Family Law Update for August 2017

In this Issue …

A Word from Gregg Herman
AFCC regional conference and Family Law videos.

Thoughts on Family Law Video
On Family Law in the Military

Wisconsin Courts Updates
Unpublished (but citeable) contempt case.

Decisions Across The Nation
Armed Services Survivor Benefit Plan, Hague Convention on the Civil Aspects of Child Abduction, UCCJEA (two cases), Bankruptcy, Presumption of paternity, Moving with child to another state and more.

Law Review Articles of Interest to Family Law Practitioners
New feature!

Family Law Online
“11 Questions to Ask Before Getting a Divorce.”

Family Law Related Articles and Publications
Family Advocate Client Manual on “Working With Your Lawyer”

A Word from Gregg Herman …

The Wisconsin Chapter of the AFCC will be hosting a regional AFCC conference from November 2 – 4, 2017 at the Hyatt Hotel in Milwaukee. The topic will be: “Beneath the Surface of High Conflict and Troubled Families. For more information, visit the AFCC Web site.

• • •

As previously reported, I am partnering with the State Bar of Wisconsin and PINNACLE to create a series of on demand CLE seminars on various family law issues. This series has been endorsed by the State Bar Family Law Section. So far, I have taped four programs.

I welcome feedback on these programs as well as any ideas for other videos, so please send me an email with your thoughts.

Thoughts on Family Law

This month I discuss my article “On Family Law in the Military,” which appeared in the July 2017 edition of the State Bar of Wisconsin’s Inside Track.

Wisconsin Courts Update

Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis. Stat. 809.23(3).

On July 19, 2017, the District II Court of Appeals issued their opinion in Sheppard v. Sheppard, No. 2016AP530, which affirmed the orders rendered by the Honorable Allan B. Torhorst (Racine County).

Sarah Sheppard appealed from an order of the circuit court affirming its decision to find her in contempt. As part of divorce proceedings between Sarah and her husband, Joseph Sheppard, Sarah was ordered by the circuit court to return the couple’s child to Wisconsin. She admittedly failed to do so. On appeal, Sarah challenged the contempt order on multiple grounds.

First, she argued that she lacked notice of the contempt hearing. Sarah, by her own admission, was present by telephone at the October 20, 2015 hearing before the commissioner where the date for the contempt hearing was set. Thus, the court determined that this argument was a non-starter.

Second, she argued the court erred by not allowing her to appear telephonically. Here, the circuit court did not refuse a request to appear telephonically at the hearing; Sarah made no such request and admits as much. Therefore, the court found that the circuit court did not erroneously exercise its discretion.

Third, she argued that she is excused from complying with the court’s order because it was vague. The written order provided that D.S. – who was clearly in the custody of Sarah – shall be returned to the State of Wisconsin on or before September 16, 2015. Because D.S. was in Sarah’s custody, the order clearly and unequivocally obligated Sarah to bring D.S. back to Wisconsin or otherwise provide for that to happen.

Next, Sarah took issue with the lack of testimony at the hearing and argued that Joseph failed to prove that she had the financial ability to return D.S. to Wisconsin and was therefore able to comply with the order. Regardless of any evidence adduced during the hearing itself, the previous court records already contained ample evidence of Sarah’s contempt. Contrary to Sarah’s assertion, Joseph bore no burden to prove that she was able to comply with the court’s order. The burden was on Sarah to show a reason for her continued noncompliance. And because she failed to meet her burden of proof at the hearing – notably, by not appearing or even requesting appearance by other means – she failed to meet that burden. Accordingly, the circuit court had more than sufficient evidence to find Sarah in contempt.

