Family Law Update for October 2017

In this Issue …

A Word from Gregg Herman
Association of Family and Conciliation Courts Conference

Thoughts on Family Law Video
New Proposed Family Law Legislation

Wisconsin Courts Updates
Oral Arguments in Sands v. Menards

Decisions Across The Nation
Unorthodox medical beliefs of mother, Third party visitation, Paternity presumption for same-sex couple, Navy retirement and disability payments and more.

Legislative Watch
Proposed elimination of waiting period after divorce and proposed removal legistation

Business Law Valuations
Goodwill Analysis

Family Law Related Articles & Publications
Family Law Quarterly issue on Review of the Year in Family Law

A Word from Gregg Herman …

Herman

The Wisconsin Chapter of the Association of Family and Conciliation Courts will be hosting a regional AFCC conference from November 2 – 4, 2017 at the Hyatt Hotel in Milwaukee.

The topic of the conference will be: Beneath the Surface of High Conflict and Troubled Families.

To find out more about the confenerence, including registration and hotel accomodations, please use the link below.

Thoughts on Family Law

This month I discuss new proposed legislation regarding WI Stats §467.481 on child removal and the proposed elimination of the 6 month waiting period for remarriage after divorce.

Wisconsin Courts Update

On September 12, 2017, The Wisconsin Supreme Court heard oral arguments in Sands v. Menards, 2016 WI App 76, 372 Wis.2d 126, 887 N.W. 2d 94.

Part of the Court of Appeals decision concerned a cohabitation claim arising from legal services provided by one of the parties while living with the other. You can access the arguments using the link below.

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.

Gammon v. Gammon
No. WD 79869
Missouri Court of Appeals, Western District
September 19, 2017

Evidence was sufficient to establish that mother’s medical beliefs were significantly unorthodox, and thus father was appropriately awarded sole decision making authority over their children’s medical treatment and selection of health care providers; mother rejected western medicine as a failure, believed she was a ‘healer’ who could heal ailments by moving her hands over the body, believed she directly communicated with God to heal others, canceled her own health insurance, treated their children with oils despite children’s and father’s objections, declined to vaccinate their children against father’s wishes, and prevented father from taking their children to the doctor.

Fuller v. Baldino
176 Conn. App. 451
Connecticut Appellate Court
September 19, 2017

Third party petition for child visitation must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship, and specific, good faith allegations that the denial of the visitation will cause real and significant harm to the child. The degree of specificity of the allegations in a third party petition for child visitation must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation; only if specific, good faith allegations are made will a court have jurisdiction over the petition. Therefore, allegations in third party petition for child visitation that petitioner had "very strong bond" with the child, that the child "suffered" and was "very emotional" when unable to see petitioner, and that petitioner played significant role in caring for child’s "severe health conditions" failed to allege jurisdictional element that denial of visitation would inflict real and substantial harm on the child; petition did not specify what harm the child would suffer if denied visitation, and did not rise to the level of neglect, abuse, or abandonment necessary to establish subject matter jurisdiction.

McLaughlin v. Jones in and for County of Pima
No. CV-16-0266-PR
Arizona Supreme Court
September 19, 2017

Statutory marital paternity presumption cannot, consistent with the Fourteenth Amendment’s Equal Protection and Due Process Clauses, be restricted to only opposite-sex couples; the marital paternity presumption is a benefit of marriage, and the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses. Mother was equitably estopped from rebutting her same-sex spouse’s presumptive parentage of child in dissolution proceedings; mother and spouse agreed that they intended for mother to be artificially inseminated with an anonymous sperm donor and that mother gave birth to the child during the marriage, they signed a joint parenting agreement during the pregnancy declaring spouse a "co-parent" of the child and their intent that the parenting relationship between spouse and child would continue if mother and spouse’s relationship ended, and, after the birth, spouse stayed home to care for child during first two years of his life.

Buchanan v. Buchanan
No. 1D16-4492
Florida District Court of Appeal, First District
September 13, 2017

During a pending dissolution action, the trial court issued a temporary support order requiring the husband to pay family and household expenses, and requiring a non-joined limited liability company in which the husband was a partner to pay the wife a weekly "salary." Husband appealed. The appellate court held that the order requiring husband to pay family and household expenses lacked statutory findings, and the court had no authority distribute assets of non-joined LLC. While the trial court has the authority to distribute a spouse’s interest in company stock of a non-joined company in a dissolution of marriage action, it does not have the authority to distribute assets of the non-joined company itself.

