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 VOL. 5 NO. 5 MAY 2004 |
In this Issue
A Word from Gregg Herman
Cooperative DivorceWisconsin Courts Updates
Placement of children and non-marital relationships; Child support in guardianship proceeding; Division of survivorship benefits; Review granted in post- judgment maintenance caseDecisions Across the Nation
De facto Parenting; Third-party visitation; Stock options; Death of a party and more.Legislative Watch
Waiver of filing fees for stipulated placement modification; Child Support statute of limitationsFamily Law Mediation
Wisconsin's Newly Mandated Domestic Abuse Training and Screening for Mediation
It is with great pride that I was recently confirmed as chair of the Cooperative Divorce Institute of Wisconsin, Inc. for a 2-year term. CDI also elected Julie O’Halloran, Gagne & O’Halloran as Chair-elect and Linda Roberson, Balisle & Roberson as Vice-chair. The CDI is dedicated to promoting the principals and practice of cooperative divorce throughout Wisconsin.
The CDI Board of Directors (whose names on our website) also adopted an open membership policy. We have also scheduled our second seminar on cooperative divorce principals for December 4, 2004 at the American Club in Kohler, Wisconsin.
For more information, including downloading a membership form, please go to our website.
In early-April, the District IV Court of Appeals issued their opinion Helling v. Lambert, No. 03-1097 (Wis. Ct. App. Apr. 1, 2004) (recommended for publication), reversing and remanded the judgment of Judge John W. Roethe (Rock County Cir. Ct.), which awarded primary placement to the child's father because of perceived instability in the mother's lifestyle.
The background facts, quoted from the majority opinion authored by Judge Dykman (joined by Higginbotham, J.), are as follows:
"¶2 Neven was born on March 1, 2000. Lambert and Helling were living together at that time, and Helling formally acknowledged his paternity of Neven after the child’s birth.¶3 Helling and Lambert’s relationship deteriorated. Helling moved out of the parties’ shared residence in October of 2000. The parties agreed between themselves that Helling would have Neven overnight on Tuesdays, Thursdays and Saturdays each week. That arrangement continued until August of 2001, when Lambert moved in with her new boyfriend, Scott Weber, whom she had been dating for over a year.
¶4 In August of 2001, Helling filed a family court action seeking primary physical placement of Neven. The trial court entered a temporary order placing Neven with Helling on Tuesday and Thursday evenings and alternate weekends.
¶5 By the time of the hearing, Lambert had been dating Weber for about two years, living with him for three months, and was expecting a child with him. Weber testified that Lambert was not officially on his lease, but was paying him $425 per month in rent, and they were splitting other expenses. Lambert testified that she and Weber had no current marriage plans, but that she hoped to build a permanent long-term relationship with him. While at work, Lambert placed Neven in daycare with a woman caring for four other children about Neven’s age. Helling’s sister provided daycare for Neven during Helling’s periods of placements.
¶6 Consistent with the guardian ad litem’s recommendation, the trial court decided to award Helling primary physical placement, primarily citing the instability of Lambert’s living situation...." The court of appeals agreed that stability is a proper factor for consideration. However, the court of appeals took issue with the circuit court's factual basis for its conclusion that Lambert was "not in a predictable and stable situation," largely due to her recently-established relationship with Scott Weber.
The court of appeals quoted from what it believed to be the relevant portion of the circuit court's reasoning:
"That relationship, if I calculate it correctly, has existed where you live together for at the most three months, and it’s the kind of relationship that can be here today and gone tomorrow because when people do not get married, that relationship does not have the stability of law. It can end tomorrow. That concerns me."It also concerns me, and, you know, I observed Mr. Weber up here. I observed Ms. Helling. I didn’t hear any testimony about how that child gets along with Mr. Weber. Here we have got somebody that’s in that child’s life and is going to be in that child’s life on a fairly consistent basis, and I’m concerned about that.
"And I’m concerned by the new relationship. You don’t own the home, that you are there at Mr. Weber’s largess, and that is one of the most important things I think in this case.
