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 VOL. 6 NO. 9 SEPTEMBER 2005 |
In this Issue
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A Word from Gregg Herman ABA Family Law Section fall meeting and PESI seminar on Advanced Divorce Issues |
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Wisconsin Courts Updates |
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Decisions Across the Nation |
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Family Law and Mental Health Study of Adjustment of Children from Divorced Families |
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Adoption Court of Appeals Dodges Important Issue |
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Family Law Mediation How to Handle High Conflict Personalities |
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Divorce Financial Analysis Government Retirement Plans |
The fall, 2005, ABA Family Law Section meeting will be held from September 28 to October 1 at the Westin Horton Plaza in San Diego, California. In addition to outstanding CLE, the conference offers great social events and an opportunity to network with family law attorneys from around the country. In addition, on Wednesday, September 28, 2005, the section is offering a free CLE program on Military Issues in Family Law. For more information on both the free Military Law program and the full fall conference, visit the ABA's Web site.
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Also, please be reminded that on September 20 (Madison) and 21 (Brookfield), I will be speaking and moderating a program for Professional Education Systems (PESI) on "Advanced Divorce Financial Issues". This year, we will examine two typical and difficult issues: How to handle the case where the value of the business is significantly larger than the other assets and the effect of Rohde-Giovanni on post-judgment maintenance awards.
For more information or to register visit the PESI Web site.
In late-August, the District II Court of Appeals issued their opinion in Guelig v. Guelg, No. 2005AP346-FT (Aug. 31, 2005) (recommended for publication), which reversed and remanded the judgment rendered by Judge Richard J. Nuss (Fond du Lac County Cir. Ct.) which adopted the wife's parenting plan on the basis of waiver.
The facts set forth in the opinion are quite extensive, but the most relevant facts can be roughly summarized, as follows:
Rebecca filed her parenting plan before the status conference in the divorce case. Timothy, then pro se, did not receive a copy of Rebecca's parenting plan, nor did he file his own parenting plan until shortly before trial. At the status conference, which Timothy did not attend but was properly noticed, after inquiring of the GAL as to whether Rebecca's plan was harmful to the children (answered in the negative), Judge Nuss concluded that Timothy waived his right to contest Rebecca's parenting plan (reading 767.24(1m)'s language about filing the document "before any pretrial conference" to not be limited to an official Pretrial Conference - - there was none, but to include a status conference) and adopted it. Timothy retained counsel and filed a parenting plan before trial, but Judge Nuss foreclosed a challenge to the custody and placement provisions adopted from Rebecca's parenting plan. Timothy appealed.
In an unanimous opinion authored by Judge Richard S. Brown, the court of appeals held:
1. The parenting plan statute and due process requires that Timothy should have received a copy of Rebecca's parenting plan before the trial court acted on custody and placement.
2. Timothy did not waive his right to object to Rebecca's parenting plan, as: a scheduling conference is not a pretrial conference, he had no notice that the trial court might rule on custody and placement at the scheduling conference, and because he ultimately filed his parenting plan and there was no pretrial conference he did not violate the statute.
3. Timothy did not get his day in court.
4. Even if waiver was present, an overall best interest determination is still required (i.e. the waiver itself can be considered only in context of the evaluation of the custody and placement factors and does not foreclose a best interest determination).
The Respondent-Appellant Timothy Guelig was represented on appeal by: Timothy R. Young (Oshkosh)
The Petitioner-Respondent Rebecca Guelig was represented on appeal by: William K. McKibbage (Fond du Lac)
In early-August, the District III Court of Appeals issued their opinion in Hacker v. Hacker, No. 2005AP223-FT (Aug. 2, 2005) (recommended for publication), which reversed and remanded the judgment rendered by the Dennis C. Luebke (Outagamie County Cir. Ct.) which reduced the wife's maintenance.
After 18 years of marriage which produced two children, Jeffrey and Nancy Hacker divorced in 2003. At the time of divorce Jeffrey earned $144,000 and Nancy was collecting disability benefits of $43,500 (In 2002 she was terminated from her $60,000 per year job for alcohol-related issues. We presume that the disability benefits related to her alcoholism). Jeffrey had primary physical placement of their children and, thus Nancy was ordered to pay nearly $12,000 per year in child support to Jeffrey. Jeffrey was ordered to pay Nancy $46,500 per year in maintenance. However, "noting the uncertainties surrounding Nancy's financial future, the circuit court declined to fix child support or maintenance permanently at that time, scheduling a hearing to review those awards in one year."
In 2004 (presumably before the review hearing) Nancy's disability benefits ended and she was still unemployed with no income other than the maintenance.
