Back to 2004 Archive

VOL. 5 NO. 1 JANUARY 2004

	A Word from Gregg Herman Thanks and Happy New Year
	Wisconsin Courts Updates A look back at 2003
	Decisions Across the Nation Reimbursement for child support; Custody jurisdiction under the UCCJEA; Grandparent visitation; Stepparent visitation; Visitation with half-sister and more.
	Family Law Online New Child Support Guidelines
	Tax-Tip Corner LLC Fee and Report Requirements
	Family Law Mediation Communications between a mediator and the court

A Word from Gregg Herman... With this issue, we begin our 5th year of sending this eletter every month. We offer thanks to all of our contributing editors, especially Kathy Baird who is so reliable with great mediation ideas and thoughts every month. She is our "old faithful" (except not so old)! We also thank Pat McKenna of Mojoweb Productions for formatting and sending out this e-letters. Pat also designed our law firm website, as well as the websites for the Wisconsin Chapter of the American Academy of Matrimonial Lawyers and the Cooperative Divorce Institute. Finally, we thank all of our subscribers - rarely does a month go by where we don’t receive some positive feedback, which we welcome. We also welcome any ideas to improve this service. Best wishes to Pat, our contributing editors and to all of our subscribers for a health, prosperous and happy 2004! Gregg

There were no new family law cases recommended for publication this month, so we thought it might be interesting to look back at some of the major cases this past year:

On May 30, 2003, the Supreme Court of Wisconsin issued their opinion in State v. Hamilton, 2003 WI 50 (May 30, 2003), aff'g 2002 WI App 89, 253 Wis. 2d 805, 644 N.W.2d 243, concerning the statute of limitations in independent actions to collect child support arrears.

For a full description, visit the June 2003 edition of FamLawUpdate.

•••

In June, the Supreme Court of Wisconsin issued their opinion in LeMere v. LeMere, 2003 WI 67 (Jun. 27, 2003), reversing an unpublished per curium decision of the District III Court of Appeals, concerning the award of an unequal division of property in favor of the husband for a business he started during the marriage.

For a full description, visit the July 2003 edition of FamLawUpdate. For our analysis of the case, see Lamere Decision Gives Both Sides Ammunition.

•••

Also in June, the Supreme Court of Wisconsin held in Tammie J.C.,v. Robert T.R.., Case No 01-2787, that personal jurisdiction is not a requisite of custody matters under the UCCJA.

For an analysis of the case, see Supreme Court Addresses Child Custody Jurisdiction.

Also in June, the District IV Court of Appeals issued their opinion in Rohde-Giovanni v. Baumgart, No. 01-3014 (Wis. Ct. App. Jun. 26, 2003) (recommended for publication), 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.

For a full description, visit the July 2003 edition of FamLawUpdate.

In September, the District II Court of Appeals issued their opinion in Kowalski v. Obst, No. 03-0573 (Wis. Ct. App. Sept. 17, 2003) (recommended for publication), affirming the order of Judge Lee S. Dreyfus, Jr. (Waukesha County Cir. Ct.), concerning the applicability of In re the Paternity of Tukker M.O., 199 Wis. 2d 186, 544 N.W.2d 417 (1996), following the repeal of the subsection of the statute which contained the child support factors applicable to paternity actions.

For a full description, visit the October 2003 edition of FamLawUpdate.

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.

Gallo v. Gallo
No. 03-C-0794
Louisiana Supreme Court
December 3, 2003

A man who discovers that a child born during the marriage is not his biological child does not have a right to reimbursement for the child support paid to the mother, because, inter alia, a petition to disavow paternity must be made within one year of the birth of the child at issue.

Full Opinion (PDF)

Gitter v. Gitter
No. 03-CV-3374
United States District Court, Eastern District of New York
November 26, 2003

Where both parents relocate to Israel temporarily, with no intent to permanently reside there, Israel cannot be considered the country of habitual residence.

Christianson v. Christianson
No. 20030123
North Dakota Supreme Court
December 2, 2003

A court has no authority to impute income in a spousal support case, as opposed to a child support case, the North Dakota Supreme Court held. Moreover, even if such imputation were allowed, there must be a finding that a spouse has suppressed income in bad faith before income can be imputed.

