Family Law Update for November 2018

In this Issue …

A Word from Gregg Herman
Upcoming Divorce Cooperation Institute seminar.

Thoughts on Family Law Video
Mediation can make a huge difference.

Wisconsin Courts Updates
Oral arguments on grandparent visitation case.

Decisions Across The Nation
“Earn-out” payments from sale of business, Engagement ring when would-be groom was still married, Hague Convention on Civil Aspects of International Child Abduction, UCCJEA, child removal, upward child support deviation based on extraordinary expenses of the child’s extracurricular activities and more.

Family Law Online
Articles on Pet custody, living together before marriage and cost of divorce.

Family Law Related Articles and Publications
American Journal of Family Law

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A Word from Gregg Herman …

The Divorce Cooperation Institute will be presenting its annual seminar at the Delafield Hotel on November 9, 2018.

This year’s topic is: “Practically Cooperative” and I will be co-speaking with Attorney Dave Karp. For more information and to register, visit the DCI web site.

Thoughts on Family Law

Mediation is not easy. Nothing about facing the end of marriage is. But mediation offers a sensible, affordable path to an energized reconciliation or a successful transition to a healthy co-parenting relationship in separation or divorce.

If any attorney has need for a mediator in this field, please call me at (414) 732-3397 or contact me by using this form. I would be pleased to try to help you settle a case. Details about our firm’s mediation services can be found on our office web site.

Wisconsin Courts Update

Oral arguments for Michels v. Lyons, 2017AP001142, the grandparent visitation case, is scheduled for Nov. 7, 2018 at 9:45 a.m.

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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 via e-mail.

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

Gill v. Gill
No. A16-142
Minnesota Supreme Court
October 24, 2018

At the trial court, the court classified the husband’s future, contingent earn-out payments for his ownership interest in a company purchased by husband during parties’ marriage, but sold after valuation date for marital property, but before dissolution of parties’ marriage was final, as the husband’s non-marital property. The Supreme Court reversed, holding the payments were marital. “Here, the district court correctly looked to the purchase agreement from the sale of Wyndmere’s interest in David Goliath that occurred 3 months after the valuation date to value Wyndmere. It clearly erred as a matter of law, however, by failing to include the contractual right to the earn-out payments as marital property because the earn-out payments, like the upfront payment, were proceeds from the sale accruing to Wyndmere, a marital asset. Because Wyndmere received a contractual right to receive the earn-out payments from the pre-dissolution sale of a marital asset that was acquired before the valuation date, we conclude that the earn-out payments, as direct proceeds from the sale, are marital property subject to the court’s valuation and equitable division.”

Cummins v. Goolsby
No. 2017-CA-00890-SCT
Mississippi Supreme Court
October 18, 2018

Usually, an engagement ring is a conditional gift, the condition being the marriage. If there is no marriage, i.e., the parties break up before the marriage, the donee must return the ring. This case has a delicious twist: the would-be groom proposed and gave his would-be bride the engagement ring while he was still married to his first wife. The court held that the condition of marriage was void, “because he conditioned his gift on something he legally could not do-marry[.] … [C]conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands” Hence, the would-be bride could keep the ring.

Taglieri v. Monasky
No. 16-4128, File 18a0235p.06
United States Court of Appeals, Sixth Circuit
October 18, 2018

In this Hague Convention on Civil Aspects of International Child Abduction case, the trial court determined that Italy was the habitual residence of the child, and ordered the return of the child to her father in Italy. On appeal, the Sixth Circuit held that the determination by the trial court was supported by a preponderance of the evidence. Of significance to the court: the parents had moved to Italy to pursue career opportunities and live “as a family” before child’s birth, the parents secured full-time jobs in Italy and purchased several items necessary for raising child in Italy; the mother pursued recognition of her academic credentials by Italian officials, applied for Italian driver’s license, set up routine checkups for child in Italy, registered their family to host au pair there, invited American family member to visit them there in six months, and lacked definite plans to leave Italy.

Editor’s Note:

The three dissents would have remanded the case back to the trial court for consideration of the evidence in light of Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017).

In reaching the decision, the appellate court articulated the standard of review: “To be clearly erroneous, a decision must strike [the Court] as more than just maybe or probably wrong; it must…strike [the Court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). This joins the great fish metaphors of American history. Cf. John Randolph, circa 1820’s: “He is a man of splendid abilities but utterly corrupt. He shines and stinks, like a rotten mackerel by moonlight.”

R.B. v. D.R.
No. E068760
California Court of Appeal, Fourth District, Division 2
October 11, 2018

After the mother moved to India with the child, the father commenced custody proceedings in the United States. The court held that even Indian did not have concurrent jurisdiction with the United States under the UCCJEA, India could be considered the more appropriate forum for litigating child custody issues. The court reasoned that the UCCJEA emphasized exclusive jurisdiction and avoided concurrent jurisdiction. Thus, following the California court’s finding that it had exclusive jurisdiction, California could determine it was an inconvenient forum, such that another state could exercise jurisdiction, and UCCJEA inconvenient forum principles applied regardless of whether the other state adopted UCCJEA.

