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Family Law – Outline
Chapter 1 – A Brief History of American Family Law: (pg. 1-36)
1. Moore v. City of East Cleveland: (Challenge to Definition of Family: Single family) (pg. 3)
a.
Housing Ordinance:
i. Housing Ordinance limits occupation of dwelling to single family
1.
Section 1341.08: “FAMILY” means a number of individuals RELATED to
the NOMINAL HEAD OF HOUSEHOLD (or spouse) living as single
housekeeping unit in a single dwelling unit but LIMITED by the following:
a. A FAMILY MAY NOT include more than one dependent married or
unmarried child and the spouse and dependent children of such
dependent child
b. Background:
i. Mrs. Inez Moore lives w/ her son Dale Moore Sr. and her two grandsons, Dale Jr. and
John Moore Jr. (who came to live with grandmother after death of his mother).
ii. City notified her that John is an illegal occupant.
iii. When she did not evict him, she was convicted and spent 5 days in jail and paid $25 fine
c.
RULE:
i. The Court has long recognized that FREEDOM OF PERSONAL CHOICE in matters of
MARRIAGE AND FAMILY LIFE is one of the LIBERTIES PROTECTED by the
Due Process Clause of the 14th Amendment.
ii. Principle which allows federal courts to PROTECT certain FUNDAMENTAL
RIGHTS from GOVERNMENT INTERFERENCE under authority of Due Process
Clause of 5th and 14th to the Constitution. TRADITION of grandparents, aunts,
uncles, LIVING TOGETHER has ROOTS EQUALLY VENERABLE and
DESERVING OF CONSTITUTIONAL RECOGNITION. Statute unconstitutional.
d. Analysis:
i. Belle Terre only PREVENTED more than 2 UNRELATED INDIVIDUALS from
LIVING TOGETHER.
1.
Ordinance expressly allowed all who were RELATED BY “BLOOD,
ADOPTION, OR MARRIAGE” to LIVE TOGETHER which promoted
“family needs” and “family values”
a. NOTE:
i. This intrudes into family
ii. Court considered the STATE INTERESTS:
1. PREVENT OVERCROWDING
2. MINIMIZE TRAFFIC CONGESTION
3. AVOID OVERCROWDING SCHOOLS
a. NOTE:
i. These are legitimate goals
e. Take Away:
i. Situation in which individuals OPERATING AS A FUNCTIONAL FAMILY BUT NO
LEGAL RECOGNITION
1. Might be protected
ii. Belle Terre  Situation where NO BLOOD RELATION
1. Might not be protected
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2. HYPO:
a. The town of Traditionville restricts land use in one part of town to one-family dwellings, defining
the word ‘family’ to mean one or more persons related by blood, adoption, or marriage, or not
more than two unrelated persons, living and cooking together as a single housekeeping unit. John
Jones and Mary Smith live together without benefit of marriage. The household includes Mary’s
children from a previous relationship. Mary is told that her permitting John to live there is a
violation of the statute, and that she is subject to fine unless she evicts him. Mary challenges the
statute as unconstitutional. What result?
A. City of East Cleveland establishes that the Traditionville housing ordinance is unconstitutional.
B. Because John and Mary are unmarried, the housing ordinance is clearly constitutional.
C. Because John has no legal relationship with the children, he can be evicted without violating
constitutional guarantees.
D. It is simply unclear whether City of East Cleveland would be extended to provide
constitutional protection in this kind of case.
3. Maynard v. Hill (Power of legislature to divorce a married couple; Effect of Divorce) (pg. 18)
a. Background:
i. In 1828, David (who died 1973) and Lydia Maynard (who died 1979) marry in Vermont
1. In 1850, move to Ohio w/ 2 children, Henry & Frances.
2. In 1850, David leaves family, goes to Oregon. (I’ll send for you within 2 years and send $
in meantime.)
3. In April 1852, he settles on 640 acres in Oregon
4. In Dec, 1852 he secures divorce from Oregon Legislature
5. In 1853, he marries Catherine
6. In 1856, claims land (having cultivated it for 4 years)
7. He is awarded west half. Catherine east.
ii. Once hearing what had happened, Lydia challenges.
1. She at first awarded property east half.
2. Then neither wife awarded because Lydia not wife until 1956 and Catherine not wife at
time land acquired.
3. Treated as public land. Hill & Lewis acquired interest therein.
b. RULE:
i. MARRIAGE as creating the most important relation in life, as having more to do
with morals and civilization of people than any other institution, has ALWAYS been
SUBJECT to CONTROL of LEGISLATURE.
ii. Legislature decides:
1. Age at which parties may contract to marry
2. Procedure or form essential to constitute marriage
3. Duties and obligations, it creates
4. Effects upon the property rights of both, present and prospective
5.
The acts which may constitute grounds for this dissolution
c. Analysis:
i. Assembly had power over marriage/divorce.
ii. When VALIDITY OF ACTS DISSOLVING MARRIAGE ASSAILED, legitimacy of
children, peace of families, settlement of estates at RISK
iii. Husband has a possessory interest in half / Neither wife was a wife during the
whole period of cultivation causing neither to have an interest / other half of land
is publicly owned
iv. Divorce upheld because a lot of issues would stem from such result
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4. Ankenbrandt v. Richards: (Does Federal Court Have Diversity Jurisdiction Over Parties in
Tort Action?) (pg. 27)
a. Background:
i. Carol Ankenbrandt (Missouri) brings suit on behalf of daughters L.R. & S.R. against Jon
Richards (father) & Debra Kesler (his girlfriend) (both from Louisiana)
ii. Seek monetary damages for alleged sexual/physical abuse
b. RULE:
i. The Federal Courts have NO DIVERSITY JURISDICTION over suits for
DIVORCE, THE ALLOWANCE OF ALIMONY, or CHILD SUPPORT
ii. Domestic Relations Exception:
1. As matter statutory construction— DIVERSITY JURISDICTION limited to
suits of a CIVIL NATURE at common law or in equity. DOES NOT include:
a. GRANTING DIVORCE
b. AWARDING ALIMONY
c. AWARD OF CHILD CUSTODY
iii. State courts have more expertise in these matters
c. Analysis:
i. In Barber v. Barber, wife sought to enforce NY divorce decree in which she granted
alimony. Wisconsin Federal Court said SHE HAD DIVERSITY JURISDICTION to
ENFORCE JUDGMENT and gave judgment to the wife.
ii. Court concluded that the COURT OF APPEALS ERRED by affirming the District
Court’s ruling to DECLINE JURISDICTION based on the DOMESTIC RELATIONS
EXCEPTION to DIVERSITY JURISDICTION.
1. The allegations in this complaint DO NOT request the District Court to
issue a DIVORCE, ALIMONY, OR CHILD CUSTODY DECREE, the suit is
appropriate for the exercise of Diversity Jurisdiction given the existence of
DIVERSE CITIZENSHIP between the PARTIES and the PLEADING of the
RELEVANT AMOUNT IN CONTROVERSY
5.
Meyer v. Nebraska (Challenge to conviction for teaching German) (pg. 33)
a. Background:
i. Meyer, instructor in Zion Parochial School, unlawfully taught German to a 10yr old
Raymond Parpart (who had not passed the 8th grade)
b. Nebraska Law:
i. NO PERSON, individually or as a teacher, SHALL, in any private, denominational,
parochial or public school, TEACH ANY SUBJECT to ANY PERSON in ANY
LANGUAGE other than the ENGLISH LANGUAGE.
ii. LANGUAGES other than the English language MAY be TAUGHT as languages
only after a pupil SHALL have attained and successfully passed the EIGHTH
GRADE as evidenced by a certificate of graduation issued by the county superintendent of
the county in which the child resides
iii. ANY PERSON who VIOLATES any of the provisions of this act SHALL be deemed
guilty of a misdemeanor and upon conviction SHALL be subject to a fine of not less
than $25, nor more than $100, or be confined in the county jail for any period
not exceeding 30 days for each offense
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c. Purpose:
i. English should be/become the mother language of all children reared in the state
d.
RULE:
i. 14th Amendment:
1. No state shall deprive any person of life, liberty or property w/o due process of
law.
2. Liberty—not merely freedom from bodily restraint but right to contract,
engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.
3. This liberty may not be interfered with under the guise of protecting the
public interest by legislative action which is arbitrary or without
reasonable relation to some purpose with in the competency of the state
to effect.
e. Application:
i. Knowledge of German CANNOT be thought harmful.
ii. His right to teach and the right of parents to engage him so to instruct are
within reach of Amendment.
iii. Statute permits dead languages.
iv. Power of state to require school attendance and to make reasonable school
regulations not questioned.
Chapter 2 – Pre-Marriage Issues: (pg. 41 – 83)
Engagement Rings
1. McGrath v. Dockendorf (Recovery of Engagement Ring) (pg. 42)
a. Background:
i. On Aug. 25, 2012, Ethan Dockendorf proposes to Julia McGrath, giving her a two-carat
engagement ring (26K).
ii. On September 2013, he calls off engagement because of relationship deterioration.
iii. He seeks return of ring, arguing conditional gift.
iv. She claims that his action barred by statute, which bars actions for breach of promise to
marry.
b. Breach of Promise:
i. Traditionally this TORT (among heart balm causes of action—breach of promise to marry,
alienation of affections, criminal conversation) PERMITTED RECOVERY for
IMPROPER BREACH OF ENGAGEMENT (injury to feelings, affections, and
wounded pride)
ii. Many legislatures (including Virginia) BARRED these causes of action.
c. Conditional Gift:
i. But Virginia also PERMITS RETURN OF ENGAGEMENT RING (conditional gift)
when MARRIAGE DOES NOT OCCUR.
ii. Statutory bar targets heart balm actions and says nothing about conditional gifts.
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d. RULE:
i. Detinue Action:
1. The Plaintiff MUST have PROPERTY in the THING SOUGHT to be
RECOVERED;
2. He MUST have the RIGHT to its IMMEDIATE POSSESSION;
3. it MUST be CAPABLE of IDENTIFICATION;
4. the PROPERTY MUST be of SOME VALUE; AND
5.
The DEFENDANT MUST have had POSSESSION at some time PRIOR to
INSTITUTION OF ACTION
e. Analysis:
i. Damages Limited
1. Here, Plaintiff (if successful) either gets RETURN OF PROPERTY or its
VALUE.
2. Damages not open-ended.
3. Further, unlike intentional infliction claim based on adultery (which is too close to
alienation of affections or criminal conversation)
ii. Court held that the HEART BALM STATUTE DOES NOT BAR a DETINUE
ACTION to recover CONDITIONAL GIFTS
1. The engagement ring was giving as a conditional gift in contemplation of marriage
2. The marriage did not occur
3. McGrath needs to either return the ring within 30 days or a judgment will be
entered favoring Dockendorf, for the value of the ring ($26,000).
Fraudulent Inducement to Marry
1. Montenegro v. Avila: (Challenge to Marriage Annulment) (pg. 48)
a. Background:
i. Miguel Montenegro married Yamel Avila
1. Met on internet dating website / She teacher in El Paso and He was studying engineering
in Bagota, Columbia.
2. They met in Juarez, Mexico in 2004.
ii. He proposed
1. On Nov. 2004 she traveled to Columbia and accepted his proposal
iii. Married Sept. 3, 2005
1. He brought little to no money with him.
2. They live w/ her father.
3. He immediately applies for 2-year residency card.
4. He was added to her bank account and made Monthly withdrawals of $100-$400. He
claims the money was used to pay an old debt.
iv.
v.
vi.
vii.
He rejected sexual advances and used condoms.
Telephone costs $510-$1340/mo.
He obtained work at Southwest Key Corp.
July 2007 attend VAWA training
viii. He acted strangely once he received his permanent green card.
1. He received $4000 cash advance credit card
2. Make car ready
3. Return to domestic violence center. Stated being abused by wife. Wants abuse to stop.
4. Tells his mother he is leaving.
5. Open account in Katy, TX.
ix. She learned he tricked her after Feb. 12, 2008
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b. RULE:
i. NO COHABITATION since Avila found out Montenegro tricked her, court found
FRAUD going to ESSENTIALS OF MARRIAGE, he never intended to have
children with her, ANNULMENT UPHELD.
ii. Many states RESTRICT the BASIS for ANNULMENT, whether it be FRAUD OR
MISREPRESENTATION, to the ESSENTIALS OF MARRIAGE
1. Essentials of Marriage :
a. Willingness to have SEX
b. Willingness to have CHILDREN
Can LIE about:
c. Financial situation
d. Family
iii. Merely because one party defrauds another party with respect to one of the
ESSENTIALS OF MARRIAGE DOES NOT mean that the MARRIAGE MUST be
ANNULLED
1.
Once the defrauded party learns of the truth, he/she still has the option of
CONTINUING THE MARRIAGE
2. The defrauded party can forgive the deception ORALLY or through his/her
ACTIONS
iv. Defrauded Party MUST have NO RATIFICATION
1. EXAMPLE: No cohabitation since fraud discovered
2. Hypo:
a. Jack and Jill have a whirlwind romance and decide to marry. Jack is particularly pleased
because he had always wanted to marry a doctor. However, three months into the marriage
he learned that Jill was a doctor of philosophy and that her income was about one fifth of
what he had been expecting. He seeks to have the marriage annulled, claiming fraud. What
result?
1.
Because Jill was in fact a doctor, there was no fraud. However, Jack would have been
successful had Jill only received a master’s degree.
2. Assuming that Jill knew what kind of doctor Jack was hoping to marry, he will likely
be successful even though she technically is a doctor.
3. Because this alleged fraud does not go to the essentials of marriage, Jack
will likely be unsuccessful in his attempt to have it annulled.
4. Jack will be unsuccessful unless he can establish clearly and convincingly that he
never would have married Jill had he known that she was not a medical doctor.
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Prenuptial Agreements:
1. Prenuptial Agreements are agreements made prior to a marriage that specify how certain
matters will be handled in the event that the couple divorces
a.
Such agreements focus on ECONOMIC MATTERS – they MAY specify whether or how
much spousal support will be given in the event of the dissolution of the marriage or,
perhaps, how particular property will be distributed
2. Ware v. Ware (Challenge to Validity of Prenup) (pg. 55)
a. Background:
i. Prior to marriage David/Brenda Ware, Attorney Skeen drafts pre-nup agreement to
protect David’s interest in “The Pizza Place.”
1. She objects to waiver alimony provision.
ii. After marriage, purchase Sweets & Treats. She quits X-ray tech job to run.
1. After 5 yrs, no renew lease so she can raise children.
iii. After 12 yrs, she files for divorce, alleging cruelty & abandonment.
1. She claims did not know of agreement until 10 days before wedding.
Already purchased dress and tickets to the US Virgin Islands, where wedding to take
place.
2. He insisted on her signing; else no marriage.
3. Attorney Skeen didn’t remember exactly but had practice of advising to get
independent counsel.
4. Trial court voided agreement (dual representation)
b. RULE:
i. For the PRESUMPTION OF VALIDITY to apply to a PRENUPTIAL AGREEMENT,
BOTH PARTIES to that agreement MUST be REPRESENTED by INDEPENDENT
COUNSEL.
ii. Moreover, where one party to a prenuptial agreement is REPRESENTED BY
COUNSEL while the OTHER IS NOT, the BURDEN of ESTABLISHING the
VALIDITY of that AGREEMENT is on the PARTY SEEKING ENFORCEMENT.
c. Analysis:
i. Family court initially struck down agreement:
(1) ONE ATTORNEY CANNOT REPRESENT 2 parties w/ conflicting interests.
(2) She DID NOT have OPPORTUNITY to CONSULT W/ INDEPENDENT
COUNSEL
(3) NO DISCLOSURE ASSETS/DEBTS made between parties.
d. Reasoning:
i. PRENUPS presumptively VALID if:
1.
Voluntary, w/ knowledge of content & legal effect, free of fraud, duress,
misrepresentation
2. Independent counsel NOT NECESSARY if understandable to
REASONABLE PERSON and opportunity to get INDEPENDENT
COUNSEL.
ii. Attorney led each to believe interests represented.
iii. Cannot represent both in divorce; nor in prenup. Agreement unenforceable.
iv. Where party not represented by independent counsel, individual seeking
enforcement has BURDEN OF PROOF.
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e. NOTE
i. Ohio tends to enforce if FULL KNOWLEDGE, no fraud or duress, not
unconscionable at time made/enforced
3. Elgar v. Elgar (Validity/Enforcement of New York Choice of Law Provision in Prenuptial
Agreement) (pg. 64)
a. Issues:
i. Did prenup contain valid choice of law provision? YES
ii. Is prenup valid & enforceable under New York law? YES
b. Background:
i. Plaintiff & Decedent married in 1988 after living together 4 years.
1. Each waived right to other’s property in the event of death/divorce.
2. No children of marriage, although he had two children from prior marriage and she had
daughter from prior marriage.
ii. Both experienced business people.
1. He warned her that he would require her to sign prenup. (She said, “Forget about it.”)
iii. Marriage set for 9/25.
1. On 9/22 he says she must sign prenup. (Invitations already sent, acceptances received,
etc.)
2. On 9/23 she sees prenup for first time.
3. She had already decided to sign it, although she thought it only applied in event of
divorce.
