Monday, April 16, 2018
From JD Supra, Holland & Knight:
The Employee Retirement Income Security Act of 1974, as amended (ERISA), pre-empts most state laws. However, there are certain types of state laws that are not pre-empted. Recently, the U.S. Court of Appeals for the Seventh Circuit in Laborers' Pension Fund v. Miscevic, 880 F.3d 927 (7th Cir. 2018), held that the Illinois slayer statute is one of those state statutes that is not pre-empted by ERISA. A slayer statute is a law that prevents an heir from receiving assets or other property from a decedent if that heir is responsible for the decedent's death.
In this case, a woman killed her husband. The husband was a participant in a union pension plan that provided survivor benefits to a surviving spouse or, if there were no surviving spouse, to a minor child. There was no dispute as to the facts. In a state criminal proceeding, the woman was found to be not guilty of killing her husband by reason of insanity. Her husband's pension fund, The Laborers' Pension Fund (the Fund), brought an interpleader action to determine the proper beneficiary of the husband's pension benefits because the couple had a minor child.
Read more here.
Wednesday, January 4, 2012
It is important to be aware that the jurisdiction of the court in England and Wales does not include Scotland or Northern Ireland for divorce proceedings. Indeed Scotland is a completely separate jurisdiction based on Roman law rather than English common law.
In England and Wales the courts will accept jurisdiction for a divorce or an application for financial settlement where a foreign divorce has been declared in what may be surprising circumstances to some US attorneys. It is possible to issue a petition for divorce:
(a) if one of the spouses is domiciled in the United Kingdom even if both parties are living in the United States; or
(b) if both spouses or one spouse has been living in England or Wales for the past 12 months or more. In the case of an application for financial settlement where the divorce has been declared abroad the leave of the court is required.
Once jurisdiction is established in England and Wales it is the overriding objective of the court to ensure the case is dealt with expeditiously and fairly.
There is one ground for divorce which is irretrievable breakdown. This is proved by establishing one of five facts which are that the other spouse has committed adultery or behaved unreasonably or deserted the petitioning spouse for two years or more or alternatively that the spouses consent to a divorce after two years separation or that they have been separated for five years. Provided that the responding spouse does not wish to defend proceedings the procedure is dealt with on paper, the petitioning spouse filing a sworn statement in place of giving evidence.
A petition for divorce in England and Wales cannot be presented within the first year of marriage. There is no summary divorce procedure.
Despite there being fault attached to the first of the three facts referred to above, beyond obtaining an order for the costs of the divorce ( but not any applications ancillary thereto) it is very rare indeed that the conduct, even bad conduct, of one or both of the spouses will affect the financial settlement. For example if one spouse is committing adultery his or her financial settlement will not be decreased. In England and Wales there is no concept of breach of fiduciary duty although the courts would consider conduct that affects the spouses’ finances in determining a financial settlement. For example, in one case the husband broke his wife’s arm. She was a nurse and this injury prevented her from continuing in her career. This was conduct that was taken into account and enhanced her financial settlement. In another case the husband had gambled away the parties’ savings without his wife’s permission. Again this affected the settlement.
Whilst same sex couples cannot be married in England and Wales they can enter into a civil partnership. Such a partnership is determined using the same proceedings as those set out above for married couples and the points discussed below apply to divorces and the ending of civil partnerships.
In England and Wales the court has discretionary powers when determining financial settlement. Its jurisdiction cannot be ousted even by agreement by the parties. Any financial settlement reached must be approved by the court. Accordingly, a court can reject post divorce settlements if it is not satisfied that they are fair.
Prenuptial settlements are not legal under the law of England and Wales. Until relatively recently they could not be relied upon. It is however the case that the courts will now consider prenuptial settlement when determining financial settlement as evidence as to the parties’ intent and it will influence the financial outcome for the parties. It is however the case that in England and Wales prenuptial contracts are not binding upon the court, although they are increasing in number and the courts are influenced by them.
This was a guest post by Liz Cowell, divorce specialist and Partner at Pannone LLP. For more information on Pannone visit their website http://www.pannone.com/.
