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 VOL. 5 NO. 4 APRIL 2004 |
In this Issue
A Word from Gregg Herman
Condolences to Charlie PhillipsWisconsin Courts Updates
Maintenance Modification CaseDecisions Across the Nation
Hague Convention case, Unjust enrichment for retirement plan payout; Separation agreement is not a QDRO; Biological versus psychological parentage; UIFSA; Irrevocable trust is not property; Constitutionality of child support guidelines; Availability of personal injury annuity for child support and much more.Legislative Watch
Division of Wisconsin Deferred Compensation ProgramEmployee Benefits
Failure to Notarize Spousal WaiverBusiness Valuations
Discounts on Value of Limited PartnershipFamily Law Mediation
The Emotional Landscape of DivorceFamily Law Related Articles and Publications
Second Edition of Competing Interests
Saturday, the world lost a wonderful woman. Jeri Phillips, wife of Waukesha family law attorney Charlie Phillips, died after battling cancer for many years. As a family law mediator and therapist in Waukesha County, she will be sorely missed. We express our deepest condolences to Charlie and their daughter, Sarah.
A celebration of Jeri's life will be held at 2:00 p.m. on Sunday April 18, 2004 at the Country Inn, 2810 Golf Rd., Waukesha. Memorials in Jeri’s memory can be made to Waukesha Women's Center Inc. Endowment Fund, 505 N. East Ave., Waukesha, WI 53186.
As we reported in a special bulletin, the Supreme Court of Wisconsin issued their opinion in Rohde-Giovanni v. Baumgart, 2004 WI 27, affirming last year's decision of the District IV Court of Appeals, 2003 WI App 136, which affirmed the order of Judge Patrick J. Fiedler (Dane County Cir. Ct.) that converted the wife's maintenance award from an indefinite term to a limited term.
Please look for our analysis of this case in an upcoming issue of the Wisconsin Law Journal.
Full Opinion (PDF)
•••
Both court of appeals cases which held that there is no constitutional right to 50-50 placement have been ordered published. They are: Arnold v. Arnold, 2004 WI App 62 (petition for review filed) and Lofthus v. Lofthus 2004 WI App 65.
For a more detailed description of these cases, see the March 2004 FamLawUpdate.
•••
Also in March, we reported on State v. Denis L.R., 2004 WI App 51 (petition for review filed). Our analysis of the decision, as published in the Wisconsin Law Journal is available on our Web site.
Decisions Across the Nation The following cases are provided courtesy of Contributing Editor Laura W. Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. Please visit her website or drop her an e-mail.
Furnes v. Reeves
No. 03-12826
United States Court of Appeals 11th Circuit
March 10, 2004A father’s right to veto his ex-wife’s relocation constitutes a "right of custody" under the Hague Convention. Thus, the trial court should have granted the father’s petition for return of the child to Norway. (Ed. Note: Three other circuits, the Second, Fourth, and Ninth, took the opposite position. Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), cert. denied 124 S.Ct. 805 (2003); Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002).)
North American Coal Corp. Retirement Savings Plan v. Roth
No. A4-03-124
United States District Court, District of North Dakota
March 5, 2004A retirement savings plan is entitled to recover, under an unjust enrichment theory, benefits it wrongfully paid to a participant instead of the participant’s ex-wife.
ERISA does not preempt state law pursuant to Egelhoff, and a party may change a life insurance beneficiary by will without changing the beneficiary designation on the plan itself.
MacKay v. Estate of Harris
No. 03-150-B-W
Maine Supreme Court
February 25, 2004An agreement between and husband and wife, contained in their separation agreement, to leave the husband’s pension plan to the couple’s adult children did not qualify as a QDRO; thus, the adult daughters could not enforce the agreement against the plan.
In re Jesusa V.
No. S106843
California Supreme Court
March 1, 2004An incarcerated father may be ordered to pay child support out of marital and non-marital assets, even though support is figured on net income. The court reasoned that that provision does not limit the court as what assets can be reached to insure the payment of support.
Crosby v. Grooms
No. A100718
California Court of Appeals
First Appellate District
February 26, 2004In a modification proceeding under UIFSA, the forum state must apply its own child support guidelines.
In re Guinn
No. 02-CA-1775
Colorado Court of Appeals
February 26, 2004A husband’s income interest in an irrevocable trust created by his parents during the marriage was not "property" subject to equitable division, where the beneficiary has no property interest or rights in the undistributed funds.
Ward v. McFall
No. S03A1365
Georgia Supreme Court
March 1, 2004The Georgia Child Support Guidelines are not unconstitutional for violating the federal mandate concerning child support guideline formation and review. If the state has not reviewed the guidelines in the exact manner as proscribed by federal law, it has not done "major damage" to the federal interest.
In re L.A.
No. 71A03-0310-CV-394
Indiana Court of Appeals
February 26, 2004After a child has reached majority and emancipated, a court may not use its contempt power to enforce an order for child support arrearages.
In re Jerome
No. 2003-380
New Hampshire Supreme Court
March 8, 2004"Gross income" for purposes of child support includes personal injury annuity payments.
Rhoades v. Rhoades
No. 23663
New Mexico Court of Appeals
February 17, 2004Where a husband reduced his military pension by increasing his disability pay benefit, the wife was entitled to spousal support to make up the difference.
Gutierrez v. Connick
No. 23601
New Mexico Court of Appeals
February 17, 2004The putative paternal grandparents of a child born out of wedlock have standing to seek a determination of the paternity of their son in order to then asset grandparent visitation rights.
