Family Law Update for December 2018

In this Issue …

A Word from Gregg Herman
I need an associate!

Thoughts on Family Law Video
Proposed changes to the lawyer discipline system.

Wisconsin Courts Updates
Oral arguments in grandparent visitation case.

Decisions Across The Nation
Hague convention, Disclosure of assets in prenuptial agreement, Equitable estoppel and parentage, Three parents to share custody, Quitting a job to relocate near child, Grossing up net income for child support and more.

Family Law Online
Articles on Bloomington custody decision and on joint custody and shared parenting.

Family Law Related Articles and Publications
Family Advocate issue on “Hunting Down Perks.”

• • •

A Word from Gregg Herman …

Any readers know of someone looking for a (new?) job in family law? My associate, Kelley, decided that she really wants to be a teacher and I have yet to find a suitable replacement.

I’m looking for someone 3-7 years out of law school, who would be more of a junior partner, and maybe even take over this law firm a few years down the line.

If you know anyone who might be interested, have him/her drop me an e-mail.

Thoughts on Family Law

My video this month is on a non-family law topic: The proposed changes to the lawyer discipline system. Please watch it, and keep an eye out for read my forthcoming article in the Wisconsin Law Journal. Let me know what you think.

Wisconsin Courts Update

Think you can divine the intent of an appellate court by the questions they ask at oral arguments? If so, you are better than me! Still, here is a link to the oral arguments in the grandparent visitation case, Michels v. Lyons, 2017AP1142, which was argued on November 7, 2018. Let me know your prediction!

• • •

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 are posted in Adobe Acrobat (PDF) format.

Fernandez v. Bailey
No. 16-16387
United States Court of Appeals, Eleventh Circuit
Nov. 20, 2018

In this Hague Convention case, the Panamanian father filed a petition for the return of his twin boys to Panama after their American mother removed the boys from Panama and brought them to the United States without telling father for the second time. The Appellate Court held that the return of the twin boys was warranted, despite the “settlement” of the boys in the United States. The court concluded that Article 12 of the convention permitted the return, and in this case the return was warranted because of the deep involvement of the Panamanian courts in the children’s custody.

Hutchins v. Hutchins
DA 17-0575, 2018 MT 275
Montana Supreme Court
Nov. 20, 2018

Asked to decide whether a premarital agreement executed in Nevada was valid and enforceable, the court held that under Nevada law, which provides that disclosure of assets must be “fair and reasonable,” as opposed to “full and fair,” disclosure is adequate even if every asset is not value, or the disclosure fails to list an asset. All that is required is that each “party must have a clear enough picture of the other’s property to understand the magnitude of the other’s assets and obligations.”

Ramos v. Broderek
No. U-402-17, 2018 N.Y. Slip Op. 07733
New York Supreme Court, Appellate Division, Second Department
Nov. 14, 2018

In this case, the biological father (99.99% probability of paternity) sought to invoke the doctrine of equitable estoppel to prevent the mother from declaring him the father. In particular, he alleged that the mother’s ex-husband or new husband should be the “father.” No such luck. The biodad acted as though he was the father when he found out the mother was pregnant, and the ex-husband and new husband never established a close relationship with the child.

Saettele v. Saettele
No. ED 106263
Missouri Court of Appeals, Eastern District, Division Three
Nov. 13, 2018

Put this in the “Well, what did you expect?” file. In this case, on the day of trial, the Husband fired his attorney in open court. The courtroom bailiff testified that the Husband said “he was done for the day,” and the bailiff then escorted the Husband out of the building at Husband’s request. The Husband’s counsel thereupon asked to be released, “because he was fired today in court.” The trial court granted the request, and then proceeded with the trial without the Husband or his counsel. The Husband appealed the various decisions of the trial court, including the withdrawal of counsel. The appellate court held that the Husband’s point was not well taken, and affirmed the trial court.

