Family Law Prof Blog

Case Law Development: Attorneys Fees in Custody Litigation - Alaska's Approach

The Alaska Supreme Court holds that a prevailing party in actions to enforce custody under Alaska's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) shall be awarded actual reasonable attorney's fees and expenses.  Alaska is the only state that has adopted general fee-shifting, allowing partial attorney's fees to the prevailing party as a matter of course in any case.  However, the court here noted that the UCCJEA provides for an award of reasonable attorney's fees to a prevailing party, and concluded that "reasonable actual fees are intended rather than reasonable partial fees" (as would be the result under general Alaska court rule).

This case also raised the issue of recovery of attorneys fees by legal services attorneys.  The prevailing party here was represented by  Alaska Legal Services Corporation.  Nonetheless, Alaska courts have been consistent in awarding attorneys fees even if the litigant is not personally responsible for fees to his or her attorney.  The court found an argument that petitioner's counsel had violated legal services legal services funding restrictions (which prohibit requests for attorneys fees) to be irrelevant, noting that the remedy for any such violation is with the funder not the court.

Vazquez v. Campbell, 2006 Alas. LEXIS 115 (July 28, 2006) bgf

Case Law Developments: Attorneys Fees

The New York Appellate Division has concluded that a prenuptial agreement precluding either spouse from seeking legal fees from the other in the event of a divorce, while not invalid on its face, is against public policy in this case given the gross disparity in the couple's finances. The court announced that fee waiver provisions should be reviewed on a case-by-case basis.

If, upon such an inquiry, the court determines that enforcement of the provision would preclude the non-monied spouse from carrying on or defending a matrimonial action or proceeding as justice requires, the provision may be held unenforceable. Also relevant to such a determination is the conduct of the parties over the course of the matrimonial action. Such a determination is frequently best made at the conclusion of the action. However, because an attorney's fee is authorized when needed to carry on or defend an action, it may be necessary to make such a determination at an earlier point in the litigation. 

Kessler v. Kessler, NY App Div (July 11, 2006)
Opinion on the web (last visited July 30, 2006 bgf)

Case Law Development: No Private Cause of Action for Failure to Report Suspected Child Abuse

The Georgia Court of Appeals reversed a trial court's denial of summary judgment to a psychologist, in a claim based on the psychologist's failure to report suspected child abuse. Mother and Father, following their divorce, sought postdivorce parent coordinating and, after Mother made allegations that Father had sexually abused their daughter, the coordinator referred the daughter to the defendant in this case for evaluation and therapy.  The child's therapist did not report any suspected sexual abuse and, later, when the child's pediatrician made such a report, the Mother sued the therapist for medical malpractice on the basis of the therapist's failure to comply with Georgia's mandatory reporting statute.

The court held that summary judgment should have been granted to the therapist.  Rejecting the cases from other jurisdictions suggesting that a private cause of action based on reporting statutes should be available, the concluded that "there may well be a moral duty to report child abuse, if it is reasonably suspected. The legal duty to report, however, is imposed in Georgia by statute, and ... this statute does not give rise to a private cause of action for damages."

McGarrah v. Posig, 2006 Ga. App. LEXIS 954 (July 28, 2006) bgf

Case Law Development: Father's Consent Necessary to Adopt Child Born to Common Law Marriage

In a case presenting interesting possible intersections between the adoption code and common law marriage doctrine, the Alabama Court of Appeals held that an aunt and uncle seeking to adopt their nephew had failed to prove that they had obtained the consent of the child's father to the adoption.  The child had been removed from the parents as an infant.  The child's paternal aunt and uncle took custody of the child and obtained a default judgment terminating mother's parental rights.  In their adoption action, they argued that father's consent to the adoption was unnecessary because he had failed to timely register in the putative father registry. However, father claimed he and mother were married.  The court noted that registration as a putative father is necessary only if a child is born out of wedlock, so that if indeed father was married to mother, his consent to the adoption would be required. In a footnote, the court comments that, because common law marriages in Alabama are co-equal with ceremonial marriages, "if the father and the mother, as the father contends, were married by either means, and the child was born "during the marriage," not only would Alabama's paternity law deem the child to have been born to the father, but Alabama's Adoption Code would also classify the father as a "presumed father" whose consent to a proposed adoption of the child would be necessary."

