Family Law Update for June 2018

In this Issue …

A Word from Gregg Herman
Grandparent visitation video.

Wisconsin Courts Updates
Certification of grandparent’s case.

Decisions Across The Nation
Imputing income after retirement, Uniformed Services Former Spouses’ Protection Act, Stalking, Shared custody, Valuation methods and more.

Family Law Articles & Publications
Family Law Quarterly double issue on “Readying for the Future of Family Law” and “Becoming Adults: How Law and Policy Treat Coming of Age”

A Word from Gregg Herman …

My video this month is on the grandparent visitation case referred to below.

It’s been a long time since there has been a family law case on the SC docket, so let’s hope they accept certification!

Wisconsin Courts Update

On May 8, 2018, the court appeals certified Michels v. Lyons, 2017AP1142 to the Supreme Court.

The issue as stated in the certification is “… to clarify the standard of proof required
for a grandparent to overcome the presumption that parents’ decisions regarding the scope and extent of their child’s visitation with the grandparent is in the child’s best interest.”

This may be one of the most significant family law cases to come before our Supreme Court (OK, in recent years, it is the only case) is quite some time.

 

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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.

Collins v. Leeds
No. 1770-17-4
Virginia Court of Appeals
May 29, 2018

Trial court was not required to impute income to ex-husband when deciding ex-wife’s petition for additional spousal support, despite argument that ex-husband was engaging in volunteer activities after retiring, where the evidence that ex-wife offered of ex-husband’s potential income was based on employment positions that he had held approximately four or more years prior to the date of the hearing, ex-husband’s security clearances had expired, and ex-wife presented no evidence of employment positions currently available to ex-husband or the income that he could have made in those positions based on his circumstances.

Wiedel v. Wiedel
No. S-17-349
Nebraska Supreme Court
May 18, 2018

Evidence was sufficient to support finding that husband had financial ability to pay monthly award of $2,500 in alimony; amount was the same amount husband paid in temporary alimony throughout pendency of dissolution action, there was no evidence presented at dissolution trial suggesting any sort of financial strain on husband’s budget as result of temporary support payments, and under parties’ settlement agreement, husband received marital home and income-producing farmland valued at approximately $2.5 million.

Matter of Marriage of Williams
No. 113,103
Kansas Supreme Court
May 18, 2018

Ex-wife sought to enforce provision of divorce decree awarding her portion of non-resident ex-husband’s military retirement benefits. Ex-husband objected, claiming divorce court lacked jurisdiction to divide military retirement benefits. The trial court determined that divorce court had jurisdiction to divide benefits and awarded ex-wife attorney fees. Ex-husband appealed. The Court of Appeals affirmed, and the ex-husband petitioned for review. The Kansas Supreme Court held: (1) Uniformed Services Former Spouses’ Protection Act (USFSPA) provision, which prohibited courts from entering order about disposable retired pay of service member unless court had jurisdiction over the member, limited state courts’ personal, not subject-matter, jurisdiction; (2) ex-husband impliedly consented to divorce court’s personal jurisdiction over him, and thus, divorce court had jurisdiction to divide ex-husband’s military retirement benefits; and (3) trial court had statutory authority under family law code to award attorney fees to ex-wife.

E.D.B. v. D.S.
No. A-4058-16T4
New Jersey Superior Court, Appellate Division
May 15, 2018

Editor’s Note: Thanks to Charles Abut of Hackensack, New Jersey for the heads up.

The parties filed for divorce, but still shared the marital home during the divorce proceedings. The wife filed a complaint against the husband for stalking. “The evidence adduced by Ellen demonstrated that Daniel surreptitiously placed – as Daniel conceded during his testimony – an iPad in a shared home office and an iPhone under his bed to monitor or record Ellen’s activities in the home while he was away on a trip to Kansas City. The judge found a lack of credibility in Daniel’s testimony that the devices were placed to ensure Daniel’s “privacy and protect his stuff” because there were numerous other ways in which his papers or files could have been protected from prying eyes. Indeed, the devices were not pointed in a direction that would have captured any meddling among his papers or things; instead, the lens pointed outward, toward the doorway and into a hallway. Consequently, the judge concluded that Daniel’s true intent was to record Ellen’s conversations and movements “to get the upper hand or to gain evidence against” her for use in the matrimonial action. There was ample credible evidence from which the judge could draw such a conclusion. … [W]e agree that Daniel’s conduct violated the stalking statute Daniel’s actions constituted a course of conduct within the meaning of N.J.S.A. 2C:12-10(a)(1); were directed at Ellen; and would “cause a reasonable person to fear for [her] safety… or suffer other emotional distress,” N.J.S.A. 2C:12-10(b).”

