Family Law Update for April 2019

In this Issue …

A Word from Gregg Herman
Wisconsin Journal of Family Law

Thoughts on Family Law Video
Wisconsin’s Relocation Law

Wisconsin Courts Updates
Two unpublished (but citeable) cases on maintenance.

Decisions Across The Nation
Relocation case, Spousal support and Marriage-like relationship, Imputing income to homemaker, Grandparent visitation, Name change application for transgender child and more.

Family Law Online
Effect of divorce on children’s education, FERS annuities in divorce and Gray divorce and more.

Family Law & Mental Health
New blog by Ken Waldron

Family Law Articles and Publications
American Journal of Family Law

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A Word from Gregg Herman …

The second most valuable publication for a Wisconsin family law practitioner (FLU, of course, is #1!) has historically been the Wisconsin Law Journal. [Personal note: I was on the editorial board for a number of years and Editor-in-Chief for two years.] In addition to interesting articles, it has been cited by Wisconsin appellate court numerous time. To my delight, a case on stock options heavily relied on an article which I had written on the subject for the WJFL. However, for some reason, the publication fell by the wayside and has not appeared for the last couple of years.

Fortunately, thanks to a new editor-in-chief, Judge Tom Walsh from Brown County, it’s back. Not only is it back, but it is actually printed in hard copy! And the first issue is terrific, including articles on divorces involving children with special needs, the role of parenting coordinators, maintenance under the new law, the new relocation statute and more.

If you are a member of the Family Law Section of the State Bar of Wisconsin, you will get a copy as a membership benefit. If you are not a member, trust me, the WJFL is worth the dues in and of itself.

Thank you to Judge Walsh and his editorial board for bringing it back from the dead.

Thoughts on Family Law

This month I share my thoughts on Wisconsin’s Child Relocation Law, which went into effect in July 2018.

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 March 5, 2019, the District I Court of Appeals issued their opinion in Skodowki v. Skodowki, No. 2017AP2425, which affirmed the order rendered by the Honorable Paul R. Van Grunsven (Milwaukee County).

Allan appealed an order for indefinite maintenance to his wife, Gloria, which was based on his “likely annual income”. Allan argued that the maintenance award improperly imputed income to him based upon his former employment and did not properly consider both the support and fairness objectives. The court of appeals affirmed.

The parties were marriage 21 years prior to the commencement of the divorce. While both worked full-time during the marriage, Gloria was the primary caretaker of their three children, now all adults.

Allan’s base income in 2016 was $184,500. A month before the divorce trial stated, Allan’s employer informed him that it intended to wind down his division. Allan acquired that division for $10 and became sole owner, paying its eleven other employees the same salary as paid to them by the previous owner. At trial, Allan testified about several possible future income scenarios, but that he hoped to earn about $120,000 to $125,000 per year. By the final day of trial (the divorce trial lasted over five months), Gloria was on short-term disability due to health issues.

The trial court found Allan’s income to be $184,500 (the same as with the previous employer) and order indefinite maintenance of $4,784 per month plus 45% of any additional annual income.

The court of appeals affirmed. It found that this was not a shirking case, but an “uncertain income” case. The appellate court noted that the $184,500 amount was lower that the $258,000 which Allan said was his prospective income [emphasis in original].

The appellate court further found that the trial court properly considered the various factors and the dual objectives of maintenance and thus properly exercised its discretion.

• • •

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 March 5, 2019, the District III Court of Appeals issued their opinion in Gildersleeve v. Gildersleeve, No. 2018AP120, which reversed and remanded the order rendered by the Honorable Jeffery Anderson (Polk County).

The parties were married 27 years. Troy was the primary earner, with an base salary of approximately $99K with non-guaranteed commission bonuses between $18K and 40K per year. Sayuri had been primarily a wage earner, but was working two jobs at the time of tdivorce, earning approximately $21K annually.

The ordered no monthly maintenance as it found that Troy was “under water” due to the debts assigned to him. However, it ordered him to pay Sayuri 60% of the “net” of any bonuses until he was 63 years old (he was 48 at the time of divorce). Sayuri appealed and the appellate court reversed.

