Family Law Update for September 2019

In this Issue …

A Word from Gregg Herman
Video on WI Supreme Court case regarding life insurance and 101+ Practical Solutions for the Family Lawyer: Sensible Answers to Common Problems.

Wisconsin Courts Updates
Wisconsin Supreme Court accepts review in “Judge on Facebook” case.

Decisions Across The Nation
Change is circumstances for custody evaluation, UCCJEA, Effect of marriage of parents and grandparent visitation, Expert testimony and parental alienation, Substantial change in circumstances for child support after husband is placed under house arrest, gestational agreement and Uniform Parentage Act and more.

Family Law Online
Effects of Divorce on Work Performance, Fifty years of No-fault Divorce and How Your compensation Structure Can Effect Your Divorce.

Sperm Donation Can Assist Those Seeking to Build Their Families.

Family Law Related Articles and Publications
Family Advocate issue on “Frequently Asked Questions”. The American Journal of Family Law.

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A Word from Gregg Herman …

“Hey, It’s an Order, Not an Invitation!”

This month’s video is on Pulkkila v. Pulkkila, No. 2018AP712 (February 27, 2019) the unpublished Court of Appeals decision on using a constructive trust for life insurance. My theme is “Is a court order really only an invitation?

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

• • •

101+ Practical Solutions for the Family Lawyer:
Sensible Answers to Common Problems

As a shameless advertisement (well, this is my e-letter!), the ABA Family Law Section recently published the 4th Edition of my book, 101+ Practical Solutions for the Family Lawyer: Sensible Answers to Common Problems. This book is perfect for the new(er) practitioner and consists of short articles, originally presented as part of “Hot Tips from the Experts” CLE programs.

For more information, please visit the ABA Store.

Wisconsin Courts Update

After not having decided a family law case prior to the grandparent case for a number of years, the Wisconsin Supreme Court now has two on its docket. One is the Pulkkila case referenced above. The other is Miller v. Carroll, 2017AP 2132, reported to you in the March, 2019 FLU, for which the Supreme Court just granted review. Here is the Supreme Court’s version of the issues presented:

In this matter of first impression, without any allegation of subjective bias, without any allegation that objective facts existed that Judge Bitney treated Timothy W. Miller (“Mr. Miller”) unfairly, and when there were no electronic social media (“ESM”) communications between Ms. Carroll and Judge Bitney regarding the merits of the underlying case, does being a “friend” on Facebook alone overcome the presumption that judges are fair, impartial, and capable of ignoring any biasing influences thereby constituting a due process violation and a bright-line rule prohibiting the judicial use of ESM?

In this matter of first impression, does “liking” a Facebook post unrelated to the pending litigation or commenting on a Facebook post unrelated to the pending litigation constitute an ex parte communication between a party and a judge?

• • •

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 using this form.

Please Note: Some decisions may be posted in Adobe Acrobat (PDF) format.

Baker v. Baker
No. 2018-CA-001023-MR
Kentucky Court of Appeals
August 23, 2019

Former wife was equitably entitled to payment of back benefits from former husband’s railroad retirement payments, although wife did not file proper paperwork to gain access to retirement payments until two years had passed since former husband retired, where former wife fulfilled her duty by filing qualified domestic relations order (QDRO) and asking when former husband planned to retire, but former husband did not inform her of retirement.

Matter of Little
2019 N.Y. Slip Op. 06330
New York Supreme Court, Appellate Division, Fourth Department
August 22, 2019

Mother adequately alleged a change in circumstances warranting an inquiry into whether the children’s best interests would be served by modifying the custody agreement, i.e., that the children’s performance at school had deteriorated, and that increased animosity between the mother and the father made the shared custody arrangement unworkable.

Abercrombie v. Abercrombie
NO. 2017-CA-01158-COA
Mississippi Court of Appeals
August 20, 2019

While subject matter jurisdiction cannot be waived, it is subject to the principles of res judicata when the parties have litigated the specific issue of subject matter jurisdiction in the case previously. Thus, the mother was barred by res judicata from arguing the court did not have jurisdiction under the UCCJEA.

Conner v. Conner
Nos. 856 MDA 2018, 907 MDA 2018, 2019 PA Super 251
Pennsylvania Superior Court
August 20, 2019

In this case, the parties stipulated that if the court determined that Husband’s Judicial Income (an annuity) was retirement income subject to equitable distribution, then a deferred distribution method would be the appropriate method to effectuate equitable distribution. Both parties expressly recognized that the marital estate lacks sufficient assets to offset the marital value of Husband’s Judicial Income.