Brown v. Brown
No. 0553-18-1
Virginia Court of Appeals
Nov. 13, 2018

After entry of decree of divorce, but before the division of property, the Husband died. The daughter was substituted as the defendant, individually and as co-administrator of former husband’s estate. She sought to dismiss the case as having abated with the Husband’s death, and the motion was granted. The Appellate Court reversed (of course!), holding that since the divorce decree had been granted, the court retained jurisdiction over the ancillary matter of equitable distribution.

C.A. v. C.P.
No. C084473
California Court of Appeal, Third District
Nov. 13, 2018

The putative biological father filed a petition seeking to confirm his legal relationship to a child born during the marriage of the mother and her husband, to change the child’s name, and to obtain paternity testing. Following an interim order for paternity testing confirming status as biological father and a bench trial, the court entered judgment declaring that child had three parents who would share custody. The mother and her husband appealed. The appellate court affirmed, holding that the statute granted the biodad standing to pursue his claims, and the statute did not unconstitutionally diminish the mother’s and her husband’s right to parent the child as they saw fit.

Parmenter v. Nash
No. CAF 18-00514, 2018 N.Y. Slip Op. 07553
New York Supreme Court, Appellate Division, Fourth Department
Nov. 9, 2018

After the father quit his job in Virginia to move to New York to be closer to this child, he moved for a modification of child support based on his lower income. The court declined to impute income to him, and granted the modification. The appellate court (surprisingly to me) affirmed, since the father quit his job in Virginia and relocated to New York to rehabilitate his relationship with his son, the father had made good faith efforts to obtain more lucrative employment, and the balance of equities weighed heavily in favor of father, as it was the mother who moved the child hundreds of miles away from the father and thereby created the difficulties inherent in long-distance parenting.

Ruiz v. Kinoshita
No. 197, Sept. Term, 2017
Maryland Court of Special Appeals
Nov. 2, 2018

When child support guidelines are based on “gross income,” can a trial court “gross up” income when the income is tax-free to account for the greater value of the income than if it had been taxed? The various court around the country have split on this issue. Maryland has said no, such an adjustment is not permissible.

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, please e-mail me.

Mother Asks U.S. Supreme Court To Review Bloomington Custody Decision

The mother of a Bloomington girl is asking the U.S. Supreme Court to review a McLean County judge’s decision to give custody of her daughter to the child’s grandparents.
(The Pantagraph)

Are Joint Custody and Shared Parenting a Child’s Right?

Many families with children separate all around the world. In France, for instance, nearly 200,000 children per year are affected by the divorce of their parents. After divorce, just over seven out of ten children (73%) live only with their mother and visit their father on alternate weekends. This phenomenon begs the question of the short- and long-term fate of these children, particularly in light of research showing that the active involvement of both parents in children’s lives is vital to their development and well-being. (PHYS.org)

Family Law Related Articles and Publications

The Fall, 2018 of the Family Advocate, published by the ABA Family Law Section is dedicated to Hunting Down Perks. Articles include:

Employee Benefits and Perks in Family Cases
By Samuel V. Schoonmaker IV & Peter M. Bryniczka

Identifying and Valuing Nontraditional Benefits in a Divorce
By Brant M. Webb & Pam Faris

Beyond Salary and Bonus: The Where, What, and How of Complex Executive Compensation from a Divorce Perspective
By Sandra R. Klevan

Performance Awards through Employee Stock Compensation Plans: Tax and Divorce Issues
By Donna Pironti & Mitchell Benson

Perquisites: Discovery, Taxation Issues, and Problems
By Barry S. Sziklay

Severance Benefits: An Overview of Family Law Practitioners
By Gregory K. Brown

Retirement as Deferred Compensation: What the Divorce Lawyer Needs to Know Regarding Qualified and Nonqualified Plans
By Joseph DiPianna

How Financial Tracking Documents Can Help Find Hidden Perks
By Jeffrey W. Brend & Jennifer M. Fletchall

Perks: Flying Under the Radar in the Smaller Business
By Kenneth G. Raggio

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

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.