Posted by Gale Burns on Tue, Mar 12, 2013 @ 07:46 AM
March 13, 2013
Brett Turner, Senior Attorney, National Legal Research Group
A growing number of states require, by statute or case law, that the court set the date for valuing marital property in advance of the actual hearing. In Virginia, for example, all marital property must be valued on the date of the evidentiary hearing. But "[u]pon motion of either party made no less than 21 days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used." Va. Code Ann. § 20-107.3. In New York, "[a]s soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset." N.Y. Dom. Rel. Law § 236(B)(4)(b). Setting the date of valuation in advance allows all of the experts to value property as of the same date and therefore removes one important source of variance in parties' valuations.
But what happens if there is a material change in circumstances after the court has entered an interlocutory order setting the date of valuation? In Caveney v. Caveney, 81 Mass. App. Ct. 102, 960 N.E.2d 331 (2012), a discovery master initially set the date of valuation as June 30, 2008. In late 2008, of course, the national economy entered a sharp and very severe recession. The recession caused a significant decrease in the value of many marital assets. The wife therefore filed a motion, supported by an affidavit from her financial expert, asking the court to value the assets as of December 31, 2008.
The trial court granted the motion, and the Massachusetts Appeals Court affirmed. "Based on the changes in the economic climate, the judge indicated that it was reasonable and proper for the wife to utilize a valuation date of December 31, 2008." Id. at 107, 960 N.E.2d at 336.
The discovery master's order setting the date of valuation in Caveney did expressly allow either party to modify the order by filing a motion. But the result would probably not have been materially different if that express modification provision had not been present. Interlocutory orders granted by a trial court are generally not final and are therefore subject to modification in the discretion of the court until a final order has been entered in the case. For example, in Virginia, the trial court has full discretion to modify any order it makes until 21 days after entry of a final order resolving all contested issues in the case. Va. Sup. Ct. R. 1:1. In states with Rules of Civil Procedure based upon the federal model, "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). Since a pretrial order setting the date of valuation will never resolve all contested issues in the case, the trial court has discretion to modify such an order after it has been made.
An order setting the date of valuation should not, of course, be changed lightly. The purpose of such an order is to manage the case in an orderly fashion by ensuring that all expert valuations use the same date. If the order can easily be modified, many of its advantages are lost.
Nevertheless, situations do exist in which a material change in circumstances requires modification of an order setting the date of valuation. The fact pattern in Caveney, where a recession of historically severe magnitude occurred after the established date of valuation but before the date of trial, is a good example. One could also imagine situations involving a change to the value of a single asset. For instance, a business might go bankrupt, or it might receive an offer to purchase in a larger amount than either spouse previously believed the business was worth. When significant new facts emerge, it is important that the court retain the option to modify an order setting the date of valuation.
This sort of modification should not be needed often, but there is no guarantee that market conditions will remain unchanged between the time when the date of valuation is set and the time when the case is actually tried.
Posted by Gale Burns on Thu, Feb 21, 2013 @ 11:02 AM
The Lawletter Vol 37 No 12
Brett Turner, Senior Attorney, National Legal Research Group
When settling a divorce case, a spouse will sometimes desire ownership of a large asset such as a home or business. It may be uncertain, however, whether the spouse can afford to purchase the other party's interest. In that situation, one useful device for making the division work is to give the spouse an option to buy the asset.
An option gives the spouse a period of time to arrange financing or another source of funding for making the purchase. If the option is not exercised, the asset can be sold on the open market. Some cases even give both parties sequential options to purchase, with the asset not sold unless neither option is exercised. See generally 3 Brett R. Turner, Equitable Distribution of Property § 9:15 (3d ed. 2005).
In setting up an option, however, it is important to avoid undue delay of the divorce case. In Cox v. Floreske, 288 P.3d 1289 (Alaska 2012), the parties had been married for 28 years. They had a large marital estate, worth approximately $3 million, but it was highly illiquid, consisting mainly of businesses and real estate that could not easily be sold. Moreover, only the husband had the skill and ability to operate most of the businesses.