4. His attorney mentioned that it provided for waivers against estates and contained choice
of law provision
iv. Domicile:
1. At time, she resident/domiciliary of NY. (Holidays, weekends, summer in CT).
2. He CT resident/domiciliary.
v. Signing Conditions:
1. No false representations.
2. No proof of fraud, duress, undue influence.
3. Under Restatement, choice of law provision enforceable
c. RULE:
i. New York Law:
1. AGREEMENT PRESUMED VALID absent fraud, (e.g. concealment of facts),
MISREPRESENTATION, or some other form of deception.
ii. When will CHOICE OF LAW PROVISION be Given Effect:
1. PARTIES TO CONTRACT generally allowed to SELECT THE LAW that will
GOVERN their CONTRACT UNLESS either;
a.
the chosen state has NO SUBSTANTIAL RELATIONSHIP to the
PARTIES or the TRANSACTION and there is NO OTHER
REASONABLE BASIS for that CHOICE, OR
NOTE  avoids forum shopping
b. APPLICATION OF THE LAW of the CHOSEN STATE would be
CONTRARY to a FUNDAMENTAL POLICY of a STATE with a
MATERIALLY GREATER INTEREST than CHOSEN STATE in
determination of the particular issue and which would be the state of
the applicable law without stated preference
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EXAMPLE  state w/ most significant interest as determined by place of
negotiation & contract, performance, domicile, subject matter
NOTE  Granting more discretion to go with the state that is named /want
to effectuate the parties wishes to the choice of law of their stated state unless
another’s state interests are materially greater
d. Analysis:
i. Here, NY her domicile, CT his. (But he has apartment in NY even if not in his name.) Owns
business in NY.
ii. Marriage took place in CT; his estate probated in CT.
iii. Cannot say CT has materially greater interest than NY.
Invalidation of Prenuptial Agreements at the Time of Enforcement:
1. Sailer v. Sailer (Unconscionability) (pg. 74)
a. Background:
i. Curtis & Sandra sign prenuptial agreement on May 13, 1993 and marry on May 29.
ii. On Oct 2006, she takes minor children, relocate to Bismarck, and file for divorce.
iii. She challenges Prenup:
1. Voluntariness,
2. Will need to seek public assistance,
3. Unconscionable at time enforcement
iv. His attorney prepared prenup
1. She said had chance to read but did not have money to ask attorney to review it.
2. Local law does not require attorney to review.
3. She aware of disparity in income. No undue influence—she wanted to marry and for him
to trust.
v. Provision:
1. All earnings/accumulations arising from personal services, skills efforts, work, along
with property derived therefrom, shall be separate
a. Evenhanded allocation; as if the couple was not married
i. Everything he earns is his; everything she earns is hers
vi. Trial Court:
1. Stated She can be self sufficient
a. Does the party need Public Assistance?
i. If CANNOT be self-sufficient = NEEDS PUBLIC ASSISTANCE
b. RULE:
i. A PRENUPTIAL AGREEMENT that is UNCONSCIONABLE when MADE, is
INVALIDATED
ii. UNCONSCIONABILITY of PREMARITAL AGREEMENT is matter of law, BUT it
turns on the factual findings related to the RELATIVE PROPERTY VALUES, the
PARTIES’ FINANCIAL CIRCUMSTANCES, AND THEIR ONGOING NEED.
iii. North Dakota Law:
1. Prenup Modifying/Eliminating Spousal Support CAN be MODIFIED (to
make not eligible for support) if PARTY would otherwise become ELIGIBLE for
PUBLIC SUPPORT.
c. Analysis:
i. While she received public assistance (TANF- Temporary Assistance Needy Families) postseparation when she had their 3 kids, she did not establish likely to qualify now
ii. Remand Unconscionability issue for the trial court to review the value of the parties’
assets, make findings as to their other resources, and determine their foreseeable needs
for purposes of deciding whether enforcement of the agreement is unconscionable.
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Chapter 3 – Marriage Requirements: (pg. 85-133)
Competence and Consent
1. Clark v. Foust-Graham (Challenge to Validity of Marriage Between Wesley Foust-Graham &
James Goodwin) (pg. 86)
a. Background:
i. At time of marriage she 40; he 80. He died one year later.
1. Prior to death. Kelly Clark (daughter) filed to annul marriage:
a. Incompetency, lack consent, undue influence, impotence.
2. She continued suit as executrix.
ii. He owned a lot of property; Foust-Graham being a real estate broker, listed and sold his
property
1. They spend more and more time together
2. She moved in, did cooking, bought groceries.
iii. On day couple marry, Goodwin calls business acquaintance, Waldrop, to be witness.
1. Waldrop and girlfriend Sweeney witness marriage.
2. Waldrop concerned because Goodwin was unaware Foust-Graham was black and
Goodwin previously mentioned that he did not like black people
iv. Goodwin Competent?
1. He did a jig after pronounced man/wife.
2. Gets lost in familiar places
3. Claims to know nothing about gardening although he has done it all his life
4. Would go along with Foust-Graham advances (She purchased Viagra)
b. RULE:
i. The marriage of a person who “is at the time incapable of contracting from want of
will” is VOIDABLE.
ii. UNDUE INFLUENCE is said to exist where there has been “a FRAUDULENT
INFLUENCE over the MIND AND WILL of ANOTHER to the extent that the
PROFESSED ACTION is NOT FREELY DONE but is in truth the act of the one who
procures the result.
iii. There are 4 General Elements of Undue Influence:
1. A PERSON who is SUBJECT TO INFLUENCE;
2. An OPPORTUNITY to EXERT INFLUENCE;
3. A DISPOSITION to EXERT INFLUENCE; AND
4. A RESULT INDICATING INFLUENCE
iv. Following FACTORS UNDUE INFLUENCE in context of Testamentary Document
1. Old age and physical and mental weakness of the victim
2.
Alleged victim is in the home of the beneficiary and subject to constant
association and supervision
3.
Others have little or no opportunity to see victim
4.
The Will is different from and revokes a prior will
5.
That it is made in favor of someone with no blood tie.
6.
Disinherits the natural objects of bounty.
7.
Beneficiary has procured its execution
v. MARRIAGE CAN be contested after death by party whose LEGAL RIGHTS DEPEND
upon MARRIAGE’S VALIDITY. [Matter of state law]
vi. BUT NO MARRIAGE CONTESTABLE post-death if COHABITATION and BIRTH OF
ISSUE. [State law]
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c. Analysis:
i. Factors apply here analogously:
1. Goodwin old, mentally weak; little association w/ family; displaced daughter, FoustGraham had means/opportunity to control him.
Substantive Requirements for Marriage Entry:
Marriages Involving a Minor:
1. Everetts v. Apfel: (Validity of Minor Marriage) (pg. 95)
a. Background:
i. Sharon Everetts, 15, raped in September 1953.
1. Mother encouraged/forced her to marry rapist.
2. Everetts (Rapist) left town next day, never heard from again.
ii. Feb 1983, she participated in marriage ceremony with Reid, who died 7 years later.
iii. March of 1996, she got marriage to Everetts annulled.
iv. April 1996, she sought Widow’s Insurance Benefits under Social Security
b. RULE:
i. Under Missouri Law, an ANNULMENT is a judicial declaration that NO
MARRIAGE EXISTED.
1.
A VOID marriage is INVALID from its INCEPTION, because the parties lacked
the capacity to contract under state law, or are related in a prohibited
manner
2. A VOIDABLE marriage results from fraud, error, duress, or other imperfect
consent.
a. A VOIDABLE marriage is VALID UNTIL SET ASIDE by a decree or
annulment by the Court
ii. Although a marriage might be VOID if it is between UNDERAGE PARTIES it can be
VALIDATED by PARENTAL CONSENT
iii. When a SECOND MARRIAGE takes place prior to the ANNULMENT of a previous
marriage a DECREE ANNULLING a VOIDABLE marriage DOES NOT RELATE
BACK to the time of the MARRIAGE so as to VALIDATE a SECOND MARRIAGE
contracted before the ANNULMENT DECREE.
c. Analysis:
i. Administrative Law Judge reasoned that annulment of marriage prospective only.
ii. Under Social Security, MUST be MARRIED to WAGE EARNER 9 MONTHS
before day PRECEDING DEATH.
iii. Missouri Court would treat as VOIDABLE (notwithstanding court having used the word
void).
iv. Here, mother consented (making marriage not void because contracted by underage
party).
1. [The grounds here are duress.]
v. Missouri Law also makes clear that marriage VOIDED by Court DOES NOT
RELATE BACK to time of marriage, at least for purposes of validating other marriage.
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2. Hypo:
a. Alice, 17, is living with Billy, 18, in the state of Marryvania where minor marriages are
voidable. They go to a Justice of the Peace, lie about Alice’s age, and marry. They tell no one
about their marriage. A year and a half later, Alice discovers that Billy has been having an
affair with Monique. Alice moves back home to live with her parents. Billy marries Monique.
Two months later, Billy inherits one million dollars from Grandma Rich. Billy goes out
drinking to celebrate his good luck and dies in a fatal car accident while driving under the
influence of alcohol. Billy never made a will. Alice consults an attorney to see if she has any
claim to part of his estate as his surviving widow. What should the attorney say?
i. Because Alice left Billy who later married Monique, Monique rather than Alice is the
widow entitled to some part of the estate.
ii. Because Alice was a minor when marrying Billy, she was not competent to enter into the
marriage, which makes the marriage void. Monique is the lawful widow.
iii. Because Alice and Billy entered into a voidable marriage that was later
ratified by cohabitation, Alice rather than Monique will be recognized as
Billy’s lawful widow.
iv. Because Monique entered into a ceremonial marriage with Billy, that marriage voided the
merely voidable marriage that Alice and Billy had, which makes Monique Billy’s lawful
widow.
One At a Time:
1.
State of South Dakota v. Clements (Challenge to Bigamy Prosecution) (pg. 103)
a. Background:
i. Michael Clements married Kristi Anderson on December 6, 2009.
ii. Anderson filed for divorce on April 15, 2011.
iii. 2 months later, before the divorce was finalized, Clements and Alicia Bjerke applied for a
marriage license in Brown County, South Dakota
b. RULE:
i. LEGAL IMPOSSIBILITY CANNOT be a DEFENSE to BIGAMY. In other words, civil
statutes rendering BIGAMOUS MARRIAGES VOID AB INITIO DO NOT
EXONERATE DEFENDANTS CHARGED with BIGAMY.
ii. When a PERSON ENTERS into a PURPORTED MARRIAGE CONTRACT or
RELATIONSHIP at a time when the person already had a LIVING SPOUSE, the
crime of BIGAMY is COMMITTED.
c.
Analysis:
i. Trial court dismissed information.
ii. Because BIGAMOUS MARRIAGE VOID AB INITIO, he never legally married
second time.
iii. But BIGAMY PROHIBITION prevents purported second marriage.
iv. Reversed
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Incest Regulations:
1. Mason v. Mason (John Appeals Marriage Dissolution, Claiming Void Ab Initio) (pg. 108 )
a. Background:
a. John and Bonnie, first cousins, travelled from Indiana to Tennessee to marry in 1986.
b. Indiana precludes first cousins from marrying if under 65. Tennessee has no such limitation.
They return to Indiana after 3 months
c. John was jailed for murder.
d. Bonnie helps support 2 of his kids from previous marriage.
e. In 2000, John files to have marriage annulled.
b. RULE:
a. COMITY represents a WILLINGNESS to GRANT a PRIVILEGE, not as a matter
of right, but out of DEFERENCE and GOOD WILL.
b. State courts NEED NOT apply a sister state’s law if such a law VIOLATES
PUBLIC POLICY.
c.
Analysis:
a. On COMITY GROUNDS, Indiana will ACCEPT as LEGITIMATE a MARRIAGE
VALIDLY CONTRACTED in the PLACE where it is CELEBRATED.
i. Indiana RECOGNIZES MARRIAGES VALIDLY CELEBRATED
ELSEWHERE as a matter of COMITY.
b. Trial court dissolution affirmed.
Marriage Formalities:
Licensure:
1. Licensing requirements insure that other marriage requirements and prohibitions are
properly observed, and provide a degree of pre-marriage publication of the marriage.
2. Today, in most states, marriage licensing instead of banns insures PUBLIC NOTICE and
COMPLIANCE WITH MARRIAGE REGULATIONS (such as age, parental permission, etc.),
and provides RELIABLE MARRIAGE RECORDS.
Solemnization:
1. Solemnization requirements of most contemporary interest fall into THREE CATEGORIES:
a. Those regulating who may perform a marriage ceremony;
b. Those regulating the form of the marriage ceremony; AND
c. Those concerning physical presence of the parties at the marriage ceremony.
2. Yaghoubinejad v. Haghighi (Recognition of Marriage Where No License is Obtained) (pg. 112)
a. Background:
i. Plaintiff and Defendant participated in a marriage ceremony on June 30, 2001
1. The certificate recites that the ceremony was performed in accordance with the
Islam religion and there appears to be a signature of the person who solemnized
the marriage.
2. The parties never obtained a marriage license.
ii. Faranak sues Babak for divorce.
iii. 18 months of continuous separation
b. RULE:
i. NJ law Accomplished 3 Things:
1. ABOLISHES COMMON LAW MARRIAGE,
2. REQUIRES that a LICENSE to MARRY be PROCURED BEFORE the
CEREMONY
3. It REQUIRES that the MARRIAGE be SOLEMNIZED by an
AUTHORIZED PERSON or ENTITY
ii. Nonconforming “absolutely void”
Novotny 14
c. Analysis:
i. She is not asking for support/distribution; merely recognition of marriage
ii. Marriage void.
The Marriage Continuum – Common Law Marriage
1. Etienne v. DKM Enterprises, Inc. (pg. 117) (Common Law Marriage Recognized)
a. Facts:
i. Raphael injures arm while using chainsaw supplied by defendant.
ii. Bobby sues for loss consortium and negligent infliction of emotional distress.
iii. Never married ceremonially.
b. Rule:
i. A BRIEF SOJORN whether for business or social purposes by a
NONDOMICILIARY COUPLE in a state which provides for the creation of a
common law marriage is INSUFFICIENT to CONSUMMATE such a
MARRIAGE.
c. Analysis:
i. California DOES NOT RECOGNIZE COMMON LAW MARRIAGES
contracted locally BUT will recognize if contracted validly elsewhere
(jurisdiction recognizing common law marriage).
ii. Bobby & Raphael are California domiciliaries, who have vacationed in Texas,
sometimes for 7-8 days.
iii. There,
1. agreed and understood they were married
2. held out to family members married (clear and convincing standard)
3. [no bar to their marrying]
iv. In Kelly, Texas appellate court REFUSED to recognize COMMON LAW
MARRIAGE, even though couple lived in Texas for 1-3 months
v. Stahl, Illinois court DENIED COHABITATION established by brief visit to
Texas.
vi. [Here, considering both CA and TX law.]
1. The trial court CORRECTLY ruled the evidence presented was
INSUFFICIENT as a matter of law to demonstrate a valid common law
marriage under the laws of Texas
Choice of Law and International and Comparative Marriage Regulation:
1. The General Rule of MARRIAGE RECOGNITION is that a marriage is VALID where entered
will be DEEMED VALID in other JURISDICTIONS UNLESS it VIOLATES a STRONG
PUBLIC POLICY of that OTHER JURISDICTION.
a.
If the place of celebration is the DOMICILE of one of the parties, the presumption in
FAVOR OF VALIDITY is increased.
2. Comparative International Marriage law scholarship identifies 6 COMMON
MARRIAGE ESSENTIAL REQUIREMENTS for MARRIAGE VALIDITY in most nations:
a. Consanguinity restrictions
b. Minimum Age Requirements
c. Mental and Physical Competence
d. Voluntary Consent
e. Gender-Integration (dual gender permitted in all nations)
f. Monogamy
Novotny 15
3. American Airline Inc. v. Meja (pg. 128) (Mejia Spouse for Purposes of Wrongful Death
Action)
a. Facts:
i. Carmen Cabrejo, American Airlines flight attendant lived with permanent companion,
Libardo Mejia in Columbia.
ii. She died in plane crash.
iii. He claims to be common law husband and thus surviving spouse under Florida wrongful
death act.
iv. No civil ceremony
v. But “Union Marital de Hecho,” which he claims is analog of common law marriage
b. Analysis:
i. Under Columbian law FORMAL MARRIAGE distinguished from
INFORMAL UNION.
1. MARRIAGE is a solemn contract by which a man and a woman join for
the purpose of living together
a.
Created by the FREE AND MUTUAL CONSENT of the
contracting parties, declared before a legally competent
official, in the manner and with the solemnities and
requirements established by this Code
b. A contract is solemn when it is subject to adherence with certain
special formalities so that without them there would be no resulting
civil effect.
c.
A Civil marriage is TERMINATED by the death of a spouse or by
a legally decreed divorce
d. CHILDREN BORN of a marriage are considered legitimate,
while a child born to PERMANENT COMPANIONS is considered
extramarital, and the further must formally and voluntarily
recognize the child as his
2. UNION is the union between a man and a woman, who although
unmarried create a permanent and singular life in common
a. The partners who create a union become PERMANENT
COMPANIONS to each other
b. NO FORMALITIES are necessary to establish an union, the fact of
which may be demonstrated by the ordinary rules of evidence
c. UNION DISSOLVED by one companion marries another /
leaves
d. Creates a PRESUMPTIVE PATRIMONIAL SOCIETY between
the companions upon the condition that the UNION EXISTED
for not less than 2 years
e.
