Divorce Law Journal

Full Digest of Grasch v. Grasch, Ky Court of Appeals Published Opinion of September 23, 2016, Now Posted to Our Blog

GRASCH v. GRASCH

Husband, an attorney, and Wife, who managed his law firm, divorced after a thirty year marriage. After four years of litigation, the parties appealed and cross appealed numerous issues for the Appellate Court to review.

Contingency Fees

 

The first issue the Appellate Court addresses is whether contingency fee cases are marital property subject to division.  On appeal, Wife argues that the Trial Court erred by finding contingency contracts were not property and granting summary judgment prematurely. The Court of Appeals holds that contingency fee cases are income-generation devices and do not give an attorney any ownership interest, therefore they are not determinate things. As contingency fee contracts are not determinate things, they are not property subject to division by the terms of KRS 403.190. The Court of Appeals holds the Trial Court did not err in finding the contingency contracts were not divisible property, and did not err in granting summary judgment without a valuation of the contracts, as no material issue of fact existed given the contracts were not property.

Dissipation

Next, Wife argues the Trial Court erred by finding Husband did not dissipate marital property. The Court of Appeals holds the Trial Court did not err as Wife did not show dissipation by preponderance of the evidence. The record clearly showed both parties traveled, spent extravagantly, and spent marital funds as they had during the marriage. Neither party showed a clear intent to deprive the other of marital funds.

Maintenance

 

Wife appealed the Trial Court’s maintenance award arguing the amount was too small and the duration was too short. The Court of Appeals holds the Trial Court did not abuse its discretion and properly analyzed Wife’s monthly expenses and modified certain expenses based on testimony granting reasonable maintenance in consideration of the parties’ lifestyle and the property division.

 

Husband appealed the Trial Court’s maintenance award arguing Wife should not have been granted maintenance as her property generated enough income to meet her reasonable needs. The Court of Appeals again held there was no abuse of discretion as the Trial Court properly considered reasonable needs in light of the parties situation stating, “what constitutes ‘reasonable needs’ varies based on the marital situation” and cannot be determined in a “vacuum.”

Husband also argued it was an error for the Trial Court to award Wife maintenance beyond her retirement age citing the Weldon case. Weldon v. Weldon, 957 S.W.2d 2283 (Ky. App. 1997). The Court of Appeals disagrees holding Weldon supports the Trial Court’s decision as here the Trial Court awarded a modest amount of maintenance for a definite number of years.

Attorney Fees

 

Wife appealed the Trial Court’s decision not to award her additional attorney fees. The Trial Court had considered the financial resources of both parties, noted the marital estate had paid for $14,000 of Wife’s fees and Husband had paid $10,000, and found Wife received significant assets before denying Wife’s request for fees. The Court of Appeals affirms the Trial Court’s order as the Trial Court did not abuse its discretion.

Non-marital Interest in Marital Residence

 

Husband appealed the Trial Court’s calculation of Wife’s non-marital interest in the marital residence. There is no question that Wife invested $125,000 of her nonmarital funds in the parties’ first home. Upon the sale of that home, which increased in value, Wife’s full non-marital share remained. The Court of Appeals did not assign any increase in value to Wife’s nonmarital share, holding that the presumption is that an increase in value is due to marital contributions unless proven otherwise. Wife did not meet her burden of proving the increase in value was due to “general economic conditions rather than marital contributions.”

The parties then purchased land and constructed their second home with $125,000 of Wife’s non-marital funds and the $85,000 of marital funds from the sale of their first home, as well as loans totaling $825,000. The non-marital and marital funds were co-mingled in the construction of the house and the parties ultimately lost money on the home selling it for $878,000, a loss of $157,000. Due to the reduction in the mortgage, the parties received $137,717.02 in proceeds from the sale of the home. The Trial Court award wife her $125,00 non-marital share and order the parties to equally divide the remaining $12,717.02.  

Upon review, the Court of Appeals holds that loss due to general economic circumstances should be shared equally between a marital and nonmarital interest. The court applies the Brandenburg formula to reduce the marital and non-marital shares accordingly. As some factual findings regarding a $50,000 marital contribution were unclear, the Court of Appeals remands the issue to the Trial Court to make the relevant finding and use the Brandenburg formula to reduce the Wife’s non-marital share from $125,000 to $51,386.95 or $44,713.32.

Post-nuptial Agreement

 

Husband and Wife entered into an agreement during the marriage that Wife intended to use $35,000 of her non-marital funds to pay off marital debts. The agreement stated that if the funds could not be clearly traced to a marital asset upon dissolution, Wife would receive the funds from the marital property. Husband, without citing any law, argues on Appeal that the Trial Court erred in awarding Wife the $35,000 because the funds could not be traced. The Court of Appeals holds the Trial Court did not abuse its discretion noting no evidence was offered at trial in support of Husband’s claim other than an expressly refuted assertion by Husband.

Amendment of Findings of Fact and Conclusions of Law

 

Husband argues the Trial Court erred in amending the findings of fact and conclusions of law pursuant to CR 59.05 citing Gullion v. Gullion  which favorably cited the standards set forth for reconsideration of judgment under the Federal Civil Rules. Gullion v. Gullion, 163 S.W.3d 888 (Ky. 2005). The Court of Appeals find no Gullion error holding the Trial Court did not err by granting the CR 59.05 motion.

Mortgage and Property Taxes

 

Husband’s last argument is that the Trial Court erred in ordering him to pay the mortgage and taxes on the marital home while Wife resided in the home post-trial. The Court of Appeals reviews only for manifest injustice as Husband’s brief did not conform with the Civil Rules for Appellate Briefs. The Court of Appeals affirms the Trial Court noting its “yeoman’s effort” to divide the marital property pursuant to KRS 403.190(1).

Digested by Elizabeth M. Howell

October 23, 2015 Published Family Law Opinion from Ky Court of Appeals: Required Child Custody Findings

GLODO v..EVANS, ET AL.

Grandparents assumed care of children, with the exception of a special needs child, after biological mother and biological father were both incarcerated. The special needs child was placed with friend of grandparents equipped to deal with his special medical needs. Grandparents filed motion to be designated as de facto custodians and for permanent custody of all three children. Biological father consented to grandparent’s motion for permanent custody and waived his right to appear at the hearing. After a hearing on the matter, the family court awarded grandparents permanent custody, finding biological father had waived his rights, biological mother was unfit to have custody, and it was in the best interest of the children for grandparents to have custody, although the grandparents were not de facto custodians.

Biological mother argues that the family court failed to prove she was an unfit parent, and therefore there are no grounds to award permanent custody to a non-parent. The court merely stated “The mother has a serious substance abuse problem,” while the mother provided testimony she as attended AA meetings, was sober, had passed all drug tests, maintained full-time employment, and cared for the children for almost the entire month of June after being released from prison. As the family court provided a conclusory statement regarding mother’s unfitness, and made no other findings of fact, the Court of Appeals vacated and remanded the order granting grandparents custody. Although not necessary, the Court of Appeals also notes the family court did not conduct a proper best interest analysis, as the court failed to address the factors set forth in KRS 403.270.

Digested by Elizabeth M. Howell

Maxwell v. Maxwell, Ky Court of Appeals, Child Custody, Lesbian Mother

Maxwell v. Maxwell

No. 2012-CA-000224-ME

Published:  Opinion Reversing and Remanding

County:     Hardin

Angela Maxwell appeals the decision of the Hardin Family Court to award sole custody of her three children to their father, Robert Maxwell.