Department of Human Services v. Chisum
No. 97479
Oklahoma Court of Appeals
February 25, 2004A man who signed an acknowledgment of paternity without first having a genetic paternity test, in reliance on the mother’s assertion that he is the father, is not bound by res judicata, and may move to set aside the judgment of paternity on the grounds of mistake.
Arnold v. Arnold
No. 183 MDA 2003
Pennsylvania Superior Court
March 8, 2004The factors a court should consider when considering a request to locate are the same whether the move is out of state or out of country.
Ewing v. Ewing
No. 569 MDA 2003
Pennsylvania Superior Court
February 27, 2004When considering an obligor’s petition for a downward modification of child support, the trial court is not bound by the state’s Unemployment Bureau that he was not fired for cause. Further, if the obligor is fired for cause, the obligor must establish efforts to restore lost income.
Legislative Watch In mid-March, Governor Doyle signed 2003 Wisconsin Act 160, which permits a qualified domestic relations order to divide a participants interest in the Wisconsin Deferred Compensation Program. The participants are most typically State of Wisconsin and UW system employees, as well as employees of local municipalities who elect to participate in the program. Nothing contained in this act allows a QDRO to divide previously undividable pension plan benefits.
Note: This act takes effect March 31, 2004, but by its terms is made retroactive to any marriage terminated after December 1, 2001.In March, reported on the enactment of 2003 WI Act 130, regarding the domestic violence and joint legal custody as well as the role of the GAL. Our analysis of the law as published in the Wisconsin Law Journal is available on our Web site.
Employee Benefits The following is provided courtesy of Contributing Editor Atty. William Brown of DATAIR Employee Benefit Systems, Inc. Attorney Brown can be reached via e-mail.
The 7th Circuit awarded pension benefits to surviving spouse because his waiver of a survivor annuity was neither witnessed nor notarized. The Court also upheld a penalty of $35,000 against the McGraw Hill plan, plus attorney's fees, as punishment for 2-year delay in providing requested documents
The following is provided by Contributing Editor Timothy P. Muehler, JD, CPA/ABV, CVA, Clifton Gunderson LLP, Certified Public Accountants. Tim can be reached via e-mail.
Estate of Lea K. Hillgren
T.C. Memo. 2004-46
March 3, 2004This case validates the importance of creating and operating a Limited Partnership that will be recognized by the courts. This case failed the requirements of Section 2036, therefore the courts disallowed discounts on the Limited Partnership's real estate assets. However, due to a prior business loan agreement, some of the Limited Partnership assets were discounted. The discounts applied were lack of control, lack of marketability, and lack of voting rights.
To read a summary of the full decision, visit the Clifton Gunderson Web site.
The following is provided courtesy of Contributing Editor Kathleen Baird, a family law attorney and mediator in Wauwatosa, Wisconsin. She can be reached via e-mail.
The Emotional Landscape of Divorce
It is helpful for mediators to be aware of the emotions associated with the three basic patterns of divorce. For it is these emotions which usually drive the negotiations. The Mutual Agreement pattern of divorce, where both spouses are unhappy and jointly conclude that they will be happier apart, is a dynamic in which couples usually settle their differences quickly and amicably. The most challenging mediation cases are Unilateral Divorces in which one spouse has chosen to end the marriage to the dismay of the other or where there is the involvement of a third party; referred to as the Compounded Divorce Pattern. These situations often create a power imbalance which favors the leaving spouse because this person has had time to process his or her emotions and decision while the other partner feels surprised, unprepared, hurt, abandoned and betrayed. This imbalance, along with the blaming and counter blaming that results and impedes productive negotiations, arises from the need of the spouses to each be viewed as good, moral and worthwhile human beings. In order to neutralize the leaving partners need to demonize the other spouse, the leaving partner must be reassured that his or her choice doesn't make them a morally unsound person. Counter blame from the left partner can be addressed by reassuring the left partner that his or her worth is not determined by the actions of the leaving spouse. A mediator's ability to validate the emotions of the partners, offer them acceptance and verbalize trust in their ability to reach a mutually beneficial agreement, are powerful techniques for managing the emotions of divorce and maximizing the potential of the mediation process.
From "Psychological Aspects of Divorce: A Primer for Mediators and Collaborative Lawyers", by Offra Gerstein on Mediate.com.
"The courts today are struggling with how to resolve the changing face of social relationships. Complicating divorce and custody cases are issues involving third-parties, qualified testimonial privileges, and interspousal torts, as well as the numerous questions resulting from alternative
John C. Mayoue addresses these thorny issues in his book, Balancing Competing Interests in Family Law Mayoue examines how the rights of these changing relationships are being defined by the courts and by the states. "Balancing Competing Interests in Family Law" provides a completely practical resource for these thorny issues. It is clearly written and logically organized, replete with sidebars, practice pointers, charts, glossaries, sample cases, and other necessary information. The book is divided into three topic areas:
relationships (including cohabitation, domestic partnerships, stepparent and grandparent rights) and the legalities of infertility.
Price: $74.95 for Section of Family Law members / $89.95 for nonmembers. To learn more about this book and order a copy, visit the ABA Publishing Web site.
Our Contributing Editors
Atty. Kathy Baird (Mediation)
CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
Prof. Charles Kindregan, Suffolk University Law School
Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
CPA Timothy P. Muehler, Clifton Gunderson LLP
Dr. Sanford Portnoy, Boston, MA (Mental Health)
CPA Everett Stone (Taxes and business valuations)
Scott J. Wildman, CPA/ABV, CVA of V/B Business Valuations, Inc.
Atty. William Brown (Employee Benefits)We thank them for their contributions
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