Regardless of the parties’ stipulations, the trial court proceeded to place a present value on the Judicial Income. The trial court arbitrarily imputed to Husband a life expectancy of 82, and a retirement age of 65, from which to calculate the present value of the Judicial Income. In so doing, the court multiplied Husband’s current salary of $208,000 per year by 17 (the potential number of years of retirement based on a retirement age of 65 and a life expectancy of 82 years) to arrive at a present value of $3,536,000.

“Upon careful review, we find the valuation method employed by the trial court to be in error.”

Jago v. Jago
No. 32 EDA 2019, 2019 PA Super 246
Pennsylvania Superior Court
August 19, 2019

Entry of qualified domestic relations order (QDRO) to allow husband to transfer portion of funds in his ERISA retirement plan to wife’s individual retirement account (IRA) was not warranted, and thus anti-alienation provision of ERISA prevented such transfer; record indicated that there was no current, foreseeable, or desired divorce or domestic relations matter of any kind between the parties, which they acknowledged in joint petitions, and parties stated that they wished plan benefits to remain marital property upon entry of QDRO.

Campbell v. Eary
No. 19A-MI-6
Indiana Court of Appeals
August 15, 2019

Grandparent visitation order did not survive subsequent marriage of natural parents, where visitation order had been granted on basis that children had been born out of wedlock.

Bergin v. Bergin
No. Han-19-77, 2019 ME 133
Maine Supreme Court
August 15, 2019

To be admissible, expert testimony must (1) “meet a threshold level of reliability,” (2) be “relevant pursuant to M.R. Evid. 401,” and (3) “assist the trier of fact in understanding the evidence or determining a fact in issue.” In this case, the trial court reasonably concluded that all three requirements were met. The expert testified extensively as to her work in the field of parental alienation, her education, her publications, the general acceptance of the field, her previous work as an expert in judicial proceedings, and the methods that she applied in this specific case. The hearing included substantial discussions of Nancy’s role in preventing Daniel from having contact with the children, making the expert’s testimony relevant, and the testimony aided the court by providing “a counterintuitive explanation as to the dynamics … present in [the] situation.” Further, the court appropriately limited the purposes of the expert’s testimony, stating, for example, that the court would not treat that testimony as bearing on whether certain factual matters were true. In any event, however, the court did not assign the expert’s testimony much weight, finding that no parental alienation had occurred and that the expert “presented as an advocate for one side, rather than a neutral observer.” Therefore, the court did not abuse its discretion by allowing the expert to testify.

Schweir v. Schweir
No. S-17138
Alaska Supreme Court
August 9, 2019

Ex-husband made a prima facie showing of a substantial change in circumstances that would entitle him to an evidentiary hearing on his motion to modify his child support obligation after he was placed on house arrest while awaiting trial on federal charges, where affidavits and supporting documentation indicated that ex-husband’s income had changed by more than 15%, that the house arrest conditions preventing him from working were likely to persist at least for some months, and that federal trial date had been postponed, and no previous order had considered the merits of motion.

Paese v. Paese
No. 2018-05068, 2019 N.Y. Slip Op. 06090
New York Supreme Court, Appellate Division, Second Department
August 6, 2019

Trial court’s determination that former wife was judicially estopped from arguing that former husband, who raised wife’s child as his daughter, was not child’s parent for purposes of determining whether husband had standing to seek parental access also applied to issue of husband’s custody of child, and thus husband had standing to seek such custody; although trial court’s order regarding parental access did not specifically mention custody, “parent” had same definition under statute allowing parent to apply for writ of habeas corpus to have minor child brought before court, which trial court used to justify decision to allow husband to seek parental access and which husband utilized in seeking custody, whether husband was seeking parental access or custody.

In re Gestational Agreement
No. 20160796, 2019 UT 40
Utah Supreme Court
August 1, 2019

Intended parents who were married same-sex male couple, along with prospective gestational mother and her husband, filed a joint petition requesting validation of their gestational agreement pursuant to Uniform Parentage Act. The district court denied the petition and the plaintiffs appealed. Held: Uniform Parentage Act provision requiring, as a prerequisite to court approval of a gestational agreement, that the court find that medical evidence showed that the “intended mother” was unable to bear a child or was unable to do so without unreasonable risk to her or to unborn child could not be read in a gender-neutral way to avoid constitutional concerns raised by married same-sex male couple who were intended parents via gestational surrogate and who were denied court approval because neither one was a woman; employing rules of statutory construction and the canon of constitutional avoidance to construe the statute in a gender-neutral manner was inconsistent with manifest intent of legislature and was repugnant to context of statute. The unconstitutional “intended mother” provision of Uniform Parentage Act, requiring that at least one intended parent be a female for court approval of a gestational agreement, could be severed from remainder of Act upon Supreme Court’s determination that the provision violated the due process and equal protection rights of intended parents who were married same-sex male couple; the remainder of Act would continue to be operable and continue to serve a legitimate purpose after the unconstitutional intended mother requirement was excised.