The parties were married in October, 1994 and three children were born to the marriage.  The parties separated in September, 2010 and Robert filed the petition for dissolution and moved for sole custody of the children.  Angela responded to the petition and asked for joint and shared custody.

In October, 2010, the parties entered into a “pre-temporary” agreed order providing for joint custody and alternating physical custody on a week-to-week basis.  The order also prohibited a non-family guest to stay overnight when the parent had physical custody of the children.

In March, 2011, a mutual restraining order was issued after motions were filed by both parties.  A settlement agreement was entered in January, 2011, reserving child-related issues.  A hearing on those matters was held in September, 2011. Robert requested joint custody and designation as primary residential custodian.  Angela requested joint custody pursuant to the current arrangement and that the prohibition on non-family guests spending the night during parenting time be lifted.

Witnesses included relatives, a teacher, a soccer coach, and the two older children.  The children were happy with the parenting time arrangement and both said they liked Angela’s friend, Angel.

The trial court’s order was entered January 5, 2012 awarding Robert sole custody with Angela’s visitation schedule set by the court.    The allotted parenting time was less than the minimum guidelines in the local rules.  Both parties were prohibited from cohabitating with another adult during the time they had physical possession of the children, unless they were married to that person.

The standard of review is whether the trial court’s factual findings are clearly erroneous.  The reviewing court determines whether the trial court applied the current law and whether the trial court abused its discretion.

Angela argued the family court erred by 1) considering factors unrelated to the best interests of the children, 2) the award of sole custody to Robert was erroneous and an abuse of discretion, 3) the court based its decision on inadmissible evidence, and 4) it was error to restrict the parties from cohabitating during parenting time. Robert countered that the court’s ruling was not made on Angela’s sexual orientation, was not an abuse of discretion, and was based on the best interests of the children in accordance with statutory factors.

The Court of Appeals applied the facts of the case to the statutory factors listed in KRS 403.270(2).  The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children.  The Court of Appeals held that being a member of a same-sex partnership alone does not meet the criterion of sexual misconduct and to use her sexual orientation as a determinative factor violates Angela’s right to due process, equal protection and fundamental right to parent her children.  The trial court found that Angela’s relationship was not in the best interests of the children, but provided no factual findings in support.  Harm must have an evidentiary basis and cannot be assumed.

The issue of restricting the parties from cohabitating with a person to whom they are not married was to be retried on remand with the understanding that cohabitation of any party is a factor, but not dispositive on its own.  The family court’s decision should be based on the best interests of the children.

The order of the Hardin Circuit Court is reversed and remanded for proceedings consistent with the opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

S.S. v. Commonwealth, Ky COA, Standing as De Facto Custodian

S.S. v. Commonwealth, 2011-CA-001790-ME

Published:   Affirming  

County:  Jefferson

Child, through GAL, appealed FC ruling that her Great-Grandmother had standing to intervene in suit as de facto custodian, arguing that she did not meet the requirements for de facto custodian status under KRS 403.270.

FACTS:

At age 2, Child was removed from Mother and placed in temporary custody of Great-Grandmother pursuant to dependency petition.  Two years and five months later, Child was returned to Mother’s care; but eight months after that, Child was removed from Mother’s care again and placed in concurrent planning foster home.  Great-Grandmother filed motion to intervene in order to be considered for Child’s placement or to have visitation with Child.  After hearing, FC granted Great-Grandmother de facto custodian status and granted her visitation.  GAL filed motion to reconsider, arguing that Great-Grandmother had relied upon an unpublished case to establish that the lapse in time of her care of Child did not disqualify her as de facto custodian and further arguing that Great-Grandmother could not rely on her husband’s salary as her own income for purposes of meeting the statute.  FC disagreed on both fronts and denied the motion to reconsider.  On appeal, Child through GAL argues that Great-Grandmother cannot qualify as de facto custodian because she is not Child’s primary financial supporter; Child also argues that termination proceedings are scheduled and the standing order of visitation will inhibit Child’s potential for adoption.

ANALYSIS:

There is no authority holding that a de facto custodian cannot be credited with financial support which is provided by the government through government benefits, such as Great-Grandmother’s receipt of social security and social security insurance, or from their spouse’s income, merely because such monies were not earned directly through employment.  Such a result would disqualify stay-at-home spouses, retirees, elderly social security recipients, and poor and disabled recipients of government benefits.  CA held this was not the intent of the legislature.  CA acknowledged and sympathized with the fact that Great-Grandmother’s visitation order, which would continue on past an adoption, might inhibit Child’s prospects for adoption; but without a legal precedent warranting reversal, it has no bearing on Great-Grandmother’s status as de facto custodian. 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

McIntosh v. Landrum, Ky COA, Child Support, Child Care Costs, Attorney Fees

McIntosh v. Landrum

NO. 2012-CA-000161-ME

Published:  Opinion Affirming

County:     Kenton

Father appeals order of Kenton Circuit Court requiring him to pay, as part of his child support, amounts for respite care and work-related childcare, as well as part of Mother’s attorney fees and court costs.

The parties were married in 1994 and divorced in 2007.  They have two children, one of whom requires extra care because of autism.  At the time of the divorce, Father lived in Cincinnati and Mother lived in Ft. Mitchell, Kentucky.  In January, 2011, Father took a job in Abu Dhabi, United Arab Emirates earning approximately $32,000 a month.  Mother also went to work earning $46,000 a year.

Mother filed a motion in March, 2011 because Father was unable to exercise parenting time after his move to Abu Dhabi.  She asked that Father be required to pay for a sitter to give her time off from caring for the children.  She also requested that he share work-related childcare costs and her attorney fees.  Even after Father’s subsequent move to Texas, he was unable to exercise parenting time on a regular basis.

The trial court ordered Father to pay 100% of any childcare costs incurred when he did not exercise his parenting time, which was designated as respite care.  Father was also ordered to pay work-related childcare expenses and to pay $3500.00 of Mother’s attorney fees.  After Father’s motion to alter, amend, or vacate was denied, this appeal followed.

Father first argued that respite care is not authorized under Kentucky law.  The Court of Appeals disagreed, finding that the award of respite care was similar to work-related childcare, and was not an increase in Father’s general child support obligation.  This expense was specifically and adequately justified by the trial court.

Father further argued that the trial court erred when it awarded Mother work-related childcare expenses.  He claimed that even if she incurred the expenses, they were only temporary.  Again, the Court of Appeals disagreed, holding that Mother had only to prove that there had been a change of circumstances requiring the payment of work-related childcare expenses.  Father had to pay his share of those expenses, whether or not they were temporary.

The Court of Appeals found no abuse of discretion in the award of $3500 in attorney fees.  Father earned $450,000 in Abu Dhabi and about $250,000 after his move to Texas.  Mother only earned $46,000 per year. Because of the disparity in the parties’ incomes, the award of attorney fees was not an abuse of discretion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

 

From Guest Blogger Bonnie Brown: DEVELOPMENTS IN INTERNATIONALIZATION OF FAMILY LAW: U.S. SUPREME COURT ADDRESSES THE TRAGEDY OF INTERNATIONAL CHILD ABDUCTION

    Although family mobility has been global for decades, the United States Supreme Court, for the first time,[1] has interpreted a provision of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which the United States is a contracting state.  The treaty’s full text can be found at

       http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24.

