We posted here about the QDRO case in the United States Supreme Court (Kennedy v. Plan Adm. for DuPont Savings) and linked to the oral arguments and indirectly linked to the briefs. Now SCOTUSBLOG advises that the court has ordered an additional issue to be briefed. Just letting you know so that if the opinion is rendered upon some basis nowhere to be found in the existing briefs and arguments, that may be the reason.
GRANT V. LYNN
PANEL: NICKELL PRESIDING; MOORE, STUMBO CONCUR
DATE RENDERED: 10/17/2008
Dad, pro se, appealed TC orders awarding grandparent visitation to Maternal Grandmother with Dad’s children, based on the best interests of the children. Mother is deceased.
The case had been at TC level on remand from last CA opinion in the case, in which CA vacated and remanded TC’s judgment denying visitation because Maternal Grandmother failed to prove the children would be harmed if they could not visit her under the standard of Scott v. Scott. CA remanded because the “harm” standard of Scott had been replaced with the “best interests of the child” standard of Vibbert v. Vibbert. On remand, TC found that it would be in children’s best interests to see Maternal Grandmother one half day each month and to speak with her on the telephone one half hour each week.
In response to Dad’s first argument that as a fit custodial parent, he should be permitted to raise his children without contact with or interference by his former wife’s family, CA stated that there was no argument as to Dad’s fitness as a parent; TC simply found it would be in the best interests of the children to have contact with the family of their late mother. CA found TC’s findings were supported by substantial evidence and the visitation terms were sufficiently tailored to preserve Dad’s desire to raise his children as he sees fit but to also allow the children to renew contact with their late mother’s family.
Dad next argued that KRS 405.021, which authorizes a court to award visitation to a grandparent when it is in the child’s best interest to do so, is unconstitutional. CA found that Dad “combed dozens of legal opinions and strung together a jumble of sentences that do not warrant striking down a statute that has previously withstood constitutional muster, especially when Dad offer[ed] no explanation as to how KRS 405.021 supposedly violates any of the quoted constitutional provisions. While we are willing to overlook inartful pleading by a pro se litigant, we are not willing to create an argument for him. A shotgun blast of random legal jargon and indiscriminate reference to a hodgepodge of legal authority does not a focused or articulate argument make, and such abusive practice misses any reasonable appellate mark or purpose.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
KOERNER V. KOERNER
CHILD SUPPORT JURISDICTION
DATE RENDERED: 10/17/2008
Mom alleged that TC lacked subject matter jurisdiction over child support modification.
At the time of the dissolution, Mom and Dad and their two minor children resided in GA. Their divorce decree gave Mom and Dad joint custody of the children with Mom having primary physical custody, and Dad was ordered to pay child support to Mom. In 2003, Mom and the children moved to KY. In 2006, Dad, who remained a GA resident, registered the GA decree in KY and filed a motion in KY TC requesting primary physical custody of oldest child. TC denied immediate modification of custody but ordered that oldest child reside with Dad during that summer, subject to further modification at the end of the summer. In August of that summer, primary residential custody was transferred to Dad. Mom timely filed a CR 59 motion to alter, amend or vacate the order. One week after the order modifying the custody decree and, before Mom’s CR 59 motion was ruled upon, Dad filed a motion to modify the child support paid to Mom on the basis that the GA decree was premised on both children being in Mom’s custody, so that the transfer of residential custody of the oldest child to him was a change in circumstances that justified modification. Subsequently, TC granted Mom’s CR 59 motion and returned the oldest child to Mom’s primary residential custodianship. In memoranda to TC addressing Dad’s motion for modification of child support, Dad argued that pursuant to the KY child support guidelines his child support should be reduced. Mom opposed the modification on the basis that the family court lacked jurisdiction under KRS Chapter 407 et. seq. TC reduced Dad’s child support based on the parties’ incomes and the corresponding child support amount in the guidelines.
