Family Law Update for July 2018

In this Issue …

A Word from Gregg Herman
Third party decision makers in family court.

Wisconsin Courts Updates
Certification accepted in grandparent visitation case, Unpublished (but citable) case on Parent Coordinator appointment.

Decisions Across The Nation
Life insurance designation, Separating migrant parents from children, Relocation to distant country, High income child support, grandparent visitation cases, student loan debt, dog as gift and more.

Legislative Watch
New Legislation: Changes to Child Support Guidelines.

Family Law Articles & Publications
American Journal of Family Law and Family Advocate.

A Word from Gregg Herman …

This month’s video is based on Pappathopoulos v. Pappathopoulos, an unpublished, but citable case from the Wisconsin Court of Appeals, that deals with third party decision makers in family court.

Wisconsin Courts Update

On June 11, 2108, the Wisconsin Supreme Court accepted certification in Michels v. Lyons, 2017AP1142, a case involving grandparent visitation. The certification by the Court of Appeals can be found here:

Oral arguments will be held next term (probably in the fall) and we will keep our readers advised.

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Editor’s Note: The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 June 21, 2018, the District IV Court of Appeals issued their opinion in Pappathopoulos v. Pappathopoulos, No. 2017AP399, which affirmed in part and reversed in part the orders rendered by the Honorable Ellen K. Berz (Dane County).

Circuit court erred by continuing the appointment of the Parent Coordinator over father’s objections where the stipulation of the parties allowed either one to terminate the appointment after 12 months.

The Parent Coordinator appointment did not comply with requirements of §805.06 and State ex rel Universal Processing Serv. Of Wis. V. Circuit Ct. Of Milwaukee Cty, 2017 WI 26, 374 Wis. 2d 26, 892 N.W. 2d 267.

 

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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.

Sveen v. Melin
No. 16-1432, 138 S. Ct. 1815
United States Supreme Court
June 11, 2018

Insurer filed interpleader action against insured’s ex-wife and children to determine beneficiaries under life insurance policy. Ex-wife and children filed cross-claims for policy proceeds. Holding: The Supreme Court, Justice Kagan, held that Minnesota’s automatic-revocation-on-divorce statute did not substantially impair pre-existing contractual arrangements, and thus, application of the statute to revoke ex-wife’s primary beneficiary designation under life insurance policy that was made before statute’s enactment did not violate the Contracts Clause of the Constitution, abrogating Parsonese v. Midland National Insurance Company, 550 Pa. 423, 706 A.2d 814.

Ms. L. v. U.S Immigration and Customs Enforcement (“ICE”)
No. 18cv0428 DMS (MDD)
United States District Court, Southern District of California
June 26, 2018

Migrant parents brought putative class action against Immigration and Customs Enforcement (ICE), alleging that ICE’s practice of separating migrant parents and children held in immigration detention without a showing that the parent was unfit or presented a danger to the minor child violated their due process rights. After certification of class, parents requested class-wide injunctive relief to prohibit separation of class members from their children in the future, absent a finding the parent is unfit or presents a danger to the child, and to require reunification of families once a parent is returned to immigration custody unless the parent is determined to be unfit or presents a danger to the child. “What Plaintiffs do seek by way of the requested injunction is to uphold their rights to family integrity and association while their immigration proceedings are underway. This right, spec ifically, the relationship between parent and child, is constitutionally protected and well established. The public interest in upholding and protecting that right in the circumstances presented here would be served by issuance of the requested injunction.” (Internal quotations and internal citations omitted.)

Ainsworth v. Ainsworth
2016-9-Appeal (W 11-120)
Rhode Island Supreme Court
June 21, 2018

Hearing judge’s determination that nature of divorced parents’ relationship militated against allowing mother, who had primary physical custody of children, to relocate to distant country with children was not against weight of evidence; judge explicitly addressed father’s former alcohol abuse and acknowledged acrimony between parents, finding that marriage ended due to father’s drinking, while also acknowledging that, at time of hearing, both parents were engaged in meaningful relationships with children and father, who had been sober for some time, was active in addiction recovery group, and judge took into account that mother’s, and therefore children’s, economic standing would improve by relocation, while acknowledging that children were bonded to state where they had always lived.

Hanrahan v. Bakker
No. 19 MAP 2017
Pennsylvania Supreme Court
June 19, 2018

In a high-income child support case, in addition to considering the high-income child support guidelines, a court should engage in additional scrutiny of the reasonable needs of the particular children involved in the high-income case before it. The trier of fact should consider the deviation factors as necessarily implicating the reasonable needs of the children, and a court should use the required expense statements in considering those factors to arrive at a support amount that adequately accounts for the children’s reasonable needs.

Coleman v. Olson
No. M2015-00823-SC-R11-CV
Tennessee Supreme Court
June 15, 2018

Grandmother sued father of child for grandparent visitation. Father counterclaimed to recover life insurance proceeds from mother’s policy paid to grandmother following mother’s death. The trial court granted the insurance benefits to the child, finding that the mother had intended to remove the father and substitute the child as the insurance beneficiary, and further granted the grandmother’s petition for grandparent visitation. The Supreme Court held: (1) the trial court was not permitted to create what amounted to a constructive trust for the child to award the life insurance benefits to the child following mother’s death; neither the father of child, nor the child’s grandmother, who disputed the disbursement of mother’s life insurance proceeds, requested the trial court to award the life insurance proceeds to the child; a remand thus was necessary for the trial court to consider the equities of the parties in determining whether to return the life insurance proceeds from the mother’s life insurance to the father of child, which were given to the grandmother after the mother changed beneficiaries from the father to the grandmother just prior to the mother’s death, in violation of a statutory injunction in divorce action between the mother and the father, which was abated upon the mother’s death; (2) grandmother failed to prove parental opposition to visitation from child’s father, and thus grandmother was not entitled to grandparent visitation, where grandmother admitted that after she filed a juvenile court petition, father agreed that she could have three weeks of visitation, grandmother offered only a single incident of a “complication” that prevented her from visitation, and evidence was offered that, following the death of child’s mother, father sent messages to grandmother that indicated that he wished to cooperate with grandmother to facilitate visitation.

