Family Law Update for November 2019

In this Issue …

A Word from Gregg Herman
Supreme court arguments scheduled in “The Judge on Facebook” case.

Wisconsin Courts Updates
No court of appeals cases.

Decisions Across The Nation
Case topics include: UCCJEA; failure to exercise visitation and child support; role of GAL; contempt for disparaging father; paternity by estoppel; transfer to LLC does not transmute separate property; deferred compensation plan is not income; personal injury settlement; domestic violence and joint legal custody, definition of income and more.

Family Law Online
Divorce and social media, house options and angry family law clients.

Business Valuations
Tax case involving discounts.

Family Law Related Articles and Publications
The Family Law Quarterly issue is entitled: “A Selection of Various and Important Family Law Topics.”

 

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A Word from Gregg Herman …

How Exciting!

Two family law cases before the Supreme Court!

One of them, Miller v. Carroll, No. 2019 WI App 10, 386 Wis. 2d 267, 925 N.W. 2d 580, the “Judge on Facebook Case” is scheduled to be argued before the Wisconsin Supreme Court on December 12, 2019. For my take on the case, listen to this month’s video message.

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

• • •

Wisconsin Courts Update

Nothing from the court of appeals . . . Again.
Good thing we have the Supreme Court!

• • •

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.

In re Guardianship of K.B.
No. 2019-0126
New Hampshire Supreme Court
Oct. 25, 2019

In this case, the Mother of K.B.sought to modify or terminate the her parents’ (maternal grandparents) guardianship over K.B. which had been granted by a Connecticut court. The Connecticut court’s order granting the guardianship is a child-custody determination for UCCJEA purposes. Because the petition sought the modification of another state’s child-custody determination, the circuit court had jurisdiction to entertain the petition only if the requirements of the UCCJEA were met. They were not: the record does not demonstrate that a court of the State of Connecticut has determine[d] it no longer has exclusive, continuing jurisdiction under [Connecticut’s version of the UCCJEA], or that a court of this state would be a more convenient forum.

Myers v. Lane
No. 4D18-3681
Florida District Court of Appeal, Fourth District
Oct. 23, 2019

Applying Fla. Stat. § 61.30(11)(c), the court held that the Father’s continued failure to exercise his visitation with one of his children warranted an upward modification of child support.

Thunelius v. Posacki

193 Conn. App. 666
Connecticut Appellate Court
Oct. 22, 2019

(1) tasks assigned to guardian ad litem did not amount to improper delegation of court’s authority; (2) court did not impermissibly conflate guardian ad litem’s reporting function with her role as court-ordered mediator; (3) order empowering guardian ad litem to select coparenting counselor/coordinator if mother and father could not agree on whom to select did not constitute improper delegation of judicial authority; (4) trial court abused its discretion by ordering that guardian ad litem fees be paid by whichever party lost in court if mediation was unsuccessful; (5) protective order in immediate postjudgment period did not constitute abuse of discretion; (6) trial court did not abuse its discretion by ordering child to continue at private school through eighth grade; but (7) court abused its discretion by ordering mother and father to divide cost of child private high school education.

Ed. Note: For another case on improper delegation of authority, see Warawa v. Warawa
No. 2018-CA-000963-ME (Kentucky Court of Appeals, Oct. 22, 2019).

Sullivan v. Harper
No. A19A1629
Georgia Court of Appeals
Oct. 22, 2019

(1) contempt order that indicated mother did not have the right to dictate who father could bring to meetings or appointments with the children’s doctors or therapists did not impermissibly modify the parties’ parenting plan in divorce decree; (2) evidence supported finding that mother was in contempt of court for willfully disparaging father to their children’s therapists and doctors; (3) evidence supported finding that mother was in contempt of court for willfully interfering with father’s right to receive information from the children’s doctors and therapists; and (4) evidence was insufficient to find mother in contempt of court due to her refusal to allow father’s fiancé to attend child’s therapy sessions.

S.M.C. v. C.A.W.
No. 1802 MDA 2018, 2019 PA Super 318
Pennsylvania Superior Court
Oct. 22, 2019

The doctrine of paternity by estoppel is alive and well. “[T]he evidence in the present case supports the trial court’s ruling of paternity by estoppel. Appellant had a long-term in loco parentis relationship with Child that began when Child was an infant. Child and Appellee lived in Appellant’s home for virtually the first twelve years of Child’s life, during which time he held himself out as Child’s father, provided most of Child’s financial support, listed Child as a dependent on seven years of tax returns, and formed a close emotional bond with Child. After Appellee and Child left Appellant’s residence, Child had a continued need for financial support, as Appellant stopped all financial support and Appellee had to obtain public assistance. Child also continued to need Appellant’s emotional support, but Appellant stopped all contact with Child except for several isolated visits, causing Child to suffer an adjustment disorder with mixed anxiety and depression. Based on the fact that Appellant held out Child to be his own for well over a decade, together with Child’s need for continued financial and psychological support, we conclude the court did not abuse its discretion in holding that it was in Child’s best interests for Appellant to be liable for child support based upon paternity by estoppel.”