Whether TC had the authority to modify the GA decree requires an interpretation of the applicable provisions of the UIFSA as incorporated into KRS Chapter 407. CA held that the state that issued the child support decree or order retains “continuing, exclusive jurisdiction” unless KRS 407.5613 applies or conditions for modification established in KRS 407.5611(1)(a) are met. Although enforcement of a child support decree and modification both require that the decree be registered in the foreign state, there are additional requirements to be met before the court has authority to modify an existing child support decree. Thus, Dad’s proper registration of the child support decree in KY did not confer jurisdiction in KY TC to modify the decree.
KRS 407.5613 provides that jurisdiction to modify a child support order of another state exists if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state . . . .” Because Dad remained a GA resident, KRS 407.5613 has no application. KRS 407.5611 provides that a KY TC will have jurisdiction to modify if it finds that the child, the individual obligee, and the obligor do not reside in the issuing state, that the petitioner is a nonresident of KY, and that KY would have personal jurisdiction of respondent; or, that the child or one of the parties is subject to KY’s personal jurisdiction and that the parties have filed written consent for KY TC to assume continuing, exclusive jurisdiction over the order. If the obligor or obligee remains a resident of the issuing state and no written consent is filed, the issuing state retains continuing, exclusive jurisdiction to modify its child support decree. Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation. Thus, KY TC had no jurisdiction to modify the GA child support decree, although KY has jurisdiction over custody matters in this case.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
FEHR V. FEHR
PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
DATE RENDERED: 10/3/2008
Ex-Husband appealed TC’s decision awarding Ex-Wife a villa and a one-half marital interest in a mini-storage warehouse located in the Netherlands Antilles, alleging that he should have received his nonmarital interest in those properties. Ex-Wife contended that TC lacked subject matter jurisdiction over the property located in the Netherlands Antilles, or alternatively, that the law of that country should apply to the division of the property. She also challenged the admission of appraisals performed by an unlicensed real estate agent.
The parties were married on August 7, 2000, in the Netherland Antilles. Both were KY residents at the time and Ex-Husband continued to reside in KY throughout the marriage. During the marriage, Ex-Wife primarily resided in St. Maarten but did not change her United States citizenship. In June 2004, Ex-Husband filed a petition for dissolution in KY, asserting his KY residence. Ex-Wife admitted in her Response that she had been a KY resident for several years, and subsequently filed documents in the record demonstrating that her domicile was within the U.S. Ex-Wife did not object to the jurisdiction of the Oldham TC until two years after the petition was filed. The parties were equal shareholders a mini-warehouse storage company, incorporated pursuant to the laws of the Netherlands Antilles. The corporation was formed prior to the marriage. Ex-Husband made a total pre-marital investment of $110,693 to this property, while Ex-Wife invested $60,000 in the purchase of the property prior to the marriage and managed the property since the purchase. The parties also owned a villa in St. Maarten, titled in a company organized under the laws of the country of Anguilla and of which Ex-Wife was the sole director. Ex-Wife invested $101,000 from the sale proceeds of her pre-marital home towards the purchase of the villa, while Ex-Husband contributed $217, 000 of non-marital funds to the purchase. A St. Maarten real estate broker appraised the villa at $705,000 and the warehouse business at $585,000. He was not a licensed appraiser but testified that licensure is not customary in the Netherland Antilles.
TC found that the warehouse was a joint business venture, declared it to be marital property, and equally divided the parties’ interests. Despite the evidence that both parties contributed nonmarital funds toward the purchase of the villa, TC made an “equitable decision to award the entirety of the property to Ex-Wife, stating that such a decision was made in consideration of several factors, including the contribution of each party to the home, the difficulties in enforcing a Kentucky judgment as it relates to the St. Maarten property; and that TC ordered no maintenance paid from Ex-Husband to Ex-Wife.