While both parties wanted ownership of the real estate, it was obviously necessary to divide the real estate between them. To maximize each party's ability to obtain the real estate that he or she wanted, however, the trial court created an unusual option scheme. Each party was awarded an option to purchase any marital real estate that the other sold on the open market, by matching the purchase price within 15 days of when an offer to buy was tendered.
Some time after the divorce, the wife realized that the option did not have a termination date. On the face of the divorce decree, the option could be invoked years or even decades after the divorce. She then moved to set aside the option provision, relying mainly upon Alaska Rule of Civil Procedure 60, which allows the court to reopen a judgment when "it is no longer equitable that the judgment should have prospective application." Alaska R. Civ. P. 60(b)(5). The trial court clarified that the option did not survive the death of the parties, but otherwise reaffirmed that the option lasted for the owning spouse's lifetime.
On appeal, the Alaska Supreme Court reversed. "The opportunity to buy property should the ex-spouse desire to sell it must be weighed against the strong policy we have expressed 'to disentangle fully interspousal affairs upon dissolution.'" 288 P.3d at 1294 (quoting Musgrove v. Musgrove, 821 P.2d 1366, 1370 n.7 (Alaska 1991)). An indefinite option could potentially burden the courts with substantial future marital litigation. Moreover, since most of the real estate was awarded to the wife, the effect of the option was to give the husband "some degree of continuing control over [the wife] for so long as she owns her properties." Id. at 1293. "[N]ot only is this a potential source of friction, it is inconsistent with the superior court's goal to disentangle the parties." Id.at 1293-94. The trial court therefore erred by failing to reopen the decree and vacate the option.
It is important to remember that the option was vacated only prospectively. The parties operated under the option successfully for more than a year, and the court did not invalidate any past transactions. The problem was therefore not that the option was granted but, rather, that it lasted too long, resulting in undue entanglement of the parties' financial affairs and an undue risk of future litigation. Options are a useful device, but they should last for no longer than is absolutely necessary to ensure an equitable division of the marital estate.
Posted by Gale Burns on Thu, Jan 03, 2013 @ 08:12 AM
The Lawletter Vol 37 No 10
Sandra Thomas, Senior Attorney, National Legal Research Group
Confirming the rule that Massachusetts does not recognize common-law marriage, the Appeals Court of Massachusetts, in Bedard v. Corliss, 973 N.E.2d 691, 693 (Mass. App. Ct. 2012), has refused to find a common-law marriage in a case in which the parties themselves believed they were married and had lived together for 21 years.
In 1983, Ethan Corliss and Carol Bedard took part in a marriage ceremony in Tijuana, Mexico, that was conducted by a man holding himself out as an attorney. His secretary acted as a witness. Ethan and Carol signed papers that were written in Spanish, which they did not understand. A few weeks later, a certificate of marriage written in English was mailed to them at their home in Massachusetts. During the 21 years that followed, the parties filed joint tax returns, bought property as husband and wife, held themselves out as husband and wife, and listed each other as spouses on employment and other documents.
Following Carol's death in 2004, Ethan was appointed as administrator of Carol's estate, listing himself as Carol's spouse. Carol's three adult children from a prior marriage had each given signed assent to his appointment.
One of the children subsequently changed her mind and challenged the validity of Ethan and Carol's marriage. Following an investigation, the parties stipulated that the marriage had not been a valid marriage under the law of Mexico. The marriage therefore could not be recognized by Massachusetts as a valid foreign marriage, and because Massachusetts does not recognize common-law marriage, the trial court concluded that there was no valid marriage. The court entered judgment revoking the decree appointing Ethan as administrator. Ethan appealed from this order.
In the meantime, Ethan had voluntarily distributed to Carol's children $120,000 that had been in a joint account that had become Ethan's property on Carol's death. Ethan had given the funds to Carol's children, although he was not legally obligated to do so, because it was his understanding that that was what Carol had wanted.
Ethan subsequently filed a complaint in equity to recover those funds. The trial court concluded that Ethan's gift had been based on the mistaken beliefs that Carol's children considered him to be Carol's husband and that they would follow through with their mother's wishes. The court held that these mistakes resulted in unjust enrichment, and it ordered the children to return those funds to Ethan. The children appealed from this order.
