau County Family Courtroom. The commission said that Lawrence had found the litigant in contempt for alleged disruptive behavior without issuing a warning and giving him an opportunity to desist. After sentencing the litigant to jail for five days in jail for his behavior, the judge increased the sentence to 10 days and then to 12 days when the litigant and his attorney objected. Source. North Country Gazette, northcountrygazette.org. For more information, please click here (last visited November 19, 2005,reo).