Family Law Update for August 2019
In this Issue …
A Word from Gregg Herman
TheDivorcedoctor.net and Video on Legislative Proposals.
Wisconsin Courts Updates
No New Cases.
Decisions Across The Nation
Validity of marriage, Hague Convention, Disability Benefits and Child Support; Domestic Violence Presumption; Servicemembers Civil Relief Act; Uniform Deployed Parents Custody and Visitation Act; UCCJEA; “No Agreement, No Wedding” Constituted Duress; Deferred Compensation Benefits, Grandparent Visitation and More.
Legislative Watch
Legislative Council Study Committee on Placement and Support.
Family Law Online
Forced to Divorce: Americans With Disabilities Must Pick Marriage or Health Care, PODCAST: Mom and Dad Are Fighting: Violating the Uber Pool Code Edition, How This Mom Decided What Name to Keep After Divorce and New Marriage.
Adoption
Egg Donation Use is Increasing.
Tax Tip Corner
Importance of IRS Form 8332
• • •
A Word from Gregg Herman …
Ken Waldron and Allan Koritzinsky have launched The Divorce Doctor, a website offering blogs covering various divorce related topics for both professionals and parties.
The site also features booklets for professionals specific to divorce conflict issues. There is no advertising on the site, and blogs and booklets are free.
• • •
Thoughts on Family Law Video: Making Sausages and Family Laws
This month’s video is about the Wisconsin Legislative Council Study Committee’s 11 legislative family law proposals that brings to mind Mark Twain’s famous quote:“There are two things you never want to see being made: Sausage and Laws.”
Commissioner Fremgren and Atty. Highstrom’s article in this month’s Wisconsin Lawyer magazine is about the process, which in my experience proves the trust of the Twain quote.
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.
Two recent cases on what it takes to have a valid marriage:
Belliveau v. Whelan
2019 ME 122
Maine Supreme Court
July 30, 2019
“In May 1992, Belliveau and Whelan traveled to England to be married. Upon arriving, they attempted to obtain a marriage license from the local town hall, but were denied a license because they did not meet the residency requirement. Despite this, Belliveau and Whelan went ahead with their planned wedding ceremony, which was officiated by a friend who was neither a minister nor an official authorized to solemnize marriages there. Upon their return to Maine, Belliveau and Whelan held a “wedding reception,” but did not seek or obtain a marriage license in Maine, nor did they take any other steps to create a valid marriage. Over the next twenty-six years, Belliveau and Whelan held themselves out to others as a married couple. Their son, now twenty, has believed, and continues to believe, that Belliveau and Whelan are married. Belliveau and Whelan filed joint income taxes, signed medical insurance documents as a married couple, and signed and had notarized a “Property Ownership Agreement” that characterizes them as “husband and wife.” This agreement indicates that, in the event of a divorce, Whelan would retain exclusive ownership of the property.” Held: not married, and no adopting the the putative spouse doctrine or the doctrine of marriage by estoppel.
Stone v. Thompson
No. 27908
South Carolina Supreme Court
July 24, 2019
Common-law marriage is hereby prospectively abolished in South Carolina, and those who wish to be married in the State must obtain a lawful license; further, a party seeking to prove the existence of a common-law marriage must do establish the necessary mutual assent by clear and convincing evidence.
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Two good Hague Convention cases:
Carvajal Vasquez v. Gamba Acevedo
No. 18-5537
United States Court of Appeals, Sixth District
July 24, 2019
Colombian father filed petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, claiming that his child had been vacationing in the United States and that Colombian mother had wrongfully retained him there beyond the expiration of his tourist visa.
Held: To determine whether a child has been wrongfully removed or retained under the Hague Convention on the Civil Aspects of International Child Abduction, a district court must ascertain the child’s country of habitual residence and the date of retention. In determining a child’s habitual residence, the primary approach looks to the place in which the child has become acclimatized. Under the acclimatization standard, the court must focus on the child, not the parents, and examine past experience, not future intentions. The acclimatization approach is generally preferred because it preserves the child’s access to her family and social environment. BUT, in cases involving young children who lack the cognizance to acclimate to any residence, the court looks to the parental-intent standard, that is, the parents’ last settled mutual intent for where their child would live, to determine the child’s habitual residence. In this case, the parental-intent standard, rather than acclimatization standard, was appropriate to determine two-year-old child’s habitual residence, and the District Court did not clearly err in finding that father and mother’s last shared intent was that their child live in the United States with mother, such that United States was child’s habitual residence on the date of mother’s alleged wrongful retention.
