Family Law Update for December 2016

In this Issue …

A Word from Gregg Herman
New negotiations book and video on resources for better negotiating

Wisconsin Courts Updates
No Wisconsin cases

Decisions Across The Nation
Effect of default, two UCCJEA cases, Voluntariness of termination of employment, Award of frozen pre-embroyos, Imputation of income, Standing for former boyfriend to seek visitation, Personal injury proceeds as separate property, Independent tort claim against ex-husband’s employer and more.

Family Law Online
“Christmas After Divorce: How to Make Christmas a Happy Occasion.”

A Word from Gregg Herman …

A new book has been published on negotiations, co-written by my friend Cary Silverstein and entitled “Overcoming Your NegotiaPhobia: Negotiating Your Way Through Life”

It’s a terrific, highly readable book on the role negotiations play in various aspects of life. You can purchase it on Amazon by clicking here.

From all of us at Loeb & Herman, we wish you and your family a warm and joyous holiday season and a Happy New Year!

Negotiating settlements is a skill. Like any skill, learning more about it can help you do the job better. Since as divorce lawyers, we spend more of our time negotiating than litigating, we owe it to our clients to become as good at negotiating as possible. In this month’s Thoughts on Family Law, I discuss three books (shamelessly, one of them is my own!) which can add to the negotiating skills of a family law attorney.

Play Video

Wisconsin Courts Update

— No cases this month … Sigh. —

Decisions Across the Nation

The following cases are provided courtesy of Contributing Editor Laura Morgan, Family Law Consulting. Laura is available for consultation, brief writing and research on family law issues throughout the country. She can be reached through her Web site or via e-mail.

Please Note: Most decisions are posted in Adobe Acrobat (PDF) format.

George v. George
No. SJC-12059
Massachusetts Supreme Judicial Court
Nov. 23, 2016

Section 49(b) of Chapter 208, part of the Alimony Reform Act, provides that general term alimony for marriages lasting more than ten years but fewer than fifteen years shall not continue for “longer than [seventy] per cent of the number of months of the marriage.” The statute also provides a process by which a judge can deviate from the durational limit, where doing so is “required in the interests of justice.” “The interests of justice standard” requires that if relevant factors that existed at the time of the divorce persist when the complaint for modification is filed, a judge may properly consider them. For example, if at the time of divorce a spouse was disabled and that disability was taken into consideration in setting the initial alimony award, and if that disability persists when the payor spouse files a complaint for modification, the judge may properly consider the impact the disability continues to have on the recipient spouse in determining whether deviation beyond the act’s durational limits is “required in the interests of justice.”

Christian v. Christian
No. S16F1160
Georgia Supreme Court
Nov. 21, 2016

Separation agreement provision, under which, should the parties divorce, wife was to be entitled to one-half of husband’s retirement, defined-contribution pension account, or any other employment benefits, had two possible interpretations, and therefore, the trial court should have looked beyond that provision to determine if the ambiguity was clarified when viewed in the context of the entire agreement, and if not, should have considered parol evidence to determine the meaning of the paragraph; the provision could be read to describe one category, “retirement benefits,” with three modifiers, or three distinct categories.

Peak v. Peak
2016 WY 109
Wyoming Supreme Court
Nov. 17, 2016

Entry of default in divorce action operated as an admission of truth of wife’s allegation in complaint that three children had been born as issue of marriage, and therefore, husband was precluded from challenging paternity of parties’ first child, who husband alleged was born prior to the marriage.

Edwards v. Zyla
No. 2015-IA-00805-SCT
Mississippi Supreme Court
Nov. 17, 2016

Father and children lacked significant connection to Mississippi, and thus Chancery Court lacked the ability under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to make initial custody determination; although children went to Mississippi every summer to stay with grandparents, Arizona had been children’s home for entirety of their lives, majority of children’s social, medical, and school histories were based in Arizona, and father and children had only been in Mississippi for two months.

