North Texas Family Law Blog

Visitation and the Six O'Clock Hour

jverner@vernerbrumley.com (Jimmy Verner) — Mon, 08 Jun 2009 09:00:36 -0600

The 81st Texas Legislature has adjourned, having passed two major family law bills. The bills are Senate Bill 866 and House Bill 1012. They make many changes to Texas family law. This post is the first of several to examine these bills' effects.

Changes to the Standard Possession Order

Beginning with section 6, House Bill 1012 implements changes to the Standard Possession Order. An important change is setting out a default time for possession exchanges of 6:00 p.m.

In the past, for example, a possessory conservator could elect that weekend possession begin at the time a child's school is regularly dismissed. Tex. Fam. Code § 153.312(a)(1) (2007). Other parts of the Family Code, although allowing for possession, did not specify a time. E.g., Tex. Fam. Code § 153.312(b)(2)(A) (2007) (summer possession upon written notice). Now all these periods begin or end at a default time of 6:00 p.m.

How is the default avoided? A conservator must request the court to impose alternative beginning and ending possession times per amended Tex. Fam. Code § 153.317 (effective September 1, 2009) (reprinted in full below). Upon request, the court must alter the standard possession order - unless the court finds that alteration would not be in the child's best interest - to allow possession to begin or end when school lets out or resumes for the following periods of possession:

Weekends
Thursdays
Spring break
Christmas school vacation
Thanksgiving
Mother's Day

Father's Day is the third Sunday in June. School is not in session then, but Father's Day possession can be extended to 8:00 a.m. on the Monday after Father's Day.

Specifying 6:00 p.m. as the exchange time is helpful to parents, lawyers and the courts because now there will be a default time for changes of possession. But if a conservator had the right to elect the alternative provisions before, why did the legislature change those parts of the Family Code? Apparently, the purpose is to allow the court more control over when possession occurs, even though a court already has extensive power over possession.

There is a subtle mismatch between the House Committee Report on House Bill 1012 and the text of new section 153.317. According to the House Committee Report, if a conservator elects the alternative possession beginning and ending times, "and the court finds the election is in the best interest of the child, then the court must change the start and end times to [the] specified, alternative times stated in the statute." (emphasis added). But the statute reads that the court must change the start and end times, upon a conservator's request, "unless the court finds that the election is not in the best interest of the child." (emphasis added).

Which conservator bears the burden of proof? Is the burden to show that alternative times are in the child's best interest or are not in the child's best interest?

New Texas Family Code § 153.317 (effective September 1, 2009)

ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES

(a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:

(A) beginning at the time the child's school is regularly dismissed; or

(B) ending at the time the child's school resumes after the weekend;

(2) for Thursday periods of possession under Section 153.312(a)(2):

(A) beginning at the time the child's school is regularly dismissed; or

(B) ending at the time the child's school resumes on Friday;

(3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the time the child's school is dismissed
for those vacations;

(4) for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child's school is dismissed for the vacation;

(5) for Thanksgiving holiday periods of possession under Section 153.314(3), beginning at the time the child's school is dismissed for the holiday;

(6) for Father's Day periods of possession under Section 153.314(5), ending at 8 a.m. on the Monday after Father's Day weekend;

(7) for Mother's Day periods of possession under Section 153.314(6):

(A) beginning at the time the child's school is regularly dismissed on the Friday preceding Mother's Day; or

(B) ending at the time the child's school resumes after Mother's Day; or

(8) for weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child's school is regularly dismissed on Thursday.

(b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:

(1) in a written document filed with the court; or

(2) through an oral statement made in open court on the record.

Preparing for Divorce

jverner@vernerbrumley.com (Jimmy Verner) — Sun, 31 May 2009 17:38:50 -0600

There are many things one should do to prepare for divorce. Vancouver's MacLean Family Law Group has prepared a checklist. Although not every item will apply in every case, it is the most complete checklist we've seen. Here it is:

MAIL: Review all mail coming into your house and make a list of the sender and return address. It is very important to know the address of stockbrokers, insurance companies, credit issuers, banks, and revenue properties, COPY THESE DOCUMENTS.
PERSONAL MATTERS: Have your mail sent to an address other than the Matrimonial Home for your privacy and to ensure that you receive it. For example, a post office box or home of a close friend or relative. File a change of address notice with the post office.
FAMILY FINANCES: Review all monthly bank statements and brokerage statements, credit card statements, property assessments, and COPY THESE DOCUMENTS. Give copies of necessary documents to your lawyer for safekeeping.
TAX RETURN: Review all tax returns that have been filed by you and your spouse. Demand an explanation as to any item, which may be questionable before signing. Make complete copies of tax returns for the last several years.
TAXES OWED: Be certain that all taxes owed to the Federal Government or other taxing agencies are paid to date. IF NOT COPY NOTICES OF ASSESSMENT.
SAFE DEPOSIT BOX: Inventory and review the contents of any safe deposit box. List the contents including cash and jewelry. Be sure that all safe deposit boxes are in joint names. TAKE PHOTOGRAPHS AND COPIES OF THE CONTENTS.
BUSINESS INTERESTS: Be familiar with your spouse's business interests. Become involved and be aware of financial information regarding the business by getting full information on the business, including bank documents, loan applications, corporate tax returns and financial statements.
MATRIMONIAL ASSETS: Do not transfer, sign, or make a gift of marital assets in joint names. Credit cards in joint names may discourage large personal purchases by one party. Conversely, you may wish to cancel credit cards to prevent large purchases by your spouse without your permission.
PENSION PLANS: Obtain copies of your pension plan and your spouse's also with any yearly statements and determine when they vest and benefits become payable, ask for the plan booklets and latest contribution statements. These documents will be useful if you file for divorce in BC.
WILLS AND TRUSTS: Obtain copies of any wills or trust agreements and be involved in any estate planning.
LOANS: Review and make copies of all loan documents, mortgage applications, and financial statements.
SIGNATURE: Do not sign any financial statements if blank. Know what you are signing and always keep a copy.
MEDICAL: Have a complete medial and dental check up. Be sure that you have medical and dental insurance (if available) in the event of separation.
CANADA PENSION PLAN: Obtain Canada Pension Plan statements.
SAVINGS AND PERSONAL FINANCES: Separation generally causes immediate economic hardship. Put away cash or keep money in traveler's checks in order to be able to purchase personal necessities in the event of a divorce.
AUTOMOBILE: Be sure that your automobile is in good working condition and that it is titled jointly or in your sole name.
INSURANCE: Review and make copies of all insurance policies relating to the matrimonial residence furnishings, or other assets. This should include any jewelry, silverware, or other valuable. Make copies of any appraisal that have been prepared. These documents will be useful if you file for divorce in BC.
INDEBTEDNESS: Do not create any additional debts and make no large purchases such as a new boat or car. Keep your assets as liquid as possible.
LIABILITY: Prepare a complete list of all debts or obligations including credit cards, notes, mortgages, etc. Identify each debts, when it was incurred and the reason for the debt. Identify who has been making payments on them, as well as the monthly or annual amounts.
ASSETS: Prepare a complete list of all assets in your name and your spouse's. These documents will be useful if you ever file for divorce in BC. Include whether the assets are held individually or jointly and the source of the assets, whether inherited, gifted, or in the name of a third party on your behalf. It is important to determine whether the assets were acquired prior to or during the marriage. Make copies of any documents which show the details and values of all assets and debts.
INHERITANCES: Keep all inheritances separate from the marital estate. Do not put an inheritance into joint names and do not use proceeds to pay for family expenses or purchases or to pay down debts.
EMPLOYMENT: Do not quit work if you are employed. It is important to secure your future financial independence and earn enough to maintain assets such as your home and car.
RESIDENCE: DO NOT MOVE OUT of the family residence without first discussing it with your lawyer.

