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Family Law Legal Research Blog

FAMILY LAW: Custody Is Determined in Child's Home State, Not State Where Divorce Is Filed

Posted by Sandra L. Thomas on Mon, Mar 6, 2017 @ 16:03 PM

The Lawletter Vol 42 No 2

Sandra Thomas, Senior Attorney, National Legal Research Group

      Another case has confirmed the primacy of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") over local jurisdictional rules that conflict with that statutory scheme. The Court of Civil Appeals of Alabama has reversed a trial court order that held the trial court had subject-matter jurisdiction over a child custody petition that was filed in Alabama by the child's father at the time the father filed a petition for divorce from the child's mother. Ex parte Holloway, No. 2150821, 2016 WL 4493653 (Ala. Civ. App. Aug. 26, 2016).

     The parents were married in Alabama in October 2014 and they separated in June 2015. The father filed a complaint for divorce October 23, 2015 that included a request for custody of the parties' minor son, who was born September 20, 2015. The father alleged that the mother had abandoned the marriage and had moved to Mississippi to live with her mother. Alabama law provides: "Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper." Ala. Code § 30-3-1.

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Topics: family law, custody, UCCJEA, child's home state

FAMILY LAW: Imputing Investment Income for Purposes of Spousal Support

Posted by Brett R. Turner on Tue, Feb 28, 2017 @ 16:02 PM

Brett Turner, Senior Attorney, National Legal Research Group

      In Curtis v. Curtis, 887 N.W.2d 249 (Minn. 2016), the wife sought spousal support in a divorce case. But she received, as part of her share of the marital property, an Ameritrade account worth over $2 million.

     The trial court held that the income from this account constituted income for purposes of spousal support. The account was invested in growth-oriented securities and produced income of less than $3,000 per year. This income was not sufficient to meet the wife's support needs. But the husband proved that the account could be reinvested into income-oriented securities at a rate of 7% per year and earn $9,500 per month in income. On this basis, the trial court imputed $9,500 per month income to the wife, and found that she had no need for spousal support. Minnesota's intermediate appellate court affirmed, and the wife appealed to the Minnesota Supreme Court.

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Topics: family law, spousal support, imputing investment income, real estate

FAMILY LAW: Business Valuation Upon Divorce—Goodwill

Posted by Brett R. Turner on Mon, Nov 7, 2016 @ 12:11 PM

The Lawletter Vol 41 No 9

Brett R. Turner, Senior Attorney,National Legal Research Group

     The South Carolina Supreme Court recently considered a case that provides a wealth of guidance on business valuation questions. Moore v. Moore, 414 S.C. 490, 779 S.E.2d 533 (2015).

     The issue was one that arises often in divorce cases—is the goodwill of a business part of the business's value for purposes of a divorce case? Adopting the majority rule nationwide, the court held that the enterprise goodwill of the business is included, but that the individual goodwill of the owner is not included. Stated differently, the value includes goodwill that is transferable to another owner, but it does not include goodwill that is not transferable and resides in the owner individually.

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Topics: family law, Brett R. Turner, business valuation, goodwill

Economic Claims Between Former Spouses Outside the Divorce Case

Posted by Nicole Prysby on Tue, Oct 18, 2016 @ 08:10 AM

    NLRG Senior Attorney Brett R. Turner has an article appearing in the Fall 2016 issue of the Family Advocate, published by the ABA Family Law Section.  Brett R. Turner, Economic Claims Between Former Spouses Outside the Divorce Case, 39 Family Advocate 26 (Fall 2016). 

     The article focuses upon tort action between former spouses outside of the divorce context.  It discusses actions to rescind fraudulent conveyance, actions for common-law fraud, actions for conspiracy and breach of fiduciary duty, and actions for conversion of property awarded to the other spouse.  Other articles in the same issue address other aspects of Domestic Torts.

