Family Law Update for June 2017

In this Issue …

A Word from Gregg Herman
Why do we try so hard to settle cases? Here is objective evidence that judges are human!

Wisconsin Courts Updates
Unpublished (but citable) case regarding discovery, Attorney found in contempt.

Decisions Across The Nation
U.S. Supreme court case on veteran’s retirement pay, Gross income for child support, Vocational examination, Trust fund inheritance, Release of children’s mental health records and more.

Family Law Related Articles and Publications
Family Law Quarterly issue on “Ethics and Access to Justice in Family Law”

A Word from Gregg Herman …

How often do we tell clients that one of the reasons settlement is so important is that judges are human and are subject to normal human emotions.

A recent study in Louisiana provides objective proof. Watch my monthly video below for more!

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Wisconsin Courts Update

Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 May 31, 2017 (too late for a summary of the holding – we will provide one in next month’s FLU) the Court of Appeals issued its decision in Reilly vs. Milshteyn, 2016 AP 1567, an authored opinion which is not recommended for publication. The case involves a divorce attorney and an accounting firm being found in contempt for dispersal of funds contrary to court order (sounds interesting, right?). Here is a link to the decision:

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 May 9, 2017, the District I Court of Appeals issued their opinion in Kastner v. Kastner, No. 2015AP1903, which affirmed the orders rendered by the Honorable Carl Ashley (Milwaukee County).

On July 19, 2013, John filed a petition for divorce following twenty-three years of marriage to Melanie. Melanie filed a motion to compel John’s answers to interrogatories and the production of his documents. At a status conference on September 5, 2014, the court ordered the parties to update their financial information by December 1, 2014 and warned that a failure to comply would result in the failing party forfeiting his or her right to object to the compliant party’s information. At a final pretrial hearing on January 12, 2015, the court ordered the parties to exchange updated wage information and told John to update his financial disclosure statement. The court warned the parties that noncompliance with the court’s order would result in sanctions. The court also confirmed with John on the record, multiple times, that he would appear for a scheduled deposition. John did not appear for the scheduled deposition which resulted in Melanie filing a motion for sanctions and to compel discovery. The court heard the motion and ultimately denied John’s opportunity to request maintenance or property division issues that had not been identified.

Following the courts ruling, John hired counsel and filed a motion to adjourn the trial. He also filed a motion for reconsideration, or in the alternative, for relief from the court’s order striking John’s contest posture for maintenance and property division. The court implicitly denied the motion by recapping John’s conduct and continuing with the trial. John appealed.

John contended that the court abused its discretion and erred by striking John’s position on property division and maintenance as a sanction for missing his deposition. The circuit court has both statutory authority and inherent authority to sanction parties for failure to comply with procedural statutes or rules, and for failure to obey court orders. The heart of John’s argument was that the court relied on inapplicable law when issuing its decision to strike his contest posture. John contended that the circuit court’s reliance on these cases was mistaken because the facts of his case were vastly different.

However, John ignored the fact that these cases stand for the well-established proposition that sanctions are within the discretion of the circuit court. Further, the circuit’s findings regarding John’s persistent failure to cooperate in discovery, and his incredible explanation for his decision not to attend the deposition to which he had committed on the record, demonstrate egregious conduct by John. Therefore, the court concluded that the circuit court properly exercised its discretion in striking John’s contest posture as a sanction for John’s egregious failure to comply with discovery demands and equally egregious failure to attend the scheduled deposition.

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.

Important Supreme Court Opinion

Howell v. Howell
137 S.Ct. 1400
U.S. Supreme Court
May 12, 2017

States are prohibited from increasing, pro rata, the amount divorced spouse received each month from veteran’s retirement pay in order to indemnify divorced spouse to restore that portion of retirement pay lost due to veteran’s post-divorce waiver of retirement pay to receive service-related disability benefits; abrogating Glover v. Ranney, 314 P.3d 535, Krapf v. Krapf, 439 Mass. 97, 786 N.E.2d 318, Johnson v. Johnson, 37 S.W.3d 892, Abernethy v. Fishkin, 699 So.2d 235.

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Ballard v. Ballard
No. 2016-CA-00615-SCT
Mississippi Supreme Court
May 25, 2017

Chancery court relied on inadmissible hearsay in determining that wife was unfit and in applying family-violence presumption against wife, where court’s analysis focused primarily on guardian ad litem’s report and testimony, which consisted of third-party interviews, none of the people interviewed testified at trial, except parties and one of wife’s daughters from previous relationship, and guardian ad litem’s testimony could not be used as substantive evidence.