Military Retirement Pay Does Not Include Disability Pay

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 01 May 2009 13:52:09 -0600

This blog entry might be subtitled, "Ah, but what a difference a few words makes!"

Here's the background: When a service member retires, he or she is entitled to receive military retirement pay, either voluntary retirement benefits or disability retirement benefits. If the service member becomes divorced, his or her spouse might well be awarded a part of the military spouse's retirement pay (if, as and when received) as part of the division of the community estate.

If a service member is disabled, or becomes disabled, he or she may elect to receive Veteran's Administration disability benefits instead of military disability retirement benefits. Veteran's Administration disability benefits are considered personal to the service member and cannot be divided upon divorce because they are not part of the community estate.

What sometimes happens is that a retired, disabled service member will opt to waive all or part of his military retirement pay for Veteran's Administration disability benefits. To the extent that the former service member receives Veteran's Administration disability benefits in lieu of military retirement pay, his or her military retirement pay is reduced. As a result, the amount of military retirement pay the former spouse then receives decreases because there is less of it to split.

Nearly twenty years ago, in Berry v. Berry, 786 S.W.2d 672 (Tex. 1990) (per curiam), the Texas Supreme Court ruled on a case in which this situation occurred. In that case, the former spouse was to receive a percentage of her ex-husband's "gross Air Force disability retirement pay" which was to be "computed on the gross amount thereof before any deductions." The retiree elected to receive Veteran's Administration disability benefits; his military retirement pay was reduced accordingly. The Court upheld the former wife's attempt to require the former husband to continue paying her a portion of the former husband's retirement pay based on the amount of his retirement pay before the reduction caused by accepting Veteran's Administration disability benefits because that reduction amounted to a "deduction" from the retirement pay. Thus, because of the way the divorce decree had been drafted, the former wife continued to receive her full share of the former husband's military retirement pay.

On May 1, 2009, the Texas Supreme Court ruled on another case of this nature, Hagen v. Hagen, in which the divorce decree granted the non-military spouse a portion of "all Army Retirement Pay or Military Retirement Pay" that the service member might receive. The decree did not mention Veteran's Administration disability benefits or contemplate that the former husband's military retirement pay would be reduced if the husband became disabled and opted to receive Veteran's Administration disability benefits in lieu of military retirement pay. Accordingly, the Court upheld the reduction in payments to the ex-wife caused by the ex-husband's decision to accept Veteran's Administration disability benefits.

Had the decree in Hagen read like the one in Berry, the result in Hagen would have been the same as in Berry. But those crucial few words were missing, so the result was different.

Premarital Agreement Signed "Involuntarily"

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 17 Apr 2009 12:08:12 -0600

In Martin v. Martin, the Dallas Court of Appeals ruled that a trial court had erred by granting summary judgment that a marital property agreement was valid. The wife admitted she had signed the agreement, but she said she had signed involuntarily. The court remanded the case to the trial court for further proceedings.

One of the defenses to the validity of a marital property agreement is that "the party did not sign the agreement voluntarily." Tex. Fam. Code § 4.105. An action is taken "voluntarily" when it "is taken intentionally or by the free exercise of one's will," said the court.

This case is notable because of the facts it relied upon to conclude that the wife had signed the agreement involuntarily. In short, the husband told the wife that the agreement was necessary "to protect the family's assets from possible financial ruin in the event of litigation against the business" and that he had no intention of divorcing her.

The wife's attorney advised her not to sign the agreement. The husband

constantly threatened that the family would be financially ruined and would have nothing if [the wife] did not sign the agreement. When [the wife] tried to discuss her attorney's concerns with [the husband], he became outraged and called [wife's attorney] “incapable,” “unqualified,” and insisted that [the wife] ignore [the attorney's] advice. [The wife] said that she had no choice but to sign the agreement because her sole concern was the welfare of the family.

Some years later, the husband filed for divorce. On these facts (as fleshed out in the court's opinion), the Dallas Court of Appeals concluded there was some evidence that the wife signed the agreement involuntarily.

This case appears inconsistent with cases such as Sheshunoff v. Sheshunoff, in which the Austin Court of Appeals held that a husband had voluntarily signed a marital property agreement even though his wife threatened to withdraw her guarantee of his bank loan, which would ruin the husband's business by causing the bank to call its line of credit, if the husband refused to sign; and Nesmith v. Berger, in which the same court upheld a marital property agreement where a husband refused to go on the couple's honeymoon unless the wife signed the agreement. The Dallas Court cited, but did not distinguish, Sheshunoff; the court neither cited nor distinguished Nesmith.

A Primer on Contempt of Court

jverner@vernerbrumley.com (Jimmy Verner) — Mon, 13 Apr 2009 13:23:28 -0600

Justice Rose Vela of the Corpus Christi Court of Appeals has authored a Memorandum Opinion in which she thoroughly and lucidly discusses contempt of court. The opinion is linked below, but here are some of the statements of law it contains:

A judgment of contempt may be either civil or criminal.
The purpose of civil contempt is remedial and coercive. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey an order of the court when obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor "carries the keys of (the) prison in (his) own pocket." When a relator has committed civil contempt, he may procure his release by complying with the provisions of the court's order.
Criminal contempt, by contrast, is punitive in nature in that the sentence is not conditioned upon a promise of future performance; rather, the contemnor is being punished for a completed act that affronted the dignity and authority of the court.
Texas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability, but refuses, to perform the conditions for release. Stated otherwise, a person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Similarly, the involuntary inability to comply with an order is a valid defense to criminal contempt.
The relator bears the burden of proving his inability to comply. We do not weigh the evidence, but determine only if there is no evidence to legitimize the relator's confinement. Thus, the issue in habeas corpus review is whether the relator has conclusively established his inability to comply.

In this case, the relator (the person held in contempt) was imprisoned for failure to pay child support. To avoid a finding of contempt, a child support obligor who fails to pay must prove that he or she:

(1) lacked the ability to provide support in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the funds needed; and

(4) knew of no source from which the money could have been borrowed or legally obtained.

Tex. Fam. Code Ann. § 157.008(c). All four elements must be proved.

Because the relator did not prove these elements in the trial court, the Corpus Christi Court of Appeals denied his petition for writ of habeas corpus and left undisturbed his 180-day jail sentence. Ex parte Coronado, No. 13-09-00149-CV (Tex. App. - Corpus Christi Apr. 9, 2009).

The Quirky Language of Child Support Laws

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 10 Apr 2009 12:48:03 -0600

Often, after divorce, a former spouse moves the court to increase or to decrease child support. When this occurs, Texas Family Code section 156.401(b) states that when the court ultimately makes a ruling on the modification, the modification can be made to take effect as of the date citation was served in the motion to modify or the date the opposing party appeared in that suit. In other words, the increased or decreased amount of child support can be made payable as of a date in the past.

In In the Interest of R.C.T., the Texas Attorney General moved a trial court to increase the amount of child support a former husband must pay. In September 2006, the trial court ordered that as of April 2005, the former husband's child support should be increased to $1,340 from $828 per month. The trial court calculated that the amount of retroactively unpaid child support from April 2005 to September 2006 equaled $9,024. The trial court ordered the former husband to pay this $9,024 at the rate of $150 per month on top of the new child support amount of $1,340 monthly.

