Family Law Update for May 2019

In this Issue …

A Word from Gregg Herman
VIDEO: Supplement to State Bar’s Family Law in Wisconsin: A Forms and Procedures Handbook

Wisconsin Courts Updates
UCCJEA case

Decisions Across The Nation
Mediated separation agreement, Access to wife’s private text messages, “Is Premarital agreement unconscionable?”, Cohabitation and maintenance, Dog visitation, Islamic marriage contract, Spouses as future co-owners of business and more.

Family Law Online
Divorce rate, Drug testing and Co-Parenting

Adoption
Family Building Changes

Business Valuations
Family Building Changes

Family Law Articles & Publications
Family Law Quarterly issue on “The Changing Face of Family Law” and Family Advocate issue on “Tax Law Changes: The New Frontier”

• • •

A Word from Gregg Herman …

This month’s video is on the new supplement to the State Bar’s Family Law in Wisconsin: A Forms and Procedures Handbook, which is written and edited by my firm. As I said in the video, the major changes have to do with the new relocation law (for my opinions on the new law, see my article in the Wisconsin Law Journal
, or visit my firm website.

While we think we made all necessary changes, if we missed anything, please let me know via e-mail so we can correct it in the next edition.

Be Sure to Like and Subscribe to Loeb & Herman’s YouTube Channel

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 April 18, 2019, the District IV Court of Appeals issued their opinion in J.P. v. A.P. 2018AP1775, 2018AP1776, 2018AP1777 and 2018AP1778 which reversed and remanded the order rendered by the Honorable Elliot M. Levine (La Crosse County).

The court of appeals reversed the order of the circuit court which found it had jurisdiction to terminate the mother’s parental rights.

The parties were divorced in Minnesota with the father granted, at least initially, sole legal custody and sole physical “custody” (sic).

The father moved with the children to Wisconsin and subsequently started an action to terminate the mother’s parental rights, alleging that the mother’s address was unknown. Service was obtained by publication and the circuit court found her in default and granted the petitions.

The appellate court found that the termination constituted a modification of Minnesota’s child custody determination. Under Wis. Stats. §822.23(2), the court must determine that the child, the child’s parents and all other persons acting as parents do not “presently reside in the state.”

Since the mother’s residence was unknown, the court could not make the finding that she did not “presently reside” in Minnesota. However, the appellate court remanded the matter, rather than dismissing it, essentially giving the circuit court another chance to make the appropriate finding.

• • •

Subscribe to Wisconsin Family Law Case Finder at 10% Off!

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 may be posted in Adobe Acrobat (PDF) format.

Mizrahi v. Mizrahi

2019 N.Y. Slip Op. 03040
New York Supreme Court, Appellate Division, Second Department
April 24, 2019

The Wife was advised by her attorney not to sign a separation agreement, but she did so anyway. “It is undisputed that the separation agreement was the product of a mediation conducted by the attorney who prepared the document. The separation agreement reflects that the defendant retained counsel to represent him, while the plaintiff did not do so. While the plaintiff consulted with an attorney regarding the separation agreement, the agreement states, in bold print, that the plaintiff’s consulting attorney advised her not to sign the agreement ‘based upon the fact that there has been no discovery in the matter whatsoever, and [the attorney’s] considered opinion that the support provisions in the agreement are not adequate to meet the [plaintiff’s] and children’s basic needs.'” The court went on to conclude that the terms of the agreement were so one-sided as to raise an inference that the agreement was unconscionable. “The Supreme Court denied the plaintiff’s motion to set aside the separation agreement and, in effect, granted that branch of the defendant’s cross motion which was to dismiss the causes of action challenging the agreement on the ground that the agreement was the product of a mediation, that the plaintiff was afforded the opportunity to consult with counsel, and that the plaintiff elected to sign the agreement, notwithstanding the advice of counsel not to do so. We disagree. These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching. Moreover, the record discloses no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.”