Because both parties were Kentucky domiciliaries, CA concluded that TC had subject matter jurisdiction and personal jurisdiction over the parties to grant the dissolution. Ex-Wife objected to the assertion of TC’s jurisdiction, due to TC’s lack of power to decide the parties’ interest in the St. Maarten property, thus claiming TC’s lack of subject matter jurisdiction. Subject matter jurisdiction cannot be waived or otherwise conferred by the parties. It either exists or it is absent. Although it is well established law that KY courts are without jurisdiction to settle title or possessory rights to land outside the Commonwealth, it is equally accepted that a court may, through an in personam decree, affect title to land in another state. CA held that by virtue of TC’s personal jurisdiction over the parties, it had the authority and power to indirectly affect the property by compelling the conveyance of the interest, though an action to enforce a foreign decree so as to transfer title in accordance with the decree generally requires a separate action in the jurisdiction in which it is located.
REAL ESTATE EXPERT QUALIFICATIONS:
Ex-Wife contended that the testimony of the real estate broker was inadmissible because he was not licensed in accordance with Kentucky law. CA held that KY statutory regulation of real estate appraisers does not supersede the Rule of Civil Procedure placing qualification of expert witnesses within the discretion of TC based on the witnesses’ knowledge, skill, experience, training, and education. Although a statutory license requirement is relevant to TC’s determination, the lack of a license does not render the testimony inadmissible.
ALLOCATION OF NONMARITAL PROPERTY
A proper inquiry into the division of property begins with a three-step process: (1) TC first characterizes each item of property as marital or nonmarital; (2) then assigns each party's nonmarital property to that party; and (3) finally, equitably divides the marital property between the parties. When property consists of both marital and nonmarital contributions and has increased in value during the marriage, the reason for the increase in nonmarital property value must be determined. If attributable solely to economic conditions, the increase is nonmarital. If the increase is the result of the joint efforts of the parties it is considered marital property subject to division in equitable proportions.
With regard to the division of the warehouse business, CA held that while Ex-Husband contributed more than Ex-Wife financially, she contributed a corresponding amount in her effort as manager of the business both before and during the marriage so that her nonmarital contribution as manager of the property was equal to the monetary contribution of non-marital funds contributed by Ex-Husband. Thus, TC did not err in awarding each party a one-half interest in that asset.
With regard to the villa, CA held that TC’s award of the villa to Ex-Wife is inconsistent with KRS 403.190 and the three-step process required to be applied. Because TC found that Ex-Husband and Ex-Wife made nonmarital contributions to the purchase of the villa, it was required to award each their respective nonmarital interests in the property. Only after it has restored each party their nonmarital interest are the factors delineated in KRS
403.200 and an award of maintenance, if any, appropriate. CA stated that TC is not permitted to circumvent KRS 403.190 in lieu of a maintenance award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
Young v. Carran, et.al. The issue presented is whether Appellant may maintain a private cause of action against an opposing law firm for violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for the inadvertent disclosure of her medical and psychiatric records to the opposing party in child custody litigation. Summary judgment dismissing the complaint was affirmed.
Frances v. Frances involves relocation issues arising prior to the entry of a final custody decree. These were also the facts in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003). The Kentucky Supreme Court now recognizes that the effect of relocation must be viewed in light of whether it occurs pre- or post-decree. In making a final custody decree, the trial court must apply a best interest standard and there is no rule giving a preference on relocation to a primary residential parent.
Pennington v. Marcum concerns post-decree relocation of a child. Justice Noble gives us an excellent primer on modification of custody as opposed to modification of parenting time. Fenwick required a parent opposing relocation to move for a change of custody when the father in Fenwick really only wanted to become the primary residential parent, which is merely a modification of timesharing under joint custody. Pennington v. Marcum holds that a motion for change of custody is not required and a motion to modify visitation/timesharing under KRS 402.320 is sufficient. From the Opinion:
The party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. A residential parent who wishes only to change the visitation/timesharing due to his relocating with the child may bring the motion to modify visitation/timesharing under KRS 403.320. If that parent believes that the relocation will make a joint custody arrangement unworkable, then the motion should be made for a change of custody from joint to sole under KRS 403.340.
