Family Law Update for March 2016

In this Issue …

A Word from Gregg Herman
Law delegation to Costa Rica and Nicaragua

Wisconsin Courts Updates
GAL Fees

Decisions Across The Nation
UIFSA, Deviation from Child Support Guidelines (two cases) and  life insurance.

A Word from Gregg Herman …

Interested in some exciting – and different – travel?

From October 22-30, 2016, I’ll be leading a legal delegation to Costa Rica and Nicaragua for Nanda Travels, a tour company which combines professional travel with cultural enrichment. For more information, please visit the Nanda Journeys Web site.

I’ve worked with the people at Nanda Travels in the past when I led delegations for People-to-People. Each trip was wonderful — fun, enlightening and fulfilling.

I’ve prepared some additional thoughts on my experiences with People-to-People in the video below. If you have any questions, please feel at liberty to call me at (414) 272-5632 or by using this form.

Play Latest Vlog

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 February 9, 2016, the District I Court of Appeals issued their opinion in Kramschuster v. Schwefel, No. 2015AP1266, which affirmed the order rendered by the Honorable Glenn H. Yamahiro (Milwaukee County).

The Kramschusters are the maternal grandparents of S.LV.-K., a minor child at the center of a long and contentious custody/paternity action. On or about April 22, 2013, the Kramschusters filed a motion for grandparent visitation in the family court. Schwefel was appointed the guardian ad litem for the minor child. At the end of the litigation, the court ordered the Kramschusters to pay 25% of the guardian ad litem fees. The Kramschusters made five $200 payments and then stopped making payments. Instead, in April 2015, they filed an action in small claims court against Schwefel alleging five acts of theft. The small claims court dismissed the action, stating that the matter involved a family court order and should be resolved in family court. The Kramschusters appealed.

The Kramschusters agrued that the small claims court violated their right to a jury trial on the issue of whether Schwefel should return the Kramschusters’ payments. The Court of Appeals found that the small claims court did not erroneously exercise its discretion when it dismissed the Kramschusters’ action and ordered that the matter be resolved by the family court. Here, the Kramschusters’ action is based on an order of the family court. Pursuant to Wis. Stat. § 767.407(6), the family court had the discretion to apportion the guardian ad litem fees. The small claims court reasonably and properly concluded that any confusion the Kramschusters have, or any challenges they wish to make, regarding the guardian ad litem fees already ordered by the family court should be addressed by the court that determined the fees, i.e., family court. Finally, the record contained no evidence that the Kramschusters made a written demand for a jury trial or that they paid a jury fee. Thus, pursuant to Wis. Stat. § 799.21(3), the Kramschusters waived any right to a jury before the small claims court.

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.

Studer v. Studer
320 Conn. 483
Connecticut Supreme Court
February 23, 2016

After a certified copy of a Florida divorce decree, which ordered the father to pay child support, was registered in Connecticut, the mother filed a motion to extend the father’s child support obligation indefinitely beyond autistic child’s graduation from high school. The Superior Court ordered the father’s child support obligation to continue indefinitely, and the father appealed. The Supreme Court held: (1) under the Uniform Interstate Family Support Act, law of Florida which issued initial child support order, and not law of Connecticut where certified copy of Florida judgment was filed after parties moved to Connecticut, controlled determination as to duration of father’s post-majority child support obligation, and (2) the specific provision of the Uniform Interstate Family Support Act governing motion to modify child support, which required that law of state that issued initial support order controlled duration of child support obligation, controlled over more general statute governing support orders that did not specify proceedings to which statute applied. “Accordingly, because it is undisputed that the Florida judgment was rendered before any of the Connecticut orders, the initial controlling order in the present case is the Florida judgment and, therefore, Florida law governs the duration of the defendant’s child support obligation. Furthermore, the parties in the present case do not dispute that Florida law provides for support for adult disabled children.”

Michael J.D. v. Carolina E.P.
2016 NY Slip Op 01252
New York Supreme Court, Appellate Division, First Department
Feb. 18, 2016

Family court’s failure to articulate reasons for deviating from the presumptively correct basic child support amount and, instead ordering non-custodial father to pay all costs for pre-school-aged child’s private school tuition, to continue until the child’s graduation from high school, as well as all fees for the child’s extracurricular activities including after school, weekend, and summer activities required remand of the matter; no benchmark had been provided on what these activities could include, there was no cap on how much they could cost, the expenses were not expressly enumerated add-on expenses in the child support statute, and court failed to articulate why a deviation requiring their separate payment was appropriate.

Haag v. Haag
2016 ND 34
North Dakota Supreme Court
Feb. 18, 2016

If the previous order establishing residential responsibility was based upon the parties’ stipulation and not consideration of the evidence and court-made findings, the court must consider all relevant evidence in deciding whether to modify primary residential responsibility, including pre-divorce conduct and activities the court was not aware of at the time of the prior order. Thus, with respect to ex-wife’s motion to modify primary residential responsibility of the child, trial court misapplied the law and failed to consider relevant pre-divorce conduct when court found ex-husband’s drug and alcohol use and physical abuse did not constitute a material change in circumstances because the drug and alcohol use and abusive behavior were known to the parties before the divorce; statutory standard was whether material change in circumstances existed based on facts which were unknown to the court at the time of the prior order, and ex-husband’s history of physical and emotional abuse was an important new fact the court was not aware of when it entered the judgment establishing residential responsibility and, thus, should be taken into consideration in deciding whether to modify primary residential responsibility.