S.J.S. & J. v. B.R. & S., 2006 Ala. Civ. App. LEXIS 457 (July 28, 2006) bgf

Case Law Development: Fraudulent Inducement Tort as Part of Divorce Action

The Tennessee Court of Appeals upholds a trial court's damages judgment in a divorce action based on Wife's claim of fraudulent inducement.  The trial court found that Husband had convinced Wife to loan him over $200,000 of her separate funds by telling her that he expected an inheritance from his great-grandfather's will (a man of substantial wealth), even though he knew that he was not expected to receive the millions of dollars he claimed were to be paid to him. The trial judge found Husband's denial of these representations incredible. 

The court of appeals affirmed, noting that husband and wife are in a confidential relationship so that lesser evidence of undue influence is required than in arms-length transactions.  The court also rejected Husband's argument that his grandfather's will was a matter of public record and that Wife should have investigated his claim.

Houghland v. Houghland, 2006 Tenn. App. LEXIS 496 (July 26, 2006)
Opinion on the web (last visited July 29, 2006 bgf)

Case Law Development: Splitting Pensions Means Splitting Risk and Reward

The Indiana Court of Appeals provides a concise and well-written opinion on valuation of pensions that I especially like because of the lesson one can impart to students about the importance of learning from precedent when drafting settlement agreements.

Indiana courts have previously held that "absent express language stating otherwise, a settlement agreement dividing a pension plan implicitly contemplates that both parties will share all of the rewards and risks associated with an investment plan."  In this case, the divorcing couple entered into an agreement that stated:

wife is awarded one-half of the value in the husband's 401(k) and one-half of the value in the husband's pension plan as of this date and that the Court should enter a Qualified Domestic Relations Order (prepared by wife's attorney) to convey wife's interest in husband's pension and 401(k) plan. This Court retains jurisdiction to amend the Qualified Domestic Relations Order as may become necessary.

As of the date of this agreement, one-half of husband's pension would have been $80,700.64.  But the actual division of the pension was considerably delayed, so that at the date of the division of the pension, one-half its value would be $90,711.13.  Husband argued that the settlement agreement dictated the prior amount; Wife argued that the language was ambiguous regarding subsequent increases or decreases in value so that the latter sum was the proper allocation in light of prior precedent.

The court agreed with Wife and concluded that "the best interpretation of the provision in question, as gleaned from the words employed in that provision and elsewhere in the Property Settlement, and consistent with [prior case law], is that [Wife] was entitled to an amount equal to one-half of the amount in [Husband's] pension fund as of March 7, 2003, plus any appreciation in value of that amount as of the date the QDRO became effective, or November 24, 2003.

Shorter v. Shorter, 2006 Ind. App. LEXIS 1462  (July 28, 2006)
Opinion on the web (last visited July 29, 2006 bgf)

Papers to be Presented at Annual AALS Meeting of Family Law Section

The AALS Section on Family and Juvenile Law will meet at the AALS Annual Conference on Thursday, January 4, 2007, from 10:30 a.m. to 12:15 p.m.  The session will feature presentations on “Hot Topics in Juvenile and Family Law.”  Panel moderator is June Rose Carbone, Prof. & Assoc. Dean, Fac. Prof’l Dev., Santa Clara University School of Law (and The Edward A. Smith / Missouri Chair in Law, the Constitution and Society at University of Missouri-Kansas City School of Law, beginning in spring, 2007).   Papers to be presented include:

• The New Uniform Representation of Children In abuse, Neglect, and Custody Proceedings Act:  Bridging the Divide Between the Pragmatists and the Idealists – Barbara Atwood, Mary Anne Richey Professor, Arizona
• Still Partners?  Examining the Consequences of  Post-Separation and Post-Divorce Parenting  - Theresa Glennon, Professor, Temple
• Resolving Family Conflicts:  Implications of a Paradigm Shift – Jane Murphy, Professor, Baltimore, and Jana Singer, Professor, Maryland
• Multi-Tiered Marriage:  Ideas and Influences from New York and Louisiana to the International Community – Joel Nichols, Assistant Professor, Pepperdine

Conference on Problem-Solving Courts

The Family Law & Social Policy Center of Syracuse University College of Law is having a one-day conference on The Impact of Problem-Solving Courts:  Are They a Fair and Effective Response to Social Problems Affecting Families and Children? on Friday, October 20.  Judge Len Edwards will be the keynote speaker. 

Britain's High Court Favors Biological Mother in Lesbian Couple's Custody Battle

Britain's highest court has decided a child custody dispute between two lesbian former partners by ruling that the biological mother takes precedence.  The two women, identified only as C.G. and C.W., had a 7-year relationship, and during that time C.G. bore two children conceived through artificial insemination. After a protracted legal battle, C.W. won an order from an appeals court for shared custody.