Lamkin v. Lamkin
No. Cum-17-310, 2018 ME 76
Maine Supreme Court
June 12, 2018

Maternal grandmother failed to establish the existence of a substantial existing relationship with grandchild and an urgent reason to justify governmental interference with the rights of parents to the care and control of their child, as required to have standing to pursue a claim for visitation with grandchild under the Grandparents Visitation Act (GVA); after mother and grandchild moved out of grandmother’s residence, when grandchild was two years old, grandmother’s contact with grandchild occurred one day per week after school and during most weekends, grandchild was enrolled in daycare and later in afterschool care, and while grandmother was concerned about grandchild’s contact with mother’s boyfriend, who was a convicted sex offender, mother had interacted with boyfriend’s therapist and probation officer to determine if grandchild was at risk, and probation officer approved of contact between boyfriend and grandchild. Maternal grandmother also failed to establish she engaged in consistent caretaking of grandchild, that mother accepted or acknowledged grandmother as a co-parent of grandchild, or that grandmother accepted full and permanent responsibilities as child’s parent, as required to establish de facto parenthood and have standing to seek visitation with grandchild.

In re Marriage of Friedman and Roels
244 Ariz. 111, 418 P.3d 884
Arizona Supreme Court
June 8, 2018

Paternal grandparents filed petition to obtain court-ordered visitation. Held: (1) As a matter of first impression, a nonparent is not required to show that the parent’s visitation opinion would cause substantial harm to the children’s best interests to rebut “special weight” afforded to parent’s opinion, abrogating Goodman v. Forsen, 239 Ariz. 110, 366 P.3d 587; (2) the special weight afforded to mother’s opinion was cancelled by special weight afforded to father’s contrary opinion such that court was governed by children’s best interest; (3) mother could not rely on parenting plan to refute court’s decision to use best interests of the child standard; and (4) evidence was sufficient to support finding that third-party visitation with paternal grandparents was in children’s best interests.

Heiden v. Norris
No. S-17-689
Nebraska Supreme Court
June 8, 2018

After mother and father of minor children were divorced, and mother subsequently died, purported grandparents, who had raised mother, brought action for grandparent visitation with children. After father failed to appear, the trial court entered order granting default judgment and visitation to purported grandparents. Father subsequently filed motion to vacate, which was denied. Father appealed. Held: Purported grandparents were not “grandparents” under statute defining term for purposes of grandparent visitation, and thus were not entitled to grandparent visitation.

Osdoba v. Kelley-Osdoba
No. 28103
South Dakota Supreme Court
June 6, 2018

Trial court did not abuse its discretion in including wife’s student-loan debt in marital estate in divorce case, even though such debt was incurred prior to parties’ marriage; parties were living together before marriage, parties had made conscious decision to forego paying on the student loans during marriage to devote wife’s income to other endeavors, which indirectly benefited husband in property division as more income was pledged to savings, investments, and other accounts, and wife was still apportioned the student-loan debt in the property division.

And finally, another puppy custody case:

Zelenka v. Pratte
300 Neb. 100
Nebraska Supreme Court
June 1, 2018

Evidence supported finding that bulldog was a gift from petitioner’s same-sex former partner, in action for replevin, and petitioner was entitled to return of the bulldog; breeder testified that former partner contacted her about purchasing a puppy as a gift for his boyfriend, petitioner and his mother both testified that bulldog was given to petitioner as a birthday gift from former partner, and petitioner went to breeder and picked up the bulldog and his paperwork.

Legislative Watch

Starting July 1, new rules created by the Department of Children and Families to into effect which will make numerous changes to DCF 150 including the requirements for determining variable costs.

For more information, please see the following article in the State Bar of Wisconsin’s InsideTrack by Connie Chesnik, an attorney with the state agency.

Family Law Articles & Publications

The most recent edition of the Family Advocate, published by the ABA Family Law Section, is a client manual entitled Hot Tips for Clients”. It is designed for lawyer to buy in bulk and use as handouts to prospective and existing clients. Articles include:

How Do You Know You Are Ready for Divorce?
By Karen Platt

Protecting Your Children Before, During, and After Your Divorce
By Joan McWilliams

Communicating with Your Lawyer: What to Expect and How to Avoid the Pitfalls
By Kristina Hohne

On Being an Active Participant in Your Divorce: Tips from Thirty Years’ Experience as a Divorce Attorney
By Stacy Phllips

How Not to Sabotage Your Case
By Brian Karpf and Maxwell Dauerman

A Client’s Guide to Courtroom Behavior
By Thad Woody

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

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The Summer, 2018 edition (Vol. 32, No. 2) of the American Journal of Family Law includes the following articles. For subscription information, call 1-888-859-8081.

Lifestyle Analysis in Family Law Cases
By Tracy Coenen

Woozles: Their Impact on Child Custody Decisions
By Dr. Linda Nielsen

Valuation of Intangible Assets in Family Law Cases: Part I of III
By Robert F. Reilly, CPA

Courts Hammer Out Case-by-Case Solutions to Dilemma of Unused Embryos
By Richard B. Vaughn

How Obergefell Impacted the Martial Communications Privilege for Same-Sex Spouses
By Nancy Golden and Margaret Price

Taxation: The Effect of the New Tax Bill
By Gregg Herman

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.