Family Law Update for October 2019

In this Issue …

A Word from Gregg Herman
VIDEO: GAL training rule, AAML seminar and AFCC Wisconsin seminar.

Wisconsin Courts Updates
No new cases.

Decisions Across The Nation
Earning capacity, UCCJEA case, cohabitation and maintenance, award of all marital assets to wife, ICARA case and more.

Family Law Online
Retirement savings, Family Law 2019 and tax benefits.

Family Law Related Articles and Publications
American Journal of Family Law

• • •

A Word from Gregg Herman …

VIDEO: Proposed GAL Training Rule

My video this month deals with a proposed Wisconsin Supreme Court rule which would mandate a portion of GAL training to be devoted to the “dynamics of family violence”.

Yes, this may be controversial (you know I am going to be skeptical), so watch and let me know your thoughts using this form.

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

• • •

“Divorce Wisconsin Style” Set for Oct. 18. 2019

The AAML Wisconsin Chapter Divorce Wisconsin Style seminar is scheduled for Oct. 18, 2019 at the Monona Terrace in Madison. The program is similar to the spring event at the Pfister in MIlwaukee each year.

For more information, and to register. please visit the AAML-WI web site.

• • •

2019 Annual Education Seminar Scheduled for Oct. 4, 2019

The Wisconsin Chapter of the AFCC is holding its 2019 Annual Education event on Oct. 4, 2019 at The Ingleside Hotel in Pewaukee. The featured speaker will be Julia Weber (J.D. MSW), who will deliver a presentation entitled: Untangling the Web: Family Court, Technology and Today’s Family.

For more information, please visit the AFCC-WI web site.

Wisconsin Courts Update

— No New Cases —

• • •

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.

Thomas v. Joseph
No. 1D19-0102
Florida District Court of Appeal, First District
September 18, 2019

Very screwed up fact pattern for a custody case. During the marriage, the Husband and Wife adopted a child. Then, the Husband fathered a child with a relative of the Wife. The birth mother voluntarily gave the child to the Husband and Wife to raise as their own. The child’s birth certificate listed no father, but listed the child’s surname as the Husband’s surname. The marriage between the Husband and Wife was dissolved by the final judgment of dissolution entered December 26, 2012. In the final judgment, the trial court found that the parties agreed that the child “is the biological child of the Husband, but is not the biological child of the Wife.” After the divorce, the Husband moved for modification of custody. In that proceeding, the Wife asserted that the Husband was not the biological father of the child at issue. In the modification proceeding, the court eliminated any parental status, parental responsibility, and timesharing for the Wife. The Appellate Court reversed the order of the trial court as erroneous on its face, finding that the Wife had established her status as parent in the final judgment; therefore, any modification of the parental responsibilities and time-sharing schedule in the judgment of dissolution must comply with the requirements of section 61.13(3), Florida Statutes (2018), which it did not.

Callahan v. Callahan
192 Conn. App. 634
Connecticut Court of Appeals
September 17, 2019

“Bearing in mind that a party’s earning capacity is not calculated by reference to amounts the party can theoretically earn, nor is earning capacity fixed at any one moment in a career, we are unpersuaded that the court abused its discretion in grounding its finding of the defendant’s earning capacity on the profits of the companies. The court had before it the defendant’s testimony that he would not be able to obtain a job with a Wall Street bank or hedge fund because the nature of the companies’ business had made him an “insider,” and the court found significant that the defendant had not worked on Wall Street in twenty years. Moreover, the transfer of the plaintiff’s interest in the companies to the defendant, which had been ordered by the court in the May, 2012 dissolution judgment, had not yet occurred, which the defendant testified prevented him from selling the companies. Thus, the court was not required to make its finding of the defendant’s earning capacity on the basis of what the defendant might theoretically earn were he to sell the companies he founded and ran for approximately twenty years to pursue limited opportunities for employment in the marketplace.”

Interest of A. L.
Georgia Court of Appeals
September 12, 2019

The Department of Family and Children Services (DFCS) filed a dependency action and the children were removed from the mother’s custody; temporary custody was awarded to the children’s father, who then moved children to Florida. The Juvenile Court dismissed the mother’s motion seeking reunification and a change of custody, based on the court’s determination that Georgia was an inconvenient forum for adjudicating claims. The Appellate Court held that the juvenile court failed to make findings demonstrating consideration of all factors in Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in its determination of inconvenient forum.

Landau v. Landau
No. A-1240-18T4
New Jersey Superior Court, Appellate Division
September 12, 2019

Ex-husband seeking to terminate, suspend, or modify alimony based on ex-wife’s alleged cohabitation with boyfriend was required to establish a prima facie showing of cohabitation before he would be entitled to conduct discovery on the issue, even though such a showing could be difficult to establish as evidence was often consistent with either a dating relationship or cohabitation relationship; the legislative amendments to the alimony statute, while elaborating the relevant factors to proving cohabitation, did not change ex-husband’s burden of proof or conditions for compelling discovery.

Sulikowski v. Sulikowski
No. Yor-19-57, 2019 ME 143
Maine Supreme Court
September 10, 2019

The trial court’s determination that former wife’s annual gross income was $76,000 per year was not clearly erroneous, in post-divorce spousal support modification proceeding; former wife testified that her income in each of the prior several years was between $32,483 and $47,713 and that a recent injury had diminished her earning capacity, forensic accountant estimated that former wife’s annual income likely ranged from $113,174 to $144,501 in the same time period, and the trial court found former wife “routinely” under reported her overall income and did not report the income from one of her businesses with any degree of accounting accuracy.