A SURVIVING COMPANION has NO RIGHT of
INHERITANCE in the personal estate of the deceased
companion.
c. Holding:
i. Although Carmen had celebrated a marriage to Elias Gomez in 1978, he had
married someone else earlier and had never divorced.
ii. Florida NO LONGER permits COMMON LAW MARRIAGE to be contracted
within state BUT will recognize if ESTABLISHED ELSEWHERE.
iii. Columbia’s UNION CANNOT be considered a MARRIAGE for purposes of
Florida Law
1. UNION between Carmen and Libardo was NOT A VALID
MARRIAGE within the meaning of Florida law
Novotny 16
Chapter 4 – Marriage and the Constitution: (pg. 135-175)
Restrictions on the Basis of Race:
1. Loving v. Virginia (pg. 135)(Constitutionality of Interracial Marriage Bans)
a. Background:
i. Mildred Jeter (black) and Richard Loving (white), Virginia domiciliaries, marry in
D.C. in accord with local law.
ii. They return to Virginia to live.
iii. Lovings indicted.
iv. Plead guilty.
v. Suspended sentence. Must leave state and not return together for 25 years.
b. Virginia Laws:
i. Interracial Marriage VOID
ii. Evasion statute—Marry elsewhere treated as if attempted locally.
iii. Criminal penalty—1-5 years
c. State Interests: Naim v. Naim
i. Preserve racial integrity
ii. Prevent corruption of blood
iii. Prevent obliteration racial pride
iv. Further, traditionally a subject of state regulation
d. Rule:
i. The Equal Protection Clause demands that racial classifications, especially
in criminal statutes, be subjected to the MOST RIGID SCRUTINY, and if they are
ever to be upheld, they MUST be shown to be NECESSARY to the
ACCOMPLISHMENT of SOME PERMISSIBLE STATE OBJECTIVE,
independent of the racial discrimination which it was the object of the 14th
Amendment to ELIMINATE.
ii. MARRIAGE is one of the BASIC CIVIL RIGHTS of man, FUNDAMENTAL to
our very existence and survival
iii. To DENY this FUNDAMENTAL FREEDOM on so UNSUPPORTABLE a
BASIS as the racial classifications embodied in these statues’ classification so
DIRECTLY SUBVERSIVE of the PRINCIPLE OF EQUALITY at the heart of the
14th Amendment, is surely to DEPRIVE ALL STATE’S CITIZENS of LIBERTY
WITHOUT DUE PROCESS OF LAW.
iv. The 14th Amendment requires that the FREEDOM OF CHOICE to MARRY
NOT be RESTRICTED by INVIDIOUS RACIAL DISCRIMINATIONS
v. Under our Constitution, the FREEDOM to MARRY OR NOT TO MARRY, a
person of another race resides with the INDIVIDUAL and CANNOT be
INFRINGED by the STATE.
e. Analysis:
i.
ii.
iii.
iv.
v.
State argues punishment meted out equally.
Should defer to legislature.
But equal application not enough when racial classifications involved.
No legit purpose
Also deprives Lovings of due process of law. Marriage a basic civil right
Novotny 17
Marriage as a Right Protected under Substantive Due Process:
1. Zablocki v. Redhail (pg. 140)(Challenge to Wisconsin Limitations on Marriages - performed both
inside and outside the state – Involving Indigent Non-custodial Parents)
a. Background:
i. Redhail while in high school fathered a child and a paternity action was instituted against him
in Milwaukee County Court. Was Ordered to pay $109 per month until child reached 18 years
old
ii. Unable to pay support as he was unemployed and indigent
iii. He now wants to marry his pregnant fiancee but has $3700 in arrearage which prevents him to
do so
iv. Rehail filed a complaint against the statute stating the statute deprived him and the class he
sought to represent of equal protection and due process right to marriage
b. Rule:
i. When a statutory classification SIGNIFICANTLY INTERFERES with the
EXERCISE of a FUNDAMENTAL RIGHT, it CANNOT be UPHELD UNLESS it is
SUPPORTED by SUFFICIENTLY IMPORTANT STATE INTERESTS AND is
CLOSELY TAILORED to EFFECTUATE THOSE INTERESTS
c. Analysis:
i. Loving establishes a FUNDAMENTAL RIGHT to MARRY.
ii. MARRIAGE on same level importance as decisions relating to procreation, child
birth, child rearing, and family relationships.
iii. REASONABLE REGULATIONS that DO NOT SIGNIFICANTLY INTERFERE with
DECISIONS to ENTER into MARITAL RELATIONSHIP MAY LEGITIMATELY be
IMPOSED.
iv. MANY PRECLUDED from MARRYING by this statute.
1. With respect to individuals who are unable to meet the statutory requirement. The
statute merely prevents the applicant from getting married without delivering
any money at all into the hands of the applicant’s prior children
v. Others will in effect be COERCED into FORGOING MARRIAGE.
vi. State has LEGITIMATE INTERESTS.
1.
Permission to marry proceeding furnishes opportunity to counsel the applicant as to the
NECESSITY OF FULFILLING his PRIOR SUPPORT OBLIGATION &
2.
Welfare of the out-of-custody children is protected.
a.
HOWEVER; State has other means of EXACTING COMPLIANCE with
COURT ORDERS
vii. BUT statute over- and under-inclusive.
1. UNDERINCLUSIVE since it DOES NOT LIMIT in any way new financial
commitments by the applicant other than those arising out of the contemplated
marriage
2.
OVERINCLUSIVE given the possibility that the new spouse will ACTUALLY
BETTER the APPLICANTS FINANCIAL SITUATION by contributing income
from a job or otherwise, the statute in many cases MAY PREVENT AFFECTED
INDIVIDUALS from improving their ability to SATISFY PRIOR SUPPORT
OBLIGATIONS.
viii. DO NOT limit other financial responsibilities INTERFERING w/ CHILD
SUPPORT.
ix. MARRIAGE MAY help children from prior relationship because family has MORE
INCOME.
x. Since the MEANS selected by the STATE for achieving these interests
UNNECESSARILY IMPINGE on the RIGHT TO MARRY, the STATUTE CANNOT be
SUSTAINED.
Novotny 18
Plural Marriages:
1. Brown v. Buhman (pg. 147) (Prohibition of Polygamy and Cohabitation)
a. Background:
i. Browns practice polygamy.
ii. Prosecutions rare.
iii. Browns featured on and triggered by “The Sister Wives”
iv. No allegation of child or spousal abuse
b. Analysis:
i. Easy enough to cite to Reynolds v. United States (upholding criminalization of
polygamy).
ii. But the Reynolds Court justified its decision by appealing to Western superiority.
iii. Citing Reynolds favorably, the Smith Court discussed HYBRID RIGHTS.
iv. This court defers to Smith re: FREE EXERCISE RIGHT TO PRACTICE
POLYGAMY.
v. BUT COUPLES here DO NOT PRETEND to enter into CIVIL MARRIAGE.
1. [They do not have multiple marriage licenses.]
vi. Here, they are MERELY COHABITING, and this triggers FREE EXERCISE
CLOSE SCRUTINY.
vii. Or, under Lawrence, NO RATIONAL BASIS to PREVENT RELIGIOUS
COHABITATION.
viii. In Holm, Utah Supreme Court construed “MARRY” to INCLUDE
COHABITATION.
ix. In RELIGIOUS COHABITATION, use terms of marriage WITHOUT intending
to suggest CIVIL SIGNIFICANCE.
x. Hialeah PRECLUDES TARGETING RELIGION. This FACIALLY NEUTRAL.
xi. But State’s pattern of enforcement RAISES CONCERNS.
1. Used when INSUFFICIENT EVIDENCE of other crimes. OR, will
SELECTIVELY PROSECUTE e.g., when minor involved.
xii. COHABITATION STRUCK under Lawrence
c. Holding:
i. The cohabitation prong of the statute DOES NOT survive RATIONAL BASIS
review and MUST be stricken as a violation of SUBSTANTIVE DUE PROCESS
under Lawrence
ii. The state of Utah has NO RATIONAL BASIS under the Due Process Clause on
which to prohibit the type of religious cohabitation at issue here; thus, the
cohabitation prong of the statute is FACIALLY UNCONSTITUTIONAL,
though the broader Statute survives in PROHIBITING BIGAMY.
Novotny 19
Same-Sex Marriages
1. Obergefell v. Hodges: (pg. 157) (Constitutionality of same-sex marriage bans)
a. Background:
i. Obergefell and Arthur lived in Ohio. Went to Maryland where same-sex marriage
recognized, married on tarmac, and returned to Ohio.
ii. April DeBoer and Jayne Rowse live in Michigan. Cannot adopt each other’s children, so
might be at risk should one of the adults die.
iii. Ijpe DeKoe and Thomas Kostura marry in New York and live in Tennessee where
marriage not recognized.
b. Analysis:
i. Marriage of transcendent importance.
1. Exercise of autonomy
2. Unparalleled in importance for 2 individuals
3. Safeguards children and families
4. Keystone of social order
ii. Court MUST exercise REASONED JUDGMENT in IDENTIFYING
INTERESTS of the PERSON so FUNDAMENTAL that the State MUST accord
them its respect. But cf. Glucksberg.
iii. Synergy between DUE PROCESS and EQUAL PROTECTION.
iv. Those with RELIGIOUS OBJECTIONS MAY CONTINUE to ENGAGE in
DISCOURSE.
c. Rule:
i. The RIGHT TO MARRY is a FUNDAMENTAL RIGHT inherent in the liberty of
the person, and under the Due Process and Equal Protection Clauses of the
14th Amendment couples of the same-sex MAY NOT be deprived of that right
and that liberty. Same-sex couples MAY exercise the FUNDAMENTAL
RIGHT to MARRY. No longer may this liberty be DENIED to them
2. Pavan v. Smith (pg. 137): (Limitation on Whose Names on Birth Certificate)
a. Background:
i. Arkansas law requires the male spouse of a woman who gives birth to be listed on
birth certificate regardless of his biological relationship to the child.
ii. But the law has not been interpreted to require similar treatment of a female spouse.
b. Analysis:
i. Under Arkansas law, MOTHER is WOMAN WHO GAVE BIRTH.
ii. Trial court STRUCK DOWN provision of law as inconsistent with Obergefell.
iii. Arkansas Supreme Court reverses, claiming that the LAW MERELY
RECOGNIZES BIOLOGY.
1.
[But donated anonymous sperm.]
iv. But this LAW DENIES to SAME-SEX COUPLES the “CONSTELLATION OF
BENEFITS that the State has LINKED TO MARRIAGE.”
1.
According to Obergefell statute PROHIBITS SAME-SEX
COUPLES from CIVIL MARRIAGE on same terms/conditions as
DIFFERENT-SEX COUPLES.
c. Holding:
i. The relevant State Laws UNCONSTITUTIONAL to the extent they treated
same-sex couples DIFFERENTLY from opposite-sex couples.
Novotny 20
Marriages Involving Minors:
1. Moe v. Dinkins (pg. 171) (Challenge to Parental Consent Requirement for Minor Marriage)
a. Background:
i. Maria Roe (15), Raoul Roe (18) and Ricardo Roe (1) live together as independent family
unit.
ii. Maria’s mother refuses consent to her marriage (allegedly because she wants to continue
receiving welfare benefits for Maria).
b. Analysis:
i. UNIQUE POSITION OF MINORS makes this law NOT SUBJECT to STRICT
SCRUTINY.
1. Instead RATIONAL BASIS.
a.
(means are rationally related to a legitimate end)
i. The Section 15’s requirement of parental consent is
RATIONALLY RELATED to the STATE’S LEGITIMATE
INTEREST in mature decision making with respect to
marriage by minors and preventing unstable marriages
ii. State interests meet test:
1. Protect minor from IMMATURE DECISION-MAKING.
2. Prevent UNSTABLE MARRIAGES
iii. State NEED NOT AFFORD OPPORTUNITY for INDIVIDUALIZED
SHOWING.
iv. Upheld.
Non-marital Father’s Rights Jurisprudence:
1. Stanley v. Illinois, 405 US 645 (1972) (struck down Ill. law establishing IRREBUTTABLE
PRESUMPTION of UNFITNESS for NONMARITAL FATHER)
2. Quilloin v. Wolcott, 434 US 246 (1978) (Ct held that NON-MARITAL FATHER DID NOT have
RIGHT to BLOCK ADOPTION)
3. Caban v. Mohammed, 441 US 380 (1979) (struck down NY law giving NON-MARITAL
MOTHER BUT NOT FATHER RIGHT to BLOCK ADOPTION)
Chapter 5 – Parentage (pg. 177-218)
1. Lehr v. Robertson (pg. 248) (Challenge to Adoption)
a. Background:
i. Jessica born to Lorraine Robertson, who married Richard 8 months after Jessica’s birth.
ii. Jonathan Lehr never filed w/ putative father registry.
iii. He lived with Lorraine prior to birth, visited in hospital, but his name not on birth
certificate.
iv. One month after adoption proceeding commenced, he filed visitation/paternity action.
v. Paternity action dismissed. Adoption granted
b. Analysis:
i. When unwed father demonstrates full commitment to responsibilities of
PARENTHOOD by participating in rearing of child, his interest in
PERSONAL CONTACT with his child acquires SUBSTANTIAL PROTECTION
under Due Process Clause.
ii. Biological connection offers opportunity.
1.
But mere existence of a BIOLOGICAL LINK DOES NOT merit
equivalent Constitutional Protection
iii. If one parent has established relationship and the other abandoned or
never established, NEED NOT treat PARENTS EQUALLY.
Novotny 21
2. Hypo:
a. John and Mary were dating for a while when their relationship started to sour. Then, Mary
stopped responding to John’s calls and texts. Eventually, John stopped trying.
Three years later, John happened to see Mary in a local restaurant with a two-and-a-half-yearold toddler (whose name, John later learned, was Jack), who bore a striking resemblance to how
John had looked at that age. John called a friend of Mary’s, who reported that Mary had
married her high school sweetheart over two- and one-half years earlier and had given birth to
Jack one month after the wedding. Mary’s friend remarked that Jack looked nothing like Mary
or her husband.
State law presumes that a child born into a marriage is a child of the marriage. That
presumption may only be rebutted before the child reaches two years of age.
John consults an attorney to find out whether the U.S. Constitution protects his parenting rights
in this case, assuming that John is in fact Jack’s biological father. What should the attorney say?
i. Because John acted as soon as he figured out that he might be Jack’s biological father,
John’s assertion of his fundamental right to parent was timely and will likely be protected.
ii. Because Jack is not a product of an adulterous relationship, John’s parental rights will
likely be protected.
iii. Mary and her husband will likely be able to successfully defend against John’s assertion of
parental rights only if Mary’s husband has already formally adopted Jack.
iv. John’s parental rights are not likely to be recognized because John has
neither financially supported Jack nor established an emotional relationship
with Jack.
Nonmarital Children Born into an Existing Marriage:
1. Michael H. v. Gerald D. (pg. 187) (Bio father seeks preserve relationship with child)
a. Background:
i. Gerald D and Carole D married.
ii. Summer 1978, she has adulterous affair w/ Michael H.
iii. Victoria born May 1981. Gerald listed as father but Michael is (98.07% prob.).
iv. In St. Thomas, Michael held out as daughter.
v. Nov. 1982, he filed filiation action when attempt to see Victoria rebuffed.
vi. Aug 1983, she and Michael rekindled relationship.
vii. April 1984, they signed stipulation he father, but never filed.
viii. June 1984 reconcile w/ Gerald. Live in NY w/ 2 other children since born into marriage.
b. Rule:
i. Where the CHILD IS BORN into an extant marital family, the natural
father’s unique opportunity CONFLICTS with the SIMILARLY UNIQUE
OPPORTUNITY of the husband of the marriage; and it is NOT
UNCONSTITUTIONAL for the State to give CATEGORICAL PREFERENCE to
the latter (husband).
c. Analysis:
i. Michael argues that biology plus parental relationship yields DUE
PROCESS PROTECTION.
ii. BUT past jurisprudence PROTECTS UNITARY FAMILY.
iii. Calif. law PRESUMES PARENTAGE if ACCESS and POTENCY.
1.
The presumption of LEGITIMACY was fundamental principle of the
common law. Traditionally the presumption could be REBUTTED only
by proof that a husband was INCAPABLE OF PROCREATION or had
NO ACCESS to HIS WIFE during the relevant periods.
iv. Child has NO LIBERTY INTEREST over and above Michael’s.
v. Law upheld
Novotny 22
d. Holding:
i. A possible biological father DOES NOT have a FUNDAMENTAL RIGHT to
obtain parental rights after the presumptive father has exercised significant
responsibility over the child. Therefore, DUE PROCESS PROTECTION
DOES NOT APPLY.
Legitimacy:
1. Lalli v. Lalli (pg. 198) (Challenge to Proof Requirement of Illegitimates)
a. Background:
i. Robert Lalli claims to be illegitimate son of Mario Lalli who died intestate.
ii. Roberto’s mother died in 1968, never married Mario.
iii. Rosamond Lalli, administratix, says neither Robert nor Maureen legal distributees.
b. NY Law:
i. An ILLEGITIMATE CHILD is the legitimate child of his father so that he and
his issue inherit from his father if a court of competent jurisdiction has,
during the lifetime of the father, made an ORDER of filiation DECLARING
PATERNITY in a proceeding.
c. Rule:
i. Although classifications based in illegitimacy are NOT SUBJECT to STRICT
SCRUTINY, they nevertheless are INVALID under the 14th Amendment if they
are NOT SUBSTANTIALLY RELATED to PERMISSIBLE/IMPORTANT
STATE INTEREST
d. Analysis:
i. Notwithstanding NOTARIZED DOCUMENT in which acknowledged as “son”
when consenting to marriage, has NOT MET REQUIREMENT.
ii. Illinois law at issue in Trimble insisted upon ACKNOWLEDGMENT &
MARRIAGE, which EXCLUDED deserving children WITHOUT
JEOPARDIZING orderly settlement of estates.
iii. Illinois law defended as encouraging LEGITIMATE RELATIONSHIPS.
iv. This to provide ORDERLY, JUST DISTRIBUTION AT DEATH.
v. Fraudulent paternity assertions less likely if before a court while alleged
father alive.
e.
vi. This DOES NOT disqualify unnecessarily large number of children born
out of wedlock.
vii. Upheld.