BACKGROUND

    The Hague Convention is implemented in the US by the International Child Abduction Remedies Act (ICARA), 42 USC §11601 et seq.  It determines which forum will decide a custody dispute – not the custody dispute itself.  See, Friedrich v. Friedrich, 78 F.3d 1060 (6^th Cir. 1996).  With authority to hear Hague cases in every state and federal jurisdiction, there are literally thousands of Courts that could be presented with a case. It is no wonder a Hague issue is only now being decided by this country’s highest Court.

    In general, a parent seeking return of a child must show that the child was abducted or wrongfully retained in violation of that parent’s custody rights, which depend upon the laws of the state from which the child was removed.  That country must have been the child’s habitual residence.  The parent must act within one year.  The Convention applies to children under age sixteen.  The Court may refuse to return the child if the parent seeking return agreed to the removal or retention or if there is a grave risk that the child’s return would lead to physical or psychological harm or if the country to which return is sought violates fundamental principles relating to the protection of human rights and fundamental freedoms.[2]

 Kentucky construed Hague’s return provisions over a decade ago. In Harsacky v. Harsacky, 930 S.W.2d 410 (Ky.App. 1996), the Court of Appeals refused to order return of American born children to a mother in Finland because she had failed to prove that the children were wrongfully abducted or retained in the United States, and that Finland was not the children’s habitual residence.  Two years later, the Kentucky Court of Appeals ordered a child returned to her father in Greece from which the mother had wrongfully removed her child.  Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. App. 1999).   

THE ABBOTT FAMILY

Resolving a split among the Circuits, Abbott v. Abbott, 560 U.S. ____ (2010) holds that the right to veto a child’s removal from the country constitutes a custodial right enabling its violation to invoke the return remedy set forth in the Hague Convention.  In so doing, the United States joins the majority of nations in this interpretation, though not necessarily the majority of Circuits. Justice Kennedy’s majority Opinion was joined by Justices Roberts, Scalia, Ginsburg, Alito, and Sotomayor.  The decision is consistent with Kentucky law, which associates custody with decision making, rather than physical control of the child.  KRS 403.330(1).

    In Abbott, the father was British and mother American.  They married in 1992, and their son was born in 1995.  The family moved to Chile in 2002, but separated in 2003.  A Court in Chile granted the mother what most in the United States would label as sole custody while granting the father visitation rights.  However, under the laws of Chile,  parents with the type of visitation rights granted the father automatically have a ne exeat (no exit) right, namely a right to consent before the mother could take the child out of Chile. 

    The father obtained a British passport for the son, and the mother obtained an Order that the father be prohibited from taking the boy out of Chile.  In 2005, while the proceedings were pending in the Chilean Court, the mother herself removed the child without the father’s permission.  A private investigator found the child in Texas, and in 2006, the mother filed for divorce in Texas.  She further sought to eliminate the father’s veto authority and to impose supervised visitation for the father in Texas.  The Texas Court granted the father visitation so long as he remained in Texas.  As reported in the Opinion, that litigation is not concluded. 

    .

    The father began Hague proceedings in May 2006.  The Federal District Court determined that the father’s ne exeat rights did not constitute a right of custody under the Hague Convention and denied the return remedy.  The Fifth Circuit agreed in 2008.  Interestingly, the Fifth Circuit relied on a Second Circuit case, Croll v. Croll, 229 F.3d 133 (2000), holding that ne exeat rights were not custody rights under the Convention.  A dissenting Opinion was written by then-Judge Sotomayor who considered ne exeat rights to constitute a right of custody because it allowed decision-making authority regarding a child’s international relocation.  Justice Sotomayor’s consistency resulted in her joining  the majority in the Abbott case.  

    Justice Kennedy analyzed that the ne exeat right indeed constitutes a right relating to determination of the child’s residence.  The father’s rights affected the child’s language, identity, culture, and traditions.  The right also enabled the father to control or prevent disruptions in his visitation by hypothetically conditioning his consent to relocation in a country where the father could obtain employment, thus allowing him to have continued contact with the child.

    Justice Stevens filed a dissenting Opinion joined by Justices Thomas and Breyer.  The dissent disagreed that the ne exeat rights constituted a right of custody invoking the return remedy under the Hague Convention.  Justice Stevens analyzed it as being closer to a right of access, which does not require the return remedy, but rather cooperation of the contracting state to allow that access to the extent possible.  Veto power based on Chilean law, the dissent reasoned, is not synonymous with the affirmative authority to establish in which country the child lives. Thus, the veto power would not “transform” the father into a custodian.

WHAT HAGUE CONVENTION CAN AND CANNOT ACCOMPLISH

The decision has been criticized by women’s rights advocates for domestic violence survivors who are concerned that it would burden the ability of women to flee abusive situations.[3]  That can certainly be a disturbing consequence of the Hague Convention’s focus on forum rather than results. Perhaps this issue could be more fully developed in construing the defenses and exceptions. Yet, on a positive note, this decision could give momentum to the decisions in other countries in which children abducted from this country are found.

    The ultimate tragedy is that this dispute began in 2005, when the child was approximately 10 years old.  He is now 15 years of age and nearly grown. Successful mediations involving international parental child abduction have been reported.  This solution should be considered by any attorney assisting a parent in a Hague Convention case and  that case evaluated for its ability to benefit from this alternative process.

Respectfully submitted.

    Bonnie M. Brown

---

[1] Bureau of National Affairs, Inc., Family Law Reporter News Archive, 5/18/2010.

[2] See Graham/Keller, Kentucky Practice, Domestic Relations Law, §14:48.

[3] See B.N.A. Archive, supra.

U.S. Supreme Court Decides Hague Convention Case of Abbott v. Abbott

If a custodial parent violates an order not to remove a child from the country, the non-custodial parent may use the Hague Convention to have the child returned. Abbott v. Abbott, decided May 17, 2010 and online here

John Crouch at The Family Law News Blog says in this post, "This result is good policy, it’s good for international families, it’s good for the rule of law. It’s consistent with how people use and rely on the Hague Convention today, and how most courts in the U.S. and abroad interpret it. I’m not sure it reflects the treaty’s original intent or text, but the treaty leaves room for interpretation in that area.

What is especially significant is what it says about our current understanding of child custody. The majority reads “rights of custody” as implying “a bundle of rights”, in which some rights may be exclusive to one parent and others will often be shared by both, and both parents will ordinarily remain parents, and exercise some parental authority after divorce. The dissent takes an older view of custody as something that is (at least ordinarily) unitary, held by one parent after divorce. This view is declining but is still very strong in the more tradition-minded parts of our culture. These two views coexist, in different proportions, in other countries as well, as divorce and unwed parenthood become more common and society’s other institutions strain to adapt to them. They drive a lot of the drama in child abduction, alienation, and other contentious custody situations."

Ky Supreme Court and Court of Appeals Family Law Minutes Released Today

No Kentucky Supreme Court family law published opinions were among those released today. Discretionary review was granted in one family law case, Howard v. Howard. The unpublished opinion of the Court of Appeals is here. The case involves whether father, who quit job for claimed medical reasons, was underemployed for child support purposes and whether car debt is dischargeable in bankruptcy.  

The Court of Appeals issued one to be published family law case, Williams v. Bittel. Digest to follow.

