Family Law Update for July 2017

In this Issue …

A Word from Gregg Herman
Video series of family law

Wisconsin Courts Updates
Lawyer’s contempt upheld

Decisions Across The Nation
Same-sex couples and birth certicates, UCCJEA, pro se contempt action, disability benefit, pretrial order enforced, habitual residence under Hague convention and more.

Family Law Online
Led by Baby Boomers, Divorce Rates Climb for America’s 50+ Population.” and “When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.).”

A Word from Gregg Herman …

Loeb & Herman, S.C. is partnering with the State Bar of Wisconsin and Pinnacle to create a video series on family law entitled, modestly: “Herman on Family Law.”This series is endorsed by the State Bar of Wisconsin Family Law Section.

Pursuant to this partnership, I will be taping a number of one hour CLE programs on several issues in family law, ranging from basic (“The ABCs of Divorce Settlement Negotiations”) to some not so basic (“Game Theory and Divorce Settlement Negotiations”). The first videocasts will be on July 13, 2017.

Is there a particular area of family law which you think would be interesting for a one-hour CLE presentation? In addition to some basic programs (the “ABC” series), I would like to do some which present common issues, but are not necessarily so basic.

For more information, please visit WisBar. If you have any ideas, please send me an email.

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 May 31, 2017, the District II Court of Appeals issued their opinion in Reilly v. Milshteyn, No. 2016AP1567, which affirmed in part, reversed in part and cause remanded for further proceeding not inconsistent with this decision the orders rendered by the Honorable Jennifer Dorow (Ozaukee County).

This case arised out of the divorce of Eleonora and Mark Milshteyn. A judgment of divorce was entered on February 26, 2015. Attorney Richard Reilly represented Eleonora in the divorce proceedings. In the judgment of divorce, the circuit court appointed Scribner as Eleonora’s conservator to manage her funds, maintenance, assets, and pay her bills. The court further directed that attorney fees due, psychologist fees and CPA payments shall take priority, and shall be considered Marital Support Orders. Mark filed a contempt motion asserting that Scribner and Reilly failed to comply with the judgment of divorce by paying themselves large sums instead of paying Eleonora’s bills. The court found Reilly and Scribner violated the judgment of divorce and ordered them jointly and severally liable to Eleonora’s estate in an amount of $310,554.97. Both Reilly and Scribner appealed.

Scribner and Reilly contended that Mark was not harmed in a sufficiently concrete manner to be considered a person aggrieved by their alleged contempt, and thus he could not seek a remedial sanction for the contempt. In entering the judgment, the circuit court clearly indicated its concern that failure to pay Eleonora’s debts could adversely affect Mark. Mark’s affidavit and contempt hearing testimony indicated he incurred some harm. Thus, the Court of Appeals found Mark to be aggrieved.

The circuit court held Reilly and Scribner jointly and severally liable, in part, in relation to Scribner paying Reilly’s firm $134,375.67 from Eleonora’s funds instead of the $50,000+ authorized by the judgment. The Court of Appeals agreed that the judgment authorized payment for “fees due” not “fees that will be due.” Reilly asserted there was nothing in the judgment of divorce stating that the prioritization of fees ended when the trial closed. The Court of Appeals agreed and thus concluded that the fees due/owed that were to be given priority included those fees incurred through the date the judgment was entered, but did not include attorney fees incurred thereafter. The Court of Appeals was unconvinced that the court erred in determining that Reilly and Scribner engaged in contemptuous conduct in paying Reilly attorney fees related to the divorce action which were in excess of the fees due through the date the judgment was entered.

The circuit court also held Scribner in contempt in part for paying its own bill of $22,395.44 from Eleonora’s funds. The Court of Appeals agreed with Scribner that the court erred in holding it in contempt related to this payment. Of the dozens of itemized bills to be paid listed in the judgment, the bill to be paid to Scribner was the only one that stated “tbd” – presumably “to be determined.” It seemed to the Court of Appeals that a reasonable reading was that the “tbd” was Judge Malloy’s recognition in the judgment that there would be ongoing expenses related to Scribner’s continued involvement in the case. Therefore, the Court of Appeals concluded that the judgment did not clearly identify that Scribner was only to pay itself for fees incurred prior to the final date of trial. With that, the court concluded the circuit court erred in determining that Scribner’s decision to pay itself $22,395.44 for its work amounted to a refusal to abide by the judgment of divorce.

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.

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.

Pavan v. Smith
No. 16-992, 582 U. S. ____ 2017
United States Supreme Court
June 26, 2017

In Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2071 (2015), the Supreme Court held that same-sex couples are entitled to “the constellation of benefits that the States have linked to marriage,” including the “rights, benefits, and responsibilities” such as “birth and death certificates.” They really meant it. At issue was an Arkansas statute that provided “[i]f the mother was married at the time of either conception or birth . . . the name of [her] husband shall be entered on the certificate as the father of the child.” But under this law, when a child is born to someone in a same-sex marriage, the state does not automatically list the mother’s spouse as a co-parent. This law is unconstitutional under the principles announced in Obergefell.

Kevin McK. v. Elizabeth A.E.
No. 4317, 2017 N.Y. Slip Op. 05050
New York Supreme Court, Appellate Division, First Department
June 20, 2017

Under UCCJEA, Family court acted within its discretion in determining that Mississippi was more convenient forum for father’s petition seeking to modify custody order and to enforce visitation order following child’s relocation with mother to Mississippi, where Mississippi court was well equipped to decide litigation expeditiously, as it was familiar with parties’ case and expressed its own belief that case should be heard in Mississippi.

