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 VOL. 5 NO. 11 NOVEMBER 2004 |
In this Issue
A Word from Gregg Herman
Cooperative Divorce Seminar and Loeb & Herman, S.C. January, 2005 Family Law SeminarWisconsin Courts Updates
Green v. Hahn, Oral Arguments in KenyonDecisions Across the Nation
Hague Convention; Bankruptcy and 401k Plan; Relocation; Dissipation for Funds Spent on the "Other Woman"; Effect of Sex Change Operation on Alimony and much moreFamily Law and Mental Health
Maternal Concerns and ParentingAdoption
Legislative Study Committee on Adoption and TPRBusiness Valuations
Valuation of Medical PracticeFamily Law Mediation
A New Framework for Determining Capacity to MediateFamily Law Related Articles & Publications
Family Advocate issue on demographic changes in family law practice; American Journal of Family Law
The Divorce Cooperation Institute will be offering its second annual seminar at the American Club in Kohler, Wisconsin on December 3, 2004. For more information, either call Christina at Bailey Law offices (414-962-8200) or visit the organization's Web site.
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Loeb & Herman, S.C. will be partnering with Lorman Educational Services for a seminar aimed at the relatively new family law attorney and financial professionals and mental health professionals who wish to versed in the basics of Wisconsin divorce law.
If you might be interested in such a program, please reserve the date of Tuesday, January 25, 2005. More information will be provided in a brochure to be mailed shortly and - of course - in the December, 2004 edition of FamLawUpdate.
In late-October, the District IV Court of Appeals issued their opinion in Greene v. Hahn, No. 03-3311 (Wis. Ct. App. Oct. 28, 2004) (recommended for publication), which affirmed the order of the Honorable John J. Perlich (La Crosse County Cir. Ct.), which transferred to the husband choice of school rights for the parties' younger child, notwithstanding that: the parties had joint custody, the husband chose a school across the state, and the wife had primary physical placement of the child.
In 1990 the parties were granted a Minnesota divorce which awarded "permanent joint legal custody" to the parties and "permanent physical custody" of their two sons to the wife. In 2001, the husband brought a placement modification motion, but the motion appears to have been amicably resolved without revision.
In July 2003, the husband brought a motion asking the court to order that both children, then ages 17 and almost 15, be enrolled at St. John's Military Academy in Delafield, Waukesha County, Wisconsin (nearly 200 miles from La Crosse), as a result of the children's demonstrated disciplinary, scholastic and drug-related issues.
The GAL recommended that the older child complete his high school education in La Crosse, but the younger child should be enrolled at St. John's. The court commissioner, and on de novo review, Judge Perlich, agreed with the GAL's recommendation and entered an order to that effect. The wife appealed.
The court of appeals affirmed.
The wife argued that the Minnesota divorce awards her "permanent" primary placement of their sons and that the younger child's attending a boarding school strips her of the permanency set forth by the terms of that judgment. The court of appeals rejected the assertion, holding that, under controlling Wisconsin law (which applies as all post-judgment proceedings have occurred in Wisconsin, including the initial proceeding - a support modification motion - having been brought by the wife) primary placement has not been modified. The court concludes that a modification of custody can "result in a change in the amount of time the child spends in the home of the parent having primary physical placement." Moreover, it appears undisputed that the parties acknowledge that when the child is home from school, he will still be primarily placed with the wife.
The wife also advances other fact-intensive arguments which address: failure to order mediation, the presence of a substantial change in circumstances and the sufficiency of the evidence / best interest determination, none of which warrant further discussion here.
Full Opinion (PDF)
The Petitioner-Appellant Linda L. Greene was represented on appeal by: Robert Nagel and Lisa Goldman (Madison)
The Respondent-Respondent Richard V. Hahn was represented on appeal by: Sabina Bosshard and Mary Anne Kircher (La Crosse)
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On October 6, 2004, the Wisconsin supreme court heard oral arguments in Kenyon v. Kenyon, Case #02-3041, a post judgment maintenance case. We summarized the court of appeals holding in the May, 2004 FLU:
You can also hear the oral arguments in the case by visit the Wisconsin Court System 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.
