Family Law Update for April 2018

In this Issue …

A Word from Gregg Herman
New Child Removal Law Awaits Walker’s Signature.

Thoughts On Family Law Video
Removal Law and 10% Discount for FLU Subcribers to Wisconsin Family Law Case Finder!

Wisconsin Courts Updates
No New Cases.

Decisions Across The Nation
Relocation, Consent for adoption, Contempt action, Reopening judgement of divorce, Increase in value of stock portfolio as income for child support, Standing for custody in same-sex marriage case, Validity of divorce in foreign country, Premarital agreement waiver of attorney fees and more.

Legislative Watch
Full text of New Removal Law.

Family Law Online
“Making Stepfamilies Work.”

Family Law Articles & Publications
American Journal of Family Law.

A Word from Gregg Herman …


My video commentary posted below addresses the revisions to Wisconsin removal law which is awaiting Governor Walker’s signature.

This bill improves a difficult area of family law — difficult, because unlike other custody/placement disputes, it is usually not easy to find comprises when one parent wants to move far away from the other parent.

Congratulations to those in the State Bar of Wisconsin’s Family Law Section and the Bar’s lobbyists who accomplished getting this legislation enacted.

Thoughts on Family Law Video

This month I discuss 2017 AB 551, as well as the launch of Wisconsin Family Law Case Finder, a new legal research service from Loeb & Herman specifically designed for family law attorneys. See ad below for a 10% discount off your monthly, annual or firm subscription!

Wisconsin Courts Update

— Nada. Again. Sigh. —

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.

In re Marriage of Schilling
No. DA 17-0505, 2018 MT 59
Montana Supreme Court
March 27, 2018

Custodial father’s relocation with child to different city that was an additional nearly 300 miles away from mother’s place of residence was a substantial change in circumstances requiring a hearing to determine if amendment of parties’ parenting plan was necessary to serve child’s best interests; while parties’ stipulated parenting plan provided that mother would enjoy parenting on particular holidays, summer time, and additional time by agreement of parties, parties had historically agreed upon mother having significant additional time with child, and father’s relocation had reduced amount of time mother spent with child. With approval of move, custodial father’s loss of employment in one city, obtaining of new employment in city to which he relocated, attendant changes in health insurance, and long-distance travel costs incurred by both parents resulting from father’s move provided basis for reviewing non-custodial mother’s child support obligations.

Ex Parte Carter
Case No. 2017-000806, Opinion No. 27786
South Carolina Supreme Court
March 21, 2018

Biological mother’s allegations in her motion to set aside final adoption decree stated claim for extrinsic fraud, where mother alleged that she was not allowed to be heard on multiple motions of intent to contest her consent to adoption, that she was misguided and misled into signing consent and waiving the right to notice of the adoption proceedings, and that her attempts to be heard as to validity of consent were repeatedly thwarted by opposing counsel who pushed through final adoption hearing and failed to be candid with Family Court.

Friedman v. Smith
No. 1225-17-1
Virginia Court of Appeals
March 20, 2018

Divorce decree that bifurcated issues of spousal support, equitable distribution, and attorney’s fees and costs and reserved those matters for future adjudication was a “final, appealable order”; applicable statute provided trial court with the discretion to effectively finalize the issue of divorce from the bond of matrimony independent of other ancillary issues, such as equitable distribution and support, and adjudicate them separately.

Cunningham v. Cunningham
No. 604 WDA 2017, 2018 PA Super 64
Pennsylvania Superior Court
March 20, 2018

Sufficient evidence supported trial court’s determination that contemnor, an ex-husband, had a present ability to pay $111,666.66 owed to ex-wife pursuant to a family trust agreement as incorporated into the parties’ post-nuptial agreement, as required for trial court to hold ex-husband in civil contempt for failure to pay, where ex-husband admitted that he owned unencumbered real estate with a present-day value of approximately $400,000 at the time that the trust in question was depleted and he ceased making payments to ex-wife, and where ex-husband transferred his ownership rights to the real estate to a tenancy by the entireties when he married his current wife rather than fulfill his obligations to support ex-wife by resorting to the assets.

Miller v. Miller
412 P.3d 1081
Nevada Supreme Court
March 15, 2018

The proper calculation for determining child support obligations when both parents share joint physical custody of one child, but one parent has primary physical custody of the other child, is to determine each parent’s support obligations based on the flat rate percentage correlated with the number of children the parents have, divide the support obligation based on the number of children the parents have, offset obligations for any children they share jointly, which is to be added to the full amount of the child support obligation for the noncustodial parent, ensure that the amount does not exceed the statutory presumptive maximum support, and, if the district court finds it appropriate, apply the statutory deviation factors make sufficient factual findings to explain the deviation.