Saada v. Golan
No. 19-820-cv
United States Court of Appeals, Second Circuit
July 19, 2019
The child’s child’s country of “habitual residence,” under the Hague Convention, was Italy, but the the district court’s suite of undertakings did not sufficiently ameliorate the grave risk of harm to child, if he were to be repatriated to Italy. Thus, a remand was warranted to allow the district court to determine whether there existed alternative ameliorative measures that were either enforceable by the district court or, if not directly enforceable, were supported by other sufficient guarantees of performance.
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Moody v. Demala
No. 2017-CA-001386-ME
Kentucky Court of Appeals
July 19, 2019
Both parties are unemployed as a result of disabilities. [The Father] has a brain injury from birth and has never been able to work. As a result, his disability payment when he was receiving it for the children was a total of $684.00 per month [per child]. [The Mother] was injured in a car accident and had worked until that time. When her benefits commenced she began receiving $791.00 per child per month. She also received a lump sum payment of approximately $23,000.00 for the children for unpaid benefits up to that time. At that time [the Father] ceased receiving any benefits for the children as [the Mother’s] benefits were higher. When he no longer received benefits for the children his monthly income dropped to $1,460.00 per month. He has no other sources of income.
Held: Application of traditional child support guidelines would have led to unjust results, and, thus, it was within trial court’s discretion to modify child support to award father half of monthly disability benefits mother received on behalf of children.
John E. v. Andrea E.
No. S-16912
Alaska Supreme Court
July 19, 2019
Under the statute, a parent has a history of perpetrating domestic violence if the superior court finds that he or she “engaged in more than one incident of domestic violence.” The superior court found that “Andrea hit [her daughter] with her hands and then several times with the belt on the legs and arms,” stopped beating her to review the contents of the cell phone, and then “resumed hitting [her] with the belt.” Held: An episode of excessive corporal punishment lasting 30 minutes does not evince a “pattern” of domestic violence. Thus, although it was arguably broken into two periods of violence, we conclude that the 30-minute episode was a single incident for the purposes of the domestic violence presumption.
Ed. Note:
Perhaps the court should read this article.
L.M.F. v. C.D.F.
No. 2180203
Alabama Court of Civil Appeals
July 19, 2019
Juvenile court’s modification of existing child custody order to transfer custody of child from paternal grandmother to paternal grandfather without first conducting a full evidentiary hearing deprived parties of due process, warranting reversal of matter; nature of proceeding was significant, in that it involved custody of a young child, yet there was no sworn testimony and no cross-examination, and parties, who were all pro se, were not given opportunity to call witnesses in support of their positions, with court conducting its hearing more in the nature of a discussion than a true hearing.
Springer v. Springer
No. 2D18-2265
Florida Second District Court of Appeal
July 19, 2019
Former same-sex partner lacked standing to request parentage and time-sharing of child born while former partner was in relationship with child’s mother, although former partner paid for sperm used to impregnate mother, and although parties signed co-parenting agreement which referred to child to be born “our child” and expressed intention for parties to jointly and equally share parental responsibility; former partner had no biological connection to child. Interestingly, the court itself did not like its decision. “We commend the trial court for its thorough analysis and acknowledge its concerns that “the law is slow to address” changes in this area “as society and medicine create new factual situations,” echoing Judge Van Nortwick’s special concurrence in Wakeman. See Wakeman v. Dixon, 921 So.2d 669 (2006) at 674-76, Van Nortwick, J., specially concurring.
Despite his observations, Judge Van Nortwick recognized that Florida law does not provide a remedy to a partner who has no biological connection to a child. See id. at 674. Based on the applicable law, we affirm the trial court’s order.”
Johnson v. Johnson
No. 345803; 345955
Michigan Court of Appeals
July 18, 2019
Application for stay of proceedings filed by mother, who was on active military duty, pursuant to Servicemembers Civil Relief Act, was insufficient to warrant stay of action brought by father, alleging violations of parenting time agreement; although mother included in her application statements from commanding officer that military leave was not authorized and that mother’s duties precluded her appearance in court, she failed to set forth facts stating manner in which her military duty materially affected her ability to appear, and instead only stated that her workload had dramatically increased and that her duties were time-sensitive, and mother failed to state a date of availability to appear, and instead only noted anticipated possible date of telephonic availability.
Knell v. Knell
S-18-0269, 2019 WY 74
Wyoming Supreme Court
July 17, 2019
Breaking with the majority rule in other states, the court held that a child support is a “garnishment,” and thus cannot exceed the legal limits on garnishment. Thus, the trial court erred in enforcing the additional garnishment of ex-husband’s earnings for amounts owing under the property division, given that child support order equated to a garnishment for purposes of calculating general 25% limit on creditor garnishments of individual’s disposable earnings, where the ex-husband’s monthly disposable earnings totaled $3,350, and his monthly child support obligation was $1,393, and thus, his support garnishment was approximately 42% of his disposable earnings, which precluded any additional creditor garnishments.