The Attorney General then filed a child support lien for the $9,024 in unpaid child support.* The Attorney General also requested the Treasury Department to withhold the former husband's anticipated federal income tax refund of $3,839 and pay it in partial satisfaction of the $9,024.

The former husband appealed. He argued that (1) the child support lien could not issue because the $9,024 was not "due and owing" as required under the child support lien statute; and (2) his federal income tax refund could not be intercepted because the $9,024 was not "past-due support" under federal law. Both positions were based upon the trial court's order that the $9,024 would be paid at $150 per month.

Houston's Fourteenth Court of Appeals ruled against the former husband on the first issue but for him on the second one. The court reasoned that the $9,024 was "due" because "it is an amount that is presently enforceable." The $9,024 was "owing" because, in fact, the former husband did owe the money. Thus, the child support lien could issue.

On the second issue, the Fourteenth Court of Appeals held that "past-due support" under federal law means that child-support payments are "delinquent." The court followed the lead of a Pennsylvania decision which held that "the federal intercept program does not encompass situations where a parent has continually complied with his child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive effect of an order of support." Therefore, the Attorney General could not intercept the former husband's federal income tax refund and apply it to the $9,024.

_________________________

* Why, one might ask, would the Attorney General take this action when the trial court had ordered this $9,024 paid at $150 per month? This is a subject for another post, but suffice it to say that the Attorney General's Office has taken an wide-ranging view of its powers to collect child support.

An Unusual Case of Splitting Custody of Siblings

jverner@vernerbrumley.com (Jimmy Verner) — Mon, 06 Apr 2009 15:17:45 -0600

When parents are divorced, almost invariably the children stay together if there is more than one minor child. In other words, if one parent has custody of one of the children, that parent almost always has custody of all the children. As the Third Court of Appeals wrote in Stoufflet v. Stoufflet, "There is a long line of jurisprudence in Texas that supports keeping siblings together in the same household absent clear and compelling reasons for separating the children." But once in a while, a court will separate siblings.

Stoufflet is one of those cases. The facts of the case are awful. There were three children, a daughter age 15 and two sons, age 12 and 9, as of the date of the court of appeals' decision. The mother said she left the father after she discovered the youngest child viewing sadomasochistic pornography on a laptop the father gave the child. The mother said she found both sadomasochistic pornography, as well as pornography involving bestiality, on the family desktop computer. The father admitted he viewed sadomasochistic pornography but denied viewing pornographic bestiality. He said he had attempted, but failed, to erase the images from the computer memories.

During the weeks and months following the separation, the mother claimed that the children began to recover memories of abuse by the father. This abuse was said to include choking, pushing, hitting and kicking the children; sexually abusing the two boys; physically and sexually abusing family pets in front of the children; drugging and sexually abusing the mother while she was unconscious; and torturing and killing two young boys in front of two older children and their paternal grandmother. The father denied all allegations of abuse.

Although the testimony at trial was conflicting, much of it concerned the mother's state of mind. The court of appeals observed:

The trial court heard evidence that all three children were harmed by their mother's paranoid delusions and by her practice of speaking ill of the father in front of the children. . . . The trial court also heard testimony from [the youngest child's] therapist that [the youngest child] needed to be immediately removed from the continuing allegations that permeated his mother's home.

The court of appeals affirmed the trial court's decision that the father should have custody of the youngest child and the mother custody of the older two children:

Based on the evidence before it, the trial court could have reasonably concluded that [the youngest child] would face future emotional danger if he continued to live with his mother and siblings whereas [the older children] would face future emotional danger if they were removed from their mother's care, and that the only way to serve the best interests of all three children was to separate them. Therefore, we conclude that the trial court could have found clear and compelling reasons to separate the children and we overrule [the mother's] first point of error.

One hopes these children will recover from this ordeal.

Fraudulent Transfer of Sole Management Property

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 31 Mar 2009 10:15:14 -0600

This is a case of an interesting idea that didn't work. The community estate owned all the shares in the husband's machine shop. When the wife filed for divorce, the husband transferred 49% of the stock to an employee. The parties entered into a mediated settlement agreement that reserved for trial the issue whether the stock transfer had been fraudulent.

Texas community property law is clear that all property acquired during marriage is community property. Absent exceptions not applicable here, this is true even when the property is titled in the name of only one of the spouses. In this case, the husband held title to all the stock.

At trial - which the Eastland Court of Appeals described as "basically a swearing match between [the husband] and [the employee] on the one hand and [the wife] on the other" - the husband and the employee claimed that the husband transferred the stock to the employee so that the employee would not quit. No money changed hands. The wife agreed that there had been some discussion about giving the employee some of the stock but not 49% of it. The trial court found that the stock transfer was "grossly unfair to the community estate."

The interesting idea? Texas Family Code § 3.102 explains that "each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single." To paraphrase Texas Family Code § 3.104, a third person who purchases sole management community property from the sole-management spouse takes the property as against the other spouse unless there is fraud involved. The husband argued to the court that section 3.104 authorized him to transfer the stock without the wife's consent.

The court would have none of the husband's argument: "We do not agree that Section 3.104 authorized him to act without [the wife's] consent. As a director, [the wife] was entitled to participate in a decision of this magnitude affecting [the company]. She was entitled to be consulted before [the husband] conveyed almost one-half of their principal company for no consideration."

At the end of its opinion, the court remarked: "This divorce needs to be concluded." Wright v. Wright, No. 11-07-00169-CV (Tex. App. - Eastland Mar. 26, 2009).

Collaborative Law Basic Training - Spring 2009

jverner@vernerbrumley.com (Jimmy Verner) — Sat, 28 Mar 2009 19:37:45 -0600

(Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost: $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer: Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+ years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com

Neither Personal nor Subject Matter Jurisdiction

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 27 Mar 2009 12:40:15 -0600

The San Antonio Court of Appeals affirmed a trial court's dismissal of all claims in a divorce case except for the granting of the divorce itself. The trial court did not consider conservatorship, possession and access, child support or property division. The trial court stated that it lacked subject-matter jurisdiction over these claims because the wife and child lived in Italy and the parties' property was "not located within the court's jurisdiction."

The court of appeals affirmed the trial court's ruling. But the court of appeals discussed the case in terms of personal and subject-matter jurisdiction when it really was discussing "status" jurisdiction. What is status jurisdiction? A state always has jurisdiction to determine the marital status of its residents, even when a resident's spouse cannot be located or served. This principle holds true even though the court has no jurisdiction to divide marital property, adjudicate custody disputes, award alimony, or require the payment of child support. Because a court might not have the power to grant all relief sought or needed in a divorce case, the case is said to be "divisible."

The "divisible divorce" is rooted in a hoary old United States Supreme Court case called Pennoyer v. Neff, 95 U.S. 714 (1878). The Texas Supreme Court most recently applied the doctrine in Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999), where the husband moved to Texas to file for divorce while the wife remained in California. The Texas Supreme Court held that the trial court had jurisdiction to grant the husband a divorce but not to divide the parties' property.

Thus, the San Antonio Court of Appeals reached the correct result (assuming that Texas had no jurisdiction over any of the parties' property, including intangible property such as a bank account), but the opinion might have been more clear had the court analyzed the case in terms of status jurisdiction and the divisible divorce.

Cleaning Up Reimbursement Claims?

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 19 Mar 2009 11:37:10 -0600

A married couple in Texas has three estates: The community estate, the husband's separate estate, and the wife's separate estate. For many years, when one of the estates has contributed to another, a "reimbursement" claim could arise upon divorce.

