Family Law Update for March 2017

In this Issue …

A Word from Gregg Herman
Mediators drafting settlement agreements

Wisconsin Courts Updates
No new cases

Decisions Across The Nation
Constitutional right to travel, Grandparent visitation, Hague convention and “great risk of harm” exception, Failure to disclose separate property, Unvested stock options, Increase in father’s income and child support, Child support based on decision to invest in new business and more.

Family Law Online
“How Shacking Up Before Marriage Affects a Relationships Success.” and “Making Stepfamilies Work: Planning for Remarriage”

A Word from Gregg Herman …

Gregg Herman Here are a couple of upcoming programs:

In January, the Wisconsin Supreme Court adopted a rule specifically allowing lawyer mediators to draft settlement agreements in family law cases.

Is this a good rule or not?

I’ve discussed the topic in my monthly video below, and will expound on it a bit in my column in the March 15, 2017 edition on InsideTrack, published by the State Bar of Wisconsin.

What are you thoughts on the subject? Agree or disagree? Let me know via e-mail, and (with your permission) I will publish some other opinions in a future issue of FLU.

Play Video

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.

Tracy v. Tracy
No. S-16-0126, 2017 WY 17
Wyoming Supreme Court
February 22, 2017

Trial court did not violate mother’s constitutional rights to travel and to familial association by awarding custody of children to their father based on change of circumstances resulting from mother’s planned move to different city; court did not change custody solely because mother moved, but rather considered the impact the move would have on the children, and based its decision on what it reasonably believed to be in the children’s best interests.

Hamilton v. Wise Young
No. 2015-IA-01260-SCT
Mississippi Supreme Court
February 16, 2017

After divorced mother registered an out-of-state divorce decree, she filed complaint for modification of the child support and child custody provisions of the decree. Held: (1) Trial court in county where divorced mother and minor child resided could not assume jurisdiction over the child support provisions of out-of-state divorce decree, even if trial court conferred with the court that entered the decree and concluded that it had relinquished jurisdiction; trial court did not record or discuss its alleged meeting with the foreign court, father continued to reside in the county that entered the divorce decree and did not consent to the transfer of jurisdiction, and mother consented to the foreign court’s continuing jurisdiction by agreeing to a modification of the decree after the trial court purportedly assumed jurisdiction. (2) Trial court lacked jurisdiction to modify the child custody provisions of out-of-state divorce decree, even though forum state was minor child’s home state, where father continued to reside in state that issued the divorce decree, such that that state retained continuing and exclusive jurisdiction, and there was no indication that foreign court considered whether it remained a convenient forum; (3) Father’s appearance conferred only personal jurisdiction, not subject matter jurisdiction. Therefore, Father was not estopped from challenging jurisdiction of court.

Ledoux-Nottingham v. Downs
No. SC15-1037
Florida Supreme Court
February 16, 2017

Colorado order awarding grandparents child visitation was entitled to enforcement under the Full Faith and Credit Clause, despite fact that entry of a similar judgment by a Florida court under the same circumstances would be prohibited by the Florida Constitution; state could not elevate its own public policy over the policy behind sister state’s judgment and thereby disregard the command of the Full Faith and Credit Clause; disapproving M.S. v. D.C., Jr., 763 So. 2d 1051, and Fazzini v. Davis, 98 So. 3d 98. U.S. Const. art. 4, § 1; Fla. Const. art. 1, § 23.

Madrigal v. Tellez
No. 16-50149
United States Court of Appeals,
Fifth Circuit
February 16, 2017

Law firm for mother’s attorney receiving e-mail stating that father was going to kill mother was not clear and convincing evidence of a grave risk of harm to children, as required for grave risk exception to apply to prevent return of children to Mexico after granting father’s petition under Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA); e-mail was vague and from unknown source. Arrest warrant being issued for mother in Mexico was not a grave risk of harm for children, as required for grave risk exception to apply to prevent return of children to Mexico after granting father’s petition under Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), despite mother’s claim that warrant was fraudulent and that no bail was available; mother did not allege Mexican judicial system was corrupt or unfair.

Rathbun v. Rathbun
No. 20160180, 2017 ND 24
North Dakota Supreme Court
February 16, 2017

Trial court was required to take into consideration father’s employment opportunities when deciding his motion to modify his child support obligation filed after he lost his consulting job in the oil fields; oil industry had changed dramatically in the state, and it was unrealistic to conclude job opportunities with similar earnings to what father was making were available at the time of the hearing.

In re Marriage of Schleich
Nos. H039870, H041234
California Court of Appeal, Sixth District
February 8, 2017

Statute providing for an award of 50 or 100 percent of an asset not disclosed to a spouse did not apply to a spouse’s separate property, only to community property. Further, the trial court granted improper double recovery in awarding wife 50 percent of community property assets for disclosure violations and an additional 50 percent in the property division.

Fouad v. Mohamed Esmat Ezzat Mahmoud Magdy
No. 2600, 2017 N.Y. Slip Op. 00915
New York Supreme Court, Appellate Division, First Department
February 7, 2017

Wife’s divorce action was not subject to dismissal based on husband allegedly having obtained an Egyptian divorce; wife’s action was first in time since it was commenced eight days before husband sought divorce under Egyptian law, Egyptian divorce was revocable for 90 days, wife averred that husband did in fact revoke the Egyptian divorce, and husband failed to submit certification of the purported Egyptian divorce in the form required by state law.

Ludwig v. Lamee-Ludwig
91 Mass. App. Ct. 36
Massachusetts Appeals Court
February 7, 2017

For purposes of property division, husband retained sole ownership of employee stock options that were not attributed to the divisible marital estate. However, calculation of husband’s alimony obligation could include income received from unvested employee stock options that were not subject to equitable division; and the judge did not abuse his discretion when he ruled that husband’s unvested employee stock options should be valued and divided as of the date closest to when the original divorce judgment was entered.

Jury v. Jury
Nos. 34,257 and 34,564 (consolidated)
New Mexico Court of Appeals
February 2, 2017

Substantial increase in father’s income from the $750,000 on which his child support obligation was initially calculated, taken alone, did not imply substantial change in circumstances requiring modification of child support; father provided $4,872 each month for two children, mother acknowledged that children had far more privilege than majority of children, and parties’ children were afforded luxuries with respect to housing, education, travel, vehicles, and other material possessions.

Addimando v. Huerta
No. 2015-02021, 2017 N.Y. Slip Op. 00641
New York Supreme Court, Appellate Division, Second Department
February 1, 2017

Father was not entitled to downward modification of his child support obligations based on his decision to invest in a new business; father was capable of working as an attorney, he made the choice to open a solo practice, which would not turn a profit for several years, and he did not pursue other more lucrative opportunities before deciding to open his practice.

Family Law Online

How Shacking Up Before Marriage Affects a Relationships Success

“Just as nobody buys a car without taking it for a test-drive, most people—about two thirds of couples—don’t get married any more until they’ve lived with their proposed lifetime partner. This has been true for a while, even though studies done right up until the 2000s showed that couples who lived together first actually got divorced more often than those who didn’t. But a spate of new studies looking at cohabitation, as it’s called, are starting to refine those results.” (TIME)

Making Stepfamilies Work: Planning for Remarriage

“The so-called ‘blended family’ is no longer an aberration in American society: It’s a norm. A marriage that brings with it children from a previous marriage presents many challenges. Such families should consider three key issues as they plan for remarriage” (American Psychological Association)

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.