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 VOL. 6 NO. 4 APRIL 2005 |
In this Issue
A Word from Gregg Herman
Brookfield office and upcoming seminarsWisconsin Courts Updates
Effect of cohabitation on maintenance; Tracing non-divisible propertyDecisions Across the Nation
Lottery winnings, Social Security disability, Imputing rate of return on inheritance assets, Waiver of spousal support in antenuptial agreement and more.Family Law & Mental Health
Impact of remarriage on childrenAdoption
Issue preclusion and claim preclusion in TPR casesFamily Law Mediation
Preparing Your Clients to Participate in the Mediation Process
With the construction of the Marquette Intersection beginning to get into stride, our law firm has made arrangements for office space in Brookfield for any clients or potential clients who do not want to drive into downtown.
All appointments for our Brookfield meeting office can now be made by calling (262) 641-5632.
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Kirsten Keegan from our office will be a speaker at the State Bar’s “GAL Training 2005 - Basic & Advanced”, being present live in Madison on Tuesday, April 26, 2005 through Wednesday, April 27, 2005 and on video on Tuesday, June 7, 2005.
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As reported last month, CPA Gregory J. Ksicinski, Garrick Zielinski and I will present “Tax Aspects of Divorce in Wisconsin”, a CLE seminar for the National Business Institute, on June 2, 2005. The program will be at the Manchester East Hotel at 7065 N. Port Washington Road in Fox Point.
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Hot off the press, the District IV Court of Appeals issued their opinion in Woodard v. Woodard, No. 03-3356 (Ct. App. Mar. 31, 2005) (recommended for publication), which reversed and remanded for reconsideration the maintenance award to the wife contained in the judgment of divorce rendered by the Honorable Dennis C. Schuh (Juneau County Cir. Ct.), because "the circuit court erred by disregarding evidence of financial benefits [the wife] was receiving, at the time of the divorce, from a recently commenced cohabitation relationship."
The pertinent facts of the case, as succinctly presented in the opinion, are as follows (footnote omitted):
¶2 Jon and Pam Woodard were married in 1994. Jon filed for divorce in February 2003. At trial, in October 2003, the parties primarily contested maintenance and child support.
¶3 In the course of taking evidence about Pam’s financial situation, the circuit court heard Pam’s testimony about financial benefits she was receiving from her boyfriend. Pam and her boyfriend, a member of the military, lived together, apparently during the pendency of the divorce, before he began a tour of duty in Afghanistan. At the time of the divorce trial, Pam’s boyfriend was still in Afghanistan. His military pay was being deposited into a joint bank account he shared with Pam. Pam used the account to pay rent and other bills.
¶4 The circuit court disregarded evidence of the benefit Pam received from her boyfriend’s income and awarded maintenance to Pam in the amount of $667 per month for a term of 30 months. The court also awarded child support, but neither party contests that award.
According to the opinion, the circuit court disregarded the financial impact of the cohabitation because it was a new relationship, the boyfriend had no obligation to support the wife and the relationship could end at any time at the whim of the boyfriend. The circuit court conceded that it would have considered the impact if the cohabitation had been longer term, but that it would be "tenuous" to view the boyfriend's income as a basis to deny maintenance.
The court of appeals concluded that the circuit court either made an error of law (i.e. believing that a newly-established cohabitation cannot be considered in a maintenance determination) or a factual error (i.e. the tenuous nature of the wife's cohabitation [there reportedly is no evidence in the record to support that proposition]). The court of appeals reversed and remanded for the circuit court to reconsider the maintenance award.
Notable Points:
1. The court of appeals expressly held that the cohabitation issue (and thus, the applicable case law) applies both pre and post-judgment.
2. The court rejected the wife's claim that because the boyfriend was in Afghanistan at the time of the divorce that they were not "cohabitating," holding instead that it is the financial benefit, not physical presence, that is the primary issue. [Does this open the door for maintenance modifications based upon the "Sugar Daddy" boyfriend that does not live with the former wife?]
