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 VOL. 5 NO. 3 MARCH 2004 |
In this Issue
A Word from Gregg Herman
Mac Davis Program for 2004Wisconsin Courts Updates
Constitutionality of Placement Statute; Reopening Paternity Judgment; Counselor Privilege Waiver; Child Support Arrears and EstoppelDecisions Across the Nation
Wrongful removal in Hague Convention Case; Changing Life Insurance Beneficiary; Garnishing Child Support Award for Child Support Arrears; Claim for Fraud and Intentional Infliction of Emotional Distress for False Paternity Allegation; Civil Unions and More.Legislative Watch
Domestic Violence and GALs; MaintenanceEmployee Benefits
Department of Labor OpinionFamily Law Online
HIPAA websiteBusiness Valuations
Valuation of Real Estate Holding CompaniesFamily Law Mediation
Active ListeningFamily Law Related Articles and Publications
American Journal of Family Law
Judge Davis asked us to let our readers know that he has updated his tax program for 2004. You can always get an update by sending him a blank disc with a postage-paid reply envelope. Or, you can download it from Ernesto Romero’s website in Excel format.
We all owe a great debt of gratitude to Judge Davis - us old-timers remember when we had to bring CPAs into court for the sole purpose of running tax numbers. The Mac Davis program is so widely used, it has become a brand name, like Kleenex. Anyone with a modicum of computer skills (even me!) can calculate aftertax income, run alternative models and compare analyses with the opposing counsel. The result is not just more settlements, but better settlements as well. Thank you, Judge!•••
Also, Attorney William Brown, an employee benefits attorney, will periodically be providing links to information on employee benefits law. We welcome Bill to FamLawUpdate and thank him with the rest of our contributors.
Following a four and one-half month dry spell of recommended for publication divorce and paternity court of appeals opinions, in early-February, the District III Court of Appeals issued their opinion in Lofthus v. Lofthus, No. 03-1754 (Wis. Ct. App. Feb. 3, 2004) (recommended for publication), affirming the orders of Judge Frederick A. Henderson (Chippewa County Cir. Ct.), which upheld the constitutionality of the physical placement and guardian ad litem statutes.
In 2002, Paul Lofthus filed a petition for modification of placement, which requested shared equal placement of the parties' children. Paul's former wife, Rana, requested the appointment of a guardian ad litem. Paul objected to the appointment of a GAL on the basis that he was merely contesting placement and there was no evidence which raised concerns about the welfare of the children. Finding that the proposed placement change would be substantial, Judge Henderson believed he was legally required to appoint a GAL and did so.
At the hearing on the motion in March 2003, aside from arguing that there had been several substantial changes in circumstances, Paul argued that the appointment of a GAL, as well as an award of anything less than shared equal placement unfairly burdened his constitutional right to the care and custody of the parties' children.
In his orders, Judge Henderson: rejected the constitutional challenges, determined that Paul had not met his burden in demonstrating a substantial change in circumstances to warrant modification of placement (though, for safe measure, he nevertheless also concluded that a modification was not in the best interest of the children) and ordered Paul to pay 100% of the GAL fees for his continued pursuit of a theory of the case which had been previously tried and rejected multiple times in other cases.
Not surprisingly, the court of appeals concluded that there exists neither a constitutional nor statutory right to shared equal placement. Also, the court of appeals held that the substantial change in circumstances requirement in placement modification proceedings is constitutional. The appellate court also determined that Judge Henderson was statutorily-bound to appoint a GAL because the modification sought would have substantially altered the amount of time the children spent with each parent. (Appointment of a GAL is discretionary only if, among other things, the modification sought would not substantially alter the amount of time with each parent.) Lastly, though the court of appeals disagreed that with Judge Henderson's basis for ordering Paul to pay 100% of the GAL fees (as the constitutional issues were not previously advanced by Paul in the instant case), the court upheld the order due to the conduct of Paul during the proceedings, which included advancing positions that would have required the circuit court to ignore well-established statutes (i.e. ignoring substantial change in circumstances and appointment of GAL requirements).