Finally, Sarah argued that she was entitled to appointed counsel as a matter of due process. First, Sarah implored the court to extend the bright-line rule enunciated in State v. Pultz, 206 Wis. 2d 112, 556 N.W.2d 708 (1996). In contrast to the situation in Pultz, this contempt action was not initiated by the state or an arm of the state, nor was the state a party to this action. Therefore, the concern regarding unpredictable and unchecked adverse governmental action was not present, and Pultz did not apply. Second, she argued that the multifactor test outlined by the United States Supreme Court in Lassiter v. Department of Soc. Servs., 454 U.S. 18 (1981), and adopted by the Wisconsin Supreme Court in Piper v. Popp, 167 Wis.2d 633, 647, 482 N.W.2d 353 (1992), entitled her to appointed counsel. The Court of Appeals went through each of the three factors and noted that under this balancing test, requiring the circuit court to appoint counsel for an indigent litigant in a civil case is the exception, not the rule. The court ultimately concluded that in view of the general simplicity of the issues and the countervailing interests, the due process clause did not entitle Sarah to an appointed attorney paid for at public expense.

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.

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

Downham v. Downham
No. 1 CA-CV 16-0164 FC
Arizona Court of Appeals, Division 1
July 25, 2017 (unreported)

As part of her prayer for relief, the Wife requested the court direct the Husband to designate her as a former spouse beneficiary under the Armed Services Survivor Benefit Plan (“SBP”). The trial court denied the Wife’s request for SBP coverage, reasoning that “Husband’s undisputed testimony is that Wife may not remain on this policy after the divorced is finalized.” Reversed. “Under federal law, a former spouse may receive a survivor benefit following the death of a service member. See 10 U.S.C. §§1447(9), 1448(b), (d). Moreover, a state family court may require a service member to elect SBP coverage for a former spouse as part of a dissolution proceeding. See 10 U.S.C. § 1450(f)(4); see also Richards v. Richards, 137 Ariz. 225, 227, 669 P.2d 1002, 1004 (App. 1983) (directing the superior court to require husband to change the beneficiary designation for the SBP from his current wife to his former wife). Accordingly, the superior court erred in relying on Husband’s testimony and finding that, as a matter of law, Wife’s claim for SBP coverage was not possible. We reverse the court’s ruling on SBP coverage and remand to the superior court to consider Wife’s request.”

Beden v. Beden
No. A-4835-14T2
New Jersey Superior Court, Appellate Division
July 20, 2017

After Husband was found in contempt for failing to pay alimony, he moved to modify alimony. Husband claimed his layoff in March 2014 constituted a change in circumstances entitling him to relief. The motion judge found that his efforts to obtain employment over a fifteen month period, consisting of posting his resumé on line, attending a job fair, and applying for seven positions, did not constitute a good faith effort to find employment. Held: Defendant’s broad and sweeping claim that “there are no jobs for a 59 year old individual with a [c]ollege level degree in [e]lectrical [e]ngineering from 1978” finds no support in the record.

Cartes v. Phillips
No. 17-20154
United States Court of Appeals, Fifth Circuit
July 25, 2017

Father, a United States citizen who grew up in Paraguay, filed petition pursuant to the Hague Convention on the Civil Aspects of Child Abduction alleging mother, a United States citizen, had wrongfully removed their daughter from Paraguay to the United States and seeking the child’s return to Paraguay. The District Court for the Southern District of Texas granted the petition. The Court of Appeals held: the district court appropriately recognized that abandonment of habitual residence left behind before traveling to Paraguay, here the United States, was the threshold inquiry; the district court did not clearly err in finding that father and mother jointly intended to make Paraguay their daughter’s habitual residence; and any error by district court in excluding, as irrelevant, e-mails between father and various real estate agents in California expressing an interest in renting certain apartments was harmless.

In re Interest of S.W.
No. 20160295
Utah Supreme Court
July 17, 2017

Sister petitioned for custody of her minor siblings. Because a Utah court had entered custody orders for the siblings in their parents’ divorce proceeding, custody jurisdiction was in Utah. The trial court erred in concluding that Utah was an inconvenient forum and relinquishing UCCJEA jurisdiction because it failed to undertake the appropriate inconvenient forum analysis. The trial court also erred by attributing the bad conduct of the mother to the sister petitioning for custody without affording the petitioner the opportunity to be heard.