"And I also agree with Mr. Daniel, I think it shows poor judgment on your part that you entered into that relationship, that you will have another child out of that relationship with no predictability or stability in it.
"And I guess in part my attitude about this type of thing is based on the fact that I have probably 40 to 50 paternity cases a month which are brand new, and I don’t think that’s right. And I don’t think those are predictable or stable relationships, and I guess one of the criterion that I based that decision on, I see it 40 to 50 to 60 times a month. I see what happens. That concerns me."
The court of appeals disagreed with the characterization of the relationship as recently-established. Though Lambert and Weber had been living together for only three months prior to the hearing, they had been dating for more than two years.
Most of the criticism, however, was reserved for what it termed the circuit court's "generalized assumption about the stability of nonmarital relationships." The court of appeals stated that this mindset "ignores the reality that marital relationships can also end in divorce. Moreover, it violates the maxim that 'each custody case must turn on its own facts and circumstances.'"
In further reviewing the facts, the court of appeals found no unfavorable inferences about Weber's relationship with the child, that nothing in the record suggested that the relationship would not continue, that Lambert was not more likely to move again before Helling and that nothing indicated that Lambert was more susceptible to failed relationships than Helling.
In further support of this conclusion, the court of appeals cited Schwantes v. Schwantes, 121 Wis. 2d 607, 360 N.W.2d 69 (Ct. App. 1984), which held that freedom of association is a constitutionally protected right and that the circuit court may not base its placement determination on a parent's nonmarital relationship with a third party unless there is specific evidence that the relationship would have a significant adverse impact on the child.
The dissenting opinion by Presiding Judge Deininger disagreed with the majority's holding that the circuit court based its placement decision on Lambert's nonmarital relationship with a third party. Instead, Judge Deininger concludes that the circuit court properly made its determination based upon the "relative predictability and stability of the parents' present living arrangements, as well as on several other permissible factors..." The dissent complains that the quotation from the circuit court was taken out of context and incomplete. Included within the dissent is a much more extensive quotation from the circuit court's findings.
Full Opinion (PDF)
The Petitioner-Respondent David E. Helling was represented on appeal by: Tod O. Daniel (Janesville)
The Respondent-Appellant Billy Jo Lambert was represented on appeal by: Lynn J. Bodi and Carol M. Gapen (Madison)
The Guardian ad Litem, Michael A. Haakenson (Janesville), filed a brief.
•••
Though not within our typical focus of traditional divorce and paternity cases, we want to direct our readers' attention to the recent decision of the District II Court of Appeals in Amy Z. v. Jon T., No. 03-0606 (Wis. Ct. App. Mar. 31, 2004) (recommended for publication), which affirmed in part and reversed in part an order of Judge Faye M. Flancher (Racine County Cir. Ct.) in a Chapter 880 guardianship dispute between the child's maternal aunt (Amy Z.) and the child's father (Jon T.).
The child's mother was deceased and the child's father, Jon T., had been charged with felony physical abuse of the child. Amy petitioned for and secured permanent guardianship of the child and the court further entered a child support order against Jon T. Jon T. appealed, arguing that the court did not have the authority to award child support and, alternatively, he was not provided with fair and adequate notice that child support would be addressed at the guardianship proceeding.
The court of appeals held that circuit courts have the authority to address child support in the context of Chapter 880 guardianship proceedings, but required that the party from whom child support is sought is provided fair and reasonable notice of the issue. Accordingly, the court of appeals remanded for a hearing to establish child support.
Plaintiff-Respondent Amy Z. was represented on appeal by: Anita R. Cruise (Racine)
Appellant Jon T. was represented on appeal by: Geoffrey Dowse (Kenosha)
•••
In mid-April, the District I Court of Appeals issued their opinion in Dutchin v. Dutchin, No. 03-1140 (Wis. Ct. App. Apr. 20, 2004) (recommended for publication), affirming the judgment and an order of Judge Michael J. Dwyer (Milwaukee County Cir. Ct.), concerning: a) the treatment of a survivorship pension benefit as a separate asset for property division purposes and b) treating the pension benefits as an asset or income.