The appellate court reversed the judgment removing Ethan as administrator. Citing the decision in Poor v. Poor, 409 N.E.2d 758 (Mass. 1980), which held that an individual who has obtained the benefits of marriage is estopped from later denying that marriage, the court concluded that Carol would have been estopped from denying the existence of the marriage under the circumstances and, therefore, her children were estopped as well. The court reasoned that the intestacy statute was designed in part to protect the spouse of a person who has not written a will and concluded that "[t]he statute thus provides the kind of benefit of marriage that Carol herself would have been estopped from attempting to deny to Ethan through a challenge to the validity of their marriage." Bedard, 973 N.E.2d at 695.
Regarding the equity case, in which Ethan sought recovery of the $120,000 distributed to the children, the appeals court sent the matter back to the trial court, noting that the judge in the lower court had "demonstrated commendable sensitivity to the equities of the issue" and would be able to take into account the extent to which Ethan might have been damaged by the children's sale of a lakeside cottage in Maine at which Carol and Ethan had spent their summers and in which Ethan believed he had a life estate.
Posted by Gale Burns on Mon, Nov 05, 2012 @ 12:28 PM
The Lawletter Vol 37 No 8
Brett Turner, Senior Attorney, National Legal Research Group
In a divorce case, can the court divide property that is titled in the name of a third person, not in the name of the husband or the wife? In some situations, the answer is clearly yes.
At a minimum, when marital property is conveyed into the name of a third party for purposes of avoiding division, the court can charge that property against the conveying spouse's share of the marital estate. It may also be possible to set the transfer aside as a fraudulent conveyance. See, e.g., Howard v. Howard, 2010 ME 83, 2 A.3d 318; Myers v. Myers, 741 So. 2d 274 (Miss. Ct. App. 1998). See generally 2 Brett R. Turner, Equitable Distribution of Property '' 6:103–:108 (3d ed. 2005 & Supp. 2012).
In addition, situations exist in which a third party holds title in constructive or resulting trust for the benefit of one or both spouses. Many of these cases involve homes that are titled in the names of parents or other third parties for purposes of financing, where all mortgage and maintenance expenses are paid by the spouses. See, e.g., Gore v. Gore, 638 A.2d 672 (D.C. 1994); Ravenscroft v. Ravenscroft, 585 S.W.2d 270 (Mo. Ct. App. 1979), overruled on other grounds by Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. 1984). See generally 1 Turner, supra, § 5:18.
Before arguing any of these theories, however, it is essential to join the third-party titleholder as a party to the divorce case. In Graves v. Graves, No. 11-FM-0729, 2012 WL 3854622 (D.C. Sept. 6, 2012) (not yet released for publication), the marital home was titled in the name of the wife and her father. Both parties testified that the father's name was on the home for the purpose of assistance with financing. There was no evidence that the father had made any significant contribution to the home. The trial court held that the parties equitably owned the home, and it awarded 50% of the home's value to each of them.
But there was one critical problem: The father had not been named as a party and permitted to introduce evidence or defend his rights. In light of this problem, the trial court's decision was reversed upon appeal. As a matter of fundamental due process, the court could not determine the father's rights in the property without naming him as a party. The father was therefore an indispensable party, and the trial court was required to join him on the court's own initiative. For other cases reaching a similar result, see 1 Turner, supra, § 3:6.
To determine the parties' rights in the home without involving the father would have required a second action to determine the father's rights. Such an action would not be "good judicial husbandry," as "[i]t is inefficient use of judicial time and resources to hold successive proceedings, when all claims may be resolved in a single action." Graves, 2012 WL 3854622, at *5 n.12. The case was therefore remanded with instructions to join the father as a party and redetermine the issue.
Posted by Gale Burns on Mon, Oct 08, 2012 @ 11:54 AM
October 9, 2012
Brett Turner, Senior Attorney, National Legal Research Group
In 2007, the Hague Conference on Private International Law finished work on a new multilateral convention on the enforcement of child and spousal support. See Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, Nov. 23, 2007 [hereinafter the "Convention"]. The United States signed the Convention, and on November 29, 2010, the Senate ratified it.