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Topics: family law, Brett R. Turner, family advocate

FAMILY LAW: Enforcing a Child Support Obligation Through Constructive Trust

Posted by Sandra L. Thomas on Tue, Oct 4, 2016 @ 13:10 PM

The Lawletter Vol 41 No 8

Sandra Thomas, Senior Attorney, National Legal Research Group

      The Supreme Court of Montana imposed a constructive trust on $2.3 million of proceeds of two insurance policies in a case in which the husband ("Husband") in a divorce proceeding changed the beneficiaries on the policies in violation of a restraining order issued by the court while the divorce was pending. Volk v. Goeser, 2016 MT 61, 382 Mont. 382, 367 P.3d 378.

     Husband and wife ("Wife") were married in 1996, and they had a son, RBV, in 2000. In June 2010, Husband filed a petition for dissolution; that same day the trial court issued a restraining order under which the parties were not allowed to transfer assets while the divorce was pending. In December 2011, the parties entered into a settlement agreement in which, among other things, Husband agreed that "'[h]usband shall execute a will naming his son as beneficiary of his estate, giving all of his assets to his son.'" Id. ¶ 5, 382 Mont. at 384, 367 P.3d at 381.

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Topics: family law, Sandra Thomas, child support obligation, The Lawletter Vol 41 No 8, constructive trust

FAMILY LAW: Time Limits on Divorce Hearings

Posted by Brett R. Turner on Wed, Apr 20, 2016 @ 16:04 PM

The Lawletter Vol 41 No 4

Brett Turner, Senior Attorney, National Legal Research Group

     A perennial problem in family law practice is arbitrary judges who dislike family law cases and impose strict time limits upon trials. Appellate courts are aware of this problem, and in extreme cases they have granted relief.

     In Kilnapp v. Kilnapp, 140 So. 3d 1051 (Fla. Dist. Ct. App. 2014), the trial judge set a three-hour limit on the hearing. After only an hour had passed, the trial court abruptly ended the hearing. The wife had presented only one witness, and the husband's counsel had not even finished with direct examination of the husband. The appellate court summarily reversed. "The trial court erred when it denied the husband his basic and fundamental right to due process, specifically the right to be heard." Id. at 1054.

     The husband did not have, of course, a right to be heard at unlimited length. For example, even if the husband honestly wanted an entire week of testimony, the trial court had discretion to impose a reasonable time limit.

     But the time limit imposed in Kilnapp was unreasonable, in two different ways. First, a reasonable time limit should apply equally to both parties. In Kilnapp, the wife was able to present all of her evidence, while the husband was able to present only some of his.

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Topics: family law, Brett R. Turner, arbitrary cutoff, divorce hearing, time limit

FAMILY LAW: Court Obtains Jurisdiction Under UCCJEA When Action Is Filed, and It Can Exercise Jurisdiction Even After All Parties Leave State

Posted by Sandra L. Thomas on Wed, Feb 10, 2016 @ 11:02 AM

The Lawletter Vol 41 No 1

Sandra Thomas, Senior Attorney, National Legal Research Group

     Resolving a question that is not expressly answered by the language of the Uniform Child Custody Jurisdiction And Enforcement Act ("UCCJEA"), the District of Columbia Court of Appeals in Upson v. Wallace, 3 A.3d 1148 (D.C. 2010), held that if a trial court had home-state jurisdiction to issue an initial custody determination under the UCCJEA at the time the action was filed, then the court could still exercise that jurisdiction even after all parties had left the state.

     In Upson, the child, Georgiana, was born in Virginia in May 2004. On March 2, 2005, the child's father, Wallace, filed for custody of Georgiana in Alexandria, Virginia. In April 2005, the child's mother, Upson, relocated with the child from Virginia to the District of Columbia.

     Upson subsequently attempted to litigate custody in the District of Columbia, but Wallace's motion to dismiss for lack of subject-matter jurisdiction was granted. Upson challenged the dismissal and ultimately was able to bring before the District of Columbia Court of Appeals the question of the validity of the custody order that had been entered by the Virginia court after all parties had left Virginia.

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Topics: family law, Sandra L. Thomas, Upson v. Wallace, jurisdiction of initial custody

FAMILY LAW: Constitutionality of Grandparent Visitation Statutes

Posted by Brett R. Turner on Tue, Jan 19, 2016 @ 13:01 PM

 The Lawletter Vol 40 No 12

Brett Turner, Senior Attorney, National Legal Research Group

     One of the hardest issues in all of family law is grandparent visitation. In Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court struck down a Washington state statute allowing the court to award grandparent visitation based only upon the best interests of the child, finding that such a broad standard violates the liberty interest of the parents in having custody of their children.

