By DivorceNet Staff
Published: February 10, 2006
by Peggy L. Podell1
Law Offices of Podell & Podell
250 West Coventry Court
Milwaukee, WI 53217
Issues of family law seemed to dominate the headlines this past year. From same-sex marriage to the rights of third-parties to custody, from relocation, to family autonomy, the newspaper reminded us every day that family law is the unique area of practice that touches more lives in a real and tangible way than any other.
Any attempt to summarize the myriad developments across the fifty-four jurisdictions of the United States, the federal government, as well as uniform law will necessarily be wanting. Nonetheless, certain developments warrant out attention.
I. Same-Sex Marriage, Civil Unions, Domestic Partnerships
President Bush made “moral values” a centerpiece of his re-election campaign, and the “protection of traditional marriage” brought out the vote.2 In the 2004 election and in 2005 election, thirteen states passed state constitutional amendments banning same-sex marriage, bringing to 18 the total number of state that have approved measures defining marriage exclusively as a union between one man and one woman (Alaska, Arkansas, Hawaii, Georgia, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, Utah).3 As of June 9, 2005, measures to limit marriage by constitutional amendment were pending in seven states (Minnesota, Wisconsin, Illinois, North Carolina, Delaware, New Jersey, Massachusetts);4 measures were approved by the legislature, but must be voted on again in two states (Indiana, Virginia); and measures were approved by the legislature and are awaiting ratification by the voters in five states (South Dakota, Texas, Tennessee, Alabama, South Carolina). Moreover, forty states have mini-“Defense of Marriage Act” statutes were generally upheld from constitutional attack. E.g., Morrison v. Sadler, 821 N.E.2d 15, 18-19 (Ind. Ct. App. 2005).
On the other hand, four states have bills pending to legalize same sex marriage or civil unions (California, Maine, New York, Rhode Island), and Connecticut passed a law recognizing and codifying civil unions. Lower courts in California, New York, and Washington recently ruled that same-sex couples should be allowed to marry. On June 29, 2005, the California Supreme Court let stand an opinion turning back a challenge to a law creating a domestic partnership registry for same-sex couples. Knight v. Superior Court, 128 Cal. App.4th 14, 26 Cal. Rptr.3d 687 (2005), rev. den. (June 29, 2005). And internationally, same-sex marriage is legal in the Netherlands, Belgium, Canada, and Spain (officially recognizing same-sex marriage on June 30, 2005), while registered partnerships which grant most of the same rights as marriage are recognized in Denmark, Norway, Sweden, Iceland, and Finland. Less expansive same-sex partnerships are recognized in Hungary, France, Germany, and Portugal. Note, Inching Down the Aisle: Differing Paths Towards the Legalization of Same-Sex Marriage in the United States and Europe, 116 Harv. L.Rev. 2004, 2005 (2003).
The federal Defense of Marriage Act faced its first constitutional challenges and survived. Smelt, et al. v. County of Orange, 2005 WL 1429918 (C.D.Cal. June 16, 2005); In re Kandu, 315 B.R. 123 (Bkrtcy. W.D. Wash. 2004); Wilson v. Ake, 354 F.Supp.2d 1298 (M.D. Fla. 2005).
Where does this leave us, the family law practitioner? Probably litigating whether the full faith and credit clause of the constitution requires recognition of a same-sex marriage or civil union entered into in another state. E.g., Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (N.J.Tax Ct. 2005) (civil union in Vermont did not mandate New Jersey's recognition of rights preserved to married persons, such as ability to hold property as tenants by the entirety); Wilson v. Ake, 354F.Supp.2d 1298 (M.D. Fla. 2005) (lesbian couple married in Massachusetts was not entitled to have marriage recognized in Florida); In re Kandu, 315 B.R. 123 (Bkrtcy. W.D. Wash. 2004) (lesbian couple who married in Canada filed joint Chapter 7 petition; case dismissed for improper joint filing of unmarried individuals). See generally Andrew Koppelman, Interstate Recognition of Same-Sex Marriages and Civil Unions: A Handbook for Judges, 153 U.Penn. L.Rev. 2143 (June 2005); Linda Silberman, Same-Sex Marriage: Refining the Conflict of Laws Analysis, 153 U. Penn. L.Rev. 2195 (June 2005); Tobias Barrington Wolf, Interest Analysis in Interjurisdictional Marriage Disputes, 153 U. Penn. L.Rev. 2215 (June 2005).
II. Supreme Court
At the end of the 2004 term, the Court decided Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S.Ct. 2301 (2004).There, the father of an elementary school student brought an action challenging the constitutionality of the school district's policy requiring teacher-led recitation of the Pledge of Allegiance. The Supreme Court held that the father did not have standing to pursue the claim on behalf of his daughter because the mother had been granted “sole legal custody as to the rights and responsibilities to make decisions relating to the health, education, and welfare” of the child.
On June 27, 2005, the Court decided Town of Castle Rock, Colo. v. Gonzales, 2005 WL 1499788 (U.S. June 27, 2005). In that case, a wife brought a civil rights action against a municipality and its police officers based on the officers' refusal to enforce a domestic abuse restraining order against the husband. In particular, the wife made repeated reports to the police over several hours that the husband had taken their three children in violation of a restraining order against him. The police, in response, did nothing. The husband murdered the three children.
The Court held that Colorado law and the restraining order she obtained did not create a personal entitlement to police enforcement of a domestic abuse restraining order, and thus the wife did not have a protected property interest in police enforcement of the order. Rather, a tradition of police discretion exists such that the police could not be held liable for their failure to act.
Along with the Supreme Court's decision in U.S. v. Morrison, 529 U.S. 598, 120 S.Ct. 1740 (2000), holding the civil enforcement provisions of VAWA unconstitutional, it is clear that federal law offers no refuge for victims of domestic violence.
III. Hague Conventions
The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is being drafted. It is expected that the final draft will be presented by the end of 2006. Drafts and Reports on the proposed law can be found at:
A few interesting decisions under the Hague Convention on the Civil Aspects of International Child Abduction. In Adams ex rel. Naik v. Naik, 363F.Supp.2d 1025 (N.D. Ill. 2005), the father sought return of the child, claiming the child was wrongfully taken. While the father had been visiting the child and paying support, the father, had never had a paternity order entered. The court determined he did not have “rights of custody.”
In Ruiz v. Tenorio, 392F.3d 1247 (llth Cir. 2004), the court adopted the “mixed standard” of review for determining habitual residence: reviewing the district court's findings of fact for clear error and its legal determinations and application of the law to the facts de novo.
IV. Uniform and Federal Law
Congress has increasingly legislated in the family law area, despite the U.S. Supreme Court’s recognition that family law, more than any other area of law, is in the purview of the states. There has been no recent federal family law legislation of note, other than the Terry Schiavo bill.
Uniform law has also been relatively stable of late. The UCCJEA was enacted by four more jurisdictions in the 2004-2005 session (Ohio, Wyoming, South Dakota, Virgin Islands); the 2001 version of UIFSA was enacted in four more jurisdictions (Virginia, Wyoming, New Mexico, Delaware); the 2002 Uniform Parentage Act was approved in two more states (Utah, North Dakota).