The appellate court held that the trial court ordered failed both the support and fairness objectives. The court found that the order created an “unquestionable disparity” between their standards of living. Also, the commission bonuses were variable and uncertain. At best, Sayuri would have a three month wait for any support and at worse, would receive none.

The appellate court also reversed and remanded several aspect of the property division order and they were unfair to Sayuri or inadequately explained by the trial court.

• • •

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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 C.T. and R.B.
19 Cal. Daily Op. Serv. 2487
California Court of Appeal, Fourth District, Division Two
March 19, 2019

Father, who lived in Arkansas, moved for custody of child who lived with mother in California. There was evidence that the father was the parent less likely to interfere with the other parent’s visitation. However, the father did not meet his burden of proving that the anticipated impact of the child’s relocation to the father’s home in Arkansas would not be detrimental to his existing social, educational and familial relationships. Such potential detriment includes detriment to A.B. from the significantly diminished contact with Mother, his Stepfather, stepsiblings living with A.B., his school, his friends, his accustomed place of residence and community, and his doctors and therapists. The trial court’s order granting the father’s motion was thus reversed.

Kelly v. Leaird Kelly
2019 N.Y. Slip Op. 01964
New York Supreme Court, Appellate Division, Fourth Department
March 15, 2019

Former husband moved to terminate spousal support based on the former wife’s cohabitation. At the hearing, defendant and the man with whom she lives testified that they have a friendship and landlord-tenant relationship. However, it is undisputed that defendant reconnected with the man on a dating website and moved directly into his home from her marital residence, after which they commenced a sexual relationship. They have taken multiple vacations together, including for his family reunion, and they sometimes shared a room while on those vacations. Defendant wears a diamond ring on her left hand that the man purchased. They also testified regarding their complicated financial interdependence. For example, defendant pays varying amounts of rent to the man depending on her financial situation, and the man pays defendant for work she purportedly performs for him. Notably, defendant did not declare as income the amounts she received from the man for the work she performed, and the man did not declare those amounts as an expense. Further, contrary to the court’s finding, the record does not show that the sexual relationship between defendant and the man had ended. We therefore conclude that plaintiff established by a preponderance of the evidence that defendant was engaged in a relationship or living with the man in a manner resembling or suggestive of marriage.

Editor’s Note: When is the last time you got a diamond ring you wear on your left hand from your landlord? How did she argue her position with a straight face? Compare this month’s Schaffeld v. Schaffeld, A18A1947 (Georgia Court of Appeals, March 7, 2019) (former wife was not engaged in a meretricious relationship with her romantic partner, as required to support termination of former husband’s alimony obligations pursuant to parties’ divorce decree; although former wife and partner regularly spent time together and had overnight visits, they did not continuously cohabitate, as they did not spend every night together and they each retained their own residences.

Frerking v. Stacy
No. 5D18-2327
Florida District Court of Appeal, Fifth District
March 15, 2019

A reminder that there are limits to imputing income to wives who have been out of the workforce. Here, the appellate court determined that the trial court erred by imputing an annual income of full-time public school teacher to the wife, although the husband’s vocational expert testified that the wife could maximize her income if she pursued teaching. The evidence indicated that the wife had never been full-time teacher and had never earned an annual salary equal to even half the amount imputed to her, the wife had no teaching certificate and did not meet educational requirements to hold public school teacher’s job, the wife had rarely worked full time during their marriage, and the wife had primarily been homemaker focused on couple’s children.

Editor’s Note: See also this month’s Flom v. Flom, 2019 N.Y. Slip Op. 01643 (New York Supreme Court, Appellate Division, First Department, March 7, 2019.

MacTavish-Thurber v. Gauvin
No. 2017-48-Appeal
P 15-188M
Rhode Island Supreme Court
March 13, 2019

Maternal grandmother filed a petition seeking grandparent visitation with her two grandchildren after the mother died. The trial court denied the petition, and she appealed. The Supreme Court held that the grandmother failed to rebut the presumption that father’s decision to refuse grandparent visitation was reasonable. The children had no interest in visiting with plaintiff, and … the children are happy and healthy with their father and stepmother, … Moreover, the hearing justice considered defendant’s testimony concerning the detrimental impact that the visits with plaintiff had had on the children and the fact that neither he nor the children wished to continue visits with plaintiff at that time.