Following a thirty-plus year marriage, the primary issue at trial was how to divide the husband's $412,000 pension, which was in payout status. Winston, age 60, was unable to work due to physical and mental disabilities, earning $3,451 per month, which included the pension payment and social security disability. Judith, age 54, was employed as a teacher earning $2,833 per month.
At trial, Winston argued that the pension should be treated as a stream of income, as it was in payout status. Judith initially argued that it should be treated as property subject to equal division, but later equivocated from that position and was willing to accept whichever method the trial court found reasonable.
Judge Dwyer concluded that if treated as an asset, Judith would have a higher monthly income than Winston and, as a result would have to pay him maintenance. This method "would result in a circular and complicated flow of money." Instead, Judge Dywer believed it most prudent to treat the pension as a stream of income, equalizing same, which resulted in a $425 monthly payment to Judith until her age 65.
The next issue was the treatment of the survivorship benefit, valued at $52,000. (The survivorship benefit election made at the time payout commenced resulted in lower monthly pension payments to Winston, as it entitled Judith to a survivorship benefit equal to 75% of his monthly payment, unless she predeceased him.) Winston ultimately argued that the survivorship benefit is an asset subject to equal division. Judith argued that if the pension is treated as a stream of income, the same treatment should be afforded the survivorship benefit. Judge Dwyer held (his position was clarified by his comments at the subsequent reconsideration hearing) that the survivorship benefit was an asset, but an unequal division of the asset (100% of the survivorship benefit to Judith) was appropriate on the basis of the contingent (and uncertain) nature of her ever receiving survivorship benefits. As indicated, Winston filed a motion for reconsideration on the survivorship benefit issue, which was denied.
Winston appealed on the survivorship benefit issue and Judith cross-appealed on the treatment of the pension as a stream of income, instead of a divisible asset. The court of appeals affirmed in all respects.
The court of appeals broke no new ground in the area of pension division. Instead, its analysis was primarily a straightforward exercise-of-discretion discussion, concluding that Judge Dwyer fashioned a result which was fair, reasonable and well within his discretion.
The Petitioner-Respondent-Cross-Appellant Judith C. Dutchin was represented on appeal by: Helen M. Ludwig (Milwaukee)
The Respondent-Appellant-Cross-Respondent Winston L. Dutchin was represented on appeal by: Amy L. Shapiro (Milwaukee)
•••
On April 20, 2004, the Supreme Court of Wisconsin granted the petition for review from a four paragraph District IV Court of Appeals unpublished decision in Kenyon v. Kenyon, No. 02-3041 (Wis. Ct. App. Nov. 26, 2003)(per curiam)(unpublished), which affirmed the order of Hon. Moria Krueger (Dane County Cir. Ct) denying the wife's motion to increase maintenance.
The statement of the issue, as provided by the supreme court is:
"In considering a second post-judgment modification of indefinite maintenance, is the circuit court required to reinstate the level of maintenance established by the final judgment when the parties’ financial circumstances at the time of judgment and at the time of the second modification decision are the same?"
(N.B.: It is worth noting that the court of appeals decision neither indicates that the court initially ordered maintenance for an indefinite term, nor that the parties' financial circumstances were the same at both judgment and the second modification.)
The Joint-Petitioner-Appellant-Petitioner Julie A. Kenyon is represented on appeal by: Earl H. Munson, Jr. (Madison)The Joint-Petitioner-Respondent Ralph C. Kenyon is represented on appeal by: Charles J. Schutze (Sun Prairie).
•••
In late-April, the District IV Court of Appeals issued their opinion in Cashin v. Cashin, No. 03- 1010 (Wis. Ct. App. Apr. 29, 2004) (recommended for publication), affirming the orders of Judge Richard T. Werner (Rock County Cir. Ct.), concerning the interpretation of maintenance language in a divorce judgment, the ability to award interest on maintenance arrears and the standard of review on maintenance modification determinations.
