 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 VOL. 6 NO. 1 JANUARY 2005 |
In this Issue
 |
A
Word from Gregg Herman Happy New Year; Introduction to Family Law Seminar |
|
|
Wisconsin
Courts Updates |
|
|
Decisions
Across the Nation |
|
Family
Law Online 2005 Mac Davis Tax Program |
|
Family
Law & Mental Health Couples Coping Enhancement Training |
|
Adoption International Adoption |
|
Retirement
Benefits Husband must pay ex-wife retirement benefits |
|
Tax
Tip Corner Family limited partnerships and estate taxation |
|
Family
Law Mediation Narrative Mediation |
|
••• There is still time to register for the introduction to family law seminar which we specially prepared Lorman Education Services. The seminar is targeted for (relatively) new lawyers, mental health therapists and financial experts who want to learn the basics of family law. The seminar will be presented live on January 25, 2005 in Brookfield, Wisconsin. |
Happy
New Years to all of our subscribers! This will be our 6th year of FamLawUpdate.
We are proud of our product which we are continually seeking to improve. Recently,
we added new contributors on adoption, retirement benefits and mental health.
We welcome all contributions and - as always - all feed back, positive and constructive.
In early-December, the District I Court of Appeals issued their opinion in Settipalli v. Settipalli, No. 03-3287 (Wis. Ct. App. Dec. 7, 2004) (recommended for publication), which affirmed the judgment of divorce and an order denying reconsideration of the Honorable William Sosnay (Milwaukee County Cir. Ct.), concerning property division and maintenance. Additionally, the court of appeals also awards sanctions for misrepresenting the record and other appellate rules violations.
The background facts, as quoted from the court of appeals decision are as follows:
¶3. Sandesha, who was raised in the United States, and Ramakrishna, who was raised in India, were married pursuant to an arranged marriage in February 1995. They have lived in Wisconsin since the marriage and have no children. During the marriage, they lived together sporadically. They permanently separated in the spring of 2001. Ramakrishna filed for divorce in March 2002. The matter was tried to the court over six days in 2003.¶4. At trial, the primary issues were property division and maintenance. Ramakrishna testified that he graduated from medical school in India in 1989 and completed his internship in 1991. He started a residency program in India in January 1993. He stated that he left the residency program in the spring so that he could study for the United States licensing exams, which would enable him to pursue a medical career in the United States. Ramakrishna took medical exams in the United States beginning in 1996. Over the following years, he passed some and failed others. He testified that he was unsure whether he would become licensed to practice in the United States, having failed some tests more times than allowed and needing to retake some tests that he passed more than seven years earlier. As of the end of the trial, he was unemployed and was not licensed to practice medicine in the United States.
¶5. Sandesha testified that she has an undergraduate degree. She testified about her employment and education during the marriage, which included a brief stint as a medical school student. She presented evidence that mental health issues prevented her from working during parts of the marriage, including at the time of trial. Like Ramakrishna, her income at the time of trial was zero.
¶6. One of Sandesha's arguments at trial was that she should receive a greater share of the marital estate, and increased or continued maintenance, based on contributions to Ramakrishna's career from her and her family. She and her father testified about money paid to Ramakrishna's family as part of a dowry and money expended for living expenses, test preparation and other fees. She claimed that she contributed $201,065 to the marriage, through her own employment and by receipt of $81,057 from her family. She claimed that Ramakrishna contributed only $119,326 to the marriage.
¶7. Ultimately, the trial court awarded Sandesha the parties' primary assets: two investment accounts in India worth approximately $10,000. Sandesha also received a lump sum maintenance award of $15,000 to be paid within thirty months with interest at twelve percent per annum on the unpaid balance. The only other assets (household items, individual bank accounts, personal property, and IRAs in the name of each individual) were awarded by stipulation to the individual who had each item in his or her possession. In explaining its decision, the court specifically found that the funds provided by Sandesha's family were not loans which were to be repaid.
¶8. Sandesha filed a motion for reconsideration, arguing that the maintenance and property awards should be held open because it was likely that Ramakrishna will become licensed as a medical doctor in the United States, which would greatly affect his future income. The trial court denied the motion for reconsideration, reaffirming its earlier finding that any potential increase in Ramakrishna's future income was purely speculative. This appeal followed.
The court of appeals, in a unanimous opinion authored by Judge Joan F. Kessler, quickly disposes of Sandesha's appeal of the property division, noting that she received 100% of the disputed marital property, which results in "at least an equal division [of the total marital estate] and may be tilted in her favor." The court commented that "her appeal of this result is curious."