U.S. Supreme Court Decides Pension Beneficiary Following Divorce And Death

The U.S. Supreme Court issued a unanimous decision in Kennedy v. DuPont. The Court held the plan administrator of an ERISA benefits plan should pay plan benefits to wife #1, who was the designated plan beneficiary on a designation executed during the marriage and not to wife #2, who was married to the deceased participant spouse at the time of his death. The divorce decree in question awarded 100% of the deceased participant's benefits to participant, not wife #1. However, participant failed to change his beneficiary designation after the divorce.

SCOTUS BLOG points out, The Court, however, did leave open for the future a related question: if an ex-spouse is handed the benefits by a plan manager, might they still have to be surrendered, once the payout was completed? A footnote indicated that the Court on Monday was only resolving how federal benefit law applied to the initial distribution of plan payments, not their subsequent fate.

Here is the syllabus.

New Briefs Ordered In U.S. Supreme Court ERISA Case

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.

QDRO Needed If Alternate Payee Gets Nothing?

I couldn’t figure out why in the world a plan administrator recently wanted a QDRO when the alternate payee was getting nothing under the Marital Settlement Agreement. Now I do. The 5th circuit ruled a QDRO was the only permissible way to release pension rights and in the absence of a QDRO the divorced spouse got it all upon the participant’s death where the employee never changed the beneficiary designation, even though she waived rights in the settlement agreement. The United States Supreme Court accepted cert and oral arguments are set next month. Here's the post from the Cornell University Law School and here is the critique from the Workplace Prof Blog.

California To Permit Same-Sex Marriage (at least for now)

Click In Re Marriage and you'll see the 172 page opinion from the Supreme Court of California today. Marcia Oddi at Indiana Law Blog posts:

Here is a report by Bob Egelko of the San Francisco Chronicle on this morning's ruling. The story begins:

10:31 PDT SAN FRANCISCO -- Gays and lesbians have a constitutional right to marry in California, the state Supreme Court said today in a historic ruling that could be repudiated by the voters in November.

In a 4-3 decision, the justices said the state's ban on same-sex marriage violates the "fundamental constitutional right to form a family relationship." The ruling is likely to flood county courthouses with applications from couples newly eligible to marry when the decision takes effect in 30 days.

More:
The celebration could turn out to be short-lived, however. The court's decision could be overturned in November, when Californians are likely to vote on a state constitutional amendment banning same-sex marriages. Conservative religious organizations have submitted more than 1.1 million signatures on initiative petitions, and officials are working to determine if at least 694,354 of them are valid.

If the measure qualifies for the ballot and voters approve it, it will supersede today's ruling. The initiative does not say whether it would apply retroactively to annul marriages performed before November, an omission that would wind up before the courts.

Family Law Prof Blog highlighted this quote from the opinon, "In the present case, it is readily apparent that extending the designation of
marriage to same-sex couples clearly is more consistent with the probable
legislative intent than withholding that designation from both opposite-sex couples
and same-sex couples in favor of some other, uniform designation. In view of the
lengthy history of the use of the term “marriage” to describe the family
relationship here at issue, and the importance that both the supporters of the 1977
amendment to the marriage statutes and the electors who voted in favor of
Proposition 22 unquestionably attached to the designation of marriage, there can
be no doubt that extending the designation of marriage to same-sex couples, rather
than denying it to all couples, is the equal protection remedy that is most
consistent with our state’s general legislative policy and preference."

Relocation In Michigan And Edmund Fitzgerald Update (updated)

Just as the Kentucky Supreme Court has three relocation related cases pending, Michigan has been struggling with the issue. Here is Jeanne Hannah's post Mom's relocation of 91 miles causes change in custody in Updates In Michicgan Family Law.
Nearly a year ago I wrote about a missed opportunity to meet Jeanne at this post. Marcia Oddi dubbed it the adventure of the Edmund Fitzgerald and I promptly forwarded the haunting score to my hosts, who were not very amused. But, ha! They invited me back and we're planning to cruise up Jeanne's way again this summer. The one lesson I learned, though, is that you really can't plan when traveling by water. So, Jeanne, if I'm nearby I'll give you a call, but no advance dinner plans. :)
UPDATE: Marcia Oddi writes, Actually it is "The Wreck of the Edmund Fitzgerald."
See this excellent video, accompanied by the Gordon Lightfoot vocal.
http://www.youtube.com/watch?v=ZEwEfti7gRk. Thanks!

Simcox v. Simcox (6th Circuit) Hague Abduction, Grave Risk Of Harm

Digest from the 6th Circuit Blog: Simcox v. Simcox, Northern District of Ohio at Cleveland
BOGGS, Chief Judge. Claire Simcox appeals from the decision of the district court ordering her to return to Mexico with two of the four children currently residing with her in Ohio, which return the district court found was required under the Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Because of evidence of serious abuse to both Mrs. Simcox and the children at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” designed to ameliorate the risk of harm to them upon their return to Mexico. Although we agree with much of the district court’s legal analysis of the Hague Convention, its ordered undertakings are problematic on the facts of this case, particularly its command that Mrs. Simcox herself return to Mexico. We therefore REVERSE and REMAND to allow the court to reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.
Jeffery Morley at International Family Law calls this case a highly significant ruling on the grave risk of harm defense to a Hague Convention international child abduction petition.

New KY Family Law Cases

No new published family law cases today from the Kentucky Court of Appeals. Last week there was one, London v. Collins, 2007 –CA-000529-ME, regarding application of KRS Chapter 403 in modification of custody established in a dependency case. Digest to follow soon.

Constitutional Challenge to Paternity Laws Dismissed By 6th Circuit For Failure to State Claim

Dubay v. Wells, decided by the 6th Circuit yesterday, denied a constitutional challenge to paternity laws, dismissing for failure to state a claim. Quotes from the Family Law Prof Blog:

The suit was brought by Father who claimed that he should not be responsible for child support when Mother had represented that she didn't want to have a child and assured him repeatedly she couldn't get pregnant. Father argued that Michigan's paternity laws violated the U.S. Constitution's Equal Protection Clause because a man does not have a similar choice as does a pregnant woman regarding abortion, adoption or raising a child.
The court found that Michigan Paternity Act does not affect any of Father’s fundamental rights because "it is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born." The court further noted that it did not need to apply intermediate scrutiny because the Michigan Paternity Act and other statutes that impose the obligation of support are gender neutral. Finally, the court found that the Michigan Paternity Act withstood rational basis review because "the means that the statute uses to achieve this end–requiring support from the legal parents, and determining legal fatherhood based on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and probably important, government purpose."

Kansas High Court Rules Against Sperm Donor

David Klepper, Topeka correspondent to the Kansas City Star reports on the decision last Friday denying a sperm donor any rights to the child, as there was no written agreement.

In a 4-2 decision, the court held that the state law is justified and clear: if Hendrix wanted a relationship with the children, he should have put it in writing. “Generally speaking, mere ignorance of the law is no excuse for failing to abide by it,” reads the decision, written by Justice Carol Beier.

“He (the donor) can unilaterally refuse to participate unless a written agreement on his terms exists,” Beier wrote. “After donation, the male cannot force the fatherhood issue.”

The story continues

Most states, including Missouri, have laws prohibiting donors from having parental rights over children conceived through artificial insemination. The challenge to the Kansas law was watched by family law attorneys across the country.

