Family Law Update for April 2016

In this Issue …

A Word from Gregg Herman
ABA FLS meeting and Mediation

Wisconsin Courts Updates
No new cases

Decisions Across The Nation
Contempt, QDRO for support arrears, High income and child support, Interference with visitation and child support, Change in circumstances for modification of custody, Limitation of placement due to possession of child pornography, Relocation, Premarital promise to take care of wife, Alimony and social security, Constructive trust for life insurance proceeds, Grandparent visitation and more.

Family Law Online
Divorcing in 2016? Get your Affairs in Order First

Business Valuations
Buy-sell shareholder agreements

Family Law Related Articles and Publications
American Journal of Family Law

A Word from Gregg Herman …

The ABA FLS spring meeting will be May 11-16 at the Atlantis Resort in Nassau, Bahamas. If you have kids who are either too young for school or can afford to miss a day or two, this would be the perfect place for a family vacation with some assistance by the IRS. The Atlantis Resort can best be described as a huge cruise ship on dry land. There are innumerable activities for kids.

For the lawyer in the family, there is great CLE and an opportunity for networking.

For more information, please download the event brochure. (PDF)

• • •

Need a mediator? I recently completed the 40 hour mediation certification course through University of Wisconsin Extension, and share my thoughts and experiences with my experiences and my training in the video below. A full overview of the mediation services provided through Loeb & Herman is available on our Web site.

My fees are on a sliding scale to accommodate cases with lower net worths. If you are looking for a mediator, either call me at (414) 272-5632 or e-mail me.

Play Latest Vlog

Wisconsin Courts Update

No new cases.

Decisions Across the Nation

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

Please Note: Most decisions are posted in Adobe Acrobat (PDF) format.

In re Marriage of Harris
No. 15-0573
Iowa Supreme Court
March 25, 2016

Failure of arrangement for joint physical care of children, which was agreed to in dissolution proceedings between mother and father, constituted substantial change in circumstances warranting modification of arrangement; mother and father were unable to communicate civilly in person, depth of animosity between mother and father was not lost on children, as custody evaluator reported that daughter was troubled by parents’ behavior, persistence of dysfunctional communication between mother and father was not contemplated by trial court when dissolution decree was entered, and parties demonstrated their inability to agree on important matters pertaining to health and behavior of their children.

Jones v. Jones
Nos. S15A1927, S15A1928
Georgia Supreme Court
March 25, 2016

Trial court was not authorized, in order issued in response to former wife’s motion to have former husband incarcerated again for non-compliance with court’s order regarding unpaid child support, to vacate its earlier orders and to calculate anew husband’s arrearage; court went far beyond correction of clerical mistake and, in effect, reopened evidence regarding husband’s payment history and income, and, thus, essentially retried wife’s previous contempt actions far beyond time period in which such a proceeding was authorized, and re-adjudication of past arrearages did not qualify as order setting aside previous order, as there was no indication that court found existence of any of limited grounds to set aside judgment. Supreme Court would reverse life insurance provision of trial court’s order, which required husband to obtain $100,000 minimum life insurance policy within 45 days of order issued in response to former wife’s motion to have former husband incarcerated again for non-compliance with court’s order regarding unpaid child support; while trial court intended provision to function as remedy for husband’s more than $100,000 arrearage, which might have been permissible under circumstances of case, Supreme Court reversed portion of order calculating husband’s total arrearage.

Kesting v. Kesting
No. 42875
Idaho Supreme Court
March 23, 2016

Purpose of the proscription on alienation and assignment in ERISA is to protect an employee from his own financial improvidence in dealings with third parties; the provision is not intended to alter traditional support obligations but rather to assure that the employee and his beneficiaries reap the ultimate benefits due upon retirement. Thus, Qualified Domestic Relations Order (QDRO) may be entered to enforce a prior spousal support obligation.

Doscher v. Doscher
2016 N.Y. Slip Op. 01800
New York Supreme Court, Appellate Division, Second Department
March 16, 2016

In high income cases, the appropriate determination for an award of child support where parental income exceeds the statutory income threshold of $136,000 should be based on the child’s actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties. Thus, evidence in divorce action supported basing father’s child support obligation on $360,000 of his annual income, rather than on $600,000 of his annual income; insufficient evidence supported wife’s claims regarding expenses for child’s clothing, recreation, and miscellaneous items.

