Family Law Update for December 2019

In this Issue …

A Word from Gregg Herman
VIDEO: Introducing Herman Mediation Services!

Wisconsin Courts Updates
Contempt of non-payment of GAL fees.

Decisions Across The Nation
Case topics include: Gender stereotypes; Agreement regarding childrens’ religion; Presumption of paternity in same-sex marriages; Hague convention case; Relocation due to job; Student loan; Relocation bonus; Embryo storage agreement and earning capacity.

Legislative Watch
New law regarding email for discovery.

Family Law Online
Divorce dads, apps and taxes.

Family Law Related Articles and Publications
Family Advocate issue on “Faith Issues in Family Law”; JAAML issue on “Complex Families and Evolving Legal Needs.”

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A Word from Gregg Herman …

VIDEO: Introducing Herman Mediation Services!

Loeb & Herman, S.C. has a new part: Herman Mediation Services. Essentially, it’s just me doing mediation.

It is becoming more and more obvious that mediation is the most important part of most divorce actions. Fewer and fewer cases are being litigated (if you don’t believe that, check back issues of FLU for the diminishing number of cases reported).

If mediation is the most important part of a case, then it follows that choice of a mediator is critical. In this month’s video message, I discuss several aspect of how to, as Ben Bradley says in Cash Cab: Choose wisely.

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

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Happy Holidays!

To all of our subscribers and their families, we wish you a joyous holiday season, and a prosperous New Year!

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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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 November 12, 2019, the District I Court of Appeals issued their opinion in Schwefel v. Przytarski, No. 2019AP52, which affirmed the order rendered by the Honorable Carolina Stark (Milwaukee County Cir. Ct.).

This decision is the latest in a series of cases where the mother in a contested custody case and her parents who sought grandparent visitation did not want to pay the GAL, Attorney Schwefel. In this latest case, the appellate court affirmed the trial court order, finding that the court properly approved Schwefel’s hourly rate ($175 per hour) and the amount owed.

The appellate court also found that Schwefel had standing to file contempt actions to collect her fees as she is an aggrieved party.

P.S. Both appellants were pro se on appeal, and when the appellate court uses the phrase in trying to understand their arguments on appeal “…as best as we can tell…” that this appeal was never going very far.

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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.

Azizova v. Suleymanov
No. 2338, Sept. Term, 2018
Maryland Court of Special Appeals
Nov. 21, 2019

Reversing a trial court that relied on gender stereotypes: “There was not one scintilla of evidence, however, that linked the mother’s behavior as a part-time worker and student to an adverse impact on A. or her development, nor, for that matter, with regard to the drinking episode in the past, when the child was not present. The judge’s assumption that a youthful parent, especially a woman, must “sow her wild oats” in derogation of any ability to meaningfully contribute to her child is not supported by any of the evidence in this record. Also lacking an evidentiary foundation is the judge’s determination that it is not appropriate for a mother with a young child to work or attend school, absent a financial necessity. None of the “concerns” of the judge regarding Mother that yielded her decision to award custody of A. to Father has any basis in the record linking Mother’s actions to adverse effect on the child.”

Cohen v. Cohen
2018–08623, 2019 N.Y. Slip Op. 08391
New York Supreme Court, Appellate Division, Second Department
Nov. 20, 2019

The father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. This was not error. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access. New York courts will enforce clauses in custody agreements that provide for a specific religious upbringing for the children where the agreement is in the best interests of the children.

Interest of A.M.
2019 PA Super 344
Pennsylvania Superior Court
Nov. 19, 2019

Our case law plainly states that the policy underlying the presumption of paternity is to preserve marriages. Same-sex marriages are legal in Pennsylvania and must be “afforded the same rights and protections as opposite-sex” marriages. We therefore have no difficulty in holding that the presumption of paternity is equally as applicable to same-sex marriages as it is to opposite-sex marriages.

Tepper v. Teppere
No. 78933-3-I
Washington Court of Appeals, Division 1
Nov. 18, 2019

After husband had filed for divorce before the Rabbinical Court of Israel and wife and children had left Israel and returned to the United States, husband commenced action, seeking return of children to Israel pursuant to the Hague Convention on International Child Abduction. Held: Substantial evidence supported trial court’s habitual residence determination, namely that children’s habitual residence was in the United States, not Israel, for purposes of husband’s action seeking return of children to Israel pursuant to Hague Convention on International Child Abduction. The evidence showed that children were not infants when they relocated to Israel and that children were completely acclimated into their home environment in Washington prior to relocating to Israel. Further, upon their return to Washington, the children demonstrated that Washington was their habitual residence by once again entering and succeeding in school, activities and their social lives, evidence indicated that neither parent consulted with children when deciding to relocate to Israel and that neither parent considered challenges that children would face in relocation to Israel, and evidence showed that, despite being forced to remain in Israel for over two years, children did not acclimatize.