Twenty-two family law experts submitted friend of the court briefs. All but one sided with the woman and the state law, saying it was necessary to protect the rights of children and their mothers, as well as the donor, from custody and child support lawsuits.

Linda Henry Elrod, a family law professor at Washburn University who submitted a brief in Hendrix’s favor, said a better state law would require donors to sign a contract waiving their rights as parents.

State Can Be Granted Custody Of Out Of Control Child When Parents Are Fit

Court holds that parents do not have to be found unfit for state to be granted custody of out of control mentally ill child, an interesting post from LawReader re a Washington decision.

FLA: Bio-Dad Loses to Husband In Florida

Lohman v. Carnahan, online, decided September 19, 2007 by the Florida Fourth District Court of Appeal. held where the husband and wife have decided to raise the child of their marriage and to accept all the rights and responsibilities of parenthood, a man who may have contributed his DNA to the child has no statutory or constitutional right to intrude into that private decision.

Maryland Rejects Same Sex Marriage

All 224 pages of Maryland's highest court decision in Conaway v. Deane that there is no fundamental right to marry someone of the same sex, that same sex orientation is not a suspect or quasi-suspect class, that denial of same sex marriage is not a violation of equal protection and that denial of the right to marry someone of the same sex served a legitimate governmental objective can be found here.

Maine Supreme Court Rules Lesbian Couple May Adopt

The Family Law Prof Blog reports:

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child. The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result. "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree." In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA (Maine Supreme Court August 30, 2007)

The opinion is online.

I recently met with Christine Sun, an ACLU staff attorney, about our firm doing some pro bono appellate work and this was one issue we would like to see addressed in Kentucky. Same-sex adoption is legal in Indiana as we reported here, linking to an Indiana Law Blog post.

South Dakota Supreme Court Holds that Child Should Keep Stepfather's Last Name

Family Law Prof Blog directs us to a new twist on the third party bio-dad of a child born during a marriage. What name should the child have? In the Matter of the Change of Name of L.M.G., (South Dakota August 8, 2007) , found here, Prof. Barbara Glesner Fines summarizes the court's ruling:

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father. The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate. The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister. "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority. "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge. The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years. "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote. Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.

More On Whether Same Sex Relationships Terminate Maintenance

New York Divorce Report directs us to posts about recent decisions in Virginia, Oregon and California.

Failure To Plead Prenup Is Failure to Plead Affirmative Defense And Bars Court Consideration Of Agreement

A recent Missouri case holds that a party seeking to enforce a prenup must raise the issues in a pleading. Failure to do so prevents the court from enforcing the prenup. Homan v. Holman, which can be found here.

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances . . . . A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.[(FN3)]

"An affirmative defense is waived if the party raising it does not plead it." In re Estate of Kilbourn, 898 S.W.2d 583, 586 (Mo.App. 1995).

Based on the foregoing, we determine the trial court abused its discretion in permitting Husband to introduce the Agreement at trial because Husband failed to assert the Agreement as an affirmative defense in his pleadings. It has long been held that "[m]atters seeking avoidance of a valid contract are affirmative defenses and must be set out in the pleadings." Id. The terms of the Agreement clearly provide "'additional facts [other than the statutory considerations of section 452.300] that permit [Husband] to avoid the legal responsibility alleged'" by Wife, i.e., that there was marital property to be divided. Smith v. Thomas, 210 S.W.3d 241, 244 (Mo.App. 2006) (quoting Mobley v. Baker, 72 S.W.3d 251, 257-58 (Mo.App. 2002)). A party that fails to raise an affirmative defense in his pleadings, waives that issue at trial. In re Estate of Kilbourn, 898 S.W.2d at 586.

Revocation of Acknowlegment of Paternity - What's a "Mistake of Fact?"

Here is an interesting new Michigan case courtesy of Jeanne Hannah at Updates In Michigan Family Law.

To Be Tax Deductible Alimony Must Terminate On Death Of Recipient

You can read Hinson v. Commissioner, US Tax Court Summary Opinion 2007-92 (June 7, 2007) here. The code is quite clear that to be taxable income/tax deductible, alimony (maintenance) must terminate on the dearth of the payee. The Family Law Prof Blog reports:

The tax court, in a recent summary opinion, provides a good example for our students of the importance of careful drafting in light of the interrelationship between the tax code and state law when determining the tax consequences of divorce. In this case, the divorce decree provided that Husband would pay Wife $1200 a month in “rehabilitative alimony” and an additional $72,000 in “lump-sum alimony”, payable in installments of $600 a month. The decree did not indicate whether this lump sum
award would terminate upon Wife’s death.

Under section 71(b) of the tax code, alimony is not deductible if it does not terminate upon the payee spouse’s death. Because the Florida courts have held that an award of lump-sum alimony survives the death of both the obligor and the obligee, the alimony was not properly deductible.

Grandparent Visitation Practice Pointers

Following the digest of Keenan v Dawson, Michigan Court of Appeals Docket No 265725, decided June 5, 2007, Updates In Michigan Family Law gives some great practice pointers in handling grandparent visitation cases.

Michigan Order Allowing Duped Dad Reimbursement For $55,000 In Child Support Reversed

Michigan is struggling with the same paternity challenges as Kentucky. Updates In Michigan Family Law reports:

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

The Michigan Court of Appeals, in an unpublished decision on June 5, 2007 held that a duped dad who had paid child support since 1999 was not entitled to set aside the judgment of divorce in order to obtain reimbursement for over $50,000 in child support paid between 1999 and the date he filed his motion to terminate child support on January 20, 2005. Because the mother’s fraud was intrinsic fraud, a court rule and also well-established case law precluded the trial court to grant this ex-husband relief from the 1999 judgment. He had only one year to challenge to the judgment that ordered child support. Public policy, the court rule, and case law limit the time for motions to set aside judgments in order to preserve finality of judgments. The ex-husband did not challenge the child support order/judgment until 2005—after the mother asked for parenting time provisions to be enforced and for an increase in child support.

Because the ex-husband could not be given relief from judgment, the trial court was limited by Michigan law from retroactive modification of the child support order. The modification could only be retroactive to the date that he filed his motion regarding child support. As a result, the court of appeals reversed the trial court’s order that the mother had to repay to the father almost $55,000 in child support that he had paid under the judgment.

The mother argued unsuccessfully on appeal that the equitable parent doctrine should have been applied. Citing Van v Zahorik, 460 Mich 320 (1999) and Killingbeck v Killingbeck, 269 Mich App 132 (2005), the court of appeals stated that this doctrine has never been applied outside of the context of marriage. The child in this case was born several years prior to the parties’ marriage.

Here is the opinion.

Birth Certificate Does Not Require Name Of Mother In Md. Surrogacy Case

The 56 page Maryland decision in In Re Roberto d B. rendered last week can be found here. KRISTEN WYATT, Associated Press, Wednesday, May 16, 2007 writes:

A surrogate mother who has no genetic connection to the baby she is carrying
does not have to be listed as the mother on a birth certificate, Maryland's
highest court ruled Wednesday.

The case arose from twins born in the Washington suburbs in 2001. The woman
who carried the twins for a father used an egg donor and had no genetic
relationship to them. Both she and the father did not want her listed as the
mother.

In a 4-3 decision, the Maryland Court of Appeals ruled that the babies are
not required to have a mother listed on birth papers.