Matter of Chrestensen
No. 2018-0061
New Hampshire Supreme Court
March 8, 2019

Biological father, who had surrendered parental rights to child, filed petition for parenting time. The Supreme Court held that biological father was not a parent who would have standing to maintain a petition for parenting time. In this case, the appellant is the biological father of the child at issue and was considered a parent … In 2012, however, the appellant surrendered his parental rights to the child … The term surrender is statutorily defined as the release of all parental rights, including but not limited to care, custody, and control of the child, by a parent, legal guardian, or agency…. Upon the court’s approval of the surrender, all of the appellant’s parental rights ceased with respect to the child, except for certain inheritance rights and privileges that remained in effect until the court issued the final decree of adoption. We conclude, therefore, that when the appellant surrendered his parental rights to the child pursuant to RSA chapter 170-B, he also relinquished his status as a parent of that child for purposes of RSA chapter 461-A. Consequently, he now lacks standing to maintain a petition for parenting time with that child under RSA chapter 461-A.

Lehn v. Al-Thanayyan
No. 1 CA-CV 17-0756 FC
Arizona Court of Appeals, Dvision 1
March 7, 2019

The trial court did not err in putting substantial restrictions on the father’s parenting time, where he was a Kuwaiti citizen and often traveled to Kuwait on business. The evidence supports the court’s findings that Father has legitimate reasons to travel to Kuwait, has significant financial and familial ties to Kuwait, and lacks any significant ties to Arizona, particularly since he sold his house and has no job in Arizona. The finding that Father might not return the children to Mother in the United States is supported by evidence that Father had told one child to lie to Mother about having a cell phone and had told the child he was old enough to visit Kuwait on his own and more than that. Father refused to explain what he meant by more than that. Moreover, Father petitioned for divorce in Kuwait by falsely alleging that Mother had left Kuwait without legal justification and submitted a power of attorney stating that he was the children’s natural guardian. These filings could be viewed as an attempt to establish rights under Kuwaiti law.

Editor’s Note: Shout out to Angie Hallier for a job well done!

Connor v. Benedict
481 Mass. 567, 118 N.E.3d 96
March 7, 2019

Evidence supported the trial court’s finding that the husband and wife cohabited and entered into an economic marital partnership prior to their marriage, for purpose of determining wife’s entitlement to alimony following parties’ divorce, even though the wife was receiving alimony from her prior husband during that time. The wife had become disabled and relied on the husband’s health insurance, the wife relied on the husband’s salary, the parties shared in the purchase of house together, the husband repeatedly represented his wife to his employer as his domestic partner, and the husband held out wife’s son as his own in an obituary.

Hill v. Burnett
A18A1655
Georgia Court of Appeals
March 7, 2019

Former same-sex partner of biological mother of twins brought action against mother seeking legitimation and establishment of child custody and parenting rights based on theories of implied contract, promissory estoppel, and constitutional rights. Following dismissal of action, mother moved for attorney fees under statute governing an award for attorney fees for actions lacking substantial justification. The trial court granted motion and directed payment of $25,475.87 in attorney fees to mother. Partner sought discretionary review of attorney fees award, which was granted. The Court of Appeals held that the partner presented a justiciable issue when seeking to establish standing and gain custody and/or parenting time/visitation, and thus attorney fees should have been denied as to that issue.

Durkin v. Durkin
2019 ME 32
Maine Supreme Judicial Court
March 5, 2019

Trial court was permitted to consider husband’s nonmarital real property as a factor in ascertaining whether spousal support was warranted in divorce judgment; if court determined that spousal support was appropriate, then it could order a lump sum payment secured by a lien on husband’s nonmarital real property.