The caselaw repeatedly demonstrates two classes of examples:

One of the estates might have paid debts for one of the other estates. For example, a separate estate might have paid the mortgage on the marital residence, leading to a reimbursement claim by that separate estate against the community estate.
The community estate is entitled to the time, toil, talent and effort of each spouse. A spouse may spend no more of that time, toil, talent and effort on his or her separate estate than that necessary to maintain and preserve it. If the spouse spends more, then the community estate might have a reimbursement claim against that separate estate.

Caselaw includes many arcane rules about how to prove a reimbursement claim. To make things more complicated, in 1999 the Texas legislature renamed the first class of reimbursement "financial contribution" and enacted complex rules for that class of reimbursement.

The new rules were so complex that nobody understood them, so the legislature amended the statute again in 2001. "Financial contribution" became "economic contribution." The rules changed, too, but they remained complex.

Apparently family law attorneys have had enough of economic contribution, which brings us to the true subject of this post. Identical bills have been introduced into the Texas House (HB 2565) and Texas Senate (SB 866) to do away with economic contribution. In a recent email, the Texas Family Law Foundation described what the bill would do:

Repeals “economic contribution” and replaces it with traditional reimbursement and offset principles, authorizes attorneys fees to be awarded directly to the parties’ lawyers in certain actions to enforce divisions of marital property and fixes a defective statutory formula for dividing options and restricted stock.

For the record, here's one lawyer who would love to see economic contribution disappear back into reimbursement law where it used to be found.

The Case of the Omitted Sentence

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 10 Mar 2009 15:18:13 -0600

A recent Texas Supreme Court decision, In re: Coppock, No. 08-0093 (Tex. Feb. 13, 2009), begins:

To be enforceable by contempt, a judgment must clearly order or command a party to perform the obligations imposed and the terms for compliance must be clear and unequivocal. Because the judgment challenged in this proceeding lacks the necessary clarity, we grant the petition for writ of habeas corpus and set aside the order of contempt as void.

So what part of the judgment (a divorce decree) was unclear? The trial court found that a permanent injunction should be granted to prohibit the parties from taking a list of actions, including communicating with each other "in a coarse or offensive manner." The court ruled that the injunction should be effective immediately. The parties even agreed that the divorce decree would be enforceable as a contract. Why, then, did the Texas Supreme Court grant the former wife's petition for relief after the trial court held her in contempt for repeatedly communicating with the former husband "in a coarse or offensive manner?"

One might suspect that what amounts to "coarse" or "offensive" is so inherently subjective that no one really knows what conduct is forbidden. One might also guess that the Texas Supreme Court threw out the contempt judgment because the First Amendment does not prohibit "coarse or offensive" conduct. Although the Court discussed both issues, it decided the case on a different ground altogether: the lack of an injunction in the divorce decree.

A court order must actually be an order. A court cannot dance around a subject but must specifically and expressly order a person to do or not to do something for the court's order to be enforceable by contempt. In this case, standard, form language like this was left out of the divorce decree:

IT IS ORDERED that the parties, their agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise are permanently enjoined from:

Had the list of forbidden actions been preceded by a paragraph like this one, then the Court would have reached one or more of the issues it passed over.

Family Law From Around the Nation - Winter 2008

jverner@vernerbrumley.com (Jimmy Verner) — Sun, 22 Feb 2009 18:25:18 -0600

State Bar of Texas Section Report - Family Law - Winter 2008

by Jimmy L. Verner, Jr.

Alimony: The Utah Supreme Court approved a divorce decree that increased alimony as each child reached majority because the reduction in child support necessarily enhanced the obligor spouse’s ability to pay. Richardson v. Richardson, ___ P.3d ___, 2008 WL3835161 (Utah 2008). If a divorce settlement agreement does not say whether spousal support payments are to end upon death – one of the requirements for such payments to be alimony - then the tax court may look to state law to determine whether the obligation survives death. Johanson v. Commissioner of Internal Revenue, 541 F.3d 973 (9th Cir. Sep. 3, 2008). In a case where contractual alimony would terminate upon the former wife’s cohabitation with an unrelated adult for sixty substantially consecutive days, the New York Court of Appeals found the word “cohabitation” to be ambiguous, reversed judgment for the former wife and remanded for further proceedings. Graev v. Graev, 11 N.Y.3d 262, ___ N.E.2d ___, 2008 WL 4620698 (N.Y. 2008).

Child support: The Indiana Supreme Court held: “First, in a claim for Parenting Time Credit under the Child Support Guidelines, the word ‘overnight’ means overnight and not something else. Second, business deductions taken by a spouse that may be ordinary for tax purposes are not necessarily determinative for child support purposes. Third, payments to a former spouse for division of property are not deductions for child support purposes.” Young v. Young, 891 N.E.2d 1045 (Ind. 2008). A California trial court did not abuse its discretion when it found that the duty to pay child support survives an obligor’s incarceration but reserved jurisdiction to determine the amount of support should the inmate begin receiving any income. El Dorado County Department of Child Support Services v. Nutt, 167 Cal. App. 4th 990 (2008). Because conviction under the Child Support Recovery Act requires a “willful” failure to pay, a defendant may present evidence and argue that he did not know he was the father and therefore could not “willfully” have failed to pay. United States v. Kerley, 544 F.3d 172 (2nd Cir. 2008).

Ethics: The California Supreme Court held that “structural” disqualification of a law firm based on failure to maintain ethical screens between internal units applies to cases involving simultaneous representation, not successive representation. In re: Charlisse C., 45 Cal. 4th 145 (2008). In Connecticut, a contingent fee agreement for a contempt proceeding did not violate the prohibition on contingent fees in divorce cases because a contempt is not a divorce. Gil v. Gil, 956 A.2d 593 (Conn. App. 2008). The wide discretion exercised by family court judges does not include defaulting parties who fail to appear because incarcerated and sentencing them, in absentia, to jail for failing to appear. In re: Jung, ___N.E.2d ___, 2008 WL 4701028 (N.Y. 2008) (per curiam) (removal from judicial office affirmed).

Federal jurisdiction: An ex-husband failed to pay his ex-wife $40,000 as ordered by a New Jersey divorce court; the ex-wife failed to sign a deed conveying a condo to him. The ex-husband quit paying on the condo, so the bank foreclosed on it. After much convoluted maneuvering by the parties, the ex-wife sued the husband and five other defendants in federal court based on diversity of citizenship. The district court dismissed the case for lack of subject-matter jurisdiction under the “domestic relations” exception. Citing Marshall v. Marshall, 547 U.S. 293 (2006), and Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Third Circuit reversed, emphasizing that the “domestic relations” exception is narrow, encompassing “only cases involving the issuance of a divorce, alimony, or child custody decree.” Matusow v. Trans-County Title Agency, 545 F.3d 241 (3d Cir. 2008).

Property: A California appellate court held that separate property conveyed into a community property trust under a transmutation agreement remained community property upon divorce even though the transmutation agreement recited: “This agreement is not made in contemplation of a separation or marital dissolution and is made solely for the purpose of interpreting how property shall be disposed of on the deaths of the parties.” In re: Holtemann, 83 Cal. Rptr. 3d 385 (Cal. App. 2008). The Delaware Supreme Court reversed a trial court’s disproportionate property award to a wife because the trial court failed to consider the husband's contributions of premarital and inherited property to the marital estate and the payment of marital funds to the wife after separation. Harmon v. Harmon, 2008 WL 4946212 (Del. Supr. 2008) (not for publication). A Missouri husband’s testimony that he and his wife intended her premarital home to be purchased and paid for with joint funds, that the wife bought the house in anticipation of marriage and that he improved the home by sweat equity was insufficient to classify the home as marital property. In re: Altergott, 259 S.W.3d 608 (Mo. App. 2008). A Massachusetts appellate court likened a limited liability company to a corporation when ruling that a husband held a membership interest in the LLC but no interest in LLC assets. Millennium Equity Holdings, LLC v. Mahlowitz, 895 N.E.2d 495 (Mass. App. 2008).

