Sunday, September 18, 2005
After a court of appeals in 1999 allowed a father to be relieved of his parental duties under Tennessee’s relief from judgment rule, the court of appeals has reviewed a number of cases in which genetic tests conclusively exclude a legal father as the biological father and the father then seeks relief from the judgment of his paternity. In this case, Father knew that he was not the biological father of his paramour’s child, but voluntarily sought an order of legitimation and and an order to change the child’s last name to his own. When, a few months after marrying Mother, Father sought divorce, he also filed for relief from the judgment of legitimation, arguing that he did not know that the judgment would mean he would have continuing obligation in the event of divorce. The court of appeals concluded that there was no error in refusing relief and, in doing so, reviewed a number of recent cases addressing the issue. The court noted that there was no “bright line rule” requiring relief from judgment whenever one discovers their biological parentage status. Given the recent deluge of cases this case recites, one suspects the courts might even regret having opened the door to relief from judgment in these cases at all.
Welch v. Welch, 2005 Tenn. App. LEXIS 570 (September 13, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/053/WelchMichaelOPN.wpd (last visited September 17, 2005 bgf)
The Mississippi courts have been working their way through the allocation of private school tuition in child support, and apparently have yet to find agreement. In 2002, the Mississippi Supreme Court held, in a 5-4 opinion, that private school tuition is, by itself, an inadequate basis for a child support award in excess of the statutory guidelines. Southerland v. Southerland, 816 So. 2d 1004, 2002 Miss. LEXIS 133 (Miss. 2002). Since then, lower courts have struggled with the scope of this holding. This past week, the courts of appeals issued two opinions on the same day that came to opposite results on whether private school tuition could be ordered separate from child support.
Striebeck V Striebeck, 2005 Miss. App. LEXIS 639 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
and Roberts V. Roberts, 2005 Miss. App. LEXIS 638 (September 13, 2005) http://www.mssc.state.ms.us/Images/OPINIONS/CO28988.PDF (last visited September 17, 2005)
Neither case explains its decision very completely and it is difficult to reconcile the cases…
Case Law Development: Pass-through income in an S corporation is not ordinarily income in divorce action
How should an individual’s interest in a small business corporation be characterized in a divorce action if the corporation elects to operate as an S corporation, so that all the corporation's income "passes-through" to the individual owners for tax purposes? The question has produced divergent answers among the Florida court of appeals districts. Some districts had adopted a bright line rule that automatically treats undistributed business income as income attributable to a spouse. In this case, the 4th District Court of Appeals chooses the alternative approach that does not characterize undistributed “pass-through” income as income in divorce unless there is proof that the undistributed income was retained for non-corporate purposes. In a clear and carefully written opinion, the court describes the nature of S corporation income, interprets Florida statutes defining income for alimony and child support purposes in light of other Florida states regarding the right of corporations to distribute income to shareholders, and reflects on the effect of a bright-line rule rather than a individualized determination.
Zold v. Zold, 2005 Fla. App. LEXIS 14467 (4th Dist. September 15, 2005)
Available on the web at www.5dca.org/Opinions/Opin2004/062104/5D03-148.op.pdf (last visited September 17, 2005 bgf)
In interpreting a prenuptial contract, the Indiana Court of Appeals addressed several novel issues including:
- the meaning of the term “estrangement” which was used in the contract as the event at which certain property should be valued (the court find estrangement occurs at, the latest, upon one party’s filing for divorce)
- the enforceability of an agreement in the contract requiring that the couple file joint tax returns if that reduced overall tax liability(the court found no error in the trial court’s requiring Wife to reimburse Husband for excess taxes paid due to her filing separate returns)
- the characterization of a tax loss carryover as marital property subject to distribution (the court joined Missouri and New York in concluding that tax loss carryovers can be considered marital property)
Magee v. Magee, 2005 Ind. App. LEXIS 1678 (September 12, 2005)
Available on the web at http://www.in.gov/judiciary/opinions/pdf/09120501ewn.pdf (last visited September 17, 2005 bgf)
Case Law Development: Defendant Convicted of Destroying Property “of Another” even though he owned a Marital Interest in the Vandalized Property
A Missouri criminal defendant failed in his attempt to use the concept of marital property to exempt him from liability for a crime against his wife. The Court of Appeals of Missouri upheld the conviction of Husband for criminal property damage, for vandalizing a motor vehicle titled in the name of his wife. Husband claimed that an essential element of the offense required that the defendant have damaged property "of another." He argued that, because he had a marital interest in the motor vehicle he was charged with damaging, he could not be found guilty of the offense. The court disagreed, citing cases from several other jurisdictions interpreting “property of another” in similar circumstances.