Holding:
i. The requirement imposed on illegitimate children who would inherit from
their fathers is SUBSTANTIALLY RELATED to the IMPORTANT STATE
INTERESTS the statute is intended to promote
Parental Responsibility:
1. D.W. v. R.W. (pg. 209) (Seek Reimbursement for Expense in Raising Child Fathered by Someone
Else)
a. Background:
i. RW (Richard) believes MW (19 yr old Mark) was conceived during adulterous relationship
w/ Donald (who formerly married to Richard’s sister).
ii. DW (Diane) & Mark oppose DNA testing of Donald.
iii. Diane filed for divorce (Nov. 2006).
iv. Diane admitted she had relations with Donald.
v. Richard had Mark provide DNA sample as condition continuing to live with him (history
drug/alcohol abuse).
vi. Mark lived with Richard until early Apr 2008.
vii. Aug. 2008, relationship almost non-existent
viii. April 2009, no relationship at all between Mark & Richard
Novotny 23
b. Analysis:
i. Parentage Act provides a vehicle to recoup from CHILD’S FATHER the
REASONABLE educational, medical, other related support expenses that
have been expended by another on behalf of the child.
1.
Any person seeking reimbursement for such support expenses may institute a
proceeding against the father if paternity has been DECLARED,
ACKNOWLEDGED, or ADJUDICATED under the Parentage Act.
2. The Parentage Act DOES NOT distinguish between a child’s direct
claim for support and an interested person’s right to
reimbursement for providing support.
ii. NO ACTION can be brought after 5 years elapsed since child 18.
iii. PARTY REQUESTING GENETIC TESTING submitting sworn statement
establishing REASONABLE POSSIBILITY that he is/is not father, then
TESTING ORDERED absent good cause established by party opposed.
iv. Child now 25.
v. Relationship unlikely salvageable.
c.
Factors to Consider Whether to Grant or Deny Genetic Testing
i. Length of time between proceeding to adjudicate parentage and time
presumed father on notice he not father.
ii. Length of time presumed father assuming parenting role
iii. Facts surrounding discovery possible nonpaternity
iv. Nature relationship between child & presumed father
v. Nature relationship between child and alleged father
vi. Age child
vii. Degree mental/physical/emotional harm to child if presumed paternity
disproved.
viii. Extent to which passage of time reduces chances of establishing paternity
of another and child-support obligation
ix. Extent uncertainty of parentage in child’s mind
x. Child’s interest in knowing family/genetic history/background, e.g.,
medical & emotional
xi. Other factors affecting equities of disruption father/child relationship
between presumed or acknowledged father, or other harm to child.
d. Application:
i. He acted as parent for 20 years.
ii. Richard and Mark not speaking for years.
iii. Here, support not at issue; instead, reimbursement.
Novotny 24
Chapter 6 – Assisted Reproductive Technologies: (pg. 219 – 265)
1. Noncoital Reproduction includes artificial insemination and in vitro fertilization (IVP)
a.
In vitro fertilization:
i. Fertilization ex utero in a test tub or petri dish or other external medium, and
implantation of the zygote or embryo thus created into the womb
2. In some cases, a woman acts as a SURROGATE – she agrees to carry a child to term (usually at a
specified fee) and turn over the child to the commissioning couple upon completion of the pregnancy.
a.
Two Types of Surrogates:
i. Gestational Surrogate:
1. Has an embryo implanted in her uterus.
2. The embryo created ex utero may have involved the use of the commissioning
couple’s gametes or instead the gametes of one or two donors
3. The child born will not be genetically related to the gestational surrogate
sustaining the pregnancy and is much less likely to look like that woman’s
children.
ii. Genetic Surrogate:
1. Is impregnated using artificial insemination.
In RE BABY M
2. The child that she bears will be related to her genetically and may well look
like her other children.
Rule of Law
Surrogacy contracts involving the exchange of money for a binding agreement by
the surrogate to surrender her child upon birth are against public policy and void as a
matter of law.
Facts
William Sterns (plaintiff) and his wife, Elizabeth, could not have children. The Sternses
contacted the Infertility Center of New York (ICNY) to discuss surrogacy. The Sternses and Mary
Whitehead (defendant) agreed that Whitehead would be artificially inseminated by Sterns and
carry the child. After birth, Whitehead would surrender the child and her parental rights to the
Sternses. In exchange, Sterns would pay $10,000 to Whitehead and $7,500 to the ICNY. Sterns
and Whitehead signed a surrogacy contract outlining these terms. The ICNY conducted a
psychological examination of Whitehead to determine her fitness for surrogacy and noticed some
potential issues that could make it difficult for Whitehead to surrender a child. The ICNY did not
share these concerns with Sterns or Whitehead. Additionally, Whitehead did not consult legal
counsel outside of a conversation with an ICNY lawyer. Finally, Whitehead made no inquiries as
to the Sternses’ fitness for parenting. Whitehead became pregnant. Once the child was born,
however, Whitehead experienced emotional difficulty surrendering her to the Sternses.
Whitehead fled with the child to another state, and the Sternses called the police to forcibly
remove the child from Whitehead’s home. Due to these difficulties, Sterns sued Whitehead in
New Jersey state court, seeking enforcement of the surrogacy contract. The trial court upheld the
contract and awarded full custody to Stern, with the option for Elizabeth Stern to adopt.
Whitehead was granted limited visitation rights. Whitehead appealed.
Issue
Whether surrogacy contracts are valid.
Holding and Reasoning (Wilentz, C.J.)
No. The surrogacy contract between Sterns and Whitehead is void as a matter of public
policy. Surrogacy contracts involving payment of money for a binding promise by the surrogate to
surrender her child are void as a matter of law. Such contracts violate state statutes governing
adoption and family formation, and are contrary to public policy. A birth mother may not be
obligated to surrender her child without her consent. In the case of adoption, the birth mother
receives extensive counseling and legal guidance regarding her decision to surrender her child.
Novotny 25
Additionally, the mother is not obligated to make a final decision to give up the child until after
birth. Adoptive parents are screened to ensure their suitability to raise the child. These steps are
taken to ensure the best interests of the child. In contrast, surrogacy contracts do not incorporate
these steps into the process. Whitehead was asked to irrevocably sign away her parental rights
before the child was even conceived. Whitehead received no counseling on her decision to become
a surrogate and only generic legal advice from ICNY. The Sternses fitness to be parents was not
evaluated. Finally, the psychological evaluation of Whitehead revealed issues regarding her
emotional ability to surrender her child, but ICNY hid these issues. ICNY’s decision was most
likely motivated by its desire to keep its fee. Ultimately, the parties were motivated by money
rather than the best interests of the child. Since upholding the best interests of the child is the
prevailing public policy, the surrogacy contract between Sterns and Whitehead is void. Based on
the findings of the trial court, it is in the child’s best interest to be placed into the Sternses’
custody. The decision of the court upholding the surrogacy contract is reversed. The case is
remanded for a determination as to Whitehead’s visitation rights.
Surrogacy and I.V.F.:
1. Johnson v. Calvert (pg. 221) (Determining whether Gestational Surrogate or Egg-provider is
Mother)
a. Background:
i. Mark Calvert & Crispina Calvert (who has had hysterectomy but can produce eggs)
wish to have child.
ii. Anna Johnson offered to be surrogate.
iii. Anna to be paid 10K in series of installments.
iv. 200K life insurance policy.
v. Relations between parties deteriorated.
b. Cal. Uniform Parentage Act:
i. Any interested party MAY bring action to determine existence of motherchild relationship.
ii. MOTHERHOOD MAY be established by proof of having given birth or blood
testing
c.
iii. Insofar as practicable, PROVISIONS APPLICABLE to father/child are
APPLICABLE to mother/child
Rule:
i. Although the Act recognizes both GENETIC and CONSANGUINITY and
GIVING BIRTH as means of establishing a mother and child relationship,
when the two means DO NOT coincide in one woman, she who INTENDED to
PROCREATE THE CHILD – that is, she who intended to bring about the
BIRTH OF A CHILD that SHE INTENDED to RAISE AS HER OWN – is the
NATURAL MOTHER under California Law
ii. When a fertilized egg is formed from the reproductive cells of a husband and
wife and is then implanted into the uterus of another woman, resulting in a
child that is UNRELATED to HER GENETICALLY, the NATURAL PARENTS
are the HUSBAND AND WIFE.
d. Analysis:
i. Sec. 621 of Evidence Code relies on blood test
ii. Civil Code Sec 7004 creates presumption based on receiving child into home
and holding out.
iii. Anna not Crispina gave birth
Novotny 26
iv. Crispina not Anna is genetically related.
v. Each has presented acceptable proof so must go to intentions of parties.
vi. Best Interests Test leads to instability. Here, result in split custody NOT
LIKELY to benefit child.
vii. Gestational surrogacy UNLIKE adoption in that agreed prospectively.
viii. WAS NOT bribed to give up own offspring.
ix. Although the contract gives Calverts the right to decide whether to OBTAIN an
ABORTION, the contract also states that the DECISION WHETHER TO
ABORT is up to the SURROGATE and any provision to the contrary is
unenforceable.
x. Demeaning to say CANNOT knowingly/ intelligently agree to gestate.
xi. Mark & Crispina NEVER INTENDED to donate.
Rule of Law
(1) The genetic mother is the natural and legal parent of a child. (2) To resolve a conflict between a
biological mother of a child and the woman who served as a surrogate, California law holds that the
natural mother is the one who intended to bring about the birth of the child and intends to raise the child
as her own.
Facts
The Calverts (defendants) were unable to have a child. Johnson (plaintiff), having heard of the Calverts’
situation, offered to serve as a surrogate. The parties entered into a contract and Johsnon was implanted
with an embryo created from the Calverts. Under the contract, the child was to be considered the Calverts’
child, and Johnson would relinquish all parental rights. The Calverts agreed to pay Johnson $10,000 in
installments and to purchase a life insurance policy on Johnson. Over time, the parties had some
disagreements. Before the child’s birth, Johnson demanded the balance of her payment or she would
refuse to relinquish the child. The parties filed suit to determine the parentage of the child. When the
child was born, the parties agreed that it would stay with the Calverts temporarily and that Johnson would
have visitation rights. The parties stipulated at trial that the Calverts were the genetic parents. The trial
court ruled that the Calverts were the genetic parents, that Johnson had no parental rights, and that the
contract was legal and enforceable and terminated Johnson’s visitation rights. Johnson appealed to the
Court of Appeal for the Fourth Circuit. The appeals court affirmed. The Supreme Court of California
granted review.
Issue
(1) Is the genetic mother the natural and legal parent of a child at issue in a surrogacy agreement? (2)
Under California law, is the natural mother of a child the one who intends to bring about the child’s birth
and to raise him as her own?
Holding and Reasoning (Panelli, J.)
(1) Yes. The natural and legal mother under California law is the woman who intended to have the
child. Though the Uniform Parentage Act was introduced for the purpose of requiring equal treatment of
legitimate and illegitimate children, it applies to any parenting issue, including surrogacy disputes where
maternity is disputed. However, both Johnson, as the gestational mother, and Mrs. Calvert, as the genetic
mother, are considered the parent of the child pursuant to the act. Only one natural mother can be
recognized under California law. The issue will be determined by referring to the women’s intentions, as
can be gleaned from the surrogacy contract. This result is supported by legal commentators and,
regarding the interests of the child, it is unlikely that the intending mother would later not assume
custody of the child. In response to Johnson’s arguments, the surrogacy agreement is not counter to
public policy. Additionally, though the California penal code prohibits payment for the adoption of a child,
it does not govern gestational surrogacy contracts because they are different in very important aspects.
Agreements under surrogacy contracts are made voluntarily and before the child is conceived. The
payments connected thereto are for gestational services, rather than for giving up the child. Furthermore,
Novotny 27
gestational surrogacy contracts do not violate involuntary servitude prohibitions because the contract at
issue does not lend itself to coercion or duress.
Additionally, regarding complaints that surrogacy contracts can exploit women of lesser
intelligence and lower socioeconomic status, that is an issue that should be decided by the legislature,
which would have better information for making that decision. However, in the current matter, there has
been no evidence presented showing that women are exploited by surrogacy contracts and Johnson, as a
licensed vocational nurse, cannot seriously argue that she did not have the wherewithal to intelligently
enter into the contract. Finally, legislative disapproval cannot be inferred from the act’s silence on the
issue of gestational surrogacy because such technology was not available when the act was developed. In
the current matter, Mrs. Calvert is the natural legal mother of the child because, from the very beginning,
she intended to be the child’s mother.
(2) Yes. The Calverts are the genetic parents of the child. Johnson gave birth to the child by
acting as Crispina’s surrogate. Although Crispina Calvert and Johnson can each assert a motherly
relationship with the child, California law recognizes only one natural mother. Thus, to resolve the conflict
an examination of each party’s intent must be determined by looking at the contract. From the outset,
Crispina intended to be the child’s mother. The Calverts put a plan in motion for Johnson to act solely as
their surrogate. Johnson argues that public policy prohibits financial remuneration in exchange for
consent to the adoption of a child. However, acting as a surrogate is not the same as an adoption situation.
Here, the parties voluntarily agreed to participate in the in vitro fertilization process and other medical
procedures before a child was even conceived. At the time Johnson entered into the contract, she was not
pressured to take part in the Calverts’ plan or was not vulnerable to financial inducements to give up her
own genetic offspring. The money paid to Johnson was not in exchange for her “parental rights,” but was
intended to compensate her time and effort through the pregnancy and birthing process. This is reflected
through payments being made both during and after pregnancy. Crispina always intended to be the child’s
natural mother unlike Johnson who claimed ownership of the child only after a dispute occurred. The
judgment of the court of appeals is affirmed.
Dual Parenting:
1. Elisa B. v. Superior Court (pg. 234) (Recognition of Two Mothers as Parents?)
a. Background:
i. Elisa and Emily same-sex partners.
ii. Agreed Emily be stay-at-home.
iii. Elisa gives birth to Chance 11/97; Emily to Kaia & Ry 3/98.
iv. Ry has Down’s and required heart surgery.
v. Each breast-fed all.
vi. Never adopted, although could have. [Implication?]
vii. They separated in 11/99.
viii. Initially paid 1500/no mortgage
ix. Sold house, Emily in apartment.
x. Elisa pay 1k/mo.
xi. 2001 Elisa no longer full-time. Cannot support (although making 95K)
b. Rule:
i. A woman who AGREED TO RAISE CHILDREN with her lesbian partner,
SUPPORTED her PARTNER’S ARTIFICIAL INSEMINATION using an
anonymous donor and RECEIVED THE RESULTING TWIN CHILDREN INTO
HER HOME and HELD THEM OUT AS HER OWN, is the CHILDREN’S
PARENT under the Uniform Parentage Act and has an obligation to support
them.
c. Analysis:
i. Superior court found Elisa REQUIRED to supported under EQUITABLE
ESTOPPEL. $1815/month. [But consider 3rd parties with respect to issue of who is a
parent.]
ii. Appellate Court reversed.
iii. Johnson had said state could recognize only one mother.
iv. But here only have 2 potential parents, not 3.
Novotny 28
v. Elisa PRESUMED PARENT. Held out
1. Presumed Parent = an individual functioning as a parent, but DOES
NOT have a genetic relation with the child
vi. No basis for rebutting parentage, e.g., other parent in picture.
Disposition of Frozen Embryos
1. Szafranski v. Dunston (pg. 243) (Ownership of Pre-Embryos Contested)
a. Background:
i. Superior court found Elisa required to supported under equitable estoppel. $1815/month. [But
consider 3rd parties with respect to issue of who is a parent.]
ii. Appel Ct reversed.
iii. Johnson had said state could recognize only one mother.
iv. But here only have 2 potential parents, not 3.
v. Elisa presumed parent. Held out
vi. No basis for rebutting parentage, e.g., other parent in picture.
vii. Attorney discussed with them two possibilities:
1. A. Co-parenting
2. B. Sperm donor
3. If choosing (B) then each would have to hire another attorney to represent their
interests. Here, the attorney is presumably representing both and so could not
zealously represent one to the detriment of the other.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
b.
Egg retrieval yielded fewer than expected. Advised best chance of success if fertilize all.
Eventually 3 of 8 successfully fertilized.
May 2010, he texted relationship at an end.
She ask about embryos but receive no response.
They continue discuss by email.
He says does not want to be sperm donor.
She says she’ll fight to end.
He offers alternative address because other have access to old email.
Ashley Harris testified that his providing sperm to Karla was a deal-breaker for her
relationship with Jacob.
xvii. Jacob’s realization that his being sperm donor would doom future relationships caused him to
be unwilling to be donor.
Rule:
i. If NO PRIOR AGREEMENT EXISTS, trial judges BALANCE THE INTERESTS of
the PARTIES in using/not using the embryos. Typically, the wishes of the party
who DOES NOT WANT A CHILD should CONTROL, provided the other party has
SOME OTHER REASONABLE MEANS of BECOMING A PARENT.
c.