Life as property? An Indiana appellate court joined other jurisdictions in holding that growing crops should be included “in the marital pot” upon divorce. Webb v. Schleutker, 891 N.E.2d 1144 (Ind. App. 2008). Perhaps similarly, an Oregon appellate court affirmed a trial court's order that frozen embryos be destroyed, per the former wife’s request, reasoning that the embryos constituted personal property that the trial court was authorized to award upon divorce. Dahl v. Angle, 194 P.2d 834 (Ore. 2008) (collecting frozen embryo cases).

Modification: Increased rancor between the parents proved sufficient to establish changed circumstances allowing a trial court to modify an agreed joint custody order to grant sole custody to mother, especially when the only telephone number father would give to mother was his girlfriend’s cell phone, father had mother arrested for trespassing when she dropped off the children at his residence in compliance with the custody agreement, and father revoked his agreement to the children’s summer vacation with mother at the last minute to “get even” with mother. Also supporting the decision: Father had gotten the children to school late “upwards of 10 times,” had moved three times in one year and planned to move again, and had not given mother the right of first refusal when he could not keep the children. Ferguson v. Whible, 865 N.Y.S.2d 156 (App. Div. 2008).

How many? In Carmona v. Carmona, 544 F.3d 988 (9th Cir. Sep. 17, 2008), the Ninth Circuit held that ERISA forbids a participant in a joint and survivor annuity plan from changing the surviving spouse as beneficiary “after the participant has retired and the annuity has become payable.” The court observed: “Although Lupe had many wives, the dispute in this case only concerns wives number eight and nine. None of the previous seven wives are involved in the present litigation.”

What if the Obligor is Intentionally Unemployed?

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 11 Feb 2009 12:28:17 -0600

Section 154.066 of the Texas Family Code reads:

If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.

This provision is, of course, designed to enable a court to force a recalcitrant obligor to pay child support.

For that reason, the Fifth District Court of Appeals recently held that an obligee has the burden to prove that the obligor is intentionally unemployed. In the Interest of K.N.C., 2008 Tex. App. LEXIS 9374 (Tex. App. - Dallas Dec. 17, 2008, n.p.h.). In this case, the father had been seriously injured in a car wreck. When he and his wife divorced, the father received disability benefits, as did the parties' two children.

The trial court ordered the father to pay child support based on the amount the father received as disability payments. But the court of appeals disagreed. There was no evidence that the father quit a job to avoid paying child support. Further, that the obligor applied for a city job two years earlier constituted insufficient evidence to show intentional unemployment when the parties did not dispute that the obligor previously had been seriously injured in an automobile accident and unemployed since that time.

Collaborative Law Basic Training

jverner@vernerbrumley.com (Jimmy Verner) — Mon, 09 Feb 2009 10:17:56 -0600

Collaborative Law: Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice. It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  March 19 & 20, 2009 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+ years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com

Ranches, Horses & Saws

jverner@vernerbrumley.com (Jimmy Verner) — Sun, 08 Feb 2009 18:40:26 -0600

A stepfather's "unwavering" testimony that a check to his stepdaughter for $50,000 was intended as a gift to her alone constituted sufficient evidence that the $50,000 was the stepdaughter's separate property when combined with the fact that the check was introduced as evidence at trial, the payee was the stepdaughter, the memo on the check recited that the check was a gift to the stepdaughter and the father failed a a gift tax return with the IRS listing the stepdaughter as the donee.

The trial court erred by characterizing a horse born during marriage as the stepdaughter's separate property because livestock born during marriage are community property regardless whether their parents are community or separate property. The trial court did not abuse its discretion by awarding the horse to the stepdaughter because the mischaracterization had "only a de minimus effect on the trial court's division of the community estate.

Husband failed to show divestment of his separate property table saw, table saw stand, western saddle, and cutting torch when the divorce decree awarded him all items of property in his possession but Husband failed to introduce evidence that these items were in Wife's possession rather than in his possession.

See Williams v. Williams www.2ndcoa.courts.state.tx.us/opinions/pdfOpinion.asp

Family Law From Around the Nation - Fall 2008

jverner@vernerbrumley.com (Jimmy Verner) — Sat, 18 Oct 2008 18:13:27 -0600

State Bar of Texas Section Report - Family Law - Fall 2008

by Jimmy L. Verner, Jr.

Best interest: A child’s love for his mother does not prevent termination of parental rights when the child’s best interest would be served by severing his relationship with his abusive and drug-addicted parents. In re: William B., 78 Cal.Rptr. 3d 91 (Cal. App. 2008). An agreement to arbitrate custody and visitation issues “violates the court’s parens patriae obligation to protect the best interests of the children and is void as a matter of law.” Fawzy v. Fawzy, 948 A.2d 709 (N.J. App. Div. 2008). After mother fled with child from Idaho to Oregon to escape father’s domestic abuse, it was not in the child’s best interest for a magistrate to order mother either to return to Idaho or to relinquish temporary custody of the child. Schultz v. Schultz, 187 P.3d 1234 (Ida. 2008).

Child support: A Mississippi court held that disability benefits received by a child because of her father’s injury must be offset against the father’s child support obligation, but the father could not receive a child support credit when disability payments exceed child support payments. Keith v. Purvis, 982 So.2d 1033 (Miss. App. 2008). A New York family law court joined the majority of courts in other states that exclude higher education loans and grants as income for child support purposes. Mariana D. v. Frank D., 858 N.Y.S.2d 864 (Queens County Family Court 2008). Another New York court erred in setting child support when one of the two children lived with the obligor because the court used the percentage rate for only one child and also “capped” the obligor's income for child support purposes based on the child living with him. Santana v. Santana, 51 A.D.3d 542 (N.Y. App. Div. 2008).

De facto parents: A Virginia court refused to adopt the de facto parent doctrine as unnecessary - because Virginia recognizes non-parent rights under its “person with legitimate interest” statute - but affirmed denial of visitation after a same-sex breakup for failure to prove harm to the child should visitation be denied. Stadter v. Siperko, 661 S.E.2d 494 (Va. App. 2008). A California juvenile court acted properly when it dismissed, without an evidentiary hearing, a grandmother’s petition to place her grandchildren with her because the grandmother’s petition showed that as a matter of law, the grandmother had not “assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection” and “assumed that role for a substantial period.” In re R.J., 2008 WL 2504687 (Cal. App. 2008).

Hague cases: A federal district court abused its discretion by deferring to a state court when asked to identify the habitual residence of the children and whether they had been wrongfully removed to the United States from Israel. Barzilay v. Barzilay, ___ F.3d ____, 2008 WL 2952427 (8th Cir. 2008). In a split decision, the Second Circuit refused to require the return of a child to her father in Chile because the father had rights only of access, not custody, under Chilean law. Villegas Duran v. Arribada Beaumont, 534 F.3d 142 C (2nd Cir. 2008). The Seventh Circuit affirmed a district court’s order that children be returned to their father in Venezuela, agreeing with the district court that the father having once struck his son with a video-game cord, if true, did not constitute clear and convincing evidence that there would be a grave risk to the children if returned to him. Vale v. Avila, ___ F.3d ____, 2008 WL 3271920 (7th Cir. 2008).