Martin v. Martin
No. 2016-CA-0324
Louisiana Court of Appeal, Fourth Circuit
Nov. 16, 2016

Evidence was sufficient to support trial court’s finding that former husband’s termination from his employment was not voluntary. Former husband had received a severance package from his former employer, which did not support former wife’s assertion former husband was terminated for cause, and the court noted that former husband submitted hundreds of resumes and was willing to relocate if need be to earn a salary close to the $150,000 per year he had previously earned.

Curtis v. Curtis
No. A14-1841
Minnesota Supreme Court
Nov. 16, 2016

In considering whether to award spousal maintenance, trial court acted within its discretion in taking into account income-earning potential of investment assets and certificate of deposit that wife received in equitable distribution of marital property after marriage of approximately 22 years. In doing so, the district court must consider the tax consequences, if any, of requiring the maintenance-seeking spouse to reallocate assets to create income.

McQueen v. Gadberry
No. ED 103138
Missouri Court of Appeals, Eastern District, Division Three
Nov. 15, 2016

Wife in dissolution of marriage proceedings was not entitled, over husband’s objection, to be awarded two frozen pre-embryos, containing wife’s and husband’s genetic material, so that she could continue in vitro fertilization (IVF) process in an attempt to have successful pregnancies and potentially have more children with husband; wife was not pregnant such that her interest in bodily integrity would outweigh husband’s interest in procreational autonomy, parties did not begin IVF process due to any inability of wife to otherwise achieve parenthood, denial of award to wife would not completely foreclose the possibility of her implanting the frozen pre-embryos and achieving parenthood by their use at some point in the future, and husband’s fundamental right not to procreate would be irrevocably extinguished if wife bore more of his children against his will.

In the Matter of T.R.
No. COA16-597
North Carolina Court of Appeals
Nov. 15, 2016

Illinois judge’s docket entry, which provided that Illinois court was transferring custody matter to North Carolina, was tantamount to order determining that North Carolina was the more appropriate forum, and thus allowed trial court to make initial custody determination under Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), and trial court possessed jurisdiction to make initial custody determination under provision of UCCJEA allowing such determinations if court of the home state declined to exercise jurisdiction on the basis that North Carolina was more appropriate forum.

Elmore v. King
No. 2150388
Alabama Court of Civil Appeals
Nov. 10, 2016

The trial court abused its discretion when it modified the parties’ consent agreement and divorce decree to include a “C” grade point average support limitation on father’s provision of college support for the parties’ children, where there had been no written or oral requests for modification of the consent order to include a grade point average limitation, and the issue was not tried by the express or implied consent of the parties as mother objected to questions regarding the grades of the children.

Paese v. Paese
2016 NY Slip Op 07304
New York Supreme Court, Appellate Division, Second Department
Nov. 9, 2016

Where a parent obtains an order compelling another person to pay child support based on the parent’s successful argument that the other person was a parent to the child, the parent who obtained child support will be judicially estopped from taking the inconsistent position that the other person was not, in fact, a parent to the child for purposes of visitation.

Castello v. Castello
2016 NY Slip Op 07287
New York Supreme Court, Appellate Division, Second Department
Nov. 9, 2016

Supreme Court, in divorce proceeding, providently exercised its discretion in imputing annual income of $240,000 to husband from his construction business; Supreme Court relied upon the report of neutral financial evaluator and testimony at trial establishing that husband had total control over company’s bookkeeping and finances and funneled personal expenses through the company.

Brown v. Lunsford
No. 82A04-1602-JP-357
Indiana Court of Appeals
Nov. 9, 2016

Mother’s former boyfriend lacked standing to seek visitation with mother’s daughter; former boyfriend, who dated mother and lived with mother and daughter from the time daughter was 16 months old until she was four years old, did not establish the existence of a parental relationship between former boyfriend and daughter, who was eight and one-half years old at the time of trial.

