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New
Family Cases From Around the Nation
September
2005
Yang v. Tsui, 03-4714 (United States Court of Appeals, 3rd Circuit, August 3, 2005): In action
under Hague Convention and the International Child Abduction Remedies Act (ICARA), Younger
abstention does not apply to stay proceedings pending state court custody proceeding.
Simpson v. T.D. Williamson, Inc., No. 04-5084 (United States Court of Appeals, 10th Circuit,
July 12, 2005): Under COBRA, 29 U.S.C. §§ 1161-1168, a "legal separation" occurs only upon
entry of a final court decree adjudicating the parties legal rights and obligations but preserving
the marriage bond.
Koebke v. Bernardo Heights Country Club, 31 Cal. Rptr.3d 565, 115 P.3d 1212 (California
Supreme Court, August 1, 2005): A lesbian couple who were registered domestic partners sued
the country club to which one of them belonged, alleging that the club's refusal to extend to them
certain benefits it extended to married members of the club constituted marital status
discrimination under the Unruh Civil Rights Act. The trial court granted summary judgment to
the club. The Supreme Court held that although, prior to enactment of the Domestic Partner Act,
the country club's spousal benefit policy did not constitute either impermissible marital status
discrimination or sexual orientation discrimination on its face, in this case, the lesbian couple
denied benefits under the policy raised issues of material fact, precluding summary judgment in
their action against club for conduct preceding enactment of Domestic Partner Act, as to whether
policy was discriminatorily applied in violation of the Unruh Civil Rights Act.
In re Marriage of Klug, No. CO45571 (California Court of Appeals, Third District, July 7,
2005): The proceeds from a malpractice action were the wife's separate property because the
cause of action for malpractice accrued after the separation of the parties.
Scott v. Scott, 90 Conn. App. 883, 879 A.2d 540 (August 23, 2005): Private boarding schools
attended by child did not constitute "therapy" within meaning of judgment of dissolution, and,
thus, ex-husband was not required to pay one-half of the costs incurred for child to attend these
schools, where there was no indication that child's attendance at those schools related to
treatment of a disorder or that it was necessary for child's overall treatment.
Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (Connecticut Supreme Court, July 26,
2005): A lawyer appointed by the court to represent a child in a divorce action enjoys absolute
immunity from malpractice claims by the parents.
Lashkajani v. Lashkajani, No. SC 03-1275, 30 Fla. L.Wkly. S496 (Florida Supreme Court, June
30, 2005): Provision in prenuptial agreement that attorney fees would be awarded to prevailing
party in any action to enforce agreement was enforceable.
Chivari v. Ferrell, No. 4D04-1366 (Florida District Court of Appeals, Fourth District, August
31, 2005): A judgment of divorce is not per se reversible because it was provided to the court by
the husband, where the court made substantive changes, distinguishing Perlow v. Berg-Perlow,
875 So.2d 383 (Fla. 2004).
Spalding v. Spalding, No. 5D04-2324 (Florida District Court of Appeals, Fifth District, August
5, 2005): Where the father's obligation to pay the college expenses of his daughter was based on
contract, the father was not entitled to terminate that support based on the fact that the daughter
wished to have nothing to do with the father.
Farish v. Farish, No. S05F1180 (Georgia Supreme Court, June 30, 2005): Where the father
earned $10,374 per month, a high-income case, an award of child support to the mother in the
amount of $3,000 per month for three children was not excessive appropriate.
Jones v. Jones, No. 49A02-0501-CV-64 (Indiana Court of Appeals, August 17, 2005): A trial
judge, without the request of either parent who were both practicing Wiccans, entered an order
that neither parent could not expose the parties' child to Wiccanism because it was a religion
outside the mainstream. Father appealed, and mother joined with her. The Court of Appeals
reversed, holding the trial court was without authority to restrict the religious upbringing of the
child without clear evidence of harm to the child.
Santagate v. Tower, 64 Mass. App. Ct. 324 (Massachusetts Appellate Court, August 25, 2005):
Twenty-seven years after the father deserted his family, the mother filed an action against the
father that sought nunc pro tunc establishment of a support order and restitution for her support of
their three children. The Appellate Court held that while the mother could not, under Rule 60(b),
modify the divorce judgment for support, she could obtain restitution for monies she expended
for the support of the children under a theory of unjust enrichment.