The Convention is implemented in a revised article 7 of the Uniform Interstate Family Support Act ("UIFSA"), which some States have already begun to adopt. Adoption of UIFSA is, of course, a condition upon receipt of federal child support enforcement funding, see 42 U.S.C. § 666(f) (Westlaw current through P.L. 112‑142 (excluding P.L. 112‑140 and 112‑141) approved 7‑9‑12), and while the federal statute presently requires adoption of UIFSA only as it existed in 1996, it is likely that the federal statute will ultimately require adoption of the 2008 version as well.
The Convention adopts into international law the principle of continuing exclusive jurisdiction ("CEJ"), which lies at the heart of UIFSA. Article 18 of the Convention provides:
(1) Where a decision is made in a Contracting State where the creditor is habitually resident, proceedings to modify the decision or to make a new decision cannot be brought by the debtor in any other Contracting State as long as the creditor remains habitually resident in the State where the decision was made.
Convention art. 18(1). Thus, when a child support order is entered in the support provider's habitual residence, support proceedings cannot be brought elsewhere unless the support provider's habitual residence changes. Jurisdiction over support matters, once acquired, is exclusive. See also UIFSA § 711 (specifically applying the CEJ concept to orders from nations that have signed the Convention). There is a series of exceptions, Convention art. 18(2), that apply when the parties agree in writing to give another country jurisdiction, when the support provider voluntarily submits to another country's jurisdiction, when the country with CEJ refuses to rule, or when the original support order cannot be recognized in another country.
Article 20 of the Convention is a broad jurisdictional provision, allowing jurisdiction in the habitual residence of the support provider, the habitual residence of the support recipient, or the habitual residence of the child. The latter two bases are fundamentally inconsistent with American law, which provides that the court cannot make a support order unless it has personal jurisdiction over the support provider, even if the support recipient and the child are domiciled within the court's jurisdiction. Kulko v. Super. Court, 436 U.S. 84 (1978). The Senate resolution ratifying the Convention provides as follows:
The advice and consent of the Senate under section 1 is subject to the following reservations, which shall be included in the instrument of ratification:
(1) In accordance with Articles 20 and 62 of the Convention, the United States of America makes a reservation that it will not recognize or enforce maintenance obligation decisions rendered on the jurisdictional bases set forth in subparagraphs 1(c), 1(e), and 1(f) of Article 20 of the Convention.
S. Exec. Doc. No. 111-2 sec. 2(1). The effect of this reservation is that the United States will continue not recognizing support judgments based only upon the habitual residence of the support recipient or the child, where the support provider lacks minimum contacts with the country that rendered the judgment.
The Convention is a rather unusual treaty, in that the subject matter is treated in the United States as a matter of state law. Because federal law cannot directly control child support, the Convention is not self-executing. In other words, the legal effect of the Convention depends upon the enactment of implementing legislation at the state level. To ensure that state legislation is passed, the necessary rules for implementation were stated as an amendment to UIFSA, with the expectation that the amendment would quickly be enacted by the States. Federal legislation is pending to amend § 666(f) so that all States must, as a condition of receiving federal funds, adopt the current (2008) version of UIFSA.
The necessary changes to UIFSA are made in a new article 7. The new article applies only to child support orders from other countries that are parties to the Convention. Additional documents must be provided when enforcement of a foreign order is sought under article 7, including a case abstract, a statement of enforceability, and proof of notice. UIFSA § 706. If the party requesting enforcement resides outside of the United States, the period for objecting to a petition to register is expanded from 30 days to 60 days for support orders from other signatory nations. UIFSA § 707. Certain private support agreements can be enforced as court orders, if they are signed in countries where such agreements are so enforceable. UIFSA § 710. Orders from countries that have not signed the Convention are outside article 7, and they will continue to be enforced under present notions of comity.
The primary means of enforcement under the Convention is a request from a governmental body (the "Central Authority") in one country to the Central Authority in another country. The Central Authority for the United States is the federal Department of Health and Human Services ("DHHS"). The rule of the DHHS, however, is only to transmit documents and facilitate enforcement. In the United States, orders will continue to be issued only at the state level. There will continue to be no federal involvement in setting child and spousal support.