Full Opinion (PDF)
The Petitioner-Appellant Jon R. Woodard was represented on appeal by: Daniel M. Berkos (Mauston)
The Respondent-Respondent Pammy L. Woodard was represented on appeal by: Fred D. Hollenbeck, III (Mauston)
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In a special FLU bulletin, we reported that the District IV Court of Appeals issued their opinion in Derr v. Derr, No. 03-2181 (Wis. Ct. App. Mar. 17, 2005) (recommended for publication).
We believe that this will be a lodestar case for many years to come in divorces with inherited and gifted property. Look for our full analysis of the case in upcoming issues of the Wisconsin Law Journal.
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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.
Bronson v. Swenson
No. 2:04-CV-21
United States District Court
District of Utah
February 25, 2005The Supreme Court’s decision in Lawrence v. Texas does not render Utah’s prohibition against polygamy unconstitutional. All Lawrence did, the court reasoned, was hold that the state cannot intrude on private consensual behavior. It did not involve whether the government must give formal recognition to any relationship that persons might seek to enter.
Coordination Proceeding
Judicial Council Coordination Proceeding No. 4365
California Superior Court, County of San Francisco
March 14, 2005Family Code Section 300, which provides that marriage is between a man and a woman, and Section 308.5, which provides that California will recognize as a marriage only a union between a man and a woman, violate the California Constitution.
Dombrowski v. Noyes-Dombrowski
273 Conn. 127
Connecticut Supreme Court
March 29, 2005The wife appealed from the order of the trial court that awarded the husband a nonmodifiable one half of the wife's future lottery payments, minus husband's current salary, and classified that money as alimony for the purpose of allowing wife to take a tax deduction for it. The Supreme Court held that although trial court would have been within its discretion in treating wife's lottery winnings as marital property, it was also within the court's discretion in treating the lottery award as an income stream and the wife's payments from it as alimony.
Lucas v. Lucas
88 Conn. App. 246
Connecticut Court of Appeals
March 29, 2005The Social Security Administration's finding that the father was disabled from work for purposes of receiving social security benefits was not binding on the trial court in its factual determination that ex-husband was not working to his earning capacity for child support modification purposes; and thus, the trial court's finding that ex-husband was not working to his earning capacity, for child support modification purposes, was not clearly erroneous.
Christensen v. Christensen
No. A-3290-03T3
New Jersey Superior Court, Appellate Division
March 16, 2005The biological father signed a consent to terminate parental rights so the mother’s new husband could adopt the child. The step-father, however, never went through with the adoption, and seven years later, the mother sued the father for back child support. The court held that while the mother and her husband may be estopped from demanding support from the biological father, further evidence was needed as to whether the father had demonstrated “detrimental reliance” in order to prove estoppel.
Overbay v. Overbay
No. A-1818-02
New Jersey Superior Court Appellate Division
March 18, 2005Imputation of income to ex-wife in amount of $80,000 per year by attributing a 7.4 percent rate of return on her inheritance assets, in determining appropriate alimony award, was erroneous.
Hennefeld v. Township of Montclair
No. 007682-20
New Jersey Tax Court
March 15, 2005A same-sex couple, one of whom was an honorably discharged disabled veteran, sought a 100% disabled veteran's property tax exemption with respect to their residential property, after the couple obtained a license and certificate of civil union under Vermont law and were then married under Canadian law. The county board of taxation denied exemption. The New Jersey Tax Court held that the Canadian marriage could not be afforded comity in New Jersey, and a civil union in Vermont did not mandate New Jersey's recognition of certain rights reserved to married persons, such as ability to hold title to property as tenants by the entirety. However, the couple was eligible for a 100% disabled veteran's property tax exemption upon registration as domestic partners under Domestic Partnership Act (DPA).
Sanford v. Sanford
2005 SD 34
South Dakota Supreme Court
March 9, 2005An antenuptial agreement’s provision wherein the wife waived all alimony and/or spousal support was void as against public policy.
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The following case is provided courtesy of FLU subscriber Marsha Mansfield, a Clinical Assistant Professor at the University of Wisconsin Law School. Thanks, Marsha!