Lewis-Miller v. Ross, No. A04-224 (Minnesota Court of Appeals, July 12, 2005): A party who
files a valid petition commencing third-party child custody proceedings under Chapter 257C is
entitled to an evidentiary hearing to prove an interested-third-party status.
Johnston v. Dunham, No. WD 64479 (Missouri Court of Appeals, Western District, August 2,
2005): The wife's relocation with the children over the husband's objections and without the
court's permission constituted violation of child custody statute governing relocation with
children. Thus, the trial court did not abuse its discretion in concluding that the wife's violation of
statute constituted a change in circumstances. The evidence supported the conclusion that
modification of custody of the children from the husband to the wife was in children's best
interests, and the court did not abuse its discretion by failing to consider whether the wife had
relocated with the children in good faith.
Nielsen v. Nielsen, 13 Neb. App. 738, 700 N.W.2d 675 (2005): Adult children sought to set aside
their father's and late mother's divorce decree, alleging their inheritance had been reduced due to
the fraud of their father and his attorney in obtaining the property settlement agreement and
decree. The court held the children lacked standing in their individual capacities to challenge the
decree, as any claim of fraud in procurement of the settlement and decree was the mother's until
her death.
Strong v. Omaha Construction Industry Pension Plan, 270 Neb. 1, 701 N.W.2d 320 (2005): A
spouse can waive his or her rights to ERISA benefits through a divorce decree, and need not
specifically waive beneficiary designation in the plan documents.
Randazzo v. Randazzo, No. A-15-04 (New Jersey Supreme Court, June 28, 2005): A divorce
court may order the sale and distribution of proceeds from the sale of marital property prior to the
final judgment of divorce under a statute that provides the court may make such order as to
alimony or maintenance of the parties as circumstances render fit, just, and reasonable.
R.A.C. v. P.J.S., No. A-6130-02T2 (New Jersey Superior Court, Appellate Division, August 31,
2005): Ex-husband, after being told by ex-wife that he was not the father of the child of the
marriage when the child was 30 years old, sued the alleged biological father, seeking a
declaration of paternity and reimbursement for child support pursuant to the Parentage Act. The
alleged biological father brought cross-claim against the biological mother. The court held that
the ex-husband was entitled to reimbursement for support up to the child's 22nd birthday, the ex-husband did not have fraud, intentional infliction of emotional distress or an unjust enrichment
claims against the biological father, the biological father did not have a cross-claim for
contribution against the mother, since she had paid her share of support.
Diana E. v. Angel M., 2005 N.Y. Slip Op. 06180 (New York Appellate Division, First
Department, July 28, 2005): Putative father would be estopped from requesting genetic market
test to determine paternity where he had been present at birth, had acknowledged paternity by
signing documents to have himself listed as child's father on birth certificate, and had held
himself out as child's father for nine years, and continued to visit child for another two years.
Galvin v. Francis, 2005 N.Y. Slip Op. 06099 (New York Appellate Division, Second
Department, July 25, 2005): Husband was not entitled to distributive share of assets titled solely
in wife's name, where the parties kept their finances separate during course of marriage,
conducted themselves during the marriage in a manner inconsistent with the typical "economical
partnership," and the husband failed to provide any significant financial resources to the
marriage.
Leach v. Santiago, No. 2005 N.Y. Slip Op. 05950 (New York Appellate Division, Third
Department, July 14, 2005): The custodial mother seeking relocation with the child to pursue an
employment opportunity failed to demonstrate how the proposed move would enhance her
desired career path or how the move was in child's best interests, where the mother's testimony
was vague, her purported job search in her current area was entirely undocumented, and it was
readily apparent from the record that moving the child would have substantial impact on the
child's relationship with the father.
Mayo v. Mayo, No. COA04-1334 (North Carolina Court of Appeals, August 16, 2005): The
wife's concealment of five of her seven prior marriages constituted sufficient fraud to serve as a
basis for annulment.
