Family Law Update for July 2019
In this Issue …
A Word from Gregg Herman
VIDEO: Winning the lottery!
Wisconsin Courts Updates
No new cases.
Decisions Across The Nation
Not paying support and adoption, Determining income based on commissions, Shares and investments as compensation, Imputing income, Reasonableness of retirement, Changing child’s name and more.
Family Law Online
How To Manage Your Divorce At The Office, 4 Tax Strategies That Could Make a Divorce Settlement Easier, Misconduct In Divorce Proceedings Warrants Rule 11 Sanctions and The Onion’s Tips For Going Through A Divorce.
Use of embryo donation in family creation has become more prevalent.
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A Word from Gregg Herman …
This month’s video is based on a Michigan case where the husband was ordered to pay his soon-to-be ex-wife (but not yet!) half of his lottery winnings.
While it is not exactly a common occurrence, I thought I might be more fun to talk about a lighter issue this month. “Lighter” since in the worse case scenario, the husband still ended up with $19m after tax.
Not a bad worse case scenario.
Be Sure to Like and Subscribe to Loeb & Herman’s YouTube Channel
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 by using this form.
Please Note: Some decisions may be posted in Adobe Acrobat (PDF) format.
Pangea Capital Management, LLC v. Lakian
2019 N.Y. Slip Op. 05059
New York Court of Appeasl
June 25, 2019
The Court of Appeals held that a divorce judgment, under which the wife received 62.5% of the proceeds from the sale of a house purchased during marriage, did not make the wife a judgment creditor of her husband. Therefore, the statute giving priority to first judgment creditor to docket a judgment in the county where realty is located did not apply.
In re Adoption of B.I.
2019 -Ohio- 2450
Ohio Supreme Court
June 25, 2019
A parent’s nonsupport of his or her minor child pursuant to a zero-support order of a court of competent jurisdiction provides “justifiable cause” for the parent’s failure to provide maintenance and support and therefore does not extinguish the requirement of that parent’s consent to the adoption of the child, abrogating In re Adoption of A.S., 2011 WL 1135112.
A. S. v. J. W.
2019 -Ohio- 2473
Ohio Supreme Court
June 25, 2019
A magistrate deviated from the statutory mandate for calculating the father’s annual income, for purposes of determining his child support obligation, by using his current year’s projected commissions when calculating the average commissions to be include in father’s total annual gross income, rather than by using the his average of the commissions earned during the three prior years, or the commissions earned in the prior year, whichever was lower. The case must be remanded to the trial court for recalculation of the father’s income and adjustment of child support.
Hofmann v. Hofmann
2019 N.Y. Slip Op. 04872
New York Supreme Court, Appellate Division, First Department
June 18, 2019
Shares and investments the husband acquired during his employment at a global investment firm constituted compensation, and their marital value would be distributed in the same manner as the husband and wife’s other marital assets; therefore, the wife was entitled to 50% of the husband’s interest in the shares and investments. The husband, while a top-level executive, was still an at-will employee who did not have a recognized partnership interest at the firm and, rather, was given, as financial incentive for continued employment and compensation for his performance, the opportunity to purchase indirect equity in the firm, which he paid for with marital funds. The wife made significant contributions to the marriage as parent and homemaker, allowing the husband to pursue his career and amass significant wealth.
Cusick v. Cusick
No. 2018-47-Appeal (K 09-728)
Rhode Island Supreme Court
June 17, 2019
As grounds for his objection to his ex-wife’s motion seeking genetic testing of her ex-husband, after he was diagnosed with genetic heart condition known as Brugada Syndrome, the ex-husband challenged the efficacy of test. Although, on the witness stand, the ex-husband declared that genetic testing should not be done unless he voluntarily wanted to do it, this was not an argument “of constitutional dimension,” given that it did not address privacy or due process clause.
