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    Family Law Legal Research Blog

    Gale Burns

    Recent Posts

    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

    FAMILY LAW: Modification of Alimony Agreement

    Posted by Gale Burns on Mon, Feb 2, 2015 @ 13:02 PM

    The Lawletter Vol 39 No 11

    Sandra Thomas, Senior Attorney, National Legal Research Group

         The Appeals Court of Massachusetts has affirmed a trial court's dismissal of a complaint filed by a former husband seeking to decrease or terminate his alimony obligation because he had reached "full retirement age," defined under Massachusetts statute as "the payor's normal retirement age to be eligible to receive full retirement benefits under the United States Old Age, Survivors, and Disability Insurance program," i.e., Social Security. Lalchandani v. Roddy, No. 13-P-1988, 2014 WL 7447305, at *4 n.6 (Mass. App. Ct. Jan. 5, 2015) (quoting Mass. Gen. Laws ["M.G.L."] ch. 208, § 48 (inserted by St.2011, c. 124, § 3)).

         The parties divorced in 1992 after more than 20 years of marriage. The separation agreement entered into between the parties was incorporated, but not merged, into the judgment of divorce and thus retained independent legal significance. Included in the agreement was a provision that the husband would pay $4,333.33 per month to the wife as alimony until the death of either party or the wife's remarriage. The agreement allowed the parties to modify its terms by written agreement. In 1996, the wife filed a complaint for contempt against the husband for, among other things, unpaid alimony.

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    Topics: family law, modification of alimony agreement, retirement

    Windsor Update: Not with a Whimper, but a Bang—U.S. Supreme Court Accepts Same-Sex Marriage Cases

    Posted by Gale Burns on Mon, Jan 19, 2015 @ 10:01 AM

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

         Just a few months ago, the U.S. Supreme Court denied review over two same-sex marriage cases, creating a possibility that same-sex marriage might become the law of the land through a series of denials of certiorari, without any further opinions from the Court.

          But the Sixth Circuit then rejected the concept of a broad federal right to same-sex marriage. On January 16, 2015, the Supreme Court accepted petitions for certiorari in four separate same-sex marriage cases, thus agreeing to address directly the Circuit Court split and to decide whether federal law requires recognition of same-sex marriages. The cases will together constitute perhaps the highest-profile litigation in the Court's 2015 term.

         The four cases are Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. All were decided in the Sixth Circuit, which is presently the only Circuit holding that states may restrict the right of same-sex persons to marry.

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    Topics: family law, Windsor update, same-sex marriage, certiorari granted

    Windsor Update: The Sixth Circuit Creates A Real Circuit Court Split On Same-Sex Marriage

    Posted by Gale Burns on Fri, Nov 7, 2014 @ 14:11 PM

    Brett Turner, Senior Attorney, National Legal Research Group

               In a long-awaited decision, the Sixth Circuit has ruled on a series of cases involving attacks upon state laws and constitutional provisions preventing recognition of same-sex marriages. DeBoer v. Snyder, No.14-1431 (6th Cir. Nov. 6, 2014). Unlike the Fourth, Seventh, Ninth, and Tenth Circuits, the Sixth Circuit held by a 2-1 majority that such provisions are not unconstitutional.

               The Sixth Circuit ruling is grounded solidly in the fundamental principle of respect for the democratic process. The court began with the premise that all civilized nations refused to recognize same-sex marriage until the very recent past. It recognized that law on this subject was changing rapidly even before the federal courts became involved and that the trend was strongly in favor of increased recognition. Indeed, "[f]rom the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen." Slip op. at 7.

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    Topics: Windsor update, split amoung courts, Sixth Circuit

    Windsor Update: Not With A Bang, But A Whimper

    Posted by Gale Burns on Wed, Oct 8, 2014 @ 10:10 AM

    The Supreme Court Denies Review of the Fourth and Tenth Circuit Decisions

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    Windsor Update: A Split Finally Develops on Whether States Can Constitutionally Ban Same-Sex Marriage

    Posted by Gale Burns on Thu, Sep 11, 2014 @ 17:09 PM

    Brett Turner, Senior Attorney, National Legal Research Group 

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    Topics: legal research, family law, Brett turner, Windsor, constitutional ban of same-sex marriage, Robicheaux v. Caldwell, E.D. Louisiana, held restrictions are constitutional, sexual orientation not a suspect class, restriction directly related to linking children w, relied on democratic process, held constitutional restrictions not motivated by