Vela v. Land-Wheatley
No. F-3639-14, 2018 N.Y. Slip Op. 06747
New York Supreme Court, Appellate Division, Second Department
October 10, 2018

After the support magistrate imputed income to the father in the amount of $80,000 per year, the father appealed. The appellate division held that “the father’s testimony on the subject of his income was not credible, but instead was suspect, vague, and contradictory.” Thus, the court providently exercised her discretion in imputing an annual income of $80,000 to the father in calculating his child support obligation based on his prior employment history and high earnings in the mortgage loan industry.

Eason v. Bowick
No. CAF 17-01608, 2018 N.Y. Slip Op. 06641
New York Supreme Court, Appellate Division, Fourth Department
October 5, 2018

The mother appealed from an order that denied her petition to relocate to North Carolina and directed her not relocate with the child outside of Monroe County without court approval or the express written consent from the father. The appellate court affirmed the denial of the petition to relocate, but vacated a provision in the order that transferred primary physical custody of the child from the mother to the father in the event that the mother relocated outside of county. Such a provision impermissibly purported to alter the parties’ custodial arrangement automatically upon happening of specified future event without taking into account child’s best interests at that time.

Philips v. Philips
No. A18A1193
Georgia Supreme Court
October 4, 2018

“In the final judgment, the trial court found that the parties had been married 20 years while Husband was in the military; that during their marriage, Wife had served as the family homemaker and stay-at-home mother, that she had periodically worked in child care, and that she had obtained no education beyond high school. The trial court also found that Husband had retired from the military with a medical discharge, was determined by the Veterans’ Administration to be 100% disabled, and was receiving “monthly retirement benefits in the amount of $4,162.” Concluding that such monies constituted marital property, the trial court awarded Wife a portion of that pay.” Yikes, that is clear error. No part of the disability pay is marital property. See Howell v. Howell, 581 U.S. —-, 137 S.Ct. 1400, 197 L.Ed.2d 781 (2017).

In re Hoyt
No. 2017-0238
New Hampshire Supreme Court
October 3, 2018

The trial court did not err in granting an upward deviation from the child support guidelines’ presumptive award, considering the extraordinary expenses of the child’s extracurricular activities. Although extracurricular activities are included in basic guidelines support, ongoing extraordinary education expenses may constitute special circumstances that justify deviation from the guidelines, citing In the Matter of Arabian & Squillante, 151 N.H. 109, 112, 855 A.2d 560 (2004) (explaining that the trial court on remand may consider whether extracurricular activities created a special circumstance “that would justify deviating from the guidelines”).

New Law Review Articles Of Interest

Eric Bean, Equitable Adoption, 81 Tex. B.J. 682 (Oct. 2018)

Thomas DeCataldo Jr., The Interplay between a Parent’s Marijuana Use and Child Custody Disputes, 314-OCT N.J. Law. 82 (Oct. 2018)

Lacey Johnson, Comment, Low-Income Fathers, Adoption, and the Biology Plus Test for Paternal Rights, 70 Ark. L. Rev. 1113 (2018)

Brandi Sluss, Comment, Statutory Fixes to Modernize Custody Law in Georgia, 11 J. Marshall L.J. 95 (2017-2018)

Rachel E. Mairose, Aguilar v. Aguilar and Third-Party Custody Determinations: Examining the Definition of “Parent” from the Eyes of the Child, 63 S.D. L. Rev. 163 (2018)

Family Law Online

The following articles are provided for informational purposes only. If you discover an article on divorce or family law related issues that may be of interest to our subscribers, contact me by using this form.

New Law Changes Pet Custody Options In Divorce Cases In California

A new law has been passed in California that grants judges the authority to decide who gets custody of the family pet in divorces cases, much as they decide child custody, according to the Associated Press (AP). Until now, pets have been considered property, a status that puts them in the same category as material items like TVs and vehicles.

So Is Living Together Before Marriage Linked to Divorce or What?

Late last month, the Journal of Marriage and Family published a new study with a somewhat foreboding finding: Couples who lived together before marriage had a lower divorce rate in their first year of marriage, but had a higher divorce rate after five years. It supported earlier research linking premarital cohabitation to increased risk of divorce. (The Atlantic)

Divorce Is About to Get More Expensive

Ten months after the Tax Cuts and Jobs Act (TCJA) passed with great fanfare in December 2017, we’re still finding out what it really does for us. If you think that you might join the ranks of divorced people this year or in the future, there are provisions of the TCJA that you may want to pay attention to. (Kiplinger)

Family Law Related Articles and Publications

The fall, 2018 edition of the American Journal of Family Law (Vol. 32, No. 3) includes the following articles:

Valuation of Intangible Assets in Family Law Cases: Part II
By Robert F. Reilly

Disposition of Frozen Embryos in Family Law Cases
By Tim Schlesinger

The Link Between Animal Abuse and Child Abuse
By Amber R. Macias-Mayo

Writing and Submitting the Military Pension Division Order: Ten Tips
By Mark E. Sullivan

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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.