Read the story in the Guardian (last visited July 29, 2006)bgf

Celebrity Marriages and Divorces

For those of us who include celebrity divorces and marriages as case studies in our family law classes, here are some of the latest possibilities:

Whose Jurisdiction?

Pamela Anderson will marry Kid Rock in France. And California. And Michigan. And Tennessee.  She said her nuptials with the rocker, whose real name is Bob Ritchie, will take place near St. Tropez, France. The former "Baywatch" star said the celebrations will also take her across the United States.
"We had to do Malibu, we've got to do Detroit, and we've got to do Nashville," she said.
IndyStar.com

Celebrity Divorces

Former Beatle Paul McCartney has filed for divorce from his second wife, Heather Mills McCartney, and she will in turn file counter claims in the case, her spokesman said on Saturday.
CNN International.com

Prince's wife, Manuela Testolini Nelson, filed the petition to end their five-year union. People

Nasty Divorce Trials

A judge has granted a divorce to NFL star Michael Strahan and his wife Jean, ending a sordid six-week trial that included accusations of infidelity, infertility, domestic violence, hidden bedroom cameras, liposuction and lavish spending.  Sports Illustrated.Com

(last visited July 29, 2006 bgf)

No Posthumous Divorce

Common Pleas Judge Carol Hanna refused a request by attorneys for murdered Blairsville dentist Dr. John J. Yelenic Jr. to grant a posthumous divorce. (See our May 23rd posting for more background)
Yelenic, 39, was found murdered in his home April 13, a day before he was to sign paperwork finalizing his divorce.

See the news story by Paul Peirce of the  Pittsburgh TRIBUNE-REVIEW (last visited July 29, 2006 bgf)

Case Law Development: Michigan Supreme Court Denies Paternity Action to Father Listed on Birth Certificate and Acknowledgment of Paternity

The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated.  Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce.  Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage.  In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.”  The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."

The dissenting opinions had strong words for the majority:

In this case, the majority again evidences a rigid adherence to wooden
strictures such as the presumption of legitimacy even where, as here, the purposes
of the presumption are not served. The majority has exhibited a consistent pattern
of ruling against putative fathers who seek to exercise their due process rights with
respect to children they claim as their own.  (dissent by Kelly, J.)

In adopting defendant’s position that the divorce judgment was insufficient
to establish that her child was born out of wedlock, the majority renders a default
judgment in this case meaningless; it condones and encourages gamesmanship by
a party to a child custody proceeding; and it allows a party to prevail, in significant
part, because of that party’s own delinquency in failing to participate in an earlier
judicial proceeding. (dissent by Markman, J.)

Barnes v. Jeudevine, 2006 Mich. LEXIS 1460 (July 26, 2006)
Opinion on the web

For news reports including a video interview with the father, see WWMT.com Digital Channel 3 (last visited July 27, 2006 bgf)

Case Law Development: Parent Whose Rights Have Been Terminated May Not Sue For Custody as a Nonparent

The Ohio Supreme Court has held that a natural parent who lost permanent custody of a child does not have standing to file a petition for custody of that child as a nonparent. The mother in this case had her child permanently placed with the state agency in 1997.  In 2003, after mother had substantially improved her circumstances and learned that her daughter had not been adopted and had not adjusted well to foster care, sought to restore her parental rights.  According to the court, however, a parent whose parental rights with respect to the child have been terminated may not request modification of a termination of parental rights. 

In re McBride, 110 Ohio St. 3d 19 (July 19, 2006)
Opinion on the web (last visited July 27, 2006 bgf)

Judge to reconsider granting child custody to registered sex offender

An Oklahoma county judge has been asked to reconsider awarding custody of a woman's two boys to her ex-husband -- a registered sex offender.  Associate District Judge Michael DeBerry ruled last month that frequent moves by the boys' mother, Joni May Nelson, showed instability and that the home of the father, Dustin Mitchell Seymour, 'is the more fit and proper custodial placement for the minor children.' Seymour, 27, was charged in August 2004 with three counts of second-degree rape and one count of interfering with an officer. The charges came after Nelson said she found a videotape in his pickup that showed him having sexual intercourse with a 14-year-old girl. Nelson called police and Seymour was arrested. Nelson's motion to reconsider will be heard by DeBerry on Monday. Nelson, 27, also was ordered to pay $237.50 per month in child support. Her attorney, Phillip M. Andre, says DeBerry's ruling apparently went against a state statute that says it should be presumed to not be in the best interest of a child for a sex offender to have guardianship or custody. Seymour and Nelson divorced Oct. 6, 2004. The next month, Seymour married the alleged rape victim in  Colorado, according to the marriage license. They now have a child and are living in a camper-trailer until they buy a home, his attorney, Kenneth Farley said.