At the 2004 review hearing, the court ordered Jeffrey to pay Nancy $13,200 in child support, but reduced her maintenance to $6,500 per year indefinitely. The opinion connotes that a primary consideration of the circuit court's large reduction in maintenance was due to Nancy's continued lack of success in alcoholism treatment, which resulted in her inability to secure and maintain employment. In other words, the circuit court did not believe that Jeffrey should be required to subsidize Nancy's alcoholism. Nancy appealed the reduced maintenance award.
The first issue addressed by the court of appeals in a unanimous opinion authored by Chief Judge Cane is whether the initial maintenance award of $46,500 was temporary (and thus there is no modification standard - Jeffrey's argument) or final (in which case there would have to be a showing of a substantial change in circumstances to modify - Nancy's argument). Though the opinion appears to lean toward it being final (even with the specified review date), the court of appeals avoided the issue entirely by searching the record to conclude there was a substantial change in circumstances, which is the highest burden necessary for maintenance modification, thus rendering the temporary vs. final argument moot.
The second issue is the impact of Nancy's alcoholism on the support objective of maintenance. In concluding that the circuit court did not properly consider the support objective of maintenance, the court of appeals made the following stunning proclamations (two footnotes [only consisting of a case citation and an article citation] omitted):
"¶15 We do not, however, equate alcoholism with the kind of career choice on which the opinion in Forester turns. We have recognized elsewhere that alcoholism is a disease that, like other diseases, can limit or destroy an individual's earning capacity. See, e.g., DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 586-87, 445 N.W.2d 676 (Ct. App. 1989). We have also determined that an alcoholic spouse's refusal to obtain recommended treatment may be a relevant factor in a maintenance decision. Id. at 586. The function of the family court is not, as DeLaMatter noted, to be an enabler. Id. at 587. But DeLaMatter went no further than making the refusal to pursue treatment one factor a circuit court may consider in making a maintenance determination.¶16 Unlike the alcoholic spouse in DeLaMatter, Nancy has not refused to seek treatment. She was in full-time treatment for eight months in 2002-2003 at a series of inpatient facilities. By her own admission, Nancy has suffered one or more relapses since that time, but there is no indication that she will not seek further treatment or that she is denying her condition. Unsuccessful treatment is not, as a factual matter, the same as refusing treatment. Treatment for alcoholism is difficult, and many recovering alcoholics lapse more than once before they are able to control the disease. Nor is alcoholism the only disease that is difficult to treat. Not all cancer treatments succeed and many Americans afflicted with diabetes struggle to control their symptoms. The facts in this case thus make it distinguishable from DeLaMatter. More importantly, even if the circuit court determined that a history of failed treatment was a relevant factor, under the "catch-all" or health subsections of Wis. Stat. § 767.26, the court's award must still reflect a proper concern for both the objectives of maintenance."
Our reading of the above language leads to the following conclusions:
1. DeLaMatter has been effectively overruled, as apparently merely seeking treatment (but not complying with its terms and conditions) is sufficient for an alcoholic recipient spouse to avoid the negative consequences of DeLaMatter.
2. The court effectively normalized alcoholism by making the analogy that treatment for other diseases are not always successful, which amazingly ignores the fact that treatment of these other diseases (i.e. cancer) is not up to the patient, whereas successful treatment of alcoholism involves far more choice.
The Respondent-Appellant Nancy M. Hacker was represented on appeal by: Howard T. Healy, Jr. (Neenah)
The Petitioner-Respondent Jeffrey S. Hacker was represented on appeal by: Robert B. Loomis (Appleton)
Editor's Note: Our article in the Wisconsin Law Journal discussing the Hacker case in more detail is posted on our office Web site.
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On July 28, 2005, the Supreme Court of Wisconsin accepted certification from the District IV Court of Appeals in Raschein v. Frey, No. 2005AP239-AC.
The questions certified to the supreme court, are as follows:
"(1) whether the divorce of foster parents qualifies as "a dissolution of a marriage" sufficient to trigger the visitation statute, Wis. Stat. § 767.245 (2003-04), when one of the foster parents subsequently adopts the child; or if not,
(2) whether a former foster parent whose ex-spouse has adopted the foster child has standing to raise an equitable visitation claim under Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1995)."
A decision is not expected until 2006.•••
In mid-August, the District IV Court of Appeals issued their opinion in Kohl v. DeWitt, Ross & Stevens, S.C., No. 2004AP328 (Aug. 11, 2005) (recommended for publication), which affirmed the order of Judge Sarah B. O'Brien (Dane County Cir. Ct.) that awarded DeWitt an attorney fee judgment upon their withdrawal of representation of Elizabeth Kohl in her divorce action.
