Suite 1900 • Milwaukee, Wisconsin 53202
(414) 272-5632 | (414.)272-7918 (fax)
Family Law Update for October 2018
In this Issue …
A Word from Gregg Herman
My opinions – right or wrong – and upcoming family law seminars
Thoughts on Family Law Video
My new Wisconsin Law Journal column.
Wisconsin Courts Updates
Claim preclusion case
Decisions Across The Nation
Standing requirement for custody, transmutation to marital property, retirement and more.
Family Law Online
“My Divorce Cost me $250,000,” millennials staying together, “gray divorce” and more.
• • •
A Word from Gregg Herman …
In my monthly video message, posted below, I discuss some issues regarding columns which I write on family law issues. Starting soon, I will resume writing for the Wisconsin Law Journal, which affords me the opportunity to be more provocative.
Do you have an issue in family law which might be on interest to practitioners? Contact me by using this form.
• • •
On Thursday, October 18, I will be speaking at the Wisconsin Law Journal seminar on OLR and Ethics at the Marcus Center for the Performing Arts, 929 N. Water St., Milwaukee. For more information, please visit the event web site.
• • •
The Wisconsin chapter of the AAML is putting a “western” version of its incredibly popular seminar “Divorce Wisconsin Style” on October 12, 2018 at the Monona Terrace in Madison. Of course, I will be presenting new developments, with an emphasis on new statutes (including the new tax law) along with my usual partners, Judge Tom Walsh and Attorney Dennis Milbrath. For more information, visit the AAML web site.
• • •
Finally, the Divorce Cooperation Institute will be presenting its annual seminar at the Delafield Hotel on November 9, 2018. The topic is: “Practically Cooperative” and I will be co-speaking with Attorney Dave Karp. For more information, visit the DCI web site.
Thoughts on Family Law
Very soon I will return to writing columns for Wisconsin Law Journal.
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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 September 25, 2018, the District I Court of Appeals issued their opinion in Broderson v. Hobbins, No. 2017AP1929, which affirmed the order rendered by the Honorable Paul R. Van Grunsven (Milwaukee County).
In 2014, Katherine brought a motion for child support, seeking to withdraw from the divorce agreement that child support would be held open and any child support awarded in the future would be refunded in light of the Section 71 payments. Apparently, her motion was not going well as in the middle of the proceedings before the circuit court, she agreed to voluntarily withdraw her motion with prejudice.
In 2016, she apparently changed her mind again\ and renewed her request for child support. The circuit court denied her motion under the doctrine of res judicata and claim preclusion.
The appellate court affirmed, holding that by voluntarily withdrawing her motion with prejudice, Katherine was barred from relitigating the same claim. The appellate court expressly declined to address the public policy arguments based on the doctrine of claim preclusion.
• • •
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.
No. 2 MAP 2018
Pennsylvania Supreme Court
September 21, 2018
Mother’s same-sex former partner brought action seeking legal and partial physical custody of child born during parties’ relationship. In Pennsylvania, standing requirements limit who may seek physical or legal custody of a child to the following individuals: (1) a parent; (2) a person who stands in loco parentis to the child; or (3) under certain conditions, a grandparent of the child who does not stand in loco parentis. Here, the former partner was not a “parent” who had standing to seek custody of child, and trial court was not required to consider existence of bond between child and former partner as decisive factor as to whether former partner stood in loco parentis to child. It was only one factor among others.
- Majority Opinion
- Concurrence (Dougherty)
- Concurrence (Wecht)
In re Marriage of Kushesh and Kushesh-Kaviani
California Court of Appeal, Fourth District, Division 3
September 21, 2018
During dissolution proceeding, both husband and wife claimed condominium unit, that husband previously conveyed to wife via interspousal transfer grant deed (ITGD), as their separate realty. Held: Interspousal transfer grant deeds (ITGD) meet the statutory requirements for a transmutation of the character of marital property, so that ITGD expressly transferred spousal interests, since ITGD expressly used verb “to grant” in order to convey title.