Bruegman v. Bruegman
No. S-17-0213, 2018 WY 49
Wyoming Supreme Court
May 14, 2018

After a bench trial, the court granted the parties shared legal and physical custody of the minor child until the child entered kindergarten, with the husband having primary physical custody and the wife having visitation after that time. The wife appealed. The Supreme Court held: (1) there is no presumption that shared child custody is contrary to the best interests of children, overruling Buttle v. Buttle, 196 P.3d 174, Pace v. Pace, 22 P.3d 861, Reavis v. Reavis, 955 P.2d 428, Testerman v. Testerman, 193 P.3d 1141, Eickbush v. Eickbush, 171 P.3d 509; (2) the evidence supported the finding that awarding the parties shared custody of the child until the child began kindergarten was in the child’s best interests; and (3) the evidence supported the finding that anticipatory modification of the shared child custody arrangement to award the husband primary physical custody of the child upon the child’s kindergarten entry was in child’s best interests.

Wiegers v. Richards-Wiegers
No. S-16406
Alaska Supreme Court
May 11, 2018

The trial court’s valuation of husband’s stock at $217 per share, rather than using the company’s valuation of $179 per share, was not clearly erroneous, in divorce case; wife’s business valuation expert opined that the valuation methodology used by company to value its stock was not an accepted valuation methodology, and expert employed the asset approach to value stock.

Dunmore v. Dunmore
Nos. S-16433/16523 (Consolidated)
Alaska Supreme Court
May 11, 201
8

Trial court could consider both the husband’s current and the wife’s reasonably anticipated future Social Security benefits as evidence of their financial condition when equitably dividing marital property in divorce action; size of each spouse’s nonmarital estate was relevant to division of property, few couples were likely to plan for retirement without taking Social Security into account, and although Social Security benefits could not be divided, they were one factor to be considered in determining the parties’ financial condition.

Matter of Adoption of T.M.M.H.
No. 115,309, 416 P.3d 999
Kansas Supreme Court
May 11, 2018

In order to establish that she was an interested party who had right to contest child’s adoption by stepparent, the paternal grandmother, who had visitation rights, was required to establish both statutory and common law standing and could not rely solely on common law standing. The paternal grandmother, who had visitation rights with respect to child, was neither petitioner in stepparent adoption proceeding nor was she designated as an interested party in such proceeding and, thus, she could not establish on those bases that she was an interested party who had statutory standing to appeal in the proceeding.

Ferguson v. Wallace-Ferguson
No. 20170213, 2018 ND 122
North Dakota Supreme Court
May 10, 201
8

Notwithstanding personal jurisdiction limitations under the Uniform Interstate Family Support Act, North Dakota court retained jurisdiction to modify its previous child support order, when mother and child were residing in another state, and father, who was in the military, was stationed outside of the United States; father’s residence was either outside of the United States, or as a military person, in North Dakota, either of which would have allowed the North Dakota court to modify its previously entered child support order. In a military context, a servicemember does not necessarily leave his or her state of residency, for purposes of enforcing or modifying a child support order, by being assigned duty elsewhere.

In re Libra
No. 16-54467-mlo, Adv. Pro. No. 17-04289-mlo
United States Bankruptcy Court, E.D. Michigan, Southern Division
May 9, 2018

Under Michigan law, Chapter 7 debtor-husband received no value in exchange for $21,900 transfer to wife prior to divorce filing, and thus transfer was subject to avoidance under fraudulent conveyance statute; prior to the commencement of the divorce proceedings, wife did not have a statutory right to spousal support, and wife did not waive her right to spousal support in exchange for the transfer.

In re Adoption of M.G.B.-E.
No. 2017-0039
Ohio Supreme Court
May 9, 2018

Probate court was required to consider biological father’s pending motion to reestablish parenting time in the domestic-relations court in determining whether father’s consent to adoption was required in light of his purported failure, without justifiable cause, to have more than de minimis contact with his children, in proceeding on stepfather’s adoption petition; biological father’s efforts to enforce his parental rights prior to the filing of the adoption petition were relevant, and record demonstrated biological mother’s history and ongoing pattern of impeding father’s opportunities to develop and maintain a relationship with the children reaching back to the time of the parents’ divorce.