Matter of H.C.W.
2019-Ohio-757
Ohio Court of Appeals, Twelfth District
March 4, 2019

A new issue: a name change application for a transgender child to make the name fit the self-identity. Citing Sacklow v. Betts, 450 N.J.Super. 425, 163 A.3d 367 (2017), the court held that the best interest of the child standard should govern the court’s decision and that the following factors should be considered when determining whether a name change is in the minor child’s best interest, where the minor child is transgender and wishes to assume a name they believe corresponds to the gender they identify with: (1) The age of the child; (2) The length of time the child has used the preferred name; (3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity; (4) The history of any medical or mental health counseling the child has received; (5) The name the child is known by in his or her family, school and community; (6) The child’s preference and motivations for seeking the name change; (7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.

Articles of Interest

Justin T. Miller, Three Options for a Private Business in Divorce, 33-APR Prob. & Prop. 52 (March/April 2019)

Deron Sugg, Affair Despair? How to Deal with Adultery in a Texas Divorce, 82 Tex. B.J. 204 (March 2019)

Tifanne Wolter, No, You Can’t Call Him an @?%#! On Facebook: Counseling Clients about Social Media and Divorce, 76-MAR Bench & B. Minn. 12 (March 2019)

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 e-mail me.

Divorce’s Effect On Children’s Educational Achievement is Not a Constant

UCLA-led study finds that when parents are statistically unlikely to split, a divorce causes more disruption for kids. (UCLA)

Dispute Over Divorce Policy Heads to Court

The Federal Law Enforcement Officers Association has filed suit against OPM’s reversal in 2016 of a longstanding policy regarding how a divorce court order affects FERS annuity benefits. (FedWeek)

Grey Divorce: Its Reasons & Its Implications



Divorce is one of the most challenging parts of anyone’s life, but sometimes it is inevitable. The social stigma surrounding divorce has gradually diminished over the years, but it hasn’t led to an overall increase in divorce except among people over 50. The question of why grey divorce has been increasing can be best answered by analyzing the aspects of life that affect long-term marriages. (Forbes)

::: INTERNATIONAL
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Does the Gender of Your Divorce Lawyer Make a Difference?

Women choose a male or female solicitor in the mistaken belief that their gender will somehow help their case. [They] might believe that a male will be more aggressive and fight harder for them while men may think that having a female lawyer will make them appear ‘softer’ and more sympathetic, especially if the divorce involves custody and parenting issues. (Lexology)

Divorce Referendum Legislation To Be Introduced To Dáil This Month

The Irish government is planning a referendum on the country’s divorce law on 24 May, at the same time as the European Elections. Under the Irish Constitution, a court can grant a dissolution of marriage if the spouses have lived apart from one another for at least four years during the previous five years. (Irish Times)

Family Law & Mental Health

The following post is from Dr. Ken Waldron, a psychologist from Madison. Having read material written by Ken previously (including his terrific book on Game Theory, co-written with Atty. Alan Koritzinsky), I’ll guarantee this will be interesting reading.

I have been encouraged to blog for thedivorcedoctor.net and have started. Blog posts will be both for professionals and the public. Feel free to join and feel free to pass the site on to parties.

Understanding Divorce Conflict: Two Different Worlds

This article is one of a series that focus on the nut we would all like to crack: divorce conflict.  Books on divorce, Collaborative Divorce; Cooperative Divorce; and other models in family law have been attempts to move the needle from conflict in divorce to amicable divorces.  This is because most professionals involved with divorcing parties, especially attorneys and judges, see how destructive conflict in divorce is to the parties and, when they have children, to the children of divorce and to the co-parenting relationship. To understand divorce conflict fully would fill a book, but your authors plan to address the topic in bitesize pieces.  This is the first piece.

Family Law Articles & Publications

The Spring, 2019 edition of the American Journal of Family Law (Vol. 33, No. 1) includes the following articles:

An Analytical Approach to Assessing the Reasonableness of Personal Goodwill
By Gene A. Trevino

Using Interrogatories to Get Information from Uncle Sam
By Mark E. Sullivan

The Independent Investor Test for Reasonableness of Owner/Employee Compensation
By Robert F. Reilly

Increasing the Likelihood of Enforcing a Prenup
By Carlton Stansbury

Alimony Under the New Law
By Kalman A. Barson

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Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.