Danaipour v. McLary
No. 03-2439
United States Court of Appeals, First Circuit
October 12, 2004When a court makes a determination under the Hague Convention that children wrongfully removed from their country of habitual residence will face a grave risk of harm if returned, the court is under no obligation to inquire as to the remedies available in the home country if the children are returned.
In re Dye
No. 03-12516C-13G
United States Bankruptcy Court, Middle District of North Carolina
October 4, 2004An order dividing a 401(k) plan in a divorce does not create a lien enforceable in bankruptcy, and thus cannot form the basis of relief from the automatic stay provisions.
Moeller-Prokosch v. Prokosch
No. 5834
Alaska Supreme Court
October 1, 2004In decided whether to allow a custodial parent to relocate, the court must assess the possible detrimental effect of changing custody to the other parent.
Johnson v. Johnson
No. CA03-1224
Arkansas Court of Appeals
October 6, 2004A trial court’s order that the husband reimburse the wife for one-half of the money that he spent on gifts to other women during the marriage was upheld on appeal, where the gifts were not made with the wife’s consent or later condonation.
McBride v. Boughton
No. A103456
California Court of Appeals, First District, Division 2
October 21, 2004When an unmarried man has expended funds to support a child in reliance on the mother’s representation that he is the child’s father, he may not then sue the mother on an unjust enrichment theory for the return of the funds after discovering that the child is not his biological offspring.
In re Malowitz and Parr
No. 03SC439
Colorado Supreme Court
October 4, 2004A man’s abuse and harassment of his pregnant wife, causing her to flee to Colorado from Texas, supported Colorado’s exercise of long-arm jurisdiction over the man in a UIFSA action, since the man’s acts "caused the child to reside in the state as a result of the acts or directives of the individual."
In re Roe
No. 2-03-0713
Illinois Court of Appeals
September 30, 2004A liquidated damages provision whereby the custodial mother must pay the noncustodial father if she failed to return to Illinois by a certain date is void and unenforceable.
People ex rel Department of Public Aid v. Smith
No. 97120
Illinois Supreme Court
September 23, 2004Where a parent has executed a voluntary acknowledgment of paternity, that parent cannot then bring an action under the Parentage Act to declare the non-existence of a parent-child relationship based on genetic testing.
Moore v. Moore
2004-Ohio-5293
Ohio Court of Appeals
September 24, 2004An ex-wife’s sex change operation does not provide grounds for termination of alimony, where the divorce decree provided that alimony would terminate upon either party’s death or the wife’s remarriage or cohabitation with an unrelated male.
State v. Talty
No. 103 Ohio St.3d 177, 2004-Ohio-4888
Ohio Supreme Court
September 29, 2004A trial judge’s condition of probation in a criminal non-support case that the father make every reasonable able to use contraception and avoid fathering more children was held unconstitutional.
Family Law and Mental Health The following is provided courtesy of Contributing Editor Christine Harness, Phd. Dr. Harness can be reached at (414) 961-3208:
"Sensitive Parenting"
A recent article in Developmental Psychology (2004, Vol. 40, No. 6) investigated maternal concerns and emotions that may regulate sensitive parenting. Previous research clearly supports that being sensitive and responsive to young children enhances their development, and it could be assumed that the negative emotions associated with divorce may impede a previously supportive and well-intended parent's efforts. This research effort suggests that support for children's immediate intentions may be regulated by parental concerns, immediate emotions, and depressive symptoms.
For the complete article please contact the American Psychological Association at (202) 336-5600 or find it on the web.
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.
Wisconsin laws concerning adoption and termination of parental rights are being reviewed by a legislative study committee chaired by Representative Sue Jeskewitz of Menomonee Falls. The committee is expected to have recommendations completed by the beginning of 2005. Lawyers on the committee whom you may wish to contact if you have suggestions include Patrick Kenney of the Milwaukee District Attorney's Office, Joseph Ehmann of the State Public Defender Appellate Division in Madison, Stephen Hayes in private practice in Waukesha, Jodi Timmerman of the Rock County Corporation Counsel office, and the Honorable Christopher Foley of the Milwaukee Circuit Court.