Strauss v. Strauss

2019 N.Y. Slip Op. 02993
New York Supreme Court, Appellate Division, First Department
April 23, 2019

“The record shows that defendant [Husband] obtained access to plaintiff [Wife]’s iPad and private text messages, falsely told her that he did not have the iPad and that it was lost, and provided the text messages to his counsel, who admittedly failed to disclose to opposing counsel or the court the fact that defendant was in possession of the iPad and text messages, until two years later when they disclosed that they intended to use the text messages at trial. Nor does defendant explain how or why he was legally permitted to retain plaintiff’s iPad without her knowledge, and to access and take possession of plaintiff’s personal data located on her iPad. Plaintiff demonstrated that such conduct implicated criminal laws and, while defendant asserts that he needed to preserve the information for use in the custody trial, he also concedes that he had other evidence that would have supported his position at trial. Thus, there would have been no reason to rely on the text messages other than to harass and embarrass plaintiff. The foregoing frivolous conduct supports the imposition of sanctions.”

County of San Diego Department of Child Support Services v. C.A.

No. D074172
California Court of Appeal, Fourth District, Division 1
April 22, 2019

Distinguishing Plumas County Dept. of Child Support Services v. Rodriguez, (2008) 161 Cal. App.4th 1021, 76 Cal.Rptr.3d (2008), where the grandparents provided “a quintessential example of “voluntary support” for the child because [they] were not under court order and held no legal obligation to continue providing care,” in this case, the trial court properly ordered the mother to pay child support to the grandmother who had court ordered custody of the child.

Tschider v. Tschider

2019 ND 112
North Dakota Supreme Court
April 18, 2019

The trial court erred in holding that the spousal support provision of a premarital agreement was unconscionable, severing the same from the agreement. “While the district court properly held the parties’ premarital agreement was mostly valid and enforceable, we conclude that the court’s findings also support the conclusion that paragraph 16 is valid and enforceable as a matter of law. At the time of the initial trial, Melanie Tschider was 47 years old. She has a college degree in accounting and obtained her CPA in 1992. She worked as a public accountant in New York City for a year before returning to Bismarck as the chief accountant at BNC Bank in 1995, where she was subsequently promoted to controller. She worked for WBI Holdings as a certified public accountant at the time the premarital agreement was signed in 2002 until the parties’ child was born in 2004. She thereafter worked as CFO of Abaco Energy Services, LLC, one of the parties’ business entities, beginning in 2007. She works for Abaco part-time earning $30,000 per year, potentially receiving business profits of $75,000 to 80,000 per year according to Stacy Tschider. At the time of trial, Stacy Tschider was 46 years old and is an entrepreneur with interests in 17 different businesses. His main employment is with Rainbow Energy with an annual income of approximately $800,000…. The evidence shows Melanie Tschider is an educated professional, with some level of sophistication at the time of the premarital agreement’s execution. As the district court found, she had received sufficient financial disclosure and had the opportunity to consult an attorney before signing the agreement. The court specifically rejected her contention that she signed the agreement under duress. During the marriage she has had some years of high annual income. Moreover, she is leaving the marriage with significant assets, with some potentially producing income, and she can be employable in her chosen field once she has refreshed her accounting knowledge. Under these facts and circumstances, we cannot conclude that any portion of the parties’ agreement is clearly unconscionable and unenforceable.”

Meinders v. Middleton

2018-SC-000251-DGE
Kentucky Supreme Court
April 18, 2019

A lot to unpack in this decision. First, the court held that the period of time required to qualify for de facto custodian status under KRS 403.270 must be one continuous period of time. Second, the court overruled Spreacker and hold that any direct participation in a child custody proceeding that demonstrates a parent’s desire to regain custody of their child is sufficient to toll the de facto time requirement under KRS 403.270. Finally, the court held that a biological father is a legal father of child born to unmarried parents, although he may never file a motion to establish paternity, where DNA test establish his paternity.

Chimienti v. Perperis

2019 N.Y. Slip Op. 02866
New York Supreme Court, Appellate Division, Second Department
April 17, 2019

Evidence was sufficient to rebut legal presumption that child conceived via artificial insemination was child of woman married to child’s mother at time of conception, and thus equitable estoppel did not preclude mother’s subsequent domestic partner from seeking custody of or visitation with child; mother and former wife separated less than a month after child was conceived and executed stipulation of settlement which expressly provided that there were no children of the marriage and that presumption of legitimacy was rebutted, and divorce judgment said there were no children of marriage. Therefore, the domestic partner of mother of children conceived via artificial insemination created and fostered parent-child relationship between herself and mother’s children, and thus had standing to seek custody of or visitation with children; parties began romantic relationship shortly before older child was conceived and continued relationship through child’s birth, as well as through conception and birth of younger child, partner carried out responsibilities of parent to children and mother fostered relationship, during relationship mother and domestic partner lived together with children, partner participated in prenatal care and births of children, partner was held out to others as children’s co-parent, and older child referred to partner as “mommy.”