Friday, May 7, 2010
The United States Court of Appeals for the Eighth Circuit recently issued a ruling refusing jurisdiction in a frozen embryo case. Patricia Dodson (formerly Patricia Lay) and Dr. Jackson Lay were married when they enrolled in an IVF program at the University of Arkansas for Medical Sciences (UAMS). Their participation in the program resulted in 18 cryogenically frozen embryos which were stored at UAMS. After the parties divorced, Dodson asked UAMS to implant the embryos into her. UAMS refused to do so until Dodson received Lay's written consent. When he denied it, UAMS told Lay that her only options were embryo destruction, use of the embryos for medical research, or a transfer/adoption by another couple. Dodson filed suit in Arkansas state court, seeking an order that she had the right (pursuant to language in her divorce decree) to choose among those options or implantation. The Arkansas court held that UAMS held sole control over the embryos after the parties' divorce.
After litigating the matter in state court for nearly 10 years, Dodson filed suit in federal district court. The federal district court and the USCA for the 8th Circuit both held that the Rooker-Feldman doctrine prevents the federal courts from exercising jurisdiction in favor of "a state court loser seeking victory against his adversary in a subsequent section 1983 action in federal court."
Read the opinion here.
Monday, January 22, 2007
A recent inquiry from a reader asked whether bifurcated judgments in divorce actions may be separately appealed. Here is at least one court's answer...
Rather than simply enter temporary orders, a divorce court will sometimes bifurcate a divorce judgment, granting divorce or child custody for example, and reserving judgment of financial issues pending more factual development or hearings. However, the Illinois court has held that such a bifurcated judgment is not final for purposes of appeal. In this case, the trial judge entered a judgment of dissolution, divided the marital property, granted sole custody of the children to petitioner, set child support of $1,306.95 a month, and barred respondent from receiving maintenance. However, it "reserved" the issues of visitation, the children's post-high-school educational expenses, and petitioner's maintenance. Raising the issue sua sponte, the Illinois Court of Appeals held that "The reservation of issues here deprives us of jurisdiction over this appeal." -- No bifurcating appeals.
Mardjetko v. Mardjetko, 2007 Ill. App. Lexis 3 (January 5, 2007)
Opinion on the web (last visited January 15, 2007 bgf)
Tuesday, November 28, 2006
How are family law cases faring in the federal courts lately? Several recent decisions have helped clarify the boundaries of the Rooker-Feldman doctrine, whose power to keep family law cases out of the federal courts has clearly waned in recent years.
For example, the 11th Circuit Court of Appeals recently affirmed the dismissal of an action by Wife, seeking a declaration that her post-nuptial agreement was unconstitutional. The agreement contained a no-challenge clause providing that if Wife challenged in court any provision of the agreement (including custody or visitation of the childrne) she would forfeit the $ 1.5 million paid in consideration by her husband. Wife sued the state trial judge that had enforced the forfeiture when she sought to enforce and modify the agreement regarding custody, seeking a declaration that the judge could not enforce the agreement. The district court granted a motion to dismiss under the Rooker-Feldman doctrine. In affirming, the court held that the Rooker-Feldman doctrine applied because (1) the wife was a party in state court and had obtained a final judgment from the highest state court in which review could be sought; (2) the wife had a reasonable opportunity to raise her federal constitutional claims in the state-court proceedings; and (3) the issue before the federal district court was inextricably intertwined with the state-court decision because the wife's claims succeeded only to the extent that the federal district court determined that the state courts wrongly decided the issues. The court rejected Wife's argument that the United States Supreme Court had "interred" the Rooker-Feldman doctrine in Lance v. Dennis, 126 S. Ct. 1198 (2006), noting that the Court there had simply clarified the distinction between that doctrine and the general doctrine of preclusion. Morris v. Wroble, 2006 U.S. App. LEXIS 28581 (11th Cir. November 16, 2006)(unpublished).
The Seventh Circuit applied the same reasoning to affirm dismissal of an ex-wife's claims that her ex-husband, his attorney and their marriage counselor had deprived her of marital property and child custody by their misconduct in her divorce proceedings. Because the injuries were the result of the state court judgment, the court concluded that the Rooker-Feldman doctrine barred the district court from considering claims. Sielck v. Sielck, 2006 U.S. App. LEXIS 25159 (7th Circuit October 5, 2006).