Brett v. Martin
No. 79076-5-I
Washington Court of Appeals, Division 1
July 17, 2019
I love a good comity case. Here, the husband argued that Ontario (Canada) law that provided that spousal support does not automatically terminate on the remarriage of the recipient spouse violated Washington public policy, and thus should not be enforced. The court held that the husband failed to establish that Ontario law regarding the duration of a spousal support obligation amounted to a manifest incompatibility with Washington’s public policy such that the Ontario order could not be enforced. No right was violated by Ontario’s order continuing a spousal support obligation, and no Washington public policy was offended by the order.
Roybal v. Raulli
No. COA18-1085
North Carolina Court of Appeals
July 16, 2019
Trial court was required under the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) to award limited contact with son to stepmother when ruling on father’s motion to grant caretaking authority to nonparent due to deployed parent, where son had close and substantial relationship with stepmother and half siblings, and existing cooperative relationship between mother and stepmother to maintain relationships among the children indicated that limited contact with stepmother was not contrary to son’s best interest.
Qaisi v. Alaeddin
NO. 2017-CA-000333-MR
Kentucky Court of Appeals
July 12, 2019
Documents issued by foreign court in Dubai, United Arab Emirates (U.A.E.), which mother sought to register presumably to enforce child custody and support provisions, were not in substantial conformity with Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus, were not entitled to be registered under UCCJEA; no evidence was offered how foreign court reached custody determination, no evidence indicated whether sides were represented by counsel, no evidence indicated whether both parties were permitted to appear at court proceedings, call or cross-examine witnesses, no evidence clarified meaning of statement that father could claim custody of children at certain age, and no evidence indicated whether court considered best interests of children.
Ziegler v. Natera
No. 3D19-86
Florida Third District Court of Appeal
July 10, 2019
The testimony established that the husband initially presented his pregnant wife with the disputed antenuptial agreement [document] six days before the wedding. At that time, the wife requested he produce evidence regarding his holdings and net worth. The husband assured the wife such evidence would be forthcoming. In lieu of honoring his pledge, the day before the wedding, the husband demanded execution, with the added ultimatum of “[n]o agreement, no wedding.” He further threatened life-altering consequences, by imperiling their shared, long-term plan to begin life anew with their children in the United States. We conclude that these circumstances, unrebutted by the husband, are sufficient to support a finding of duress.
Dooling v. Dooling
303 Neb. 494
Nebraska Supreme Court
July 5, 2019
As a matter of first impression, to the extent employment benefits such as unused sick time, vacation time, and comp time have been earned during the marriage, they constitute “deferred compensation benefits” and are considered part of the marital estate subject to equitable division in an action for marriage dissolution.
Gomez v. Gomez
303 Neb. 539
Nebraska Supreme Court
July 5, 2019
Parenting plan, requiring that children be enrolled and be participants in the Catholic religion, did not compel children’s attendance at Catholic Mass. As used in parenting plan, term “participant” suggested only that person take part in something to some degree, and it was only with qualifying language not present in parenting plan, such as “full”, that the word “participants” communicated the level of participation ex-husband argued marital dissolution decree required, namely children’s attendance at Mass, and although parenting plan explicitly required children to participate in First Communion and Confirmation, plan did not require ex-wife to also facilitate their attendance at Catholic Mass.
Pangea Capital Management, LLC v. Lakian
929 F.3d 54
United States Court of Appeals, Second Circuit
July 3, 2019
Ex-wife whose legal rights to marital property vested upon judgment of divorce from her husband was not rendered her husband’s “judgment creditor” by dissolution of their marriage dividing marital assets, within meaning of New York statute providing that when two or more judgment creditors attempted to satisfy their judgments against judgment debtor’s real property, priority went to first creditor to docket judgment in county in which property was located, regardless of which judgment was entered first, and thus, judgment creditor’s interest in judgment debtor’s property that was divided as marital property by divorce judgment did not take priority over ex-wife’s interest, since judgment of divorce was final settling of accounts between marital partners with equitable interest in all marital property.
In re Custody of K.N.L.
2019 IL App (5th) 19008
Illinois Court of Appeals, Fifth District
July 2, 2019
Mother did not relinquish physical custody of her minor child, and thus paternal grandparents of child did not have standing to seek allocation of parental responsibilities over child, even though grandparents cared for child for over two years and were in physical possession of child as of date they filed petition for parental responsibilities, where Department of Children and Family Services (DCFS) placed child with grandparents following mother’s stipulation to allegations against her, DCFS retained legal custody and guardianship of child, mother understood, and paternal grandmother admitted, that permanency goal was for mother to regain custody of child within 12 months, and mother regularly exercised visitation with child.
