Family Law Update for February 2016

In this Issue …

A Word from Gregg Herman
New Website Design!

Wisconsin Courts Updates
No new cases.

Decisions Across The Nation
Restricted stock options, grandparent visitation, Joint tax debt and innocent spouse protection, Division of retirement benefits which are in lieu of social security, shirking and more.

Family Law Related Articles and Publications
Family Advocate issue on “Should I Open My Own Family Law Office”; Family Law Quarterly


A Word from Gregg Herman …

My office Web site just went through a total redesign, thanks to my friend and webmaster, Pat McKenna of MojoWeb Productions in Milwaukee. As before, my articles, blogs and even these FLU issues are archived on the website. Take a look and let me know what you think via e-mail.

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My vlog this month is a natural follow up to my article in InsideTrack on the right of children to be heard during the divorce process, and the critical need for guardian ad litems to not only understand the substantive law, but on how to talk to children who are caught in the middle of their parents’ battles.

Play Latest Vlog


Wisconsin Courts Update

No new cases this month. Sigh.


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.

Hoegen v. Hoegen
No. 14-P-149
Massachusetts Appeals Court
January 22, 2016

Income father received from employer-issued vested restricted stock units was income subject to inclusion when calculating father’s child support obligation.

Kamm v. Kamm

No. S-15-0101, 2016 WY 8
Wyoming Supreme Court
January 21, 2016

Trial court’s decision not to award alimony to ex-wife was not an abuse of discretion, even though she suffered from various medical conditions, including post-traumatic stress disorder (PTSD); there was evidence that ex-wife could have conceivably worked but that she made no attempt to find employment in fields for which she was qualified, ex-husband lived in a mobile home, drove a 15-year-old vehicle, and worked four jobs to make ends meet, and ex-wife was awarded half the marital home equity and half of ex-husband’s retirement account.

Ritter v. Ritter

No. 20150202
North Dakota Supreme Court
January 14, 2016

Parent’s work schedule may be an appropriate consideration in determining whether a prima facie case for modification of residential responsibility has been established so as to warrant evidentiary hearing. Thus, ex-husband established a prima facie case for modification of primary residential responsibility, and thus, he was entitled to an evidentiary hearing and an opportunity to present evidence to support modification of residential responsibility; ex-husband had stipulated to ex-wife having primary residential responsibility because of his unavailability due to work, his new employment resulted in a significant increase in his ability to care for his children, and his change in employment constituted a material change in circumstances, and modification was in the best interests of the children.

Matison v. Lisnyansky
No. A-5656-13T2
New Jersey Superior Court, Appellate Division
January 13, 2016

Father, who owed past due child support, who had a pending arrest warrant due to his child support arrearages, and was residing out of the country, was not entitled to vacate default judgment entered in favor of mother as to child custody and support based on the fugitive disentitlement doctrine.

Major v. Maguire, No. A-110-13 (New Jersey Supreme Court, January 12, 2016): Grandparents established a prima facie case that the absence of visitation with their granddaughter would harm the child so as to warrant assessment of need for fact discovery, expert testimony, and motion practice in grandparent visitation proceeding, where child’s father, who was grandparents’ child, died, and grandparents alleged that the child enjoyed a close relationship with her father, his death caused a major trauma in the child’s life, they maintained a close bond with child prior to father’s death, and grandmother saw child every weekend and hosted child at her home monthly, and grandfather saw child biweekly.

Rose v. Rose
No. DA 15-0353
Montana Supreme Court
January 12, 2016

The Internal Revenue Service (IRS) and the Montana Department of Revenue’s determination that wife was an innocent spouse and thus was not liable for any delinquent tax liability did not preclude the trial court from equitably apportioning the delinquent tax debt between husband and wife in dissolution proceeding; the tax liabilities were joint marital obligations because the parties put the money that should have been paid for taxes into living expenses or a second home they purchased and wanted to sell or “flip” during the marriage, and wife testified that she was aware the couple incurred income tax liability during the marriage.

In re Marriage of Peterson

No. B259322
California Court of Appeal, Second District, Division 4
January 11, 2016

Wife’s defined-benefit retirement pension plan benefits, which were in lieu of Social Security, were subject to division as community property, even though husband’s Social Security benefits were separate property which could not be considered as part of equitable division.

Sharpe v. Sharpe
No. S-15262
Alaska Supreme Court
January 8, 2016

Superior court adequately considered mother’s personal needs when it determined that her voluntary unemployment through quitting her job, moving to a village, and adopting subsistence lifestyle was unreasonable for purposes of calculating child support, where it found that living in a village was rehabilitative for mother, who was finding a spiritual reawakening and reconnecting with native culture. but found that they did not outweigh other concerns, including her daughter’s need for financial support.

Schuett v. FedEx Corporation
No. 15-cv-0189-PJH
United States District Court, N.D. California
January 4, 2016

Surviving spouse of same sex couple married in California brought action against her deceased wife’s employer, employer’s pension plan, and employer’s retirement appeals committee, alleging claim for benefits under ERISA and breach of fiduciary duty under ERISA. Held: although couple was legally married before wife’s death, at time of wife’s death, employer’s pension plan defined “spouse” using Defense of Marriage Act’s (DOMA) definition, and thus employer’s decision to deny benefits was based on unambiguous and nondiscretionary plan provision, without any significant act of interpretation of the plan at time survival benefits were denied.


Family Law Related Articles & Publications

The Winter, 2016 edition of the ABA FLS publication Family Advocate (Vol. 38, No. 3) is dedicated to the topic of Should I Open My Own Family Law Office. Articles include:

Should I Open My Own Family Law Office

By Ben Aguiler

Separating From a Firm
By Stephen Conover

A Checklist for Writing Your Business Plan
By Siddhartha H. Rathod & Qusair Mohamedbhai

What Kind of Office Should I hang My Shingle On?
By Kathleen Coble

How to Handle Your New Firm Finances
By Paulette Gray

Risk Management for Your New Law Firm
By Thomas J. Kasper

Avoiding the Ethical Traps of Client Trust Accounts
By Mark Dubois & Pat King

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

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The Fall, 2015 edition of the Family Law Quarterly include the following articles:

International Abduction of Children: Why the UCCJEA is Usually a Better Remedy
Than the Abduction Convention

By Robert G. Spector

The Share Custody Child support Adjustment: Not Worth the Cost
By Karen Syma Czapanskiy

The Supervised Visitation Checklist: Validation with Lawyers, Mental Health Professionals, and Judges
By Michael Saini & Rachel Birnbaum

Controversial Medical Treatments for Children: The Roles of Parents and of the State
By Lynn D. Wardle

For ordering or subscription information (the current issue may not be available yet), visit the Family Law Quarterly 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.