Conway v. Gartmond
2016 N.Y. Slip Op. 07319
New York Supreme Court, Appellate Division, Second Department
Nov. 9, 2016

Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for purposes of child support. Mother who was never married to father, and whose income exceeded that of father, should have been deemed noncustodial parent, and thus, father was entitled to termination of his child support obligation and award of child support from mother, even though mother had sole legal custody of child; mother and father had equal parenting time, including an alternating holiday schedule and equal amounts of vacation.

Seals v. Seals
No. S-16109
Alaska Supreme Court
Nov. 9, 2016

Husband was not barred from claiming personal injury settlement proceeds as separate property, even if no damages designations had been established at the time of settlement; personal injury settlement was intended to compensate for husband’s entire loss, and because the marital estate had already been mostly compensated for its loss, the remaining settlement funds should not have been used to compensate the marital estate for more than the amount still owed when the marital estate’s total loss at the time of trial appeared to be only a fraction of husband’s separate loss.

Penticuff v. Miller
Nos. 2015-CA-001101-ME, 2015-CA-001129-ME
Kentucky Court of Appeals
Nov. 4, 2016

Evidence was insufficient to demonstrate biological father had known superior right to custody of child, as element required to demonstrate waiver of superior right to custody of child to mother’s former husband, though biological father was generally aware of potentiality that he was child’s father; evidence was presented that biological father performed reasonable investigation into his general awareness, that mother told biological father that he was not child’s father, that mother held husband out to be child’s father, and that biological father did not sleep on his rights, but upon mother informing him that he was father, took appropriate actions to establish paternity and begin having relationship with child. Evidence was insufficient to demonstrate biological father made voluntary and intelligent surrender of his superior right to custody, as elements required to demonstrate waiver of superior right to custody of child to mother’s former husband, though five years passed between when child was born and when biological father sought custody; circumstances of separation between biological father and child derived predominantly from mother’s deceit, including telling biological father that he was not father and holding out husband to be father, and biological father acted swiftly and decisively to establish paternity and interact with child once mother’s deceit was lifted.

Melbourne v. Taylor
No. 14-FM-1324
District of Columbia Court of Appeals
Nov. 3, 2016

In proceedings to change name of minor child, application of inaccurate factors that had no basis in binding caselaw and perpetuated gender-based distinctions in favor of father constituted plain error; application of factors was legal error as factors contained doubtful premises that court should not accept or perpetuate, were based largely on gender stereotypes, and were not grounded on the best interest of the child, and error affected substantial rights as trial court based its ruling solely on the erroneous factors.

Chanin v. Feigenheimer
No. 4D15-2073
Florida District Court of Appeal, Fourth District
Nov. 2, 2016

Background: Ex-wife brought action against ex-husband’s employer, alleging that, after the final judgment of dissolution, the employer conspired with ex-husband to fraudulently conceal his true income, thereby precluding ex-wife from exercising her right to seek an upward child support modification of a dissolution decree. Held: Ex-wife could not pursue an independent tort claim against ex-husband’s employer for fraudulent conduct that occurred after the final judgment and that falsely depressed ex-husband’s income so as to limit the obligation for child support.

Sherman v. Sherman
No. 1 CA-CV 15-0201 FC
Arizona Court of Appeals, Division 1
November 1, 2016

Income could be attributed to husband when computing child support award upon dissolution of marriage, despite his involuntary unemployment due to serious medical event for which he received six months of short-term disability pay from employer; nothing in the relevant section of the child support guidelines conditioned attribution of income on voluntary unemployment or underemployment, the relevant section provided that at least minimum wage income be attributed to a parent ordered to pay child support, regardless of work status, and, further, the relevant section expressly provided that the court could decline to attribute income to either parent.

Family Law Online

Christmas After Divorce: How to Make Christmas a Happy Occasion

Children will have a particularly difficult time at first Christmas after a divorce, particularly if this is the first year post-divorce. Many families will spend the holiday together, laughing, eating and opening presents. When this is gone, it becomes very difficult for children to handle. There is a right and wrong way to handle Christmas after a divorce. Of course, this goes for Hanukkah, Kwanza and all other major holidays at this time. (Micklin Law Group)

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.