Wyman v. Whitson
No. S-16082
Alaska Supreme Court
May 4, 2018

Amortization of father’s perpetual assets in the form of fishing permits and quota shares was non-deductible from his income for child support purposes, even though the deductions might have been permissible for income tax purposes; father conceded that a claimed expense being listed on his tax return was not dispositive of an accurate account of his income, State law recognized depreciation as an ordinary and necessary expense because it reflects a “real” cost, which father’s amortization deductions did not, and because the perpetual assets would not expire or wear out, they required no capital outlay to preserve, as with a tangible depreciable asset.

Cutcliff v. Reuter
889 F.3d 491
United States 8th Cir. Ct. of Appeals
May 4, 2018

Investors in Ponzi scheme allegedly perpetrated by husband using limited liability company (LLC), after obtaining judgment against husband and LLC, sought to reach assets currently owned by wife on veil-piercing or fraudulent transfer theory. Held: Even assuming that there was basis for piercing veil of limited liability company (LLC) used by member to perpetrate Ponzi scheme, defrauded investors could not thereby reach assets that had previously been owned by misbehaving member and his wife as tenants by the entirety, before being transferred to wife as her sole property, on theory that member and his wife had established partnership by implication to hold membership interest, as demonstrated by fact that entireties funds were used to acquire that interest; weak presumption applicable under Missouri law that property purchased with entireties funds takes on character of entireties property was insufficient to satisfy higher evidentiary threshold necessary to establish existence of partnership by implication.

Morris v. Morris
No. 1D16-4695
Florida First District Court of Appeal
April 30, 2018

Editor’s Note: Thanks for Mark Sullivan of North Carolina for the heads up.

“The biological father appeals an order granting temporary custody of the minor child to the step-father and denying his Emergency Verified Motion for Pick-Up Order. He argues the trial court applied the incorrect legal standard for the determination of a contested petition for temporary custody by an extended family member under to section 751.03, Florida Statutes (2016). Because we agree, the order on appeal is reversed and the matter is remanded to the trial court for further action consistent with this opinion…. The father has served in the military, mostly abroad, since the minor child was four years of age. There were periods of years where the father and the minor child had no in-person contact. Visitation between the father and the minor child over the last fourteen years has been sporadic, at best….Here, the trial court found the minor child’s relocation to Germany to live with her biological father would be detrimental. However, we are unable on the record before us to determine if the trial court properly analyzed detriment in the context of relocation of a child. Because the trial court applied an erroneous legal standard in granting the step-father’s petition for temporary custody and its findings are incomplete with regard to detriment, we remand.”

New Law Review Articles of Interest

It Takes a Village: Empowering the Dead Broke Parent, 17 Whittier J. Child & Fam. Advoc. 42 (Spring 2018) By Wendy Tolson Ross

Summary: How society can help non-custodial parents become empowered and thus meet their child support obligations.

Family Law Articles & Publications

The Family Law Quarterly combined their Summer and Fall, 2017 issues. The Summer issue (Vol. 51, No. 2) is on Readying for the Future of Family Law.

Articles include:

Withstanding Disruptive Innovation: How Attorney will Adapt and Survive Impending Challenges from Automation and Nontraditional Legal Services Providers

By
Samuel V. Schoonmaker IV

Child Custody Innovations for Family Lawyers: The Future Is Now

By Linda S. Smith and Eric Frazer

The Sky is Not Falling: Lessons and Recommends from Ten Years of Reinstating Parental Rights

By Meredith L. Schalick

Structuring Tax Dependency Post-Divorce for Noncustodial Parents

By Thomas M. Spade and Linda J. Bradly-McKee

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

• • •

The Fall, 2017 issue (Vol. 51, No. 3) of Family Law Quarterly is on Becoming Adults: How Law and Policy Treat Coming of Age.

Articles include:

Health Care at a Price: The Impact on Young Adults’ Medical Privacy and Autonomy of Being Covered on Their Parents’ Health Insurance Until Age Twenty-Six

By Valarie K. Blake and Jessica A. Haught

Objectively Offensive: The Problem of Applying Title IX to Very Young Students

By Amy B. Cyphert

The Trajectory of Childhood – Bridging Adolescence to Adulthood

By Benita Miller

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