Post-judgment issues: The Ninth Circuit’s Chief Judge vehemently dissented to the majority’s award of term life insurance proceeds to the deceased’s first wife: “The majority reaches a senseless, unjust and cruel result by awarding half a million dollars to the former wife of a peace officer felled in the line of duty, leaving the officer’s widow and children out in the cold.” Life Ins. Co. of North America v. Ortiz, ___ F.3d ____, 2008 WL 2940533 (9th Cir. 2008). A California state employee transformed his retirement benefits into community property when he repurchased “service credits” after his first wife withdrew her share of them. In re: Sonne, 80 Cal.Rptr.3d 453 (Cal. App. 2008). When an ex-husband’s Social Security benefits automatically reduced the ex-wife’s share of his retirement, a Delaware trial court acted properly by reopening the parties’ agreed property division. Stanley v. Stanley, ___ A.2d ____, 2008 WL 2961790 (Del. 2008).

Underemployment: An Indiana court reversed a trial court’s dismissal of an inmate’s motion to modify child support based upon his incarceration, reiterating that under Indiana law, committing a crime “is not quite the same” as failing or refusing to work. Clark v. Clark, 887 N.E.2d 1021 (Ind. App. 2008). The Alaska Supreme Court upheld a trial court that denied a motion to modify child support when the obligor testified she quit her job for another one that paid approximately half as much because she had to travel too much to see her children but failed to document her travels. Sawicki v. Haxby, 186 P.3d 546 (Alas. 2008). The New Hampshire Supreme Court did not reach the question whether an obligor who shot himself in the face was voluntarily unemployed or underemployed because there must first be a finding that an obligor is physically or mentally incapacitated. In re Marriage of Fontaine, ___ A.2d ____, 2008 WL 3893750 (N.H. 2008).

Wrong button: Husband began an affair with wife’s sister prior to marriage and continued thereafter. Two weeks after wife signed husband’s immigration application, husband announced he was leaving but did not say for whom. Wife’s son later called wife’s sister, his aunt, to learn whether she would be joining him and his mother for lunch. Aunt was dining at a restaurant with husband; aunt mistakenly pushed “answer” instead of “stop” on her cell phone. Because son had put the call on speaker, both wife and son heard husband professing his love for aunt, assuring her “that they would be together once he got his share of money and property” from wife, and told aunt that he had married wife only to gain permanent resident status. The trial court found that husband had lied to both women and annulled the marriage based on fraud: Husband wanted to “have his cake and eat it too” by engaging in sexual relationships with wife and her sister at the same time. In re Marriage of Ramirez, 81 Cal.Rptr.3d 180 (Cal. App. 2008).

Family Law From Around the Nation - Summer 2008

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 28 Aug 2008 17:57:53 -0600

State Bar of Texas Section Report - Family Law - Summer 2008

by Jimmy L. Verner, Jr.

Child support: California law does not permit a county to sue a parent for child support on behalf of her relatives even though her teenaged son has gone to live with them. Plumas County Child Support Servs. v. Rodriguez, 76 Cal.Rptr.3d 1 (Cal. App.—3d Dist. 2008). The Fifth Circuit affirmed a two-year sentence for violation of the Child Support Recovery Act, rejecting limitations as a defense because failure to pay child support is a continuing offense. United States v. Edelkind, ___ F.3d ____, 2008 WL 1726175 (5th Cir. 2008). The Eleventh Circuit allowed an award of attorney's fees in litigation against the Social Security Administration to be offset against child support owed to a county's human resources department. Reeves v. Astrue, ___ F.3d ____, 2008 WL 1930587 (11th Cir. 2008). Selling items at the weekend flea market constitutes underemployment in Florida when the father used to make $100,000 each year as a builder. Bator v. Osborne, ___ So.2d ____, 2008 WL 2065854 (Fla. App.—2d Dist. 2008).

Custody: A New York court affirmed custody to a father when “the mother engaged in a course of conduct which intentionally interfered with the relationship between the child and the father.” This kind of action is “so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.” Melikishvili v. Grigolava, ___ N.Y.S.2d ____, 2008 WL 1903522 (N.Y. App. Div. 2008). In a Hague Convention case, the Eleventh Circuit declined to order a child returned to his father in Australia because, even though the child had not been harmed, the father drank nearly every day and had abused the child’s mother. Baran v. Beaty, ___ F.3d ____, 2008 WL 1991092 (11th Cir. 2008). A Florida trial court abused its discretion by striking a husband’s pleadings for discovery abuse and excluding evidence in a divorce case in which custody was at issue because a child’s best interest trumps a parent's discovery abuse. Crossin v. Crossin, 979 So.2d 298 (Fla. App.—4th Dist. 2008).

Death during divorce: A California court awarded a husband’s estate to his estranged wife rather than to his mother because the couple’s divorce had not become final when the man died, and he and his wife were trying to reconcile. Estate of McDaniel, 73 Cal.Rptr.3d 907 (Cal. App.—3d Dist. 2008). The Colorado Supreme Court confirmed that a spouse’s death moots a suit for divorce, but the husband’s death did not moot the wife’s suit to declare the parties’ antenuptial agreement invalid. Schwartz v. Schwartz, ___ P.3d ____, 2008 WL 2004230 (Colo. 2008).

Disproportionate division: The New Hampshire Supreme Court affirmed a disproportionate property division in favor of a wife when the husband lost over $1,000,000 in “risky investments,” rejecting the husband’s claim that a disproportionate division requires “dissipation” rather than “diminution” of assets. Martel v. Martel, 944 A.2d 575 (N.H. 2008). A husband fared better in the Connecticut Supreme Court even though he lost nearly $100,000 in an investment: “Poor investment decisions, without more, generally do not give rise to a finding of dissipation.” Gershman v. Gershman, 943 A.2d 1091 (Conn. 2008). The North Dakota Supreme Court upheld a disproportionate division in favor of a husband when upon separation the wife withdrew and spent $60,000 from a joint business account and incurred some $180,000 in new debt. Hitz v. Hitz, 746 N.W.2d 732 (N.D. 2008). In New York, a wife received a disproportionate division when, among other things, her husband used after-tax money totaling $1,282,138 to pay off the judgment from his first divorce. Johnson v. Chapin, 854 N.Y.S.2d 18 (N.Y. App. Div. 2008).

Grandparent rights: An Indiana trial court erred when it awarded “visitation rights nearly equivalent to those of a non-custodial parent” to a grandmother because Indiana law contemplates only "occasional, temporary” grandparent visitation that does not substantially infringe on a parent’s decision to raise her child in a particular faith – in this case, as a Jehovah's Witness. Hoeing v. Williams, 880 N.E.2d 1217 (Ind. App. 2008). An Alabama court should not have ordered grandparent visitation when the mother allowed informal grandparent visitation but objected to court-ordered visitation. J.L.W. v. E.O.J., ___ So.2d ____, 2008 WL 1915171 (Ala. Civ. App. 2008).

Necessity for counsel: A Massachusetts appellate court refused to uphold a one-page prenuptial agreement drafted by a husband who, after reading some magazines and a book, thought he did not need a lawyer's help. Eyster v. Pechenik, ___ N.E.2d ____, 2008 WL 2132587 (Mass. App. Ct. 2008). A California man who declined to obtain separate counsel when signing estate planning documents found that he had transmuted his separate property to community property after his wife sued him for divorce. In re Marriage of Holtemann, 76 Cal.Rptr.3d 615 (Cal. App.—2d Dist. 2008).

