Family Law Update for February 2017

In this Issue …

A Word from Gregg Herman
Upcoming programs

Wisconsin Courts Updates
No new cases

Decisions Across The Nation
The Nation: Legal malpractice and discovery of other agreements drafted by lawyer, De facto parent, Student loan debt, Refusal to give religious divorce and the First Amendment, Invalidity of antenuptial agreement and more

Family Law Online
“Helping Kids Cope with Separation and Divorce”

Adoption
Why Jury Trials for Involuntary Termination of Parental Rights Cases?

Business Valuations
Double dip analysis

Family Law Articles and Publications
Family Advocate issue on the Boomer Divorce; Family Quarterly issue on “Nonmarital Partner Rights and Families Today”

A Word from Gregg Herman …

Gregg Herman Here are a couple of upcoming programs:

The Annual AAML seminar “Divorce Wisconsin Style” will be Friday, March 24, 2017 at the Pfister Hotel in Milwaukee. For more information, visit the AAML Web site.

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The Wisconsin Chapter of the Association of Family and Conciliation Courts (AFCC) will present Dr. Marsha Pruett speaking on “Overnights for Young Children” on March 1, 2017 at the The Wisconsin Club in Mlwaukee, WI. For more information, visit the AFCC Web site.

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In this month’s Thoughts on Family Law, I discuss Gregory Ksicinski’s contributing Business Valuations article in this month’s FLU on “double dipping” in spousal support cases, which was addressed in an important recent case In re Marriage of Cheng, 2016 Wash. App LEXIS 2854 (Nov. 22, 2016).

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Wisconsin Courts Update

— No New Cases … Again. 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.

DeCurtis v. Visconti, Boren & Campbell, Ltd.
No. 2015-30-M.P. (PC 12-4078)
Rhode Island Supreme Court
January 20, 2017

Former client brought legal malpractice action against law firm and attorney, alleging that attorney negligently drafted client’s antenuptial and postnuptial agreements. Client moved to compel law firm to produce antenuptial or postnuptial agreements drafted for attorney’s other clients while he was employed at the law firm. Held: (1) as matter of first impression, attorney’s drafting of postnuptial agreement was the triggering “event” under evidence rule governing the admission of subsequent remedial measures, and thus, any measures taken by attorney after drafting the agreement were relevant under the rule and discoverable; (2) attorney and law firm lacked standing to assert attorney-client privilege on behalf of their clients as basis for arguing that antenuptial and postnuptial agreements were not discoverable; (3) marital privilege did not protect antenuptial and postnuptial agreements from disclosure; (4) final and executed antenuptial and postnuptial agreements did not qualify as “factual work product,” and thus, work product doctrine did not protect the agreements from disclosure; (5) even if final antenuptial and postnuptial agreements qualified as factual work product, former client demonstrated substantial need for the agreements, as required for client to overcome agreements’ qualified immunity under work product doctrine; and (6) even if final antenuptial and postnuptial agreements qualified as factual work product, former client would be unable to discover agreements through alternative channels, as required for client to overcome agreements’ qualified immunity under work product doctrine.

Thorndike v. Lisio
No. Kno-16-209, 2017 ME 14
Maine Supreme Court
January 19, 2017

Biological mother’s former partner filed a complaint for a determination of paternity and parental rights and responsibilities. The District Court, Rockland, Raimondi, J, found that partner was a de facto parent of two of mother’s biological children, and mother appealed. Held: To satisfy the first element for establishing de facto parenthood, a person must have participated in the child’s life as a member of the child’s family, resided with the child and, with the consent and encouragement of the legal parent, performed a share of caretaking functions; only by establishing that he or she provided some actual caretaking functions can a petitioner be successful. To satisfy the second element for establishing de facto parenthood, exceptional circumstances must be established by showing that the child’s life would be substantially and negatively affected if the person who has undertaken a permanent, unequivocal, committed, and responsible parental role in that child’s life is removed from that role. Former partner of biological mother was a de facto parent of mother’s biological children; partner undertook permanent, unequivocal, committed, and responsible parental role in the children’s lives, partner worked with extended family to prevent child abuse, the children’s lives would be substantially and negatively affected if partner was removed from his permanent, unequivocal, committed, and responsible parental role, partner and biological mother raised child together from age three, and they became domestic partners and had another child together as a couple.

Butler v. County of Suffolk
2017 N.Y. Slip Op. 00285
New York Supreme Court, Appellate Division, Second Department
January 18, 2017

Decedent’s mother and mother of decedent’s child brought wrongful death action against county, its sheriff’s office, and its department of health services after decedent died intestate while incarcerated in a county correctional facility. Defendants sought to deny decedent’s paternity. Held: County, county sheriff’s department, and county’s department of health services, as defendants in wrongful death action, lacked standing to challenge decedent’s acknowledgment of paternity; defendants were non-signatories to the acknowledgment of paternity and did not fall with any of the classes of parties authorized to commence a paternity proceeding.

