Family Law Update for May 2016

In this Issue …

A Word from Gregg Herman
Divorce Cooperation Institute Seminar and Vlog on Grandparents Visitation Case

Wisconsin Courts Updates
Supreme Court grandparent visitation case, Unpublished case on modifying custody and placement

Decisions Across The Nation
Relocation, dischargeability of joint debt in bankruptcy, visitation rights of same-sex spouse, domestication of German judgment and personal jurisdiction, UCCJEA, Wrongful death settlement and recording conversation with child.

Legislative Watch
Income assignment and Percentage Expressed Orders (PEOs)

Business Valuations
Active v. Passive Appreciation

Family Law Related Articles and Publications
Family Law Quarterly issue on Family Law in the Fifty States. Family Advocate issue on Same-sex marriage

A Word from Gregg Herman …

Be sure to reserve your spot for the Divorce Cooperation Institute’s annual seminar on Nov. 11, 2016 in Delafield, Wisconsin. Once again, this seminar will be designed to cover topics relating to settlement, ethics and professionalism in a manner not normally covered by CLE seminars.

For more information, please visit the DCI Web site.

• • •

My Thoughts on Family Law vlog this month offers some extended thoughts on the Wisconsin Supreme Court’s in Meister v. Meister, which is also covered in my Wisconsin Courts Update below.

Meister required the Supreme Court of Wisconsin to interpret Wis. Stat. §767.43(1), which allows certain categories of individuals to petition for the right to visit children usually following the dissolution of a marriage.

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Wisconsin Courts Update

On April 7, 2016, the Supreme Court of Wisconsin issued their opinion in Meister v. Meister, No. 2014AP1283 (April 7, 2016), which reversed the unpublished decision of the Court of Appeals.

This is a review of an unpublished decision of the court of appeals affirming a circuit court order denying a grandmother’s motion for visitation rights. The case required the Supreme Court of Wisconsin to interpret Wis. Stat. §767.43(1), which allows certain categories of individuals to petition for the right to visit children usually following the dissolution of a marriage. Under the statute, a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child may file a motion for visitation rights. The Supreme Court of Wisconsin had to determine whether the parent-child relationship requirement applied only to the person category listed in the statute, or whether it applied to a grandparent, greatgrandparent, and stepparent as well.

The case arose after Carol Meister filed a motion for the right to visit her four grandchildren in the wake of her son Jay Meister’s divorce from Nancy Meister. A family court commissioner for the Jefferson County Circuit Court initially granted the motion, but the circuit court denied the motion on de novo review. Reading Wis. Stat. §767.43(1) as requiring every petitioner under this subsection to demonstrate a parent-child relationship with the child, the circuit court concluded that Carol’s supportive relationship with the children did not elevate her to a parent-like role in their lives.

The Meister children appealed, and the court of appeals affirmed, citing its decision in Rogers v. Rogers, 2007 WI App 50, 300 Wis. 2d 532, 731 N.W.2d 347, as controlling. In Rogers, the court of appeals stated that grandparents filing a motion under Wis. Stat. §767.43(1) must prove a parent-like relationship with the child in order to secure visitation rights. Shortly after the court of appeals issued its decision on February 5, 2015, Carol passed away. The Meister children filed a petition for review, which the Supreme Court of Wisconsin granted.

The Meister children argued that the court of appeals misinterpreted Wis. Stat. §767.43(1) in Rogers. They asserted that the phrase “who has maintained a relationship similar to a parent-child relationship with the child” applies only to a person other than a grandparent, greatgrandparent, or stepparent filing a motion for visitation under the subsection. Nancy countered that reading the subsection to allow courts to grant visitation rights to grandparents, greatgrandparents, and stepparents based solely on a best interest of the child determination would intrude on parents’ fundamental due process rights to direct the care, custody, and control of their children.

In examining Wis. Stat. §767.43(1) in its present form, the Supreme Court of Wisconsin found it was clear that the legislature had gradually expanded the number of persons who may petition for visitation rights. The current statute allows grandparents, greatgrandparents, and stepparents to petition for visitation rights, and it allows other persons to seek visitation as well, so long as they have “maintained a relationship similar to a parent-child relationship with the child.”

Given the legislature’s history of expanding visitation rights and the fact that any court considering a child’s best interests under Wis. Stat. §767.43(1) must give special weight to fit parents’ best interest determinations, the Supreme Court of Wisconsin concluded that a grandparent, greatgrandparent, or stepparent need not prove a parent-child relationship in order to secure visitation rights under that subsection.

Consequently, the decision of the court of appeals was reversed.

Editor’s Note: Please read my analysis of this decision in my column in the State Bar of Wisconsin upcoming May 18th edition of InsideTrack.