Likewise, when one parent indicates an interest in relocating with the child, the parent opposed need not wait, but could file his own motion. A parent who has equal or nearly equal visitation/timesharing and who wants to prevent a child’s relocation with the other parent, but does not want to change custody from joint to sole, could bring a motion for a change of visitation/timesharing under KRS 403.320. This could result in a designation of that parent as primary residential parent if the child is not allowed to relocate because it is not in his best interest to do so. If that same parent wants to change custody from joint to sole custody to him, he must being the motion for a change of custody and proceed under KRS 403.340.
Both parents may need to bring motions if their wishes differ. For example, if the residential mother makes a motion to modify visitation/timesharing to allow her to relocate with the child, the father may need to make a motion for modification of visitation/timesharing to name him as the residential parent, which would prevent relocation of the child. Or, the father could make a motion to be named sole custodian, and if he could meet his statutory burden, there would be a change of custody which would also defeat the relocation. If neither party wishes to change the nature of the custody, and the court determines that it is in the best interest of the child to relocate with the mother, the father’s visitation/timesharing would be modified to an accommodation as reasonable as possible given the distance of the relocation and the means of the parties.
To the extent this Court’s prior decision in Fenwick and its progeny is inconsistent with this Opinion, it is overruled.
It appears we could sing “Ding Dong Fenwick’s Dead!” but both Opinions talk about overruling Fenwick to the extent it is inconsistent. It will take some digging to determine what part of Fenwick is still alive. Nonetheless, it is a case we no longer have to worry about.
Justice Noble was joined by Justices Abramson, Schroder, and Scott. Justices Cunningham and Venters agree with most of the majority Opinion, but dissent because the trial court gave insufficient analysis to the effect of relocation on the child, a deficiency in large part due to the Court’s failure to provide guidance to trial judges. Factors a trial court should consider include: (1) the age of the child; (2) the purpose of the move; (3) the distance of the move; (4) the worthiness of the move for the child when balanced with any negative effects; (5) the improvement of the child’s standard of living; (6) the physical hardship of travel for the child on visitation with the non-custodial parent; (7) the presence or absence of extended family for the child at the new location versus the existing location; (8) the motivation of the non-custodial parent for objecting to the move (i.e., is it genuine concern for the child or simply a way of punishing the former spouse?); (9) whether the non-custodial parent has turned down career advancement opportunities by not moving away in order to stay close to the child; (10) the possibility and plausibility of the non-custodial parent following the child; and (11) the number of times the custodial parent has moved.
Justice Venters' separate dissent espoused the belief that the court should have adopted or promoted a requirement that joint custodians discuss a proposed relocation in advance.
It's a rare day when one can agree with both majority opinions and both dissenting opinions. Our high court tackled the thorny issue of relocation very well.
Pennington v. Marcum, decided today by the Kentucky Supreme Court. Congratulations to Martha Rosenberg! I dreaded reading Justice Cunningham’s dissent, only to find him cite the “prestigious” AAML and our model relocation act as guidelines that could have given courts greater guidance than best interests. A good day! We will post more on the case shortly and thereafter post a full digest.
From The Wall Street Journal Market Watch: "Suggested retail price for an Identigene DNA Paternity Test Collection Kit is $29.99. The Walgreens.com price is the same, plus shipping. The laboratory and processing fee for the personal test is $119. The laboratory and processing fee for test results for legal proceedings is $319."
Grant v. Lynn, grandparent visitation to parents of children’s deceased mother affirmed as in the best interest of the children, KRS 405.021 not unconstitutional as alleged and standards of appellate practice for pro se litigants.
Koerner v. Koerner, vacating order modifying Georgia child support order, as Ky lacked jurisdiction under UIFSA. “We now join those states that have concluded that under the UIFSA, the issuing state has continuing, exclusive jurisdiction over its child support order if the obligor or the obligee continues to reside in that state….We are cognizant that our decision results in bifurcated jurisdiction between Kentucky, which has jurisdiction over custody and visitation matters, and Georgia, which has jurisdiction over child support modification….Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation.”
Digests to follow.
The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.
The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.
About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.
The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.
The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.
The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.
T.A.N. v. M.J.
