Family Law Update for January 2019

In this Issue …

A Word from Gregg Herman
WIPCOD Program

Thoughts on Family Law Video
Shared Parenting and Equal Placement

Wisconsin Courts Updates
Nothing this month

Decisions Across The Nation
Capping spousal support, UCCJEA, Common law same-sex marriages, Audiotapes between grandparent and child, Sale of business, Hague Convention and ICARA, Parentage by estoppel, Bankruptcy fraudulent transfer statute and more.

Family Law Online
Articles on divorce and shared financial advisers and social security and gray divorce.

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A Word from Gregg Herman …

Happy New Year!

This begins our 20th year of FLU. As always, I welcome any ideas for improving this service and any comments, so please contact me by using this form.

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The Wisconsin Inter-Professional Committee on Divorce (WIPCOD) is an organization bringing together professionals from various fields all dedicated to providing ongoing learning to help us help our divorcing clients and their families. They bring to Wisconsin nationally recognized presenters to provide a forum for the exchange of innovative methods of dealing with the issues affecting divorcing families.

The dates of the organization’s next two-day conference at the Kalahari in the Dells are April 25 and 26, 2019.

This year’s topics are: Parents with Personality Disorders and Outcomes for their Children presented by Dr. Greg Lester, a clinical and consulting psychologist with practices in Texas and Colorado. The second day’s topic presented by Dr. Robin Deutsch, Director of the Center of Excellence for Children, Families and the Law at William James College, is entitled Step Up Planning and Resisting and Refusing Placement.

Additional information about the speakers and the program as well as registration information can be found at its website. The registration fee of $280 covers both full-day programs, continental breakfasts and lunches both days, and a networking reception on Thursday evening. The one day fee is $160. Register early and avail yourself of a very favorable block room rate at the Kalahari on Wednesday and Thursday evenings.

Thoughts on Family Law

My video this month comments on the ongoing efforts to mandate equal placement in all or virtually all cases. Can you guess my take on this?

Wisconsin Courts Update

— No New Cases —

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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: Some decisions are posted in Adobe Acrobat (PDF) format.

In re Marriage of T.C.
No. D073182
California Court of Appeal, Fourth District, Division 1
December 18, 2018

In the parties’ Marital Settlement Agreement, the parties agreed Wife would pay Husband $850 per month as base spousal support from July 2013 through the end of 2020. On top of the $850, Wife would also pay as additional spousal support 10 percent of any earnings in a calendar year in excess of $180,000. The parties further agreed the parties could petition the court to modify the spousal support. In December 2016, Wife filed a Request for Order (RFO) to modify her spousal support obligations. She had found a new job with a higher salary and contended that in light of these changed circumstances, her obligations under the Agreements exceeded the marital standard of living and would result in a windfall to Husband. The Appellate Court held that the Wife’s increase in earnings did, in fact, constitute a significant change in circumstances, BUT the trial court erred in capping additional spousal support at pre-2016 levels.

Gerty v. Gerty
NO. 2017-CP-00828-SCT
Mississippi Supreme Court
December 13, 2018

Wife was not entitled to raise the defense of condonation to Husband’s Wife’s “fling” with a younger man, Wife lied about the beginning, timing, and duration of her affair, and Wife continued to text, communicate, and spend time with younger man after informing husband that the “fling” had ended.

W.M. v. V.A.
No. B287735
California Court of Appeal, Second District, Division 8
December 13, 2018

Unwed father filed petition seeking legal and physical custody of baby. After trial court granted father’s ex parte request for temporary emergency orders on child custody and visitation, mother filed motion to quash the orders on the ground that California lacked jurisdiction due to prior residency action in Belarus. The court granted the motion, and the father appealed. The appellate court held that notice of Belarus action was insufficient under UCCJEA and thus California court had jurisdiction.

In re Marriage of Hogsett and Neale
No. 17CA1484
Colorado Court of Appeals
December 13, 2018

“Edi L. Hogsett and Marcia E. Neale, a same-sex couple, ended their thirteen-year relationship. Hogsett believed the parties were common law married and petitioned for dissolution. Neale disagreed and moved to dismiss the petition. The district court found that no common law marriage existed and granted Neale’s motion to dismiss. Both parties agree that Obergefell v. Hodges, 576 U.S. —-, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), which overturned laws banning same-sex marriage, applies retroactively in deciding whether a same-sex common law marriage exists between them. This appeal raises a novel issue – does the test for determining whether a common law marriage exists, articulated in People v. Lucero, 747 P.2d 660 (Colo. 1987), apply to a same-sex relationship? We answer that question “yes” but conclude that the Lucero test should be applied consistently with the realities and norms of a same-sex relationship, particularly during the period before same-sex marriages were legally recognized in Colorado. We further conclude that Obergefell provides same-sex couples in Colorado with the same right to establish common law marriages that opposite-sex couples enjoy.”