Lockamy v. Lockamy
No. S17A0966
Georgia Supreme Court
September 13, 2017

After the entry of a divorce decree that incorporated a settlement agreement granting the wife 40% of the husband’s military retirement benefits, and that awarded such benefits to wife as part of the equitable division of marital property, the navy determined that the benefits in question were actually disability benefits that could not be divided and the husband stopped making the payments. Six years later, the wife filed a motion to reform the divorce decree to provide for permanent periodic alimony instead. The Supreme Court held that the trial court lacked authority to modify the divorce decree so as to award former wife permanent periodic alimony, even if the parties’ intent that the wife receive a portion of the husband’s navy retirement benefits as part of the equitable division of marital property was thwarted by the navy’s determination that the benefits in question were actually disability benefits that could not be divided, because the original divorce decree did not award wife alimony, which precluded her from seeking to modify such an award, and wife failed to seek relief from the decree within the three-year time period for filing a motion for relief from judgment.

In Re Marriage of Broesder
No. DA 16-0600, 2017 MT 223
Montana Supreme Court
September 12, 2017

The standing master was required to consider the tax consequences of the division of marital estate, which would likely require the sale of ranch, when dividing marital property in dissolution proceeding; the sale of ranch would trigger tax consequences, and the sale of ranch was likely as the record failed to establish there were available assets in the marital estate for husband to pay wife for her share of the marital estate.

Legislative Watch

SB 179 would eliminate the 6 month waiting period after a divorce for a party to remarry. Similar legislation is intended to be introduced in assembly. The Family Law Section of the Wisconsin State Bar has not taken a position on this legislation as of this time.

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Also, the Family Law Section of the State Bar is proposing legislation to clarify and modify parts of the current removal law, which is Wis. Stats. §767.481.

Business Law Valuations

The following 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 Court Looks to ‘Husband’s Toil’ in Goodwill Analysis

A recent Washington state divorce case included a noteworthy discussion of goodwill where the owner spouse’s business arguably was separate property. Divorce experts will notice that the court’s goodwill analysis has much in common with an appreciation analysis.

Readers who are familiar with BVR’s Goodwill Jurisprudence Chart know that Washington is a community property state and professional goodwill is subject to division. The focal point in the case was the husband’s CPA firm, which he had set up before the marriage. The issue was whether the marital estate could claim any interest in the business.

Excess earnings approach: The short answer is yes. One theory — successful — was that the business had lost its character as separate property during the marriage. Another winning argument for the nonowner spouse was that most of the business’s value lay in the husband’s professional goodwill. Excess earnings valuations by the parties’ experts confirmed this claim. The experts, and the husband himself, also testified that, during the marriage, the husband worked continuously to renew his clientele. The trial court found, and the appeals court affirmed, that any goodwill in the business was acquired through the husband’s "toil," so the goodwill, therefore, was community property.

The husband’s contention that, early on (presumably before the marriage), he had created systems that enabled the business to run itself lacked support in the record, the appeals court found.

A digest of In re Marriage of Vandal, 2017 Wash. App. LEXIS 1459 (June 19, 2017), and the court’s opinion, will be available soon at BVLaw.

Family Law Related Articles & Publications

The Winter, 2017 edition of the Family Law Quarterly, (Vol. 50, No. 4) is the annual Review of the Year in Family Law issue. Articles include:

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

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The following law review articles 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.

Katharine K. Baker, Quacking like a Duck? Functional Parenthood Doctrine and Same-sex Parents, 92 Chi.-Kent L. Rev. 135 (2017)

Teri Dobbins Baxter, Marriage on Out Own Terms, 41 N.Y.U. Rev. L. & Soc. Change 1 (2017)

June Carbone, Naomi Cahn, Parents, Babies, and More Parents, 92 Chi.-Kent L. Rev. 9 (2017)

June Carbone, Naomi Cahn, Nonmarriage, 76 Md. L. Rev. 55 (2017)

Susan Saab Fortney, Collaborative Divorce: What Louis Brandeis Might Say about the Promise and Problems?, 33 Touro L. Rev. 371 (2017)

Leslie Joan Harris, Obergefell’s Ambiguous Impact on Legal Parentage, 92 Chi.-Kent L. Rev. 55 (2017)

Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent L. Rev. 87 (2017)

Jeffrey A. Parness, David A. Saxe, Reforming the Processes for Challenging Voluntary Acknowledgments of Paternity, 92 Chi.-Kent L. Rev. 177 (2017)

Margaret Ryznar, The Empirics of Child Custody, 65 Clev. St. L. Rev. 211 (2017)

See also Volume 29, Number 2 of Journal of the American Academy of Matrimonial Lawyers (2017), devoted to Child Support, with articles by Margaret F. Brinig, Leslie Joan Harris, John E.B. Myers, Margaret Ryznar, Jane C. Venohr, and Marcia Zug.

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.