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 VOL. 6 NO. 2 FEBRUARY 2005 |
In this Issue
A Word from Gregg Herman
Jim Podell; New Google search for FamLaw Update archivesWisconsin Courts Updates
Ability to pay "lying-in" costs in paternityDecisions Across the Nation
Hague case, Opposite-sex marriage limitation, tortious interference with custody and more.Family Law & Mental Health
The "father-involvement hypothesis"Business Valuations
Bank stock valuationTax Tip Corner
New definition of dependentsRetirement Benefits
Nunc pro tunc QDROFamily Law Mediation
Mediator Certification SurveyFamily Law Related Articles and Publications
American Journal of Family Law
As we go to press, we are greatly saddened to announce the passing of Jim Podell, who died on January 29, 2005. Jim was a leader in almost every family law organization, from the State Bar FLS to the ABA FLS. He was editor-in-chief of the Wisconsin Journal of Family Law for many years. Jim was an outstanding lawyer and a wonderful person who will be greatly missed. We express our deepest condolences to Peggy and her family.
Google Search for FLU Archives
Thanks to our webmaster, Pat McKenna, who does all the technical stuff to get FLU out each month, we now have Google search capability for the FLU archives.
This is as good a time as any to thank Pat for all his services and to recommend him to any needing website development. He also designed and manages our office website, For more on Pat's services visit his company Web site, MojoWeb Productions.
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As reported in a special FLU bulletin in January, the Supreme Court of Wisconsin issued their opinion in In re the Paternity of John R. B., 2005 WI 6, which dealt with child support arrearages. For a summary and a link to the entire opinion, please go to our bulletin archives.
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In mid-January, the District III Court of Appeals released their opinion in Rusk County DHHS v. Thorson, No. 04-2267 (Wis. Ct. App. Jan. 11, 2005) (recommended for publication), which reversed the order of Judge Frederick A. Henderson (Rusk County Cir. Ct.) that obligated Leonard Thorson to pay, though held in abeyance due to his undisputed inability to pay, more than $4,300 in Wis. Stat. § 767.51(3)(e) lying-in expenses for his children.
The opinion, authored by Judge Gregory A. Peterson, concluded that the plain language of Wis. Stat. § 767.51(3)(e) renders the trial court's authority to order a father to contribute toward lying-in expenses contingent upon the father's ability to pay at the time of the entry of the order. Accordingly, Thorson's inability to pay the lying-in expenses precluded the trial court from ordering his repayment - even an order held in abeyance. However, the court of appeals concluded, "When and if a father has the ability to pay, the court may order him to pay or contribute to the lying-in expenses. If the father’s ability to pay changes, the order may be modified. Wis. Stat. §§ 767.51(6) and 767.32."
Full Opinion (PDF)
Respondent-Appellant Leonard M. Thorson was represented on appeal by: Carol A. Conklin (Ladysmith)
Petitioner-Respondent Rusk County DHHS was represented on appeal by: Michael P. Weiler (Ladysmith)
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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.
Sealed Appellant v. Sealed Appellee
No. 04-10656
United States Court of Appeals, Fifth Circuit
December 15, 2004Even though the child was born out of wedlock and there was no custody order concerning the child, the father was "exercising rights of custody" under the Hague convention, and thus the children were to be returned to their place of habitual residence, Australia.
Embree v. Embree
No. B174022
California Court of Appeals, Second District
Division Seven
December 29, 2004A former wife's attempt to enforce the provisions of a separation agreement whereby the husband was to establish a lifetime annuity for the wife was time barred.
Schauer v. Mandarin Gems of California, Inc.
No. G033254
California Court of Appeals, Fourth District, Division Three
January 12, 2005A woman has standing, as a third party beneficiary to a sales contract, to sue a jeweler for selling a diamond ring to her fiancé (now former husband), representing it was worth $43,000 when it was worth only $23,000.
