Family Law Update for July 2020

In this Issue …

A Word from Gregg Herman
New Cases

Wisconsin Courts Updates
Judge on Facebook case, prenup case, change in placement case

Adoption
Delays

Mediation News
“5 Signs Mediation Won’t Work for Your Divorce”, Family Violence and Family Mediation – Can the Two Go Together?” and “Divorce During Coronavirus: Will Splits Soar After Pandemic Quarantines End?”

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A Word from Gregg Herman …

After complaining about no family law cases from either the Wisconsin Supreme Court or the Wisconsin Court of Appeals, when it rains it pours. Three cases to report this month alone!

Typically, along with Judge Tom Walsh and Attorney Dennis Milbrath, I would be preparing case law updates for the AAML, State Bar Door County workshop and the family law judges conference. But, due to the virus (how often are we saying that!), we are the equivalent of all dressed up and no where to go.

So, I’ll be doing the next best thing: Between my blog and my column in the Wisconsin Law Journal, I’ll be analyzing these cases and will provide links in this and future issues.

Meanwhile, to the judges and justices: Keep them coming!

Wisconsin Courts Update

On June 16, 2020, the Supreme Court of Wisconsin issued their opinion in Miller v. Carroll, 2020 WI 56, which affirmed the published decision of the Court of Appeals.

Four justices joined the majority opinion, authored by Justice Dallett, except for one footnote. Three of the justices in majority filed concurring decisions, including Justice Dallett who concurred with her own opinion (huh?). Justice Hagedorn filed a dissenting opinion, most of which was joined by two other justices.

The facts, as summarized by the Supreme Court, involved a circuit court judge accepting a Facebook “friend request” from the mother in a custody/placement dispute involving a domestic violence issue after a contested hearing, but before rendering a decision. In the course of their 25-day Facebook “friendship” prior to the court’s ruling, the mother “liked”, “loved” or commented on a number of the judge’s Facebook posts as well as sharing some third-party posts related to domestic violence. The judge never disclosed the Facebook friendship or the communications, and he ultimately ruled entirely in the mother’s favor.

After the father learned of the Facebook relationship, he moved for reconsideration of the court’s decision. The trial court denied the motion, stating that he was not biased and had decided prior to the relationship how he was going to rule, although he had not put his ruling into writing yet. He further stated that “no reasonable person in the circumstances of [the father] or others … would seriously call into question the Court’s objectivity of impartiality.”

The court of appeals reversed and the Supreme Court affirmed.

The Supreme Court held that there was a due process violation since “[T]he totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality … Accordingly, this matter must be reversed to proceed before a different circuit court judge.”

Editor’s Note: Please see my accompanying analysis on our firm web site.

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In the May 2020 Family Law Update, we reported on the Wisconsin Supreme Court’s decision in Pulkkila v. Pulkkila, 2020 WI 34 (2018AP712).

Please see my accompanying analysis on our firm web site.

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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 16, 2020, the District III Court of Appeals issued their opinion in Junion v. Junion, No. 2019AP844, which affirmed the order rendered by the Honorable Michael K. Moran (Marathon County).

Several weeks before their marriage, the parties (Don and Tera) entered into an MPA (Marital Property Agreement). The circuit court concluded the MPA was unenforceable under Button v. Button, 131 Wis.2d 84, 99, 388 N.W.2d 546 (1986).

First the circuit found that the “fair and reasonable disclosure” provision of Button was not met since because Don did not disclose to Tera upcoming changes in his business which would substantially effect his income. The appellate court found that the Button court did not limit the disclosure requirement to only a party’s assets, liabilities and debts. Instead, the court ultimately adopted the broad term “financial status” which means parties should consider the circumstances existing at the execution of the agreement and those “reasonably foreseeable.”

The circuit court was also affirmed for finding that Tera did not enter into the MPA freely and voluntarily because she did not have a “complete understanding”of the MPA’s terms, despite being represented by an attorney.

Finally, the appellate court upheld the trial court’s finding that changes in circumstances were not anticipated given Don’s early retirement, the birth of their son and the “resources and sacrifices made during the marriage by each of the parties.” The court found it significant that at the time of divorce, Tera had approximately $22,000 in assets while Don had accumulated over $2,000,000 in assets.

Editor’s Note: Look for my column analyzing this case in a future edition of Wisconsin Law Journal.

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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 23, 2029, the District III Court of Appeals issued their opinion in Franks v. Smiley, No. 2018AP2278, which affirmed the order rendered by the Honorable George L. Glonek (Douglas County).

Amber appealed a post judgment order modifying the divorce agreement providing Charles with shared legal custody and increased physical placement of their children. Amber contended that Charles failed to demonstrate a “substantial change of circumstances” justifying the modifications, and that the ordered modifications were not in the children’s best interests.

The appellate court affirmed, holding that among other things, Charles’ previous inability to provide a suitable environment for the children had been remedied; he had obtained new employment that provided regular work hours and a flexible schedule; one of the children had developed a very close relationship with his stepdaughter and the children are now of an age (nine and six) where they are capable of expressing a desire to spend more time with their father.

The circuit court concluded that the “accumulation of all these significant changes certainly constitutes a substantial change in circumstances.” and the appellate court agreed.

The provisions of WIS.STAT.§767.451(1)(b)3.’s that changes in economic circumstances and marital status do constitute a substantial change of circumstances does not mean that the court cannot consider same.

Adoption

The following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Adoption Delays

The coronavirus pandemic has caused delays in completing adoption related court cases. In Wisconsin several courts have now begun using zoom as a means to complete uncontested, short duration termination of parental rights court hearings and adoptions. We have had several zoom hearings to complete adoption matters which take 10 to 15 minutes.

Some courts are permitting termination of parental rights cases in which there are no issues and all parties are in agreement to go forward using zoom and in some instances telephone testimony. However, scheduling these hearings has not always been easy.

As a consequence, for Interstate placements there have been some delays in completing the cases. The Interstate compact office in Madison has done a very good job of reviewing ICPC packets remotely and having approvals granted rapidly.

It will be helpful when courthouses are open for personal appearances, so all types of termination of parental rights and adoption hearings maybe heard more timely.

Mediation News

5 Signs Mediation Won’t Work for Your Divorce

“Divorce is a not-so-fun choose-your-own-adventure—hire a mediator? Go straight to a divorce lawyer? The circumstances of your split matter a lot, says Dr. Jann Blackstone, co-author of Co-Parenting Through Separation and Divorce: Putting Your Children First and a former child custody mediator for the California Superior Court. And while mediation helps in almost all circumstances, she says, there are a handful of red flags that may lead you to skip the mediation sessions and head straight for divorce court.” (YahooLife)

Family Violence and Family Mediation – Can the Two Go Together?

“While Violent Resistance and Situational Couple Violence are responsible for many of the reported family violence cases, Coercive Controlling Violence and Separation Instigated Violence are the types that pose most risks and the ones we should be most worried about in mediation.” (Mediate.com)

Divorce During Coronavirus: Will Splits Soar After Pandemic Quarantines End?

“Count this as another in a long list of negative impacts of the coronavirus pandemic: It has the potential to send America’s divorce rate – already embarrassing at nearly 50% – even higher once divorce courts are fully open again.” (USATODAY)

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.