V. Third-Party Visitation/Custody Rights
The Supreme Court case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) continues to reverberate. A number of states considered their third-party visitation statutes in light of the opinion.
In In re B.R.S., 2005 WL 1244582 (Tex. App. – Waco, May 25, 2005),the court held its grandparent visitation statute was not unconstitutional on its face. Accord In re Marriage of Harris,34 Cal. 4th 210, 17 Cal. Rptr.3d 842 (2004).
On the other hand, in In re Parentage of C.A.M.A., 154 Wash.2d 52, 109 P.3d 405 (2005), the court held that its grandparent visitation statute governing visitation for children born out of wedlock, which contained a presumption that visitation was in the best interests of the child, was unconstitutional on its face. See also Medaris v. Whiting, 695 N.W.2d 226 (S.D. 2005) (trial court improperly presumed that grandparent visitation was in the best interests of the child which improperly placed burden on mother to prove it wasn’t); In re Marriage of Engelkens, 354 Ill. App.3d 790, 821 N.E.2d 799 (2004) (statute allowing court to grant reasonable visitation to stepparent if court determines it is in child’s best interest is unconstitutional on its face).
The trend in cases concerning the parental rights of same-sex partners is that of “the intended parent.” Thus, when one woman is artificially inseminated with the intention that she and her partner are the parents, then the non-biological “parent” has the standing to pursue parental rights and custody. In In re E.L.M. C., 100 P.3d 546 (Colo. App. 2004), the court held that the mother’s former partner was the psychological parent of the child, and thus had standing to seek custody/visitation. In In re A.B., 818 N.E.2d 126(Ind. Ct. App. 2004), a former partner brought a parentage action seeking recognition as parent under the Parentage Act. The court allowed the action. See also In re J.D.M., Ohio Ct. App. Oct. 11 2004 (where one woman donated an egg that was fertilized and then implanted in the donor woman’s same-sex partner, the trial court should not have dismissed a shared custody petition filed by the two women to establish their parental rights); A. G. v. D. W., 2005 WL 1432744 (Cal. Ct. App. 2 Dist.June 21, 2005) (same); T.B. v. L.R.M.,874 A.2d 34 (Pa. Super. 2005) (same). Contra T.F. v. B.L., 442 Mass. 522, 813 N.E. 2d 1244 (2004) (parties cannot have agreement to create a child and thereby both become parents).
The courts continue to struggle with relocation cases. In the last year (June 30, 2004 to June 30, 2005), over 50 cases considered relocation requests and standards for those requests. As noted in the recent Hawkes v. Spence, ___A.2d ___ (Vt. May 6, 2005),relocation cases are among the most difficult because they address a seemingly irreconcilable conflict between two legitimate interests: the custodial parent’s interest in making decisions for the benefit of the new family, and the noncustodial parent’s interest in maintaining a close bond with the parties’ children.5
In In re Marriage of Ciesluk,113 P.3d 135 (Colo. 2005), the court examined the amendments to the child custody statute which eliminated the presumption in favor of the custodial parent seeking to relocate, and held both parents to share equally the burden of demonstrating what is in the child’s best interests. The court held that these amendments did not unconstitutionally infringe on the right of travel of the custodial parent.
In Latimer v. Farmer, 360 S.C. 375, 602S.E.2d 32 (2004), the court abandoned the presumption against out of state relocation, and like the above-cited case, adopted a best interests analysis. In Latimer, however, the burden was not equally allocated; it was incumbent upon the custodial parent to show that the move is in the best interests of the child. See also Dupre v. Dupre, 857 A.2d 242 (R. I. 2004) (trial court improperly applied “compelling reason” test, and should have applied “best interests” analysis in relocation case).
Perhaps the most interesting relocation case of the past year is Hawkes v. Spence, supra. In that case, the court adopted Section 2.17 of the ALI Principles of the Law of Family Dissolution. Under that section, relocation is a substantial change in circumstances justifying a re-examination of parental rights and responsibilities only when the relocation significantly impairs either parent’s ability to exercise the responsibilities that parent has been exercising or been attempting to exercise under the parenting plan.
Quite possibly, the ALI Principles are the wave of the future.
VII. Child Support
There has been a trend away from the Percentage of Income Model child support guideline that is in use in, for example, Illinois, toward the Income Shares Model. In the last year, Tennessee, Georgia, Minnesota, and Guam all switched from Percentage of Income to Income Shares model. The trend is in response to pressure by non-custodial parents’ groups that feel the percentage of income model, by looking only to the noncustodial parent’s income, is unfair. (The same states that use Percentage of Income have the greatest number of constitutional challenges to their guidelines as well.)
As UIFSA becomes more familiar to practitioners and judges, more UIFSA decisions are consistent with its concept of continuing exclusive jurisdiction.
VIII. Electronic Discovery and Wiretapping
A number of interesting cases were decided in the past year concerning cyber-snooping. In O'Brien v. O'Brien, 899 So.2d 1133 (Fla. 5th DCA 2005), the court held that the wife had illegally “intercepted” her husband’s electronic communications to another woman via instant messaging, within the meaning of the Security of Communications Act, when she installed a spyware program on the computer which simultaneously copied electronic communications as they were being transmitted.
On the other hand, in Evans v. Evans, 610S.E.2d 264 (N.C. Ct. App. 2005), the court held that sexually explicit e-mails that the wife had sent to her physician, offered by the husband in the divorce action in support of grounds for divorce and in support of denying post-separation spousal support to wife, were not illegally intercepted in violation of the federal Electronic Communications Privacy Act (ECPA), where interception of e-mails was not contemporaneous with transmission, and rather the e-mails were stored on and recovered from the hard drive of the family computer.
So, should you advise your client to go rooting around the family computer for incriminating evidence? Probably not. A good idea would be to request that the hard drive of the suspected computer be impounded for inspection. Guidance in this area was recently provided in Etzion v. Etzion, 7 Misc.3d 940,N.Y.S.2d(Sup. Ct. 2005). In that case, claiming that her husband had a history of “past fraudulent conduct,” the wife wanted her computer forensic experts to “impound, clone and inspect” her husband’s “computer servers, hard drives, individual workstation PC, laptop and other items containing digital data.” She asked that he pay her attorney fees and computer forensic expert costs. The husband defended by claiming the request was over broad, intrusive and burdensome. He also questioned his wife’s counsel’s ability to safeguard his data based on an alleged history of reckless and careless data handling. The court ordered: 1. Both parties’ forensic experts will meet at the data collection center, along with a court-appointed referee; 2. Wife’s expert will copy the hard drives and immediately turn them over to the referee; 3. After all drives are copied, the experts and referee will examine them; 4. Both parties will receive hard copies of relevant business records; 5. The referee will retain custody of the drive images until termination of litigation; 6. Wife will pay for all production costs; and 7. Each party will advance their own counsel fees and expert costs, subject to reallocation at trial.
Guidance in this new area of law can be found in Paul R. Rice, Electronic Evidence: Law and Practice (ABA 2005).
IX. Property Division
Issues in property division come and go. A few years ago, the hot issue was stock options. This past year, quite a few cases concerning “personal goodwill” have been decided, with a decided trend towards states decided that nonmarketable goodwill is not marital property. E.g., In re Schneider, 214 Ill..2d152, 824 N.E.2d 177 (2005); DeSalle v. Gentry, 818 N.E.2d 40 (2004).