Morrison v. Sadler
No. 49A02-0305-CV-447
Indiana Court of Appeals
January 20, 2005Indiana's statutory limitation of marriage to opposite-sex couples does not violate the provisions of the Indiana Constitution.
Wolf v. Wolf
No. 140/02-1292
Iowa Supreme Court
January 7, 2005A court may award actual and punitive damages for tortious interference with custody rights.
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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
A recent article in the August 2004 Journal of Marriage and Family fails to support a previously-suggested hypothesis that families with a daughter have a higher divorce risk than families with a son. The "father-involvement hypothesis" claimed that, on average, fathers play a greater role in raising sons and therefore spend more time with them than with daughters, resulting in a higher degree of fathers' involvement with child rearing and a lower risk for divorce. The research effort described in this article (with data collected from 16 European countries, Canada, and the United States) does not support a general hypothesis that sons contribute more to marital stability than daughters.
The full article can be viewed online by contacting The National Council on Family Relations via e-mail.
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The following is provided by Contributing Editor Timothy P. Muehler, JD, CPA/ABV, CVA, Clifton Gunderson LLP, Certified Public Accountantsy. You can reach Tim via e-mail.
Estate of Helen Noble v. Commissioner
TCM 2005-2
January 6, 2005This case deals with the valuation of closely held bank stock in an estate tax matter. The Tax Court valued the decedent's interest at its subsequent sales price, rejecting the appraisals prepared as of the date of death.
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The following is provided courtesy of Contributing Editor Scott B. Franklin, Certified Public Accountant and Attorney. You can reach Scott via e-mail.
Practitioners should be aware of recent tax law changes (effective in 2005 and later years) which affect the definition of dependents. The Working Families Tax Relief Act of 2004 substantially amended Section 152 of the tax code which defines dependents. Changes include the deletion of the Gross Income Test. For children of divorced taxpayers, the rules are considerably revised. One major change is allowing a court order to allocate dependency exemptions without signing a Form 8332. (There is no apparent legislative history behind this interesting change.) The rules were changed to provide for uniformity in defining dependents for the purposes of the dependency exemption, child tax credit, and other tax benefits based on claiming or having a dependent. "Boilerplate" language in MSAs addressing dependency exemptions need to be reviewed in light of the new rules.
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The following is provided courtesy of Atty. Bill Brown, an employee benefits specialist at DATAIR Employee Benefit Systems, Inc., 630-325-2600 x 112. Atty. Brown is available for drafting and implementing QDROs for family law actions. Bill can also be reached via e-mail.
Nunc pro tunc QDRO
IBM's 401(k) plan filed an interpleader action and obtained a ruling that a QDRO entered nunc pro tunc is valid. This decision is consistent with decisions entered in the Courts of Appeal for the 8th, 9th, and 10th Circuits. The action was necessary because the participant died before the state court could enter a QDRO documenting the division of the participant's plan benefits stated in the divorce decree. As a result, the plan was faced with competing claims from the participant's children and ex-spouse.
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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.
Mediator Certification Survey
The Association for Conflict Resolution and the American Bar Association Section of Dispute Resolution are exploring the feasibility of a proposed new national certification program for mediators. Certification is the voluntary process by which a nongovernmental organization grants recognition to an individual who has demonstrated certain knowledge, skills and abilities. Certification would not be tied to the completion of a specific course of education or training. In order to solicit the views of members, friends, and colleagues to help guide this process, a short electronic survey has been created to gather information on the issues involved in creating a certification program. Completing the survey will take no more than 10 minutes of your time. All individual responses will be kept confidential and the results will be aggregated electronically and made available to those taking the survey.
::: Survey Over :::
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The Winter, 2005 issue of American Journal of Family Law includes the following articles (for subscription information, call 1-888-859-8081):
"Assisted Reproductive Technologies: Contract Consents and Controversies"
By Nanette R. Elser
"Four Faces of Fair Market Value"
By Gover Rutter
"Privacy Issues in Family Law"
By John Mayoue
"Alter Ego Analysis to Find Hidden Assets"
By Darrell D. Dorrell
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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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