• • •

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 April 19, 2016, the District I Court of Appeals issued their opinion in Gadsby v. Martinez, No. 2015AP1239, which affirmed the order rendered by the Honorable Marshall B. Murray (Milwaukee County).

This case has a long and complicated factual background with the parties being at odds since M.A.M.’s birth. M.A.M. is the non-marital child of Gadsby and Martinez. On March 27, 2014, Gadsby filed an emergency motion to amend placement due to concerns raised by M.A.M.’s therapist that M.A.M. may have been subjected to physical and sexual abuse by his father. Martinez responded by filing his own motion to modify placement, alleging that Gadsby made unfounded and unsubstantiated allegations against Martinez that were causing emotional harm to M.A.M. A trial was held and the circuit court found that a substantial change in circumstances warranted a transfer of M.A.M.’s primary placement and sole custody to Martinez. Gadsby appealed.

Gadsby first contended that because neither party moved for custody modification, the circuit court had no authority to transfer sole legal custody of M.A.M. to Martinez. However, Martinez made an oral request at the end of trial when his counsel explicitly asked the circuit court whether it would make a custody ruling. Gadsby did not object then. Also, custody and placement had been repeatedly mentioned by the circuit court, over the course of several months, as the purposes of the eventual trial. Therefore, all the parties had many months of notice that both custody and placement were being considered.

Gadsby also argued that the circuit court erroneously exercised its discretion when it found that a substantial change in circumstances warranted modification of M.A.M.’s physical placement. The circuit court found that since the entry of the last order regarding placement, Martinez discovered that he was the subject of an abuse investigation. The circuit court also expressly considered the rebuttable presumption that continued placement with Gadsby was in M.A.M.’s best interest but in consideration of various factors determined that the presumption was overcome. Therefore, the Court of Appeals concluded that the circuit court examined the relevant facts, applied the proper legal standard and used a demonstrated rational process to reach a reasonable conclusion.

Finally, Gadsby argued that the circuit court erroneously exercised its discretion when it refused to allow testimony from Dr. Kelly, M.A.M.’s therapist in Colorado. The circuit court only refused to accept the anticipated lengthy testimony of the witness by telephone due to sound system issues. The circuit court never forbade Dr. Kelly’s testimony. There remained other ways to produce Dr. Kelly’s testimony. However, Gadsby never raised the issue of Dr. Kelly’s testimony following the pretrial hearing and the record contained no evidence that she tried any other means.

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.

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.

Yap v. Vinton
No. Oxf-15-373
Maine Supreme Judicial Court
April 14, 2016

Trial court’s findings were not the result of careful judicial deliberation and the exercise of independent judgment, and as a result, court’s decision granting unwed mother shared parental rights and responsibilities of child would be vacated; number of the court’s findings resembled a party’s advocacy and were not supported by evidence in the record, and court’s error in this respect was compounded by the failure to make any additional, independent findings.

Mullins v. Mullins
No. 20141025-CA, 2016 UT App 77
Utah Court of Appeals
April 14, 2016

Trial court did not abuse its discretion in equalizing the parties’ debts in divorce action, taking into consideration each of their respective debts, including wife’s student-loan debt; while the court acknowledged that wife had a benefit, it explained that she still had substantial debt, expressly made wife liable for her student-loan debt, then allocated the joint debt to husband to equalize the parties’ respective standard of living, and the distribution was not inequitable given the employment status of the parties and husband’s superior earning capacity, which was almost seven times that of wife

Larson v. Larson
No. 20150178
North Dakota Supreme Court
April 23, 2016

Order denying ex-wife’s motion to relocate with parties’ children from North Dakota to Florida was not clearly erroneous; district court found that request to relocate was, at least in part, motivated by a desire to limit ex-husband’s regular contact with the children, it noted that ex-wife had previously been found in contempt when she and children had traveled to Brazil and had not returned until three weeks after agreed-upon time, and it also noted that ex-wife had been a chronic, unapologetic reporter of unfounded reports to local law enforcement.

Collins v. Collins
No. SAG-15-54
Maine Supreme Judicial Court
April 12, 2016

Husband’s obligation to pay money to wife as part of adjudication of property issues in the course of divorce proceeding were nondischargeable in husband’s bankruptcy, and, in a matter of first impression, joint debt owed to one of parties’ creditors was not dischargeable in bankruptcy.