Kelly v. Kelly
No. 46748
Idaho Supreme Court
September 10, 2019

The magistrate court abused its discretion by permitting husband to retain psychologist to perform a parenting time evaluation as his expert, in divorce proceeding when child custody was a contested issue; parenting time evaluators can be selected only by stipulation of the parties or by appointment of the court, in either case, the chosen expert must be neutral, and not beholden to either side, and psychologist was ultimately paid over $105,000 to conduct the parenting time evaluation on behalf of husband. Further, the magistrate court abused its discretion when it ordered wife to undergo a psychological evaluation and counseling, as recommended by psychologist, husband’s expert, during child custody portion of divorce trial; a judge had no authority to order medical or psychological treatment in a child custody case unless there was direct testimony that such treatment would be in the best interest of the child, and there was no language indicating a psychological evaluation was in the best interests of child.

Hardy v. Hardy
No. 1D17-277
Florida District Court of Appeal, First District
September 9, 2019

Trial court was within its discretion to award wife all marital assets despite magistrate’s recommendation to divide assets evenly and to freeze husband’s entire employee stock ownership plan and trust despite awarding wife only half of it in final judgment dissolving marriage, where husband was unemployed alcoholic with history of domestic violence who had not supported his family for over a year and lacked any means to do so, had repeatedly violated domestic violence injunction and burned marital home to ground after magistrate had heard issues, and was serving prison sentence for arson, burglary, and aggravated stalking.

Baptiste v. Baptiste
Docket No. A-4734-16T3
New Jersey Superior Court, Appellate Division
September 6, 2019

A mess of a case. The Appellate Court remanded because (1) the trial court never considered the wife’s petition for pendente lite relief; (2) the trial court failed to specify the sums the wife was to receive in the property award; (3) the trial court failed to make any findings regarding the standard of living the parties enjoyed during the marriage; (4) the trial court failed to value the parties’ most significant asset, the marital home; (5) the trial court failed to award the wife counsel fees, where the husband made more than ten times the amount of the wife ($27,000 vs. $366,824). The court remanded, with instructions to assign a different judge to the case. Also of note, the appellate court held, “In determining an alimony award, that [new] judge should consider whether requiring defendant to pay over an annual percentage of his net bonus poses a potential ‘source of strife and friction that should be eliminated.’ Bowen v. Bowen, 96 N.J. 36, 43(1984).” (Internal citations and quotation marks omitted.)

Watts v. Watts
No. 18-4025
United States Court of Appeals, Tenth Circuit
September 5, 2019

District Court did not improperly require showing that father and mother had shared intent to stay in Australia permanently or indefinitely, in order to show children’s habitual residence there, as necessary to support father’s petition for return of children to Australia under Hague Convention on Civil Aspects of International Child Abduction, and its implementing statute, the International Child Abduction Remedies Act (ICARA), after mother took children to live in Utah; Court considered specific facts and circumstances surrounding family’s move from United States to Australia, looked to length of parents’ intended stay as one factor among many, and noted that family intended to remain in Australia for limited period for a highly specific purpose of obtaining specialized medical care for one of their children and that couple maintained a home in North Carolina, left many sentimental possessions in the United States, and continued to operate father’s company in United States. Held: Australia was not children’s “habitual residence,” warranting denial of father’s petition seeking return of children to Australia under Hague Convention on Civil Aspects of International Child Abduction, and its implementing statute, the International Child Abduction Remedies Act (ICARA), after the mother took children to live in the United States; although parents moved their family to Australia, intended to stay there for limited time period, while they obtained specialized medical care for one child, and family lived in Australia for about 11 months, the parents’ maintained a home in the United States, left many sentimental possessions in the United States when they moved to Australia, and maintained United States financial ties, including father’s business and bank accounts there.

Cheek v. Edwards
No. 17-FM-1302
District of Columbia Court of Appeals
September 5, 2019

Trial court’s order, as part of modification of child custody, directing that father’s visitation with children be at mother’s sole discretion was impermissible delegation of its sole authority to direct visitation.

Boreen v. Boreen
192 Conn. App. 303
Connecticut Court of Appeals
September 3, 2019

Evidence was sufficient to establish that former wife was living with new partner, as necessary for trial court to terminate former husband’s obligation to pay alimony to former wife; wife and partner resided under same roof for approximately half of each week, took many meals together, regularly communicated by cell phone, and frequently traveled together, partner provided for wife’s health insurance coverage under his own policy, as result of couple holding themselves out as being domestic partners, and partner allowed wife to keep rent-free art studio at his home.

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.

Getting Divorced Cost This Woman Nearly $1 Million In Retirement Savings — How To Avoid Her Fate

When Buonincontri got married in 1996, she and her then-husband each already owned property. They chose to live in the house that Buonincontri bought on her own with a roughly $20,000 down payment before they were married. Fifteen years later, when the couple initiated divorce proceedings, that decision came back to haunt her. (MarketWatch)

Special Section: Family Law 2019

In The Legal’s Family Law supplement, read about conscious uncoupling, pet custody, second-parent adoptions and spousal support following the Tax Cuts and Jobs Act of 2017. (Legal Intelligencer)

Post-Divorce Tax Benefits After Alimony Deduction’s Death

While nearly every client understands that the 2017 tax reform legislation made sweeping changes touching nearly every corner of the tax code, many might not realize that the tax treatment of alimony payments was turned upside down—until they begin to consider divorce. (Think Advisor)

Family Law Related Articles and Publications

The Fall, 2019 edition of the American Journal of Family Law (Vol. 33, No. 3), includes the following articles:

Psychiatric-Legal Partnerships Addressing Family Separation at the border and Long-Term Effects of Trauma
By Nosene Ranjbar

The Rapid Change of Privacy in The Digital Age
By Jeffery Allen

Using Evidence and Experts in Divorces Involving Special Needs
By Margaret Price and Nancy Golden

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

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

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.