Back to 2004 Archive

VOL. 5 NO. 2 FEBRUARY 2004

	A Word from Gregg Herman Upcoming CLE Programs
	Wisconsin Courts Updates Oral Arguments in Rohde-Giovanni v. Baumgart
	Decisions Across the Nation IRA Withdrawal; Grandparent Visitation Statute; Confidentiality of Pharmacy Records in Divorce; Estoppel from Challenging Adoption and More
	Family Law Online Pet Custody
	Tax-Tip Corner Marital Agreement Valid to Avoid Tax Debt; Value of Bank Holding Company and Appropriate Discounts
	Family Law Related Articles and Publications Family Law Advocate; Family Law Quarterly

A Word from Gregg Herman... Two great family law programs are coming up. First, on March 18, the annual American Academy of Matrimonial Lawyers "Divorce-Wisconsin Style" in Milwaukee. For more information, including to download the brochure, visit the AAML Wisconsin Web site. Although Milwaukee is certainly more exciting than Puerto Rico (ahem!), the ABA FLS spring meeting will be in San Juan from April 28 to May 1. For more information and to download the brochure, visit the Family Law Section of the ABA Web site. And, if you do think Milwaukee is exciting, the ABA FLS fall meeting in October will actually be in Milwaukee! Gregg

The Wisconsin courts continue their inexplicable streak of not deciding any family law cases recommended for publication. The last case recommended for publication was decided last September.

So, if you are in withdrawal, we refer you to the Supreme Court website where you can listen to two outstanding family law attorneys argue a case of significant importance. On January 14, 2004, Madison attorneys Linda Roberson and Steph Beilke argued Rohde-Giovanni v. Baumgart. For our description of the case, see the July issue of FamLawUpdate. To listen the arguments, visit the Supreme Court's 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.

Davis v. Cox
No. 02-1962
United States Court of Appeals, First Circuit
January 15, 2004

The state’s domestic relations law that prohibits withdrawals from an IRA entitled the wife to a constructive trust over funds withdrawn by the husband, despite the husband’s intervening bankruptcy.

Full Opinion

Sullivan v. Sapp
No. 02-2490
Florida Supreme Court
January 15, 2004

A Florida grandparent visitation statute, 61.13(2)(b)2.c, is unconstitutional on its face because it does not require a showing that the child will be harmed if visitation is denied. Thus, a woman whose daughter was killed was not entitled to visitation of her grandchild.

Full Opinion (PDF)

In re Peters-Farrell
No. 1-02-2140
Illinois Court of Appeals, First District
December 31, 2003

Pharmacy records are "records" that may not be disclosed in a divorce under Illinois’s Mental Health and Developmental Disabilities Confidentiality Act.

Full Opinion

In re Minix
No. 4-03-0479
Illinois Court of Appeals Fourth District
December 31, 2003

The court affirmed the trial court's refusal to prohibit the father from taking the parties’ child to his church or teaching her his religious practices when neither evidence of doctrinal differences nor of any harm to the child was presented.

Full Opinion

Estate of Rowley v. MacInnes
No. 241649
Michigan Court of Appeals
January 8, 2004

When is a waiver a waiver? In this case, the court held that a man’s wavier to the proceeds of his wife’s ERISA-governed life insurance was sufficient to preclude him from the benefits when she died, even though he was still listed as a beneficiary. ERISA preemption under Egelfhoff did not apply, because the issue was not whether the state statute was preempted.

Full Opinion (PDF)

In re Adoption of S.A.J.
No. 163 MAP 2002
Pennsylvania Supreme Court
December 17, 2003

After denying paternity in a support proceeding 11 years earlier, a putative father is estopped from challenging adoption of that child.

Full Opinion (PDF)

::: News Item :::

A New Jersey Senate passes domestic partner law that would give gay and lesbian couples many of the same rights as legally married couples.

Full Story

Family Law Online

Pet Custody.com

Few issues in family law are more emotional than custody - not about the kids, silly! We mean about the family pet! Fortunately, there is a website to help us, included sample visitation forms.

Tax-Tip Corner

The following is provided courtesy of Contributing Editor Scott B. Franklin, Certified Public Accountant and Attorney. You can reach Scott via e-mail.

Marital Agreement Valid to Avoid Tax Deb

In what it termed a case of first impression, the US Tax Court in December, 2003 upheld the use of a premarital opt out agreement to insulate the wife from the husband's tax deficiency. The case is Downing, TC Memo 2003-347, and is available at www.ustaxcourt.gov (Beware! It's 75 pages long in PDF format).

The couple resided in Louisiana, a community property state. Prior to their wedding, at counsel's recommendation, the spouses executed what we would term an Opt Out agreement agreeing to keep their property, income, and debts separate. The document was filed with the appropriate parish/county office.

They filed married separate tax returns and only reported his or her own items on their own return. Husband had major tax deficiencies including fraud penalties. The Court determined that the requirements of the agreement were met by recording it and acting in accordance with its terms. Thus, it was valid for federal tax purposes and wife was not liable for husband's delinquencies.

Hence, you should always file your marital income reclassification agreements with the IRS and WDR as soon as possible after executing them and remind you clients to keep property separate, etc. to ensure the viability of the instrument in protecting the parties from each other and the tax departments.

•••

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 Mildred Green v. Commissioner
T.C. Memo. §§2003-348
United States Tax Court

This case deals with the allocation of estate taxes to a charitable Foundation based on the doctrine of equitable apportionment and to whom the Generation Skipping Tax was chargeable, the decedents grandchildren or the charitable foundation. The Tax Court also determined the proper value for stock in a closely held Missouri bank holding company. They allowed a 17% discount for lack of control and a 35% discount for lack of marketability.

Full Text (PDF)

To read a summary of the full decision, visit the Clifton Gunderson Web site.

Family Law Related Articles & Publications

The Winter, 2004 issue of the Family Advocate features "The Custody Case: From Intake to Trial." Article include:

• "When a Custody Client Comes Knocking", by Sondra Harris and Sharon L. Corbitt
  
  
• "The Current Face of Best Interests", by Jeff Atkinson
  
  
• "Custody Jurisdiction", by Kathleen A. Hogan
  
  
• "Blueprint for a Custody Evaluation", by Jean E. LaCrosse

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

•••

The Fall, 2003 edition of the Family Law Quarterly includes the following articles:

• "Judicial Independence in Family Courts: Beyond the Election-Appointment Dichotomy", by Judith D. Moran
  
  
• "Pro Se Justice and Unified Family Courts", by Deborah J. Chase
  
  
• "A Mental-Health Professional and Judge’s Journey; Providing Responsible Parenting, Giving Children a Voice", by Risa Garon & Judge Cypert Whitfill

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

We thank them for their contributions!