Thomas v. Thomas
Mississippi Court of Appeals
June 11, 2019
Most of the husband’s child support arrearage accrued after the husband had already received lump sum payment of $21,038 he received for past due Social Security disability benefits for couple’s children; therefore, husband was not entitled to credit against child support arrearage in the full amount of payment. The statute governing credit towards child support arrearage for a parent who receives a payment of past due disability insurance benefits for support of minor children did not allow the husband to hold onto the children’s benefits to use as credit against future failures to pay child support, and the lump sum payment husband received was for past due benefits for his minor children for period which included time before the husband and wife separated or husband was ordered to pay temporary child support.
Bedell v. Price
Virginia Court of Appeals
June 11, 2019
The trial court erred when it granted the legal father, who signed an acknowledgement of paternity for out-of-wedlock child and later learned he was not the biological father of child, the favored position offered to parents in a child custody or visitation case, where unchallenged DNA evidence conclusively established that legal father was not child’s biological father.
Virginia Court of Appeals
June 11, 2019
As a matter of first impression, held: the total interest in retirement for purposes of equitable division was husband’s retired pay as calculated using his pay and length of military service as of day of divorce.
Montgomery v. List
2019 N.Y. Slip Op. 04560
New York Supreme Court, Appellate Division, Fourth Department
June 7, 2019
Annual income of $64,819 imputed to father for purposes of determining amount of child support was proper, in mother’s petition for upward modification of child support; father had moved to another state and accepted lower-paying position because his new wife had accepted a higher paying position in that state, father’s salary before he moved was $64,819, and the move to a lower-paying job actually increased the financial condition of father’s new family unit.
Holder v. Lopez
Florida District Court of Appeal, First District
June 7, 2019
Former husband’s retirement was reasonable and did not constitute voluntary under-employment, precluding an imputed-income analysis on husband’s petition to reduce or terminate alimony payments to former wife; husband was 65 years old when he retired from driving a tractor-trailer rig, and he had a variety of physical limitations and ailments related to age and physical labor associated with 36 years of military service overlapping with 21 years working as a truck driver, including fibromyalgia, back pain, and fatigue. Moreover, trial court could not impute income to former husband, for purposes of determining his continuing ability to pay alimony to his former wife following his retirement, absent evidence of available jobs appropriate to husband’s experience and physical limitations, how much those jobs would pay, and other pertinent factors such as competition for such jobs in relevant marketplace.
In re M.E.
2019 IL App (3d) 170759
Illinois Appellate Court, Third District
June 6, 2019
Biological mother presented clear and convincing evidence in petition to change minor daughter’s legal last name from that of her biological father to that of her stepfather that name change was necessary to serve daughter’s best interest; daughter, mother, and stepfather all wanted daughter’s last name to be changed to that of stepfather, mother and stepfather provided for all of daughter’s daily needs, daughter loved stepfather and considered him to be her true father, daughter had been using stepfather’s name for past several years, and biological father, who was in prison due to breaking into mother’s apartment while daughter was present and holding mother at gunpoint, only attempted contact with daughter sporadically.
In re Marriage of Hamilton
2019 IL App (5th) 170295
Illinois Appellate Court, Fifth District
June 5, 2019
Daughter’s horse-related activities were extracurricular activities for which husband had obligation to contribute to cost; activities were clearly intended to enhance daughter’s educational development as she pursued her goal of becoming an equine veterinarian, her participation in contests where she answered questions about hippology or gave speeches about horse-related topics was an activity inherently educational in nature, even though it may not have been directly related to her current school curriculum, and her riding activities were clearly intended to enhance her athletic development.