X. Collaborative Law
More and more family law attorneys are becoming interested in and participating in collaborative divorces. One of the primary differences between collaborative law and the more traditional litigation mode is that the participants undertaking a collaborative approach pledge not to go to court to resolve differences. If it becomes necessary to ask for court intervention, both attorneys must withdraw and assist new counsel in “getting up to speed”. Another difference is the lack of formal discovery. Information is to be shared freely. The process involves four-way meetings where issues are discussed and “brain storming” occurs to develop alternative solutions that meet, to the greatest extent possible, both parties and the children.
One branch of collaborative law includes a collaborative team. In other words, if there is a question as to placement, a professional knowledgeable about child development might be included as a team member to help the parties understand what a child may need at various stages of his or her life. Accountants are frequently part of the team and are asked to not only assist in valuing a business, for instance, but also to help the parties develop budgets and support options.
Collaborative law is not limited to the United States; it is also being practiced in other countries and there is an international group, the International Collaborative Professional, which involves lawyers, mental health practitioners, and those involved in providing financial advice.
XI. Cooperative Divorce Law
We in Wisconsin started Divorce Cooperative Institute approximately two years ago. The goal of the Institute is to foster an atmosphere of cooperation and professionalism within the family law bar. The concepts of collaborative law are encompassed within cooperative law with the exception that parties do not have to get new attorneys if it becomes necessary to seek relief from the court.
A seminar was presented last year and one is planned for this year. One of the goals is to develop “tools of the trade” to share with other family lawyers. Last year, attendees and members of the Institute were given as part of their materials a marital settlement agreement with various alternative clauses, both in hard copy and on a disk. We hope to add clauses to the agreement this year and also provide attendees with laminated sheets setting forth various issues, such as what elements do you need to be sure to include when drafting maintenance/alimony provisions. The concept is to help other family lawyers in order to elevate the entire practice.
In the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472(2003), Justice Kennedy's lead opinion was careful to state that the case did not involve “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578, 123 S.Ct. at 2484. Nevertheless, Lawrence has been widely cited in constitutional challenges to same-sex marriage bans. See generally Jason Montgomery, An Examination of Same-Sex Marriage and the Ramifications of Lawrence v. Texas, 14 Kan. J. Law & Pub. Policy 687 (Spring 2005).
Justice Scalia feared this slippery slope, and complained that the majority decision would open the door to the downfall of all morals legislation, including polygamy, “adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” 539 U.S. at 590, 123 S.Ct. at 2490.
Virginia did, in fact, rely on Lawrence v. Texas to hold that its criminal fornication statute was unconstitutional. Martin v. Ziherl, 269 Va. 35, 607S.E.2d 367 (2005).
4 On June 14, 2005, the New Jersey Superior Court, Appellate Division, held that the New Jersey constitution does not recognize same-sex marriage. Lewis v. Harris, 2005 WL 1388578 (N.J.Super). App. Div. June 14, 2005).
5 There are basically four approaches to relocation cases: (1) the moving parent has the burden of showing the move is in good faith and in the best interests of the child (this is the model endorsed by the AAML in its AAML Model Relocation Act); (2) the moving parent has the burden of showing the move is in good faith, and then the burden shifts to the opposing parent to show that the move is not in the child's best interests; (3) presumption in favor of good faith relocation (this is essentially In re Marriage of Burgess, 913 P.2d 472 (Cal. 1996)); (4) the objecting parent has the burden of showing the relocation endangers the child and lacks mitigating benefits (this is essentially the approach taken by the Uniform Marriage and Divorce Act).
Family Law Cases from Around the Nation
Decided July 2004
Even though a husband/shareholder had a controlling interest in a Sub-S corporation, the Sub-S retained earnings should not have been attributed to the husband for purposes of support where a distribution may have breached his fiduciary duty to the other shareholders. Zold v. Zold, No. 5D03-148 (Florida Court of Appeals, June 25, 2004).
A stipulation that alimony would terminate upon the wife’s death or remarriage did not entitle her to alimony payments from her deceased husband’s estate. Cohan v. Feuer, No. SJC-09083 (Massachusetts Supreme Judicial Court, July 7, 2004).
A divorce lawyer who is let go by a party may still seek fees from the opposing party after the discharge. Frankel v. Frankel, No. 100 (New York Court of Appeals, June 29, 2004).
Under the UCCJEA, a Texas court that awarded custody to the father in 1996 retained exclusive continuing jurisdiction even after the father and children left the state where the mother stayed in Texas; thus, Texas could hear the mother's petition for modification. In re Forlenza, No. 03-0299 (Texas Supreme Court, July 9, 2004) (2004 WL 1536009, unreported).
A non-custodial parent is not entitled to a credit
against his/her child support obligation for the
adoption assistance benefit the custodial parent
receives for the child. In re Hennessey-Martin,
No. 2003-531 (New Hampshire Supreme Court, June 30,
(Ed. note: See also this article on adoption assistance benefits:)
A person’s sex is determined at birth, and thus the “marriage” between a female-to-male transsexual and another female was void. Kantaras v. Kantaras, No. 2D03-1377 (Florida Second District Court of Appeals, July 23, 2004).
(Ed. note: For other cases discussing the validity of marriages of transsexuals, see Boys Will be Boys,)
A woman may establish her parentage of the child born via artificial insemination to her lesbian partner by claiming second-parent status under the Uniform Parentage Act’s presumption of paternity section. Kristine Renee H. v. Lisa Ann R., No.B167799 (California Court of Appeals, Second District, June 30, 2004).
A trial court properly awarded equal parenting rights to a mother and her lesbian ex-partner where the partner showed she was the psychological parent of the child. In re E.L.M.C., NO. 03CA1121 (Colorado Court of Appeals, July 1, 2004).
A gestational mother who was impregnated with donor eggs fertilized by her husband’s sperm is the legal mother, despite the lack of genetic connection, because the IVF agreement between the facility and the gestational mother and the father evidenced all parties’ intent that the gestational mother be the legal mother. In re C.K.G., No.M2003-01320-COA-R3-JV (Tennessee Court of Appeals, June 22, 2004).
A valid waiver of spousal support in a prenuptial agreement will not be enforced if to do so at the time the provision is invoked would be unconscionable. In re Rosendale, No. G031925 (California Court of Appeals, Fourth District, June 28, 2004).
Property Division - Life Insurance Benefits
An ex-husband may impose a constructive trust on life insurance proceeds that were distributed to a widower, where the ex-wife and ex-husband had stipulated that the ex-wife would maintain the ex-husband as beneficiary. Foster v. Hurley, No. 02-P-171 (Massachusetts Court of Appeals, June 30, 2004).
Property Division - Military Retirement Pay
Where the parties agree in a divorce settlement that
the husband cannot waive his military retirement pay in
order to receive military disability pay, the wife may
sue to enforce the agreement. Gatfield v. Gatfield,
No. A03-1618 (Minnesota Court of Appeals, July 6, 2004).