Regarding maintenance, Sandesha requested both a percentage of Ramakrishna's unknown future income as maintenance and a hold open of maintenance pending his future employment. Relying on the supreme court's implicit disfavor of percentage maintenance orders except under very unusual circumstances warranting a non-fixed sum, as enunciated in Poindexter v. Poindexter, 142 Wis. 2d 517, 419 N.W.2d 223 (1988), the court of appeals concluded that no such circumstances are present which support a percentage maintenance award. Moreover, the court of appeals concluded that the facts relative to each party did not warrant an increased maintenance award: both parties earned about the same total income during the marriage, both parties were unemployed, the wife was contemplating medical or graduate school, the husband had his medical degree but had not passed all licensure exams, the wife was being treated for mental health problems and the husband was fired from his residency program for failure to pass the licensure exams. Also, the court of appeals rejected Sandesha's claims that she sacrificed in furtherance of Ramakrishna's education, finding that he earned his medical degree in 1989, he brought no medical school debts into the marriage, he was unsuccessful in passing the licensure exams, his earning capacity was not enhanced during the marriage and his future earnings were speculative.
Lastly, the court of appeals remands to the trial court for an award to Ramakrishna of his attorney fees and costs on appeal against Sandesha's attorney for multiple misrepresentations (both affirmative and by omission) to the court of appeals and for failure to cite to the record and relevant authority in support of assertions made.
Look for Matt Price’s full analysis of the Settipalli case in the January, 2005 edition of the Wisconsin Journal of Family Law.
The Respondent-Appellant Sandesha Rao Settipalli was represented on appeal by: James H. Finn III (Brookfield)
The Petitioner-Respondent Ramakrishna Rao Settipalli was represented on appeal by: Thomas W. St. John and Jennifer L. Bolger (Milwaukee)
•••
In mid-December, as we reported to you in a FamLawUpdate Bulletin, the Supreme Court of Wisconsin issued their opinion in Kenyon v. Kenyon, 2004 WI 147, which reversed and remanded an order of the Honorable Moria Krueger (Dane County Cir. Ct.), which denied the wife's motion to increase her maintenance payments. Look for Gregg Herman’s full analysis of the case in an upcoming issue of the Wisconsin Law Journal.
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.
N.E. v. Hedges
No. 04a0437p.06
United States Court of Appeals, Sixth Circuit
December 4, 2004In yet another case where a father argued that he should not have to pay child support because he did not plan the pregnancy with the mother ("His basic claim is that the mother of the child "fraudulently induced" sexual intercourse, claiming that her birth control pills would prevent pregnancy, then left the state, married another man, and delayed seeking child support for several years after birth."), the court imposed a child support obligation, noting, "Child support has long been a tax fathers have had to pay in Western civilization."
Ed. Note: What makes this case appalling, even more so that the fact that numerous cases have rejected these arguments, is that the father here is an attorney.
Holder v. Holder
No. 03-35595
United States Circuit Court, Ninth Circuit
December 9, 2004A child’s "habitual residence" under the Hague Convention remained the United States, not Germany, when the father and his family were living on a U.S. Air Force base in Germany in connection with the father’s military service.
Stamm v. Stamm
No. 2030321
Alabama Court of Civil Appeals
December 10, 2004A trial court may issue a QDRO to assign benefits from a party’s IRA to satisfy that party’s alimony obligation. Such an order is not an impermissible modification of the parties’ property division.
Ed. Note: For an article collecting cases on using QDRO’s to enforce alimony and child support obligations, see: "Using QDROS’s to Enforce Spousal and Child Support"
Dellinger v. Dellinger
No. S04F1376
Georgia Supreme Court
November 23, 2004A self- executing change in custody upon the happening of certain events in a divorce decree is void as against public policy.
Shehan v. Hogan
No. 03A05-0408-CV-411
Indiana Court of Appeals
November 23, 2004In a case twisting the definition of "income" to include assets, the court held that an obligor’s savings account constitut ed "income" for purposes of an income withholding order in a child support action.
Ed. Note: The court need not have come to this conclusion in order to seize the asset; the law also provides for seizure of assets, including savings accounts, for payment of child support.)
Storey v. Storey
No. A-1830-03T3
New Jersey Superior Court, Appellate Division
December 15, 2004Even though a husband initially lost his job due to a RIF (reduction in force), when he replaced his job as a computer specialist with a $300/week job as a massage therapist, the court could impute income because he was voluntarily underemployed.
Spivey v. Keller
No. 6-04-09
Ohio Court of Appeals, Third District
December 13, 2004Ohio’s grandparent visitation law meets the constitutional requirements of Troxel, disagreeing with decisions from Ohio’s Fourth and Sevenths districts. The Third District court held that the statute’s sixteen factor analysis gives proper weight to the decision of the parents.
In re Sullivan
No. 04-00514-CV
Texas Court of Appeals, Houson (14th Dist.)
December 3, 2004As a matter of first impression, the court held that an unmarried man who donated sperm to an unmarried woman for conception of a child was a man whose paternity was to be adjudicated under Family Code, and thus he had standing to maintain a proceeding to adjudicate parentage of resulting child.
Boedeker v. Larson
No. 0900-04-1
Virginia Court of Appeals
December 7, 2004A military member who took a "CBS/Redux bonus," which would reduce his pension, must share the bonus with his ex-wife who had been awarded part of the pension in the divorce action.