"Maryland's breaking ground here," said Dorrance Dickens, a Washington
lawyer who argued the case for the father and the surrogate mother.

Though judges routinely allow blank spaces for mothers on birth certificates
in surrogate cases, Dickens said Maryland's court is the first to use a
state Equal Rights Amendment to make the decision.

More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity' - Indiana

The Indiana Law Blog has an exhaustive post updating us on Indiana law in this area after some excellent hand-picked excerpts from Andrew Wolfson's article in yesterday's Courier-Journal. Check it out.

Same Sex Cohabitation Terminates Maintenance Notwithstanding Gay Marriage Ban

One of the questions we pondered as states passed DOMAs and constitutional amendments banning same-sex marriage was what effect such would have on divorces between heterosexuals. Larry O'Dell,
Associated Press Writer, Richmond, Va. wrote about a recent Virginia Court of Appeals ruling, Stroud v. Stroud in which same-sex cohabitation terminated a contractual obligation to pay maintenance. His story is here. Some excerpts:

University of Richmond law professor Carl Tobias said the appeals court seemed to be treating same-sex couples the same as heterosexual couples--but only in the narrow analysis of contract law, not the broader public policy context.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year's constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

"Today's decision is simply about a contract between two people and has nothing to do with how the Commonwealth of Virginia defines or recognizes marriage," he said.

But David Spratt, former chairman of the Virginia Bar Association's Domestic Relations Section, said the ruling could have more far-reaching consequences depending on how this area of the law evolves.

"The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract," said Spratt, now a legal rhetoric professor at American University, Washington College of Law. "So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

The gay-rights group Equality Virginia, which opposed the so-called "marriage amendment" that was approved by voters in November, had no immediate response to Tuesday's ruling.

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom is the title of an article by Howard J. Bashman published here as a special to Law.com March 5, 2007. Those in the blogosphere know Howard as the author of the excellent blog, How Appealing. I am pleased the article mentioned his private practice, a litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. Here are some excerpts:

Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

In the more recent of the two rulings, the Supreme Court of Ohio late last month rejected a man's challenge to a state law that criminalizes sexual conduct between a stepparent and stepchild even if both are adults and unrelated by blood, and both willingly participate in the conduct. In seeking to challenge the law as unconstitutional as applied to his case, the stepfather argued that Ohio had no legitimate interest in regulating sex between consenting adults.

However, Ohio's highest court disagreed by a vote of 6 to 1. The majority's opinion observed that "Lawrence did not announce a 'fundamental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren." The Ohio justices found that, while the Texas statute in Lawrence was unconstitutional under the so-called "rational basis" test, a rational basis existed for Ohio to prohibit even consensual sex between a stepparent and an unrelated stepchild.

The legitimate interest that the Ohio court recognized was the state's interest in protecting the family unit and family relationships. The Supreme Court of Ohio went on to recognize that if the stepfather and stepdaughter wished to have the ability to engage in sexual relations free from government regulation, they could do so -- if the stepfather divorced the stepdaughter's biological mother.

He had this to say about the 11th U.S. Circuit Court of Appeals decision that resulted from an effort to invalidate an Alabama law prohibiting the commercial distribution of sex toys and the fallout from Lawrence:

The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is indistinguishable from Lawrence -- just as in that case, in this case there is no legitimate state interest, including public morality, that supports the challenged Alabama statute."

But the 11th Circuit disagreed, observing that "while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity."

Thus, the 11th Circuit ruled, "we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute."

For that reason, the court affirmed the Alabama federal district court's most recent ruling in the case and refused to invalidate that state's statute prohibiting the commercial distribution of sex toys.

In the immediate aftermath of Lawrence v. Texas, legitimate questions arose concerning the likely fate of other laws seeking to regulate the sexual conduct of consenting adults. Now, nearly five years later, it appears that the impact of the Lawrence ruling has been far more limited than many had initially hoped -- or feared.

6th Circuit Affirms Dismissal For Lack Of Jurisdiction Under Alien Tort Claims Act

Taveras v. Taveraz, __ F.3d __ (6th Cir. 2007), 2007 WL 494928 (C.A.6 (Ohio)

Issue and Holding:
Whether the district court had subject matter jurisdiction over the parental child abduction action pursuant to the Alien Tort Statute. The Court held no, the district court did not have jurisdiction.

Facts:

Both parties are citizens of the Dominican Republic. During their marriage, two children were born. In 2003 the couple divorced in the Dominican Republic, and Ms. Taveraz was granted full guardianship of the children. In August 2004 Ms. Taveraz took the children under a visitor’s visa to the United States, allegedly for a two week vacation. In September 2004, Ms. Taveraz contacted Mr. Taveras and told him that she was never returning to the Dominican Republic. Mr. Taveras then discovered her and the children were living in Ohio.
Mr. Taveras filed a criminal complaint and a civil action in the Dominican Republic. In July 2005 the Santo Domingo family court ordered the return of Ms. Taveraz and the children to the Dominican Republic to appear for a hearing. However, they never returned.
In September 2005 Mr. Taveras filed an action against Ms. Taveraz in the United States District Court for the Southern District of Ohio alleging parental child abduction pursuant to the Full Faith and Credit Clause of the US Constitution, the Hague Convention of 1980, and the International Child Abduction Remedies Act. Ms. Taveraz moved to dismiss the action for lack of subject matter jurisdiction. Mr. Taveras then amended his complaint to include a cause of action under the Alien Tort Statute (hereinafter ATS). The district court granted the motion to dismiss for lack of subject matter jurisdiction. Mr. Taveras appealed only the district court’s denial of subject matter jurisdiction under ATS.

Analysis:

The United States Supreme Court held in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), that at the time ATS was enacted only three actions were generally recognized as infractions of the law of nations: piracy, offenses against ambassadors, and violations of safe conducts. The Court also held that other causes of action based upon present day law of nations may be cognizable under the ATS if the claim both “rest[s] on a norm of international character accepted by the civilized world and [is] defined with a specificity comparable to the features of the [aforementioned] 18th-century paradigms[.]” Id. at 725.
In the instant case, the Court rejected Mr. Taveras’ argument that Ms. Taveraz’s actions violated the terms for safe conducts under the law of nations. The Court noted that the purpose of the doctrine of safe conducts was to protect the safety and property of the journeying alien bearing the safe conduct privilege. Therefore, there was no violation of the terms for safe conducts under the law of nations, since there was no infraction of the safe passages of Ms. Taveraz or the children to, within, or out of the United States and there was no injury to their person or property. The Court also found, even assuming Ms. Taveraz’s entry into the United States constituted a violation of the law of nations, that there was an insufficient nexus between this violation and the alleged tort committed against Mr. Taveras. Mr. Taveras’ reliance on Adra v. Clift, 195 F.Supp. 857 (D.Md. 1961) was misplaced.
The Court also rejected Mr. Taveras’ argument that an international consensus against parental child abduction is established through the Hague Convention of 1980, the Hague Convention of 1996, and the United Nations Convention on the Rights of the Child. The Court found that Mr. Taveras failed to produce sufficient evidence that there is an international consensus that the sort of parental child abduction alleged in the complaint is a wrong so generally and universally recognized that it becomes a violation of the law of nations pursuant to ATS.
Finally, the Court held that the district court did not have federal question jurisdiction over the complaint either.
Accordingly, the Court affirmed the lower court’s dismissal of the action for lack of subject matter jurisdiction.