State v. Brushwood, 2005 Mo. App. LEXIS 1319 (September 13, 2005) Available on the web at http://www.osca.state.mo.us/courts/pubopinions.nsf/0/fb9c7914e49100208625707a00646649?OpenDocument (Last visited September 17, 2005 bgf)
Separating frequent-flier miles in a divorce is a serious and increasingly common issue. One big hurdle: Airlines do not allow customers to transfer frequent-flier miles, even in a divorce. Moreover, placing a value on frequent-flier accounts can be tricky. "Now that people generally accept the idea that they're property, people are more willing to divide them up or trade them for something else," says Tate Sterrett, a Charlotte, N.C., lawyer who specializes in family law.. . . In one of the few cases on the matter, a Minnesota court in 1999 determined that the miles are worth 2 cents per mile. The case is not binding in other states, but lawyers typically use that figure as a guidepost. For someone with 25,000 miles, which generally is enough for a free round-trip domestic ticket, that's about $500. By Tony Mecia, The Charlotte Observer, Sun-Sentinal.com.
http://www.sun-sentinel.com/travel/print/sfl-divorcemilessep18,0,2550558.story?coll=sfla-travel-print (last visited September 18, 2005 , REO).
ZIMBABWE’S battle against Aids, which has so far claimed more than two million lives, received a major boost on Friday when more than 70 Apostolic and Zionist churches made a landmark resolution to abolish polygamy at the launch of an anti-HIV and Aids blueprint in the capital. Polygamy has been found to fuel the spread of HIV and Aids and is a deep-rooted practice in the sects. The 23-page policy document supports this landmark development with Scriptures from the Bible, and the abolition of polygamy will start with the leaders of the Apostolic and Zionist churches. By Sarah Tikiwa, The Sunday Mail, zimbabwemail.com.
http://www.zimbabwemail.com/index.php?id=12590&pubdate=2005-09-18 (last visited September 18, 2005 , REO).
PHNOM PENH. Cambodia's National Assembly approved unanimously on Friday a draft law on domestic violence aimed at protecting victims of domestic violence and preventing domestic violence. The draft law, initiated by the Ministry of Women's Affairs, was debated for three days and approved by 88 lawmakers at Friday's session. Lawmakers and activists welcomed the law, saying that the law will serve as an effective tool to help curb family violence in Cambodia. By: news.xinhuanet.com.
http://news.xinhuanet.com/english/2005-09/16/content_3499848.htm (last visited September 18, 2005, REO).
NEW DELHI, India. President APJ Abdul Kalam Friday gave his assent to the Protection of Women from Domestic Violence Act, 2005. The Act aims to provide more effective protection to women who are victims of violence of any kind within the family and for matters connected therewith or incidental thereto. The Act will be applicable to all states and UTs except J&K. By: Thestatesman.net.
http://www.thestatesman.net/page.news.php?clid=2&theme=&usrsess=1&id=90086 (last visited September 18, 2005, REO).
Saturday, September 17, 2005
Being in a bad marriage may be equally hazardous to the health of both spouses, according to a new study. Researchers found men and women in unhappy marriages suffered from increased stress levels throughout the day at home and at work as well as higher blood pressure at midday at the office, which could raise the risk of heart attack or stroke. "What is happening is that marital problems are spilling into the workplace," says researcher Rosalind Barnett, a senior scientist at the Women's Studies Research Center at Brandeis Universityin Waltham, Mass., in a news release. "And if these tensions persist over time, there could be serious health problems." By: By Jennifer Warner, Reviewed by Brunilda Nazario, MD. CBSnews.com. Sources: Barnett, R. Annals of Behavioral Medicine, 2005; vol 30: pp 36-43. News release, Brandeis University http://www.cbsnews.com/stories/2005/09/16/health/webmd/main854082.shtml (last visited September 17, 2005, REO).