The majority opinion, authored by Judge Vergeront, held that Wis. Stat. § 767.23(3)(a) does not limit attorney fee judgments to circumstances of substitution of counsel, but it also extends to withdrawal of counsel.
The dissent of Judge Dykman agrees with the majority's interpretation of Wis. Stat. § 767.23(3)(a). However, the dissent also agrees with Kohl's argument (dismissed in a footnote by the majority as insufficiently developed) that Wis. Stat. § 767.23(3)(a) violates the right to a trial by jury provided by Article I, § 5, of the Wisconsin Constitution. Judge Dykman would remand and require the circuit court to empanel a jury to consider Kohl's defenses to DeWitt's fee claim.
Note: This opinion was initially issued per curiam on April 14. Thereafter, the State Bar of Wisconsin Family Law Section successfully petitioned the court of appeals to withdraw the opinion and reissue it as a signed opinion recommended for publication. The dissent of Judge Dykman did not appear in the per curiam decision.
The Appellant Elizabeth J. Kohl was represented on appeal by: Richard J. Auerbach (Madison)
The Respondent DeWitt, Ross & Stevens was represented on appeal by: Scott K. Petersen (Madison)
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In late-August, the District I Court of Appeals issued their opinion in Wittig v. Hoffart, No. 2004AP1653 (Aug. 23, 2005) (recommended for publication), which affirmed the entry of a domestic-abuse injunction order by Judge John J. DiMotto (Milwaukee County Cir. Ct.).
The appellate court reached two noteworthy legal conclusions:
1. Issue-preclusion does not prevent the trial court from considering the facts underlying a previous, voluntarily-vacated domestic-abuse injunction in the pending domestic-abuse action. Instead, the rules of evidence apply to the admissibility of evidence preceding vacatur of the injunction, based upon the purposes for which it is offered and used. In fact, courts are required to consider any "pattern of abusive conduct" in determining whether to enter an injunction. See Wis. Stat. § 813.12(4)(aj).
2. The precept set forth by the supreme court in State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, that only "true threats" are constitutionally punishable under statutes criminalizing threats applies to domestic-abuse actions. Perkins defines a "true threat" as "a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered."
The Respondent-Appellant Brian K. Hoffart was represented on appeal by: David A. Nelson (West Bend)The Petitioner-Respondent Lana C. Wittig was represented on appeal by: James K. Jaskolski (Greenfield)
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 Web site or drop her an e-mail.
Spalding v. Spalding
No. 5D04-2324
Florida District Court of Appeals, Fifth District
August 5, 2005Where the father's obligation to pay the college expenses of his daughter was based on contract, the father was not entitled to terminate that support based on the fact that the daughter wished to have nothing to do with the father.
Jones v. Jones
No. 49A02-0501-CV-64
Indiana Court of Appeals
August 17, 2005A trial judge, without the request of either parent who were both practicing Wiccans, entered an order that neither parent could not expose the parties' child to Wiccanism because it was a religion outside the mainstream. Father appealed, and mother joined with her. The Court of Appeals reversed, holding the trial court was without authority to restrict the religious upbringing of the child without clear evidence of harm to the child.
Johnston v. Dunham
No. WD 64479
Missouri Court of Appeals, Western District
August 2, 2005The wife's relocation with the children over the husband's objections and without the court's permission constituted violation of child custody statute governing relocation with children. Thus, the trial court did not abuse its discretion in concluding that the wife's violation of statute constituted a change in circumstances. The evidence supported the conclusion that modification of custody of the children from the husband to the wife was in children's best interests, and the court did not abuse its discretion by failing to consider whether the wife had relocated with the children in good faith.
Nielsen v. Nielsen
13 Neb. App. 738
700 N.W.2d 675 (2005)Adult children sought to set aside their father's and late mother's divorce decree, alleging their inheritance had been reduced due to the fraud of their father and his attorney in obtaining the property settlement agreement and decree. The court held the children lacked standing in their individual capacities to challenge the decree, as any claim of fraud in procurement of the settlement and decree was the mother's until her death.
Diana E. v. Angel M.
2005 N.Y. Slip Op. 06180
New York Appellate Division, First Department
July 28, 2005Putative father would be estopped from requesting genetic market test to determine paternity where he had been present at birth, had acknowledged paternity by signing documents to have himself listed as child’s father on birth certificate, and had held himself out as child’s father for nine years, and continued to visit child for another two years.
Mayo v. Mayo
No. COA04-1334
North Carolina Court of Appeals
August 16, 2005The wife’s concealment of five of her seven prior marriages constituted sufficient fraud to serve as a basis for annulment.