Paternity Test: Florida 'Father' May Cite Law To Cry Fraud

Parker v. Parker, from the Supreme Court of Florida was decided February 1, 2007. The parties married in 1996, the child was born in 1998, a 2001 divorce decree incorporated an agreement for child support and the husband did not have a paternity test until 2003. The wife's misrepresentation of paternity was held to be intrinsic fraud and therefore a husband must seek relief from a judgment within one year.

We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present. . . . The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
[Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003)] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol’y 269, 275 (2001)).

The Miami Herald reported the story yesterday, Paternity test: 'Father' may cite law to cry fraud.

In delving into the often-vicious world of divorce and paternity cases, the high court failed to discuss Florida's ''paternity fraud'' law that the Legislature passed last year, when male lawmakers inveighed against deceptive women, and female legislators fretted about callous men abandoning children.

The new law gives men the right to avoid child-support payments if they gain ''newly discovered evidence'' that the child isn't theirs. The law requires the man to file a court petition 90 days after getting the paternity test.

Whether it will apply to Parker's long-standing case or other old paternity cases in the courts is unclear, said his Miami lawyer, Scott A. Lazar, who is considering filing a challenge under the new law. Lazar said he's sure the law will help blunt what would be a bad result from Thursday's court ruling.

''If there was not this new law, the effect of this decision would make paternity an issue in every divorce case,'' Lazar said. ``The advice you would have to give your client is to get a paternity test now, otherwise, he couldn't do anything after a year if the child isn't his.''

Query: If the new statute wasn't argued on appeal, how does this obligor expect relief in his case?

Thanks to Howard Basham at How Appealing for posting the link to the case and to Marcia Oddi at Indiana Law Blog for letting me know it was available online. Stan Billingsly at LawReader also reports on the recent unpublished opinions that address the issue in Kentucky from an equitable estoppel argument. However, now that we have the Kentucky Supreme Court decision in Denzek (see post here and digest here) damages for fraud can be obtained very late in a child's life in Kentucky.

Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents

We have been reading the news (New York Times, USA Today) of the Memphis child who will be returned in days to her biological parents, after being raised by another family for seven years. I have been waiting to see the Tennessee opinion, which is now online. I am glad I waited for the opinion before posting the news, because I was glad to learn there will be a reunification plan rather than a disastrous delivery of the child. The Family Law Prof Blog digests the case:

The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, ...the trial court erred in finding a willful failure to visit..... we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody. Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody." The Court remanded for determination of a reunification plan.

Appeals: Bifurcated Issues

The Family Law Prof Blog posts Case Law Development: Bifurcating Judgment Precludes Appeal:

A recent inquiry from a reader asked whether bifurcated judgments in divorce actions may be separately appealed. Here is at least one court's answer...
Rather than simply enter temporary orders, a divorce court will sometimes bifurcate a divorce judgment, granting divorce or child custody for example, and reserving judgment of financial issues pending more factual development or hearings. However, the Illinois court has held that such a bifurcated judgment is not final for purposes of appeal. In this case, the trial judge entered a judgment of dissolution, divided the marital property, granted sole custody of the children to petitioner, set child support of $1,306.95 a month, and barred respondent from receiving maintenance. However, it "reserved" the issues of visitation, the children's post-high-school educational expenses, and petitioner's maintenance. Raising the issue sua sponte, the Illinois Court of Appeals held that "The reservation of issues here deprives us of jurisdiction over this appeal." -- No bifurcating appeals.
Mardjetko v. Mardjetko, 2007 Ill. App. Lexis 3 (January 5, 2007)
Opinion on the web (last visited January 15, 2007 bgf)

I had asked Professor Barbara Glesner Fines, Ruby M. Hulen Professor of Law, University of Missouri Kansas City to keep a "heads up" for cases that may give insight on whether issues may be bifurcated on a motion for discretionary review, so that some issues could be remanded to the trial court for a new trial while others go up on issues of law to a state's highest court. I very much appreciate her keeping this on her radar.

Ex-Spouse Remains Insurance Beneficiary Despite Law Change If Policy Issued Before Bill Took Effect

(Jan. 3, 2007) In a unanimous decision announced today, the Supreme Court of Ohio held that, regardless of the date on which a married couple was divorced, 1990 legislation that ‘automatically' terminates all life insurance beneficiary designations in favor of a former spouse at the time of a divorce does not apply to insurance contracts that were in effect prior to the effective date of that legislation.

Section 1339.63 of the Ohio Revised Code, which took effect on May 31, 1990, provides that upon the termination of a marriage by divorce, dissolution, or annulment, all life insurance beneficiary designations in favor of a former spouse are automatically terminated unless the divorce decree specifically provides otherwise. In today's decision, Justice Evelyn Lundberg Stratton affirmed lower court rulings that R.C. 1339.63 does not affect insurance contracts that were in effect prior to May 31, 1990, because retroactive application of the statute to pre-existing policies would violate the Contracts Clause of the Ohio Constitution.

In re Estate of Holycross
This summary was prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. The court site cautions that opinion summaries are not to be considered as official headnotes or syllabi of Court opinions.
The joys of courts sending out decisons via RSS feeds, and a digest, no less!

Improper Factors in Calculating Maintenance

From The Family law Prof Blog: "The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years." (See Family Law Prof Blog post of February 10, 2006) "The court of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house."
"The court concludes that 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage."
My tech learning curve stopped at posting .pdf docs. so here's the not so pretty link to the opinion:http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR280/280cr8.pdf. Maybe early next year I can find a little time with a fire blazing in the fireplace to putter with the tech stuff, much like earlier this year when I gave this site a soft launch.

Uniform State Laws Research Tip

The National Conference of Commissioners on Uniform State Laws has a valuable website for legal research, www.nccusl.org, to which all the uniform acts are posted, as is the legislative history of each of the acts by state, and all the comments to the uniform acts. I learned of this on the ABA Family Law Section listserve, where the discussion concerned whether one state, when modifying child support, could extend the support beyond the age of majority of the original state issuing the first order. The child support "Goddess", Laura Morgan, who knows everything there is to know about child support, informed us that all you have to do is pull up the comments to UIFSA at and search for the word "successive," and you will find that the answer is quite clearly no. The legislature declares the public policy by enacting a uniform law, and the courts may not declare a contrary public policy, so the erstwhile decisions in New Jersey and New York are off base. Now you know how to find the comments to the Uniform Laws.
And, speaking of Uniform Laws, I had heard The Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act was approved by the NCCUSL. I am please to now post the link to it.

Same-Sex Custody Jurisdiction

In an important decision last week, Janet Miller-Jenkins v. Lisa Miller-Jenkins, the Virginia Court of Appeals held that Virginia must give full faith and credit under the federal Parental Kidnapping Prevention Act to a custody determination made by a Vermont court growing out of a Vermont civil union. The opinion determined that DOMA did not create an exception to the PKPA and that both statutes must be given effect.

Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments

The Family Law Prof Blog digests Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006). "The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments. The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered."