In re Marriage of Izzo

Nos. 2-18-0623 & 2-18-0769 cons., 2019 IL App (2d) 180623
Illinois Appellate Court, Second District
Oct. 15, 2019

Father’s increased share of overnight custody from 15% to 45% since the original judgment constituted a sufficient change in circumstances warranting modification of child support.

Gardner v. Gardner
No. 20170598, 2019 UT 61
Utah Supreme Court
Oct. 15, 2019

A spouse’s participation in an extramarital affair “substantially contributed” to breakup of marriage, and thus may be considered in an alimony determination, if conduct was a significant or an important cause of the divorce; the conduct need not be the sole, or even the most important, cause for it to substantially contribute to divorce.

Herbener v. Herbener
No. 2017-CA-001642-MR
Kentucky Court of Appeals
Oct. 11, 2019

During the marriage, the Husband transferred certain of his separate property into an LLC. The LLC, in turn, was owned by both the Husband and the Wife. The Wife claimed that the transfer of the separate property into the LLC was a transfer into “concurrent ownership,” and therefore it was marital property. The court disagreed. “Concurrent ownership is limited to ownership by people, not by an organization. Therefore, the placement of Marc’s separate property into Motel Keys, regardless of whether the LLC was owned by both of them, did not transform it into property concurrently owned by both Marc and Janet. The property retained its prior status. Accordingly, the family court properly held that “transferring the properties to Motel Keys is not sufficient to change the ‘Separate’ nature of the properties[.]”

In re N.J.C.
No. 18CA0915, 2019 COA 153
Colorado Court of Appeals, Division I
Oct. 10, 2019

“Turning to father’s deferred compensation plan, we conclude that it is not income. Father does not voluntarily contribute to the plan and he has no control over the funds or the plan’s administration. He does not currently receive money from the plan and may not invade the account, when it is funded, to withdraw funds as he chooses. Father will receive the deferred compensation funds only after he retires from HCI at age sixty-five and, even then, there is no guarantee father will receive any of the funds. Because father only has a “promise” to receive the deferred compensation when he turns sixty-five, which in no way assists him in paying his expenses at the present time, father’s deferred compensation plan is not income. We have reviewed the out-of-state authority cited by mother to support her argument that deferred compensation should be considered income for child support purposes. However, we find those cases factually distinguishable, because they involve employees who voluntarily chose to defer or redirect their receipt of income.”

Dixon v. Dixon
A19A1179
Georgia Court of Appeals
Oct. 9, 2019

Regarding a personal injury settlement signed by husband: “Here, the settlement documents allocate portions of the $1,000,000 award toward the payment of numerous obligations, including attorney fees and satisfaction of the parties’ bankruptcy case. The settlement also includes several undifferentiated advances to the husband via check and wire transfer. The husband has not tendered evidence, either through affidavits or otherwise, as to the purpose of the settlement, and the settlement documents are silent as to this issue. The husband has failed to cite authority for the proposition that the payments under the terms of his disability insurance policy preclude a finding that at least some portion of the settlement was intended as compensation for lost earnings. Construed most favorably to the wife as the nonmovant, we conclude that a genuine issue of material fact remains as to whether the proceeds from the settlement agreement constitute marital property.” On the other hand, the Wife failed to show that any part of the settlement could be for loss of consortium.

Collado v. Collado
No. 2017-CA-01644-COA
Mississippi Court of Appeals
Oct. 8, 2019

Parties’ settlement agreement provided that the husband was to pay for private school tuition so long as both parties jointly agreed for the children to be enrolled in private school. Thereafter, the husband decided that the children should not be enrolled in private school. The wife brought a petition to modify child support to order the husband to pay for private school despite his refusal. The appellate court held that the wife “failed to prove any material change in circumstances that was “not foreseeable prior to the time of the agreement. The only thing that changed was [the husband’s] position as to where two of his four children should go to school. [The husband’s] decision that two of his children should attend public school was a change in circumstances, but it was a change that the parties’ court-approved settlement agreement expressly contemplated.”

Kilgore v. Kilgore

449 P.3d 843, 135 Nev. Adv. Op. 47
Nevada Supreme Court
Oct. 8, 2019

A district court has discretion to order pension payments at the employee spouse’s first eligibility for retirement, even if the employee spouse has not yet retired. BUT, the trial court did not err when it reduced the amount due the wife due by calculating the total amount owed to former wife for past payments, reduced the amount to judgment, then analyzed former husband’s financial obligations before determining the amount former husband was required to pay each month.

Thornton v. Bosquez

No. A18-0223
Minnesota Supreme Court
Oct. 2, 2019

The statute that provides that the court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in best interests of child if domestic abuse has occurred between parents does not require that court award sole custody to victim of domestic violence. The statute imposes a rebuttable presumption only against joint physical or joint legal custody arrangements. The statute does not assign a burden of production or persuasion to rebut the presumption to any particular party. Thus, the district court did not abuse its discretion by awarding joint physical custody and sole legal custody of child to mother, who had committed domestic abuse.