In other cases, however, the courts have found the Rooker-Feldman doctrine did not preclude suits arising out of family law matters. The Fourth Circuit Court of Appeals wrestled with the doctrine in a case in which current and retired members of the armed forces whose retirement pay has been divided in state divorce proceedings, and an association representing such members, sued the Secretary of Defense. The plaintiffs claimed their due process and equal protection rights were violated by the Uniformed Services Former Spouses' Protection Act (Act), which allows states to divide military retirement pay upon divorce and establishes a payments mechanism implementing the division. The district court had dismissed the individual plaintiffs' claims for lack of subject matter jurisdiction, reasoning that these plaintiffs impermissibly sought appellate review of their underlying state court divorce decrees. While the court of appeals affirmed the dismissal on other grounds, they concluded that the district court had subject matter jurisdiction. The court reasoned that at least some of the plaintiffs
are not attempting to appeal unfavorable state court decisions. ... A federal court declaration that the Act is unconstitutional would invalidate the statutory basis for the federal payments mechanism and effectively prevent DFAS from continuing to transmit payments based on a state court decree. Such a declaration would not, however, amount to appellate reversal or modification of a valid state court decree entered in an individual plaintiff's divorce case. At bottom, an examination of the federal constitutional challenge presented here against the Act does not require scrutinizing and invalidating any individual state court judgment. Contrary to the view expressed in the concurring opinion, the test is not whether the relief sought in the federal suit "would certainly upset" the enforcement of a state court decree, but rather whether the relief would "reverse or modify" the state court decree.....The Rooker-Feldman doctrine, contracted as it has been by the Supreme Court's recent decisions, therefore did not deprive the district court of subject matter jurisdiction in this case.
Adkins v. Rumsfeld, 464 F.3d 456 (4th Cir. September 18, 2006)
Most recently, the United States District Court for the District of Colorado denied motions to dismiss complaints by parents in child welfare proceedings against state social service agency workers claiming that the workers had acted to deprive the parents of contact with their children because of discrimination against the parent's fundamentalist Christian viewpoint. The opinion provides a straightforward explanation of the Rooker-Feldman doctrine, explaining that the action here is not barred because the parents do not seek to overturn the state court dependency action but to obtain damages for the constitutional violations they claim arose during that action. Starkey v. Boulder County Soc. Servs., 2006 U.S. Dist. LEXIS 84768 (D. Colo. November 21, 2006)
Similarly, in an unpublished opinion, the Third Circuit Court of Appeals held that the Rooker-Feldman doctrine did not apply to a 42 U.S.C.S. § 1983 suit complaining that father's rights were violated when he was ordered to undergo mental examination during state court custody dispute because father did not complain of injuries caused by the custody judgment or seek to overturn it. The court did dismiss the complaint for failure to state a claim, however, because the judge and the court-appointed evaluators were entiteld to judicial immunity and wife's attorney could not be said to be acting under color of state law. Shallow v. Rogers, 2006 U.S. App. LEXIS 26941 (3rd Circuit October 27, 2006).
(All web opinions last visited November 27, 2006 bgf)
Wednesday, November 15, 2006
Case Law Development: Personal Jurisdiction for Child Support May be Based on Service by Publication on State Resident
The Texas Court of Appeals holds that service by publication upon a husband was valid to establish personal jurisdiction for purposes of a child support order unless husband was a non-resident. In this action, the Attorney General had brought a child support enforcement action against Father, based on a 1981 dissolution decree in which Father had been served by publication and an ad litem attorney had been appointed to answer on his behalf. The trial court dismissed the enforcement action sua sponte based on lack of personal jurisdiction, but the court of appeals reversed, holding that personal jurisdiction could only be subject to challenge if Father was shown to have been a non-resident of Texas when he was served by publication.