Clearly, this case was recommended for publication to send a message to circuit courts, attorneys and parties that frivolous constitutional attacks on well-settled statutes need not be tolerated, and further, circuit courts should consider using unequal GAL fee allocations to properly achieve equity based upon all of the circumstances.
Full Opinion (PDF)
The Petitioner-Respondent Rana R. Lofthus (n/k/a Rana R. Rogge) was represented on appeal by: James M. Isaacson (Cadott) The Respondent-Appellant Paul M. Lofthus was pro se on appeal•••
The District II Court of Appeals issued their opinion in Arnold v. Arnold, No. 03-1547 (Wis. Ct. App. Feb. 4, 2004) (recommended for publication), affirming the order of Judge Ralph M. Ramirez (Waukesha County Cir. Ct.), which denied David Arnold's claim to a constitutional right to shared equal placement.
For the second time in two days (see Lofthus v. Lofthus, No. 03-1754 (Wis. Ct. App. Feb. 3, 2004) (recommended for publication)), a court of appeals opinion has addressed the constitutionality of the placement statutes.
David Arnold requested shared equal placement of the parties' children, but Judge Ramirez ultimately awarded David approximately 28% placement. David appealed arguing that Wis. Stat. §§ 767.24(4)(a) mandates shared equal placement, recent case law indicating otherwise (Keller v. Keller, 2002 WI App 161) is wrong or did not take into account a purported constitutional right of parents to equal participation in the raising of the children and that, on the facts, there was no compelling reason to deny shared equal placement. The court of appeals affirmed.
The court of appeals makes short shrift of David's case, as the relatively recent Keller case is directly on point as to the intent of Wis. Stat. §§ 767.24(4)(a) and David's attempt to bootstrap Troxel v. Granville, 530 U.S. 57 (2000) as a conduit to raise the constitutional concerns is easily distinguished, principally on the basis that Troxel was a grandparent visitation case, not a divorce action between a mother and a father. Lastly, the court of appeals determined that Judge Ramirez made proper findings to support his allocation of placement.
Perhaps the most surprising aspect of the opinion is the lack of any reference to Lofthus, which one day earlier disposed of similar constitutional attacks.
The Petitioner-Respondent Arlene Arnold was represented on appeal by: Andrew C. Ladd (Waukesha)
The Respondent-Appellant David Arnold was pro se on appeal
The Guardian ad Litem, Joseph G. Alioto (Milwaukee), filed a statement in support of the Petitioner-Respondent
•••
Though a bit astray from the family law field, we want to direct our readers' attention to the recent decision of the District II Court of Appeals in State v. Denis L.R., No. 03-0384 (Wis. Ct. App. Feb. 4, 2004) (recommended for publication), which affirmed an order of Judge Gary Langhoff (Sheboygan County Cir. Ct.), holding that the child's mother waived that child's counselor-patient privilege.
Denis L.R. was charged with repeated sexual assault of his then three-year-old granddaughter, Kirstin. Denis filed a motion asking the court to conduct an in camera inspection of Kirstin's counseling records, on the basis that, as is relevant here, Kirstin had told her counselor that nothing happened with her grandfather (Denis) and on other occasions indicated that something had happened only once during the charging period alleged in the criminal information.
The State reported to the trial court that it began the process of obtaining Kirstin's hospital and counseling records, but Kirstin's mother, Dawn R., revoked consent for disclosure to anyone. The State further indicated that the information sought likely contained inculpatory and exculpatory information and it was also necessary for the State's prosecution. While the State believed it had another avenue to secure the records, it requested the court to determine whether the records must be disclosed to Denis. Additionally, in an affidavit filed with the court, Denis's mother (and Kirstin's great-grandmother), Helen R., stated that Kirstin's mother, Dawn, had informed her than on one occasion Kirstin had informed her therapist that: nothing happened between her and Denis and that she (Kirstin) fabricated stories in sessions with her therapist.