Blonder v. Blonder

2019 N.Y. Slip Op. 02864
New York Supreme Court, Appellate Division, Second Department
April 17, 2019

Term “remarriage,” as used in maintenance provision of separation agreement that was incorporated, but not merged, into subsequent judgment of divorce, which obligated husband to make monthly maintenance payments to wife for period of seven years, or until “death or remarriage” of wife, or death of husband, was unambiguous as not relieving husband of obligation to pay maintenance if wife thereafter simply cohabited with another man, especially where cohabitation was mentioned in another article of separation agreement as terminating event, but not when discussing maintenance.

Giarrusso v. Giarrusso

No. 2018-53-Appeal (P 15-1845)
Rhode Island Supreme Court
April 16, 2019

After the parties’ marriage was dissolved, former husband filed a motion seeking to have the court enforce the marital settlement agreement (MSA) by ordering former wife to comply with the visitation schedule for the two dogs the parties had acquired during the marriage, and former wife sought to enjoin and restrain former husband from having any time with the dogs. “Here, the hearing justice found that there is no inequity in enforcing the terms of the MSA as written and that Paul had not acted in bad faith, stating, “I think it’s just a difference of opinion as to the caring of the dogs.” After reviewing the entire record in this case, it is our opinion that the hearing justice’s findings and conclusions were well supported by the testimony and evidence before her and that she neither misconceived the evidence nor was clearly wrong in her findings of fact. Therefore, we hold that it is not inequitable to enforce the visitation term in the MSA as written.”

Seifeddine v. Jaber

No. 343411
Michigan Court of Appeals
April 16, 2019

Trial court was entitled to enforce provision of Islamic marriage certificate, entered into by husband and wife, that required husband to pay wife $50,000 upon parties’ divorce; although trial court allowed two imams to present testimony regarding cultural implications of marriage certificate, trial court applied common law regarding contracts, not religious principles or doctrines.

Matter of the Adoption of M.J.W.

No. 50758-7-II
Washington Court of Appeals, Division 2
April 16, 2019

Trial court did not abuse its discretion by allowing paternal grandmother to permissively intervene in adoption proceeding instituted by maternal grandparents with respect to grandchild, even though paternal grandmother was neither an adoptee nor a prospective adoptive parent; all grandparents had previously entered into an agreed residential schedule regarding grandchild, which schedule provided for frequent, regular visits with paternal grandmother, such that it was reasonable to deem presence of paternal grandmother necessary to determine grandchild’s best interests.

In re Marriage of Basith

No. 2-18-0332, 2019 IL App (2d) 180332-U
Illinois Court of Appeals, Second District
April 15, 2019

The trial court dismissed the Wife’s petition for dissolution of marriage, holding that the parties were already validly divorced in India. The Wife argued that the Indian divorce was not entitled to comity because she had not been afforded sufficient due process. The fact that the Indian divorce comported with Sharia law did not affect the analysis.

Bowen v. Volz

No. 1D18-912
Florida District Court of Appeal, First District
April 11, 2019

It is improper to award a business 50/50 to each spouse, leaving them as co-owners operators. “[G]ranting a former spouse a shared interest in the stock of a closely held corporation has the effect of ‘requiring the former spouses to operate as business partners. Such a financial arrangement is intolerable.”

Shah v. Mitra

2019 N.Y. Slip Op. 02739
New York Supreme Court, Appellate Division, Second Department
April 10, 2019

Husband’s pleadings were sufficient to state cause of action alleging that postnuptial agreement into which he entered with wife was procedurally and substantively unconscionable, and thus wife was not entitled to dismissal of husband’s counterclaim and affirmative defense alleging such unconscionability in divorce action; husband alleged that mediator who prepared agreement was not independent, that process was rushed and that he was compelled to sign agreement before consulting with attorney, that agreement required him to waive his right and interest in virtually all marital property, and that he was required to match wife’s contributions toward children’s operating account, despite disparity in parties’ incomes.