Lazar v. Kroncke
No. 15-15078
United States Court of Appeals, Ninth Circuit
July 14, 2017

Ex-wife who was named as beneficiary of ex-husband’s individual retirement account (IRA) prior to their divorce brought action against the IRA administrator for breach of contract and against the ex-husband’s estate for declaratory relief, alleging that application of Arizona’s revocation-on-divorce statute to determine who the beneficiary of the IRA was violated the Contracts Clause. The United States District Court for the Central District of California determined that it lacked personal jurisdiction over the ex-husband’s estate and transferred the action to the United States District Court for the District of Arizona. The United States District Court for the District of Arizona, Douglas L. Rayes, J., dismissed. Ex-wife appealed. The Court of Appeals held: Arizona law, not California law, applied to action; application of Arizona’s revocation-on-divorce statute to determine beneficiary of IRA was not preempted by ERISA or federal regulations governing IRAs; ex-wife had standing to assert claim alleging that Arizona’s revocation-on-divorce statute violated Contracts Clause; as a matter of first impression, application of Arizona’s revocation-on-divorce statute did not violate Contracts Clause; and district court in California lacked personal jurisdiction over ex-husband’s estate.

Schaffner v. Schaffner
No. 20170044, 2017 ND 170
North Dakota Supreme Court
July 12, 2017

Father, acting pro se, petitioned for the third time to modify his parenting time with minor child from supervised visitation to unsupervised visitation. Held: Father’s new employment did not constitute material change in circumstances such that he was entitled to modification of parenting time from supervised visitation to unsupervised visitation with minor child, although new employment provided him increased stability and allowed for more parenting time; there was no link between the employment change and the reasons for supervised visitation, no other factual circumstances had significantly changed since the prior judgment imposing supervised visitation, there was no evidence that father had successfully treated the issues that led to his pattern of intimidating behavior, there was still a protection order in place between father and mother, and father presented no evidence that he was working to address remaining anger issues.

In re Chaudry
No. 16-13206 (CMG)
United States Bankruptcy Court, District of New Jersey
July 10, 2017

As matter of apparent first impression, Tevis claim that Chapter 7 debtor’s estranged spouse had asserted against debtor in their pending prepetition divorce action, for assault allegedly committed on spouse by debtor, was not in nature of claim for debt that was not in nature of support, and that debtor incurred “in the course of a divorce or separation or in connection with a separation agreement,” such as would be excepted from discharge even in absence of timely nondischargeability proceeding commenced by estranged spouse.

Erin W. v. Charissa W.
297 Neb. 143
Nebraska Supreme Court
July 10, 2017

Husband filed a complaint for dissolution of marriage, and wife moved for genetic testing to determine the paternity of the child born during their marriage. Held: Evidence in marriage dissolution action was insufficient to rebut presumption that husband was father of child born during marriage; even though wife testified that she had intercourse with another man and child looked similar to other man, wife’s uncorroborated testimony was not competent evidence, and photographs of child’s change in appearance was not sufficiently convincing to rebut presumption. Trial court’s decision to award joint legal and physical custody of child to husband and wife in marriage dissolution decree was not an abuse of discretion; parties agreed to joint custody during pendency of dissolution action, parties operated successfully under arrangement for nearly a year, and wife was agreeable to joint custody if she failed to overcome presumption of husband’s paternity.

Judd v. Burns
No. S-16213
Alaska Supreme Court
July 7, 2017

Mother moved for modification of child custody agreement, pursuant to which parties had equal shared custody of child, seeking primary physical custody to allow her to move out of state. Held: Trial court did not clearly err in finding, at proceeding for modification of child custody, that mother’s out-of-state move was legitimate; while mother first cited economic reasons for move before testifying that main reason for move was children’s education, in her request for modification, she cited opportunities for larger income, increased family stability, and better environment, reiterating such themes at hearing, with her new husband testifying about his own out-of-state job opportunities, and even though father testified that mother had wanted to marry him and move to state in part to make it easier to get custody of her son from previous marriage, mother denied such assertion.

Pierce v. Slate
No. 2016-420, 2017 VT 63
Vermont Supreme Court
July 7, 2017

Superior Court could not exercise its jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) over mother’s parentage action in which she sought custody and visitation determination, where father’s child custody action was pending in Virginia at the time that mother filed her parentage action, and Virginia court assumed jurisdiction over the custody action consistent with the UCCJEA.