Full Opinion

In re S.L.P.
No. 2-03-071-CV
Texas Court of Appeals
November 26, 2003

A court should not take custody jurisdiction under the UCCJEA when a child’s residence is established by the wrongful conduct of the custodial parent.

Ross v. Kelley
No. 041602
California Court of Appeals
December 10, 2003

There is no constitutional prohibition against grandparent visitation per se, the court holds, reversing the trial court which had sua sponte terminated a stipulated grandparent visitation arrangement relying on Troxel.

Full Opinion (PDF)

James W. v. Claudine W.
No. B161235
California Court of Appeals
December 9, 2003

California Family Code § 3101, which provides that a stepparent may be given visitation when it is in the best interests of the child, was unconstitutionally applied when the trial court did not give special weight to the fit parent’s decision concerning visitation.

Full Opinion (PDF)

Foretich v. District of Columbia, Office of the Mayor
No. 02-5224
United States District of Columbia Circuit Court of Appeals
December 16, 2003

Congress violated the constitutional prohibition against bills of attainder by singling out plaintiff for legislative punishment. In enacting the Elizabeth Morgan Act, Congress determined that plaintiff is a criminal child abuser and singled him out for punishment on that basis, targeting him for application of the Act's unique child custody standard.

Full Opinion (PDF)

Lindsie D.L. v. Richard W.S.
No. 31562
West Virginia Supreme Court
December 4, 2003

A girl may have a constitutional right to visitation with her half-sister, even if
the sister's father objects.

::: News Note :::

A new study commissioned by the American Bar Association has found that fewer cases are going to trial despite an increase in the overall number of lawsuits filed by Americans.

Family Law Online

Child Support Guidlelines

Trust our friend, Ernesto Romero, to be the first one with the new Wisconsin child support guidelines on his website. You can access them in PDF format using the links below:

DWD 40 CS Standard

Conversion Table

Child Support Percentage Worksheet

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.

Happy New Year to the readership of FamLawUpdate!

Nothing really new has happened in terms of family law taxation other than the normal annual increases for dependency exemptions ($3,100), etc.

However, for those of you whose law practice is a limited liability company (LLC), take note that the filing of an annual report (similar to what corporations have long been required to file) begins this year. The state budget bill applies this new fee to all LLCs in the state. The report will be due at the end of the calendar quarter containing the anniversary of your registration as an LLC.

The report fee is $25 and will be mailed to the registered agent of record as listed with the Dept. of Financial Institutions from when the LLC was registered. Visit their website: www.wdfi.org and use the "CRIS" look-up feature to verify the accuracy of the data on file. Failure to submit a report could result in administrative dissolution of the LLC as a legal entity. (This is a separate requirement from the State Bar rules of practicing law as an LLC.)

Family Law Mediation

The following is provided courtesy of Contributing Editor Kathleen Baird, a family law attorney and mediator in Wauwatosa, Wisconsin.

Communications between a mediator and the court

Communications between the court and a mediator arise most frequently in the context of providing updates as to the status of the mediation and responding to court inquiries about why mediation did not result in a total resolution. In his article, "Ethical Issues in Family Law Mediation: Impartiality and Confidentiality," Milwaukee mediator Larry Kahn notes that Sec. 904.085(3)(a) &(b) Wis. Stats. prohibits a court (with certain exceptions) from requiring that a mediator disclose "any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party, including an opinion about the parties." A court can only compel a mediator to disclose a factual statement as to whether the mediation has commenced, is continuing or has concluded in an agreement or not. While Sec 904.085(3)(a) Wis. Stats. prohibits admissibility of "any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party," there is no reference to opinions of the mediator. Therefore, Attorney Kahn concludes that a mediator could voluntarily communicate to a court an opinion as to whether the parties mediated in good faith or as to whose fault it was that the mediation failed. In order to protect against this, he suggests adding a provision to the mediation agreement that the mediator will make no voluntary disclosures to the court.

See Wisconsin Association of Mediators Newsletter, Fall, 2004, Volume X, Issue 3 or e-mail me for a copy.

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!