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 VOL. 6 NO. 3 MARCH 2005 |
In this Issue
A Word from Gregg Herman
Tax SeminarWisconsin Courts Updates
Two court of appeals cases are recommended for publication; Full analysis of child support arrears caseDecisions Across the Nation
Hague convention, e-mail interception; Railroad retirement; Lesbian adoption, Federal Adoption assistance is not income and much more.Family Law & Mental Health
"How Divorce Affects Offspring: A Research Approach"Adoption
Interstate Compact For Placement of Children (ICPC)Business Valuations
Effect of buy-sell agreement in estate caseFamily Law Mediation
Bringing Peace Into the RoomFamily Law Related Articles and Publications
Family Advocate on Taxes
On June 2, 2005, CPA Gregory J. Ksicinski, Garrick Zielinski and I will present "Tax Aspects of Divorce in Wisconsin", a CLE seminar for the National Business Institute. The program will be at the Manchester East Hotel at 7065 N. Port Washington Road in Fox Point.
For more information, including online registration, visit the NBI Web site.
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In late-February, the District III Court of Appeals issued their opinion in Goberville v. Goberville, No. 04-2440-FT, which reversed and remanded the placement schedule contained in the judgment of divorce rendered by the Honorable Eric J. Wahl (Eau Claire County Cir. Ct.).
In Goberville, the court of appeals found that the trial court did not demonstrate on the record that it had considered the relevant factors under Wis. Stat. § 767.24(5) in rendering its placement ruling, but instead the trial court appears to have solely relied upon the recommendation of the GAL without making specific Wis. Stat. § 767.24(5) findings. The matter was remanded back to the trial court for additional findings.
This case is obviously recommended for publication to caution judges against merely "rubber stamping" recommendations of a GAL. Rather, a GAL's recommendation can be adopted by the trial court if proper findings can be made to support the recommendation:
"¶11 Given this absence of references to the statutory factors, Brad argues that the trial court’s placement decision must have depended entirely on the guardian ad litem’s recommendation. It is within the trial court’s discretion to adopt the recommendation of a guardian ad litem. However, the role of the guardian ad litem is not to direct the trial court’s judgment, but to act as an advocate in the child’s best interests. See Wis. Stat. § 767.045(4). The question is whether the court adopted the guardian ad litem’s recommendation because of an exercise of discretion or effectively substituted the guardian ad litem’s judgment for its own. To answer that question, we must look to the statements of the trial court and the guardian ad litem."
The practice tip for family court judges to be taken from this case is the need to discuss on the record the application of the relevant Wis. Stat. § 767.24(5) factors before rendering a placement determination.
Perhaps the most noteworthy, but disconcerting, portion of the opinion, is that while the court of appeals in the above-quoted paragraph accurately describes the role of the of the GAL as "an advocate in the child’s best interests" (emphasis added), in Paragraph 12, the court, citing Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992) erroneously characterizes the role of the GAL as "an advocate for a party, not a fact-finder or a consultant for the court" (emphasis added). Hollister merely states that the GAL is to be "treated as any other attorney acting as an advocate for a party in the proceeding" (emphasis added). It does not state that the child is a party, which would subject the child to, among other things, advocacy of their wishes and formal discovery. While earlier cases described the child as an indispensable party to a divorce action, the court of appeals concluded that a child has no standing to intervene as a party in a divorce proceeding and only the concept of the best interests of a child has standing in family court, via a GAL, pursuant to Wis. Stat. § 767.045. See Joshua K. v. Nancy K., 201 Wis. 2d 655, 549 N.W.2d 494 (Ct. App. 1996).
Full Opinion (PDF)
The Respondent-Appellant Brad J. Goberville was represented on appeal by: David J. Rice (Eau Claire)
The Petitioner-Respondent Linda M. Goberville was represented on appeal by: Kelly J. McKnight (Eau Claire)
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In late-February, the District III Court of Appeals issued their opinion in Waln v. Waln, No. 04-1271-FT, which reversed and remanded a portion of the property division contained in the judgment of divorce rendered by the Honorable Larry Jeske (Oconto County Cir. Ct.).
The trial court concluded that the spendthrift provision of Wis. Stat. § 62.63(4) prevented it from considering the husband’s City of Milwaukee pension as part of the marital estate.
