Family Law Update for January 2017

In this Issue …

A Word from Gregg Herman
Happy New Year and video on referees/special masters in family law cases.

Wisconsin Courts Updates
Unpublished (but citeable) case on delegation of placement decision to a referee

Decisions Across The Nation
Grandparent visitation, Email and illegal interception, Visitation by ex-boyfriend as third party, Child support from incarcerated parent, UIFSA, Hague Convention, Imputation of return on investments for support an more.

Is it time for post-termination of parental rights contact rights?

Family Law Relad Articles and Publicatons
American Journal of Family Law

A Word from Gregg Herman …

Welcome to Volume 18 of FLU!

As always, I welcome comments and suggestions for improving this service. Please send me an e-mail with your suggestions.

And, of course, best wishes for 2017 to all of our subscribers!.

In this month’s Thoughts on Family Law, I discuss the use of referees and special masters in solving for conflicts arising in family law cases. It’s particular;y timely, given the Court of Appeals decision in Rose v. Rose, which I discuss at length this month in Wisconsin Courts Update below.

Play Video

Wisconsin Courts Update

Yeah, a new case this month!

Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis. Stat. 809.23(3).

On December 21, 2016, the District II Court of Appeals issued their opinion in Rose v. Rose, Nos. 2015AP2646 and 2016AP692, which affirmed the orders rendered by the Honorable Michael O. Bohren (Waukesha County).

Kelly and Russell were divorced on November 30, 2009. Pursuant to a stipulation entered between the parties modifying their marital settlement agreement on placement, the parties agreed to reduce the placement of the children with Russell to alternating weekends and to use a special master/referee to resolve any future disputes between the parties involving modification to placement. Russell subsequently moved the circuit court for increased placement and, in connection thereafter, moved for psychological evaluations of the parties and their children. The circuit court denied Russell’s motions. Russell then moved to remove the special master, which the court also denied. Russell appealed both orders.

The Court of Appeals concluded that it was not improper for the parties, with the approval of the court, to delegate any future disputes on modification of placement to a referee. The stipulation permitted Kelly to seek a reduction in Russell’s placement. Since there was no appeal of the referee’s decision pursuant to the stipulated statutory procedure before the circuit court, the issue of modifying placement was not appropriately before the circuit court and, therefore, there was no reason to order psychological evaluations. The circuit court did not erroneously exercise its discretion in declining to remove the referee. Accordingly, both orders were affirmed.

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.

Curtis v. Medeiros
No. Pen-15-618
Maine Supreme Judicial Court
Dec. 20, 2016

Trial court could not, under guise of construction of agreement, change its substantive terms to disallow wife from taking child on annual trip to Brazil to visit grandparents. Trial court also violated ex-wife’s fundamental due process right to parent by modifying divorce judgment to grant visitation time to child’s paternal grandparents under statute allowing for award of contact with a minor child to a third person, where ex-husband did not seek to modify judgment, grandparents were not parties to the action, grandparents did not seek to intervene in the matter, and grandparents did not file an affidavit or offer any testimony to establish their standing on a prima facie basis.

Epstein v. Epstein
No. 15-2076
United States Court of Appeals, Seventh Circuit
Dec. 14, 2016

Estranged wife’s receipt of forwarded e-mails from husband’s account at least three hours after husband received originals did not preclude finding of contemporaneous interception, as required to state a claim against wife for violations of the Wiretapping and Electronic Surveillance Act; interception need not occur at time of receipt.

Gallagher v. Pignoloni
2016 N.Y. Slip Op. 08362
New York Supreme Court, Appellate Division, Second Department
Dec. 14, 2016

Italian court had exclusive, continuing jurisdiction to issue order modifying the custody provisions of the separation agreement between mother, a United States citizen, and father, an Italian citizen, and awarding father sole custody of the parties’ two children, and thus, Family Court did not have subject matter jurisdiction to consider mother’s petition for sole custody, even though the validity of the Italian court’s order under New York law had yet to be determined; the initial child custody determination awarding the parties joint custody of the children was made in the separation agreement, which was ratified by the Italian court at a time when the parties and the subject children all resided in Italy, father continued to reside in Italy, and the Italian court did not make a determination that a New York court would be a more appropriate forum.