Paternity: When a convicted sex offender moved a California court to set aside another man’s voluntary acknowledgment of paternity, the court properly denied the request even though genetic testing established that the sex offender was the child’s biological father. In re William K., 73 Cal.Rptr.3d 737 (Cal. App.—3d Dist. 2008). The Pennsylvania Supreme Court allowed a man to assert his non-paternity when a genetic test excluded him as the child’s father because, although the mother might have believed sincerely that the man was the child’s father, she committed fraud by falsely assuring him that she had had no other sexual partners at the time of the child’s conception. Glover v. Severino, 946 A.2d 710 (Pa. 2008). When a New Hampshire couple broke up, the mother asserted that her boyfriend was not their child’s father and requested paternity testing, but the court refused to require it because both she and the father had acknowledged his paternity two days after the child’s birth. In re Gendron, ___ A.2d ____, 2008 WL 2097059 (N.H. 2008).

Same-sex update: California’s Supreme Court held that in light of California’s comprehensive domestic partnership legislation, there is no compelling state interest in distinguishing between domestic partnerships and marriages such that “the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.” In re Marriage Cases, ___ Cal.Rptr.3d ____, 2008 WL 2051892 (Cal. 2008). Michigan’s constitution, which defines marriage as “the union of one man and one woman,” prohibits public employers from extending health insurance benefits to same-sex domestic partners. National Pride at Work, Inc. v. Governor of Michigan, ___ N.W.2d ____, 2008 WL 1961465 (Mich. 2008). In two cases, intermediate appellate courts considered whether former domestic partners had standing to seek custody or visitation as de facto custodians of children: Mason v. Dwinnell, 660 S.E.2d 58 (N.C. App. 2008) (yes); Pickelsimer v. Mullins, ___ S.W.3d ____, 2008 WL 820947 (Ky. Ct. App. 2008) (no). In a third case, a Maryland court declined to recognize de facto parent status as a legal basis for standing. Janice K. v. Margaret K., 910 A.2d 1145 (Md. App. 2008).

Where there’s smoke: Even though a husband and his secretary denied having an affair, the trial court did not err by granting the wife a divorce on the ground of adultery when the husband did not dispute that he gave his secretary money, left his office frequently when the secretary was absent, rescinded his wife’s firing of the secretary, fired his wife from his company, moved the secretary into his wife’s old office and gave her his wife’s cell phone, rode his motorcycle around with the secretary on the back, took trips with her to Florida and to New York, hired her mother as his housekeeper and told his wife “I'm going to do more than that” when she accused him of breaking their marriage vows. Lister v. Lister, ___ So.2d ____, 2008 WL 1947310 (Miss. App. 2008).

Family Law From Around the Nation - Spring 2008

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 28 Mar 2008 17:41:21 -0600

State Bar of Texas Section Report - Family Law - Spring 2008

by Jimmy L. Verner, Jr.

Child Support: A California court held that a personal injury settlement - unallocated as to the components of damage it represented - is not income for child support purposes, likening the settlement to a “return of capital” rather than income. In re: Rothrock, 70 Cal. Rptr. 3d 881 (2008). A New York trial court correctly included a father’s pre-tax health insurance deductions, as well as an alleged “one-time payment” from the father’s employer, as income for child support purposes. Bellinger v. Bellinger, 847 N.Y.S.2d 783 (App. Div. 2007). The New Hampshire Supreme Court held that the parents’ agreement that the father’s parental rights be terminated did not constitute a “special circumstance” authorizing the trial court to order less-than-guideline child support. Carr v. Edmunds, 938 A.2d 89 (2007). A Minnesota court held that undistributed Subchapter S earnings - which the court pointed out are reported as income on an individual's tax returns although the individual does not actually receive them - are not income for child support purposes, provided that the earnings were retained for a “business reason.” Hubbard County Health & Human Servs. v. Zacher, 742 N.W.2d 223 (Minn. App, 2007) (collecting cases).

ERISA: A Plan Administrator concluded that a divorce decree ordering a father to designate his son as primary beneficiary of a life insurance policy constituted a QDRO even though the father never made that designation. Mattingly v. Hoge, 2008 FED. App. 0023N (6th Cir. 2008). The Fifth Circuit reminds us that although child support can be collected from pension benefits, the obligee must obtain a QDRO to get them. Taliaferro v. Goodyear Tire & Rubber Co., No. 06-40570 (U.S. App. 5th Cir. Feb. 7, 2008). When children from a prior marriage sued their father’s widow to enforce a prenuptial agreement in which the widow waived any claim to her husband’s retirement benefits, a district court properly dismissed the suit because the prenuptial agreement did not meet ERISA’s requirements. Greenebaum Doll & McDonald PLLC v. Sandler, 2007 FED App. 0822N (6th Cir. 2007).

Marital agreements: A New York court held that threatening divorce to induce a spouse to sign a postnuptial agreement does not constitute duress because spouses have the right to sue each other for divorce. Garner v. Garner, 848 N.Y.S.2d 741 (App. Div. 2007). Similarly, an Illinois court held that threatening divorce to induce a philandering husband to agree to convey the marital residence to the wife should the husband stray again did not invalidate the agreement. In re: Tabassum, No. 2-06-0843 (Ill. App. Dec. 7, 2007). In Massachusetts, a clause in an antenuptial agreement forfeiting a wife’s right to seek alimony should she oppose “the granting of a divorce” to the husband did not prevent the wife from seeking alimony when she did not oppose the divorce but only the terms of the divorce. Vakil v. Vakil, 879 N.E.2d 79 (Mass. 2008). A North Carolina premarital agreement (prepared from a formbook) by which each party released all rights to the other’s property – “including all marital rights” - neither divided the parties’ property nor waived equitable distribution upon divorce. McIntyre v. McIntyre, 654 S.E.2d 798 (N.C. App. 2008).

Same-sex update: In a split decision, the Rhode Island Supreme Court held that Rhode Island courts are without jurisdiction to grant divorces to same-sex couples because when the legislature enacted the divorce statute in 1961, “marriage” unequivocally meant heterosexual relationships. Chambers v. Ormiston, 935 A.2d 956 (R.I. 2007). In New York, an appellate court held a man ineligible for survivor’s benefits under Workers’ Compensation Law because that law permits benefits to a surviving spouse, not to the survivor of a civil union entered into in Vermont. Langan v. State Farm Fire & Casualty, 849 N.Y.S.2d 105 (App. Div. 2007).

Termination: The Illinois Supreme Court held that termination of parental rights does not automatically dissolve a parent’s obligation to pay child support unless the child is subsequently adopted. Illinois Dep't of Healthcare & Family Servs v. Warner, No. 103289 (Ill. Jan. 25, 2008). A California appellate court, holding that even “abject poverty” by itself cannot warrant termination of parental rights, reversed a father’s termination because the only reason for termination appeared to be the father’s “inability to obtain suitable housing for financial reasons.” In re G.S.R., No. B197000 (Cal. App. Jan. 8, 2008).

Third parties: In a split opinion, the Connecticut Supreme Court held that Troxel’s requirements apply to third-party visitation proceedings but not to suits for custody by third parties (in this case, an aunt). Fish v. Fish, 285 Conn. 24 (2008) (collecting cases). Departing from rulings in other states, the Hawaii Supreme Court held a “best interests” grandparent visitation statute unconstitutional rather than judicially amend it to comply with Troxel. Doe v. Doe, 172 P.3d 1067 (Haw. 2007) (collecting cases). A California court of appeals reversed that part of an order that a child’s stepfather and uncle participate in sexual abuse counseling because the trial court lacked jurisdiction to order the child’s relatives - other than her parents - to do anything. In re Silvia R., 159 Cal. App. 4th 337 (2008).