Mills v. Fleming
No. Ken-16-449, 2017 ME 146
Maine Supreme Court
July 7, 2017

Provisions of judgment awarding husband and wife shared parental rights and responsibilities and equal residential care stating that children’s participation in soccer was in their best interest, that unless otherwise agreed, “[e]ach party shall make a good faith effort to get the children to their [extra-curricular] activities,” and that if parent with whom children were residing was unable to take them to their activities, that parent “shall provide the other parent with the right of first refusal to transport and assume responsibility for the children” did not impermissibly intrude on wife’s fundamental right to parent children based on her objection to children’s participation in soccer.

Alesawy v. Badawi
No. 58092/2016, 2017 N.Y. Slip Op. 27226
New York Supreme Court, Westchester County
July 6, 2017

After wife obtained judgment declaring that foreign judgment of divorce entered in Abu Dhabi was valid and enforceable in New York, 38 Misc.3d 780, 959 N.Y.S.2d 802, husband commenced action by motion for summary judgment in lieu of complaint seeking recognition and enforcement of Abu Dhabi judgment awarding him $116,681.99 for carrying costs of the parties’ New York and Egypt properties. Following denial of husband’s motion for summary judgment in lieu of complaint, wife moved to dismiss action, and husband cross-moved for leave to renew and reargue his prior motion for summary judgment in lieu of complaint. Held: husband demonstrated that his Abu Dhabi judgment was final, conclusive, and enforceable, within meaning of New York’s version of the Uniform Foreign Country Money-Judgments Recognition Act; husband made a prima facie showing that Abu Dhabi’s procedures were compatible with the requirements of due process of law; and husband made a prima facie showing that Abu Dhabi had personal jurisdiction over wife.

Law Review Articles of Interest to Family Law Practitioners

Solangel Maldonado, Bias in the Family: Race, Ethnicity, and Culture in Custody Disputes, 55 Fam. Ct. Rev. 213 (2017)

Angela Ruffini, Who’s Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same-Sex Couples, 55 Fam. Ct. Rev. 307 (2017)

Scott Trowbridge, Understanding the 2016 Indian Child Welfare Act Regulations, 36 No. 1 Child L. Prac. 6 (2017)

Mishal Pahrand, Note, Not Without My Children: The Need for the Modification of International Child Abduction Laws, 55 Fam. Ct. Rev. 139 (2017)

Amy E. Halbrook, Kentucky’s Guardian Ad Litem Litigation: A Model for Seeking Role Clarity, 37 Child. Legal Rts. J. 81 (2017)

Darya Hakimpour, Distributing Children as Property: The Best Interest of the Children or the Best Interest of the Parents?, 37 Child. Legal Rts. J. 128 (2017)

Family Law Online

11 Questions to Ask Before Getting a Divorce

Common sense suggests that asking the right questions before getting married can make for a better union, but rarely is the other side of the coin examined. That could be because, by the time the prospect of divorce surfaces, spouses may already be in a stressful frame of mind, and in no mood for a game of 20 — or even 11 — questions. (The New York Times)

Family Law Related Articles & Publications

The ABA’s Family Advocate’s Summer, 2017 issue (Vol 40, No.1) is a Client Manual on Working With Your Lawyer.

Articles include:

Most People Really Do Need a Lawyer: What You Don’t Know Can Hurt You
By Marianne Brown

Thing to Consider Before Hiring a Divorce Lawyer – From a Retired Family Court Judge
By Hon. David Stowe

Truth or Consequences: Why Honesty is the Best Policy When Dealing with Your Lawyer
By Katie McClaflin

Everybody’s Talkin’: A Primer on Communicating Effectively With Your Attorney
By Steven Yoda

Other Professionals: Why, When and Who by Gary Gardner
Proper Boundaries Between Attorney and Client

By Daniel Bray

When There are Problems with Your Lawyer
By Lynda Shely

For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate web site.

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.