Analysis:
i. # approaches
1. Contract (But may not know)
a. Courts will enforce CONTRACTS governing the disposition of preembryos which were entered into at the time of in vitro
fertilization so long as they DO NOT VIOLATE PUBLIC POLICY.
2. Contemporaneous consent
a. No embryo should be used by either partner, donated to another
patient, used in research, or destroyed WITHOUT the
CONTEMPORANEOUS MUTUAL CONSENT of the COUPLE that
created the embryo.
3. Interest balancing: (Court’s Approach)
a. Courts enforce CONTRACTS between the parties, at least to a point,
then BALANCE THEIR INTERESTS in the absence of an
agreement.
Novotny 29
ii. Circuit court found that initial contract gave Karla control. (This alone may be
dispositive)
iii. Further, BALANCING OF INTERESTS weighs in favor of Karla who
CANNOT have bio child UNLESS use embryos.
iv. DO NOT speak to his parental status or rights/responsibilities
2. Hypo:
a.
Alice and Brian Coventry have been trying for years to have children without success. They decide to
use in vitro fertilization (IVF). Eggs are harvested from Alice and fertilized using Brian’s sperm. A few
embryos are implanted in Alice. The rest of the embryos are frozen. Alice becomes pregnant but the
pregnancy does not result in a live birth. Regrettably, the pressures and disappointments associated
with their difficulty in conceiving has led Alice and Brian to decide divorce. They agree about
everything, but cannot agree about who should have the remaining frozen embryos. While they had
previously agreed that Alice could have the embryos in the event of divorce, Brian says that he had
only agreed to let Alice have them because he had been sure that Alice would never destroy the
embryos. Neither Alice nor Brian is physically precluded from having a genetically related child
sometime in the future. Brian wants the frozen embryos so that they can be donated to another couple.
Alice wants the embryos destroyed or, in the alternative, to remain frozen. She is strongly opposed to
their being donated because she strongly objects to any child genetically related to her being raised by
strangers. What is the court likely to do?
i. The court will likely award that embryos to Alice, reasoning that just as the woman has the
final decision with respect to whether to terminate a pregnancy, the woman has the final
decision with respect to the appropriate disposition of embryos.
ii. The court will likely award the embryos to Brian, because his being awarded the embryos offers
the only realistic chance that they might eventually be implanted and result in live births.
iii. The court is likely to award half of the frozen embryos to Alice and half of them to Brian,
assuming that each is precluded from seeking child support from the other.
iv. The court is likely to award the embryos to Alice, emphasizing the prior
agreement specifying who should receive the embryos in the event of divorce, the
lack of extenuating circumstances to justify awarding them to Brian, and Alice’s
strong interest in not having her genetic children raised by strangers.
Implications For Afterborn Children:
1. Astrue v. Capato (pg. 256) (Social Security for Afterborn Children)
a. Background:
i.
ii.
iii.
iv.
v.
Karen/Robert Capato marry in 99.
He died in 02.
Gave birth to son in 01.
Will mentions son and 2 children from previous marriage.
Allegedly mentioned to attorney that they wanted future offspring to be placed on par with
existing children.
vi. She gives birth to twins using IVF 18 mos. after his death.
vii. She applied for Social Security benefits on behalf of twins. Denied.
b. Analysis:
i. Congress amended Social Security Act to provide monthly benefit for DESIGNATED
SURVIVING FAMILY MEMBERS of deceased insured wage earner.
ii. Child—
1. Unmarried
2. Below specified age (18 or 19) or under disability beginning before age 22
3. Dependent at time insured’s death
iii. To determine whether child, use INTESTACY LAW of INSURED’S
DOMICILE.
iv. Or, if undertook marriage that would have been VALID BUT for CERTAIN
IMPEDIMENT OR if ACKNOWLEDGED CHILD BEFORE DEATH.
Novotny 30
v. Federal law often piggybacks on state law.
vi. Several states limit by TIME INHERITANCE RIGHTS of POSTHUMOUS CHILD. Act
sets different kinds of requirements for different kinds of children—biological versus
adopted or step.
vii. Children here are NOT ILLEGITIMATE—RATIONAL BASIS review triggered.
c.
viii. Here, deference on interpretation is appropriate.
Holding:
i. Social Security Administration's DENIAL of benefits to the Capato twins
was a PERMISSIBLE INTERPRETATION of the Social Security Act.
Chapter 7 – Adoption (pg. 267-312)
Adoption, History, General Requirements and Termination of Parental Rights
1. In re I.K. (pg. 268) (As applied Challenge to Utah Adoption Law)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
J.S. (father) & T.C. (birth mother), N.M. residents, had sexual relations resulting in pregnancy.
She told him that she wanted abortion. He objected but drove her to clinic.
She told could not undergo abortion because of problem with her medical records.
She tells him someone else will drive her next time.
She instead gives birth in Colorado.
Nov. 11, 2007 she relinquish child to Act of Love, Utah adoption agency.
He receives notice when contacted by Family Matters, N.M. adoption agency.
He refused to consent to adoption I.K. & contacted attorney to protect rights.
TC calls him and asserts determination to go thru w/ adoption.
He filed in NM to establish paternity/custody.
Offers financial support for IK.
He did not file w/ NM putative father registry. Require paternity test first?
b. Dueling Cases:
i. He continues paternity case in NM. Awarded temporary custody.
ii. Then learned baby placed for adoption in Utah. He filed to dismiss adoption case
and combine birth father petition with adoption case.
iii. Utah court rejects because he HAD NOT established his legal rights before she
relinquished hers.
iv. Further, he HAD NOT filed w/ New Mexico Putative Father Registry.
c.
Utah Code:
i. Under Utah Law an unmarried biological father MUST establish his PATERNAL
RIGHTS by strictly complying with CERTAIN STATUTORY REQUIREMENTS.
ii. If he FAILS TO MEET THE REQUIREMENTS, the statute provides an
ALTERNATIVE THREE-PART METHOD for establishing parental rights.
1.
The unmarried biological father MUST NOT have KNOWN, and
through the exercise of REASONABLE DILIGENCE COULD NOT have
KNOWN, before the time the mother executed a CONSENT TO
ADOPTION or RELINQUISHMENT of the child for adoption that a
QUALIFYING CIRCUMSTANCE EXISTED.
i. A QUALIFYING CIRCUMSTANCE exists when mother
between conception and relinquishment/consent: (1)
mother or child resided in Utah, (2) baby born in UT; (3)
mother intended to give birth or place child in UT
2. The unmarried biological father MUST, prior to the mother’s
consent to adoption or relinquishment of the child for adoption
have FULLY COMPLIED with the requirements to ESTABLISH
PARENTAL RIGHTS in the child, and to PRESERVE THE RIGHT to
NOTICE OF A PROCEEDING in connection with the adoption of the
child of the state where the child was conceived or the last state
where the father knew, or through reasonable diligence should
have known, that the MOTHER RESIDED
Novotny 31
3. The father MUST demonstrate a FULL COMMITMENT to his
PARENTAL RESPONSIBILITIES
iii. If the unmarried biological father FAILS to fully and strictly comply with
these requirements, he is considered to have WAIVED AND SURRENDERED
ANY RIGHTS in relation to the child, including the right to consent, to the
adoption of the child.
d. Analysis:
i. He filed paternity action after she had relinquished.
ii. NM law had been interpreted to be during pendency of adoption proceeding. But NM
Supreme Ct said before initiation of adoption proceeding.
e.
iii. NM law also says unmarried father becomes acknowledged father by virtue of
filing paternity action. But this also supposed to be prior to initiation
adoption proceedings.
UT LAW
i. Impossibility Exception—father DOES NOT know of need to assert/protect
rights.
ii. But FAILURE TO ESTABLISH PARENTAL RIGHTS under UT or NM law
means he has NO STANDING to CONTEST.
Placement of Children for Adoption:
1. Scott v. Family Ministries (pg. 289) (Challenge to refusal to place would-be adoptive child with
non-evangelical parents)
a. Background:
i. World Vision evangelical Christian relief organization operating orphanages & child care
centers.
ii. Established center in Phnom Penh Cambodia. Told would be placed in Christian
home.
iii. World Vision transferred 20 children to Family Ministries w/ instructions to place in
Christian homes. Only places in evangelical Protestant homes.
iv. Richard Scott, Episcopalian dr., examined Toup Ven when arrived, and wished to
adopt. Told “No,” because not evangelical.
v. April 25, 75 enjoin Family Ministries from placing elsewhere and seek to adopt
vi. May 16 preliminary injunction
vii. July 7 Scott’s petition granted and he appointed GAL of Toup Ven and other children.
b. California Statute:
i. In choosing adoptive parents for a child the (licensed adoption) agency shall select
from its approved applicants the family which is best able to meet his needs. The
child shall be placed with adoptive parents whose religious faith is the same as his
own or that of his parents. Exceptions can be made in accordance with the expressed
wishes of the parent(s).
c. Rule:
i. A religious requirement imposed upon adoptive parents by the state is thus
UNCONSTITUTIONAL UNLESS it is limited to RELIGIOUS MATCHING.
ii. Statute MUST have
1. SECULAR LEGISLATIVE PURPOSE
2. Its PRINCIPAL OR PRIMARY EFFECT MUST be on that neither
advances nor inhibits religion
3. The STATUTE MUST NOT FOSTER an EXCESSIVE GOVERNMENT
ENTANGLEMENT with RELIGION
d. Analysis:
i. Virtually ALL STATES permit religious matching
Novotny 32
ii. Understood to be giving effect to parents’ wishes. Otherwise, Establishment
Clause concerns.
iii. When PRIVATE LICENSED ADOPTION AGENCY imposes restriction
pursuant to delegated power, ACTING ON BEHALF OF STATE.
2. Hypo:
a. The state of Calexio permits religious matching in adoption. The Heavenly Creatures Agency,
licensed by the state of Calexio to place children, specializes in placing children with families who
are in the Great Believers tradition. Heavenly Creatures has a child, John, available for
placement and John’s parents had made clear that they wanted John placed with a family who
are Great Believers. Two couples, seek to adopt John. The Smiths, who are Great Believers, and
the Andersons, who are not. While both homes would be suitable, the Andersons would seem
better able to promote John’s best interests. Nonetheless, John is placed with the Smiths. The
Andersons challenge under Establishment Clause guarantees. What result?
i. Because the Andersons would better promote John’s best interests, they will win.
ii. The Andersons are likely to lose because the adoption agency (even as a state
entity) will simply be viewed as effectuating the parents’ choice on the
placement of their child.
iii. The Andersons will likely lose because best interests is too subjective a criterion to
determine anything.
iv. The Andersons will likely win as long as they also participate in a faith tradition, because
participation in a faith tradition is what is important for a child.
3. V.L. v. E.L., et al (pg. 294) (FFC to Adoption Judgment)
a. Background:
i. V.L. and E.L. are two women who were in relationship from 1995-2011
ii. E.L. gave birth to S.L. in 2002, and to N.L. and H.L. in 2004
iii. VL and EL raised them as joint parents.
iv. Rented house in Fulton County GA and filed adoption petition.
v. Georgia court granted adoption.
vi. VL & EL ended relationship in 2011 and VL moved out of house
vii. VL filed petition alleging EL denying access to children and interfering with ability to
exercise parental rights.
viii. Ct ordered scheduled visitation. Alabama Supreme Court held that Georgia court could
not grant VL parental rights while still recognizing EL as parent and thus that Alabama
did not have to give FFC to judgment.
b. Holding:
i. The FULL FAITH AND CREDIT CLAUSE of the Constitution requires the
Alabama state courts to recognize a Georgia state court’s adoption order.
c.
ii. A STATE MAY ONLY REFUSE to afford FULL FAITH AND CREDIT to
another state’s judgment if that court DID NOT have SUBJECT-MATTER
JURISDICTION OR PERSONAL JURISDICTION over the relevant parties
Analysis:
i. Constitution requires that FULL FAITH AND CREDIT SHALL be given in
EACH STATE to the Public Acts, Records and judicial Proceedings of every
other state.
ii. Alters the status of the several states as independent sovereignties, each free
to ignore obligations created under laws/judicial proceedings of others, and to make
integral parts of single nation.
Novotny 33
iii. With respect to judgments, the FFC obligation is exacting. A final judgment, if
rendered by a court with PERSONAL AND SUBJECT MATTER
JURISDICTION, QUALIFIES for RECOGNITION THROUGHOUT THE
LAND.
iv. State MAY NOT disregard because disagree on the merits.
v. Under Ga. Law SUPERIOR COURTS have EXCLUSIVE JURISDICTION over
ADOPTIONS.
vi. Alabama courts looked at Ga law which says ADOPTION by THIRD PARTY
requires SURRENDER OF EXISTING PARENTAL RIGHTS.
vii. But there is no established Ga. law holding this.
viii. Alabama judgment is reversed.
4. Joslyn v. Reynolds: (Ohio: Can you undo adoption based on fraud?)
a. Background:
i. Robert B. Joslyn (“Appellant”) adopted the three children of his wife, Michelle A.
Reynolds.
ii. He seeks to avoid future child support and seeks return of back support
iii. Lower court found action barred by one year statute of limitations on undoing adoption.
iv. (4 ½ years after decree entered.)
v. He quadriplegic.
vi. She left husband.
vii. 2 years after she and children moved into home, they married.
viii. Shortly after he adopted children, she stopped providing care, ceased sexual relationship.
ix. She had affairs.
x. Family moved him out. She and paramour trashed house.
b. R.C. 3107.16 (B):
i. Subject to the disposition of an appeal, upon the expiration of one year after an
adoption decree is issued, the decree cannot be questioned by any person,
including the petitioner, in any manner or upon any ground, including fraud,
misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties
or of the subject matter, UNLESS, in the case of the adoption of a minor, the petitioner
has not taken custody of the minor, or, in the case of the adoption of a minor by a
stepparent, the adoption would not have been granted but for fraud
perpetrated by the petitioner or the petitioner's spouse, or, in the case of the
adoption of an adult, the adult had no knowledge of the decree within the one-year period.
c. What does Fraud mean?
i. The consent of the birthparents, or
ii. The health or identity of the children.
d. Judgment:
i. Affirmed because what is alleged here does not trigger the fraud exception,
appellant’s claim is TIME-BARRED
Chapter 8 - Preventing Parentage:
Preventing Parentage By Contraception:
1. Griswold v. Connecticut (pg. 313) (Challenge to Connecticut law Prohibiting Contraception for
Married Persons)
a. Connecticut Statute:
i. Any person who uses any drug, medicinal article or instrument for the purpose of
preventing conception shall be fined not less than fifty dollars or imprisoned not less than
sixty days nor more than one year or be both fined and imprisoned. (Sec. 253-32)
ii. Any person who assists, abets, counsels, causes, hires or commands another to commit
any offense may be prosecuted and punished as if he were the principal offender. (Sec. 54196)
b. Background:
Novotny 34
i. Griswold & Buxton gave information, instruction, and medical advice to married
persons as to means preventing conception.
ii. Guilty as accessories. Fined $100 each
c. Rule:
i. Such a law CANNOT stand in light of the FAMILIAR PRINCIPLE, so often
applied by this Court, that a GOVERNMENTAL PURPOSE to control or
prevent activities Constitutionally subject to state regulation MAY NOT be
achieved by means which sweep UNNECESSARILY broadly and thereby
INVADE THE AREAS OF PROTECTED FREEDOMS.
d. Analysis:
i. Do not sit as super-legislature.
ii. But this operates on intimate relation of husband and wife.
iii. Statute operates on use rather than manufacture/sale.
iv. Would we allow police to search the sacred precincts of marital bedrooms for telltale
signs of the use of contraceptives?
v. Marriage is a coming together for better or worse, hopefully enduring,
and intimate to the degree of being sacred.
vi. Association that promotes a way of life, not causes, a harmony in living,
not political faiths; a bilateral loyalty, not commercial or social projects.
Facts
Griswold (defendant) was Executive Director of the Planned Parenthood League of Connecticut. Buxton
was a licensed physician and professor at Yale Medical School who served as Director for the League at
its Center in New Haven. The Center was open and operated from November 1 to November 10, 1961,
when Griswold and Buxton were arrested for giving information, instruction, and medical advice to
married persons for preventing conception. Buxton and Griswold were arrested and convicted as
“accessories” pursuant to Connecticut statutes that prevented using contraception or assisting someone
else in using contraception. Griswold and Buxton challenged the convictions and brought suit against
Connecticut, (plaintiff), alleging that the statutes violated the Fourteenth Amendment. The Appellate
Division of the Circuit Court affirmed their convictions, and the Supreme Court of Errors affirmed.
Griswold and Buxton appealed to the United States Supreme Court.
Issue
Does the Bill of Rights contain an implied right of privacy that permits the use of contraceptives by
married persons?
Holding and Reasoning (Douglas, J.)
Yes. A “right of privacy” protecting the intimate relations of married couples is implied in the Bill of
Rights. For example, the First Amendment protects the right to association. The Third Amendment
prohibits the quartering of soldiers in a person’s house without their consent. The Fourth Amendment
protects against unreasonable searches and seizures. The Fifth Amendment protects against self-
Novotny 35
incrimination. The Ninth Amendment provides that “the enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.” The protected
activities in each of these Amendments are “penumbras” that are not specifically enumerated in the
Constitution, but instead represent various “zones of privacy” into which the government cannot
intrude. The marital relationship is located within a “zone of privacy” impliedly created by these various
fundamental constitutional guarantees in the Bill of Rights. The Connecticut law seeks to prohibit the
use of contraceptives in the marital relationship and in doing so violates this area of protected
freedoms. The right of privacy in marriage is a concept older than the Bill of Rights that should
necessarily be kept sacred and free from intrusion by the state. The Connecticut law is unconstitutional
and Griswold’s conviction is reversed.