Following a nearly twenty year marriage, William and Kimberly Cashin were divorced in 1996. The parties had two minor children, ages 14 and 15. William was a shared-time payor for child support purposes and was ordered to pay $348 per month in child support. Additionally, William was ordered to pay maintenance to Kimberly, as follows:
"The Respondent shall be required to pay maintenance in a sum sufficient so that the combination of child support and maintenance shall equal 25% of his gross income. Based upon Respondent’s present rate of compensation of $52,200 per year, he shall pay maintenance in the sum of $740 per month. Such payments to continue until January 1, 2002 or earlier, upon the death of either party or the remarriage of the Petitioner. Respondent is to notify Petitioner within five (5) days of any increase in his salary. When there remains one minor child for which the Respondent pays support and the amount of said support is adjusted as set forth above [which required adjustment consistent with the HSS 80 (now DWD 40) guidelines when the older child is no longer eligible for child support], the remaining amount of 25% of the gross income of the Respondent as measured by his salary shall be classified as maintenance. Furthermore, by June 1st of each year, each of the parties shall provide the other with a copy of their income tax return for the previous year."
The Appeal
In December 2001, Kimberly brought a contempt action alleging William's failure to make full child support and maintenance payments, on the basis that the above-quoted language required William to pay 25% of his gross income and, instead, he only paid 25% of his salary. William argued that the phrase "as measured by his salary" supported the latter interpretation, which he followed.
The circuit court proceeded, as follows (as quoted from the court of appeals opinion):
"¶¶6 The motion was heard by Judge Werner. He reviewed a transcript of the oral decision he had made in December 1996. He referred to the references he had made then to "gross income" and stated that he meant by that "all income." Judge Werner explained that he had specific reasons for ordering that William pay only 25% of his salary in December 1996 for child support, and those reasons were unique to that year. He had not included William’s bonus for 1996 in the calculation for child support because at the time the amount was unknown; he had therefore ordered it to be divided evenly between the parties. He had not included the stock bonuses or stock incentives because those had been received earlier that year and had been divided as assets. However, Judge Werner stated, he did not intend that those other sources of income be excluded in future years in computing the 25% that William was to pay; rather, he intended that all sources be included.
¶7 Considering all income William earned for the years 1997 through 2001, the court found that he was $28,718.62 in arrears on his maintenance obligation. The court imposed 12% interest on the arrearage, which was to begin to accrue on December 31 of each year for the amount in arrears for that year. The court found the total arrears plus interest accrued through November 12, 2002, was $36,889.72.
¶8 William moved for reconsideration and the court denied the motion. Judge Werner emphasized that his oral decision was not ambiguous, that it plainly stated that gross income was to be used in computing child support and maintenance, and that was the decision of the court in spite of how the written judgment was prepared."
The court of appeals begins its analysis by noting that under Washington v. Washington, 2000 WI 47, 234 Wis. 2d 689, 611 N.W.2d 261, a circuit court has the authority to construe ambiguous written judgments to effectuate the circuit court's objective. Whether a judgment is ambiguous is reviewed de novo. Thereafter, the circuit court's resolution of the ambiguity is reviewed deferentially ("when the judge resolves an ambiguity based on his or her experience and uses a reasonable rationale, an appellate court is to affirm the clarification by the trial judge"). These standards of review apply irrespective of whether a party or the judge drafted the judgment.
The court of appeals agreed with the circuit court that the judgment is ambiguous because, on one hand, the child support provision of the judgment made specific reference to setting child support pursuant to the provisions of HSS 80 (and HSS 80 provided that child support be based upon the payor's gross income from all sources), and on the other hand, the maintenance provision referred to income in the context of William's salary.
The court of appeals proceeded to analyze and ultimately, agree with the trial court's rational for resolution of the ambiguity, which resulted in the arrears discussed above.