Reinke v. Sing
328 Conn. 376
Connecticut Supreme Court
March 13, 2018

Trial court had authority to reopen judgment dissolving a marriage several years after the judgment was entered, even in the absence of fraud; trial court was vested with plenary and general subject matter jurisdiction over legal disputes in family relations matters, trial court had authority to assign all or part of the marital estate under statute governing assignments of property in dissolution proceedings, and it was undisputed that former husband and wife submitted to the jurisdiction of the court by agreement, as ground permitting a court to open a judgment more than four months after it was rendered; abrogating Sousa v. Sousa, 157 Conn. App. 587, 116 A.3d 865; Forgione v. Forgione, 162 Conn. App. 1, 129 A.3d 766.

Dare v. Frost
No. 2018 Ark. 83
Arkansas Supreme Court
March 8, 2018

Increase in value of father’s stock portfolio was not “income” required to be included in calculation of father’s child support obligation, at child support modification proceeding, where such growth in value was not realized.

A.J.B. v. A.G.B.
2018 PA Super 50
Pennsylvania Superior Court
March 7, 2018

A child was born to two women in a same-sex marriage. When the biological mother filed for divorce, she and the biological father filed a motion in the mother’s divorce action to vacate a consent order for custody, pursuant to which the mother and her ex-wife shared custody of child born during same-sex marriage. The father then brought a separate action against the mother and the ex-wife seeking custody of the child, and the mother filed a motion to strike the ex-wife for lack of standing. Following consolidation of the cases, the trial court granted the motion to vacate the consent order and granted the motion to strike the ex-wife for lack of standing. The ex-wife appealed. Held: (1) failure by biological mother and ex-wife to file complaint for custody or count for custody in complaint for divorce required that consent order be vacated, and (2) ex-wife stood in loco parentis to child, and thus had standing to pursue continued custody of the child.

Albassam v. Klob
No. 4D17–1403
Florida Fourth District Court of Appeal
March 7, 2018

Relief from judgment based on lack of subject matter jurisdiction, to ex-husband claiming that ex-wife’s first divorce in a foreign country was invalid, would be inequitable, where ex-wife had already sold properties and paid off marital debt pursuant to divorce decree, ex-husband did not raise bigamy as a defense or seek to annul the marriage but rather moved for dissolution of the marriage knowing of ex-wife’s first foreign divorce decree, and ex-husband did not provide an excuse for his delay of more than a decade in raising the invalidity of the foreign divorce.

In re Marriage of Erpelding
No. 16-1419
Iowa Supreme Court
March 2, 2018

Premarital-agreement waiver of attorney fees pertaining to child support or spousal support was unenforceable because it adversely affected spouse’s or child’s right to support.

In re Marriage of Cassinelli
229 Cal. Rptr.3d 801
California Court of Appeal, Fourth District, Division 2
March 2, 2018

Following dissolution of marriage judgment in which ex-wife was awarded her community property interest in ex-husband’s military retired pay, ex-wife filed motion to modify judgment, stemming from ex-husband’s decision to waive his retired pay in order to receive veteran’s disability benefits and combat-related special compensation (CRSC), from which ex-wife received nothing. After trial, the court ordered ex-husband to pay ex-wife same amount she had received from retired pay in permanent and nonmodifiable spousal support, and awarded wife attorney fees. On appeal, the appellate court held: (1) spousal support order amounted to impermissible reimbursement or indemnification for loss caused by ex-husband’s waiver of retired pay [see Howell v. Howell (2017) ––– U.S. ––––, 137 S.Ct. 1400, 197 L.Ed.2d 781]; but (2) ex-husband’s waiver of retired pay triggered recalculation of ex-wife’s spousal support award; (3) spousal support order did not amount to impermissible award of interest in CRSC; and (4) spousal support order would be enforceable against ex-husband’s disability benefits, CRSC, and other sources of income.

Legislative Watch

Wisconsin’s New Child Removal Law

Wisconsin’s new child removal law, 2017 AB 551, which has amends the existing law, has now been approved by both the State Assembly and Senate and awaits Governor Walker’s signature. He is expected to sign the bill.

Family Law Online

Making Stepfamilies Work

A marriage that brings with it children from a previous marriage presents many challenges. Such families should consider three key issues as they plan for remarriage: (American Psychological Association)

Family Law Articles & Publications

The Spring, 2018 (Vol 32, No. 1) edition of the American Journal of Family Law, includes the following articles:

Psychologist Recommendations in Custody Disputes Can Be Harmful, Even Fatal
By Ira Daniel Turkat, Ph.D.

The Changing Landscape of the Parental Rights of Sperm Donors
By Nancy Golden and Margaret Peg price

Common Types of Trusts and Tax Issues Around Divorce
By Mitchell Benson, CPA and Adam Poutasse, CPA

Grandparent Visitation Rights
By Damon E. Martin

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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.