(Ed. Note: I love cases that turn on grammar and punctuation. See: The Oxford Comma: Great For Listing, Pontificating, And Winning Court Cases. )
Alaska Supreme Court
September 14, 2018
Under Alaska law a spouse’s separate property may be transmuted into marital property if “that is the intent of the owner and there is an act or acts which demonstrate that intent.” The relevant intent is that of “the owning spouse, not the married couple. Thus, the superior court’s transmutation analysis was misdirected when it focused on whether the married couple intended to treat the property as marital property, rather than on whether the owning spouse intended to donate the property to the marital estate.
New York Supreme Court, Appellate Division, Second Department
September 12, 2018
“The petitioners are the maternal aunt and uncle of the subject children. They were awarded residential custody of the children after the death of the mother, and share joint legal custody with the father. The petitioners commenced this proceeding for child support from the father. After a hearing, the Support Magistrate entered an order of support dated March 24, 2017, which, inter alia, required the father to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The father objected to these provisions of the order of support, and in the order appealed from, the Family Court denied his objections.” Held: “Family Court Act § 413(1)(a) provides that “the parents of a child under the age of  years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine” (emphasis added). The statute does not require a third party who is not a parent to financially support a child.”
No. 20160997-CA, 2018 UT App 175
Utah Court of Appeals
September 7, 2018
Former husband, who planned to take early retirement, filed petition to modify divorce decree and terminate former wife’s alimony award. The appellate court held that the husband’s retirement was a foreseeable event at the time of divorce and thus was not a triggering event for termination of his alimony obligation. The “legislature employed the adjective `foreseeable,’ which includes not only those circumstances which the parties or the court actually had in mind, but also circumstances that could `reasonably be anticipated’ at the time of the decree.” Here, retirement was a foreseeable event at the time of the divorce, because (1) the husband contributed to a retirement account during the marriage, and a provision of the divorce decree provided that Pixie was entitled to half of that account accrued during their marriage; (2) the husband testified at the bench trial that when he divorced the wife, he anticipated working until he was 65; (3) the divorce decree also identified three specific events that would terminate alimony, but nothing in the decree designated retirement as an event which would terminate the alimony obligation.
Law Review Articles of Interest
David W. Lannetti, A Nonparent’s Ability to Infringe on the Fundamental Right of Parenting: Reconciling Virginia’s Nonparental Child Custody and Visitation Standards
, 30 Regent U. L. Rev. 203 (2018).
Bryan Adamson, The ‘Blurred Lines’ of Marvin Gaye’s ‘Here, My Dear’: Music as a Tortious, Cardozo Arts & Entertainment Law Journal, Vol. 36, No. 1, 2018.
Family Law Online
Despite the persistent myth that men get fleeced in divorce proceedings, statistics show that women are much more likely to take a financial hit if their marriage ends — particularly if they have children. (The Cut)
Add Divorce to the List Of Things Millennials are Killing
Bras, top sheets, sleeping with clothes and now … divorce. Millennials get blamed for “killing” many trends, and the latest example might mean everyone’s favorite generation to hate is in it for the long haul after tying the knot, according to a new study. (USATODAY)
Divorce Risk Rises with Proportion Of Opposite-Sex Individuals at Work
Researchers at the University of Stockholm combed through Danish register data on individuals who married during 1981-2002 and actively worked in this period. After controlling for age at and duration of marriage, education, and parity, the researchers found that “a higher proportion of opposite-sex individuals in one’s occupational sector is associated with higher divorce risk.” These findings held for both genders, although the association was more significant for men and varies by education. (ZTE Science)
Don’t Let a ‘Gray Divorce’ Keep You From Your Retirement Dreams
The stakes are high for older couples negotiating the terms of divorce. Take some proactive steps before you sign on the dotted line to protect your financial future. (Kipplinger)
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.
- Atty. Laura Morgan, Family Law Consulting, Charlottesville, VA (Family Law Cases)
- Atty. Elizabeth Neary (adoption)
We Thank Them for Their Contributions!