PANEL: LAMBERT PRESIDING; STUMBO, THOMPSON CONCUR
DATE RENDERED: 9/26/2008
Mother appealed TC’s order providing additional parenting time to her ex-boyfriend, Father.
Mother and Father lived together briefly and conceived Child. Mother accused Father of domestic violence and Father accused Mother of drug use during this time. Mother and Father had no further contact until they went to court to determine custody and visitation. Initially, Mother and Father agreed on a temporary visitation schedule allowing Father short but frequent periods of visitation with child. They also agreed on a custodial evaluator, and that either party had the right to request the other to participate in a drug screening and that Father was to pay the costs for such tests. All of these agreements were adopted into TC’s order. While the permanent resolution of the issues was still pending, Mother filed motion to suspend Father’s visitation with Child, due to Father’s alleged alcohol abuse while Child was in his care. TC overruled Mom’s motion and after the hearing issued an Order giving Father frequent, unsupervised parenting time with Child. Mother subsequently filed a motion for TC to clarify its judgment and to provide particularized additional findings of fact, for supervised visitation, and for clarification on the required drug testing established in previous orders. The parties agreed to attend mediation though the custodial evaluation was not complete. Mediation having failed, several months later, TC ordered Father to contact custodial evaluator and to submit to drug screening on a weekly basis or lose his visitation for that week.
On the day of the trial, Father’s attorney fell ill and TC rescheduled trial. Mother indicated to TC that day that Father had not complied with TC’s order to contact Dr. Cebe and had not complied with the drug screens. That day and later at trial, Father testified that he had contacted custodial evaluator but without prepayment she would not begin the custodial evaluation. TC determined that case could proceed without the custodial evaluation, given that a home study had recently been conducted in 2006 and that the case focused largely on factual issues, which were able to be addressed through testimony and argument. TC found that Father wanted more time with Child, that Father’s testimony was that he did not use drugs, and that Father had enrolled in a parenting class to prepare to care for a baby. It found that Father has sole custody of another daughter, whom TC stated was “thriving in his care and is an honor roll student.” Further, TC took judicial notice of parenting concerns regarding Mother due to her previous drug convictions and removal of sibling children through state prosecuted child protective actions. TC then awarded sole custody of Child to Mother due to “the extent of domestic violence in the relationship.” TC gave Father three weekends per month and one overnight per week.
One week after issuance of TC’s order, Mother filed motion to modify visitation requesting reduced parenting time for Father, arguing that only competent evidence TC had to consider was the home study, and that the home study led the parties to agree that a custodial evaluation should be conducted and TC issued such an order. She renewed her previous arguments that Father had not complied with previous orders regarding the custody evaluation or the required drug screenings. She then argued that TC had ignored its own orders and had instead allowed Father to verbally smear her character by asking the court to take judicial notice of dependency actions that were eight years old. Finally, Mother argued that her proposed visitation schedule was the standard visitation schedule when one parent has sole custody and the other visitation. Father responded that he could not afford the allergy testing of the home, the drug tests, or the custodial evaluation. He argued that TC could conduct the trial without the custodial evaluation and drug tests, because TC still allowed both sides to present evidence and testimony. TC overruled Mother’s motion, providing no grounds for the ruling but simply that the motion to alter, amend or vacate is overruled.
On appeal, Mother presented the same arguments as at trial, in addition to an argument that TC erred in not taking into consideration her work and school schedule when ordering the parenting schedule
CA found that though parties agreed to custodial evaluation and TC adopted agreement into its orders, at no time did TC, on its own, determine that a custodial evaluation was necessary. It was also within TC’s discretion to let trial proceed without custodial evaluation given that the case had gone on for two years. CA held that Mother’s claim that TC ignored its previous drug screen orders was without merit, as Father underwent drug screenings for seven months, none of which came back positive for drug use. Father testified that he could no longer afford to have weekly screenings and was not being permitted to see Child, even when the screenings came back negative. Mother’s claims that TC did not take into account her school and work schedule were not preserved on appeal, and therefore we need not address them. Finally, CA found that TC considered home study in its award of visitation to Father and that TC’s award was not an abuse of discretion. TC’s order affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.