The court held a hearing on whether Dawn waived her parental privilege on Kirstin's behalf by voluntarily disclosing to a third party (i.e. Denis's mother and Kirstin's great-grandmother, Helen) a significant part of the communication. Dawn testified that she did not intend to waive any privilege, but instead was discussing Kirstin's well-being with a trusted family member.
The trial court concluded that Dawn's disclosure to Helen constituted a waiver of Kirstin's privilege:"[A]lthough the statements were relatively brief and did not comprehensively encompass the totality of the purpose or benefit of the counseling sessions, the statements were germane to a significant part of the matter being discussed at the time, that is an alleged sexual assault...The statements materially related to the counseling sessions and such statements were of extreme significance."
The trial court further proceeded to limit the scope of the waiver to "only those statements, impressions, opinions, et cetera which are attendant to the issues of purported sexual assault."
Thereafter, Dawn moved to intervene in the criminal case to protect Kirstin's privilege. The motion was granted and Dawn appealed the courts' order concerning privilege waiver. The court of appeals affirmed.
Adopting the rationale in Sampson Children's Trust v. Sampson 1979 Trust, 2003 WI App 141, 265 Wis. 2d 803, 667 N.W.2d 831, review granted, 2003 WI 140, 266 WIs. 2d 60, 671 N.W.2d 847 (waiver of attorney-client privilege need only be volitional, not intentional), the court of appeals rejected Dawn's claim that her waiver of Kirstin's counselor-patient privilege required intent.
The court of appeals also rejected Dawn's contention that the statements made by Kirstin, which were relayed by Dawn to Helen, were not a significant part of the matter or communication.
Lastly, the court of appeals rejected Dawn's position that the trial court should have secured a written release from Dawn or a statement of voluntary waiver on the record. The court of appeals pointed out that, in any event, the waiver of the privilege occurred before the trial court could have requested a written release or statement of voluntary waiver.
Plaintiff-Respondent State of Wisconsin was represented on appeal by: D.A. Joseph R. DeCecco (Sheboygan) and AAG Sandra L. Nowack (Madison)
Intervenor-Petitioner-Appellant Dawn R. was represented on appeal by: Barbara J. Kirchner (Sheboygan)
•••
In late-February, the District I Court of Appeals issued a rare family law opinion recommended for publication in Shanee Y. v. Ronnie J., Nos. 03-1227, 1228 (Wis. Ct. App. Feb. 24, 2004) (recommended for publication), reversing the order of Judge Michael J. Dwyer (Milwaukee County Cir. Ct.), which denied the previously-adjudicated father's motion to open judgments of paternity.
The facts are extensive, but integral to the disposition of the case:
In late-1992, Ronnie, then incarcerated, was served with a paternity action alleging he was the father of two of Shanee's children. Ronnie returned the waiver of appearance forms denying that he was the father of either child.
In early-1993, the court ordered blood tests to occur on a specific date in May and set a status conference to review the test results for July. Neither party appeared for the blood test nor the status conference hearing. The court issued a warrant for Shanee.
In August, 1994, Shanee appeared on the warrant. The court again ordered blood tests to occur in September and set a status conference to review testing results in January, 1995. Ronnie was not personally severed, as he was incarcerated at the Milwaukee House of Correction. Substituted service was completed in September, 1994 upon Ronnie's twelve-year-old sister in September. The court was not informed at this time that Ronnie was incarcerated.
Shanee appeared at the January, 1995 status conference. Only she and the children had been tested. Ronnie did not appear because he was imprisoned at the Kettle Moraine Correctional Facility. Ronnie had failed to undergo blood testing and, as a result, the judge entered two default paternity judgments against Ronnie. Copies of the judgments were mailed in May, 1995, to Ronnie's last know address.