Property Division – Pensions
A divorce court may offset the Social Security
benefits of a private sector worker against his or her
share of the federal worker’s federal pension to achieve
parity between the pension benefits. Panetta v.
Panetta, No. A-1424-02T5 (New Jersey Appellate
Division, July 1, 2004).
Family Law Case from Around the Nation
Decided August 2004
When a spouse files for bankruptcy after divorce, resulting in the other spouse being responsible for debt not allocated in the divorce decree, the decree may be vacated. Birt v. Birt, No. 1CA-CV 03-0258 (Arizona Court of Appeals, Division 1, August 12, 2004).
A mother cannot continue to home-school her children
when the children are failing to maintain even minimal
standards. Further, because the children should be sent
to public school, the mother must then obtain a job.
Donna G.R. v. James B.R., No. 39005(Louisiana Court
of Appeals, July 2, 2004).
A mother’s relocation request should be determined under the best interests of the child standard, not whether the mother could show “compelling reasons” for the move. Dupre v. Dupre, No.2002-300 (Rhode Island Supreme Court, July 30, 2004).
The presumption against out of state relocation with a custodial parent was abandoned, instead adopting a best interests analysis. Latimer v. Farmer, No. 25857 (South Carolina Supreme Court, August 16, 2004).
(Ed. note: The case contains a good discussion of the law of relocation in other states.)
Child Custody - Jurisdiction
A Florida court’s award of custody was void for lack of subject matter jurisdiction where the father failed to comply with the UCCJA’s affidavit requirement. Ruble v. Ruble, No.2D03-3251 (Florida District Court of Appeals, Second District, July 21, 2004).
Drawing a distinction between a custodial parent receiving Social Security benefits on behalf of a child and a child directly receiving those same benefits, the court held that an 18 year old’s direct receipt of Social Security disability benefits on account of his father's disability cannot be credited against the father’s child support obligation. Tarbox v. Tarbox, No. 23723 (Connecticut Court of Appeals, August 10, 2004).
Tuition reimbursements from an employer are not income for purposes of child support, as the reimbursements do not represent funds available to the support obligor. Mellott v. Mellott, No.90,575(Kansas Court of Appeals, July 23, 2004).
A trial court establishing a child support obligation for a child that lives in another jurisdiction may not deviate to account for the lower cost of living in the child’s jurisdiction. Gladis v. Gladis, No.127 (Maryland Court of Appeals, August 24, 2004).
A woman’s lesbian partner who encouraged her to conceive a child via artificial insemination is not liable for child support, rejecting any claim of parenthood by agreement. T.F. v. B.L., No. 09104 (Massachusetts Supreme Judicial Court, August. 25, 2004).
Stock options acquired and exercised after divorce do NOT constitute income for purposes of child support, because the parties’ PSA defined income for purposes of support and such definition did not include stock options. Heller-Loren v. Apuzzio, No.A-0494-2T3 (New Jersey Superior Court, Appellate Division, August 3, 2004).
An oral agreement between a man and woman that the
man would donate his sperm in exchange for being
released from any obligation for child support is not
enforceable. Ferguson v. McKiernan, No.
J.A15043-04 (Pennsylvania Superior Court, July 22,
The “Defense of Marriage Act,” which defines marriage
for federal law purposes as only between a man and a
woman, is constitutional. The court did not address the
full faith and credit provisions of DOMA. In re
Kandu, No. 03-51312(Bankruptcy Court, Western
District of Washington, August 17, 2004).
Joining the majority of jurisdictions that have considered the issue, the Florida Court of Appeals held that biology at birth determines a person’s sex. Thus, a marriage between a female and post-operative female-to-male transsexual was invalid. Kantaras v. Kantaras, No. 2D03-1377(Florida Court of Appeals, Second District, July 23, 2004).
(Ed note: See Boys Will Be Boys,for cases from Kansas, New York, Ohio, Texas, and New Jersey on the issue.)
The statutory prohibition against same-sex marriages is a violation of the due process and privileges and immunities clauses under the state constitution. Anderson v. KingCounty, No. 04-2-04964-4SEA (Washington Superior Court, August 4, 2004).
(Ed. note: Joining Ontario, British Columbia, and Quebec, the Yukon Supreme Court reached the same conclusion under the Yukon Constitution. See)
Property Division Military Benefits
The trial court did not err in ordering the husband to make up to the wife the amount she lost when the husband elected to receive military disability benefits instead of retirement pay. In re Gahagen, No. 4-272/03-1731 (Iowa Court of Appeals, August 11, 2004).
A wife was estopped from denying her husband’s paternity of a child they held out as their own, thereby allowing the court to grant custody and visitation rights to the husband although he was not the child’s biological father. Griffith v. Pell, No. 2002-CT-00532-SCT (Mississippi Supreme Court, July 29, 2004).
Family Law Cases from Around the Nation
Decided September 2004
Nevada adopts the putative spouse doctrine in
annulment proceedings, holding that an
individual whose marriage is void due to a prior legal
impediment is treated as a spouse with community
property rights in equitable division of property so
long as the party seeking equitable relief participated
in the marriage ceremony with the good-faith belief that
the ceremony was legally valid. Williams v. Williams,
120 Nev. Adv. Op. No. 64 (Nevada Supreme Court,
September 13, 2004).
Pass through income of a sub-chapter S corporation that does not increase the minority shareholder’s actual income should not be considered income for purposes of child support. Tebbe v. Tebbe, No. 02A05-0403-CV-130 (Indiana Court of Appeals, September 23, 2004).
Parents may not privately agree to suspend child support when the custodial parent is receiving public assistance. State ex rel. Mitchell v. Armstrong, No.W2003-01687-COA-R3-JV (Tennessee Court of Appeals, September 3, 2004).
A trial judge’s condition of probation in a criminal
non-support case that the father make every reasonable
effort to use contraception and avoid fathering more
children was held unconstitutional. State v. Talty,
No. 103 Ohio St.3d 177, 2004-Ohio-4888 (Ohio Supreme
Court, December 29, 2004).
Even if the state grants the right to sue for wrongful death to the surviving member of a “domestic partnership,” i.e., a same-sex partnership, it may still constitutionally deny the same right to the surviving member of an unmarried cohabiting couple of the opposite sex. Holguin v. Flores, No. B168774 (California Court of Appeals, Second District, September 15, 2004).
Where a parent has executed a voluntary acknowledgment of paternity, that parent cannot then bring an action under the Parentage Act to declare the non-existence of a parent-child relationship based on genetic testing. People ex rel Department of Public Aid v. Smith, No. 97120 (Illinois Supreme Court, September 23, 2004).
A prenuptial agreement entered into in Florida would not be recognized in Tennessee, even though it would be valid in Florida, because it did not meet Tennessee’s stricter requirements of full and fair disclosure between the parties. In re Estate of Davis, No. M2003-02614-COA-R3-CV (Tennessee Court of Appeals, September 2, 2004).
Property Division – Community Property
A petition for dissolution of marriage which does not
allege a community property interest in certain real
property cannot support the filing of a lis pendens on
that property. Gale v. SuperiorCourtofOrangeCounty,
No. G033968 (California Court of Appeals, October 6,
Property Division – Contempt
A wife may seek to hold a husband in contempt for
failing to pay joint debts that were assigned to him in
the divorce proceeding, although the husband had those
same debts discharged in bankruptcy. Rogers v.