Laurel S. Doheny, Greenbaum, Doll & McDonald, Louisville, Ky has been elected a Fellow of the American Academy of Matrimonial Lawyers. Requirements for membership include passing an oral and written examination on wide ranging issues pertaining to matrimonial and family law, at least 10 years legal experience with a 75% minimum concentration in matrimonial law, recommendations from judges and other AAML Fellows and demonstration of significant involvement in the study or improvement of matrimonial law as well as aspiration to the ethical standards set forth in the Bounds of Advocacy. Welcome and congratulations!
Kennedy v. Plan Adm. for DuPont Savings was heard by the United States Supreme Court yesterday. At issue is whether a divorce agreement waiving survivorship pension rights is sufficient to defeat an unchanged beneficiary designation. The 5th circuit had held that a QDRO was the only way to defeat a pension beneficiary designation, creating a conflict between federal and state law. SCOTUSBLOG has posted the briefs and a summary of the issues at its companion SCOTUSWIKI. A transcript of the oral argument link is republished here.
We reported briefly here on this case in September and we'll keep you posted when it is decided.
Fehr v. Fehr,reversed in part, affirmed in part and remanded in part.
This part affirmed:
1. A court with in personam jurisdiction and subject matter jurisdiction over a dissolution action may declare the parties’ interests in foreign land. However, consistent with the limitations on the court’s jurisdiction, to enforce a foreign decree so as to transfer title in accordance with the decree generally requires a separate action in the jurisdiction in which it is located.
2. Absent an agreement to the contrary, in dissolution of marriage proceedings the law of the marital domicile applies.
3. Although a license required by statute is relevant in the court’s determination, a lack of a real estate appraiser’s license or certification does not by itself render the testimony inadmissible.
4. The family court acted within its discretion when it found that wife’s nonmarital contribution as manager of the mini warehouse before and after marriage was equal to the monetary contribution of non-martial funds contributed by husband toward the acquisition and improvement.
The appreciation of a business with a nonmarital interest is treated differently than appreciated real estate
This part reversed:
Both made nonmarital contributions to St. Maarten villa but court awarded it all to wife for 8 good reasons, i.e., difficulty of enforcing Ky judgment in St. Maarten, in balancing the equities as no maintenance was granted and the speculative nature of the appraisal, etc. The court erred in failing to go through the process required by KRS 403.190. A court has no discretion to divide nonmarital property. On remand the court must apply the Brandenburg formula.
Complete digest to follow.
BRAUSCH V. BRAUSCH
PANEL: THOMPSON PRESIDING; VANMETER, HENRY CONCUR
DATE RENDERED: 9/12/2008
Dad appealed from TC’s order awarding child support (“CS”) to Mom, arguing that TC miscalculated CS owed; TC erroneously refused to abate CS during his summer parenting time; and TC should have included the earned income tax credit (EIC) and additional child tax credit received by Mom in its CS calculation.
CLAIM OF MISCALCULATION OF CS:
In 2005, Mom and Dad entered agreed order modifying Dad’s CS obligation while he was attending nursing school. Pursuant to that agreement, CS was to be recalculated effective July 1, 2006 after his graduation. The hearing did not occur until July 2007, when Dad had been employed as a nurse for one year. TC considered James’ year-to-date income from June 30, 2006 through December 31, 2006 in its calculation. Dad contends that TC should have calculated his CS obligation on the income earned for the entire year of 2006, the first half of which he was still enrolled in nursing school and not earning as highly as in the later part of the year.
CA noted that CS statute creates a presumption that future income will be on a par with worker’s most recent experience Furthermore, CA held that including Dad’s income prior to the time of graduation would not correctly reflect his earning capacity for the purpose of calculating CS.
CLAIM OF CS ABATEMENT:
Because Mom must maintain the home and incur continued expenses for the benefit of the children even in the children’s brief absence from the home during Dad’s summer parenting time, CA found no abuse of discretion in TC’s refusal to abate Dad’s CS during that time.