Valuation: A Utah trial court correctly valued Mr. Stonehocker’s used-car dealership ("Stoney's Motors") when it excluded the value attributable to his personal goodwill. Stonehocker v. Stonehocker, 2008 UT App 11. In Tennessee, appreciation in a company's stock, which the husband received by gift from his father, did not constitute marital property because the husband did not “substantially contribute” to the stock’s appreciation merely by working for the company. Keyt v. Keyt, No. M2005-00447-SC-R11-CV (Tenn. Dec. 19, 2007). A North Dakota court did not err when it found the value of an insurance business to be less than either party (or their experts) claimed. Evenson v. Evenson, 742 N.W.2d 829 (N.D. 2007).

Family Law From Around the Nation - Winter 2007

jverner@vernerbrumley.com (Jimmy Verner) — Sun, 10 Feb 2008 11:33:22 -0600

State Bar of Texas Section Report - Family Law - Winter 2007

by Jimmy L. Verner, Jr.

Alimony: In Louisiana, fault in the breakup of the marriage prevented a wife from receiving spousal support after divorce when the wife had subjected the husband to "a pattern of mental harassment, nagging and griping which rendered the marriage insupportable." The appellate court agreed that the record contained no evidence that the husband's habit of frequenting "Gentlemen's Clubs" had been "a predicate to marital strife; rather, that seemed to be [the husband's] 'reaction' to a failing marriage." Wolff v. Wolff, No. 07-332 (La. App. October 3, 2007). A New York court did not abuse its discretion when it reduced a wife's maintenance award by $300 per month because the wife, who had taken a second job, earned more money. Haines v. Haines, No. 2006-07404 (N.Y. App. Div. Oct. 23, 2007).

Child support: An Indiana court held a father's $1,000,000 personal injury settlement to be income for child support purposes. Knisely v. Forte, 875 N.E.2d 335 (Ind. App. 2007). The Tennessee Supreme Court ruled that income for child support purposes included $687,550 that the father received from selling property awarded to him upon divorce, as against the father's "double-dipping" argument. Moore v. Moore, No. E2005-02469-SC-R11-CV (Tenn. Sept. 5, 2007). The fact that a child who performed poorly in public school after the father withdrew the child from private school supported a New York order that the father's child support obligation would continue to include private school expenses. Aulicino v. Kaiser, 844 N.Y.S.2d 457 (App. Div. 2007). Rejecting a substantive due process defense of unreasonableness, the Illinois Supreme Court affirmed a statutory penalty of $100 per day - totaling $1,172,100 - against an employer who failed to forward withheld child support to the state. In re: Miller, Docket Nos. 104022, 104035 cons. (Ill. Nov. 29, 2007).

Grandparents: Arizona's "move-away" statute, which requires a best interests finding before a custodial parent may move a child, does not apply to a grandparent who has court-ordered visitation. Sheehan v. Flower, No. 1 CA-CV 06-0781 (Ariz. App. Nov. 13, 2007). The Illinois Supreme Court held the contention that "a child can only benefit from a relationship with a loving grandparent" insufficient to rebut the presumption that a fit parent's decision to deny grandparent visitation is not harmful to the child, reasoning that otherwise a parent never could deny grandparent visitation. Flynn v. Henkel, Docket No. 103946 (Ill. Nov. 29, 2007). A New York court granted custody to the maternal grandmother after finding the father to be an unfit parent when the father, while intoxicated, killed the mother in a boat accident. Jodoin v. Billings, 843 N.Y.S.2d 873 (App. Div. 2007).

Nuptial agreements: A New York court set aside a postnuptial agreement when the agreement was financially lopsided, had been drafted by the husband's attorney, and the wife had signed it while "undergoing treatment and suffering from the mental and physical effects of complications arising from a surgery." Barchella v. Barchella, 844 N.Y.S.2d 78 (App. Div. 2007). A wife's claim that she had not understood the terms of a prenuptial agreement was undercut by the fact that "she acted in accordance with the terms of the agreement throughout the marriage, maintaining separate bank accounts in her own name in which she deposited income from properties she inherited from her family." Stawski v. Stawski, 843 N.Y.S.2d 544 (App. Div. 2007). A New York court upheld a maintenance award to a wife of $3,300 per month, despite the wife's argument that the amount was insufficient, when a valid prenuptial agreement required the husband to provide "suitable housing (either rented or owned)" for the wife while the parties' child resided with her and the record supported the trial court's finding that $3,300 would suffice. Cerami v. Cerami, No. 2006-08958 (N.Y. App. Div. Oct. 16, 2007).

Paternity: A California court granted mandamus to retract a genetic testing order when the adjudicated father questioned paternity after limitations had run but failed to invoke the court's equitable jurisdiction when he alleged only that he and the mother had not been “mutually exclusive” sexual partners and that he had "heard" that the child did not look like him. Orange County v. Superior Court (Rothert), 66 Cal. Rptr. 3d 689 (Cal. App. 2007). The Sixth Circuit affirmed a judgment (including attorney's fees) against a father who claimed that permitting a woman, but not a man, to terminate a pregnancy violates the equal protection clause of the United States Constitution. Dubay v. Wells, No. 06-2107 (6th Cir. Nov. 6, 2007). An Alaska resident who failed to pay a filing fee when he filed an answer to an Idaho paternity action and subsequently suffered a default judgment was not denied due process under UIFSA upon registration of the judgment in Alaska. Fowler v. State of Alaska, 168 P.3d 870 (Alas. 2007). A Florida court held that a man who claimed to have impregnated a married woman while she was separated from her husband could not seek paternity of the child when the husband and wife reconciled prior to the child's birth. Lohman v. Carnahan, 963 So. 2d 985 (Fla. App. 2007).

Procedure: A Louisiana trial court, reversed for sealing an entire divorce file, sealed most of the file on remand but was again reversed for sealing information that "would not impinge on the safety or security of the children." Copeland v. Copeland, No. 07-CC-0177 (La. Oct. 16, 2007). A stipulation signed by an attorney that California, rather than Texas, would have jurisdiction over child support issues bound the client despite the client's claim that his attorney had no right to waive his "substantial right" to dispute the appropriate forum in which to hear the case. Knabe v. Brister, 65 Cal. Rptr. 3d 493 (Cal. App. 2007). In New Hampshire, minor children may not intervene in their parents' divorce even when their guardian ad litem has made a custody recommendation in conflict with the children's expressed wishes. In re: Stapleford, 931 A.2d 1199 (N.H. 2007).

Property: A trial court erred by discounting the value of an S corporation by applying C corporation taxation rules and further erred by applying key man and marketability discounts when the husband intended to keep his corporate interest after divorce rather than sell it. Bernier v. Bernier, 873 N.E.2d 216 (Mass. 2007). In Alaska, a trial court may not disregard the value of one spouse's retirement account because the court did not "have a dollar value" for it but must require the parties to produce sufficient evidence to value the asset. Mellard v. Mellard, 168 P.3d 483 (Alas. 2007). Comity did not require a Maryland court to apply Pakistani law upon the divorce of Pakistanis who were long-term United States residents when Pakistani law provided that the wife could not share in the husband's admittedly valuable pension. Aleem v. Aleem, 931 A.2d 1123 (Md. App. 2007).