Saltzman v. Saltzman
No. 2018-171-Appeal
Rhode Island Supreme Court
Nov. 15, 2019

The trial court’s denial of wife’s request to be allowed to relocate to Ohio with the children was not an abuse of discretion, in divorce proceeding; while wife testified she was offered a job in Ohio where she would make $90,000 per year, wife presented no evidence that her employment opportunities in Ohio outweighed her employment opportunities in state, the court found the children were “flourishing” in state, father resided in state and had a meaningful relationship with the children, and the children had a sufficient support system in state.

Santamaria v. Santamaria
2016–05426, 2019 N.Y. Slip Op. 08239
New York Supreme Court, Appellate Division, Second Department
Nov. 13, 2019

A spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage”. Here, however, there was evidence that the Wife’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the Wife was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed as a headhunter, earning a salary of $50,000 annually plus commissions. Therefore, it was not unreasonable for the Supreme Court to direct the Husband to pay a portion of the Wife’s student loans, which were incurred during the marriage and were owed since 2005.

Wynnycky v. Kozel
No. 0207-19-4
Virginia Court of Appeals
Nov. 12, 2019

The circuit court’s conclusion that first grade would be more demanding for the child than pre-school or kindergarten is a reasonable inference. Therefore, the court did not abuse its discretion in making this inference when ordering a 50-50 custody arrangement for a two-year period, such arrangement to terminate upon child’s entering first grade, with the wife then becoming primary custodian from that point forward.

Roper v. Roper
No. 2018-CA-000979-ME
Kentucky Court of Appeals
Nov. 8, 2019

The husband contended that his relocation bonus was not marital property, because an event could occur in the future which would force him to pay it back to his employer. The court disagreed, and held that the husband earned the relocation incentive during marriage, he made the decision to relocate and actually relocated during marriage, the benefits were more than a mere expectancy as the husband had received all the funds due under the incentive during marriage, and the possibility of an occurrence of a triggering event requiring the husband to pay back a portion of the funds was slim.

Cook v. City of Dallas, et al.
No. 19-10217
United States Court of Appeals, Fifth Circuit
Nov. 8, 2019

Unfortunately, another reminder that an order of protection means bupkis to police. [See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 125 S.Ct. 2796 (2005) (holding, in the context of a domestic violence situation in which an estranged husband murdered his three children, that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order); DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998 (1989) (state’s failure to protect an individual against private violence does not constitute a violation of the due process clause).] The summary of the case by Volokh Conspiracy: “Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there’s no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.”

Brannock v. Brannock
No. 2018-CA-001202-MR
Kentucky Court of Appeals
Nov. 8, 2019

Don’t forget: Reconciliation of the parties stops/suspends the obligation to pay child support.

Kosciusko v. Parham
No. 2017-000016
South Carolina Court of Appeals
Nov. 6, 2019

The submission of children’s issues to binding arbitration would be an improper delegation of the family court’s authority and violative of South Carolina law because the procedures mandated by the Uniform Arbitration Act would prevent the family court from determining whether an award is in the child’s best interest.

Bilbao v. Goodwin
No. SC 20078
Connecticut Supreme Court
Nov. 5, 2019

The Supreme Court held that the trial court incorrectly determined that the parties had not entered into an enforceable agreement in this case. “The judgment is reversed insofar as the trial court determined that the parties’ storage agreement is not enforceable, the trial court’s order awarding the pre-embryos to the plaintiff is vacated, and the case is remanded with direction to order the disposition of the pre-embryos in accordance with the storage agreement; the judgment is affirmed in all other respects.”

(See also a good discussion of the case at Above the Law)

Crago v. Crago
No. COA18-1304
North Carolina Court of Appeals
Nov. 5, 2019

Dieter Crago and Candice Crago were married in 2007. Candice had been marriage previously to Michael Heintz, with whom she had two children. Prior to the marriage of the Cragos, in 2004, Candice and Michael Heintz took out a $1,000,000.00 life insurance policy on Mr. Heintz’s life and named Candice as the beneficiary. During Candice’s marriage to Dieter Crago, Candice paid the insurance premiums partly with funds she received from Dieter. In October 2015, following Mr. Heintz’s death in September, Candice received the payout from the life insurance policy. On 16 January 2016, the Cragos separated. On 24 June 2016, Dieter filed a “Complaint” for equitable distribution of the parties’ assets. On 20 October 2016, Candice filed a counterclaim for equitable distribution, alimony, and attorney’s fees. Candice complained on appeal that the trial court erred by not applying the analytic approach to the insurance proceeds, and instead applied the mechanistic approach, and thus, by doing so, concluded that the proceeds were marital property. The appellate court held there was no error in applying the mechanistic approach.