Read the story from the AP Wire Service at TulsaWorld.com (last visited July 27, 2006 bgf)

Maryland Supreme Court to Hear Challenge to Same-Sex Marriage Ban

Maryland's highest court has agreed to hear a challenge to the ruling by a circuit court judge in January that the state law banning same-sex marriages is unconstitutional.  In a brief order dated Wednesday and issued Thursday, the Court of Appeals granted a motion to bypass the Court of Special Appeals and put the case on the docket for arguments in December. That means there will be no action on the politically explosive issue until after the November election. Baltimore Circuit Judge M. Brooke Murdock struck down the law defining marriage as between one man and one woman on Jan. 20 but stayed the effect of her ruling while it was being appealed by the state.

Read the story on NBC4.com (last visited July 27, 2006) bgf

Judge Decides that Parents May Choose Non-traditional Cancer Treatment for Child

In a follow up to our July 13th posting on a Virginia teenager's request to be permitted to use alternative medicine to treat his cancer, a Circuit judge suspended an earlier ruling forcing him to undergo traditional treatment. Attorneys representing the Cherrix family said the eventual outcome of the case could have broad implications for the decision-making powers of parents in Virginia.

Reat the story by Shaun Bishop in the Richmond Times-Dispatch (last visited Jul 27, 2006) bgf

Case Law Development: Incarceration Insufficient Basis for Termination of Parental Rights

The Wisconsin Supreme Court reversed a trial court court's termination of a mother's parental rights holding that the trial court had acted "solely due to Mother's status as an incarcerated person without regard for her actual parenting activities or the condition of her son in violation of Wis. Stat. § 48.415(2) and the mother's substantive due process rights."  The 4-2 decision turned on the fact that Mother had been told that a condition of getting her son back would be to find safe and suitable housing within 12 months, which would have been impossible since she was still incarcerated during that time.  The court ruled that conditions of return must be tailored to each individual case and that the nature of the parent's conviction and length of sentence can and should be among the considerations for parental unfitness, but not the only factor. Other factors cited include the likelihood that the child will be adopted, the child's age and health, the relationship between the parent and the child, the parent's level of cooperation, and the best interests of the child.

Dep't of Human Serv. v. Jodie W. (In re Max G. W.), 2006 WI 93 (July 11, 2006)
Opinion on the web (last visited July 27, 2006) bgf
Read news reports on the story in the Milwaukee Journal-Sentinal.

Yates Found Not Guilty By Reason of Insanity

"In a dramatic turnaround from her first murder trial, Andrea Yates was found not guilty by reason of insanity Wednesday in the drowning of her children in the bathtub. The 42-year-old woman will be committed to a state mental hospital and held until she is no longer deemed a threat. If she had been convicted of murder, she would have been sentenced to life in prison. Yates stared wide-eyed as the verdict was read, then bowed her head and wept quietly. Her relatives also shed tears, and the children's father, Rusty Yates, muttered, "Wow!" as he, too, cried." By Angela K. Brown, AP, Yahoo News Link to Article (last visited 6-26-06 NVS)

Yates' Jurors Comment

Some jurors in Andrea Yates' capital murder retrial struggled with the wording of the verdict during deliberations, wanting to find her both guilty of drowning her children and insane, the panel foreman said. The jury found her innocent by reason of insanity Wednesday, after nearly 13 hours spent deliberating over three days.

"There were certain of us that would rather it have said 'guilty, but insane,'" jury foreman Todd Frank said after the verdict was announced. "We had discussed that at length as being an affirmative defense, but it still didn't sit well with everyone." By Paul J. Weber, AP, Star-Telegram.com Link to Article (last visited 7-26-06 NVS)

Case Law Development: Collusive Divorce May be Vacated for Fraud

This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now.  The case involves a request to vacate a divorce decree on the grounds of fraud.

The dissent summarizes the case nicely:

The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.

The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:

The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.

The dissent would have reversed the trial court's judgment vacating the divorce.

Thinking this case couldn't be that unique, I've looked around for other recent cases presenting similar issues but have found none.  Indeed, the Oklahoma court relied primarily on precedent dating from the first half of the 1900s.  I can't help but think there are plenty of couples out there contemplating divorce though they plan on continuing to live together.  This case leads me to revise my lesson plan on divorce to include a discussion of collusive divorce - not as a historical artifact of fault-based divorce - but as a current strategy by couples.

Vandervort v. Vandervort, 2006 OK CIV APP 34 (April 13, 2006) bgf