Kimble v. Ellis
No. 04-5
Wyoming Supreme Court
December 10, 2004An oral agreement to waive child support arrears is unforceable, thereby giving the obligee the right to sue to recover unpaid support.
Re Same Sex Marriage
No. 2004 SCC 79
Canada Supreme Court
December 9, 2004The Court approved a statutory amendment that expands the definition of marriage to include same- sex couples.
Family Law Online 2005 Mac Davis Tax Program
Judge Mac Davis has updated his popular tax program for 2005. This program and his child support program can be downloaded in Microsoft Excel format from Ernesto Romero’s website (and we thank him for permission to provide these links):
Instructions for the tax program (in pdf) and older versions of the program are available online.
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
This month's article, found in Family Relations, Vol. 53, 2004, describes a distress prevention training program for couples called Couples Coping Enhancement Training (CCET). In addition to traditional components of couples training, such as communication skill training, the CCET also addresses individual and couple coping abilities in promoting marital satisfaction and decreasing marital distress. The article is entitled "The Couples Coping Enhancement Training (CCET): A New Approach to Prevention of Marital Distress Based Upon Stress and Coping,"
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.
International Adoption
International adoption has grown in popularity over the past decade. The increase in international adoption is due in part to the scarcity of available children for adoption in this country, particularly healthy white infants. Persons adopting internationally do so because they know they will be able to receive a placement within a given period of time, they know approximately what the cost will be, they know that the child received in placement will be there on a permanent basis, not subject to being claimed back by a birth mother or a father.
International adoption is not for everyone. The cost of an international adoption may run $15,000 to $35,000, substantially more than a typical domestic placement. In most cases, it is necessary to go to the child's country of origin and spend time there while the administrative or court process confirming the adoption occurs. The reliability of health information about the child and medical/genetic information about the parents is often suspect. Placement of older children from abroad is a particular risk because of attachment problems. It is important that prospective adoptive parents of children being placed internationally be well-educated as to the procedures, costs and risks.
It is recommended that if an adoption occurs in a foreign country that it be confirmed or the child be readopted upon return to Wisconsin. That will allow the State of Wisconsin to issue an English language birth certificate and may provide some additional comfort in terms of the security of the international adoption.
Retirement Benefits 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.
Rhode Island Supreme Court affirms lower court ruling
directing a husband to pay ex-wife retirement benefits
even though he has not retired.In 1994, the parties agreed to a property settlement that was incorporated into the final divorce decree but not merged with it. In the agreement, the husband agreed to pay his ex-wife a monthly amount after his "normal retirement date," which was March 1, 1996, when he reached 20 years of service under his employer's retirement plan. The husband continued working after that date, however, and did not pay the monthly benefits to his ex-wife. The court concluded that the agreement retained the attributes of a contract because it was not merged into the final decree.
Tax Tip Corner 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 Ida Abraham, Deceased, Donna M. Crawley
and Diana A. Slater, Administratrixes, Petitioner v. Commissioner of Internal Revenue
Respondent T.C. Memo 2004-39
February 18, 2004This case emphasizes the importance of estate planning, however the planning should incorporate the requirements of Section 2036. Here is a case where family limited partnerships were set up to minimize estate taxation. The decedent, who suffered from Alzheimer's disease, transferred real estate interests into family limited partnerships for less than adequate and full value, and through her guardian, retained an interest in the assets, therefore it did not pass the requirements of section 2036.
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.
Narrative Mediation
I recently had the pleasure of attending a workshop at which Gerald Monk, a professor and leading figure in the narrative mediation movement, discussed the concept of narrative mediation as presented in his book entitled Narrative Mediation: A New Approach to Conflict Resolution. I was totally unfamiliar with this concept and left the session being quite intrigued.
Narrative mediation challenges the basic assumption of mainstream mediation theories, namely that people are motivated by their own personal interests and that in order to reach agreement the common interests of both sides must be identified so that both parties to a dispute can have their needs met without giving something up in order to get something. In contrast, narrative mediation is based upon the idea that people make decisions on the basis of stories rather than facts and that they construct conflict from narrative descriptions of events. Stories position people and their legitimate needs. The narrative approach includes the belief that a story of cooperation always exists and that conflict is resolved by helping clients develop an alternative story through destabilizing the rigid descriptions of conflict and opening up space for re-storying. The techniques for doing this include using externalizing conversations to help separate the problem from the person, tracking interactions between the parties that are not problem laden and asking influencing questions that offer clients the opportunity to discuss the effects of their conflict on themselves and their children. Professor Monk believes that the narrative approach enables people to move more quickly toward resolution. At the very least this new approach to mediation is provocative. I don't view it as an "either/or", but rather as an opportunity to expand the depth and breadth of a mediator's tool box.
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!
|
Our Firm | Meet
Our Attorneys | Practice Areas
| Articles & Resources |
| FamLaw Update e-Mail | Contact
& Directions | Back to Main |
©
2009, Loeb & Herman, S.C.
Suite 1725 - Chase Tower
111 East Wisconsin Avenue
Milwaukee, WI 53202-4868
414.272.5632 | Fax 414.272.7918