The other issue on the appeal is the award of interest on William's maintenance arrears. In the circuit court, Kimberly, without citing authority, requested 12% interest. William did not oppose interest, other than raising an equitable estoppel argument. The circuit court, without addressing its authority to do so, awarded 12% interest. William argues on appeal that Wis. Stat. §§§§ 767.25(6) and 767.261 only provide for interest on child support arrears and there is no analogous provision for maintenance.
The court of appeals concluded that the circuit court had authority to award interest on maintenance arrears under Wis. Stat. §§ 767.01(1) ("authority to do all acts necessary and proper...to carry out their orders and judgments"). Both the decisions of whether to award interest and, if so, the amount of interest, are left to the discretion of the circuit court. The court of appeals cites to Washington and Rotter v. Rotter, 80 Wis. 2d 56, 257 N.W.2d 861 (1977) as cases in which 767.01(1) was invoked. The court further concludes that the child support interest provisions of 767.25(6) and 767.261 were not established to the exclusion or prohibition of awarding interest on maintenance. The court of appeals reviewed the record and concluded that the trial court properly exercised its discretion in awarding interest. However, it took no position as to whether setting it a 12% was a proper exercise of discretion, instead affirming that amount on the basis of William's waiver of that issue in the circuit court.
The Cross Appeal
It appears that at the same time Kimberly brought her contempt action, she also moved for an eight-year extension of maintenance, which was due to expire the following month. After a hearing on the record before the family court commissioner and de novo review by the circuit court (which used, by stipulation, the transcript of the FCC hearing as the factual basis for its decision), the circuit court denied her motion. The only noteworthy aspect of the cross-appeal is the court of appeals' struggle with the standard of review for maintenance modification motions.
The court of appeals notes inconsistencies in their prior opinions:
In some cases (i.e. Rosplock, Murray), a two part standard of review test has been employed: 1) whether there has been a substantial change in circumstances is a mixed question of fact and law (findings of fact - clearly erroneous standard; whether those facts constitute a substantial change - reviewed de novo) and 2) whether and how to modify maintenance if the substantial change exists is a discretionary determination.
However, in other cases (Wettstaedt, Johnson I), there is no mention of the two-part test and the entire decision is reviewed under the erroneous exercise of discretion standard.
The court of appeals determined that this intra-court split finds clear resolution in the very recent supreme court opinion Rohde-Giovanni v. Baumgart, 2004 WI 27, ¶30, ___ Wis. 2d ___, 676 N.W.2d 452., which did not employ the two-part analysis."¶44 ....We conclude we should follow the supreme court’’s decision in Rohde-Giovanni and review a trial court’’s decision to deny an extension of maintenance as a discretionary decision, including the decision whether there is a substantial change in circumstances. Under this standard of review, we affirm the trial court’’s decision on whether there is a substantial change in circumstances if there is a reasonable basis in the record for the trial court’’s decision. Rohde- Giovanni, 676 N.W.2d 452, ¶¶17-18."
Whereas previously a practitioner could attempt on appeal to exploit error in the circuit court's conclusion of law as to whether there exists a substantial change in circumstances, now that every aspect of the circuit court's decision in maintenance modification actions has been uniformly lifted to the extremely high standard of review afforded discretionary determinations, one can reasonably expect fewer appeals brought and an even higher percentage of affirmances.
The Petitioner-Respondent-Cross-Appellant Kimberly A. Cashin was represented on appeal by: Jack C. Hoag (Janesville)
The Respondent-Appellant-Cross-Respondent William G. Cashin was represented on appeal by: Richard J. Auerbach (Madison)
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.
Evans v. McTaggart
No. 5794
Alaska Supreme Court
April 9, 2004When deciding custody cases brought by third parties against parents, the court must use the clear and convincing standard of evidence to prove either parental unfitness or detriment to the child. Under Troxel v. Granville, the preponderance of the evidence standard may not be used.
Hiett v. Hiett
No. 03-812
Arkansas Court of Appeals
April 14, 2004The court may include non-vested stock options that the husband may exercise in the future as "income" in determining the appropriate amount of alimony.