The court of appeals disagreed, holding:"¶17 The spendthrift provision for Larry’s pension, Wis. Stat. § 62.63(4), bars a court from directly dividing the pension. However, we conclude it does not bar a court’s discretionary authority to consider the pension when dividing the marital estate. The pension is still a marital asset accumulated during the course of the marriage. Even when a court cannot divide a pension through a domestic relations order, the court "retains broad discretion in dividing a pension plan between the parties." Lindsey, 140 Wis. 2d at 696. The court has the discretionary authority to order the employee spouse to make a specific payout election or enter other orders "in the event a selection is made which runs counter to [the non-employee spouse’s] interests." Id. at 698. Therefore, the spendthrift provision, while barring a direct order dividing the pension, does not completely usurp the court’s ability to effectuate an equitable division of the parties’ assets, including the pension."
The Respondent-Appellant Barbara J. Waln was represented on appeal by: Vance M. Waggoner (Oconto Falls)The Petitioner-Respondent Larry M. Waln was represented on appeal by: Steven L. Miller (River Falls)
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Last month, we reported on the Wisconsin Supreme Court decision in In re the Paternity of John R. B., 2005 WI 6, which dealt with child support arrears. My full analysis of the decision was published in the Wisconsin Law Journal and is now available on our office Web site.
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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.
McManus v. McManus
No. 04-10752-GAO
United States District Court, District of Massachusetts
February 4, 2005Under an exception to the Hague Convention’s rule of return to habitual residence, the court held that a father does not have to return his wrongfully retained children to their mother in Northern Ireland because the children did not want to return and they were old enough to make such a decision.
O’Brien v. O’Brien
No. 5D03-3484, 30 Fla. L. Weekly D430
Florida 5th District Court of Appeals
February 11, 2005A wife illegally "intercepted" husband's electronic communications with another woman via electronic mail and instant messaging, within meaning of Security of Communications Act, when she installed spyware program on computer which simultaneously copied electronic communications as they were being transmitted by taking screen shots and storing them to a new file.
Lanier v. Lanier
No. S04F1710
Georgia Supreme Court
January 24, 2005Both Tier I and Tier II Railroad Retirement benefits may be considered for purposes of alimony; the Supreme Court’s Hisquierdo opinion does not preclude this result.
In re Marriage of Simmons
Nos. 1-03-2284 and 1-03-2348 (Consolidated)
Illinois Court of Appeals First District
February 16, 2005The "husband" was biologically a female, and had undergone male hormone treatment for gender dysphoria. The husband then underwent sex-reassignment surgery and a new birth certificate was issue to him, designating sex as male. Before the sex-change operation but after the hormone treatments, the husband and wife were married. Therefore, the "marriage" was void ab initio. Further, the "husband’s" consent to have his wife artificially inseminated was void because he was not a "husband", and thus he had no standing to seek custody or visitation of the resulting child.
Beckley v. Beckley
No. 05S02-0311-CV-498
Indiana Supreme Court
February 10, 2005The question presented was whether an award of benefits under the Federal Employers’ Liability Act (FELA) is a part of the marital estate subject to distribution. The court concluded that only that portion of the award intended as compensation for losses incurred during the marriage is included in the marital estate. The question presented was whether an award of benefits under the Federal Employers’ Liability Act (FELA) is a part of the marital estate subject to distribution. The court concluded that only that portion of the award intended as compensation for losses incurred during the marriage is included in the marital estate.
Mariga v. Flint
No. 79C01-9612-AD-55
Indiana Court of Appeals
February 16, 2005A lesbian who adopted her partner’s biological child must pay child support after the couple broke up because she is a legal parent despite the break up.
In re Adoption of Marlene
434 Mass. 494
Massachusetts Supreme Judicial Court
February 17, 2005A father’s consent to adoption under G.L. c. 210, § 2 (which provides that a parent consents to the adoption of his or her child and waives all right to further notice of proceedings involving the child's custody, guardianship, adoption, or other disposition) does not terminate the father’s child support obligation.
Gaston County ex rel. Miller v. Miller
No. COA04-157
North Carolina Court of Appeals
February 15, 2005Federal adoption assistance that the mother receives for her special needs children is not income to her.
Spahr v. Spahr
No. 1122 MDA 2004
Pennsylvania Superior Court
February 22, 2005A $126,189.00 corporate distribution to husband to reimburse him for his tax liability could be considered part of husband's yearly income, for the purpose of determining child support, even though husband argued that the distribution pertained to federal and state taxes for the prior year.