2. Eisenstadt v. Baird (pg. 317) (Challenge to Prosecution for Giving Contraceptive to Unmarried
Individual)
a. Background:
i. Baird gave contraceptives to young woman at close of lecture at BU.
ii. Mass law prohibits giving contraceptives to unmarried.
b. Rule:
i. The DETERRENCE of PREMARITAL SEX CANNOT REASONABLY be
regarded as the purpose of the Massachusetts law.
ii. Whatever the RIGHTS OF THE INDIVIDUAL to ACCESS TO
CONTRACEPTIVES may be, the RIGHTS MUST be the SAME for the
UNMARRIED AND THE MARRIED ALIKE.
c.
iii. We hold that by PROVIDING DISSIMILAR TREATMENT for MARRIED and
UNMARRIED PERSONS who are similarly situated violate the Equal
Protection.
Analysis:
i. Deterrence of premarital sex cannot reasonably be regarded as purpose behind law.
ii. Aider and abetter subject to penalty 20 times greater than user.
iii. Whatever the rights of the individual to access contraception may be, must be the
same for unmarried and married.
Under the Equal Protection Clause of the Fourteenth Amendment, a state may not outlaw distribution of
contraception to unmarried persons.
Facts
Under a Massachusetts statute, it is a crime to give away “any drug, medicine, instrument or article
whatever for the prevention of conception,” with the exception of a registered physician providing such
items to married couples for the purpose of preventing pregnancy. William Baird (defendant) was
convicted of violating the statute after he exhibited contraceptive articles in the course of delivering a
lecture on contraception to a group of students at Boston University, and after he gave a young woman a
package of Emko vaginal foam at the close of his address. Baird challenged his convictions in
Massachusetts state court against Eisenstadt (plaintiff), a Massachusetts sheriff responsible for enforcing
the statute. The trial court partially overturned Baird’s conviction. The court of appeals reversed and
remanded. Eisenstadt appealed to the United States Supreme Court.
Issue
May a state statute permit the giving of contraceptives to married persons and not to unmarried persons
without violating the Equal Protection Clause of the Fourteenth Amendment?
Novotny 36
Holding and Reasoning (Brennan, J.)
No. The practical effect of the Massachusetts statute is that only married persons seeking contraception
from a registered physician for the purpose of preventing pregnancy can actually obtain contraception.
Single people cannot obtain contraception at all, and married people cannot obtain it for the purpose of
preventing the spread of disease. The argument that the primary purpose of the law is the prevention of
premarital sex and the spread of disease is rejected. It is unlikely that the Massachusetts legislature
actually intended to withhold contraception from unmarried fornicators and punish them with unwanted
pregnancy and possible disease. Additionally, Griswold v. Connecticut, 381 U.S. 479 (1966), establishes a
right of privacy in marriage that permits married couples to use contraception. Hence, Massachusetts
cannot ban all contraception in general. Moreover, Massachusetts cannot grant married and unmarried
persons unequal access to contraception. The consequences resulting from a denial of contraception to
unmarried persons creates a suspect class that violates the Equal Protection Clause. The decision of the
court of appeals is affirmed.
Preventing Parenthood by Abortion:
1. Roe v. Wade (pg. 325) (Challenge to Texas Abortion Prohibition)
a. Background:
i. Texas law around for about a century.
ii. Jane Roe files declaratory judgment action
iii. Was unmarried, pregnant, and could not get safe clinical abortion in Texas.
b. Analysis:
i. Person, as used in 14th Amendment, DOES NOT include FETUS.
ii. 3 stages
1. 1st trimester—up to woman
2. 2nd trimester—subject to regulation to promote woman’s health
3. 3rd trimester—state interest in potential life compelling. CANNOT
PROHIBIT if would result in death or harm to mother
iii. The Texas abortion statute is UNCONSTITUTIONAL
2. Planned Parenthood v. Casey (pg. 329) (Challenge to Pennsylvania Abortion Regulations)
a. Provisions
i. 24 Hour Waiting Period – UPHELD; NOT ENOUGH show to make
SUBSTANTIAL BURDEN
ii. Minor Needs Parental Consent. Judicial bypass available – UPHELD
iii. Spousal Notification – NOT UPHELD; SUBSTANTIAL BURDEN
iv. Medical Emergency Exemption – UPHELD; NO UNDUE BURDEN on
WOMAN’S ABORTION RIGHT
v. Reporting Requirements – UPHELD
b. Roe’s Essential Holding:
i. Right to obtain abortion PRE-VIABILITY WITHOUT UNDUE
INTERFERENCE from state (no substantial obstacle)
1.
Pre Viability Standard: the States interest are not strong enough to
support a prohibition of abortion or the imposition of a UNDUE
Novotny 37
BURDEN/SUBSTANTIAL OBSTACLE to the effect of the woman’s
effective right to abortion
ii. Confirmation of power to restrict as long as NO ENDANGER WOMAN’S
LIFE/HEALTH
iii. State has LEGIT INTERESTS from outset in PROTECTING HEALTH
WOMAN AND FETAL LIFE
1.
c.
Post Viability Standard: The state has a LEGITIMATE INTEREST from
the outset of the pregnancy in protecting the health of the woman and the
life of the fetus that may become a child.
Analysis:
i. Constitutional protection to decisions relating to marriage, procreation,
contraception, family relationships, child rearing & education.
ii. Trimester framework REPLACED with VIABILITY FRAMEWORK.
iii. UNDUE BURDEN means state regulation has purpose/effect of placing
SUBSTANTIAL OBSTACLE in path of woman
iv. All upheld EXCEPT SPOUSAL NOTIFICATION, which MAY PREVENT
SUBSTANTIAL NUMBER from RECEIVING ABORTION.
3. Gonzales v. Carhart (pg. 336) (Challenge to Partial Birth Abortion Act)
a. Background:
i. 85-90% of 1.3 million abortions performed in 1st trimester.
ii. Neither vacuum aspiration (suction curettage) nor RU-486 (mifepristone) regulated here.
iii. 2 procedures during 2nd trimester
iv. Dilation and Evacuation (D & E)
1. Forceps grab fetus and pull, tearing apart. May require 10-15 passes
v. Dilation and Extraction (D & X)
1. Removes fetus almost entirely, e.g., up to head. Then stick scissors into head &
suction contents
b. Rule:
i. REGULATIONS which DO NO MORE than CREATE a STRUCTURAL
MECHANISM by which the state or the parent or guardian of a minor,
MAY express profound respect for the life of the unborn are PERMITTED, if
they are NOT a SUBSTANTIAL OBSTACLE to the WOMAN’S RIGHT TO
CHOOSE
c.
Analysis:
i. D & X OK to proscribe
ii. Prohibition applies PRE-VIABILITY as well.
iii. Involves either
iv. Entire fetal head outside
v. Any part of fetal body past navel
vi. This is too close to infanticide.
4. Whole Woman’s Health v. Hellerstedt (pg. 343) (Challenge to Texas laws requiring that those
performing abortions have hospital admitting privileges and that clinics meet minimum standards for
ambulatory surgical centers.)
a. Population Served:
i. 5.4 million women of reproductive age
ii. There were more than 40 clinics.
iii. Were provisions enforced, number reduced to 7 or 8
iv. 2M would be more than 50 miles away
Novotny 38
v. 1.3M more than 100 mi
vi. 900K more than 150 mi
vii. 750K more than 200 mi
b. Need for Regulation:
i. Abortion much safer than other procedures NOT SIMILARLY
REGULATED.
c.
ii. Safety of abortion NOT INCREASED in ambulatory surgical centers.
Analysis:
i. Court should NOT DEFER to LEGISLATURE, especially absent legislative
findings.
ii. Should use stricter standard than rational basis review.
iii. Neither admitting privileges requirement NOR ambulatory surgical
center standards requirement PASSES MUSTER under UNDUE BURDEN
TEST.
1. Each places a SUBSTANTIAL OBSTACLE in the path of WOMEN
SEEKING PRE-VIABILITY ABORTIONS, each constitutes an UNDUE
BURDEN on the ABORTION ACCESS.
5.
Hypo:
a. Alice and Alex are married. Alice has discovered she is pregnant but is not ready to have a child.
Alex claims to be quite ready to be a father who has primary caretaking responsibilities. Alice
remains firm in her decision to abort (the pregnancy is still in the first trimester), and Alex seeks
to enjoin her from obtaining an abortion. What result?
i. The court will issue the injunction because Alice has not offered a good reason to obtain
an abortion, e.g., medical risks that would arise if she maintained the pregnancy, and
because Alex not only opposes the abortion but would be the primary caretaker. Where
the parents disagree, the state’s interest in life can tip the scales against the abortion.
ii. The court will not issue the injunction because a woman’s right to control her own body is
absolute.
iii. The court will issue the injunction. A mother cannot put her child up for adoption if that
child has been born into a marriage and the father (who is a fit parent) objects. So, too, a
mother cannot abort without her husband’s consent unless his parental rights have been
terminated. Where the parents’ rights are in equipoise, the child’s best interests will
determine the outcome, just as is true in custody contests.
iv. The court will not issue an injunction because the Constitution requires that
the mother be allowed to make the ultimate decision in this kind of case.
Chapter 9 - Being Married/Marital Status: (pg. 359-401)
1. Prince George’s County v. Greenbelt Homes, Inc. (pg. 360) (Challenge to discrimination on
basis of marital status.)
a. Background:
i. John Hemphill & Lynn Bradley, non-marital cohabitants, seek to purchase coop.
ii. Claimed to be (immediate) family and thus eligible to purchase.
iii. Alleged that the denial constituted discrimination based on marital status.
b. Rule:
i. Neither complainant (each of whom was single, unmarried) was DENIED
membership individually because of his or her individual MARITAL
STATUS. While each separately had a MARITAL STATUS, COLLECTIVELY
they DID NOT. ONLY MARRIAGE as prescribed by law can CHANGE the
MARITAL STATUS of an individual to a NEW LEGAL ENTITY of husband
and wife
c. Analysis:
Novotny 39
i. Each party has MARITAL STATUS BUT they DO NOT as a unit.
ii. Two unmarrieds DO NOT constitute family.
iii. NO DISCRIMINATION.
Marital Regimes in General:
1. Kirchberg v. Feenstra (pg. 370) (Constitutionality of statute giving husband right to dispose of
jointly owned property.)
a. Background:
i. Joan Feenstra charges husband, Harold, with molesting their daughter.
ii. Harold retains Kirchberg to represent him, signing 3K promissory note, security being home he
jointly owns with wife.
iii. Eventually, charges dropped.
iv. They separate. Kirchberg seeks payment.
v. When she refuses, sheriff ordered to seize home and sell.
vi. She challenges his ability to execute a mortgage on jointly owned house.
vii. Since then, Louisiana gives spouses equal control.
viii. Court of Appeals strikes law as unconstitutional, but applies prospectively because would cause
upheaval in Louisiana property law.
1. Need a joint agreement between the husband and wife
2. If striking a law as it is unconstitutional, it applies to past property transactions as
well = retrospectively
3. Prospectively = Do not have to worry about past property transactions done
without joint consent between husband and wife. Additionally, there will be so such
problems in the future.
b. Analysis:
i. While Feenstra could have taken steps to preclude husband from
MORTGAGING HOME, that DOES NOT establish that Louisiana had an
IMPORTANT GOVERNMENTAL INTEREST in allowing him to
UNILATERALLY DISPOSE OF PROPERTY.
ii. Affirm that as applied to this case, Feenstra COULD NOT alienate WITHOUT
her permission.
iii. Equal Protection Clause Issue
Economic Consequences of Marriage:
1. Sharpe Furniture, Inc. v. Buckstaff (pg. 384) (Challenge to requirement that he pay for wife’s
purchase)
a. Background:
i. Karen Buckstaff purchased sofa from Sharpe Furniture, delivered on 2/8/1974.
ii. No payments made.
iii. He had written to local credit service that he would not be responsible for any credit
extended to wife.
iv. He has substantial income and has always provided wife necessaries.
b. Questions:
i. Whether he is responsible for necessary items purchased by wife under doctrine
necessaries
ii. Whether it must be proved that he failed to provide items or that they were indeed
necessary
Novotny 40
c.
Common Law Rule:
i. HUSBAND under common law OBLIGATION to provide wife with
NECESSARIES & ANY 3RD PERSON who PROVIDES MAY maintain action
against him for same.
1.
Includes:
a. Food, apparel, medicine, furniture, etc.
ii. Traditionally, the THIRD PERSON had to show that it was NECESSARY
d. Analysis:
i. This doctrine serves legitimate function.
ii. Husband can be found liable.
iii. Sofa REASONABLY NEEDED, given their SOCIO-ECONOMIC STANDING
iv. [Should be restated in light of current times?]
e. Holding:
i. A HUSBAND INCURS the PRIMARY OBLIGATION, implied as a matter of
law, to assume liability for the NECESSARIES which have been procured for
the SUSTENANCE OF HIS FAMILY
Marriage Benefits:
1. Smith v. Heckler (pg. 394) (Challenge to denial of social security widow’s insurance benefits)
a. Background:
i. 1938, Lucille dating Darryl Knight in Alabama.
ii. 5 children born during 8 year relationship listing him as father.
iii. No marriage ceremony and unclear whether live under same roof.
iv. Separated in mid-1940s (still married, even if considered a common law marriage)
v. In 1949, began cohabiting with Yarbrough Smith in Fla.
vi. She uses name Smith and they were regarded as married. They had son. Purchased
insurance, filed joint tax returns, conducted business transactions as married couple.
When retiring, he listed her as wife. He died in 1975. She filed for Social Security
insurance benefits.
b. Analysis:
i. On appeal, COURT MAY NOT reweigh the evidence NOR substitute
judgment for that of Secretary.
ii. Failure to apply correct legal standard is GROUND FOR REVERSAL.
iii. HER MARITAL STATUS MUST be determined according to INSURED’S
DOMICILE at TIME OF DEATH (Fla.)
c.
Florida Law:
i. When MARRIAGE VALIDITY CHALLENGED, very strong presumption in
FAVOR OF LAST MARRIAGE.
ii. Require CLEAR/CONVINCING EVIDENCE to prove EXISTENCE/NONTERMINATION of MARRIAGE to Knight. [No showing that records checked.]
iii. Florida would recognize COMMON LAW MARRIAGE established in
Alabama.
iv. Look to the record where the couple was domiciled in to determine if there was a
termination in the previous marriage
d. Alabama Common Law Marriage:
i. Relationship illicit in commencement PRESUMED TO CONTINUE UNTIL
PROOF OF MARRIAGE.
Novotny 41
ii. SOMETHING NEEDS TO HAPPEN to INDICATE there is a MARRIAGE/
RECOGNIZE a NEW STATUS
1. EXAMPLE:
a. If there was a previous marriage, and husband died; once wife knows
wife needs to do something to recognize that she can get married
again
iii. Husband & wife MUTUALLY CONSENT to enter into PERMANENT
RELATIONSHIP, exclusive of others
iv. PUBLIC RECOGNITION OF MARRIAGE. Mutual assumption of marital
duties/obligations.
e.
Florida Statute Ann. § 741.211 (West):
i. NO COMMON-LAW MARRIAGE entered into after January 1, 1968, SHALL
be VALID, EXCEPT that NOTHING contained in this section SHALL affect
ANY MARRIAGE which, though otherwise defective, was entered into by the
party asserting such marriage in good faith and in substantial compliance
with this chapter.
ii. Recognizes comity
f.
Analysis:
i. NO EVIDENCE in record of AGREEMENT to hold out as husband and wife.
ii. She said she had NEVER lived w/ him or considered him husband.
iii. On earlier application for insurance benefits, indicated previously
married and marriage never ended.
iv. Told ALJ that she had previously denied being married but then had been told
to contact Knight.
v. He denied marriage but his mother thought they were married and that he
supported kids.
vi. Knight said that they only stayed together on weekends.
vii. ALJ said presumption validity of second rebutted by existence of prior undissolved
marriage. No divorce, annulment.
viii. But marriage NOT ESTABLISHED by CLEAR AND CONVINCING
EVIDENCE.
ix. Further NO SHOWING that Knight HAD NOT obtained divorce.
2. Yale Diagnostic Radiology v. Estate of Harun Fountain (Challenge to Requiring Minor’s
Estate to Pay for Costs Medical Care)
a. Background:
i. Harun Fountain shot by friend.
ii. Extensive medical treatment provided.
iii. Mother billed. She never pays and eventually declares bankruptcy.
iv. Settlement with family of boy who shot.
b. Analysis:
i. Minor's contracts are VOIDABLE.
ii. However, a minor MAY NOT avoid a contract for goods or services
necessary for his health and sustenance.
iii. [W]hen a MEDICAL SERVICE PROVIDER renders NECESSARY MEDICAL
CARE to an INJURED MINOR, 2 contracts:
Novotny 42
1.
Primary between THE PROVIDER and the MINOR'S PARENTS; and
2. An implied in law contract between THE PROVIDER and the MINOR
HIMSELF.
iv. Go after primary (parent) first.
v. Then after child, either when reaches majority or earlier (if funds available).