Legislative Watch
The Legislative Council Study Committee on placement and support has made recommendations for a number of bills which are expected to be introduced in the next legislative session.
For a summary, along with some pros and cons of each proposal, see the article in the July/August edition of the Wisconsin Lawyer by Family Court Commissioner Mark Fremgren and Attorney Tiffany Highstrom.
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.
Forced to Divorce: Americans with Disabilities Must Pick Marriage or Health Care
Susan approached her husband, heart thumping, as he sat in their living room. Days earlier, on Valentine’s Day, she had been diagnosed with colon cancer. Now, her world was about to further unravel. Susan mustered up all her courage and told her husband that they needed to divorce. (OZY)
PODCAST: Mom and Dad Are Fighting: Violating the Uber Pool Code Edition
In this Episode: What to tell your kids when you’re getting a divorce but staying in the same home. (Slate)
How This Mom Decided What Name to Keep After Divorce and New Marriage
When I married my first husband, I took his name without hesitation. Here in the conservative Midwest, it’s just what most people do. … When we got divorced, I didn’t check the box saying I’d be changing my name. It’s a decision I’ve had to defend in many situations since then. (Momaha)
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.
Egg Donation Use Is Increasing
Egg donation as a family building measure has increased significantly over the past two decades. It is used when an intended mother cannot provide eggs capable of being fertilized to produce an embryo. Egg donation has experienced a significant increase in usage by male couples as a means to create their families.
In either case, a contract is entered into making it clear that the egg donor has no rights. All rights and responsibilities, including the costs of the process, will be borne by the intended parents. In same sex cases, a parentage determination procedure is used to confirm parentage as intended in the contract that had been entered into.
The Obergefell v. Hodges decision of the U.S. Supreme Court paved the way for gay marriage recognition which has been of help to the courts in declaring both spouses in a same-sex marriage to be the parents. For same sex males, a surrogacy contract is entered into between the intended parents and the carrier which determines the rights of the parties also.
After the parentage determination hearing, the report of surrogate birth is sent to the Vital Records Office which results in a birth certificate identifying the intended parents as Parent One and Parent Two.
As with embryo donations, if the intended mother carries the embryo to which she has contributed no genetic material, she can apply to the court for a determination that she is the mother. Courts are willing to do so based on an intent theory; an outcome that has been shared by several state Supreme Courts around the country.
Tax Tip Corner
The following is provided courtesy of Contributing Editor Scott B. Franklin, Certified Public Accountant and Attorney. You can reach Scott via e-mail.
Importance of IRS Form 8332
On July 18, 2019, the US Tax Court ruled that failure to attach a Form 8332 (or similar written declaration) to one’s tax return when originally filed to substantiate eligibility to claim a dependency exemption for a non-custodial child is a fatal flaw.
In Demar v. Commissioner, TC Memo 2019-91, the child lived with the mother. However, the judgment of divorce allowed the father to claim the child as a dependency exemption for all even numbered years and for those odd numbered years in which he was current in his support obligation and in which the mother’s income was below a specified threshold.
The father met the criteria for 2015 and filed his return claiming the dependency exemption, Head of Household status, and all other child-related tax benefits. He did not have a signed Form 8332 from the mother and she also claimed the child on her tax return. Upon examining the father’s tax return, the IRS disallowed of all benefits related to the child. As part of the father’s audit defense, he had the mother signed a Form 8332 in 2017, which the IRS refused to accept.
The Tax Court ruled that the father failed to comply with the IRC s. 152 requirements for claiming the child on his tax return: the Form 8332 or equivalent must be signed by the custodial parent and attached to the non-custodial parent’s tax return (when originally filed). In this case, the Form 8332 was not even signed by the mother until after the father’s tax return was adjusted. The Tax Court indicated that it was not addressing the question of whether a Form 8332 can be submitted after the fact; the tax regulations applicable to 2015 tax filings did not explicitly allow or prohibit an after-the-fact submission in situations such as this. A 2017 Proposed Regulation (which additionally proposes to renumber the applicable regulation from 1.152-4 to 1.152-5) appears to now allow for an after-the-fact Form 8332. However, this is not allowed if the custodial parent signed the form after themselves claiming the child without first amending their own return to undo what they did.
Editorial Comment: The Tax Court further upheld the disallowance of Head of Household status, but failed to discuss that it was unrelated to the Form 8332 issue; Head of Household status requires actually having a child living with the parent for more than six month during the year, not just having a Form 8332.
Contributing Editors
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!