McGahee, No. S04A0689 (Georgia Supreme Court
September 14, 2004).
Property Division – Factors
The trial court properly awarded all of the husband’s
Nobel Prize money to the husband, and then awarded the
wife a larger portion of the remaining property since
the Nobel Prize would increase the husband’s ability to
acquire income and assets in the future. Ketterle v.
Ketterle, No. 03-P-474 (Massachusetts Court of
Appeals, September 3, 2004).
Property Division – Tax
Tax consequences may be considered in establishing
the amount of a marital property award as an “other
factor” under paragraph 8-205(b)(11) of the Family Law
Article, when they are immediate and specific, or not
speculative. Moreover, a country club membership is not
“property” to be divided, since it cannot be sold,
transferred, exchanged, redeemed, inherited, or
liquidated. Solomon v. Solomon, No. 116
(Maryland Court of Appeals, September 13, 2004).
Family Law Cases from Around the Nation
Decided October-November 2004
An antenuptial agreement, whereby the wife waived all right to alimony and equitable distribution, and which left the husband very wealthy, was enforceable after an 18-year marriage. The court held the agreement enforceable although it was “patently unreasonable.” Waton v. Waton, No. 4D02-4828(Florida Court of Appeals, Fourth District, October 27, 2004).
Husband waived his right to equitable distribution of
wife’s ERISA-qualified stock option plan under the terms
of the parties’ antenuptial agreement; ERISA did not
prohibit such a waiver. Savage-Keough v. Keough,
No. a5704-02(New Jersey Superior Court, Appellate
Division, November 5, 2004).
Answering a question certified from the Second Circuit, New York’s highest court held that battered mothers may not lose custody of their children to the state solely because the children may be witnesses to domestic violence suffered by the mothers. Nicholson v. Scoppetta, No.113 (New York Court of Appeals, October 26, 2004).
Where one woman donated an egg that was fertilized
and then implanted in the donor woman’s same-sex
partner, the trial court should not have dismissed a
shared custody petition filed by the two women to
establish their parental rights. In re J.D.M.,
No. 2003‑11-113 (Ohio Court of Appeals, October
It was “manifestly unreasonable” for a trial court to
condition its custody award to an Israeli mother on her
remaining in the United States, given the evidence that
the mother’s life would be immeasurably better in
Israel. Goldfarb v. Goldfarb, No. 297 EDA 2004
(Pennsylvania Superior Court, October 27, 2004).
Just because parents share 50/50 residential time
does not mean that the child support obligation is
divided evenly between the two parents. Rather, support
must be figured on both income and time. Graham v.
Cunliffe, No. 52622-7-I (Washington Court of
Appeals, November 1, 2004).
An agreement by which the parents of a child born out of wedlock “settled” the mother’s paternity and child support action for $20,000 and a release of all future claims for support against the father was void as against public policy. Gorrell v. Harris, No. M2003-00629-COA-R3-JV (Tennessee Court of Appeals, October 15, 2004).
An employee benefits package and the interest from a non-marital annuity were “income” for purposes of child support. Arbet v. Arbet, No.1370EDA 2004 (Pennsylvania Superior Court, November 15, 2004).
Child Support - College Expenses
Where parents can be ordered to pay “necessary”
educational expenses pursuant to statute, such expenses
can include sorority dues and a monthly cash allowance.
In re Goodman, No. 115/03-1133 (Iowa
Supreme Court, November 10, 2004).
A noncustodial mother’s obligation to pay child
support for her college-age daughter, an obligation
imposed by statute, did not terminate with the custodial
father’s death and the mother becoming the de facto
custodial parent. Kreutzer v. Kreutzer, No.
26010(Missouri Court of Appeals, October 29, 2004).
Pensions - Military
A serviceman’s waiver of military pension benefits for military disability benefits, which then affected the property distribution, can justify a finding of contempt against the serviceman. In re Lodeski, No. 04CA0515 (Colorado Court of Appeals, November 18, 2004).
A court properly granted a stepmother visitation rights on a finding that she stood in loco parentis to the child. The court was careful to distinguish Troxel, holding that the doctrine of in loco parentis was a creature of common law, not statutorily mandated visitation. Robinson v. Ford-Robinson, No. 04-370 (Arkansas Court of Appeals, October 27, 2004).
(Ed. note: This case should be contrasted with the recent MBB v. ERW, No. 2004 WY 134 (Wyoming Supreme Court, November 9, 2004), which held that a man lacked standing to seek visitation with his former cohabitant’s child with whom he developed a familial relationship.)
Family Law Cases from Around the Nation
Decided December 2004
A self-executing change in custody upon the happening of certain events in a divorce decree is void as against public policy. Dellinger v. Dellinger, No. S04F1376 (GeorgiaSupreme Court, November 23, 2004).
Child Custody - Hague Convention
A child's “habitual residence” under the Hague Convention remained the United States, not Germany, when the father and his family were living on a U.S. Air Force base in Germany in connection with the father’s military service. Holder v. Holder, No. 03-35595(United States Court of Appeals, Ninth Circuit, December 9, 2004).
In yet another case where a father argued that he should not have to pay child support because he did not plan the pregnancy with the mother (“His basic claim is that the mother of the child ‘fraudulently induced’ sexual intercourse, claiming that her birth control pills would prevent pregnancy, then left the state, married another man, and delayed seeking child support for several years after birth.”), the court imposed a child support obligation, noting, “Child support has long been a tax fathers have had to pay in Western civilization.” N.E. v. Hedges, No. 04a0437p.06(United States Court of Appeals, Sixth Circuit, December 4, 2004).
(Ed. note: What makes this case appalling, even more so than the fact that numerous cases have rejected these arguments, is that the father here is an attorney.)
In a case twisting the definition of “income” to
include assets, the court held that an obligor’s savings
account constituted “income” for purposes of an income
withholding order in a child support action. Shehan
v. Hogan, No. 03A05-0408-CV-411 (Indiana Court of
Appeals, November 23, 2004).
(Ed. note: The court need not have come to this conclusion in order to seize the asset; the law also provides for seizure of assets, including savings accounts, for payment of child support.)
Even though a husband initially lost his job due to a RIF (reduction in force), when he replaced his job as a computer specialist with a $300/week job as a massage therapist, the court could impute income because he was voluntarily underemployed. Storey v. Storey, No.A-1830-03T3 (New Jersey Superior Court, Appellate Division, December 15, 2004).
An oral agreement to waive child support arrears is unenforceable, thereby giving the obligee the right to sue to recover unpaid support. Kimble v. Ellis, No. 04-5 (Wyoming Supreme Court, December 10, 2004).
As a matter of first impression, the court held that an unmarried man who donated sperm to an unmarried woman for conception of a child was a man whose paternity was to be adjudicated under the Family Code, and thus he had standing to maintain a proceeding to adjudicate parentage of resulting child. In re Sullivan, No. 04-00514-CV (Texas Court of Appeals, Houston (14th Dist.) December 3, 2004).