The Convention is expected to materially increase the enforceability of child and spousal support orders across international borders. Only time will tell whether this expectation is justified.
Posted by Gale Burns on Fri, Sep 28, 2012 @ 03:51 PM
The Lawletter Vol 37 No 6
Sandra Thomas, Senior Attorney, National Legal Research Group
The Supreme Court of Iowa has permitted a man (Dier) who was falsely charged with fathering a child, and who then voluntarily provided support to the child and the mother (Peters), to seek recovery of those support payments in an action alleging common-law fraud. Dier v. Peters, 815 N.W.2d 1 (Iowa 2012).
The child was born to Peters in February 2009. Peters knew that Dier was not the biological father, but she told him that he was. Based on Peters's representations, Dier provided financial support for both Peters and the child.
Dier filed an application seeking custody of the child; when Peters realized she might not get custody, she requested a paternity test. The test excluded Dier as the biological father.
Dier then filed a petition seeking reimbursement from Peters of money given to her, money given to support the minor child, and money spent litigating custody. Peters moved to dismiss the petition, stating that Iowa did not recognize an action for "paternity fraud" and that Dier had therefore failed to state a claim on which relief could be granted. Dier opposed the motion, alleging that all the elements of fraud were present. The trial court granted Peters's motion to dismiss, and Dier appealed.
The Iowa Supreme Court recognized that the "sole issue on appeal is whether Iowa law allows a putative father to bring a paternity fraud action against a biological mother to obtain reimbursement of payments that were voluntarily made." Citing authority from other jurisdictions, the court stated that "paternity fraud" occurs when a mother "makes a representation to a man that the child is genetically his own even though she is aware that he is not, or may not be, the father of the child." Id. at 4 (internal quotation marks omitted). The court noted, however, that Dier "seeks only reimbursement of payments that he made without court compulsion." Id. at 4-5.
The Iowa court recognized that the courts of other jurisdictions are divided on whether to recognize such claims. The courts that do not allow such claims cite considerations of public policy and child welfare. The courts that permit such suits reason that paternity fraud is not unlike other tort claims and should be allowed to go forward if the elements of the tort are met.
The Iowa Supreme Court first reaffirmed those cases that have established that parents cannot obtain retroactive relief from court-ordered child support. The court then noted that Dier was not seeking recovery under Iowa Code § 600B.41A(4)(b), which permits a person in Dier's circumstances to avoid all unpaid and future support obligations. The court then held that "Dier's cause of action appears to fit comfortably within the traditional boundaries of fraud law." Id. at 7.
Under Iowa law, the plaintiff must prove the following to establish a claim of common-law fraud:
(1) [the] defendant made a representation to the plaintiff, (2) the representation was false, (3) the representation was material, (4) the defendant knew the representation was false, (5) the defendant intended to deceive the plaintiff, (6) the plaintiff acted in [justifiable] reliance on the truth of the representation . . . , (7) the representation was a proximate cause of [the] plaintiff's damages, and (8) the amount of damages.
Id. at 7 (internal quotation marks omitted). The court reversed the dismissal of Dier's claim, concluding that the claim was supported by common-law standards for fraud and was not contrary to the public policy of the State. Whether Dier would be able to provide sufficient factual evidence to establish his claim would be determined at trial. The court emphasized, further, that Dier would not be able to recover attorney's fees and costs incurred in the custody litigation with Peters.
Id. at 14.
Posted by Gale Burns on Thu, Aug 16, 2012 @ 11:58 AM
The Lawletter Vol 37 No 4
Brett Turner, Senior Attorney, National Legal Research Group
Can state courts order divorcing parties to file joint federal income tax returns? Joint returns can be filed for any tax year, so long as the taxpayers were married, and not divorced or legally separated, on the last day of that year. See generally 13 William H. Byrnes et al., Mertens Law of Federal Income Taxation § 47:19 (Westlaw database updated July 2012). Ordinarily, a joint tax return will result in a significantly smaller amount of tax due than will two separate tax returns. But some divorcing spouses, often for selfish reasons, will refuse to sign such a return.