In the Interest of A.B., 2006 Tex. App. LEXIS 9830 (November 14, 2006)
Opinion on the web (last visited November 15, 2006 bgf)
Friday, November 3, 2006
Case Law Development: UCCJEA Prohibits Court From Altering Custody of Foreign Decrees, Even in Relocation Cases
A second move-away case from the California Court of Appeals this past week involved the application fo the UCCJEA to enforcement of a French custody decree. The French decree gave custody of the child to mother, visitation rights to father, and enjoined mother from moving away with the child. However, mother did move with the couple's 14-year-old child from Fance to California, resulting in this action by father, requesting return of the child. The trial court ordered that the child be returned to France or else the father would obtain sole legal and physical custody. The court of appeals reversed, holding that as it violated the Uniform Child Custody Jurisdiction and Enforcement Act by changing custody, and by ordering that the mother not move away with the child.
The court of appeals reversed, holding:
We agree that the trial court violated the UCCJEA by changing custody. We also
agree that the UCCJEA required limited enforcement of the visitation schedule but
prohibited the trial court from enforcing the other aspects of the visitation award,
including the order that [Mother] not move away with [Child]. This not only follows from
the language of the UCCJEA, but also avoids any conflict between enforcing custody and
enforcing visitation. Thus, we accord comity to the French decree to the extent -- but
only to the extent -- that the UCCJEA requires.... The trial court ... had no jurisdiction to enforce any visitation provisions other than the visitation schedule. If [Father] came to California, the trial court could have required [Child] to visit him according
to the schedule. It erred, however, by requiring that [Child] be returned to France.
Marriage of Paillier, (October 31, 2006)
Opinion on the web (last visited November 3, 2006 bgf)
Wednesday, August 23, 2006
Bill Murphy of the Houston Chronicle reports that a proposal to build a new $90 million Family Law Center has generated an alternative proposal by Commissioner Steve Radack: eliminate the family court and disperse the docket among the civil courts.
"While the caseloads in family courts are rising, caseloads in the local civil courts have declined enough for them to begin hearing divorce, custody and child support cases, Radack said. "The courts could serve the public better, faster," he said. "It can save millions of dollars a year." Also pushing the idea are critics who view the family courts as clubby fraternities where a lawyer's ties to a judge are more important than rules of procedure and evidence....On the other side are judges and lawyers who support the specialized courts because family judges have expertise in the nuances of family law, domestic violence and child support.
Read the story in the Houston Chronicle (last visited August 21, 2006 bgf)
Wednesday, August 16, 2006
Case Law Development: PKPA Requires Recognizing Originating States Custody Order Even if Another State Would be able to Exercise Jurisdiction under its own Version of the UCCJEA
The Connecticut Court of Appeals provides a brief and readable explanation of the interaction of the PKPA and the UCCJEA in a case in which Florida had originally entered a custody order and Father then obtained a modification of that custody order in Connecticut. The court found that since the Florida court properly exercised jurisdiction under the PKPA in the first instance and Mother still resided there, that state's courts continued to have sole and exclusive jurisdiction. Since Florida's version of the UCCJEA provided a basis for that jurisdiction, the Connecticut court could not modify custody without an order from Florida stating that it no longer has jurisdiction. This was so even though under Connecticut's version of the UCCJEA, there would be a basis for Connecticut to exercise jurisdiction over the custody action.
Scott v. Somers, 2006 Conn. App. LEXIS 369 (August 15, 2006)
Opinion on the web
Wednesday, August 9, 2006
Case Law Development: Cell Phoone and Text Messages Insufficient to Establish Minimum Contacts for Personal Jurisdiction in Protection Order Case
In a case in which Husband's only contacts with Wife while she was in Florida were voice and text messages left on her cellular telephone while she was present in Florida, the Florida Court of Appeals held that these contacts were insufficient to establish personal jurisdiction over Husband in order to enter a protective order against him. The court found that there was no evidence that Husband knew that Wife was present in Florida at the time he left the messages on her cellular phone (the phone number was a Maryland number). Thus the order of protection was reversed for lack of jurisdiction. The court went on to explain that Wife was not without protection, because if she obtained a protective order against Husband in Maryland (where he resided), under VAWA and Florida statutes, Florida would be required to give the order full faith and credit and to enforce the order whether or not it was registered in Florida.
Becker v. Johnson, 2006 Fla. App. LEXIS 13194 (August 8, 2006)
Opinion on the web (last visited August 9, 2006 bgf)
Monday, August 7, 2006
The Vermont Supreme Court upholds its state's jurisdiction to determine visitation rights to the daughter born during a lesbian couple's civil union.