Ronnie was released from prison in 1997.
In September, 2000, Ronnie was arrested on a bench warrant for failure to pay child support as provided in the paternity judgments. In December 2000, Ronnie, pro se, made his first request to open the paternity judgments and undergo DNA testing, on the basis that he was incarcerated during the relevant period of conception. The motion hearing was adjourned twice due to difficulty in serving Shanee. However, on the ultimate date the motion was to be heard in mid- June, 2001, Ronnie failed to appear because he was at a meeting with the IRS and forgot about the court date. The court dismissed the motion.
The following day, Ronnie, still pro se, filed a second motion to open the judgments and undergo paternity testing. The motion was heard in August, 2001. Ronnie appeared, but Shanee did not. Nevertheless, the court denied his motion.
In May, 2002, Ronnie, by counsel, again moved to open the paternity judgments, pursuant to Wis. Stat. § 806.07(1)(h) (the catch-all subsection of the reopening statute) and purported fraud committed by Shanee upon the court.
In August 2002, the court heard testimony and adjourned the matter until November to review the transcript of the August, 2001 hearing.
In the interim, Ronnie had independent genetic testing performed which conclusively excluded him as the father of Shanee's two children that are the subject of the paternity action.
At the November, 2002, hearing, the court appointed a GAL for both children and adjourned the matter to February, 2003 to allow the GAL to perform an investigation.
At the February, 2003, hearing, Shanee admitted that Ronnie was not the father and she named the man whom she knew, from the outset, to be the biological father. She testified that she named Ronnie because she new and liked him. The court reviewed the GAL report, which recommended opening the judgments. At the conclusion of the hearing, the court denied the motion to open on the grounds that Ronnie did not timely file his motion and that it would be contrary to the best interests of the children to vacate the paternity judgments. Ronnie appeals.The court of appeals reversed, based upon a liberal construction of Wis. Stat. §806.07 and the public policy considerations of permitting to stand a judgment procured by perjury. The court of appeals rejected the State's res judicata / collateral estoppel arguments because Ronnie was deprived the opportunity to have a full and fair determination of the issue on his prior motions. The appellate court further bolsters its position by presenting a sympathetic portrayal of Ronnie's previous pro se status.
The Petitioner-Respondent Shanee Y. was pro se on appealThe Petitioner-Respondent State of Wisconsin was represented on appeal by: John A. Pintar (Milwaukee) and AAG Bruce A. Olsen (Madison) The Respondent-Appellant Ronnie J. was represented on appeal by: Hazel J. Washington (Milwaukee)
The Guardian ad Litem, William M. Binder (Milwaukee), filed a brief in support of the Respondent-Appellant.
•••
In late-February, the Supreme Court of Wisconsin granted review of an unpublished, one-judge opinion of the District II Court of Appeals in Barbara B. v. Dorian H., No. 03-1877 (Ct. App. Dec. 10, 2004) (unpublished), review granted, 2004 WI ___ (Feb. 24, 2004), which rejected the father's claim that it was unconstitutional (U.S. and Wisconsin) to retroactively apply 767.32(1r) against him and that such application deprived him of a remedy for a wrong in violation of the Wisconsin Constitution.
Shortly after the paternity judgment was entered (which provided for child support), the parties negotiated a side agreement that the mother would not pursue child support if the father agreed to not have physical placement with the child. Nineteen years later, the mother brought a contempt action to recover the child support arrears, which, with interest, totaled more than $65,000. The trial court and court of appeals relied upon Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999) in rejecting the father's equitable estoppel argument.
A copy of the unpublished, one-judge court of appeals opinion can be downloaded in PDF format on the Wisconsin Court of Appeals Web site.
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.
Hasan v. Hasan
No. 03-11960-GAO
United States District Court
District of Massachusetts
January 13, 2004The wife’s wrongful removal of children from Toronto to Brookline, Massachusetts, warrants the children’s return. The court rejected the mother’s claim of grave risk of harm, and denied the mother’s request for a guardian ad litem in the proceedings.