Macri v. Macri
No. 18-P-729
Massachusetts Appeals Court
Nov. 1, 2019

The husband challenged the finding that he had an earning capacity of $440,000, and in particular the judge’s reliance on a vocational expert’s analysis, contending that there was no evidence of any available positions listing an annual compensation of over $400,000. “The judge, however, was not required to point to a specific position or job opening when attributing income to the husband.” As the expert explained at the trial, the current job postings he reviewed generally did not disclose compensation, thus he researched wage data for long-range planning executives in the Boston area for 2014 and 2017 when forming his opinion of the husband’s earning capacity. The husband did not present his own expert witness to rebut this testimony. “On this record, we discern no abuse of discretion in the judge’s decision to credit Dr. Cohen’s analysis and ultimate opinion of the husband’s earning capacity.”

Law Review Articles of Interest

Chelsea E. Caldwell, Baby Got Back? Enforcing Guardianship in International Surrogacy Agreements When Tragedy Strikes, 49 U. Mem. L. Rev. 847 (2019).

Other Articles of Interest

The First Amendment and Courts Interpreting Religious Terms

Discussing the Connecticut trial court decision Tilsen v. Benson.

Legislative Watch

A new law adds e-mail to the list of methods attorneys can use to serve discovery and other papers on opposing counsel, if consent is received in writing.

The new law does not change the service of process requirements necessary to commence a civil action, which requires personal or substituted service, or service by publication and mailing. Rather, it would allow service of legal papers by email once the action is underway.

P.S. We are working with the State Bar to develop a consent form which would be included in the next supplement to the Family Law Forms and Procedure Handbook.

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.

3 Reasons Divorced Dads Should Always Take The High Road

The process of negotiating child custody arrangements, child support agreements, property division, and alimony/spousal support often is tense and involves a lot of back and forth at a time when each party is already in a precarious emotional state. Here are three reasons divorced dads should always take the high road. (Dads Divorce)

Divorce: There’s an App for That

Thanks to technology, we can buy groceries online. We can search online for a job, a pet, even a spouse. And if for whatever reason that spouse doesn’t work out, we can go through the divorce process online, too. (MarketWatch)

Getting Divorced? Avoid These 2 Tax Traps

A divorce can be challenging for everyone involved, but there could also be additional tax traps that you’re not aware of. Find out how to avoid these tax traps, and make a taxing divorce tax efficient. (Kiplinger)

Family Law Related Articles and Publications

The Fall, 2019 (Vol. 42, No. 2) issue of the Family Advocate, published By the ABA Family Law Section, is dedicated to Faith Issues in Family Law. (Note: I was co-editor of this issue.)

Articles include:

Religion and Marriage: The Implications for Today’s State Family Codes
By Judge Thomas J. Walsh

Religious Issues in Child Welfare Cases
By Rebecca Stahl

Religion, Child Custody and Visitation
By Margaret F. Brinig

Marital Contracts with Religious Provisions
By Ann Laquer Estin

Religious Arbitration of Family Disputes
By Barbara Atwood

Issues in Jewish Divorce
By Rabbi Yona Reiss

Sharia and Family Law: Public Policy and Recent Cases
By Christine Albano and Laura W. Morgan

Hindu Marriage and Divorce: Issues That Affect Dissolution Matters in the United States
By Molshree A. Molly Sharma

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The latest issue of the Journal of the American Academy of Matrimonial Lawyers (Vol. 32, No. 1, 2019) is dedicated to Complex Families and Evolving Legal Needs.

Articles include:

Advanced Directives and Family Practice: Implication and Ethics for ‘Greying’ Family
systems and Interdisciplinary Collaboration

By Terry Eggenberger et. al.

Under the Microscope: The Admissibility of Parental Alienation Syndrome
By Kimberley J. Joyce

Adversarial Systems and Forensic Experts in Child Custody: How About Adding a Hot Tub?
By Dana E. Prescott and Tim Fadgen

Beyond the Guidelines: The Use of Mental Health Experts in Determining Appropriate Levels of Child Support for Affluent Families
By Jacqueline Singer, et al.

Subscriptions to the JAAML are available for $100 per year or individual issues can be purchased for $30 per copy By writing to: Journal of the American Academy of Matrimonial Lawyers, 150 North Michigan Avenue, Suite 1420, Chicago, IL 60601

 

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.