Property Division - Pensions
A military member who took a “CBS/Redux bonus,” which would reduce his pension, must share the bonus with his ex-wife who had been awarded part of the pension in the divorce action. Boedeker v. Larson, No. 0900-04-1 (Virginia Court of Appeals, December 7, 2004).
Property Division - QDRO
A court may enter a QDRO to enforce the division of a
401(k) plan after the participant’s death. IBM
Savings Plan v. Price, No. 2:04-CV-187 (United
States District Court, District of Vermont, December 13,
A trial court may issue a QDRO to assign benefits from a party’s IRA to satisfy that party’s alimony obligation. Such an order is not an impermissible modification of the parties’ property division. Stamm v. Stamm, No. 2030321 (Alabama Court of Civil Appeals, December 10, 2004).
(Ed. note: For an article collecting cases on using QDRO's to enforce alimony and child support obligations, see).
The Canadian Supreme Court approved a statutory amendment that expands the definition of marriage to include same-sex couples. Re Same Sex Marriage, No. 2004 SCC 79 (Canada Supreme Court, December 9, 2004).
Third Party Custody/Visitation
Ohio’s grandparent visitation law meets the constitutional requirements of Troxel, disagreeing with decisions from Ohio’s Fourth and Sevenths districts. The Third District court held that the statute’s sixteen factor analysis gives proper weight to the decision of the parents. Spivey v. Keller, No. 6-04-09 (Ohio Court of Appeals, Third District, December 13, 2004).
The court rejected a vicarious consent argument that
would allow a parent to eavesdrop on a child’s telephone
conversations, ruling that the Washington statute would
not allow such an exception. State v. Christensen,
No. 74839-0 (Washington Supreme Court, December 9,
Family Law Cases from Around the Nation
Decided January 2005
Parties to a prenuptial agreement are in a confidential relationship as a matter of law, giving each party the duty to make frank, full, and truthful financial disclosure. Cannon v. Cannon, No. 48, Sept. Term 2004 (Maryland Court of Appeals, January 12, 2005).
When reviewing an arbitrator’s custody award, the
court must undertake a de novo review as to the child’s
best interest, and may not merely review the record for
legal error. MacIntyre v. MacIntyre, No. 255368
(Michigan Court of Appeals, January 22, 2005).
Child Support - Income
The retained earnings of a subchapter S corporation should not be imputed as income to the sole or majority stockholder unless the earnings are excessive or it is shown that the shareholder-obligor is intentionally manipulating earnings to avoid support. Taylor v. Fezell, No.E2002-02937-SC-R11-CV (Tennessee Supreme Court, January 14, 2005).
Social Security dependent payments received by a child due to a parent’s disability are “income” to that parent, but the amount the child receives is then credited toward that parent’s child support obligation. Groenstein v. Groenstein, No. 2005 WY 6 (Wyoming, January 19, 2005).
Marital Torts - Custodial Interference
A court may award actual and punitive damages for tortious interference with custody rights. Wolf v. Wolf, No. 140/02-1292 (Iowa Supreme Court, January 7, 2005).
Marital Torts - Fraud
A woman has standing, as a third party beneficiary to a sales contract, to sue a jeweler for selling a diamond ring to her fiance (now former husband); representing it was worth $43,000 when it was worth only $23,000. Schauer v. Mandarin Gems of California, Inc., No. G033254 (California Court of Appeals, Fourth District, Division Three, January 12, 2005).
Marital Torts - Transmission of Disease
Virginia’s anti-fornication statute, which criminalizes consensual sexual intercourse between unmarried persons, is an unconstitutional abridgement of a person’s liberty interest in personal relationships. Thus, the statute cannot bar a woman’s tort suit against a man for the negligent transmission of herpes. Martin v. Ziherl, No. 040804 (Virginia Supreme Court, January 14, 2005).
Property Division - Goodwill
Completing the “holy trinity” of personal goodwill (along with Zells and Talty), the Supreme Court of Illinois held that a dentist’s personal goodwill cannot be divided. In re Schneider, No. 97340 (Illinois Supreme Court, January 21, 2005).
Property Division - Separation Agreements
A former wife’s attempt to enforce the provisions of
a separation agreement whereby the husband was to
establish a lifetime annuity for the wife was time
barred. Embree v. Embree, No. B174022
(California Court of Appeals, Second District, Division
Seven, December 29, 2004).
Indiana’s statutory limitation of marriage to opposite-sex couples does not violate the provisions of the Indiana Constitution. Morrison v. Sadler, No. 49A02-0305-CV-447 (Indiana Court of Appeals, January 20, 2005).
Family Law Cases from Around the Nation
Decided February 2005
Both Tier I and Tier II Railroad Retirement benefits may be considered for purposes of alimony; the Supreme Court's Hisquierdo opinion does not preclude this result. Lanier v. Lanier, No. S04F1710 (Georgia Supreme Court, January 24, 2005).
A divorce court can order an attorney to return his retainer fee after the attorney withdraws from the case. The court, however, stressed the unique facts: the client lacked funds to hire new counsel, the retainer agreement was probably unethical, and the divorce was highly contentious. Fischer v. Fischer, No. A-5093-03T3 (New Jersey Superior Court, Appellate Division, February 22, 2005).
Child Custody - Hague Convention
Under an exception to the Hague Convention’s rule of return to habitual residence, the court held that a father does not have to return his wrongfully retained children to their mother in Northern Ireland because the children did not want to return and they were old enough to make such a decision. McManus v. McManus, No. 04-10752-GAO (United States District Court, District of Massachusetts, February 4, 2005).
The extra compensation, including a bonus, a cost of living differential, and expatriate premium, and a hypothetical tax, which a father receives from his employer in addition to his base salary to compensate him for working in England constitutes income for child support. Cyr v. Cyr, No. 84255 (Ohio Court of Appeals, Eighth District, February 10, 2005).
A $126,189 corporate distribution to husband to reimburse him for his tax liability could be considered part of husband’s yearly income, for the purpose of determining child support, even though husband argued that the distribution pertained to federal and state taxes for the prior year. Spahr v. Spahr, No. 1122 MDA 2004 (Pennsylvania Superior Court, February 22, 2005).
A lesbian who adopted her partner’s biological child must pay child support after the couple broke up because she is a legal parent despite the break up. Mariga v. Flint, No. 79C01-9612-AD-55 (Indiana Court of Appeals, February 16, 2005).
A father’s consent to adoption under G.L. c. 210, § 2 (which provides that a parent consents to the adoption of his or her child and waives all right to further notice of proceedings involving the child’s custody, guardianship, adoption, or other disposition) does not terminate the father’s child support obligation. In re Adoption of Marlene, 434 Mass. 494 (Massachusetts Supreme Judicial Court, February 17, 2005).
A trust fund established for a man’s support following a disabling automobile accident was “non-recurring income” within the meaning of the North Carolina Child Support Guidelines, which could be used to establish a child support trust. Because, however, the trial court failed to make sufficient findings of fact regarding the reasonable needs of the child, the cause was remanded for further proceedings. Spicer v. Spicer, No. COA03-1197 (North Carolina Court of Appeals, February 1, 2005).
Federal adoption assistance that the mother receives for her special needs children is not income to her. GastonCounty ex rel. Miller v. Miller, No. COA04-157 (North Carolina Court of Appeals, February 15, 2005).