Guthrie v. Guthrie
No. S03G0915
Georgia Supreme Court
March 22, 2004An agreement between a husband and wife to settle issues in their pending divorce is enforceable if one of the parties dies before the court incorporates the agreement into an order of the court.
In re Adoption of K.S.P.
No. 56A03-0309-CV-375
Indiana Court of Appeals
March 23, 2004The same-sex partner of a woman may pursue a "second parent" adoption without terminating the biological mother’s parental rights.
C.E.W. v. D.E.W.
No. 02-534
Maine Supreme Court
April 6, 2004The same-sex partner of a woman who gave birth via artificial insemination who was acknowledged by the biological mother as the de facto parent of the child entitles the partner to standing seeking custody.
Conley v. Romeri
No. 02-P-303
Massachusetts Court of Appeals
April 14, 2004A woman’s tort claim against her boyfriend for intentional infliction of emotional distress, predicated upon his concealment that he had had a vasectomy and had led her to believe that they could have children in the future, was dismissed for failure to state a claim. A woman’s feeling that she wasted time with a man because her biological clock is running does not constitute a cognizable claim, the court held.
Elliot v. Elliot
No. M2003-00492-COA-R3-CV
Tennessee Court of Appeals
April 8, 2004A court may order a spouse to exercise stock options to pay a spouse his or her marital share when the stock options themselves are not transferrable or divisible. The court may also order a constructive trust for the options.
Legislative Watch On April 5, 2004, Gov. Doyle signed 2003 Wisconsin Act 165, which amends Wis. Stats. §814.61 (7) (b), Wis. Stats., to provide a waiver of the current required filing fee for revisions to court orders for legal custody or physical placement, if both parties stipulate to the revisions.
•••
On April 19, 2004, Governor Doyle signed AB 624 into law as 2003 Wisconsin Act 287. According to Dan Rossmiller, Public Affairs Director at the State Bar of Wisconsin:
"AB 624 was introduced in response to the Wisconsin Supreme Court’s decision in State v. Hamilton, 2003 WI 50, and codifies the previous interpretation of the statute of limitations for bringing an action to collect child support. The bill provides that an action to collect child or family support owed under a judgment or order is barred if not commenced within 20 years after the youngest child under the order reaches the age of 18 or, if he or she is enrolled full–time in high school or its equivalent, reaches the age of 19.
"The new Act 287 not only restores consistent treatment of parents but resolves the uncertainty (created by Hamilton) concerning the applicable statute of limitations for contempt proceedings by establishing one consistent statute of limitations for all actions to collect delinquent child support."
Family Law Mediation
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.
Wisconsin's Newly Mandated Domestic Abuse
Training and Screening for Mediation2003 Wisconsin Act 130 was recently signed into law by Governor Doyle and became effective on March 13, 2004. Section 3 of the Act requires that every mediator assigned in a custody and/or placement dispute have training on the dynamics of domestic violence and its effect on victims and children. Section 9 of the Act provides that the first mediation session, which is a screening and evaluation session, is to include screening for domestic abuse; and requires any intake form that the parties are required to complete before the start of mediation to ask each party whether either party has engaged in domestic abuse. The court may waive the mediation requirement if the court determines that attending a session will cause undue hardship or endanger the health or safety of one of the parties. While domestic abuse training and screening should already be a part of every mediator's skill set and protocol, this new statute mandates it. There are significant challenges to screening for domestic abuse. Some victims of abuse will readily talk about it. Others may not be willing to identify themselves as victims of abuse unless they have reason to trust that, under the circumstances, the inquiring professional will believe their allegations and the information will be handled responsibly by the system. If they do identify the abuse, it is common for many victims and perpetrators to minimize the abuse. How the screening questions are framed and the logistics of the interview are critical to an effective screening process. Screening Resources for Courts and Mediators, developed in Michigan, could be an important resource for Wisconsin mediators in implementing the requirements of Act 130.
See: Domestic Violence and Child Abuse: Neglect Screening for Domestic Relations Mediation
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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