Lisa and Janet lived in Virginia but traveled to Vermont in 2001 to establish a civil union. Lisa had a daughter by artificial insemination in 2002, after which the couple moved to Vermont. The couple separated in 2003 and Lisa moved back to Virginia. She filed an action to dissolve the civil union in Vermont, alleging that Daughter was a child of the civil union, and the Vermont court issued temporary orders granting Lisa custody and Janet parenting time. In 2004, after the Vermont court had already filed its temporary orders, and just after the Virginia Affirmation of Marriage Act became law, Lisa filed a parentage action in Virginia. The Virginia and Vermont courts could not agree on the ensuing jurisdictional dispute and the Virginia court held that it need not recognize the civil union and found that Janet had no parentage rights. The Vermont court refused to credit the Virginia court's decision and found both Lisa and Janet to be legal parents of their child and issued an order of contempt against Lisa for her failure to abide by the temporary visitation order. Lisa appealed.
The Vermont Supreme Court summarized the case:
This case is, at base, an interstate jurisdictional dispute over visitation with a child. Lisa argues here that the Vermont family court should have given full faith and credit to the Virginia court's custody and parentage decision, which determined Janet had no parentage or visitation rights with respect to IMJ. The family court rejected this argument because it concluded the Virginia decision did not comport with the PKPA, which was designed for the very purpose of eliminating jurisdictional battles between states with conflicting jurisdictional provisions in child custody disputes. The Vermont court determined it had exercised jurisdiction consistent with the requirements of the PKPA and had continuing jurisdiction at the time Janet's action was filed in Virginia. Therefore, it further concluded the Virginia court was prohibited from exercising jurisdiction by the PKPA, § 1738A(g), and the Vermont court had no obligation to give full faith and credit to the conflicting Virginia decision.
In affirming the trial court's decision, the Vermont court noted that Lisa agreed that, were she and Janet a married heterosexual couple, there would be no question but that the PPKA would prohibit the Virginia court from taking jurisdiction over the parentage action. Among the arguments presented, Lisa argued that the PKPA has been superseded by the Defense of Marriage Act (DOMA), 28 U.S.C. § 1738C (2000), which would require that the Vermont court give full faith and credit to the Virginia decision and order. The court rejected this interpretation, reasoning
in no instance does DOMA require a court in one state to give full faith and credit to the decision of a court in another state. Its sole purpose is to provide an authorization not to give full faith and credit in the circumstances covered by the statute.... Under Lisa's interpretation, we would be required to give full faith and credit to the Virginia court's decision not to give effect to the fully valid order of the Vermont court. Indeed, if we were to accept that argument, the Vermont biological parent of a child born to a civil union could always move to another state to make a visitation order unenforceable in every state, including Vermont.... [W]e will not give "greater faith and credit" to another state's judgment that is in conflict with a valid judgment of our own courts.
Finally, the court affirmed the parentage determination, reviewing the precedent from other states involving same-sex couples and concluding that there were many reasons supporting the trial court's parentage decision "including, first and foremost, that Janet and Lisa were in a valid legal union at the time of the child's birth." Other factors included the couple's intent and subsequent actions, Lisa's identification of Janet as a parent of the child in the dissolution petition, the fact that "there is no other claimant to the status of parent, and, as a result, a negative decision would leave [the child] with only one parent."
Miller-Jenkins v. Miller-Jenkins, 2006 VT 78 (August 4, 2006)
Opinion on the web (last visited August 6, 2006 bgf)
News story on the case from Burlington VT WCAX-TV (last visited August 6, 2006 bgf)
Wednesday, August 2, 2006
The Alabama Supreme Court has issued one of many opinions generated by an ex-Husband's suits and appeals regarding his 33-year marriage. Husband and Wife married in 1968. When Wife filed for divorce in 1999, Husband fought and appealed the divorce in Texas (including arguing that their marriage, though licensed and solemnized, was purely ecclesiastical, so that the trial court violated his Free Exercise and Establishment Clause rights under the First Amendment when it asserted jurisdiction over their marriage). Waite v. Waite, 150 S.W.3d 797 (Tex. App. 2004)(web opinion).