Martinez v. Vaziri
No. H041758
California Court of Appeal, Sixth District
April 8, 2016

Juvenile court’s finding that failing to recognize biological uncle as a third parent would not involve removing child from a “stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs,” on the basis that “removal” had already occurred because the uncle had stopped living with the mother and child when the child was six months old, and when child was one year old Child Protective Services (CPS) had imposed a case plan prohibiting contact between child and uncle for six months based on his admission that he caused bruises by spanking the child, indicated that the juvenile court misconstrued the “harm of removing the child” factor as pertaining primarily or solely to the child’s living arrangement, thus supporting remand for reconsideration, where uncle’s visitation with child was ongoing at the time of the trial court hearing, and uncle held child out as his daughter to all but a small set of family and friends who knew he was not the biological father.

In re Marriage of Meister
876 N.W.2d 746
Wisconsin Supreme Court
April 7, 2016

Pursuant to Wis. Stat. Ann. 767.43, “Except as provided in subs. (1m) and (2m), upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.” The phrase “who has maintained a relationship similar to a parent-child relationship with the child” applies only to an otherwise undefined “person” who petitions for visitation rights under Wis. Stat. § 767.43(1), not to a grandparent, greatgrandparent, or stepparent. A grandparent, greatgrandparent, or stepparent need not prove a parent-child relationship to succeed on a petition for visitation.

Bisbing v. Bisbing
No. a5047-14
New Jersey Superior Court, Appellate Division
April 6, 2016

Non-custodial parent opposing custodial parent’s request to relocate with children to another state was entitled to plenary hearing on whether custodial parent negotiated marital settlement agreement (MSA) with non-relocation provision in good faith or manipulated the situation prior to divorce in order to obtain favorable Baures removal procedures of good faith reason for the move and lack of inimical effect on children’s interests; custodial parent began dating another man four months before divorce, left well-paying job to stay home with children three months after divorce, and informed custodial parent of remarriage and desire to relocate six months after that, and close proximity between MSA and plans to relocate provided evidence of suspicious circumstances.

Kelly S. v. Farah M.
2016 N.Y. Slip Op. 02676
New York Supreme Court, Appellate Division, Second Department
April 6, 2016

Same-sex spouse of biological mother of two children conceived through artificial insemination filed petition seeking visitation with children following her separation from biological mother. The Family Court denied biological mother’s motion to dismiss same-sex spouse’s petition for visitation with the children on the ground of lack of standing or, in the alternative, to schedule a hearing on the issue of the spouse’s standing, and to join the children’s biological father as an additional necessary party to the proceeding, and dismissed, with prejudice, biological mother’s petitions to establish the paternity of the subject children. Custodial mother appealed. The Supreme Court, Appellate Division, held that same-sex spouse had standing to seek visitation. Under New York law, same-sex spouse of biological mother of two children conceived through artificial insemination and born in California was presumed parent of those children, under California law, and therefore had standing to seek visitation with and custody of the children, following the parties’ separation, notwithstanding that parties failed to comply with either California’s or New York’s artificial insemination law, where one child was born when the parties were registered domestic partners in California, the other child was born after the parties were legally married in California, both children were given spouse’s surname, and spouse was listed as parent on both children’s birth certificates.

Server v. Department of Revenue
No. 4D15-1570
Florida District Court of Appeal, Fourth District
April 6, 2016

In proceeding initiated by Department of Revenue, seeking enforcement of German divorce court’s final judgment for child support, former husband objected to domestication on grounds that the German court lacked personal jurisdiction over him. The court held: German court granting wife’s divorce petition lacked minimum contacts to establish personal jurisdiction over husband, as required to support domestication in Florida of German court’s final judgment for unpaid child support for the couple’s second child; although husband and wife were married and conceived their first child in Germany while husband was stationed there as a member of the United States military, husband left Germany before first child’s birth and never returned, husband established the parties’ residence and domicile in Florida, where the second child was born and husband still lived, wife and child returned to Germany without husband’s consent or encouragement, and the German action involving the failure to pay support was not commenced until twenty-five years after husband left Germany.

In re Salminen
No. 01-14-01021-CV
Texas Court of Appeals, Houston (1st Dist.)
April 5, 2016

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Texas does not qualify as a child’s home state when the child has not lived in Texas for the six-month period immediately preceding the filing of the child custody action in Texas. Thus, Texas trial court did not have home state jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), for a child custody dispute involving a child who was a dual citizen of Finland and the United States and had lived in Finland most of her life, even if child and mother resided in Texas at the time mother filed her original child support petition in the trial court, absent evidence of the child’s permanent residence or the length of her residency in Texas.

In re Marriage of Fortner
No. 5-15-0246, 2016 IL App (5th) 150246
Illinois Appellate Court, Fifth District
April 5, 2016

Wrongful death settlement proceeds received by ex-husband following death of ex-husband’s father constituted “income,” for calculation of whether ex-husband’s income had increased and thus whether modification of child support was proper pursuant to the Marriage and Dissolution of Marriage Act, even if settlement included damages for emotional grief and loss; broad statutory definition of income included all benefits and gains unless specifically excluded by statute, and settlement proceeds represented an increase in ex-husband’s financial resources.