Liberty Life Assurance Co. of Boston v. Kennedy
No. 02-14044
United States Court of Appeals, 11th Circuit
February 4, 2004ERISA does not preempt state law pursuant to Egelhoff, and a party may change a life insurance beneficiary by will without changing the beneficiary designation on the plan itself.
Drachmeister v. Brassart
No. 03CA0277
Colorado Court of Appeals
January 29, 2004A personal injury award is subject to garnishment for child support in arrears.
In re Hari
No. 4-03-0382
Illinois Court of Appeals
February 3, 2004An incarcerated father may be ordered to pay child support out of marital and non-marital assets, even though support is figured on net income. The court reasoned that that provision does not limit the court as what assets can be reached to insure the payment of support.
Brooks v. Brooks
No. 4-059/02-1217
Iowa Court of Appeals
February 11, 2004A husband’s action against his wife for fraud and intentional infliction of emotional distress, based on her false representations that their three children were fathered by him, were properly dismissed for failure to state a claim.
Opinion of the Justices to the Senate
No. SJC-09163
Massachusetts Supreme Judicial Court
February 3, 2004A "civil union" does not provide the equal opportunity to marry all persons are entitled to. By excluding same sex couples from civil marriage, "civil union" would have the effect of maintaining and fostering a stigma of exclusion that the state constitution prohibits.
In re McIntosh
No. 25510
Missouri Court of Appeals
January 29, 2004A judge may order a divorce nunc pro tunc after a party’s death to prevent the action from abating, where all evidence and all matters pertaining to the divorce have already been before the court and entry of judgment is merely ministerial.
Gormley v. Robertson
No. 21580-6-III
Washington Court of Appeals
February 3, 2004The court could could grant equitable distribution to a same-sex couple when their relationship dissolved based on the "meretriciousness" of the relationship.
::: News Item :::
President Bush urged Congress to start the process of amending the Constitution to ban gay marriage.
For an insightful analysis of the issues, see Findlaw's Writ by Joanna Grossman entitled "San Francisco Takes Center Stage by Permitting Gay Couples to Marry:The Legal Questions the City's Actions Raise."
Legislative Watch Governor Doyle has signed into law Assembly Bill 279, which significantly impacts pre- and post-judgment custody and placement determinations where there has been evidence of interspousal battery or domestic abuse, will be enacted into law.
A brief, and by no means comprehensive, summary of this bill follows:
1. Custody
Under this legislation, "if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20(1m), or domestic abuse, as defined in s. 813.12(1)(am)...there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party." This language takes precedence over, among other things, the joint custody presumption.
The presumption against custody may be rebutted if the abusive party: a) successfully completes batterers treatment through a certified program or provider, b) is not abusing alcohol or drugs and c) after considering the s. 767.24(5) custody and placement factors, the court determines it to be in the best interest of the child to award the abuser custody.
If both parties engaged in interspousal battery or domestic abuse, the presumption against custody is applied to the party determined by the court to be the "primary physical aggressor." If neither can be determined to be the "primary physical aggressor," the presumption is not applied.
2. Placement
If the trial court grants periods of physical placement to a parent who engaged in interspousal battery or domestic abuse, "the court shall provide for the safety and well-being of the child and for the safety of the party who was the victim of the battery or abuse." That subsection of the statute sets forth eight additional, substantial actions to be considered (and at least one ordered) by the trial court to achieve those goals, including: placement exchanges must occur in a protected or 3rd party setting, the batterer's placement must be supervised and be paid for by the batterer, prohibiting overnight placement with the batterer and requiring the batterer to post a bond for the return and safety of the child.
The custody and placement factors set forth in s. 767.24(5) have been amended to add a well-being of the child and safety of the abused party factor, which has been given great weight as the "paramount concerns" in determining custody and placement where there has been interspousal battery or domestic abuse.