Black v. Black
2017 ME 124
Maine Supreme Judicial Court
June 20, 2017

Trial court’s denial of divorced wife’s contempt motion against divorced husband, on the basis that husband was unrepresented at the time of their divorce, was in error, in wife’s contempt proceeding, alleging husband failed to make monthly payments to her of income from an apartment to which she was entitled pursuant to divorce judgment; unrepresented parties were not entitled to special consideration.

Hardin v. Hardin
S17F0576
Georgia Supreme Court
June 19, 2017

The remainder of a $1,500,000 disability benefit, that was paid to husband during the marriage following a fall that rendered him totally disabled, did not constitute marital asset subject to equitable division, but rather, constituted husband’s separate, non-marital property; disability proceeds did not have a retirement component, at least part of the benefit compensated the marital estate for husband’s reduced earning capacity during the marriage, and any remaining amounts of the disability benefit paid husband had to be attributed to his expected post-martial wages and his pain and suffering.

Mulugeta v. Misailidis
No. 16-0494
West Virginia Supreme Court
June 13, 2017

Alimony award to the wife was “patently unfair” where she was awarded only 10% of the husband’s net monthly income, she was unemployed (and had been during the marriage), and the husband earned $40,000 per month. As to the husband’s claimed expenses: Husband’s $33,700 payment to family friend for care that he provided to husband’s elderly parents in Ethiopia was legitimate, marital expenditure, although payment was made more than four years after husband’s father passed away, and Husband’s $25,000 payment to mother of his other child for college expenses was legitimate, marital expenditure, although payment was made after husband and wife separated.

Reaves v. Tucker
No. 1546-16-2
Virginia Court of Appeals
June 13, 2017

Trial court did not abuse its discretion by granting husband’s motion in limine requesting that trial court uphold pretrial scheduling order in divorce proceeding by denying wife permission to present any witnesses or exhibits that had not been disclosed prior to trial; trial court did not prohibit wife from calling witnesses or introducing exhibits, wife was free to present exhibits and witnesses that she properly identified to husband prior to trial, and wife chose not to present rebuttal evidence and witnesses.

Quinty v. Johnson
2017 ME 117
Maine Supreme Judicial Court
June 8, 2017

The terms of the parties’ settlement agreement, incorporated into the divorce judgment, specified that the husband’s five-year spousal support obligation terminated on February 29, 2016. The wife, however, filed her motion to modify four months after that obligation had expired. The trial court correctly concluded that its authority to reinstate the spousal support award had ceased, and, therefore, that the wife’s untimely motion failed to allege facts that would entitle her to relief pursuant to some legal theory.

Cohen v. Cohen
858 F.3d 1150
United States Court of Appeals, Eighth Circuit
June 7, 2017

United States was habitual residence of child who moved to United States from Israel with his mother, and thus the Hague Convention on the Civil Aspects of International Child Abduction did not compel return of child to Israel; although father had been unable to relocate with the family, child had lived in United States for significant portion of his life, primarily spoke English, and had little connection to Israel, from child’s perspective his family had moved to the United States indefinitely and established a home there, child’s mother obtained employment, purchased a vehicle, and rented an apartment for the family in United States, and child attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the United States.

Doe v. Doe
No. 44419
Idaho Supreme Court
June 7, 2017

Biological mother’s former same-sex partner petitioned to establish parentage, custody, and visitation with respect to child conceived through artificial insemination during course of parties’ relationship. The trial court dismissed partner’s claim for parentage, but granted visitation rights. The Supreme Court held that: the Supreme Court decision which, in context of divorce and guardianship proceeding, determined that granting custody of child to stepfather was in child’s best interests did not create independent cause of action for non-parent seeking custodial rights to a minor child, and as matter of first impression, partner did not have legally recognized, protected relationship with child and, thus, lacked standing to raise, on child’s behalf, Equal Protection challenge to Artificial Insemination Act.

Gibson v. Gibson
No. S17F0593
Georgia Supreme Court
June 5, 2017

Evidence was sufficient to support trial court’s finding that husband’s transfers of property to irrevocable trusts were not fraudulent transfers, and thus evidence supported conclusion that trusts’ property was not subject to equitable division in wife’s divorce action; several badges of fraud weighed against concluding that husband intended to defraud wife, including husband’s lack of active concealment from wife, failure to retain possession or control of assets transferred, failure to transfer substantially all of his assets or become insolvent after transfers, and failure to abscond.

Estate of Seward
No. S-15561
Alaska Supreme Court
June 2, 2017

Paternity adjudication could be made during probate estate proceedings to determine whether man claiming to be decedent’s son was in fact decedent’s son and entitled to share in decedent’s estate; when acting as probate court, Superior Court had broad subject matter jurisdiction relating to decedent’s estate, including matters ancillary to estate proceedings, probate courts were expressly empowered to determine heirs and successors of decedents, and statute governing parent and child relationship for purposes of intestate succession invited paternity determinations during estate proceedings.

Family Law Online

Led by Baby Boomers, Divorce Rates Climb for America’s 50+ Population

At a time when divorce is becoming less common for younger adults, so-called “gray divorce” is on the rise: Among U.S. adults ages 50 and older, the divorce rate has roughly doubled since the 1990s. (Pew Research Center)

When Couples Divorce, Who Gets to Keep the Dog? (Or Cat.)

When couples get divorced, children are not the only ones who can get caught in custody disputes. Fights over other members of the family — beloved pets — can be equally acrimonious. (New York Times)

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.