No Duty to Disclose Pending Sales Discussions of Property in Divorce Settlement

Oh, dear; this cannot be good public policy. Divorce courts should be requiring no-holds-barred open disclosure. This decision will create or perpetuate a culture of trickery in litigation.
It is beyond comprehension that the sale of business for $225 million could take place in one month. When the seller signed this divorce agreement he had to have known there was a buyer in the wings or a contract pending. Those of us doing divorce work for many years would probably be willing to bet our homes that the deal was really done long before, but pen not put to paper until the divorce was a done deal. How often is the non-owner supposed to do discovery? Must we negotiate a deal, then take a final round of depositions? Sorry to report two poor decisions in the same week.
Here's the entire digest of Kojovic v. Goldman, NY App. Div. October 19, 2006.from the Family Law Prof Blog:
"The New York Court of Appeals dismissed an action to set aside a divorce settlement in a high-dollar divorce between Actress Lora Kojovic and her husband Neal Goldman, who owned a minority share of an Internet information service Capital IQ. Wife signed a divorce settlement agreement in August 2004 that gave her nearly $1.5 million. However, about one month later, Standard & Poor's purchased her husband's company for $225 million, with his share being $18 million. Wife then brought an action to set aside the settlement agreement on the basis of fraud and unconscionability.
Wife argued that husband affirmatively misrepresented the liquidity of the company and the talks that were underway for purchase of the company. However, the court disagreed, finding that husband had disclosed the assets and that it was up to wife to inquire further. However, wife, who had been represented by counsel in negotiating the agreement, had acknowledged that she had the right to inquire

The Relationship of Biology to Legal Fatherhood

The Relationship of Biology to Legal Fatherhood: Two New Cases Show Courts Struggling to Find a Coherent Approach, As Non-Biological Fathers Fight for Their Rights to Children
Decided the same week as the Kentucky Court Appeals case of Hinshaw v. Hinsaw was a Tennessee decision, In Re: T.K.Y., which held for the bio-dad rather than the husband. Joanna Grossman, professor of law at Hofstra University digests both cases and points out a big factual difference: the bio-dad in Tennessee wanted to be named the legal father, while in Hinshaw the alleged bio-dad never stepped up to the plate. The Hinshaw case is not final; a motion for discretionary review by the Kentucky Supreme Court is pending.

Expected Inheritance: Divorce Relevancy

An Alaska case last month is causing quite a stir.
Krize v. Krize, Alaska Supreme Court, September 29, 2006
"Where the beneficiary remains on generally good terms with the donor, and particularly where the donor is a parent or other close family member, it is a rare case where the expected gift or inheritance will completely fail to yield any benefits at all. The better position, therefore is that the court may consider an expected gift or inheritance as one relevant factor in dividing the marital estate. Of course, the weight of a future gift or inheritance as a division factor should depend heavily upon the degree of likelihood that benefits will actually be received...
We therefore conclude that it is not inherently improper for a court to consider the possibility of inheritance in some cases. Because property divisions cannot be reopened, however, courts must be cautious in using this factor. On remand, the court should permit further discovery on this issue and on the extent to which Robert's interests have vested. Interests that have already vested may be considered as an asset of the beneficiary when the superior court divides the property."

Stopping Vexatious Litigation After Divorce

An attorney spouse brought multiple lawsuits against his ex-wife, her family, as well as several lawyers and judges. Finally, in Davey v. Dolan, 2006 U.S. Dist. LEXIS 68960 (September 26, 2006), digested by the Family Law Prof Blog, " the US District Court for the Southern District of New York not only dismissed all the claims for failure to state a claim or on the basis of res judicata, but also sanctioned the attorney. Under the court's inherent authority and the authority of 28 U.S.C. § 1927, the Court ordered husband to pay the reasonable costs, expenses, and attorneys' fees incurred by the defendants in responding to the action and permanently enjoined him from "(1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court's opinion and order of injunction to his first filings."
That federal statute provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.
Civil Rule 11 would have supported the same fee shifting result, and in most states is not limited to attorneys. I would love to see the legal analysis of the injunctive relief. If anyone has access to the opinion or briefs, please pass them on and I will do an update.

Void As To Public Policy: Child Support Not Dependant On Child's Placement and Waiver Of Arrearages

A Wisconsin decision in Motte v. Motte, 2006 Wisc. App. LEXIS 880 (September 27, 2006) held agreements waiving child support arrearages or estopping parents from asking for modification if children change residence are void as against public policy. The Family Law Prof Blog digests the opinion.

Race Can Be A Factor, But Not The Only Factor In Child Custody Decision

The Family Law Prof Blog points out "that the debate over how and if race should be considered in custody actions is not settled. A recent Illinois Appeals Court decision affirmed a trial judge's decision to grant sole custody of a 2-year-old bi-racial child to her African-American mother rather than her Caucasian father. The bitter custody battle included 15 days of trial, 128 exhibits and 15 witnesses (including four experts, the admissibility of whose testimony was a central issue in the appeal). The trial judge found both parents equally fit to care for the child but favored mother in part because "the mother was able to provide the child with the support she would need in a world that was potentially hostile to biracial individuals." The court considered the effect of Palmore v. Sidoti, 466 U.S. 429 (1984) and concluded that, while race cannot be the sole factor in a custody determination, "Volumes of cases from other jurisdictions have interpreted Palmore as not prohibiting the consideration of race in matters of child custody." A strongly worded dissent argued that "Despite this court's weak protest to the contrary, the remarks in the trial court's letter of opinion show that the court's decision for custody improperly hinged on the sole factor of race: that only an African-American person can properly raise a biracial child in this society."
In re Gambla, 2006 Ill. App. LEXIS 667 (July 31, 2006)
I am suprised that this area of law is apparently not settled. I am also suprised that the Illinois trial courts have 15 days of trial time to devote to any one family.

Civil Union Partners' Custody Dispute To Be Decided in VT per PKPA and UCCJA; DOMA Does Not Trump

The Vermont Supreme Court decided a jurisdictional custody dispute between partners to a Vermont civil union, which revolved around the Parental Kidnapping Protection Act and the Uniform Child Custody Jurisdiction Act. The court rejected the argument that the federal Defense of Marriage Act might supersede either of those laws. Boston.com reports "The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's anti-gay marriage laws controlled the case. Vermont Justice John Dooley wrote, though, that it's Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that means Vermont family law governs their 2003 separation and subsequent child custody disagreement. A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court."
UPDATE:
Law - Washington Post editorial provides clarity on Vermont-Virginia dispute is the headline from the Indiana Law Blog."A Washington Post editorial today cuts to the essence of the Vermont-Virginia visitation dispute. A paragraph: As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts."The Indiana Law Blog also links to the August 5th NY Times report, written by Adam Liptak, on the Vermont Supreme Court ruling, and to the blog, How Appealing, whioh links to the Vermont Supreme Court ruling.

Increase in Child Support

"The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up, or they could face sizable retroactive child support bills, " reports the Family Law Prof Blog. "The Supreme Court stopped short of ordering a duty to disclose salary increases automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike."
Not only is an increase in child support not retroactive in Kentucky before a motion to modify is made, but an obligee is not even entitled to discovery of an increase in income until a motion is made.Combs v. Daugherty and Jennifer Combs, Real Party in Interest,
170 SW3d 424 (Ky.App., 2005), as digested here.

Family Courts are Courts of Equity as well as of Law

Practitioners need to be reminded occasionally that Family Courts are courts of equity as well as of law, as The South Carolina Family Law Blog reports the case of Buckley v. Shealy.