BOSTON --Opponents of gay marriage have a new magic number on Beacon Hill : 50. That's how many lawmakers they need to endorse a new, stricter anti-gay marriage amendment before the question could be put to voters in 2008. And that's only one of a series of hurdles facing gay marriage opponents as they struggle to regain momentum after this week's crushing defeat of an amendment that would ban gay marriage while creating civil unions. By: By Steve LeBlanc, Associated Press, Boston.com. http://www.boston.com/news/local/massachusetts/articles/2005/09/16/gay_marriage_foes_face_hurdles_as_they_push_new_amendment/ (last visited September 17, 2005, REO).
Lambda Legal has opened a toll-free hotline for LGBT survivors of Hurricane Katrina who may be experiencing discrimination. The move follows the arrest last week of two transsexuals for using the women's shower at an emergency hostel in Texas. Although the women have been released Lambda believes that a number of legal issues for the LGBT community will arise over the next few weeks. By 365Gay.com Newscenter Staff, 365Gay.com.
http://www.365gay.com/newscon05/09/091205nola.htm (last visited September 17, 2005, REO).
More than three dozen parents in Travis County, Texas were in big trouble Friday morning for not paying child support. The constable's office began a countywide sweep Monday to round up people who have not paid up. Constable Bruce Elfant sent eight teams to arrest parents at their homes. The parents face contempt of court charges for failing to appear in court and pay child support. By: News 8 Austin Staff, News8austin.com.
http://www.news8austin.com/content/your_news/default.asp?ArID=145661 (last visited September 17, 2005, REO).
Friday, September 16, 2005
The Brookings Institution recently sponsored a symposium in conjunction with the release of the latest Future of Children journal volume"Marriage and Child Wellbeing." Panelists at this event examined specific barriers to marriage among low-income couples and discussed strategies and programs which may strengthen marriages in this population. The entire journal volume is available on the web at http://www.futureofchildren.org/pubs-info2825/pubs-info_show.htm?doc_id=289923 (last visited September 16, 2005 bgf)
You can view the table of contents in the extension of this post
The Supreme Court of Washington reconciled two provisions of its pre-2002 version of the Uniform Parentage Act to find that signing a paternity acknowledgement waives protections of the Act relating to sperm donation. Father had a twenty-year affair with Mother while he was married to another woman. He fathered three children with Mother: first a daughter, who was conceived in the old-fashioned way, and then two sons, conceived through in-vitro methods. For first son, Father had signed a paternity acknowledgement at the hospital. For second son, he had not. He paid child support for all three children until his wife discovered the affair.
The trial court granted summary judgment to Mother and Father appealed. The Court of Appeals reversed but the Washington Supreme Court found no error in the trial court’s analysis. The court held that, as to first son, by signing the paternity acknowledgement, Father had waived any rights he might have to claim protection from paternity under the sperm donation statute. In any case, and as to the second son, the court held that, because father had donated sperm for in-vitro fertilization, the terms of the statutory provision exempting sperm donors from paternity applied only to artificial insemination. The court refused to retroactively apply the new paternity statute’s defense, which applied to “assisted reproduction,” noting that the statute itself indicated that it should be applied prospectively only.
Brock v. Kepl, 2005 Wash. LEXIS 790 (September 15, 2005)
Available on the web at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.opindisp&docid=755639MAJ (last visited September 16, 2005 bgf)
Case Law Development: Affirmative Defenses under International Child Abduction Act to be Narrowly Construed
The Third Circuit Court of Appeal’s opinion in this case provides a concise march through the elements of an international child abduction case under the Hague Convention. The court reverses the trial court’s decision on the basis that the court did not consider all of the required elements under the act and construed the defenses of consent and risk of harm too broadly. The case presents a fairly straightforward fact pattern and provides a fine teaching tool for actions under the International Child Abduction Remedies Act.
Baxter v. Baxter, 2005 U.S. App. LEXIS 19825 (3rd Cir. September 15, 2005)
Available on web at http://www.ca3.uscourts.gov/opinarch/043228p.pdf (last visited September 16, 2005 bgf)
Thursday, September 15, 2005
"America's Children: Key National Indicators of Well-Being, 2005 is a biennial report to the Nation on the condition of children in America. Nine contextual measures describe the changing population, family, and environmental context in which children are living, and 25 indicators depict the well-being of children in the areas of economic security, health, behavior and social environment, and education." Findings include the following:
- "In 2003, there were 73 million children ages 0-17 in the United States, or 25 percent of the population, down from a peak of 36 percent at the end of the baby boom (1964). Children are projected to compose 24 percent of the total population in 2020.