People v. Badalamenti
2016 N.Y. Slip Op. 02556
New York Court of Appeals
April 5, 2016

If a parent or guardian has a good faith, objectively reasonable basis to believe that it is necessary, in order to serve the best interests of his or her minor child, to create an audio or video recording of a conversation to which the child is a party, the parent or guardian may vicariously consent on behalf of the child to the recording, for purposes of the eavesdropping statute. However, a parent or guardian who is acting in bad faith or is merely curious about his or her minor child’s conversations cannot give lawful vicarious consent to their recording, for purposes of the eavesdropping statute. In deciding whether a parent or guardian had a good faith belief that a recording of a telephone conversation, to which a minor child was a party, was necessary to serve the best interests of the child, and whether this belief was objectively reasonable, as required for vicarious consent doctrine to be applicable for purposes of eavesdropping statute’s consent requirement, the courts must consider the age and maturity of the child, and a significant factor is whether the child is capable of formulating well-reasoned judgments, of his or her own, regarding best interests.

Ed. Note: The vicarious consent doctrine has a long history. See Deana A. Labriola, Comment, Parent-Child Wiretapping: Is Title III Enough?, 50 Cath. U. L. Rev. 429, 439 & n.71 (2001); JulieAnn Karkosak, Note, Tapping into Family Affairs: Examining the Federal Wiretapping Statute as it Applies to the Home, Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), 68 U. Cin. L. Rev. 995, 1007 (2000).)

Legislative Watch

On Family Law: Income Withholding No Longer Permissible
on Percentage Expressed Child Support Orders

If the parties stipulate to a Percentage Expressed Order (PEO) for support, the income assignment will need to convert it to a Dollar Expressed Order, according to an article by Attorney Connie Chesnut in a recent edition of the State Bar of Wisconsin’s “Inside Track”:

“Wisconsin law was recently amended to prohibit the use of income withholding to enforce percentage expressed child support orders. 2015 Wis. Act 172 amended Wis. Stat. sections 767.75(1f) and (3m) to provide that all income assignments must be for a fixed sum regardless of whether the court-ordered obligation on which the assignment is based is expressed in the court order as a percentage of the payer’s income.”

Business Valuations

The following information is provided courtesy of Gregory J. Ksicinski, CPA/ABV, MSTSVA Certified Public Accountants, S.C., Brookfield, WI 53045. You can reach Greg at 262-923-5133 or via e-mail.

Active v. Passive Appreciation

The issue of active and passive appreciation of business assets in a divorce context is growing in prevalence. A recent Florida ruling further explores the scope of appreciation: Does a nonowner spouse have a claim to the increased value of all nonmarital assets without showing marital effort or the use of marital assets to achieve the appreciation?

H was a middle manager at a large privately-held company (not family-owned) and bought stock in the company. After a couple demotions, he was terminated and sold his stock for significantly more than he paid for it. W argued that because he worked for the company, all of the appreciation was marital.

The key issue involved whether H exerted the sort of effort required to move the appreciation from nonmarital to marital. The holding in the case was that the appreciation was passive and therefore nonmarital. The Court held that whether appreciation qualifies as a marital asset depends on the nature of the company and the position he or she holds in that company. In other words, the issue is whether the owner spouse can switch the appreciation from the passive to active column.

See: Witt-Bahls v. Bahls, No. 4D14-152 (Fla. Dist. Ct. App. Feb. 3, 2016)

Family Law Related Articles and Publications

Family Law Quarterly: Winter 2016

The Winter, 2016 (Vol. 49, No. 4) issue of the Family Law Quarterly, published by the ABA Family Law Section, is its annual “Family Law in the Fifty States,” which includes a review of the year in family, charts reflecting the laws on certain family law issues in each state and its annual survey of periodical literature.

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

Family Advocate: Spring 2016

The Spring, 2016 edition (Vol. 38, No. 4) of the Family Advocate, is on same-sex marriage. Articles include:

The Path to Marriage Equality and the Road Ahead
By Kenneth J. Bartschi

No More ‘Same-Sex Marriage’: Marriage is Marriage, Period
By Richard A. Roane

Practicing LGBT Family Law in a Post-Obergefell World
By Deborah H. Wald

The Impact of Marriage Equality on LGBT Parents
By Catherine Sakimura

Premarital and Marital Agreement and Migratory (Same-Sex) Couple
By Linda J. Ravdin

Federal Tax and Same-Sex Marriage
By Michael R. Stetler

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

Family Law Mediation: Master Checklist
By Mark E. Sullivan

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.