Vandyke v. Choi
2016 S.D. 91
South Dakota Supreme Court
Dec. 14, 2016

Alimony award to wife, made pursuant to settlement agreement that was incorporated into divorce decree and obligating husband to pay wife $1,500 per month for 19 months upon wife’s execution of quit claim deed to marital property, subject to wife’s remarriage, cohabitation, or death of either party, was a modifiable permanent support award and not an unmodifiable lump-sum distribution payable in installments over a fixed period; other than alimony being terminated at fixed point in time, agreement was devoid of any language establishing lump-sum distribution to be paid in installments, and presence of conditions was typical of permanent alimony arrangement.

In re N.M.V.
2016 MT 322
Montana Supreme Court
Dec. 13, 2016

Substantial credible evidence supported a finding that child’s mother did not cede her parenting authority to boyfriend, as required for boyfriend to claim a parental interest in child under statute governing parenting matters between a natural parent and a third party; neither mother nor boyfriend entered their relationship with the intent that he would be considered a co-parent, mother retained decision-making authority in all matters relating to child’s care, mother paid for child’s diapers, clothes, and daycare, and after mother and boyfriend moved to a different city, boyfriend never assumed an equal parenting role or equal responsibility with mother in raising child.

Thieme v. Aucoin-Thieme
No. A-51-15, 076683
New Jersey Supreme Court
Dec. 12, 2016

Bonus paid by employer to former husband after divorce to compensate him for work done during periods of cohabitation and marriage was marital asset subject to equitable distribution only for portion earned during the marriage; legislature did not intend to treat property acquired during period of cohabitation prior to marriage or civil union as equivalent of property acquired during that marriage or civil union.

Windham v. Griffin
295 Neb. 279
Nebraska Supreme Court
Dec. 9, 2016

An individual standing in loco parentis, which is temporary in nature, is not the functional equivalent of a lawful parent for all purposes or in all contexts, including a custody dispute with an adoptive or biological parent, because the parental preference doctrine still applies to this type of custody determination and must be considered in such a dispute; disapproving of Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8, Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1, Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66.

In re Ben
No. 2016-CA-453
Louisiana Court of Appeal, Fifth Circuit
Dec. 7, 2016

Trial court did not abuse its discretion by awarding custody of minor children whose biological parents were dead to maternal and paternal grandmothers rather than to stepfather, despite stepfather’s contention that court placed too much emphasis on the children’s preference; court also expressed great concern regarding children’s school performance and noted paternal grandmother’s extensive experience as an educator, court found that stepfather did not take an active parenting role until mother died and that children did not have an emotional attachment to him, and court recognized that maternal grandmother had been a daily part of children’s lives since their birth.

Slawinski v. Nicholas
No. A-0710-15T1
New Jersey Superior Court, Appellate Division
Dec. 6, 2016

As matter of apparent first impression, mother could not unilaterally terminate grandmother’s visitation that consent order granted but was required to establish change in circumstances that warranted relief and the absence of harm to child from terminating visitation.

P.F. v. Department of Revenue
90 Mass. App. Ct. 707
Massachusetts Appeals Court
Dec. 6, 2016

Incarcerated father filed complaint for downward modification of child support payments ordered following his divorce from his daughter’s mother. The trial court denied the request, reasoning that the father’s loss of income was a foreseeable consequence of his conviction of indecent assault and battery on his daughter. Father appealed. Held: It was undisputed that the father had no income or assets from which to pay child support, the judge acknowledged that the father clearly could not obtain employment while incarcerated, and judge’s decision to make an upward departure from the guidelines was based at least partially upon an impermissible factor, specifically the nature of father’s crime.

Lall v. Shivani
No. a3054-14
New Jersey Superior Court, Appellate Division
Dec. 6, 2016

Trial court retained personal jurisdiction under Uniform Interstate Family Support Act to modify mother’s child support obligation after mother, father, and child had moved to North Carolina; mother and father appeared and participated in the post divorce judgment proceedings. Trial court retained subject-matter jurisdiction under Uniform Interstate Family Support Act to modify mother’s child support obligation after mother, father, and child had moved to North Carolina; mother and father filed motions regarding parenting time and child support, appeared at the hearing, and did not file required consent to allow North Carolina to consider child support issues.
(Ed. Note: This decision is wrong. Once all the parties left New Jersey, the state lost its continuing exclusive jurisdiction, and UIFSA does not require "consents" to be filed.)