In re Marriage of Branscomb
201 Or. App. 188
Oregon Court of Appeals
August 10, 2005Application of minority discount, which takes into account relationship between interest being valued and total enterprise, and application of marketability discount, which offsets an interest's impaired transferability, was not warranted when valuing the husband's minority interest in a partnership which owned parcel of real property. The husband would never need to sell his minority share on open market because, under partnership agreement, he would either sell to remaining partners or entire parcel would be sold.
In re J.I.Z.
No. 13-04-066-CV
Texas Court of Appeals, Corpus Christie-Edinburg
August 18, 2005An adjudicated father who later learns through DNA testing that he is not the child's biological father may not file a motion to modify child support as a means of terminating his support obligation; he must instead overturn the parentage judgment or terminate his parentage by filing a bill of review, an equitable proceeding to set aside original support judgment which was no longer appealable or subject to motion for new trial.
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
Study of Adjustment of Children from Divorced Families
An American Psychological Association Press Release dated March 24, 2002 suggests that children from divorced families who spend time with both parents are better adjusted in most cases than children who are raised by a sole parent. The press release refers to a meta-analysis conducted by Dr. Robert Bauserman of 33 studies conducted between 1982 and 1999 that examined 1,846 sole-custody and 814 joint-custody children.
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.
Court Of Appeals Dodges Important Issue
The Court of Appeals declined to hear an interlocutory appeal on the issue of whether a change in placement after failure to abide by the notice provisions of Wis.Stats. §48.64 was reversible error. A foster child in the care of his foster parents for nearly two years was returned to his biological father on what the Department of Health and Family Services (the Department) called an "extended visit." Notice was improperly provided to the foster parents under Wis.Stats. §48.357, though there were no safety concerns in the home of the foster parents. The foster parents objected and demanded a best interests hearing under Wis.Stats. §48.64.
On a motion to return the child to the foster parents pending the outcome of the hearing, the circuit court determined that notice was improper and that a change in placement had been effectuated. However, the court scheduled the best interest hearing and determined that the foster parents could argue that the reunification was not in the child's best interests at that time. A petition to appeal was filed.
The Court of Appeals likewise recognized that the statutory mandate of a notice and hearing was not followed and admonished the Department. However, since there was a hearing scheduled to take place in the near future, the court declined to address the issues on an interlocutory appeal.
The decision not to hear the appeal has significant ramifications. There will always be a hearing scheduled at or near the time when a placement change occurs and the foster parents have objected. Furthermore, courts are reluctant to once again disrupt a placement, particularly if the child seems to have adapted to reunification with the parent. While the statute gives lip service to the rights of foster parents and children to have a best interest hearing before a change of placement occurs, the cards are stacked against those foster parents that object. The Department has, in effect, been given the green light to continue to violate the law with little, if any, threat of sanction.
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.
How to Handle High Conflict Personalities
High conflict personalities are parties who often have long term behavioral problems, whose emotions dominate their thinking and who are unable to reflect on their own role in creating their problems. They resist taking any responsibility for solving their problems and are driven by unrealistic but intense fears. Often they have a very charming and successful public persona they use to cover up their dark side. In his article, "Handling High Conflict Personalities in Family Mediation", William Eddy, a mediator, therapist and attorney, identifies the following methods for mediating a case with high conflict personalities: (1) avoid agreeing with the content of their complaints and, instead, give them empathy, attention and respect; (2) don't try to argue them out of their fear- try to understand it and reassure them that the decisions are up to them, (3) accept that you cannot fix their life long behaviors and focus, instead, on their strengths which gives them hope and empowers them to solve their problems (4) instead of confronting their behavior by telling them they are difficult clients, provide reasons for them to act differently that are external to them and to their relationship to you as mediator (5) make a more detailed agreement with very clear consequences for non-compliance.
This article was published in the summer 2005 issue of ACResolution. You may contact me via e-mail for a copy.
The following is provided courtesy of Contributing Editor Garrick G. Zielinski, CFP, CDFA, CDS. Mr. Zielinski is President of Divorce Financial Solutions, LLC specializing in retirement plan valuations, QDRO's and divorce financial counseling. You can reach Mr. Zielinski at 414-294-4755 or via e-mail.
Government Retirement Benefits
A substantial number of State court orders are drafted under the mistaken belief that ERISA applies to government retirement benefits. Sections 1003(b)(1) and 1051 of title 29, United States Code, exempt federal, state, county and city plans because they are "governmental plans" as defined in section 1001(23) of title 29, United States Code.
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