A similar legislative study committee has been formed concerning modification of Wisconsin's guardianship laws, particularly Chapter 880. It is expected to report its recommendations by the beginning of 2005 as well.
The federal government is considering modifications to several significant existing laws and has proposed several new laws as well. Among the items currently being considered are the following:
1. Adoption of a federal paternity registry.
2. Extension of the federal adoption tax credit before its sunset date of 2010.
3. Modification of the rules covering the interstate compact for placement of children (ICPC) to eliminate from coverage adoption and foster care matters. The interstate compact for placement of children must be complied with when children are being moved from one state to another for adoption and foster care purposes. See HR 4504 introduced by Representative Tom DeLay.
Business Valuations 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.
Hoebelheinrich v. Hoebelheinrich
2004 Va. App. LEXIS 376
August 3, 2004This case deals with the valuation of a medical practice in a marital dissolution. The Appellate Court upheld the Trial Court's valuation of the practice which disallowed a discount for lack of marketability.
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.
A New Framework for Determining Capacity to Mediate
Most mediators would agree that for mediation to take place, certain conditions must be present: parties must understand the role of the mediator, they must understand the mediation process, they must be able to identify their own interests and understand the expressed interests of other parties, and they must understand and be able to carry out their agreements. Four mediators from the Key bridge Foundation (which administers a nationwide ADA mediation program for the U.S. Department of Justice) have authored an article in which they suggest that it is not a matter of determining whether a party has these competencies, rather the mediator's role is to facilitate the development of these competencies in all parties. To facilitate competencies suggests collaborative work with the parties to support their abilities to mediate on the basis of the principle that competencies can emerge and develop. The authors conclude that the Model Standards of Conduct for Mediators supports their thesis and, furthermore, that the Americans with Disabilities Act requires mediators to make their services accessible to persons with disabilities. Facilitating competencies is a process that continues throughout the mediation and requires constant and ongoing engagement on the part of the mediator. The competencies facilitation process may include the following: an ongoing needs assessment, reflecting back, discussion of the possibilities, removing barriers to party choice of options, time considerations, balancing cognitive and emotional components of decision making, involving other facilitators to provide information or technical expertise, extend emotional support or serve as an advocate or representative.
"From Determining Capacity to Facilitating Competencies: A New Mediation Framework", Susan Crawford, Lewis Dabney, Judith Filner and Peter Maida, Conflict Resolution Quarterly, vol. 20, no. 4, Summer 2003. To get a copy visit the Jossey-Bass Web site.
Family Law Related Articles & Publications
The Fall, 2004 issue of the Family Advocate is "Are You Ready? Meeting the Needs of 21st Century Clients: How Demographic Changes Will Alter Your practice."
Articles include:
- "Representing Diverse Clients", by Stephanie A. Gonzalez Ferrandez
- "Lost in Translation", by Frank D’Alessandro
- "Stories from Immigration Practice", by Daniel Kanstroom
- "Domestic Violence in a Cultural Context", by Aili Mari Tripp and Ladan Affi
- "Race, Culture and Mediation", by Marjorie H. O’Reilly
For ordering or subscription information (the current issue may not be available yet), visit the Family Advocate Web site.
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The Fall, 2004 issue of American Journal of Family Law includes the following articles:
- "Major Issues Associated with the Valuation of a Business in a Divorce", by Dennis Bingham and William C. Herber
- "Elements of a Business Valuation Report: A Primer for Non-Accountants", by Marshall A. Morris
- "An Allocation Model for Distinguishing Enterprise Goodwill from Personal Goodwill", by David Wood
- "The Role of Judges in Keeping Difficult Parties Contained in Court", by Sanford M. Portnoy
- "Ethical Issues in Collaborative Law", by David L. Walther
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
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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