State court case law is split on whether the divorce court can actually order a party, under penalty of contempt, to sign a joint tax return. A typical case permitting such an order is the New Jersey decision in Bursztyn v. Bursztyn, 879 A.2d 129 (N.J. Super. Ct. App. Div. 2005):
We do not find persuasive the argument that individuals have a federal statutory right to choose whether to file joint or separate income tax returns which may not be abridged by state courts. In matrimonial actions, courts routinely issue orders which have significant effects on individuals' rights. For example, courts may infringe upon a parent's right to relocate from one state to another. Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001). By contrast, limiting an individual's statutory right to choose between filing a joint or individual federal income tax return seems a minor intrusion.
Id. at 136.
Typical of those cases reaching a contrary result is the very recent Nebraska decision in Bock v. Dalbey, 815 N.W.2d 530 (Neb. 2012). Bock identified four separate reasons for its holding.
"First, the U.S. Tax Court is not bound by orders compelling the parties to sign a joint return. It will look to the husband and wife's intent, and if one of them signed only because a state court ordered him or her to do so, the return may or may not be treated as a joint return." Id. at 535.
"Second, an order compelling the parties to file joint tax returns is a mandatory injunction. A mandatory injunction . . . is considered an extreme or harsh remedy that should be exercised sparingly and cautiously." Id. at 536.
"Third, a resisting spouse's exposure to liability under the federal tax code is too difficult to predict if compelled to file a joint return." Id. at 537.
"Fourth, the rules related to filing deadlines under the federal tax code create practical hurdles to allowing a trial court to compel the parties to file joint returns." Id. A decision to file a joint tax return cannot be revoked after the yearly tax filing deadline has passed, so that a spouse has no effective remedy if an order to file a joint tax return is reversed on appeal.
Be aware, however, that in States following the Nebraska position, the harm caused by filing a separate tax return can be considered as a factor in dividing marital property. "[I]f a party seeking an equitable adjustment presents the court with the tax disadvantages of filing separate returns, a trial court may consider a party's unreasonable refusal to file a joint return" as a division factor. Id. at 536. "A person may file her taxes as she chooses; however, if she unilaterally files separately, causes a larger tax liability for her husband, and is in the process of getting divorced, then she may find that the court in its discretion orders her to pay not only half of the marital tax liability but also the excess portion that is due to her unilaterally filing separately." Norris v. Norris, 7th Dist. No. 01 CA 173, 2002-Ohio-5211, at ¶ 18.
For a case holding a spouse responsible for the harm caused by filing a separate tax return, see Hardebeck v. Hardebeck, 917 N.E.2d 694, 702 (Ind. Ct. App. 2009) (where wife refused to file joint tax returns "out of spite," without good reason, "Husband's additional tax obligation of $8,600 was a significant waste").
For a case finding good reason to file a separate tax return, see Heywood v. Heywood, 12th Dist. No. CA2010-02-013, 2010-Ohio-3565, at ¶ 27 (wife did not act unreasonably in filing separate tax return, where separate return allowed her to avoid early withdrawal tax on husband's unreasonably large withdrawal of funds from his retirement account; withdrawal had been used for husband's sole benefit).
Given the division factor cases, the most prudent option for most divorcing parties is to file a joint tax return for as long as federal law permits. But the state courts may or may not be able to actually order the spouses to file such a return.
Posted by Gale Burns on Wed, Jul 25, 2012 @ 03:02 PM
The Lawletter Vol 37 No 3
Fred Shackelford, Senior Attorney, National Legal Research Group
Proving that the common law continues to evolve, the Virginia Supreme Court has recognized a new cause of action for tortious interference with parental rights. In Wyatt v. McDermott, ___ Va. ___, 725 S.E.2d 555 (2012), an unmarried woman allegedly conspired with attorneys, an adoption agency, and a Utah couple to place her newborn child up for adoption without the knowledge or consent of the child's father. The father sued the couple, the attorneys, and the agency for tortiously interfering with his parental rights, and the Wyatt court was called upon to decide whether this tort exists in Virginia. Noting that no statute provided the answer, the court recognized that the parent-child relationship is a constitutionally protected and valuable right.