Clark v. Foust-Graham, No. COA 04-1266 (North Carolina Court of Appeals, July 19, 2005):
As matter of first impression, a marriage may be annulled on the grounds of undue influence.
Ebach v. Ebach, No. 20040306 (North Dakota Supreme Court, July 13, 2005): Totality-of-the-circumstances analysis applies in determining whether supporting spouse's voluntary retirement
constitutes a material change in circumstances that would support modification of spousal
support obligation; factors include supporting spouse's age, health, and motivation for retirement,
age at which others engaged in same line of work normally retire, needs of receiving spouse, and
ability to pay support after retirement.
In re Marriage of Branscomb, 201 Or. App. 188 (Oregon Court of Appeals, August 10, 2005):
Application of minority discount, which takes into account relationship between interest being
valued and total enterprise, and application of marketability discount, which offsets an interest's
impaired transferability, was not warranted when valuing the husband's minority interest in a
partnership which owned parcel of real property. The husband would never need to sell his
minority share on open market because, under partnership agreement, he would either sell to
remaining partners or entire parcel would be sold.
In re Marriage of Timm, 200 Or. App. 621 (Oregon Court of Appeals, July 27, 2005): Court
may divide property acquired during period of premarital cohabitation, but such property is not
subject to the presumption that it should be divided equally.
Neely v. Thomasson, No. 26024 (South Carolina Supreme Court, August 15, 2005): Intestate's
siblings brought declaratory action, seeking determination of intestate's heirs. The Circuit Court
affirmed the decision of the probate court that Intestate's daughter, born out of wedlock, was not
an heir of the estate. The Supreme Court held that the probate court has subject-matter
jurisdiction to determine paternity for the purpose of determining heirs (overruling Simmons v.
Bellamy, 349 S.C. 473, 562 S.E.2d 687); a prior divorce proceeding can constitute a prior
adjudication of paternity; and siblings could not raise issue of daughter's paternity.
In re J.I.Z., No. 13-04-066-CV (Texas Court of Appeals, Corpus Christie-Edinburg, August 18,
2005): An adjudicated father who later learns through DNA testing that he is not the child's
biological father may not file a motion to modify child support as a means of terminating his
support obligation; he must instead overturn the parentage judgment or terminate his parentage
by filing a bill of review, an equitable proceeding to set aside original support judgment which
was no longer appealable or subject to motion for new trial.
Denise v. Tencer, Nos. 1833-04-4, 1878-04-4 (Virginia Court of Appeals, August 16, 2005):
After mother's death, father and grandfather entered into a joint custody agreement which was
approved by the court. When the father moved to modify custody to his sole custody, the court
properly applied a best interests analysis, and the father was not entitled to any parental
presumption.
Soltero v. Wimer, No. 22942-4-III (Washington Court of Appeals, Division 3, July 12, 2005):
The trial court did not abuse its discretion by awarding a female cohabitant $135,000 as an
equitable property distribution at end of relationship, even though themale cohabitant's property
and business assets were acquired before the relationship or purchased with separate funds, where
the female cohabitant contributed resources to the success of the male cohabitant's businesses as
more than just an employee, the male cohabitant exclusively devoted his community-like
endeavor to the improvement of his separate interests, and the male cohabitant's net estate grew
from $1.5 million to in excess of $4.5 million during relationship.
Johnson v. Rogers Memorial Hospital, Inc., et al., Nos. 2003AP784 & 2003AP1413
(Wisconsin Supreme Court, July 8, 2005): Public policy requires exception to therapist-patient
privilege and to the confidentiality in patient health care records where negligent therapy causes
false accusations against the parents for sexually or physically abusing their child. The exception
is not unlimited and is implicated only where the plaintiff can establish a reasonable likelihood
that negligent therapy occurred and the trial court agrees that the records contain relevant
information regarding negligent treatment after conducting an in camera review.
NEWS ITEM:
The California state Senate passed a bill allowing same-sex marriage, and on September 7, 2005,
the state Assembly followed . Gov. Arnold Schwarzenegger on September 8, 2005 indicated he
would veto the bill, saying the matter belonged in the courts. Here.
(Ed. Note: Pres. Bush declared that the issue of gay marriage should not be decided by "activist
judges" but should be decided by state legislatures.)
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