Chapter 10 - Marital Privileges and Heart Balm Damages: (pg. 403 – 446)
Medical Decision-Making:
1. In re Schmidt (pg. 404) (Challenge to Guardianship Designation)
a. Background:
i. Cindy Schmidt involve in auto accident. Severe head trauma.
ii. Tom, husband of 3 years, applies to be guardian. He claims she in persistent vegetative
state.
iii. Sheryl, sister, also wishes to be guardian.
iv. GAL finds Tom qualified
v. Family members to be notified 72 hours prior to any action taken pursuant to Health Care
Surrogate Act.
vi. Sheryl must be given reasonable access to records but has no decision-making power.
b. Tom Testimony:
i. Goal to take care of her, including withdrawing nutrition, hydration and medication upon
medical advice of 2 physicians.
ii. She would not want to live in vegetative state—not life.
iii. He had given DNR orders when she in Rehabilitation Institute of Chicago.
iv. He considered their marriage happy/successful.
c. Other Testimony:
i. Mother says Cindy would want everyone to care for her but acknowledged would not want
to live on life support.
ii. Aunt Kathy testified Cindy blinked eyes in response to question.
iii. A few mentioned Tom’s dumb blonde jokes.
1. Point he does not have the right attitude toward Cindy
iv. Mandy, daughter, said good marriage and dumb blonde comments a joke
v. Doctors do not anticipate recovery and believe family does not understand diagnosis.
vi. Tom has taken good care of her and GAL believes he should be guardian.
d. Analysis:
i. REJECT RIGID HIERARCHY APPROACH. Nonetheless, majority
disagreement DOES NOT undermine APPOINTMENT OF HUSBAND.
Adult son/daughter would be next (Mandy 17). Then parent; sibling; adult
grandchild; close friend; guardian of estate.
1.
The ORDER OF PRIORITY FOR SURROGATE DECISION
MARKERS is as follows; (1) the patient’s guardian of the person; (2) the
patient’s spouse; (3) any adult son or daughter of the patient; (4)
either parent of the patient; (5) any adult brother or sister of the
patient (6) any adult grandchild of the patient; (7) a close friend of
the patient; and (8) the patient’s guardian of the estate.
a. If one year older, Mandy would be next in line
b. Tom; Cindy’s spouse is given statutory right
Novotny 43
ii. Decision to WITHDRAW TREATMENT MAY be in BEST INTERESTS.
1. The BEST INTEREST and WELFARE of the DISABLED PERSON is
the paramount concern in SELECTING a GUARDIAN. Under the
standard and under legally prescribed conditions, a guardian
acting as a surrogate MAY exercise the PATIENT’S RIGHT to
REFUSE MEDICAL TREATMENT including ARTIFICIAL
NUTRITION and HYDRATION
e.
iii. In APPOINTING A GUARDIAN, a COURT MAY consider such FACTORS
1. Past actions and conduct of the proposed guardians
2. Business experience, ages,
3. Family situation
4. Degree of relationship between the disabled person to the proposed
guardian
5. Serious consideration to any conduct by the disabled person prior
to the adjudication manifesting trust or confidence in the proposed
guardian
6. Prior conduct by the proposed guardian indicating a concern for the
well-being of the disabled person
Holding:
i. We CANNOT CONCLUDE that the trial court abused its discretion in
appointing Tom as the guardian of Cindy’s person and estate.
Testimonial Privilege
1. State v. Serrano (pg. 415) (Marital Privilege)
a. Background:
i. D charged with aggravated murder of 3 victims—Melody Dang and 2 sons.
ii. D’s wife (pregnant) had affair with Dang’s longtime boyfriend.
iii. Sept. 1 she moved out with their 5 children, leaving him note.
iv. 1 week later, left note saying had affair.
v. He called. She said pregnant but not by him.
vi. He calls Brandi Preciado, says wife moved out
vii. Before Nov 6, she moved out (sister does not have room) but not to reconcile.
viii. Murders on evening Nov. 2
ix. Nguyen discovers when return home from night shift.
x. Only property missing was laptop computer.
xi. D called wife at 5:35 am. She calls back asking about truck not in driveway.
xii. He says couldn’t answer his phone before. Truck broke down.
xiii. Later says phone lost while shopping. Knows of laptop computer for sale
b. Rule:
i. The Marital Communications Privilege applies to ONLY CONFIDENTIAL
COMMUNICATION between the SPOUSES made DURING THE MARRIAGE
1. BOTH SPOUSES have the MARITAL COMMUNICATIONS
PRIVILEGE and BOTH MAY ASSERT that PRIVILEGE DURING,
AND AFTER, THE MARRIAGE.
2. May be asserted in CIVIL and CRIMINAL CASES
ii. Testimonial Privilege apples to NONCONFIDENTIAL COMMUNICATIONS
and OBSERVATIONS made DURING THE MARRIAGE
1. ONLY the spouse called to TESTIFY holds the TESTIMONIAL
COMMUNICATION, and that privilege MAY be asserted ONLY
DURING THE MARRIAGE.
Novotny 44
2. May be asserted in CRIMINAL CASES ALONE
iii. WAIVER occurs when the PERSON VOLUNTARILY DISCLOSES or
CONSENTS to DISCLOSURE of any significant part of the matter or
communications
c.
Assertion of Privilege:
i. Wife agreed to TESTIFY for state.
ii. He says COMMUNICATIONS occurred outside presence of others involved
INTIMATE MATTERS and NO EVIDENCE suggesting intention to disclose
to others so MARITAL COMMUNICATIONS PRIVILEGE requires exclusion of:
1.
The NOTE that wife left telling about affair
2. CONVERSATION between wife and D in which she discussed affair
and said pregnant.
3. Nov. 3 conversation in which he said on way to work
d. Analysis:
i. State contends NEITHER had INTENDED STATEMENTS to be
CONFIDENTIAL.
e.
ii. Even if so intended, purpose—preserving marital harmony—NO LONGER
ACHIEVED.
To What Does Privilege Apply:
i. MARITAL COMMUNICATIONS PRIVILEGE applies to any confidential
communication, not merely those that contribute to health of relationship
ii. Communications between spouses PRESUMED to be CONFIDENTIAL
UNLESS INTENT to DISCLOSE APPARENT.
iii. INTENT behind note to be CONFIDENTIAL even though some of subject matter
discussed elsewhere.
iv. Statements about going to work, losing phone, truck breakdown made to wife not in
presence of others
1. All protected.
v. Here; there is a PRESUMPTION OF CONFIDENTIALITY and WILL NOT be
able to be testified by the wife because the MARITAL COMMUNICATION
PRIVILEGE is owned by not just the wife, but the husband
vi. NEED CONSENT from both husband and wife
2. Hypo:
a.
John Smith and Anita Anderson have lived together for seven years in the state of New Caledonia,
which permits common law marriages to be contracted. They treated each other as spouses and held
themselves out to the public as spouses. John has been accused of a crime and Anita has been called to
testify about some of their recent private conversations. Anita refused to testify, claiming to be John's
common law wife. However, the trial court rejected that Anita and John had a common law marriage,
because John had been married to and never divorced from Maria, who died four years after Anita
and John began their relationship. John was convicted, based largely on Anita's testimony. John seeks
to overturn the conviction because Anita, as his common law wife, was wrongly forced to testify. What
result?
i. John loses. Because John and Anita began living together while John was still married to
someone else, John and Anita could not establish a common law marriage so Anita did not
have the right to refuse to testify.
Novotny 45
ii. The conviction will be overturned. Because Maria is no longer living, New Caledonia, like all of
the other jurisdictions recognizing common law marriage, recognizes the common law
marriage between Anita and John. Because Anita was John's spouse, she could assert the
testimonial privilege.
iii. John loses. Because at most Anita has a privilege rather than a right, she can be forced to
testify if there is an important state interest like securing a conviction at stake.
iv. John will likely win if: (1) New Caledonia will recognize a common law marriage
once the bar to its being contracted is removed, or (2) if John and Anita did
something to indicate that their relationship was on a new footing once Maria
died.
Heart Balm Causes of Action:
1. Sharp v. Roskelley (pg. 428) (Damages for alienation of affections & criminal conversation)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
Drew Sharp sues Maurice Roskelley for alienation of affections and criminal conversation.
Drew married to Abbie; 2 children.
Abbie (29) physician’s assistant.
Maurice (53) married with 2 kids.
April 1985. she enters treatment chronic alcoholism. He pays 7K for treatment & wages while
off work.
She resumes work fulltime. Pay increases $7$7.50$10/hr.
Commence social: horseshoes, golf, walking, kissing.
Drew blames alcoholism for marital problems. Abbie blames marital problems for alcoholism.
Stay together for young daughters.
Talked about divorce as early as 1982.
Filed in July 1985.
Sept. 1985, he filed claims
Trial court found that he was not the cause of alienation; relations did not begin until separated
and divorce filed.
b. Analysis:
i. In Nelson v. Jacobs, court rejected invitation to ABOLISH ALIENATION OF
AFFECTIONS CLAIM, although require “CONTROLLING CAUSE”—Causal
effect of the Defendant’s conduct MUST have outweighed the combined effect of
all other causes including the conduct of the 𝝅 & ex-spouse.
ii. CRIMINAL CONVERSATION hereby ABOLISHED
iii. Need to show that the defendant caused this in order for liability to be imposed
iv. Need to show that the spouse loved you until the third party came into the picture
which caused the spouse not to love you anymore
v. Alienation of affections does not require a showing of sexual relations
vi. The Summary Judgment on the Plaintiff’s claim for criminal conversation is
AFFIRMED
The Abolition of Heart Balm Actions and the Implications for Other Causes of Action
1. DiMichele v. Perrella (pg. 435) (C/A Against Paramour Who Fathered Children and Kept Secret
for Almost a Decade)
i. A relationship between two parties does not constitute a special relationship
imposing a duty to disclose unless that relationship is one of "trust and confidence"
and no such special relationship was recognized for a biological father to disclose his
paternity to the spouse of the children's mother when no relationship existed between
the men before the spouse learned he was not the children's father.
b. Background:
i. David married to Josinette DiMichele Aug 94
ii. 2 children born, daughter (14); son (12)
iii. David present at birth of each and listed on birth certificate as father.
iv. Alleges wife and Perrella knew children not fathered by P.
Novotny 46
c.
v. Wife would bring children to see Perrella periodically.
vi. Children started to ask questions and wife stopped, which prompted Perrella to file
for custody/visitation.
vii. D paid no child support until ordered by court (daughter 10, son 8)
Fraud Elements:
i. FALSE REPRESENTATION made as statement of fact
ii. Statement UNTRUE and KNOWN to be UNTRUE by the PARTY MAKING IT
iii. Made to INDUCE the other party to ACT UPON IT
iv. The other party did so ACT UPON MISREPRESENTATION to his INJURY
d. Fraud:
i. In concealing identity and permitting husband to believe he was the father, FRAUD
RESULTING in SEVERE MENTAL/EMOTIONAL DISTRESS.
ii. D says NO DUTY—NONDISCLOSURE NOT FRAUD UNLESS EXCEPTIONAL
CIRCUMSTANCES
iii. P says where Perrella knew, DUTY TO DISCLOSE. Further duty of support
1.
e.
Court held that there was fraud by silence. D had a duty to disclose to Pirella
Nonstatement:
i. Fraud by silence where THRU DECEIT/DECEPTION OPERATES PREJUDICIALLY
on rights of another to INDUCE HIM to part with property.
ii. Both D and P recognized as parent.
iii. Because each a parent and children have RIGHT TO KNOW PARENTAGE,
EXCEPTIONAL CIRCUMSTANCES MET.
f.
Intentional Infliction of Emotional Distress:
i. Actor INTENDED OR KNEW/SHOULD HAVE KNOWN EMOTIONAL
DISTRESS was likely outcome.
ii. Conduct EXTREME AND OUTRAGEOUS
iii. D’s conduct was CAUSE of P’s distress
g.
iv. EMOTIONAL DISTRESS SEVERE
C/A for IIED:
i. Here, conduct could REASONABLY be CONSIDERED OUTRAGEOUS
ii. TERRIBLE EMOTIONAL HARM.
iii. Further, KNOWLEDGE here came about thru INTENTIONAL FILING for
custody/visitation
h. Negligent Infliction of Emotional Distress:
i. D’s conduct created UNREASONABLE RISK of CAUSING P EMOTIONAL
DISTRESS
ii. P’s DISTRESS FORESEEABLE
iii. Emotional distress SUFFICIENT SEVERE to result in illness/bodily harm
iv. D’s conduct was the CAUSE of P’s distress.
i.
Unjust Enrichment:
i. BENEFIT CONFERRED upon D by P
ii. APPRECIATION/KNOWLEDGE by D of benefit.
Novotny 47
j.
iii. ACCEPTANCE/RETENTION of BENEFIT by D under circumstances making
RETENTION INEQUITABLE absent payment
Unjust Enrichment:
i. Origins in contract law, although contract not necessary.
ii. Nonetheless, D suffered NO LEGALLY COGNIZABLE DETRIMENT—he LEGALLY
REQUIRED to PAY FOR CHILDREN UNTIL true paternity revealed.
iii. Further, to REQUIRE REPAYMENT of PAST SUPPORT might UNDERMINE ABILITY
TO PAY CURRENT CHILD SUPPORT
iv. Court is UNWILLING to do this
v. Public Policy Concern – REPAYMENT might be going to HUSBAND RATHER than
the kids
k.
Undermined by Heart-Balm Prohibition:
i. But COURT has given PROHIBITION LIMITED READING.
ii. Further, D KNEW from beginning that children his, and children told at ages
9 & 7 true paternity.
iii. Public policy SHOULD NOT preclude receipt of some measure of damages.
Chapter 13 – Noneconomic Parental Relations (pg. 513-556)
Religion and Education:
1. Pierce v. Society of Sisters (pg. 513) (Challenge to requirement that 8-16 yr olds attend public
school)
a. Oregon Law:
i. Requires all 8-16 yrs. old to attend public school unless, e.g., have already completed
8th grade.
b. Background:
i. Society of Sisters operates orphanage.
ii. Also conducts primary and high school.
iii. Teaches traditional subjects plus systematic religious instruction and moral training.
iv. Primary school income exceeds 30K
v. Hill Military Academy. 5-21 yrs old.
vi. 100 students. 800/yr tuition
c. Arguments:
i. Right to conduct schools is property.
ii. Court suggests would destroy profitable nature of business and greatly diminish value
of property
iii. Parents have liberty interest in directing where their children go to school, given
that schools not unfit or harmful to public.
d. Rule:
i. Rights guaranteed by Constitution (right of parent to direct their children
and the upbringing of their children – schools interest in their substantial
property interest) MAY NOT be ABRIDGED BY LEGISLATION which HAS
NO REASONABLE RELATION to some purpose within competency of the
state.
e. Analysis:
i. Statute interferes with parent’s liberty interests (recognized in Meyer).
ii. Also unreasonably interferes with property interests.
Pierce v. Society of Sisters
Rule of Law
Requiring children to be educated only by public instruction violates the Fourteenth Amendment of the
United States Constitution.
Novotny 48
Facts
The state of Oregon (State) (defendant) enacted the Compulsory Education Act (Act), which mandated
that children between the ages of eight and 16 attend public school in their district of residence. The
Society of Sisters (Society) (plaintiff) and Hill Military Academy (Academy) (plaintiff), both providers of
private education for youths, sued the State to enjoin the Act. Plaintiffs prevailed in the lower court. The
State appealed to the United States Supreme Court.
Issue
Does requiring children to be educated only by public instruction violate the United States Constitution?
Holding and Reasoning (McReynolds, J.)
Yes. While states may require that children attend school and reasonably regulate such schools, states
do not have the authority to require public education only. The Fourteenth Amendment protects the
liberty of parents and guardians to direct their children’s education. Children are not owned by the
state. Unless a state can show a reasonable relation between legislation and a legitimate state objective,
the state may not curtail its citizens’ constitutional rights. No reasonable relationship is shown in this
case. There is no evidence that private education is harmful. Thus, the Act unreasonably interferes with
a constitutionally protected liberty interest. The injunction is affirmed.
2. Prince v. Massachusetts (pg. 517) (Challenge to application of Child Labor Law to children giving
away religious literature in exchange for donations)
a. Background:
i. Sarah Prince permits niece Betty Simmons to go w/ her to hand out Watchtower and
Consolation in exchange for donations.
ii. Children had cried, insisted they wanted to go with her.
iii. Betty said her religious duty.
b. Massachusetts Statute:
i. No boy under 12 & no girl under 18 shall sell, expose of offer for sale any newspapers,
magazines, periodicals or any other articles of merchandise of any description or exercise the
trade of bootblack or scavenger or any other trade in any street or public place
c.
Arguments:
i. Free exercise
ii. Parental rights
d. Rule:
i. Parent’s authority to provide religion with secular schooling and the child’s
right to receive it MUST be balanced against the state’s requirements.
Acting to guard general interest in youths’ wellbeing – State MAY
RESTRICT the parents’ control by requiring school attendance,
regulating child labor, etc.
e. Analysis:
i. Children have rights to exercise religion.