Davis v. Davis
Kentucky Supreme Court
Feb. 18, 2016

Decedent’s wife, as executrix of his estate, filed action against life insurer for the policy proceeds. Decedent’s ex-wife intervened in action as a third party plaintiff to file a competing claim to those life insurance proceeds and to add decedent’s estate as a third party defendant. The Greenup Circuit Court ruled that parties’ property settlement agreement, which was not incorporated into dissolution judgment, was unenforceable, and appeal was taken. The Court of Appeals affirmed, and decedent’s ex-wife appealed. The Supreme Court held that the ex-wife could bring contract action, seeking enforcement of property settlement agreement. Although parties’ property settlement agreement, whereby ex-husband agreed to keep ex-wife as beneficiary of his life insurance policy, was not incorporated into dissolution agreement, ex-wife was entitled to pursue a claim under common law contract principles, seeking to enforce agreement, and she also was entitled to pursue all equitable claims and remedies available at common law, and this included a claim for unjust enrichment and the imposition of a constructive trust.

In re Marriage of Zacapu and Zacapu-Oliver
No. 47181-7-II
Washington Court of Appeals, Division 2
Feb. 17, 2016

Father moved to revise child support order. Held: (1) the term “children” in child support deviation statute includes stepchildren; thus (2) the trial court had the discretion to order a child support deviation based upon father’s duty to support his six dependent minor stepchildren residing in his home.

Hogan v. McAndrew
No. 2014-255-Appeal
Rhode Island Supreme Court
Feb. 17, 2016

After original custody decree was entered in Rhode Island, and wife was allowed to relocate with children to Ireland, husband filed for modification of custody/visitation. Rhode Island dismissed in favor or Ireland on doctrine of forum non conveniens. Father appealed. Held: In determining whether to decline jurisdiction over child custody dispute in favor of Ireland on ground of forum non conveniens, trial court was required to give significant weight to father’s testimony that forum-selection clause in custody agreement had been a predominant factor in his agreement to allow children to move to Ireland and to high value that was conferred upon the nature of the agreement as a final judgment by consent. The trial court had insufficient evidence to consider statutory factor regarding whether Ireland and Rhode Island courts had ability to decide the procedures expeditiously and had procedures necessary to present the evidence; there was no evidence of procedures necessary to present evidence in Irish courts, and neither party presented a clear understanding of whether courts in Ireland would recognize an American joint-custody arrangement. Reversed and remanded.

Bryan M. v. Anne B.
292 Neb. 725
Nebraska Supreme Court
Feb. 12, 2016

The biological father brought a paternity action on behalf of himself and as the “next friend” of the minor child. He sought a declaration of paternity and custody of the child, who was born 8 years before the action was filed. He claimed that the statute of limitations barring paternity actions after 4 years should be tolled by the doctrines of fraud and equitable estoppel based on misrepresentations of the mother that he was not the father. He asserted that the Court’s holding in Doak v. Milbauer, 216 Neb. 331, 343 N.W.2d 751 (1984), permitted him to bring the action as the next friend of the child. He finally claimed that § 43-1411 is unconstitutional under the Due Process and Equal Protection Clauses of the state and federal Constitutions. The Supreme Court held: (1) biological father of child could not bring paternity action as next friend of child; (2) the doctrine of equitable estoppel did not toll the four-year limitations period for biological father to file a paternity action as to child; (3) the doctrine of fraud did not toll the four-year limitations period for biological father to file a paternity action as to child; and (4) statute governing the filing of a paternity action did not constitute an impermissible gender based classification that violated equal protection.

Shelhamer v. Hodges
2016 MT 29
Montana Supreme Court
Feb. 9, 2016

Father’s annual military housing allowance of $25,776 and annual basic subsistence allowance of $2,955, provided in addition to his base pay, constituted “actual income” that could be included in calculating his child support obligation, within meaning of rule defining actual income to include economic benefit from whatever source derived, and all other government payments and benefits.

Gomez v. Fuenmayor
No. 15-12075
United States Court of Appeals, Eleventh Circuit
Feb. 5, 2016

On petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of child wrongfully removed by her father from her home country of Venezuela, district court did not clearly err in finding that there was “grave risk of harm” to child in Venezuela, and in declining to grant petition, based on evidence of mother’s death threats against father and his immediate circle of friends and relatives, as well as on evidence of mother’s and her new husband’s likely involvement in acts of violence directed against father and his immediate circle of friends and relatives, including one incident in which motor vehicle operated by father’s girlfriend was sprayed with bullets shortly after girlfriend had dropped father and child off, that vehicle had dark-tinted windows that made it impossible to see who was inside vehicle at time shots were fired, and that one of bullets struck just above child seat located inside vehicle.

Stuard v. Stuard
No. C076007
California Court of Appeal, Third District
Feb. 5, 2016

Paternal grandparents filed petition for visitation with grandchild. Held: (1) statute granting grandparents right to petition for visitation with child over father’s objections did not violate father’s due process rights, and (2) father, who had fostered grandparent-child relationship, could not unilaterally terminate the relationship.

Huss v. Weaver
No. 1703 WDA 2013 No. 1703 WDA 2013
Pennsylvania Superior Court
Feb. 5, 2016

Mother brought breach of contract action against father, alleging that father failed to abide by his contractual promise to make $10,000 payments pursuant to terms of contract entered into by parties prior to birth of child and requiring father to pay such amount each time he sought court modification of parties’ custody agreement with respect to any children born as result of relationship between mother and father, and also asserting claims for negligent misrepresentation and fraud. Held: $10,000 clause in contract was not unenforceable as against public policy.

Brozek v. Brozek
292 Neb. 681
Nebraska Supreme Court
Feb. 5, 2016

On a matter of first impression, trial court could order husband to buy wife’s shares in corporation at a price other than price set forth in buy-sell provision.

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.