Ohio’s statute which authorizes the court to grant grandparent (and other relatives) visitation when one parent is deceased, Ohio Rev. Code § 3109.11, is constitutional under Troxel, because it provides for consideration of the wishes of the surviving parent as well as the best interests of the child. Crigger v. Crigger, No. 04AP-288 (Ohio Court of Appeals, Tenth District, February 10, 2005).
Marital Agreements - Antenuptial Agreements
A great appreciation in the husband’s assets
designated as “separate” under an antenuptial agreement
was not unforeseeable, and thus did not render the
parties’ antenuptial agreement void for an unforeseen
change in circumstances. Reed v. Reed, No.
248895 (Michigan Court of Appeals, February 8, 2005).
Because the statute clearly states that an
antenuptial agreement must be executed in the presence
of two witnesses, an agreement that was witnessed by
only one person is per se invalid, even if it is
otherwise valid and fair. Siewart v. Siewart,
No. A04-702 (Minnesota Court of Appeals, February 8,
An antenuptial agreement’s provision wherein the wife waived all alimony and/or spousal support was void as against public policy. Sanford v. Sanford, 2005 SD 34 (South Dakota Supreme Court, March 9, 2005).
Family Code Section 300, which provides that marriage is between a man and a woman, and Section 308.5, which provides that California will recognize as a marriage only a union between a man and a woman, violate the California Constitution. Coordination Proceeding, Judicial Council Coordination Proceeding No. 4365 (California Superior Court, County of San Francisco, March 14, 2005).
On the other hand, a New York court held that New York’s domestic relations law exclusion of same sex couples from the definition of who might marry is rationally related to a legitimate state interest, procreation and child rearing, and is thus constitutional. Seymour v. Holcomb, No. 2004-0485 (New York Supreme Court, February 23, 2005).
The “husband” was biologically a female, and had undergone male hormone treatment for gender dysphoria. The husband then underwent sex-reassignment surgery and a new birth certificate was issue to him, designating sex as male. Before the sex-change operation but after the hormone treatments, the husband and wife were married. Therefore, the “marriage” was void ab initio. Further, the “husband’s” consent to have his wife artificially inseminated was void because he was not a “husband” and thus had no standing to seek custody or visitation of the resulting child. In re Marriage of Simmons, Nos. 1-03-2284 and 1-03-2348 (Consolidated) (Illinois Court of Appeals, First District, February 16, 2005).
The question presented was whether an award of benefits under the Federal Employers’ Liability Act (FELA) is a part of the marital estate subject to distribution. The court concluded that only that portion of the award intended as compensation for losses incurred during the marriage is included in the marital estate. Beckley v. Beckley, No. 05S02-0311-CV-498 (Indiana Supreme Court, February 10, 2005).
Although a court cannot divide as property a husband’s Social Security benefits as marital property in a divorce, the court can divide the remaining marital property unequally, based on the fact that the husband is more likely to enjoy a secure retirement. Morehouse v. Morehouse, 03CA2525 (Colorado Court of Appeals, February 24, 2005).
Torts - Alienation of Affections
A judgment for alienation of affections can be discharged in bankruptcy if the judgment does not establish that the debtor acted willfully and maliciously. Osborne v. Stage, No. 04-6055EM (United States Circuit Court Bankruptcy Panel, Eighth Circuit, March 10, 2005).
Torts - Sperm Stealing
A woman who allegedly stole her lover’s sperm to impregnate her can be held liable for his emotional distress, although not for conversion of his sperm. The court held that when the woman performed oral sex, the sperm was a “gift” to her.
Torts - Wiretapping
A wife illegally “intercepted” husband’s electronic communications with another woman via electronic mail and instant messaging, within meaning of Security of Communications Act, when she installed spy ware program on computer which simultaneously copied electronic communications as they were being transmitted by taking screen shots and storing them to a new file. O'Brien v. O'Brien, No. 5D03-3484, 30 Fla. L. Weekly D430 (Florida 5th District Court of Appeals, February 11, 2005).
Family Law Cases from Around the Nation
Decided March-April 2005
A mentally incapacitated man’s conservator had
authority to maintain an action to annul his marriage,
and the trial court properly entered the annulment nunc
pro tunc to the final day of trial when the man died
shortly thereafter. Nave v. Nave, No.
E2004-00844-COA-R3-CV (Tennessee Court of Appeals, March
Attorney’s fees incurred in a divorce proceeding are not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5), and survive a Chapter 13 bankruptcy. Eden v. Robert A. Chapski, Ltd., No. 04-2247 (United States Court of Appeals, 7th Circuit, April 22, 2005).
A trial court does not abuse its discretion in determining that a retroactive lump sum payment of Social Security disability benefits to the dependent child of a noncustodial parent may not be credited against that parent’s child support arrearage. Brown v. Brown, No. 48A04-0402-CV-66 (Indiana Court of Appeals, March 21, 2005).
A lawyer who, shortly after graduation from law school, became disenchanted with being a lawyer and instead decided to attend divinity school was held in contempt for refusing to file the necessary papers to become a member of the New York State Bar and willfully failing to pay over $40,000 in child support arrears. Lopez v. Ajose, No. 4863/01 (New York Supreme Court, Manhattan, April 4, 2005).
The trial court erred when it determined that the income from a child’s special needs disability trust warranted deviating from the child support guidelines so that the father owed no child support whatsoever. Ricco v. Novitski, No. 2005 PA Super. 121 (Pennsylvania Superior Court, April 5, 2005).
Custody - Third Parties
In disputed custody cases where private third parties are attempting to gain custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children, or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parent, before a trial court should consider the “best interests of the child” standard as a means of deciding the dispute. McDermott v. Dougherty, No. 58 (Maryland Court of Appeals, March 10, 2005).
Divorce - Adultery
Marital fault such as adultery is relevant to alimony only where it has affected the parties economically or it is “egregious.” Mani v. Mani, No. A-53-2003 (New Jersey Supreme Court, April 6, 2005).
Property Division - Pensions
An anti-alienation provision in the husband’s pension plan, which prohibits a non-employee spouse who predeceases the working spouse from bequeathing his or her community property interest in the plans, is valid and does not conflict with Fam. Code, section 2610. U. C. Regents v. Benford, No. G034108 (California Court of Appeals, Fourth Appellate District, April 25, 2005).
Even though the husband, age 70, was still working and had not retired, he could be ordered to pay the wife her share of the retirement benefits she was entitled to had he retired at age 65. Moore v. Moore, No. A-1800-03 (New Jersey Superior Court, Appellate Division, April 5, 2005).
The parties may agree to, and the court may enforce, spousal support that continues beyond the death of the obligor. Haville v. Haville, No. 79S02-0310-CV-482 (Indiana Supreme Court, April 13, 2005).
Taxation - Exemptions
A divorce decree purporting to award a noncustodial
parent the tax exemption for a child is not the
equivalent of IRS Form 8332, and thus the noncustodial
parent was not entitled to the exemption. Curello v.