Pyle v. Pyle
No. Pen-16-443
Maine Supreme Court
May 23, 2017

Trial court did not commit clear error or an abuse of discretion when it calculated husband’s gross income from his landscaping business for child support purposes; although husband’s tax return listed gross receipts of only $11,764 by his business, at trial he admitted that the bank account he used solely for the business showed total deposits of $18,538.48, he acknowledged that the deposits to that account constituted the gross receipts of his business, and his testimony supported trial court’s finding that husband’s tax return misrepresented the earnings from his landscaping business, and its finding that his gross income from the business for child support calculation purposes—gross receipts less business expenses indicated by the tax return—was in fact close to $12,000, rather than the $6,615 as he had represented.

Eberbach v. Eberbach
No. M2014-01811-SC-R11-CV
Tennessee Supreme Court
May 23, 2017

Court of Appeals has no discretion whether to award attorney’s fees when the parties in post-divorce proceedings have a valid and enforceable marital dissolution agreement which requires an award of reasonable attorney’s fees to a prevailing or successful party.

Thomson v. Thomson
No. S-16155
Alaska Supreme Court
May 23, 2017

Following entry of divorce decree, ex-husband moved to amend Qualified Domestic Relations Order (QDRO), which divided ex-husband’s Public Employees’ Retirement System (PERS) retirement account, to require that ex-wife’s benefit under the QDRO be calculated using ex-husband’s salary at the time of divorce, rather than his salary at the time of retirement. Held: property settlement agreement that was incorporated into divorce decree did not contain clear language requiring the use of ex-husband’s salary at the time of divorce when calculating ex-wife’s benefit under QDRO, and thus, ex-wife’s benefit was to be calculated using ex-husband’s highest salary data at retirement.

In re Marriage of Stupp and Schilders
No. A144762
California Court of Appeal, First District, Division 2
May 18, 2017

There can be good cause for a vocational examination in a dissolution of marriage proceeding only if the examination is relevant to a determination of spousal support; put another way, if support is not at issue, there is no need for the inquiry that a vocational examination is intended to address, and no “good cause” to order one. Thus, family court lacked good cause to order vocational examination in light of lack of any pending support-related motion, although wife had appealed existing support orders, including imputation of income to her.

Selvage v. Moire
Hawaii Supreme Court
May 15, 2017

Husband’s trust fund inheritance did not generate partnership income by increasing in value during the marriage, and thus entire trust fund was husband’s sole and separate property to be awarded to him in divorce proceeding; husband received the balance of the inheritance during the divorce proceedings, wife did not establish that trust distributions during marriage represented anything other than periodic distributions of the trust corpus, and balance of husband’s inheritance decreased during marriage.

Glassie v. Doucette
No. 2015-276-Appeal; No. 2015-277-Appeal
Rhode Island Supreme Court
May 10, 2017

Testator’s estate was not collaterally estopped from challenging request by testator’s former wife for specific bequest in will based on stipulation entered by Family Court in parties’ prior divorce proceedings, in which former wife and testator stipulated that testator’s will was in full compliance with property-settlement agreement requiring that testator’s obligations remaining executory at time of his death would be fulfilled and that former wife be provided sum certain bequest to ensure payment of such obligations, given that issue of testator’s testamentary intent in event he fully satisfied his obligations under agreement before his death was not litigated and would have been beyond Family Court’s jurisdiction.

Rinehart v. Svensson
No. 2015-350
Vermont Supreme Court
May 5, 2017

Findings supported conclusion that release of children’s mental health records to noncustodial father was not in the best interests of the children, and therefore release was not warranted, despite father’s general right of access to the records; court noted that release of such records could prevent the children from seeking or succeeding in treatment and that the children could have been emotionally harmed by a forced disclosure.

Family Law Related Articles and Publications

The Fall 2016 edition of the Family Law Quarterly issue (Vol. 50, No. 3) is on Ethics and Access to Justice in Family Law. Articles include:

The Changing Landscape of Disciplinary Risks in Family Law Practice
By Barbara Glesner Fines

Until the Client Speaks: Reviving the Legal-Interest Model for Preverbal Children
By Lisa Kelly and Alicia LeVezu

Administrative Divorce Trends and Implications
By Hon. Lynda R. Munro (Ret.), Johanna S. Katz & Meghan M. Sweeny

The Preferences and Voices of Children in Massachusetts and Beyond
By Donald G. Tye

For ordering or subscription information (the current issue may not be available yet), please visit the Family Law Quarterly Web site.

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.