In re Marriage of Genise and Schu
2d Civil No. B269831
California Court of Appeal, Second District, Division 6
Dec. 6, 2016, modified Dec. 19, 2016

Wife’s conduct in providing son with alcohol to the extent he drank himself sick, and forcibly cutting daughter’s hair to pressure daughter to help cover up wife’s sexual abuse of son’s 12-year-old friend, was "domestic violence" against son and daughter and thus was a proper basis to deny spousal support to wife in divorce proceeding.

Pliego v. Hayes
No. 15-5895
United States Court of Appeals, Sixth Circuit
Dec. 5, 2016

Father, who was a Spanish diplomat residing in Turkey, filed petition seeking return of his child under Hague Convention on the Civil Aspects of International Child Abduction. After mother brought child to United States a second time, father filed second petition for return of the child under ICARA. The District Court granted father’s petition and ordered award of attorney’s fees. Mother appealed. Held: Child’s mother failed to establish clear and convincing evidence that Turkish court’s inability to adjudicate underlying custody dispute, due to father’s diplomatic immunity, created grave risk that child’s return to Turkey, pursuant to father’s petition under Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), would place the child in an intolerable situation, and thus return of child was warranted; father’s diplomatic immunity had been waived to extent necessary for mother to litigate custody dispute in Turkish courts, there was scant evidence that Turkish courts were corrupt or unduly influenced, and father had indicated his intentions and his willingness to comply with all orders of the Turkish courts.

In re Marriage of Usher
No. B263721
California Court of Appeal, Second District, Division 4
Dec. 2, 2016

Decrease in monthly income from $350,000 per month to approximately $140,000 per month as determined by court was not a material change in circumstances warranting decrease in father’s $17,500 per month child support obligation, where father’s remaining support obligation until child turned 18 totaled less than $2 million, father’s liquid assets exceeded $34 million, and father had just moved from $2.1 million residence into a $19.2 million home and continued to maintain $6.6 million vacation residence. Further, imputation of 1% return on father’s assets was inadequate in post-divorce child support modification proceeding; evidence indicated that father had between $34 and $35 million in savings, money market accounts, or various investment funds, evidence had indicated that father had returned at least 2.46% on investments over prior five years, and father had sufficient assets to allow him to keep a significant portion in cash or money market funds for emergencies while still earning more than a 1% return under a conservative investment strategy.

Custodio v. Samillan
No. 16-1268
United States Court of Appeals, Eighth Circuit
Dec. 2, 2016

Even though divorced mother’s removal of 15-year-old son to United States from Peru, his country of habitual residence, was wrongful and in violation of Hague Convention on Civil Aspects of International Child Abduction (Hague Convention), returning child to Peru over his objections would not further aim of Hague Convention; although mother’s actions in applying to Peruvian court for temporary travel authorization with no intention of returning child, and instead bringing all of her belongings to United States and marrying an American citizen ten days after her arrival were disturbing, and although mother disobeyed five orders from the Peruvian court compelling her to return the child, district court acted within its discretion in denying return of child, under mature child defense, based upon his clear preferences, even though doing so would reward mother for wrongful removal and retention of her son.


Following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Is It Time for Post-Termination of Parental Rights Contact Rights?

There have been bills introduced multiple times to allow a parent that has had a relationship with the child to retain some placement/visitation rights if his or her parental rights have been terminated. If say a father has helped raise a child, but has not had regular contact in some period of time, might it be appropriate to consider granting some limited placement rights to him? There may be certain circumstances where it isn’t appropriate to give such rights; however, it might encourage the absent father to consent to a voluntary termination of his parental rights and avoid costly and hostile litigation that is in no one’s best interests.

Wisconsin’s legal procedure for termination is perhaps the most onerous in the country from a petitioner’s standpoint. It may require two trials, one in front of a jury, in order to terminate rights.

Allowing post-termination of contact may help a consenting parent to save face and act in what is in the best interests of the child. In some cases the degree of relationship may be significant enough so that the best interests of the child would be served by allowing some form of contact. Many states have post-TPR contact rights, isn’t time for Wisconsin to join the trend?

Family Law Related Articles and Publications

The Winter, 2017 edition of the American Journal of Family Law, (Vol. 30, No. 4) includes the following articles. For subscription information, call 1-888-859-8081.

"Rejected" Military Pension Division Orders
By Mark E. Sullivan

DLOM for a Controlling Ownership of a Closely Held Company
By Robert F. Reilly

Measuring a Business Owner’s Compensation
Marshall A. Morris

Law Office Technology: Tales from the Inbox
By Jeffery Allen

And, as always, Cases and Family Law Review Articles.

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.