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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
Several investigators have reported that children who live with the same sex parent do better than those living with an opposite sex parent. Adjustment has been measured in terms of self-esteem, anxiety, depression, and antisocial behavior. The research on this is not entirely consistent, however.
For a more in-depth review of this issue, please refer to the book entitled, "How Divorce Affects Offspring: A Research Approach" by Stevenson and Black (1995), published by Brown and Benchmark, Dubuque, IA.
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The 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.
Interstate Compact For Placement Of Children (ICPC)
Currently, there exists an interstate compact for placement of children. It is a compact that has been subscribed to by all 50 states. The terms are found in Sec. 48.988, Wis. Stats.
In an adoption matter or in a foster care placement across state lines, the terms of the Interstate Compact for Placement of Children (ICPC) must be complied with. The sending state is typically the state in which the court action occurs which creates the legal status under which the child is placed across state lines. For example, in an adoption, the termination of parental rights or adoption consent usually occurs in the sending state.
Following the hearing, a packet of materials is sent to the Interstate Compact Coordinator usually in the capital city of the sending state. The packet includes certified copies of court papers, home study report, hospital and medical/genetic records, birth mother counseling information and a 100A transmittal form. After those materials have been reviewed for completeness, the packet is forwarded to the Interstate Compact Coordinator in the receiving state, or the state in which the adoptive parents or caretakers of the child reside. Once the receiving state has approved the packet, notification is given to the caretaker or adoptive parent and the child is allowed to enter the receiving state. Failure to comply with the interstate compact is a violation of law. Wisconsin's interstate compact coordinator is an employee of the Department of Health and Family Services. She is Lynn Lehr, 608-266-8501.
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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 H.A. True, JR., Deceased, H.A. True III Personal Representative; Jean D. True, Petitioners - Appellants, v. Commissioner of Internal Revenue, Respondent – Appellee
T.C. Nos. 02-9010, 02-9011, 02-9012
December 2, 2004This case emphasizes the importance of creating and structuring buy sell agreements where the agreements can control the business value for estate and gift tax purposes. In this case, three separate tax deficiency notices were issued against the Estate of H.A. True regarding the transfer of interests in six different family businesses subject to longstanding buy sell agreements. The U.S. Court of Appeals affirmed the lower tax courts decision that the buy sell agreements were testamentary devices, and the agreements did not satisfy the fourth prong of the Lauder/price control test (See Estate of Lauder v. C.I.R., TCM (RIA) 92736, 3716, 3729-30). The Estate of H.A. True had a tax deficiency of $18.2 million and was assessed penalties in the amount of $3.1 million.
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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.
Bringing Peace Into the Room
David Hoffman, Harvard educated attorney, mediator, collaborative attorney, and law professor has co-edited an amazing collection of articles from some of the best and brightest mediation practitioners and theorists. His book is entitled Bringing Peace Into the Room. The articles in this book examine the personal qualities that make a mediator effective. However the authors go beyond the traditional qualifications to expound upon the psychological, intellectual and spiritual qualities of the mediation profession. The thesis is that these qualities are often the most potent elements of successful mediation. In one of the best articles in the book entitled. "What are the Personal Qualities of the Mediator?", the author, Kenneth Cloke, director of the Center for Dispute Resolution, offers this definition of mediation, "Mediation is a search for the invisible bridge that connects every living being with every other. It is a gentle exploration of the space between us and a breach in the myth of what we know to be true…." Mr. Cloke identifies the values that mediation seems to encourage. Among them are valuing conflict as positive, as well as valuing diversity and difference, openness, honesty and empathy, agreement and commonality, cooperation and collaboration, the satisfaction of everyone' underlying interests, the victory that is without defeat, forgiveness, completion and perseverance. This book is a unique offering to mediators and an important resource.
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The Winter, 2005 edition of the Family Advocate is devoted to "Chipping Away at Tax Liability". Articles include:
"Slicing the Pie: Allocating Exemptions, Deductions and Credits"
By James J. McNally"Uncle Sam’s Share of the Settlement: How Taxes Can Transform Property Distributions"
By Robert D. Feder and Drew Morris"If Payments are Taxable and Deductible, Are They Alimony?"
By Mark I. Frumkes"Child Tax Entitlements"
By Robert A. Stone"Are Attorney’s Fees Deductible: Not so Fast"
By Christopher A. TisoFor ordering or subscription information (the current issue may not be available yet), visit the Family Adovocate Web site.
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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