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.

Effects Of Divorce On Work Performance

The effects of divorce on work performance are hard to truly measure. Employees going through divorce are often late. At work, anxiety, anger, loneliness, and fatigue can cloud their judgment and cause productivity to plummet. This is likely true even if your divorce is relatively amicable. (Dads Divorce)

What Fifty Years Of No-fault Divorce Has Gotten Us

Fifty years ago this summer in 1969, California Governor Ronald Reagan signed the first no-fault divorce statute into law. Since then, all states have enacted similar legislation. Despite early applause from lawmakers that these laws would serve couples, they have negatively altered the landscape of marriage and family in the United States and violated the U.S. Constitution. (Washington Examiner)

How Your Compensation Structure Can Affect Your Divorce

If your compensation is structured as a straight salary—with no performance-based bonuses—then your negotiations are likely to be fairly straightforward, and the timing of your divorce won’t influence the outcome one way or another. But if any part of your compensation comes from the following sources, you should be prepared to be more strategic in your negotiations. (Forbes)


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.

Sperm Donation Can Assist Those Seeking to Build Their Families

In the last of our series of family building articles, we deal with sperm donation, the method which has been used with some frequency by infertility clinics when males have low sperm counts. More recently, sperm donation is being used by female same-sex couples to allow them to produce children of their own. In the latter cases, once the pregnancy is achieved through insemination, one woman carries the fetus to term. That person is assumed to be the birth mother whose name is placed on the birth certificate. It may be possible for a parentage determination to occur naming the other female as a parent also. The result would be a birth certificate identifying Parent One and Parent Two.

In the case of a heterosexual couple, assuming oocytes from the intended mother are used, once she carries the fetus to term and gives birth, the birth certificate will recognize her as the mother. If the mother is married, there is a presumption that her husband is the father, thus his name will be placed on the birth certificate. If she is not married, her male partner may not be determined to be the father.

Caveat: Although Wisconsin has statutes dealing with sperm donation (Wis. Stats. §891.40), known sperm donors should proceed with great caution when donating sperm. Some courts across the country have found that sperm donors may be responsible for child support, although not intended nor part of any agreement with the intended mother. It is important that the sperm donor be fully informed by a lawyer concerning his possible exposure before he donates sperm. The case outcomes holding sperm donors responsible for child support would suggest that sperm donation would be best done on an anonymous basis through a clinic rather than providing sperm to a female friend so that she may have a child.

Family Law Related Articles and Publications

The most recent edition of Family Advocate, published by the ABA Family Law Section, is a client manual, Frequently Asked Questions.

Articles include:

So You’re Getting Divorced: What to Expect and How to Proceed
By Jennifer S. Tier

Good Counsel: How to Get What you Need From Your Lawyer
By Dori F. Green

Putting a Price Tag on Your Divorce
By Dori F. Green

Your Soon-to-be-Ex Etiquette: What You Should and Should Not Do Now

The Road to Settlement
By Jenny Bradly

Focus and on Custody: It’s All About What’s Best for Your Kids
By Leena S. Hingnikar

Domestic Violence Changes Everything
By Allen M. Bailey

Calculating Child Support and Alimony
By Laura W. Morgan

The Move-Away Case: Can One Parent Relocate with the Kids Divorce and the Military Spouse
By Mark E. Sullivan and Kristopher J. Hisher

You, Your Ex, and Your Social Security Benefits

By Meredith J. Parker

Taxes: Claiming Exemptions and Taking Deductions
By Ross M. Kauman

Pondering a Prenup
By Linda J. Ravdin

Post-Divorce: Move On With Your Life
By Lois J. Liberman

Assisted Reproductive Techology Law
By Richard B. Vaughn

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

• • •

The Summer, 2019 issue (Vol. 22, No. 2) of the American Journal of Family Law
includes the following articles:

Intellectual Property Valuation for Family Law Purposes
By Robert F. Reilly and Casey D. Carlsen

Active Duty Service and Military Pension Division
By Mark E. Sullivan

Plowing the Landscape of Terror: How Impairing and enforcing Animal Cruelty Laws May Present Domestic Partner Abus
By Amber R. Macias-Mayo

Financial Realities of the Small Law Office
By Claude E. Ducloux

Aggravation of Equitably Dividing Household Furnishing
By Gregory S. Forman

For subscription information, call (888) 859-8081.

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.