Look v. Penovatz

19 Cal. Daily Op. Serv. 3233
California Court of Appeal, Sixth District
April 8, 2019

Man living with child’s mother in domestic partnership was not entitled to reimbursement from child’s father under statute governing necessaries furnished to child, although mother and father had discussed modifying father’s child support obligation, where modification did not occur, and father was paying child support to child’s mother pursuant to court order.

Romero v. Perez

No. 27, Sept. Term, 2018
Maryland Court of Appeals
April 1, 2019

Father petitioned for custody of child, an undocumented minor who was native of Guatemala, and sought factual findings on child’s eligibility for Special Immigrant Juvenile (SIJ) status. The Circuit Court granted custody but declined to find that reunification with child’s mother was not viable due to neglect. Father appealed. The Court of Special Appeals, 182 A.3d 263, affirmed. Father petitioned for writ of certiorari, which was granted, and the Court of Appeals reversed and remanded with instructions for inclusion of SIJ status findings. Held: (1) as a matter of first impression, in an SIJ case, the preponderance of the evidence standard is the appropriate burden of proof; (2) in SIJ cases the terms “abuse,” “neglect,” and “abandonment” should be interpreted broadly when evaluating whether the totality of the circumstances indicates that the minor’s reunification with a parent is not viable, that is, workable or practical, due to prior mistreatment; and (3) in instant case, reunification with mother was not viable due to prior mistreatment.

Articles of Interest

Mark E. Sullivan, Dividing Military Pensions in Divorce: Recent Changes to the Law, 36 No. 2 GPSolo 28 (March/April 2019)

Joseph A. DeWoskin, How to Represent Military Personnel and Their Families in Divorce, 36 No. 2 GPSolo 10 (March/April 2019)

Jennifer M. Salisbury, The Rough Waters of Divorce and Bankruptcy, 42-APR Wyo. Law. 14 (April 2019)

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

Lewis A. Silverman, Redefining Family in New York, 91-APR NYSTBJ 16 (April 2019)

Neoshia R. Roemer, Finding Harmony or Swimming in the Void: The Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act, 94 N.D. L. Rev. 149 (2019)

Jaya L. Connors, Advocating for Child Clients in Custody Cases Involving Parental Alienation Issues, 28 Widener Commonwealth L. Rev. 5 (2019)

Jenna Casolo, Campbell Curry-Ledbetter, Meagan Edmonds, Gabrielle Field, Kathleen O’Neill, Marisa Poncia, Assisted Reproductive Technologies, 20 Geo. J. Gender & L. 313 (2019)

And don’t forget Volume 31, No. 1 of the Journal of the American Academy of Matrimonial Lawyers.

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.

Why the Divorce Rate is Going Down in the U.S.

Part of the reason for the plummeting divorce rate is that Americans, on the whole, seem less accepting of divorce as a solution for marital problems. According to a Centers for Disease Control and Prevention data, in 2013 fewer than 40 percent of men and women agreed that “divorce is usually the best solution when a couple can’t seem to work out their marriage problems.” That was down from nearly 50 percent only a decade earlier. (Fatherly.com)

Drug Testing in Family Courts: Understanding the Basics [INFOGRAPHIC]

Substance abuse and drug addiction are issues that affect many families all across the United States. According to the National Survey on Drug Use and Health, more than 24 million Americans are currently suffering from some form of drug or alcohol addiction. This is an issue that affects people of every background — including parents. (WeVorce.com)

Co-Parenting Goals for a Happy Family Life in 2019

Parenting is a rollercoaster ride. There are ups and downs, and you don’t always know when the next twist or turn is coming. Sound challenging? Now try and navigate these difficulties with your ex-spouse and you’ve got a potential recipe for disaster. (WeVorce.com)

Adoption

The following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Family Building Changes

For the past 50 years, adoption has been the primary method for building a family for persons that are infertile. The total number of adoptions in the United States, other than stepparent adoptions, has been declining over the past decade. Across the country, several adoption agencies have closed their doors due to diminished business volume. International adoptions have declined so substantially that few agencies and attorneys now specialize in international adoptions. (More on that subject next month.)