- The racial and ethnic diversity of America's children continues to increase over time. In 2003, 60 percent of U.S. children were White-along, non-Hispanic, 16 percent Black-alone, and 4 percent were Asian-alone. The proportion of Hispanic children has increased faster than that of any other racial and ethnic group, growing from 9 percent of the child population in 1980 to 19 percent in 2003.
- In 2004, 68 percent of children ages 0-17 lived with two married parents, down from 77 percent in 1980. After decreasing from 1980 to 1994, the percentage has remained stable at about 68-69 percent from 1994 to 2004.
- Between 1980 and 1994, the rate of childbearing by unmarried women rose sharply for women of all ages. For all age groups combined, this trend ended in 1994. Birth rates for unmarried teenagers have dropped considerably since 1994, while increases in rates for women in the twenties and older have slowed. In 2003, the overall birth rate was 45 births per 1,000 unmarried women ages 15-44.
- In 2003, 62 percent of children ages 0-17 lived in counties in which one or more of the Primary National Ambient Air Quality Standards were exceeded, and improvement from 69 percent in 1999."
From America's Children: Key National Indicators of Well-Being, 2005 published by the Federal Interagency Forum on Child and Family Statistics. Link to Report (last visited 9-14-05, NVS)
"The Federal Interagency Forum on Child and Family Statistics (the Forum) is a collection of 20 Federal government agencies involved in research and activities related to children and families... The mission of the Forum is to foster coordination and collaboration and to enhance and improve consistency in the collection and reporting of Federal data on children and families. Also, the Forum aims to improve the reporting and dissemination of information on the status of children and families." About the Forum (last visited 9-14-05, NVS)
Wednesday, September 14, 2005
Students looking for a topic for a paper, might be interested in sinking their teeth into yesterday's decision regarding waiver of pension benefits in divorce. In this case, the U.S. Court of Appeals for the Third Circuit, in a 2-1 decision, adopts the minority rule on waiver of pension benefits, holding that, under ERISA, absent a QDRO that meets the requirements of § 1056(d)(3) to change beneficiaries, a beneficiary of a pension may not waive his or her rights under the plan pursuant to agreement in a divorce action. The case generated some careful statutory and policy analysis of the purposes of ERISA and the role of federal common law waiver analysis.
MCGOWAN v. NJR SERV. CORP., 2005 U.S. App. LEXIS 19710 (3rd Cir., September 13, 2005)
Opinion on the web at http://www.ca3.uscourts.gov/opinarch/043620p.pdf (last visited September 14, 2005 bgf)
Survivors of Hurricane Katrina who sought shelter in Texas may call a toll-free number to arrange to get their Louisiana child support payments. Texas Attorney General Greg Abbott and Louisiana child support director Robbie Endris are urging parents to call 1-800-256-4650 to report their new addresses. . . . The toll-free number for the Louisiana Customer Service Center is available daily from 7 a.m. to 7 p.m. CDT.Parents also may access the child support payment inquiry screen at www.dss.state.la.us. But they must know their user ID and PIN to do so. By: KWTX.com.
http://www.kwtx.com/home/headlines/1842077.html (Last visited September 14, 2005, REO)
NEW YORK -- City lawyers told an appellate panel on Tuesday that gay marriage is a legislative and not a judicial issue, while attorneys for a homosexual legal group said the courts should uphold the fundamental right to choose one's spouse. Because same-sex marriage is an issue for lawmakers, city attorney Leonard Koerner said, the five-judge panel of the state Supreme Court's Appellate Division should reverse a lower court decision that approved such unions. . . . The disputed ruling was issued in February by state Supreme Court Justice Doris Ling-Cohan, who found that a state law barring same-sex marriage was unconstitutional. The decision was the first of its kind in New York City and was a step toward allowing gay weddings. By Samuel Maull, Associate Press Writer, newsday.com.
http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--gaymarriage0913sep13,0,415330.story?coll=ny-region-apnewyork (Last visited September 14, 2005, REO).