     But Troxel did not decide what the proper standard for grandparent visitation is; it decided only what that standard is not. Case law since Troxel has disagreed substantially as to what grandparents must prove in order to be awarded visitation.

     No state has written more opinions in fewer cases on this issue than Alabama. In Ex parte E.R.G., 73 So. 3d 634 (Ala.2011), a nine-judge court wrote six separate opinions on the subject. The end result was that the court struck down Alabama Code section 30-3-4.1, which allowed the court to award grandparent visitation on a pure best-interests basis.

     The legislature then added the following language to the statute: "If the child is living with one or both biological or adoptive parents, there shall be a rebuttable presumption for purposes of this section that the parent or parents with whom the child is living know what is in the best interests of the child." Ala. Code § 30-3-4.1(d).

     The constitutionality of the modified statute arose recently in Weldon v. Ballow, No. 2140471, 2015 WL 6618983 (Ala. Civ. App. Oct. 30, 2015) (not yet released for publication), in a case in which the child lived with a biological parent, so that the statutory presumption applied. The issue was whether the presumption saved the statute. Answering this question required a five-judge court to write four opinions. But when the votes were tallied, the statute was held unconstitutional for a second time.

     The first opinion, signed by two judges, construed Troxel to provide that grandparent visitation cannot be awarded based on a best-interests-of-the-child standard alone, regardless of the burden of proof. "Under the 2011 amendments," while the burden of proof is reversed when the child is living with a parent, "a court can still award grandparent visitation over the objection of a custodial parent if the court decides that it is in the best interests of the child. The [Grandparent Visitation Act], as amended, continues to invade the fundamental rights of parents to make their own determinations as to the best interests of their children." Id. at *14.

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Topics: family law, Brett R. Turner, grandparent visitation statutes, constitutionality, best-interests standard

FAMILY LAW: Delegation of Power to Decide Custody and Visitation

Posted by Brett R. Turner on Thu, Oct 1, 2015 @ 15:10 PM

The Lawletter Vol 40 No 8

Brett Turner, Senior Attorney, National Legal Research Group

     In In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, 11 N.E.3d 1, the two parties, of the Islamic faith, signed a separation agreement ("PNA"). The PNA named a prominent member of the local Islamic community as Counselor. It then provided:

     Husband and Wife agree that an unreasonable divorce (without Counselor's express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children.

Id. ¶ 28, 11 N.E.3d at 10 (quoting PNA).

     The trial court held that the PNA was completely unenforceable, and the appellate court affirmed. To begin with, by providing that a party who sought an "unreasonable divorce" lost custody, and by giving the Counselor exclusive power to define "unreasonable," the PNA delegated to the Counselor the power to determine custody. Such delegation violated public policy:

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Topics: family law, Brett R. Turner, Islamic separation agreement, unenforceable agreement, public policy violation

FAMILY LAW: Did Actions of Alleged Father in Response to Custody Petition Amount to Consent to Court's Exercise of Personal Jurisdiction?

Posted by Gale Burns on Wed, Sep 16, 2015 @ 15:09 PM

The Lawletter Vol 40 No 7

Sandra Thomas, Senior Attorney, National Legal Research Group

     In a recent decision of the Court of Special Appeals of Maryland, Maryland's intermediate appellate court addressed the question of whether a New York resident could be subject to personal jurisdiction in a Maryland paternity and support action based on his filing of an answer to the original complaint for custody, his request for genetic testing, and his request for discovery. Friedetzky v. Hsia, No. 1187 Sept. Term 2014, 2015 WL 4081290 (Md. Ct. Spec. App. July 6, 2015).

     The court of special appeals held that "by affirmatively requesting genetic testing in his answer" to the mother's custody petition and "by initiating discovery relating to matters of paternity and child support," the alleged father "triggered the UIFSA [Uniform Interstate Family Support Act] long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]." Id. at *1.

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Topics: family law, Sandra L. Thomas, The Lawletter Vol 40 No 7, custody petition, court's jurisdiction

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