Argueta v. Baker
2016 N.Y. Slip Op. 01838
New York Supreme Court, Appellate Division, Second Department
March 16, 2016

Interference with visitation rights can be the basis for suspension of child support, but such relief is warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights. Father was entitled to modification of order of support suspending or terminating his child support obligations, where mother actively interfered with and deliberately frustrated his visitation with the child by, inter alia, moving child out of state without father’s consent, failing to provide father with child’s address, and preventing father from seeing child when he was in child’s state.

Porter v. Porter
2016 N.Y. Slip Op. 01821
New York Supreme Court, Appellate Division, Second Department
March 16, 2016

Trial court’s grant of ex-wife’s motion to compel ex-husband to comply with provision in judgment of divorce giving ex-wife option of purchasing ex-husband’s share of marital residence did not improperly modify equitable distribution provisions in judgment, even though 60-day time frame set forth in judgment had already expired; rather, court merely enforced judgment by ordering ex-husband to comply.

Schurmann v. Schurmann
2016 ND 69
North Dakota Supreme Court
March 15, 2016

Evidence was sufficient to support trial court’s finding that a material change in circumstances justified modification of father’s parenting time, even though father had committed domestic violence against mother during the parties’ marriage; both mother and father had remarried, neither mother, father, or the children still resided in the city in which the judgment indicated father was to exercise monthly parenting time, the court found that much of father’s violence towards mother was attributed to his high stress level at the time and his consumption of alcohol, and there was no evidence presented that father consumed alcohol or was violent with the children while exercising his parenting time.

Meadows v. Meadows
No. COA15-527
North Carolina Court of Appeals
March 15, 2016

Trial court’s findings of fact were sufficiently detailed regarding the allegations of father’s use and possession of child pornography, based upon the evidence the trial court had before it, to enable judicial review of trial court’s best interest of the child determination in child custody proceeding; because father refused to answer questions related to child pornography allegations in his deposition, and failed to testify or present any other evidence relevant to those allegations at hearing, court continued to limit his visitation with the child and stated it would revisit its imposition of limited supervised visitation once it had more evidence.

Tracie F. v. Francisco D.
No. 2015-1812
Louisiana Supreme Court
March 15, 2016

A biological parent with joint custody, who seeks modification of a stipulated custody award to obtain greater custodial rights, must prove: (1) there has been a material change in circumstances after the original custody award; and (2) the proposed modification is in the best interest of the child; overruling Cutts v. Cutts, 931 So.2d 467.

Hiller v. Hiller
No. A-15-140, 23 Neb. App. 768
Nebraska Court of Appeals
March 15, 2016

Wife established legitimate reason to relocate parties’ minor children from Nebraska to Virginia following divorce from husband, where wife had accepted new employment in Washington, D.C., that included increased salary and greater likelihood of advancement, and wife asserted that professional reputation at previous place of employment was damaged by husband’s interference with her work and speculation regarding her personal life.

Degnan v. Degnan
2016 ND 61
North Dakota Supreme Court
March 15, 2016

Court can consider motive for entering into marriage, i.e., “she married him for his money,” when dividing property.

Werven v. Werven
2016 ND 60
North Dakota Supreme Court
March 15, 2016

Trial court did not clearly err in awarding real property to wife, when making equitable distribution of property pursuant to divorce, even though husband had been ordered to convey such property to his daughters, and to retain a life estate for himself, in previous divorce action 15 years earlier; husband failed to convey the property to his daughters after earlier divorce, husband later conveyed property to his wife, retaining a life estate for himself, and daughters had not sought to enforce earlier judgment.

Dane v. Dane
2016 WY 38
Wyoming Supreme Court
March 15, 2016

Wife’s promissory estoppel claim against husband based on husband’s alleged premarital promise to take care of her for the rest of her life was precluded by Heart Balm Act in divorce action; statute barred a variety of common law claims based upon promises to enter into romantic, familial relationships.