Ayres v. Ayres

193 Conn. App. 224
Connecticut Appellate Court
Oct. 1, 2019

A “what is income” case. (1) restricted share units (RSUs), once vested, were “stock” that separation agreement excluded from definition of “gross income”; (2) provision of separation agreement excluding stock from gross income calculation applied to performance-based stock awards; (3) performance stock units (PSUs) were not “stock”; (4) sufficient evidence supported finding that PSUs were “performance-based bonuses” that were within definition of “gross income”; and (5) severance pay was not either base pay or a performance-based bonus, and, thus, was not within definition of “gross income.”
Law Review Articles of Note
Debra Pogrund Stark, Jessica M. Choplin, Ph.D., and Sarah Elizabeth Wellard, Properly Accounting for Domestic Violence in Child Custody Cases: An Evidence-based Analysis and Reform , 26 Mich. J. Gender & L. 1 (2019)

Note, Christopher L. Williams, Injured Victims and Robbed Spouses: Reconciling Tort Awards with the Community Property System , 61 Ariz. L. Rev. 403 (2019)

News Articles of Interest

A court in England held that a transgender man who gave birth must be listed as the child’s mother on the birth certificate. Full Story 1 | Full Story 2

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 via e-mail.

#ItsOver: Going Through a Divorce on Social Media

Many young couples document every photogenic scene, from their engagement through the honeymoon, on Facebook, Instagram and other social media. That has created a dilemma that previous generations never had to confront: When you’ve shared every relationship milestone online, how do you broach the subject of divorce? (The Wall Street Journal)

Options For What To Do With The House After a Divorce

During our marriage, we took out a home-equity loan and my ex-spouse had to co-sign for the loan. Our divorce decree says that I am solely responsible for the mortgage and equity loan payments. It also says that the loan should be refinanced and put solely in my name. Great, but what if that’s not possible? (The Washington Post)

How To Deal With Angry Family Law Clients

Whether you’re a veteran family law attorney or one who just passed the bar, you will have to deal with an angry client. Strike that. Many angry clients. That’s especially true in family law. The telltale signs are there: agitation, arms folded tight, and glaring looks. These physical signs are unmistakable. Your client is stressed and angry, and you will often be the recipient of their emotional fallout. (Law.com)

Business Valuations

The following information is provided courtesy of Gregory J. Ksicinski, CPA/ABV, MSTSVA Certified Public Accountants, S.C., Brookfield, WI 53045. You can reach Greg at 414-333-1097 or via email.

Kress v. US

In a Federal gift tax case, the US District Court looked at multiple business valuations submitted by experts (2 for the company and 1 for the Government) for a minority interest in Green Bay Packaging, Inc. (GBP). The valuations presented were for years 2007, 2008 and 2009. In addition to several unique issues of interest primarily to valuation professionals, the Court looked at discounts and premiums as presented by the experts.

Based on the valuation methods used by all three experts, the Court did not need to consider any minority interest discount. In using a market approach, the experts valued a minority interest and the income approach used cash flow to minority shareholders. The IRS expert applied a S Corporation premium. In not allowing the S Corporation discount, the Court stated that there were both advantages and disadvantages to S Corporation status and it was unclear whether a minority shareholder enjoys the benefits.

The Court stated that before the discount for lack of marketability (DLOM), the values presented by all three experts were relatively consistent. The IRS expert applied a roughly 11% DLOM over the three years. His discount was based on the costs that GBP would incur to go public – even though GBP intended to remain private. One of the GBP experts applied a 20% DLOM for all three years and the other applied a 30% discount for 2007 and 2008 and 28% in 2009. Both experts used restricted stock studies and other factors to determine the level of discount. Based on the evidence presented, the Court found one of the GBP experts presented reliable valuations for the minority shares. The Court did adjust the DLOMs slightly to 27% for 2007 and 2008 and 25% for 2009.

In my mind, this case indicates that the overall valuation report and supportable evidence provided in it will be the primary factor that the Court will consider in making a final value determination.

Family Law Related Articles and Publications

The Summer, 2019 edition of the Family Law Quarterly (Vol. 52, No.2) is entitled A Selection of Various and Important Family Law Topics.

Articles include:

Postmarital Agreements: Validity and Enforceablility
By Linda J. Ravdin

Ten Practice Tips for Postnuptial Agreements: Drafting Considerations and Formalities
By Michael A. Mosberg & Patricia Kindregan

The Doctrine of Intentional Parenthood
By Geri C. Sjoquist

Tax Reform Could Make Divorce a Whole Lot More Taxing
By Justin T. Miller

For ordering or subscription information (the current issue may not be available yet), please visit the Family Law Quarterly website.

Contributing Editors

Our contributing editors include:

We Thank Them for Their Contributions!

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.