This action grows out of Husband's repeated attempts to have Wife's 1960 divorce to her first husband declared void, presumably to then invalidate his own marriage to her. His declaratory judgment actions alleged that she had not been a resident of the state for twelve months preceeding the divorce. In this opinion, the Alabama Supreme Court noted that third parties lack standing to attack a divorce decree unless it is void on its face. The court reviews the caselaw interpreting the requirements for establishing jurisdiction in divorce actions (caselaw developed in an age of migratory divorces) and concludes that, because first husband and Wife had submitted to the court's jurisdiction, Wife need only have alleged and proven domicile for the court to have jurisdiction. Because Wife had alleged and there was evidence to support her allegations that she was a resident of the state at the time of filing the action, the court concluded that the decree was not void on its face. Thus, the court held that Husband did not have standing to bring an independent challenge to the validity of the 1960 divorce decree.
Waite v. Waite, 2006 Ala. LEXIS 186 (July 28, 2006) bgf
The Missouri Court of Appeals provides an opinion reversing a default judgment of child custody and child support for lack of jurisdiction under the UCCJA that provides a fairly straightforward problem for students to observe the operation of the UCCJA.
Mother lived in Missouri. She entered the military in 1986 and has lived on military posts for most of the time since, but continued to maintain her domicile in Missouri. Mother's children were born in New York in 1995 and 1996. In 2002, Family visits grandparents in Missouri while Mother is on leave en route to new assignment in Virginia. In 2004, Mother and Father separate. Mother files for and obtains a full order of protection in Virginia against Father. Both continue to live in Virginia. In August of that year, Mother files for divorce in Missouri. Trial court grants a default judgment, granting Mother custody and ordering child support. The court of appeals reverses, on the basis of some fairly well-established principles of jurisdiction:
- UCCJA bases for jurisdiction are in preferential order
- Mothers legal "residency" in Missouri was not a basis for the home state determination, as home state is premised on the physical, not legal, residency of the children.
- Mother's significant connections with the state do not provide an alternative basis for jurisdiction, as the court must consider the children's connection with the state (which must be "equal or stronger than" those to the home state in order to provide an alternate basis for jurisdiction)
- Virginia had clearly not declined jurisdiction, as the issuance of the protective order demonstrated.
Miller v. Sumpter, 2006 Mo. App. LEXIS 1147 (July 31, 2006)
Opinion on the web (last visited August 1, 2006 bgf)
Saturday, July 29, 2006
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:
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.
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.
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)
Friday, June 23, 2006
Case Law Development: Service of Process While Present in the State for Divorce Mediation Can Establish Personal Jurisdiction
The Washington Court of Appeals discusses the propriety of asserting personal jurisdiction on the basis of personal service of process on a divorce litigant while they are present in the state for a divorce mediation. The court rejected the approach of those states that require the defendant be warned that he might be served with process when entering the state for settlement negotiations and held that the Washington court properly had personal jurisdiction over husband on the basis of the personal service and the fact that the couple had owned Washington property during the course of the marriage (though they resided in Ohio).
In re Marriage of Craze, 2006 Wash. App. LEXIS 1279 (June 19, 2006)
Opinion on the web (last visited June 22, 2006 bgf)
Friday, June 9, 2006
The Connecticut Court of Appeals has examined the doctrine of forum non conveniens and subject matter jurisdiction in custody modification actions involving international families. This case involved a couple who were divorced in Connecticut and moved to Japan. After disputes in Japan regarding Mother's visitation, Mother moved back to Connecticut and filed a motion to modify the parenting arrangements and for contempt. The trial court dismissed the case without a hearing, on the basis of forum non conveniens and lack of subject matter jurisdiction under the UCCJEA.
The court of appeals reversed. The court noted that regarding the forum non conveniens decision, the applicable law was the common law rather than the UCCJEA. In enacting the UCCJEA, Connecticut had eliminated that portion of the model act that extended the definition of "state" to include foreign countries. However, even under common law forum non conveniens rules, the court noted, a hearing is necessary.