Pensmore Investments, LLC v. Gruppo, Levey & Co.
2016 N.Y. Slip Op. 01789
New York Supreme Court, Appellate Division, First Department
March 15, 2016

Trial court was required to allow judgment debtor’s estranged wife to intervene in judgment creditor’s enforcement proceeding against judgment debtor, and to hold hearing to determine whether personal property in wife’s possession was her sole separate property or marital property subject to turnover order; wife’s proof might not have been conclusive of her claim that she acquired disputed property by bequest, devise, or descent, but it was enough to warrant hearing, where wife submitted her affidavit, her mother’s last will and testament, letter from attorney who filed gift tax return for her grandmother’s estate, and documents showing that debtor did not claim the disputed property as belonging to him in personal bankruptcy petition he filed.

In re Marriage of Gross and Gross
2016 COA 36
Colorado Court of Appeals
March 10, 2016

Parties’ agreement, whereby ex-husband would relinquish his parental rights and ex-wife’s husband would adopt the children, did not terminate ex-husband’s duty to support the children; statute provided that final order of relinquishment shall divest the relinquishing parent of all legal rights and obligations he might have with respect to the child relinquished.

Aguilar v. Aguilar
2016 S.D. 20
South Dakota Supreme Court
March 9, 2016

Fact that mother’s sister had been primary caregiver of child was extraordinary circumstance warranting nonparental custody, in father’s divorce proceedings against mother, in which court granted custody to sister, who intervened; sister had been child’s caregiver since before child was six months old, and, thus, sister had been child’s primary caregiver for approximately three-and-one-half years at time of court’s decision, which was length of time likely extending back farther than child’s memory.

In re Marriage of DeShaw
276 Or. App. 713
Oregon Court of Appeals
March 9,2016

Trial court is not per se precluded from relying on information included in a parent’s promptly filed income-tax return when determining that parent’s income under the Child Support Guidelines.

McKernan v. McKernan
No. 1057 MDA 2015, 2016 PA Super 60
Pennsylvania Superior Court
March 9, 2016

Ex-wife’s eligibility for social security benefits did not establish substantial and changed circumstances warranting further modification of ex-husband’s alimony obligation; there was no authority empowering a trial court to order ex-wife to apply for and obtain social security retirement benefits prior to reaching full retirement age, and there was no provision in the Divorce Code that required a party to apply for early reduced social security benefits, or required that a party be assessed retirement income capacity based solely upon eligibility for social security benefits.

Petition of Lundquist
No. 2015-0103
New Hampshire Supreme Court
March 8, 2016

Child’s maternal grandparents acquired standing to seek visitation with their grandchild after mother’s husband died, even though grandparents were not husband’s parents.

Dumbauld v. Dumbauld
163 Conn. App. 517
Connecticut Court of Appeals
March 8, 2016

The trial court’s alimony pendente lite order, which ordered alimony pendente lite in excess of husband’s net income, which it found to be $15,688.21 per month and required him to use assets in order to meet his obligations, constituted an impermissible pendente lite property distribution, in dissolution proceeding; no statute allowed the court, at this stage in the proceedings, to assign any part of the estate of one party to the other party.

Volk v. Goeser
2016 MT 61
Montana Supreme Court
March 8, 2016

Imposition of constructive trust on proceeds of ex-husband’s two life insurance policies in favor of his child was proper remedy in ex-wife’s action against ex-husband’s sister for unjust enrichment after ex-husband improperly replaced ex-wife with sister as beneficiary of life insurance policies while dissolution restraining order was in place; even though sister had done nothing wrong and had spent or invested proceeds on real property, she was holding title to property and subject to equitable duty to convey it, or portion thereof, to child on ground that she would have been unjustly enriched if she were permitted to retain it.

Coleman v. Bland
41 Fla. L. Weekly D567
Florida District Court of Appeal, Fifth District
March 4, 2016

Marital portion of husband’s pension, earned in 49 weeks between marriage to wife and retirement and amounting to 3% of monthly $5,900 amount received by husband, was not de minimis value, and therefore trial court erred in awarding wife no portion of pension based on its de minimis value in divorce proceedings; over course of ten years, payout of marital portion of pension would have been roughly $21,600.

