Family Law From Around the Nation - Spring 2019

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State Bar of Texas Section Report - Family Law - Spring 2019

by Jimmy L. Verner, Jr.

Troxel tweaked: Troxel (530 U.S. 57) continues to ripple through the states. In Pennsylvania, “non-biological grandparents” who stand in loco parentis to a child’s parent have standing to seek visitation rights despite Troxel. Peters v. Costello, 891 A.2d 705 (Pa. 2005). A Kansas appellate court engrafted Troxel’s requirements onto Kansas’ stepparent visitation statute to make it constitutional. Riggs v. Hem, 129 P.3d 601 (Kan. App. 2006) (after musing whether it would “offend botanists” by “grafting the branch of a pear tree onto an apple tree”). Absent an allegation of parental unfitness, forcing a parent to defend against a grandparent visitation claim itself violates parents’ rights to make decisions about their children. E.g., Conlogue v. Conlogue, 890 A.2d 691 (Me. 2006) (collecting cases). However, a fit parent seeking to regain custody of a child does not enjoy Troxel’s protections because Troxel applies only to a parent who has custody of a child. In re: L.V., 38 Cal. Rptr. 3d 894 (Cal. App. 2006).

So far away: Moving to Indiana to make video documentaries for a fundamentalist missionary can lose custody for a mother in Alabama. Ex parte Snider, 2005 Ala. LEXIS 205 (Nov. 18, 2005). An Oregon court allowed the children to accompany their mother to Norway when it found that the father played “a far more limited role” in caring for the children than did the mother. Hamilton-Waller v. Waller, 123 P.3d 310 (Ore. App. 2005). When a New York mother moved to Colorado without first telling the father - and said she was staying whether or not the child returned - the trial court properly granted custody to the father. Willis-March v. Wilkerson, 803 N.Y.S.2d 231 (App. Div. 2005).

QDROs and death: When divorced and remarried father died, second wife received his survivor benefits as against children from first marriage because there was no QDRO to effectuate assignment of rights awarded to first wife in divorce. Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir. 2006). A Maryland court allowed a post-mortem amendment to a QDRO caused by “inadvertent drafting mistakes.” Eller v. Bolton, 2006 Md. App. LEXIS 38 (Mar. 31, 2006).



Same-sex relationships: A challenge to the Defense of Marriage Act (permits a state to deny full faith and credit to same-sex marriages from another state) failed because the same-sex couple wasn’t married in any state. Smelt v. County of Orange, California, 2006 U.S. App. LEXIS 11243 (9th Cir. Apr. 4, 2006). In Massachusetts, where same-sex marriage is allowed, nonresident same-sex couples have no right to issuance of a marriage license. Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006). In two recent cases, lesbian partners have been allowed to proceed with parental rights suits against former partners despite fact that partners were not “parents” because their former partners were inseminated artificially by third persons. In re: Parentage of L.B.,122 P.3d 161 (Wash. 2005) (en banc); In re: Parentage of A.B., 837 N.E.2d 965 (Ind. 2005).

Parentage disputes: Paternity fraud is intrinsic (not extrinsic) fraud, so Florida’s one-year limitations statute barred a suit to recoup child support. Parker v. Parker, 916 So. 2d 926 (Fla. App. 2005). South Carolina’s Supreme Court held that there is no limitations period for a paternity suit. Smith v. Doe, 623 S.E.2d 370 (S.C. 2005) (mother filed suit in behalf of mentally handicapped 34-year-old). After a wife’s death, her former lover was equitably estopped from seeking a determination of parentage against widower when former lover had reason to know he was child’s father and widower married wife knowing she was pregnant by another man. Robert P. v. Vito C., 804 N.Y.S.2d 802 (App. Div. 2005). When surrogate parents “decided to keep the triplets for themselves,” an Ohio appellate court made them pay back their $20,000 fee and $24,000 in expenses plus awarded attorney’s fees against them. J.F. v. D.B., 2006 Ohio App. LEXIS 1074 (Mar. 15, 2006) (quite a saga - four lawsuits, conflicting interstate rulings).