In re Adoption of J.K.C.
2017-Ohio-159
Ohio Court of Appeals, Eleventh District, Trumbull County
January 17, 2017

Mother’s interference with visitation and communication between father and minor child constituted justifiable cause for biological father’s failure to have more than de minimis contact with child during one-year period prior to step-father’s petition to adopt child, and thus biological father’s consent was necessary for adoption to proceed; mother never notified biological father of any of her addresses or phone numbers in moves between Ohio, Pennsylvania, and Kentucky, blocked biological father from contacting her through social networking website, and did not return biological father’s telephone calls, biological father had enjoyed visitation with child for period of time until mother did not show up, and mother would avoid father and paternal grandparents in public places.

Wagner v. Wagner
No. S-15989
Alaska Supreme Court
January 13, 2017

Trial court’s determination that wife’s student loan debt, which included premarital student debt that was consolidated with two loans taken out during marriage, was marital debt, was not clearly erroneous, for purposes of equitable distribution of marital estate in divorce; loans incurred during marriage were presumptively marital debt, and husband did not present any evidence indicating that they intended consolidated loans to remain as wife’s separate debt or what portion of consolidated loan balance at time of divorce was premarital.

Masri v. Masri
2017 N.Y. Slip Op. 27007
New York Supreme Court, Orange County
January 13, 2017

Increasing amount of husband’s post-divorce spousal maintenance obligation due to his refusal to give wife a religious divorce, absent evidence that he withheld the religious divorce to extract concessions in the matrimonial action or other wrongful purposes, would interfere with husband’s free exercise of religion and violate the First and Fourteenth Amendments, and, thus, statutory provision requiring court to consider effect of barrier to remarriage in making maintenance determination did not apply in determining husband’s maintenance obligation; religious and social consequences of which wife complained flowed not from any impropriety in husband’s withholding of religious divorce, but from religious beliefs to which wife and husband subscribed, and to apply coercive financial pressure because of perceived unfairness of religious divorce doctrines to induce husband to perform religious act would plainly interfere with the free exercise of his religion.

Robert V. v. Bango
2017 N.Y. Slip Op. 00221
New York Supreme Court, Appellate Division, Third Department
January 12, 2017

Father lacked capacity to bring medical malpractice action on behalf of child against child’s mental health providers, arising from mother’s alleged administration of a medication to the child after treatment with that medication had been discontinued, even though mother and father had joint legal custody, where court’s custody order set forth that mother had “sole, final and controlling decisionmaking responsibilities and power” with respect to child’s mental health care.

Kremer v. Kremer
No. A15-2006
Minnesota Court of Appeals
January 9, 2017

Wife did not have meaningful opportunity to consult independent counsel regarding antenuptial agreement, and thus antenuptial agreement was invalid, although wife reviewed agreement with assistance of lawyer, where husband gave wife agreement only three days before parties departed for destination wedding, parties’ families had already paid for, and some had already started, their travels to wedding site, husband was clear in conversations with wife that if wife did not sign agreement there would be no wedding, and wife was previously unaware of husband’s net worth or assets as husband had intentionally kept financial information from her.

In re Marriage of Gromicko
2017 CO 1
Colorado Supreme Court
January 9, 2017

Trial court ordered husband’s employer to produce a wide range of business records, and employer petitioned for review. Held: The district court abused its discretion by not tailoring discovery, and instead allowing wife to discover from husband’s employer virtually any document to which she might arguably be entitled were she ultimately able to prove her claim that employer might be husband’s alter ego and thus might constitute marital property; the court should initially have granted wife only such discovery as would reasonably have been necessary to allow her to attempt to establish the existence of the alter ego relationship she claimed, considering such factors as (1) whether the corporation is operated as a separate entity, (2) commingling of funds and other assets, (3) failure to maintain adequate corporate records, (4) the nature of the corporation’s ownership and control, (5) absence of corporate assets and undercapitalization, (6) use of the corporation as a mere shell, (7) disregard of legal formalities, and (8) diversion of the corporation’s funds or assets to noncorporate uses.

James XX. v. Tracey YY.
2017 N.Y. Slip Op. 00052
New York Supreme Court, Appellate Division, Third Department
January 5, 2017

Father committed family offense of second degree harassment, where father sent text messages that “annoyed” and “alarmed” mother and children despite being asked to stop and they did not serve any legitimate purpose; although many of text messages pertained to visitation schedule, others threatened mother, and father’s text messages to children, and telephone calls, contained profanity and threats, although some regarded attempts to arrange visitation.

Sejka v. Sejka
2017-Ohio-2
Ohio Court of Appeals, Ninth District, Medina
January 2, 2017

Trial court did not abuse its discretion in determining that ex-husband was to have final medical decision-making authority over child when ex-wife was child’s residential parent and legal custodian; while ex-husband might have final authority over medical decisions regarding the child, ex-wife was still child’s primary caretaker and legal custodian and, as such, retained significant authority over the child, conditions the court put in place restrained ex-husband from unilaterally making medical decisions for the child without ex-wife’s input, and court mandated that both parents follow doctors’ recommendations as to the child.