Crowley v. McKinney
F.3d 2005 WL 566728
United States Court of Appeals, 7th Cir.(Ill.)
Mar 11, 2005A divorced noncustodial father does not have a constitutional right to participate in his children's public school education, the U.S. Court of Appeals for the Seventh Circuit ruled Mar. 11. Rejecting the father's claim that he has a protected liberty interest in such participation and cannot be deprived of it without due process, the court said his claims "founder on the scope of the federal constitutional right over the education of one's children"
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The following is provided courtesy of Contributing Editor Christine Harness, Phd. Dr. Harness is in private practice, specializing in individuals and couples therapy and is an approved parenting course provider for Milwaukee County. She can be reached at (414) 961-3208
An article by Mavis Hetherington entitled "Coping with family transitions: Winners, losers, and survivors" in Child Development (Vol. 60) discusses the impact of remarriage on children, identifying that a large percentage of divorced parents will remarry, usually within 3-5 years post-divorce.
The consequences of remarriage on children are similar to those following divorce, but the recovery period is often longer, particularly for older children and adolescents.
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The following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of The Schroeder Group, Waukesha Wisconsin. Attorneys Hayes and Neary are members of the American Academy of Adoption Attorneys and handle adoption, foster care and surrogacy cases throughout the State of Wisconsin. They can be reached at (262) 798-8220 and via their Web Site.
The old adage, "If at first you don't succeed, try, try again" may be great advice to someone attempting to reach an elusive goal, but not for those attempting to get results through a court of law. The doctrines of issue preclusion and claim preclusion limit the kicks at the cat afforded litigants. The District III Court of Appeals recently held that these doctrines are applicable in termination of parental rights cases. In re Genesis M., 2005 Wisc.App. LEXIS 162, decided February 23, 2005.
A TPR petition was filed against Terrance M., father of Genesis, on December 26, 2002. Following a jury trial, the County moved to dismiss the petition due to the jury's findings. Eight days following the verdict, the County again filed a TPR petition, citing additional grounds for the termination. The circuit court found that there was no new evidence to present and therefore dismissed this petition. Eleven months later, the County once filed a petition against Terrance. This time the court found that issue preclusion does not apply in termination cases and refused to dismiss the case.
The Court of Appeals held otherwise. The doctrines of issue preclusion and claim preclusion are applicable in termination of parental rights cases. However, since the best interests of children are involved, claim preclusion should not be as strictly applied in termination cases as it is in other matters. In other words, if the facts have changed substantially, a petition for termination of parental rights can be brought more than once. The case was sent back to the circuit court for a determination of whether preclusion ought to be applied under the facts of that particular case.
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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.
Preparing Your Clients to Participate in the Mediation Process
I have found that one of the most effective tools for supporting client's success in mediation is what I call the "negotiations help list." It is a written list of behaviors that increase the likelihood of a high quality mediation experience. The "help list" communicates to the parties that it is their responsibility to interact with each other in very different ways than they have in the past. I review this with clients prior to beginning the mediation and ask for permission to "call" them on things they do or say that are not consistent with the "help list." In his article, "Preparing For Your Mediation", Tom Sebok from the University of Colorado/Boulder, offers his excellent rendition of a "help list" for mediation clients. Mr. Sebok's list identifies the goal of mediation and what mediation is not, the role of the mediator and how conversation is different in mediation. He also explains how to seek mutual benefit, offer tactful honesty and understand the other person. Mr. Sebok lists common communication mistakes and provides examples for what works better.
If you don't already have a "negotiations help list" of your own, Mr. Sebok's article would be a good place to start.
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Our Contributing Editors
Atty. Kathy Baird (Mediation)
CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
Prof. Charles Kindregan, Suffolk University Law School
Dr. Christine Harness, Ph.D., Milwaukee (Mental Health)
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)
Atty. Stephen Hayes (Adoption)
Atty. Elizabeth Neary (Adoption)We thank them for their contributions!
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