Dennis v. Davis-Schloemer
2018 N.Y. Slip Op. 08480
New York Supreme Court, Appellate Division, Second Department
December 12, 2018

Maternal grandmother filed petition to modify child custody order to award her sole legal and physical custody of child, or, in the alternative, to enjoin paternal grandmother from relocating with child to California and award maternal grandmother visitation. In an interesting evidentiary ruling, the appellate court held that the Family Court properly granted the paternal grandmother’s motion to suppress audiotapes of conversations between the paternal grandmother and the child. The maternal grandmother and her son (the child’s uncle) were not parties to the conversation, were not present during the conversation, and the maternal grandmother does not assert that, under the circumstances, any vicarious consent was given.

McGinnis v. McGinnis
No. 0678-18-2
Virginia Court of Appeals
December 11, 2018

So much for a divorce court being a court of equity: the trial court had no authority to order “equitable restitution” for the Wife.

In re Marriage of Remitz
No. DA 18-0132
Montana Supreme Court
December 11, 2018

“The District Court ordered the Business asset to be equally divided between Heather and Rick. Although Rick has not provided the specific sale price of the Business, it has been asserted and he has not specifically denied that the Business sold for more than ten times the District Court’s valuation less than one month after the Decree was finalized. Heather asserts that in this unique situation the matter should be reopened to allow inquiry into the circumstances, timing, and terms of the sale process, the cause of the disparity between Rick’s valuation and the actual sale price, and whether it would be fair and equitable that Heather share in the increased value. We agree.”

Monzon v. De La Roca
No. 16-2277, 910 F.3d 92
United States Court of Appeals, Third Circuit
December 7, 2018

Father of minor child who was removed from Guatemala by his mother petitioned for return of child under Hague Convention and ICARA. Held: (1) application filed with Guatemalan authorities and Department of State did not constitute a “proceeding” under ICARA; (2) ICARA required respondent to establish only one affirmative defense to repatriation; and (3) district court did not clearly err in finding that child’s mother offered sufficient evidence that child was well settled in the United States.

Green v. Swiers
No. 20180114, 2018 ND 258
North Dakota Supreme Court
December 6, 2018

Generally, a custodial parent’s relocation cannot be motivated by a desire to put distance between the minor child and the other parent. Here, the district court heard testimony and received evidence of the mother’s animosity towards the father’s family, as well as her desire to replace them with her fiancé. The mother responded by challenging the credibility of the evidence and the weight that should be given to that evidence. But “this Court does not reweigh that evidence, the district court did not misapply the law, and we are not left with a definite and firm conviction the district court made a mistake.”

Shaundell M. v. Trevor C.
No. 2018-02685, 2018 N.Y. Slip Op. 08304
New York Supreme Court, Appellate Division, Second Department
December 5, 2018

The court correctly applied the doctrine of parentage by estoppel since the purported father held himself out to be the child’s father and the child considered him to be the father, called him “Dad” without objection, and had a relationship with the purported father’s other children.

Conoyer v. Kuhl
No. ED 106413
Missouri Court of Appeals, Eastern District, Division Three
December 4, 2018

The petitioner Kyle and the Respondent Rachel were high school sweethearts. After they broke up, Rachel became pregnant as the result of a non-consensual encounter with another man. Rachel told Kyle about her pregnancy, and Rachel and Kyle resumed their relationship. The child was born in 2012, and Rachel and Kyle and the child lived as a family until 2017, when Rachel and Kyle broke up. Kyle filed for third-party custody; Rachel’s motion to dismiss was granted, and Kyle appealed. The court held that Kyle failed to sufficiently allege that Rachel was “unfit” under Section 452.375.5. (Under the statute, the petitioner has the burden of demonstrating the parent or parents against whom the action is brought are unfit, unsuitable, or unable to be a custodian or the welfare of the child requires custody or visitation rights vest with the petitioner.) The court further held, however, that Kyle did adequately allege the “welfare” prong. The trial court’s order was therefore reversed.

In re Sterman
No. 16-10378 (MG) Adv. Pro. Case No. 18-01015 (MG)
United States Bankruptcy Court, Southern District of New York
December 4, 2018

Chapter 7 debtors received both “reasonably equivalent value” and “fair consideration,” under constructive fraud provisions of bankruptcy fraudulent transfer statute and New York fraudulent transfer law, for prepetition college tuition and other education-related payments that they made to allow their daughter to attend private liberal arts college while she was still a minor under New York law, in form of satisfaction of their obligation to provide for their minor child’s necessities, though daughter could have attended public university at much lesser cost. Chapter 7 debtors did not receive “reasonably equivalent value” for transfers that they made to or for benefit of their daughter after she graduated from college, and after she had attained age of majority, and such transfers could be avoid as constructively fraudulent to creditors under bankruptcy fraudulent transfer statute.