3. GAL
The GAL must now investigate whether there is evidence that either party has engaged in interspousal battery or domestic abuse and must report to the court the results of the investigation. It is worth noting that this language does not get triggered by one party making an allegation. Rather, it appears that this "investigation" must be performed in every case.
Furthermore, GALs must review and comment to the court on parenting plans filed by the parties.
GAL CLE must include training on the dynamics of domestic violence and their effects on victims and children.
4. Mediation / Parent Education
Mediators must be trained in the dynamics of domestic violence and their effects on victims and children.
Mediation can be waived by the court if it will cause undue hardship or endanger the health or safety of one of the parties.
The court may not require the parties to attend parent education programs together if there is evidence of interspousal battery or abuse.
5. Applicability
Actions or proceedings (both pre- and post-judgment) commenced on or after the effective date of the legislation.
•••
On the lighter side of legislation, in early February, Representatives Marlin Schneider (D - Wisconsin Rapids) and Eugene Hahn (R - Cambria) introduced a bill, 2003 Assembly Bill 823, which prohibits trial courts from awarding maintenance unless, among other requirements, the parties have been married for at least fifteen (15) years. Furthermore, the bill contains a 3 year limitation on maintenance payments, unless the payee contributed to the payer's education during the marriage or the payee became disabled during the marriage. Lastly, the amount of maintenance is capped at 20% of the payer's income based upon a 40 hour work week or the payer's base pay.
For the health, safety and well-being of our readers, we counsel against holding your breath for this bill to pass.
Employee Benefits The following is provided courtesy of Contributing Editor Atty. William Brown of DATAIR Employee Benefit Systems, Inc. Attorney Brown can be reached via e-mail.
The Department of Labor has issued Advisory Opinion 2004-02A, which opines that a state court can enter a new order modifying the terms of a QDRO and that the plan must treat the new order as a QDRO if it meets the statutory requirements for a QDRO.
Family Law Online HIPAA-COW is a non-profit organization open to entities considered to be covered entities, business associates, and/or trading partners under the Health Insurance Portability & Accountability Act (HIPAA), as well as any other organization impacted by HIPAA regulation. The organization's web site is filled with all sorts of analysis and forms for HIPAA compliance.
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.
Camp v. Camp
2003 Neb. App.
LEXIS 320
Neb. Ct. App.
December 16, 2003This case deals with the valuation of two real estate holding companies in a marital dissolution. The Appellate Court upheld and modified the Trial Court's valuation of the two entities, and also disallowed a discount for lack of control.
To read a summary of the full decision, visit the Clifton Gunderson Web site.
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.
Active Listening
In mediation as in life, when all is said and done, people just want to be heard and understood. Feeling heard is a powerful experience and they key to effective dispute resolution. It is, therefore, essential that mediators hone their active listening skills both to identify what matters most to their clients and to model active listening behavior for their clients. The essence of active listening is listening to understand rather that to respond. Active listening is essential to developing rapport and engagement with mediation clients and requires paying attention to the client both mentally and physically. Techniques for active listening include: encouraging, ("Can you tell me more about that?"), restating,("In other words this is what happened…"), reflecting, (" It seems that perhaps you are…"), clarifying, ("Let me make sure I understand.") and summarizing, ("These seem to be the key concerns you have expressed.") Mediators can improve their active listening skills by limiting their own talking, being interested and showing it, asking open-ended questions, not interrupting, not jumping to conclusions, listening for ideas not just words, taking notes, getting feedback, turning off other worries and distractions and being nonjudgmental. UW Law School Professor Ralph Cagle offers some great common sense suggestions in his article "Becoming a Better Listener."
For information on obtaining a copy, send Kathleen an email.
The Winter, 2004 issue of American Journal of Family Law includes the following articles:
For subscription information, call 1-888-859-8081.
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.
Atty. William Brown (Employee Benefits)We thank them for their contributions
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