    Windsor Update: The Seventh Circuit Rules

    Posted by Gale Burns on Thu, Sep 11, 2014 @ 13:09 PM

    Brett Turner, Senior Attorney, National Legal Research Group

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    Topics: legal research, family law, Brett turner, Windsor, Baskin v. Bogan, 7th Circuit, Wisconsin and Indiana constitutions implicated, court held restrictions lack rational basis, sexual orientation is suspect class, Wisconsin argued tradition and democratic process

    Windsor Update: Kitchen v. Herbert Headed to the Supreme Court

    Posted by Gale Burns on Wed, Jul 30, 2014 @ 16:07 PM

    Brett Turner, Senior Attorney, National Legal Research Group

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    Topics: legal research, Brett turner, Windsor update, Kitchen v. Herbert, writ of certiorari

    Windsor Update: Bostic v. Schaefer—The Fourth Circuit Rules

    Posted by Gale Burns on Wed, Jul 30, 2014 @ 15:07 PM

    Brett Turner, Senior Attorney, National Legal Research Group

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    Topics: legal research, Fourth Circuit, family law, Brett turner, Windsor update, Bostic v. Schaefer, same-sex marriage a fundamental right, no compelling state interest, Niemeyer dissent

    Windsor Update: Second-Day Reflections on Tenth Circuit's Opinion in Kitchen v. Herbert

    Posted by Gale Burns on Thu, Jun 26, 2014 @ 14:06 PM

    Brett Turner, Senior Attorney, National Legal Research Group

         After 24 hours of reflection, the Tenth Circuit's opinion in Kitchen v. Herbert is looking weaker.

         The foundational premise of the majority opinion is that the fundamental right to marriage extends to same-sex couples. This was the critical point of difference with the dissent, which argued that the fundamental right of marriage should not be so extended.

         Why, then, did the majority hold that the right to marriage was fundamental?  The court's reasoning was as follows:

         1.         In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court held that the fundamental right to marriage extends to interracial couples.

         2.         In Zablocki v. Redhail, 434 U.S. 374, 384 (1978), the Supreme Court held that the fundamental right to marriage extends to delinquent child support obligors.

         3.         In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that the fundamental rights to marriage extends to prison inmates.

         4.         Because "the Supreme Court has traditionally described the right to marry in broad terms independent of the persons exercising it," Kitchen slip. op. at 35-36, the fundamental right of marriage is unconditional and extends to everyone.

         Unfortunately, the above reasoning is clearly wrong.  If the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry his or her brother or sister. But no court has ever held, and few commentators have ever argued, that there is a fundamental right to commit incest.

         Likewise, if the fundamental right of marriage extends to everyone, with no qualifications, then it extends to a person who wants to marry someone who is already married to someone else. But no court has ever held, and almost no commentators have ever argued, that there is a fundamental right to commit bigamy.

         It is true that the Supreme Court has rarely found that the right to marriage is qualified. But it a fundamental fallacy to assume that the universe of cases coming before the appellate courts is the same as the total universe of cases. Appellate courts hear only a very small portion of the cases heard in the trial courts, and the trial courts themselves hear only a very small portion of the total cases filed. Only the closest cases are heard on appeal. 

         One therefore cannot assume that the fundamental right to marry is unqualified merely because the Supreme Court has rarely found a qualification. It is very possible, and this instance highly likely, that the qualifications are so obvious that no one has been willing to bear the expense of arguing against them at the Supreme Court level. Surely, if the issue were to come before the Supreme Court, the Court would recognize that there is no fundamental right to commit incest or bigamy.

         The primary reasoning process by which the Kitchen court found infringement of the fundamental right to marry is therefore deeply flawed. The fundamental right to marry is not "independent of the persons exercising it." Id. at 36. At a minimum, it does not apply in cases of incest or bigamy. If the fundamental right to marriage is limited in some ways, it can be limited in other ways.

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    Topics: legal research, family law, Brett turner, Windsor update, Kitchen v. Herbert, majority opinion erroneous, fundamental right to marriage has qualifications, right to marriage is qualified

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