Termination: An agreement to terminate parental rights (along with child support obligation) is void as against public policy in California. Kristine M. v. David P., 37 Cal. Rptr. 3d 748 (Cal. App. 2006). In Georgia, a court should reject such an agreement when it is not in the child’s best interest. Taylor v. Taylor, 623 S.E.2d 477 (Ga. 2005). Being convicted of a felony in itself does not justify termination, says a California appellate court. The facts underlying the felony must show parental unfitness. In re: Baby Girl M., 38 Cal. Rptr. 3d 484 (Cal. App. 2006).

Prenuptials: After 18 years of marriage and four children, with husband’s net worth in excess of $22 million, the Georgia Supreme Court enforced a prenuptial agreement that granted wife $2,900 per month of alimony for four years and husband all the marital assets. Mallen v. Mallen, 622 S.E.2d 812 (Ga. 2005). In another case, the Georgia Supreme Court held that husband’s failure to disclose his income was material to wife’s decision to waive alimony and thus affirmed trial court’s denial of husband’s summary judgment motion. Corbett v. Corbett, 2006 Ga. LEXIS 204 (Mar. 27, 2006). A North Carolina court reversed a summary judgment for husband when wife questioned the voluntariness of the prenuptial agreement which was presented to her while en route to the wedding. Kornegay v. Robinson, 625 S.E.2d 805 (N.C. App. 2006).  An Oregon appellate court held that a choice-of-law clause in a premarital agreement meant that California law governed construction of the agreement but Oregon law applied to the property division. Procter v. Mavis, 125 P.3d 801 (Ore. App. 2005).

Child support: A California trial court erred when it included the value of stock as income for child support purposes because the stock - unlike stock options - was given in exchange for a capital asset, not as part of an employee compensation package. In re: Marriage of Pearlstein, 40 Cal. Rptr. 3d 910 (Cal. App. 2006). An attorney who filed suit for fees against his former client’s estate accepted an assignment of the former client’s interest in a child support arrearage owed by the former client’s ex-husband, but a Florida court held that the child support arrearage belonged to the children, not the estate. Thurlow v. LaFata, 915 So. 2d 737 (Fla. App. 2005). In California, a portion of a lump-sum unallocated personal injury settlement can be considered as income for child support purposes when it includes compensation for lost income and earning capacity. In re: Marriage of Heiner, 39 Cal. Rptr. 3d 730 (Cal. App. 2006). A change in exchange rates for Swiss francs constituted a material change of circumstances for child support purposes. Hixson v. Sarkesian, 123 P.3d 1072 (Alas. 2005).

Characterization: Stock options given to a husband three days before he filed for divorce were not part of the marital estate because the husband acquired them after the parties separated and to induce him to take a new job. Robertson v. Robertson, 885 A.2d 470 (N.J. Super. App. 2005). A Florida trial court was reversed for failing to consider 100% of a husband’s vacation time as a marital asset subject to division on divorce. Purpura v. Kelly, 913 So. 2d 110 (Fla. App. 2005).

Valuation: A trial court erred by failing to make “an active appreciation analysis” with respect to the increase in value of a business owned 95% as husband’s separate property, but trial court did not err by refusing to apply minority discount to wife’s 5% share of business because husband was buying out wife’s interest. Hanson v. Hanson, 125 P.3d 299 (Alas. 2005). Personal goodwill should not have been included in a Louisiana court’s valuation of a separately incorporated endoscopy center because it served merely as an extension of husband’s medical practice. Rao v. Rao, 2005 La. App. LEXIS 2354 (Nov. 4, 2005).  



Division: A Pennsylvania appellate court affirmed an award of 100% of the martial estate plus equitable reimbursement of $83,830 to wife after husband obtained his M.D. and Ph.D. and completed his residency during marriage. Wang v. Feng, 888 A.2d 882 (N.J. Super. 2005). A California wife who siphoned off nearly all the husband’s IRA to pay bills and taxes during marriage could not be held liable for breach of fiduciary duty because legislature enacted statute creating the duty after parties’ marriage. In re: Walker, 2006 Cal. App. LEXIS 613 (Apr. 27, 2006). When parties both delayed transfer of part of 401k to wife, and the 401k declined in value, an Alabama court required the parties to share the loss. Buchanan v. Buchanan, 2005 Ala. Civ. App. LEXIS 736 (Dec. 9, 2005).

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