Likewise, in determining if the trial court had exclusive or concurrent jurisdiction under the UCCJEA, the court of appeals held that a hearing was necessary. The jurisdictional issue involves questions of fact such as whether Connecticut was the children's home state when the modification motion was filed and whether Mother had a significant connection with the state, not just Japan. Due process, the court explained, required a trial-like hearing to determine these factual issues on which questions of jurisdiction depended.
Temlock v. Temlock, 95 Conn. App. 505 (May 23, 2006)
Opinion on the web (last visited June 8, 2006 bgf)
Tuesday, June 6, 2006
Case Law Development: Nonimmigrant aliens can be "residents" for subject matter jurisdiction purposes under divorce statutes
Husband and Wife each are citizens of other countries who hold nonimmigrant visas. Wife filed a dissolution of marriage action in Florida and Husband argues that Wife's status as a nonimmigrant alien prohibited her from claiming that Florida was her "residence" for the six months preceding the date she filed her petition for dissolution of marriage, thus precluding subject matter jurisdiction. The Florida Court of Appeals held that an individual's nonimmigrant status does not preclude her, as a matter of law, from establishing residency in Florida for purposes of establishing subject matter jurisdiction for divorce.
Weber v. Weber, 2006 Fla. App. LEXIS 8599 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)
Friday, April 21, 2006
Here's another nicely-written scholarly opinion from the Maine Supreme Court, this one to pass down the hall to our civil procedure colleagues to remind them to be sure to cover the status exception to personal jurisdiction in their syllabus. The court reviews the history and current validity of the status exception, reviewing decisions of the US Supreme Court and state courts. The court concludes that, while a judgment dissolving a marriage is not a property or in rem, judgment, it is unique enough that the courts can exercise jurisdiction for purposes of granting a divorce judgment only where the petitioner is domiciled in the state, even if the respondent has no contacts whatsoever with Maine. “By observing the necessity for basic due process rights of notice and an opportunity to be heard, and by carefully considering the convenience of Maine as a forum, the courts of Maine will continue to safeguard the rights of nonresident defendants while effectuating Maine's strong interest in protecting the rights of Maine residents to obtain judgments dissolving marriages in which they no longer wish to remain.”
Von Schack v. Von Schack, 2006 ME 30; 2006 Me. LEXIS 32 (March 30, 2006)
Opinion on the web (last visited April 20, 2006 bgf)
Tuesday, March 28, 2006
The United States Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal of visitation claims in a suit under the International Child Abduction Remedies Act. The court held that the Act provides remedies only for violations of the Hague Convention on the Civil Aspects of International Child Abduction. Since the treaty does not address visitation or access issues outside the context of wrongful removal or retention of a child, the federal courts have no jurisdiction under the act. Rather, parties seeking to enforce visitation right should file suit in state courts.
A dissenting judge would have interpreted the act to cover these issues.
Cantor v. Cohen, 2006 U.S. App. LEXIS 6915 (4th Cir. March 21, 2006)
Opinion on the web (last visited March 26, 2006 bgf)
The Ohio Court of Appeals traces issues of jurisdiction over child support orders in a case involving a Mother seeking to enforce child support orders from Puerto Rico in the Ohio courts.
Mother had registered and sought to enforce an order of support and for arrearages issued by the court in Puerto Rico. The entire family had lived in Puerto Rico, where the original child support ordered had been issued in 1971. After the divorce, all the parties had moved to New York. The court noted that, at that point, New York had effectively obtained exclusive and continuing jurisdiction. Thus the Puerto Rican court was without jurisdiction to have issued an arrearage judgment at that time. However, Mother subsequently moved back to Puerto Rico with child. Thereafter, the court had jurisdiction to issue a new support order for the child's prospective care. The court held that, although Puerto Rico did not have jurisdiction to enforce the 1971 support order for arrears that accrued after New York obtained jurisdiction, it did have jurisdiction to enter a support order for the prospective care of the child.
Thus, the trial court's judgment regarding the registration of the Puerto Rico support order concerning the child's prospective care was affirmed. However, the trial court's order which enforced Puerto Rico's attempt to collect the arrears stemming from the 1971 order was vacated, and the case was remanded for recalculation of arrears that accrued from 1971 until 1976.
Cruz v. Cumba-Ortiz, 2006 Ohio 1362, 2006 Ohio App. LEXIS 1230 (March 23, 2006)