Family Law Update for August 2018

In this Issue …

A Word from Gregg Herman
Why we settle cases…and I need a new associate.

Thoughts on Family Law Video
Discussion of the Wisconsin Court of Appeals decision in Krause v. Krause.

Wisconsin Courts Updates
Two contempt cases: Krause v. Krause and Tauber v. Tauber.

Decisions Across The Nation
International Child Abduction Remedies Act (ICARA), Social Security Disability Insurance benefits and child support, Tribal court jurisdiction over child support, UCCJEA and Hague convention and more.

A Word from Gregg Herman …

This month’s Wisconsin Courts Update includes (sob!) a case which I lost at trial and now on appeal. Listen to my monthly video message for my “take home” lessons on this case – done with a minimum (please note that I did not say “none”) of whining.

You may note that there isn’t a Family Law Online section this month. That is due to the fact that my associate, Kelley Shock, who did that part of FLU, has not only left my office, but left the practice of law (double sob!).

So, I am looking for a new associate. If you know someone with 3 to 7 years of experience who may be interested, please have them contact me at (414) 272-5632 or via e-mail.

Thoughts on Family Law

Apparently the contempt was not continuing, according to the Wisconsin Court of Appeals decision in Krause v. Krause. Who knew?


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Editor’s Note:The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 July 17, 2018, the court of appeals issued its decision in Krause v. Krause (Appeal No. 2017AP1434).

The appellate court affirmed the trial court for not finding the ex-husband in contempt for not providing tax returns contrary to court order. The trial court found that the ex-husband’s failure was not intentional and this finding was affirmed by the court of appeals as a reasonable exercise of its discretion.


Editor’s Note:

I represented the ex-wife. This is one of the most absurd decisions in my 30+ years of practicing law. Not intentional? What? He forgot?

• • •


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The following case is not recommended for publication, but may be cited for its persuasive value under Wis.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 July 31, 2018, the court of appeals issued its decision in Tauber v. Tauber (Appeal No. 2017AP1731).

Wayne Tauber was held in contempt for violating the court’s order regarding his role in the funeral for the parties’ son who committed suicide. Despite the express order of the court that the mother, Shelly, was responsible for all necessary funeral arrangements, Wayne set up a table in the viewing area of the casket with suicide prevention information and cards which included text telling “Parents listen to your child”, which seemed to be a criticism of Shelly. Wayne also attempt to hold Hmong services, again in direct violation of the court’s order. He was found in contempt with purge conditions which included a six-month jail sentence which was stayed.

The appellate court affirmed the contempt finding, but vacated the jail sentence as not being a proper remedial sanction. By the time of the court proceeding, his contempt was no longer continuing, but had already been remedied. Therefore the jail sanction was punitive and not remedial.

 

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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.

Moreno v. Zank
No. 17-2397
United States Court of Appeals, Sixth Circuit
July 19, 2018

The Mother, a citizen of Ecuador, filed a petition against the Father, a citizen of the United States, seeking the return of their minor child to Ecuador under the Hague Convention on the Civil Aspects of International Child Abduction, and its implementing statute, the International Child Abduction Remedies Act (ICARA). Held: “The district court found that, by 2016, Ecuador met all requirements to have become [the minor child’s] habitual residence, given that she had lived there continuously since the age of three, and maintained an active social, familial, and academic life in that nation. Zank does not challenge the facts underlying this conclusion, and the assessment is clearly correct. From [the minor child’s] perspective, at the time of Zank’s retention of her in the United States, Ecuador was the place in which she possessed all degrees of settled purpose. The only basis for deciding that [the minor child] was not habitually resident in Ecuador in 2016 is the purported illegality of [the Mother’s] actions in 2009 in taking [the minor child] to Ecuador in the first place. But that is not enough to trump the acclimatization standard, at least where Zank failed to pursue all treaty-based remedies in Ecuador to secure BLZ’s return to the United States.”

Y.H. v. M.H.
No. D071859
California Court of Appeal, Fourth District, Division 1
July 17, 2018

After approval of the father’s Social Security Disability Insurance benefits and accompanying lump-sum payment to the non-custodial child for past-due derivative benefits, the father filed motion requesting credit for the lump-sum payment. Held: As a matter of first impression, the father was entitled to a receive credit against his already-paid child support obligation based on daughter’s receipt of lump-sum payment for past-due Social Security Disability Insurance derivative benefits, even though there was no child support arrearage. “DCSS’s interpretation would lead to the perverse consequence of encouraging arrears by an obligor who has applied for federal benefits. Courts in other states have rejected interpretations similar to the one offered by DCSS for this very reason.”

State v. Peltier
No. 20170463, 2018 ND 170
North Dakota Supreme Court
July 11, 2018

The father appealed from an order denying his motion for relief from a child support judgment. The father argued that the state district court erred in denying his motion because the Turtle Mountain Tribal Court has exclusive subject matter jurisdiction to decide his child support obligation. The Supreme Court of North Dakota concluded that the state district court has concurrent jurisdiction to decide a father’s child support obligation for an Indian child, and the district court did not err in denying his motion for relief from the judgment. “[The father], as a nonmember Indian living on the Turtle Mountain Indian Reservation, has not met his burden of showing the Turtle Mountain Tribal Court has exclusive jurisdiction over this child support proceeding. We therefore conclude the state district court did not err in concluding state court jurisdiction over child support in this case would not undermine the authority of the Turtle Mountain Tribal Court over reservation affairs and infringe on the right of the tribe to govern itself.”

Mower v. Baird
No. 20160149
Utah Supreme Court
July 11, 2018

The father brought an action against his child’s therapist for medical malpractice and negligence, alleging that the therapist’s use of unreliable treatment methods resulted in the child’s false allegations of sexual abuse against him. The lower court dismissed the action. The Utah Supreme Court held: (1) the therapist owed a traditional duty not to affirmatively act in a manner that recklessly caused physical harm to father, and (2) the therapist had a duty to refrain from recklessly giving rise to false memories or fabricated allegations of sexual abuse committed by father. Reversed and remanded. (Editor’s Note: Although outside our usual area of practice, this makes for a fascinating read.)

Matter of Marriage of Long and Borrello
No. 77630-4-I
Washington Court of Appeals, Division 1
July 9, 2018

“Michelangelo Borrello appeals the trial court’s decisions requiring the relocation of the parties’ nine-year-old daughter, A., from Italy to Washington state before a permanent parenting plan has become final. His challenge requires resolution of the relationship between an emergency order entered by the Court of Rome under article 11 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Hague Convention),1 article 5 of this treaty, Washington’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and a later order entered by a Washington court asserting jurisdiction under the UCCJEA. The trial court properly exercised jurisdiction under the UCCJEA. Because its order temporarily relocating A. addressed “the measures required by the situation,” it satisfied the requirements of the 1996 Hague Convention, and the Court of Rome’s emergency order lapsed. The order did not violate the doctrine of comity or RCW 26.09.197. We affirm.”

Law Review Articles Of Interest

Lindsey Dennis, Nada Elrafei, Adrienne Gwozdecky, Caroline Jamieson, Catherine Tassin de Montaigu, Marriage and Divorce, 19 Geo. J. Gender & L. 397 (2018)

David Pratt, Marriage, Divorce, Death, and ERISA, 31 Quinnipiac Prob. L.J. 101 (2018)

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.