Micone v. Micone
132 Nev. Adv. Op. 14
Nevada Supreme Court
March 3, 2016

Trial court abused its discretion in awarding primary physical custody of couple’s minor daughter to her paternal grandparents; grandparents were not parties to nor intervenors in action, unilateral award of custody to nonparty grandparents failed to provide notice and opportunity to be heard required by due process to divorced father and divorced mother, neither father nor mother briefed or argued whether awarding custody to grandparents was justified or would be in daughter’s best interest, and court failed to make specific findings that awarding custody to either father or mother would have been detrimental to daughter and that award of custody to grandparents was in daughter’s best interest.

Yamilly M.S. v. Ricardo A.S.
2016 N.Y. Slip Op. 01572
New York Supreme Court, Appellate Division, First Department
March 3, 2016

Any quality-of-life advantage realized would not necessarily outweigh disruption in children’s relationship with father, and thus mother’s proposed relocation to Florida with children was not in children’s best interests, even though parties had stipulated to joint custody with mother having primary physical custody, mother had good reasons for seeking relocation, including fact that her husband lived in Florida and his home was larger than her apartment, and older child had stated preference for relocation, where father had fully exercised his visitation rights and frequently picked up children from their school, which was near his home, and relocation would limit amount and quality of his contact with children and disrupt their relationship, even with liberal vacation visitation.

In re Marriage of Bouris and Bouris
276 Or. App. 637
Oregon Court of Appeals
March 2, 2016

In light of wife’s fulltime status as a student, trial court’s imputation of full-time income to wife, for child support purposes, was not supported by the evidence in the record; although wife worked at a minimum wage job during the marriage, the parties agreed that wife should quit her job to attend college in order to obtain a degree in social work and increase her earning capacity, and while she was in school, she was not working and was supporting herself with student loans and financial aid.

Family Law Online

“Divorcing in 2016? Get Your Affairs in Order First”

If you’re planning to get divorced in 2016, start thinking about your exit strategy now.

Business Valuations

The following information is provided courtesy of Gregory J. Ksicinski, CPA/ABV, MSTSVA Certified Public Accountants, S.C., Brookfield, WI 53045. You can reach Greg at 262-923-5133 or via e-mail.

Buy-sell Shareholder Agreements

A recent Delaware case involving a major valuation firm shows how willing parties use financial experts as pawns in litigating value disputes and points out the importance of knowing what is in the shareholder buy/sell agreement. The case involved a situation in which there was a put of some stock where the price was determined by appraisal. The Company hired the valuation expert who valued the stock using valuation factors most favorable to the Company. Ultimately, due to the low price established in the valuation, the party that put the stock refused to sell based on problematic judgment calls made in the valuation report.

The buy/sell agreement provided for the procedure to value the stock but did not provide any provision for review of the valuation if either party disagreed with the valuation. As a result, the Company filed suit to require the sale of the stock at the price established in the valuation. The Delaware Court found in favor of the Company based on the fact that the parties voluntarily agreed to the buy/sell procedure (PECO Logistics, LLC v. Walnut Inv. Partners, L.P., 2015 Del. Ch. LEXIS 311 (Dec. 30, 2015) (Also available in the Resources section under our Web site’s Business Valuation tab.)

The key takeaways here are to be aware of what shareholder buy/sell agreements provide and to be aware that valuations do involve judgments that, if reasonably supported, should be used to set value.

Family Law Related Articles and Publications

The Spring, 2016 (Vol. 30, No. 1) edition of the American Journal of Family Law includes the following articles:

Voluntary Reduction of Support Income: When Does an Economic Self-Improvement Plan preclude Income Attribution
By Dr. Robert J. Rufus

Valuation of Intellectual Property in the Marital Estate
By Robert F. Reilly

The Cost of Raising a Special Needs Child After Divorce
By Margaret “Peg” Price and Ponzio Oliverio

Child Custody Evaluation and Relocation
By William G. Austin

Family Law Mediation: Master Checklist
By Mark E. Sullivan

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.