The court observed that under English common law, a cause of action existed to provide a father with recourse for abduction of a son or heir who was rendering services. The court also noted that the overwhelming majority of courts in other states have allowed a cause of action for tortious interference with the parent-child relationship. Although the General Assembly has abolished the cause of action for alienation of affections, Va. Code Ann. § 8.01-220, the Wyatt court distinguished the two torts:
"Tortious interference with parental or custodial relationship" intimates that the complaining parent has been deprived of his/her parental or custodial rights; in other words, but for the tortious interference, the complaining parent would be able to exercise some measure of control over his/her child's care, rearing, safety, well‑being, etc. By contrast, "alienation of affections" connotes only that the parent is not able to enjoy the company of his/her child; this cause of action does not suggest that the offending party has removed parental or custodial authority from the complaining parent.
___ Va. at ___, 725 S.E.2d at 562 (internal quotation marks omitted).
The court concluded that a cause of action for tortious interference with parental rights is consistent with existing common law, and set forth its elements as follows:
(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent's parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent's consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party's intentional interference caused harm to the complaining parent's parental or custodial relationship with his/her child; and (4) damages resulted from such interference.
Id. (internal quotation marks omitted).
The court decided that damages may include both tangible and intangible elements, including compensatory damages for expenses incurred in seeking recovery of the child, lost services, lost companionship, and mental anguish. Although no injunctive relief may be granted, punitive damages may be recovered when the interference is intentional and there are compensatory damages. The court added that a claim cannot be asserted by one of the child's parents against the other parent if both parents have substantially equal custodial rights and that an affirmative defense of justification may be asserted when the defendant had a reasonable, good-faith belief that interference was necessary to protect the child from physical, mental, or emotional harm.
Posted by Gale Burns on Wed, Jul 25, 2012 @ 10:14 AM
The Lawletter Vol 37 No 3
Sandra Thomas, Senior Attorney, National Legal Research Group
Courts in several states have interpreted their child support guidelines to allow an order that directs the custodial parent to pay support to the noncustodial parent under appropriate circumstances. Among these is the Supreme Court of Indiana. In Grant v. Hager, 868 N.E.2d 801 (Ind. 2007), that court, with two of the five justices dissenting, held that "there is a rebuttable presumption that a custodial parent is not required to make child support payments under these circumstances but that a trial court has authority to deviate from that presumption in accordance with the Indiana Child Support Rules and Guidelines." Id. at 802.
In Grant, the marriage of the parties was dissolved in 2003. The parents were granted joint legal custody of their two children, with the mother receiving primary physical custody, and, in accordance with the Indiana guidelines, the father was ordered to pay $108 in child support. Two years later, the father filed a petition to modify his support obligation. The father submitted a worksheet showing the mother's annual income of approximately $106,000 and the father's annual income of approximately $56,000; the mother earned 65.4% of the total combined income, and the father earned 34.6%.
The Indiana guidelines directed a total weekly child support obligation for both parents of $517. Calculating the support obligation of each parent in accordance with that parent's percentage of total income, the mother was responsible for $338, and the father for $179.
Under the guidelines, the father was entitled to a Parenting Time Credit in the amount of $216 based on the number of overnights the children spent with him during the year, and he was entitled to a credit of $55 for health insurance premiums paid by him. The total of the father's credits, $271, exceeded his $179 share of the weekly support by $92.
The trial court recognized that the mother was the primary custodial parent but concluded that the guidelines produced a "negative credit" that required modification of the existing support order. The trial court ordered the mother, the custodial parent, to pay child support to the father, the noncustodial parent, in the amount of $92 per week.
The mother appealed, arguing that "the Guidelines cannot result in a custodial parent paying support to the non-custodial parent." Id. at 802-03. The court of appeals agreed with the mother and reversed the child support award to the father. The Indiana Supreme Court granted review.
The supreme court agreed with the court of appeals that the guidelines did not authorize the payment of child support from a custodial to a noncustodial parent.
Rule 2 of the guidelines states a rebuttable presumption that the amount of the award that would result from application of the guidelines is the correct amount. Applying this presumption to the case before it, the court found that there was a rebuttable presumption that neither party owed support to the other. However, Rule 3 of the guidelines provides that if the court concludes that the amount of the award reached through application of the guidelines "would be unjust," the court "shall enter a written finding articulating the factual circumstances supporting that conclusion." Id. at 803.