Law Review Articles of Interest
Ben Greene, Statistically Speaking: Questioning the Conventional Perceptions of the Mental Health Professional’s Role in Child Custody Evaluations: A Review of Ira Daniel Turkat’s Preliminary Research, 39 Child. Legal Rts. J. 203 (2019)
Tiffany Sala, What Do You Get When You Abuse Your Spouse? Spousal Support, 50 U. Pac. L. Rev. 735 (2019)
Debra Pogrund Stark, Jessica M. Choplin, and Sarah Elizabeth Wellard, Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-based Analysis and Reform, 26 Mich. J. Gender & L. 1 (2019)
Christopher L. Williams, Injured Victims and Robbed Spouses: Reconciling Tort Awards with the Community Property System, 61 Ariz. L. Rev. 403 (2019)
And don’t forget the latest edition of the Journal of the American Academy of Matrimonial Lawyers.
Family Law Online
The following articles are provided as informational sources for our subscribers. If you would like to submit a link for consideration, please contact Atty. Gregg Herman by using this form.
In an ideal world, you could keep your divorce completely separate from your work life. In the real world, lines can blur quickly when certain calls need to be made during work hours, your schedule needs to accommodate court appearances and you’re bombarded with court requests for documentation from your company. It is all manageable, though. (Forbes)
Divorce negotiations are never easy, and they became more complicated this year. The Republican lawmakers’ sweeping overhaul of the tax code changed many of the calculations that factor into the logistics of divorce. (The New York Times)
A Family Court judge did not abuse her discretion in making a disproportionate equitable distribution award in a divorce proceeding or in imposing Rule 11 sanctions against a former husband for his “egregious” behavior in filing baseless motions and depleting marital assets, according to a decision of the state Supreme Court. (Rhode Island Lawyers Weekly)
Married for nearly three years, they were still in love and wanted to stay together. But to remain married would risk losing the health care Susan desperately needed. Divorce, they decided, would eliminate the month-to-month possibility of losing coverage — and the fear that came with it. (Forbes)
Just For Fun!
About half of all marriages end in divorce, in what can be an incredibly painful process for a couple to go through. (We) offer some helpful tips for taking stress and anxiety out of a divorce. (The Onion)
Use of Embryo Donation in Family Creation Has Become More Prevalent
Embryo donation, also inappropriately called embryo adoption, has been used increasingly by infertile parents in an effort to create a family. The numbers of embryos available for donation have increased markedly as a result of improved success rates of infertility clinics in using invitro fertilization to create embryos. Many more couples are creating such embryos, often in numbers exceeding those that they would actually use themselves for the creation of their own families. The embryos are then cryo preserved in a storage facility and eventually either destroyed, used by the couple that created them, used for medical science or donated for the use of others.
Intended parents and the embryo donors enter into an agreement which spells out the rights and obligations of each party. More typically, the agreements will provide that the ownership of the embryos, including storage responsibility and storage fees, is transferred to the donees for their use. In some cases, the intended mother will carry the donated embryo to term. In other cases, a surrogate may be called upon to incubate the embryo.
If the intended mother gives birth, it is assumed that she is the mother and a birth certificate issues with her husband’s name and her name on the certificate as the parents. If a surrogate carries the embryo to term, a parentage determination hearing is held to get a court order declaring the intended parents to be the parents. Some states have helpful laws on the subject of embryo donation; others, like Wisconsin, do not.
Embryo donation is a highly personal experience both for the donor and the donee. Some individuals with stored embryos would prefer to see the embryos not used for the creation of children outside their own families. They do not like the thought of their biological offspring among the general population and under control of other parents. Other embryo owners, once they have used all of the embryos they wish to create their own families, give the opportunity to others to have children to raise. No compensation is paid to the donors. All clinics require a written contract between the donors and the donees before they will act.
Our contributing editors include:
- CPA Scott Franklin. Kohler & Franklin, Milwaukee (Tax Tips)
- Atty. Stephen Hayes (Adoption)
- Gregory J. Ksicinski, CPA/ABV, MSTSVA Certified Public Accountants, S.C. (Tax Tips)
- Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
- Atty. Elizabeth Neary (Adoption)
- Dr. Ken Waldron (Mental Health)
We Thank Them for Their Contributions!