CLAIM THAT EIC & ADDITIONAL TAX CREDIT ARE INCOME FOR CS
Although Mom received funds from Earned Income Credit and additional tax credit, these amounts were not included in her income in CS calculation. Mom claimed that these funds should not have been included, as CS statute provides that benefits received from means-tested public assistance programs are excluded from gross income for CS calculation purposes. CA found that EIC is a public assistance program, as its purpose is
to supplement the income of the neediest of families. It is also “means tested” as eligibility is directly dependent on the basis of income or resources. The additional child tax credit does not fall into the same category because the threshold income is $110,000, thus it does not provide assistance to needy families. Therefore, the additional child tax credit is not specifically excluded from gross income. CA found, however, that it was not income but a federal tax benefit included within the dependency exemption, as the benefit is contingent upon, and in addition to, the dependency exemption. CA noted that result could have inequitable consequences, but until such time as Legislature recognizes treatment of EIC in CS guidelines, such a result is mandated by statute.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.
CAMERON V. CAMERON
ABROGATION OF MARITAL SETTLEMENT AGREEMENT
DATE RENDERED: 9/18/2008
Ex-Husband appealed TC’s Order that separation agreement was not abrogated during period of alleged reconciliation and that agreement was not unconscionable.
Ex-Husband and Ex-Wife were married twice, first in 1988. They lived on a large farm of
approximately 1,200 acres which was managed by Ex-Husband, but owned by his father. Parties divorced in 1998 but property division agreement was never reached. Ex-Husband remarried and divorced. Ex-Husband’s father gifted several farms to him during this time. In 2002, the parties reconciled and remarried and lived together on the real estate gifted to Ex-Husband by his father. Nine months later, Ex-Husband filed for second divorce. A month later, Ex-Husband, who was represented by an attorney, contacted Ex-Wife, who was not represented by an attorney, about the prospects of once again reconciling. Though both parties were serious about the reconciliation attempt, Ex-Wife insisted upon the parties attending marriage counseling. Both parties signed a document entitled "Separation Agreement," which provided that the parties would equally divide all property, whether marital or nonmarital. However, it did not provide for either maintenance or child support. During the attempt toward reconciliation, the parties did not move in together. They spent time together during weekends and took two trips to Mexico together. Several months later, Ex-Wife filed her own divorce action against Ex-Husband. Ex-Husband moved that the separation agreement be set aside because they had reconciled subsequent to the making of it, as well as claiming that it was unconscionable. TC held that the separation agreement was enforceable as not being abrogated by reconciliation nor as being unconscionable.
If there was reconciliation between the parties, the effect of the reconciliation depends on whether the agreement was executed or merely executory. If the agreement had been properly executed, reconciliation does not abrogate the agreement unless the parties intended it to do so. If there is an agreement yet to be executed, as with these parties’ agreement, reconciliation of the spouses and a presumption of cohabitation of the parties nullifies the agreement. SC found no abuse of discretion in TC’s finding that reconciliation was not accomplished between these parties, and there is no bright line rule for making such a finding absent a dismissal of a pending divorce or an express rescission of the agreement. TC should consider at least the following factors in determining whether reconciliation has (1) whether the parties have resumed residing with each other; (2) the nature in which they hold their personal property, including bank accounts; (3) their failure to carry out other executory provisions of the contract; (4) activities of the parties in which normally only married couples participate; and (5) whether the parties attended marriage counseling. SC noted that a guiding light might be that reconciliation occurs where, from all appearances and for a substantial period of time, it seems purely an oversight that the agreement has not been rescinded or the divorce action dismissed.
SC also found no clear error in TC’s finding that agreement was not unconscionable or “manifestly unfair or inequitable.” SC further noted that burden of proof in challenging the agreement was upon Ex-Husband. The separation agreement was prepared by Ex-Husband’s lawyer and signed by both parties, though Ex-Wife had no attorney. Though Ex-Husband divested himself of half his nonmarital property, neither divorce between the parties provided for maintenance or child support. Thus, the agreement was not lopsided.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.