The court concluded:
Given this deviation authority, a court could order a custodial parent to pay child support to a non-custodial parent based on their respective incomes and parenting time arrangements if the court had concluded that it would be unjust not to do so and the court had made the written finding mandated by Child. Supp. R. 3. The dissolution court's conclusion here may very well be supportable on this basis but the court did not make the required findings here, apparently believing instead that the Guidelines themselves authorized it to order Grant to pay child support to Hager. We remand this matter to the dissolution court for reconsideration in accordance with the principles enunciated in this decision.
Id. at 804.
The two dissenting justices were of the opinion that the trial court's award was authorized by the guidelines, and they would have affirmed the order of the trial court.
Posted by Gale Burns on Fri, Jun 29, 2012 @ 10:56 AM
The Lawletter Vol 37 No 2
Sandra Thomas, Senior Attorney, National Legal Research Group
One of the frequently overlooked sections of the Uniform Interstate Family Support Act ("UIFSA") provides that an award of spousal support can be modified only in the court in which the original order was entered.
The purpose of UIFSA is to provide a means for interstate enforcement of support orders and to address the problem of conflicting support orders by placing continuing exclusive jurisdiction to modify a child support order in the court that has issued the original order so long as the payor, the payee, or the child is still a resident of the original state, or if all parties have consented to the exercise of continuing jurisdiction. The detailed provisions of the Act govern the enforcement and modification of child support provisions in cases in which all parties have left the original jurisdiction. The provisions of the Act can be found at Uniform Interstate Family Support Act 2008 §§ 101-905.
Under 42 U.S.C. § 666, which took effect in 1996, States were required to adopt UIFSA by January 1, 1998 or face loss of federal funding for child support enforcement. Every U.S. State has adopted either the 1996 or a later version of UIFSA, though with some variations.
One of the provisions that is contained in the Act, but has not been universally adopted by the States, is § 211, titled "Continuing, Exclusive Jurisdiction to Modify Spousal-Support Order." That section provides:
(a) A tribunal of this state issuing a spousal-support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal-support order throughout the existence of the support obligation.
(b) A tribunal of this state may not modify a spousal-support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
(c) A tribunal of this state that has continuing, exclusive jurisdiction over a spousal-support order may serve as:
(1) an initiating tribunal to request a tribunal of another state to enforce the spousal-support order issued in this state; or
(2) a responding tribunal to enforce or modify its own spousal-support order.
Unif. Interstate Family Support Act 2008 § 211 (emphasis added).
Unlike the child support provisions, which provide a means for transferring jurisdiction if all parties have left the State that issued the original order, § 211 states that continuing exclusive jurisdiction to modify spousal support exists only in the court that issued the original order.
A recent case that demonstrates the impact of this provision is Sootin v. Sootin, 41 So. 3d 993 (Fla. Dist. Ct. App. 2010). In Sootin, the parties were divorced in Florida in 1998, and the Florida court ordered the husband to pay permanent alimony. The wife subsequently moved to Tennessee. The husband later also moved to Tennessee. He then filed a petition in a Tennessee court to register and modify the Florida judgment.
The wife moved to dismiss the petition, arguing lack of subject-matter jurisdiction. Both Tennessee and Florida have adopted the language contained in § 211 quoted above. See Tenn. Code Ann. § 36-5-2211; Fla. Stat. § 88.2111. During a telephone conference, the Florida judge decided to transfer the cause to Tennessee, and the wife appealed from the transfer order.
Citing the provisions of UIFSA, adopted in Florida and Tennessee, that gave Florida exclusive jurisdiction to modify the spousal support order, the Florida appellate court reversed the transfer order, stating: "Despite the obvious logic of allowing the two former spouses now living in Tennessee to resolve their dispute there, we must reverse. Under UIFSA, the [Florida] court has 'continuing
exclusive jurisdiction over a spousal support order throughout the existence of the support obligation.' [Fla. Stat.] § 88.2051(6) (emphasis added)."
Sootin, 41 So. 3d at 994.