Matter of Marriage of Snider and Stroud
No. 77583-9-I
Washington Court of Appeals, Division 1
December 3, 2018

Former wife’s proposed modification of parenting plan so that she could relocate to another state with children was subject to major-modification standard, not minor-modification standard; parenting plan provided for equal residential time with each parent, and proposed modification would have resulted in children residing with former wife the majority of the time. Wash. Rev. Code Ann. § 26.09.260(1, 5).Factors set forth in Child Relocation Act (CRA) are not appropriate to consider once adequate cause is shown for a hearing on a petition to modify a parenting plan based on a parent’s proposed relocation that would modify a schedule providing for equal residential time with each parent.

Law Review Articles of Interest

Alanna S. Welling-Arnold, You’re Not Getting My Property, Dear! I Filed for Bankruptcy! or The Intersection of State Domestic Relations Law and Federal Bankruptcy Law, 27 No. 6 J. Bankr. L. & Prac. NL Art. 4 (Dec. 2018)

Mary Ziegler, Beyond Balancing: Rethinking the Law of Embryo Disposition, 68 Am. U. L. Rev. 515 (Dec. 2018)

Eliza Grace Lynch, A Change in Military Pension Division: The End of Court-Adjudicated Indemnification – Howell v. Howell, 44 Mitchell Hamline L. Rev. 1064 (2018)

Karla M. Doe, Let’s Not Throw out the Baby with the Bathwater: A Uniform Approach to the Domestic Relations Exception, 67 Emory L.J. 1077 (2018)

Devon Quinn, Her Belly, Their Baby: A Contract Solution for Surrogacy Agreements, 26 J.L. & Pol’y 805 (2018)

David Pratt, Marriage, Divorce, Death, and ERISA, 31 31 Quinnipiac Prob. L.J. 101 (2018)

Elizabeth MacLachlan, Tensions Underlying the Indian Child Welfare Act: Tribal Jurisdiction over Traditional State Court Family Law Matters, 2018 B.Y.U. L. Rev. 455 (2018)

Cortney E. Lollar, Criminalizing (Poor) Fatherhood, 70 Ala. L. Rev. 125 (2018)

Tricia Kazinetz, You Can’t Have One Without the Other: Why the Legalization of Same Sex Marriage Created a Need for Courts to Have Discretion in Granting Legal Parentage to More than Two Individuals, 24 Widener L. Rev. 179 (2018)

Jessica Feinberg, A Logical Step Forward: Extending Voluntary Acknowledgments of Parentage to Female Same-Sex Couples, 30 Yale J.L. & Feminism 99 (2018)

Nicole M. Riel, The Other Mother: Protecting Non-biological Mothers in Same-Sex Marriages, 31 Quinnipiac Prob. L.J. 387 (2018)

Rachel Wexler, Artificial Reproductive Technology and Gendered Notions of Parenthood after Obergefell: Analyzing the Legal Assumptions That Shaped the Baby M Case and the Hodge-Podge Nature of Current Surrogacy Law, 27 Tul. J. L. & Sexuality 1 (2018)

Melissa Ruth, Enforcing Surrogacy Agreements in the Courts: Pushing for an Intent-based Standard, 63 Vill. L. Rev. Tolle Lege 1 (2018)

Benjamin S. Paulsen, A Stranger in the Eyes of the Court: How the Judicial System Is Failing to Protect Nonbiological LGBTQ Parents, 2018 U. Ill. L. Rev. 311 (2018)

Morgan McDonald, Home Sweet Home? Determining Habitual Residence Within the Meaning of the Hague Convention, 59 B.C. L. Rev. E-Supplement 427 (2018)

Naomi Cahn, The New “ART” of Family: Connecting Assisted Reproductive Technologies & Identity Rights, 2018 U. Ill. L. Rev. 1443 (2018)

Family Law Online

The following articles are provided for informational purposes only. If you discover an article on divorce or family law related issues that may be of interest to our subscribers, please contact me by using this form.

If You Divorce Your Spouse, You May Want To Break Up With Your Financial Adviser

[I]f the divorce is supposed to be a clean financial break from your spouse, does it really make sense to continue using the same advisers as your ex? More often than not the answer is no, especially if your ex is the one who has the relationship with those advisers. (MarketWatch)

Social Security and Gray Divorce

While I often recommend that married couples coordinate their Social Security claiming strategies to maximize their benefits during their lifetime, as well as to create the largest possible survivor benefit for the spouse who is left behind, this case demonstrates how such a coordinated strategy can backfire in a late-in-life divorce. (Investment News)

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.