Family Law Online

Helping Kids Cope with Separation and Divorce

“For children, divorce can be stressful, sad, and confusing. At any age, kids may feel uncertain or angry at the prospect of mom and dad splitting up. As a parent, you can make the process and its effects less painful for your children. Helping your kids cope with divorce means providing stability in your home and attending to your children’s needs with a reassuring, positive attitude. It won’t be a seamless process, but these tips can help your children cope.” (HelpGuide.org)

Adoption

Following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Why Jury Trials for Involuntary Termination of Parental Rights Cases?

Wisconsin has a two stage procedure for terminating parental rights. At stage one, petitioner must prove that grounds exist for the termination of the rights of the parent. Once statutory grounds have been proven, the case moves to hearing number two, this time in front of the judge. At this dispositional phase, petitioner must prove that it is in the best interests of the child for the rights of the parent to be terminated.

Wisconsin is one of a handful of states that has a right to a jury trial and has two separate hearings in order for petitioner to be successful. Jury trials are not constitutionally mandated.

The two step with jury trial approach may be unique in the country, but is it necessary? Typically, adopting parents pay for all of the litigation expense for petitioner and the guardian ad litem. For many young families seeking to adopt, the cost is prohibitively expensive. Often the parent whose rights are sought to be involuntarily terminated is represented free of charge. From a judicial efficiency standpoint, two hearings occur instead of one. One is often a jury trial with the extra time a jury trial demands. It is time for Wisconsin to join all but a couple of states and eliminate the jury trial.

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.

Washington State Court Clarifies Double-Dip Analysis

Double dip, like goodwill, is a challenging issue for valuators because different states have handled it differently, which makes it hard to keep up with the various approaches. A recent appeals court decision from the state of Washington explains the key principle at work in that jurisdiction’s double-dip analysis.

The issue arose when the husband appealed the trial court’s decision to award the wife both half of the value of a management consulting business the husband had set up and grown during the marriage and $640,000 in spousal maintenance over 44 months.

No Unfair Burden

Both parties’ experts used an income approach to value the company. The trial court split the difference in the value determinations and found the company “has significant goodwill and profits, has experienced significant growth and will, more likely than not, continue to enjoy significant growth in the near future.”

The husband contended the maintenance award represented double recovery. The state Court of Appeals disagreed. Under the applicable maintenance statute, the division of the community’s property is one of many factors a trial court should consider in determining maintenance. “The only limitation is that the award be ‘just.'” Relatedly, “when maintenance and property awards are paid from the same asset in a manner that unfairly burdens the payor spouse, the maintenance award duplicates the property division of that asset.”

Unfairness comes into play where the divided asset is a diminishing asset that does not generate significant or any future income for the owner spouse with which to pay maintenance, the court explained. In the instant case, however, the business was a going concern that promised to generate considerable income for the husband into the foreseeable future. The husband, therefore, was not required to erode the company’s value to pay maintenance, the appeals court pointed out. It upheld the maintenance award.

Takeaway

According to Rob Levis (Levis Consulting), the Washington Court of Appeals got it right. The court, interpreting precedent, correctly differentiates between a business whose future cash flows represent a return of the assets already reflected in the marital estate and an ongoing business that is expected to grow and where the future cash flows are a return on the asset. Future income growth is an underlying assumption in the vast majority of income-based approaches to value applications in the business appraisal field, Levis says.

The case is In re Marriage of Cheng, 2016 Wash. App LEXIS 2854 (Nov. 22, 2016).

Family Law Related Articles and Publications

The Winter, 2017 edition of the Family Advocate (Vol. 39, No. 3) is devoted to “The Boomer Divorce.” Articles include:

Managing the Seasoned Client
By Paula G. Kirby

When a Client Lacks Legal Competency: Who Files for the Divorce?
By Keith Bradoc Gallant and Rebecca A. Iannantuoni

Life (Insurance) After Divorce: Trusting It Will Work Out
By Jason P. Trenton & Tabetha M. Peavey

The Second Time Around: The Legal Implications of Marriage versus Cohabitation
By Molshree A. Sharma

Premarital Agreements for Seniors
By Jennifer M. Riemer & Peter M. Walzer

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

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The Summer, 2016 edition (Vol. 50, No. 2) of the Family Law Quarterly is dedicated to “Nonmarital Partner Rights and Families Today.” Articles include:

Marriage is on the Decline and Cohabitation is on the Rise: At What Point, if ever, should Unmarried Partners Acquire Marital Rights
By Lawrence W. Waggoner

Nonmarital Families and the Legal System’s Institutional Failures
By Clare Huntington

I’ll be Watching You: Alimony and the Cohabitation Rule
By Cynthia Lee Starnes

Co-Parenting Agreements Between Unmarried Cohabitants
By Leslie I. Jennings & Louise T. Truax

For ordering or subscription information (the current issue may not be available yet), go to: 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.