Commissioner of Internal Revenue, T.C. Summary
Opinion 2005-23 (United States Tax Court, February 24,
Visitation - Third Parties
The grandparent visitation provision in Washington’s third party visitation statute is unconstitutional on its face because it infringes upon a fit parent’s right to control the care and custody of his or her child by using a “best interests” of the child test instead of a “harm to the child” test. Appel v. Appel, No. 75262-1 (Washington Supreme Court, April 7, 2005).
Sexually explicit e-mails that the wife had sent to her physician, offered by the husband in their divorce action in support of grounds for divorce and in support of denying post-separation spousal support to wife, were not illegally intercepted in violation of federal Electronic Communications Privacy Act, where the interception of e-mails was not contemporaneous with transmission; e-mails were stored on and recovered from hard drive of family computer via a keystroke program. Evans v. Evans, 610 S.E. 2d 264 (North Carolina Court of Appeals, April 5, 2005).
Family Law Cases From Around the Nation
Decided May 2005
When parents have “rotating custody,” whereby the
parents alternate custody with shared parental
responsibility, the arrangement can be modified only on
a showing of a substantial significant change in
circumstances. Wade v. Hirschman, No. SC04-1012
(Florida Supreme Court, May 26, 2005).
After the father was called to active duty, the
mother moved for a change in custody from the father to
the mother, which was granted. The Court of Appeals
reversed, relying on the Soldiers and Sailors Civil
Relief Act. The Supreme Court reversed the Court of
Appeals, holding that SSCRA did not preclude
consideration of the change of custody. Grantham v.
Grantham, No. 03-2100 (Iowa Supreme Court, June 3,
Child Custody – Relocation
A custodial parent’s decision to relocate may be
sufficient basis to change custody, adopting the
American Law Institute’s Principles of Family
Dissolution sec. 2.17(1) for determining when changed
circumstances exist. Under that section, relocation is a
substantial change of circumstances justifying a
reexamination of parental rights and responsibilities
“only when the relocation significantly impairs either
parent’s ability to exercise responsibilities the parent
has been exercising or attempting to exercise under the
parenting plan.” Hawkes v. Spence, No. 2003-04
(Vermont Supreme Court, May 6, 2005).
Child Custody - Third Parties
A stepmother in loco parentis to a child may be awarded visitation over the objections of the child’s natural father. Neither Troxel nor Linder, the Arkansas Supreme Court’s decision concerning grandparent rights, precludes the visitation awarded by the circuit court in this case for two reasons: First, the visitation rights in this case arose out of a custody determination in a divorce proceeding rather than from a lawsuit brought by nonparents pursuant to a statute. Visitation was incident to and part of the circuit court’s determination of custody. Second, the party awarded visitation in this case was found by the circuit court to stand in loco parentis to the child. In other words, the court granted visitation to a person it considered to be, in all practical respects, a non-custodial parent. Robinson v. Ford-Robinson, No. 04-12335 (Arkansas Supreme Court, May 5, 2005).
A mother’s decision to leave her employment, which paid $236,000 per year, was reasonable and she was not shirking her child support obligation, when the parties had agreed she would be available for child care, she had tried to obtain part-time employment, and she was faced with exhausting her savings without child support from the father. Chen v. Warner, No. 03-0288 (Wisconsin Supreme Court, May 6, 2005).
It is not “double counting” to consider a spouse’s salary as a method for valuing an asset (e.g., capitalization of excess earnings), or to normalize income in order to increase the value of the company when the salary was excessive, and to then consider the income received for purposes of alimony. Steneken v. Steneken, No. A-100-2003 (New Jersey Supreme Court, May 18, 2005).
Property Division - Pensions
Wife moved to reopen the divorce decree on the grounds that husband did not disclose a lump-sum Veterans' Disability payment. The court reopened the decree, considered the Veterans' Disability payment, and re-divided the property. Husband appealed, arguing that Mansell forbids consideration of the disability payment. The Court of Appeals affirmed, holding that the only disability benefits that the statute protects from division are disability benefits that substitute for waived retirement pay. Husband, according to his affidavit, did not serve in the military long enough to receive retirement pay. Like many veterans who receive disability benefits, his are neither directly nor indirectly “retirement pay.” Thus, they fall outside of USFSPA's protective scope. Landis v. Landis, No. DR0203154; A123666 (Oregon Court of Appeals, June 1, 2005).
The specific language in a domestic relations order that granted an ex-wife one-half of her husband’s federal pension benefits was insufficient to guarantee her receipt of a survivor annuity that the husband had previously elected for her. Warren v. OPM, No. 04-3397 (United States Court of Appeals, Federal Circuit, May 16, 2005).
A constitutional amendment to the Nebraska state constitution, which defined marriage as a union between a man and a woman imposes significant burdens on both the expressive and intimate associational rights of gays and creates a significant barrier to the gays’ rights to petition or to participate in the political process. Moreover, the broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals. Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155 (United States District Court, District of Nebraska, May 12, 2005).
A wife was not entitled to an increase in alimony
based the argument that inflation had eroded the earning
power of her award and she needed an increase to
maintain her at the marital standard of living.
Hillier v. Iglesias, No. 4D03-4204 (Florida
District Court of Appeals, Fourth District, May 4,
Lump-sum alimony due a wife under a prenuptial agreement cannot be offset by temporary alimony and attorney’s fees which the court awarded. Langley v. Langley, No. S05F0565 (Georgia Supreme Court, May 23, 2005).
In a case where a woman caused a penile fracture of her partner by changing sexual positions abruptly, the court held that sexual partners would not be held to a reasonable standard of care. “While it is inappropriate and unworkable to hold consenting adults to a standard of reasonable care in the conduct of private consensual sexual behavior, we conclude that it is appropriate that they be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.” Doe v. Moe, No. 02-P-381 (Massachusetts Court of Appeals, May 16, 2004).
A wife was entitled to $1,417,000 in damages in a civil action against her ex-husband for his fraud when he deliberately undervalued his car dealership during their divorce proceedings. In affirming the jury verdict, the court reiterated the right of a spouse to pursue an independent action for fraud based on representation made during a divorce. Foreman v. Foreman, No. 250412 (Michigan Court of Appeals, May 3, 2005).
Family Law Cases From Around the Nation
Decided June 2005
Child Custody - Relocation
In an initial custody determination, a trial court cannot order a parent to live in a specific location. Rather, the trial court must take as given the location in which each parent intends to live and then allocate parental responsibility according to the best interests of the child. Spahmer v. Gullette, No. 03SC751 (Colorado Supreme Court, June 6, 2005).
A parent with joint custody can be guilty of kidnapping his or her own child when he or she flees the jurisdiction with the intent to permanently deprive the other parent of custody. State v. Froland, No. A-4741-02T1 (New Jersey Superior Court, Appellate Division, June 3, 2005).
A self-employed parent cannot deduct from gross income voluntary contributions to a retirement plan; it is not a necessary business expense. Cohen v. Cohen, No. 1993 (Maryland Court of Special Appeals, June 7, 2005).
A victim of domestic violence who has obtained a
restraining order against the attacker does not have a
right of action against the police or the city if the
police ignore specific requests to enforce the
restraining order. Town of Castle Rock, Colo. v.
Gonzales, 2005 WL 1499788 (United States Supreme
Court, June 27, 2005).