The field of reproductive endocrinology is more active than ever before. Clinics and doctors that specialize in reproductive medicine are proliferating. Unfortunately, health insurance has not been a friend to those that rely on medical advances to assist with the production of children.

More and more people wanting to become parents are using surrogacy, embryo donation, egg donation and sperm donation to meet their needs. Although hard data is difficult to accumulate, anecdotal evidence suggestions that more and more people are using these alternative methods of becoming parents than ever before.

A small handful of states formerly opposed to surrogacy as a family building concept have recently passed laws facilitating family creation through surrogacy. Wisconsin has not passed such laws, however, Rosecky v. Schissel, 2013 WI 66, 833 N.W.2d 634, resulted in a Supreme Court holding confirming the enforceability of surrogacy contracts. The governmental attitude toward surrogacy across the country is one of approval and support.

Additional articles on these family building methods will be forthcoming.

Business Valuations

Proper Use Of The TaxCalc19 Program

With the full implementation of the 2018 Tax Cut & Jobs Act (TCJA) to the 2018 tax returns, it is important to make sure that you pay close attention to the data entered into the DFS TaxCalc Program. A few important points:

  1. First and foremost, be sure to use the 2019 program for current calculations. TaxCalc2018 utilizes the 2017 tax law and tax rates.
  2. Be sure to distinguish self-employment income from wagses/earned income. Self-employment income will be subject to self-employment tax and that tax will reduce net disposable income.
  3. Properly identify sources of other income and do not enter simply enter a single number on the “Other Income” or “Investment Income” lines. Other Income is IRA distributions, pensions, etc. Investment Income is interest and dividends.
  4. Custom income must be identified by source. There are 27 separate options listed and it is important to properly identify the source of the income. Under the TCJA, certain business income gets a 20% deduction which may have a significant effect on the net taxes and therefore, the net spendable income.
  5. In certain situations, itemized deductions may have an impact on net spendable income. The TCJA increased the standard deduction and provided some limitations that may make this section irrelevant, but it may have an impact in higher income and deduction cases. As an example, simply separating income by source in a recent case resulted in an increase in spendable income of a business owner by over $10,000 for the year.

If you have questions on the data entry, there is a 10-minute video available on YouTube. If you have further issues or concerns about the information, please contact an accountant or another attorney who is familiar with these aspects of the DFS program.

Family Law Articles & Publications

The Family Law Quarterly, Mach 2019 edition (Vol. 52, No. 1) is dedicated to The Changing Face of Family Law. Articles include:

Living Apart Together as a ‘Family Form’ Among Persons of Retirement Age: The Appropriate Family Law Response
By Cynthia Grant Bowman

Multipartner Fertility in a Disadvantaged Population: Results and Policy Implications of an Empirical Investigation of Paternity Actions in St. Joseph County, Indiana
By Margaret F. Brinig & Marsha Garrison

The Golden Years, Gray Divorce, Pink Caretaking, and Green Money
By Naomi Cahn

Neglected Lesbian Mothers
By Nancy D. Polikoff

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

• • •

The Spring, 2019 edition of the Family Advocate, (Vol 41, No. 4) is entitled Tax Law Changes: The New Frontier. Articles include:

The New Tax Law: Changes to Brackets, Rates, Deduction, Credits and other Basics
By Tracy Coenen

Qualified Tuition Programs Under the TCA
By Lane L. Marman

The 2017 TCA: What You Need to Know About Itemized Deduction Changes
By Michell F.l Gallagher & Joy M. Feinberg

Alimony After the TCJA: Dystopian Nightmare or Necessary Change? Either Way, It’s Here to Stay
By Bernadette A. Barbee

Lion, Tigers, and Pass-Through Deductions, Oh My!
By Donna M. Pironti

New Tax Law Basics for Businesses and Families
By James M. Godbout & Catherine M. Kane

The Impact of the 2017 Tax Cuts and Jobs Act on Business Valuation
By Marissa Pepe Turrell & Mark Harrison

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

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.