Novotny 49
ii. Parents have right to give them religious training and encourage them in the practice
of religious belief (Barnette).
iii. But family not beyond regulation and conscience does not immunize.
iv. No freedom from compulsory vaccination.
v. State authority over children broader than over adults.
vi. Parents cannot martyr children, expose to physical/ emotional danger.
vii. Distinction – parents can martyr for themselves but not for children as it could
place children in a risk of harm
viii. With referencing to the public proclaiming of religion, upon the streets and in other
similar public places, the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults, as is true in the case of
other freedoms, and the rightful coundary of its power has not been crossed in this
case
ix. Cited for two propositions:
x. Parents have important rights as it pertains to their children
xi. Parents cannot martyr their children, meaning the state can intervene and override
parental decision making for the best interest of the child
3. Johnathan L. v. Superior Court (pg. 520) (Home schooling and some of the conditions under
which it can be limited)
a. Background:
i. In 87, father physically abused eldest daughter who went to live w/ mother to escape
ii. 2nd daughter abused, declared dependent and removed.
iii. Rachel declared dependent. Mother failed to intervene.
iv. Then Jonathan and Mary Grace declared dependent due to abuse of siblings. Left in
parents’ custody contingent on cooperation.
v. All 8 children homeschooled by mother who completed 11 th grade.
vi. Children had varying degrees of success, although not so poor as to create serious risk
emotional damage
vii. All children declared dependent because of abuse.
viii. Sought order to attend school elsewhere for safety reasons.
b. Analysis:
i. California Statute permits home schooling.
ii. Might be constitutional difficulties if required licensed teacher. (Cf. Yoder)
iii. But NO ABSOLUTE RIGHT
1. Compelling interest/narrowly tailored will justify limitation
iv. To satisfy the test of STRICT SCRUTINY, a state must establish (1) that the law in
question is supported by a COMPELLING GOVERNMENTAL INTEREST and
(2) that the law is NARROWLY TAILORED to meet the END. (The statute must
represent the LEAST RESTRICTIVE MEANS of achieving the interest)
v. The court could conclude that out-of-home schooling is necessary here, given
history of abuse and neglect in the family
4. Shepp v. Shepp (pg. 531) (Change to Limitation of Expression of Religious Beliefs)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
Stanley & Tracey married in 92. Converted to Mormonism prior to marriage
Kalylynne born in 93
Separated April 2000; divorced Feb. 2001.
He excommunicated because he is a fundamentalist who believes in polygamy.
Katylynne lives w/ Mom and daughters from previous marriage
Interim order giving shared legal; she gets primary physical
b. Father’s Testimony:
Novotny 50
i. He seeks primary physical.
ii. Believes in polygamy. Current wife OK w/ it.
c.
Further Testimony:
i. {No stepparent can marry his/her stepchild.}
ii. Manda (mother’s daughter from previous marriage) testifies that stepfather told her that she
should marry him.
iii. Trial court awarded primary physical custody to mother, joint legal, and precluded father from
teaching daughter about polygamy while she is a minor. Nonetheless, did not find father posed
a grave threat.
iv. Appellate court disagreed, saying that he did pose a threat.
d. Analysis:
i. While father claims he is protected in desire to teach his child his religious beliefs, Father
precluded under Davis from teaching/ counseling plural marriage. [But see
Romer v. Evans, 517 U.S. 620, 634 (1996) (“any reliance upon it [Davis] as authority …
is misplaced”].
ii. Where discussing NOT itself grave threat, CANNOT restrict teaching
iii. By their very nature, decisions involving child custody MUST focus on the
character and conduct of the individual parents and children involved.
Accordingly, there may be instances where restricting a parent from teaching a
child about a sincere religious belief involving illegal conduct is appropriate.
However, we emphasize that the illegality of the proposed conduct on its own is
NOT SUFFICIENT to warrant the restriction. Where, as in this instant matter,
there is NO FINDING that discussing such matters constitutes a grave threat of
harm to the child, there is INSUFFICIENT basis for the court to infringe on a
PARENT’S CONSTITUTIONALLY PROTECTED RIGHT to SPEAK TO A
CHILD ABOUT RELIGION as he or she fits.
iv. Court MAY prohibit a parent from advocating religious beliefs, which, if acted
upon, would constitute a crime. However, it may do so only where it is established
that advocating the prohibited conduct would jeopardize the PHYSICAL OR
MENTAL HEALTH OR SAFETY OF THE CHILD, or have a POTENTIAL FOR
SIGNIFICANT SOCIAL BURDENS
v. Parents can be limited to what they can say to children, if they promote harm
Medical Treatment:
1. Lundman v. McKown (pg. 545) (Wrongful Death Action)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
May 6, 1989, Ian tells Mom he has stomachache. He’d been ill, lethargic for several weeks.
He had lost noticeable amount of weight, breath had fruity aroma. Lacked energy
Ian Lundman died at age 11 from juvenile onset diabetes after 3 days Christian Science care.
Medical professional would have diagnosed from symptoms. E.g., fruity breath.
This form of diabetes usually responsive to insulin (even 2 hours before death)
He became sicker.
Mother called various individuals (in accord with religious teachings)
Quinna Lamb came to house to assist. Prayer.
Ian died next day.
ix.
b. Legal Implications:
i. Kathleen/William McKown charged w/ second degree criminal manslaughter.
Charges dismissed. [Matter of state law]
ii. Apr 91, natural father sues various individuals for wrongful death
c. Legal Analysis of Tort:
i. Duty
1. Yes. Kathleen (mother); William (stepfather); Mario Tosto (specially trained
to provide spiritual treatment thru prayer); Quinna Lamb (Christian Science
nurse)
Novotny 51
ii. Breach
1. Duty reasonable care of believer, knowing that severe injury or death requires
seeking medical help
iii. Causation
1. Failure proximately brought about harm
iv. Harm
1. death
d. Dismissal of Claims:
i. Claims against Church;
ii. Van Horn (Christian Science Committee on Publications)
iii. Clifton House (treatment center for those at least 16). (No duty)
iv. Uphold remittitur compensatory damages from 5.2 to 1.5M
Chapter 15 – Quasi-Parental Relations: (pg. 601-628)
Grandparents Rights:
1. Troxel v. Granville (pg. 602) (Challenge to Visitation Order Involving Grandparents)
a. Washington Statute:
i. Any person may petition the court for visitation rights at any time including but not limited
to custody proceedings. The court may order visitation rights for any person when visitation
may serve the best interests of the child whether or not there has been any change of
circumstances
ii. Really broad because the statute is trying to cover numerous relationships
1. Does not limit who can petition the court for visitation
iii. Does not require a change of circumstances
b. Background:
c.
i. Tommie Granville & Brad Troxel did not marry but had 2 daughters, Isabelle & Natalie.
ii. Jenifer & Gary Troxel are grandparents. After separation, Brad lived w/ his parents and
brought kids there.
iii. He committed suicide in 1993.
iv. Tommie informed grandparents in Oct. 1993 one short visit/month w/ grandkids.
v. Troxels challenge, asking for 2 weekends of overnight visitation/month and 2 weeks
visitation/summer
vi. Granville says 1 day/month. No overnight.
vii. Ct. one week/month, one week/summer, 4 hrs grandparents’ birthdays
viii. [TR has since married Kelly Wynn, who has adopted kids]
Analysis:
i. Liberty interest of parents in care/custody/ control of children.
ii. This statute interferes w/ Granville’s liberty interest: any person at any time.
iii. No deference given to parent’s decision
iv. Strike overbroad statute as applied.
v. No need to address whether actual/probable harm necessary to establish
vi. Need to give some weight to the PARENT’S FUNDAMENTAL RIGHT to make
CHILD REARING DECISIONS
2. Harrold v. Collier (Constitutionality of Grandparent Visitation Statute under Troxel)
a. Background:
i. Renee Harrold & Brian S. Collier have daughter
ii. Renee lives with her parents.
iii. He has supervised visitation.
iv. She dies.
v. He files for legal custody. Denies grandparents visitation.
b. Legal History:
Novotny 52
i. Trial court finds Troxel precludes impinging on his parental decisionmaking absent overwhelmingly clear circumstances
ii. Appellate court distinguishes overly broad Washington statute, upholds Ohio’s
c. Ohio Supreme Court Analysis:
i. Washington statute allowed any person to seek visitation.
ii. Washington court gave no special weight to parent’s choices.
d. R.C. 3109.11:
i. If either the father or mother of an unmarried minor child is DECEASED,
the court of common pleas of the county in which the minor child resides
MAY grant the parents and other relatives of the deceased father or
mother REASONABLE COMPANIONSHIP OR VISITATION RIGHTS with
respect to the minor child during the child's minority if:
1.
e.
f.
The parent or other relative FILES a COMPLAINT REQUESTING
REASONABLE COMPANIONSHIP OR VISITATION RIGHTS and if
the court determines that the granting of the companionship or
visitation rights is in the BEST INTEREST OF THE MINOR CHILD.
In determining whether to grant any person REASONABLE
COMPANIONSHIP OR VISITATION RIGHTS with respect to any child,
the court SHALL consider all relevant factors
Ohio Statute Distinguished:
i. The Ohio nonparental-visitation statutes LIMIT WHO CAN PETITION
THE COURT for VISITATION and LIMIT the APPLICATION OF THE
STATUTES to cases where there is a SPECIFIED PREDICATE e.g., where the
mother or father of the child is deceased and limits the persons who can
petition for nonparental visitation to the parents and relatives of the
deceased mother or father.
Parental Wishes:
i. Court MUST give weight to parent’s wishes.
ii. Here, weight was given.
iii. Ohio statute passes muster.
iv. Remand only for purposes of determining visitation.
v. Clearly in BEST INTERESTS given that they raised granddaughter for 1st 5
years.
Stepfamilies and Foster Families:
1. Smith v. Org of Foster Families for Equality and Reform (pg. 619) (Foster Parent’s Liberty
Interest in Family)
a. Analysis:
i. Usual understanding of family involves blood or marriage.
ii. But strong relationship can exist outside those bounds.
iii. Nonetheless usually when recognize family interest DOES NOT
undermine someone else’s relationship.
iv. Natural parent who gave up child temporarily has reliance interest.
v. NY already provides opportunity for independent review when go from foster
home to foster home.
2. M.S. v. People (Foster Parents have Liberty Interest?)
a. Background:
i. M.S. & A.S. foster parents of A.C.
ii. A.C. making progress
Novotny 53
iii. Foster mother makes comments suggesting she not suitable. Poor reality testing.
iv. Child removed.
b. Legal Analysis:
i. M.S. & A.S. claim entitled to hearing as prospective adoptive parents because
reasonable expectation that relationship would continue.
c.
ii. But MUST have SUBSTANTIVE INTEREST, e.g., recognized interest that affects
likely outcome by limiting discretion, for liberty interest under state law to be
recognized.
Liberty Interest under Constitutional Law:
i. Where parents take every feasible step toward adoption, including FILING
AN APPLICATION with the child placement agency, undergoing
“EXHAUSTIVE EVALUATION,” QUALIFYING for the PLACEMENT OF A
CHILD in their HOME, and HAVING the CHILD PLACED IN THEIR HOME,
then REASONABLE EXPECTATION.
ii. Adoptive parents who INITIATE the adoption process in accordance with
State Law TRIGGER PROTECTIONS.
d. Conclusion:
i. Here, DID NOT do enough to create liberty interest.
1.
Foster parents where only thinking of adopting child
2. If they took all necessary steps, foster parents would have a
LEGITIMATE INTEREST
3. No recognized interest
ii. NO procedural protections triggered.
Chapter 16 – Divorce Jurisdiction and Procedures (pg. 629 – 674)
1. William v. North Carolina (I) (pg. 629) (Interstate Recognition of Divorce)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
Williams married to Carrie Wyke
Hendrix married to Thomas Hendrix.
Petitioners filed divorce action in Las Vegas. Residents for at least 6 weeks.
After court granted divorce, they married and moved back to NC
Nevada has a 6-week residency
Residency means your physically present
Domicile suggests that your physically present and have an intention to stay there indefinitely
b. Issue:
i. Whether North Carolina must give Full Faith and Credit to the divorce secured in Nevada.
c. Article IV Section 1:
i. Full Faith and Credit SHALL be given in each state to the public Acts, Records, and
Judicial Proceedings of every other State.
ii. Congress may by general laws prescribe the Manner in which such Acts, Records, and
Proceedings shall be proved, and the Effect thereof.
d. Federal Statute:
Novotny 54
i. Judgments SHALL have such faith and credit to them in every court within the
United States as they have by law or usage in the courts of the State from which
they are taken.
ii. Does not mean, however, that a state must subordinate its own law, as respects
domiciliaries,* to the statutes of another state.
e.
iii. * But note equivocation based on when become domiciliary
Rule:
i. For a court to have jurisdiction to grant a divorce it is NOT NECESSARY to have
PERSONAL JURISDICTION for both parties
ii. If there really is a divorce, and it is granted (one spouse domiciled), then the
divorce is subject to FULL FAITH AND CREDIT
iii. Merely because a State has the power to grant a divorce DOES NOT mean it has the
power to devise property or child support
f.
Jurisdiction:
i. Residence requirement also means DOMICILE.
ii. Because domiciled, the state has jurisdiction over the status.
iii. Each state can alter the marital status of spouse domiciled there, even if
other spouse absent.
iv. This does mean that one state’s policy might be defeated by another state’s more lax
law.
v. Where someone meets the residency requirement and domicile
requirement, that person will be able to get a DIVORCE in that state.
vi. State can still alter the marital status of its domiciliary
vii. If the state CAN alter the martial status of its domiciliary, the state is also altering the
marital status of the party to whom the domicarian was formerly married to even
though that person DID NOT step into that state.
viii. As long they were domiciled in Nevada when they got their respective divorce, meaning
North Carolina’s tougher law is submerged by Nevada’s lax law
g.
Analysis:
i. Assume that Nevada domicile NOT sham.
ii. When one state w/ jurisdiction grants divorce, NOT excepted from full faith &
credit guarantees.
iii. Considerable interests involved and protection of innocent indicate that
purposes behind full faith & credit would be thwarted by contrary rule.
iv. Assuming Nevada is the domicile and that such individuals were not pretending that
Nevada was there domicile, Nevada has the power/the jurisdiction to GRANT THE
DIVORCE, and once a court in a state grants a divorce, assuming the court has
jurisdiction to do so, because of DOMICILE, the divorce decree gets FULL FAITH
AND CREDIT throughout the United States
1. Protect innocence
2. Protect property interest
v. Full faith and credit received as long there is DOMICILE
2. Williams v. North Carolina (II) (pg. 637) (Conviction for Bigamous Cohabitation Appealed)
a. Background:
i. NC refuse to give full faith and credit to Nevada divorce, saying that Nevada domicile
a sham
b. Analysis:
i. Juridical power to grant a divorce is founded on DOMICILE.
ii. Divorce like marriage affects personal rights of great significance and
basic interests of society.
Novotny 55
iii. DOMICILE is not bound by unfounded recital in the record.
iv. Decree of divorce is conclusive adjudication of everything except the
jurisdictional facts upon which it is founded.
c.
Trial Court Charge:
i. State has BURDEN of proving BEYOND REASONABLE DOUBT:
1. Each petitioner was lawfully married to one person
2. Thereafter each petitioner contracted a second marriage with another
person outside of North Carolina
3. The petitioners’ spouses were living at time of second marriage
4. Each petitioner cohabited with one another in N.C. after the second
marriage
ii. Burden shift to satisfy the jury that petitioners were domiciled in Nevada when
obtaining divorce.
iii. Recitation of bona fide domicile in decree was prima facie evidence. But
inference of domicile not compelled
iv. Jury could find NO CHANGE of domicile on these facts
v. Domicile
1. Physically Present and intention to stay indefinitely
a. NEED INDICA
i. Job there
ii. Registered to vote there
vi. At Least ONE OF THE PARTIES MUST be DOMICILED in the state
3. Sherrer v. Sherrer (pg. 643) (Mass. Failed to accord Full Faith & Credit to Sister State Judgment?)
a. Background:
i. Margaret/Edward Sherrer married in NJ in 1930, lived in Mass.
ii. In 1944, she left w/ kids for Florida, allegedly for vacation.
iii. She said not coming back. Got housing, put older kid in school, secured employment.
iv. She filed for divorce, alleging cruelty.
v. He appeared, denying allegation and denying her domicile.
vi. Divorce granted
vii. She married Phelps on Dec 1, 1944.
viii. They both employed, until Feb 5, 1945, when return to Mass.
ix. June 5, Edward files in Mass., alleging divorce and second marriage void.
b. Analysis:
i. Here, finding of domicile after contest.
ii. Question is whether collateral attack permissible.
1. Answer is NO.
iii. Whether the husband gets a second chance for collateral attack
Novotny 56
1.
NO; the court has held that the doctrine of res judicata MUST be applied
to questions of jurisdiction in cases arising in state courts involving the
application of the Full Faith and Credit Clause where, under the law
the state in which the original judgment was rendered, such
adjudications are NOT SUSCEPTIBLE to collateral attack
2. Court holds that the Mass courts erred in permitting the Florida
divorce decree to be subjected to attack on the ground that petitioner
was NOT DOMICILED in Florida at the time the decree was entered.
4. Weiss v. Weiss (pg. 649) (Dismiss Complaint or Change Venue of Hearing Regarding Validity of
Divorce)
a. Background:
i. Bruce/Elizabeth Weiss married in NY in 1986. Jessica born in 1991.
ii. They have been physically separated for several years.
iii. He filed for and was granted divorce in Nevada.
iv. Court did not divide property or award custody/support.
b. Her Response:
i. 9/23/08 denied validity of divorce.
ii. He neither domiciled there nor resided there for requisite period.
iii. During that period, he
iv. In NY, visiting daughter, making court appearances living with girlfriend, seeing
parents, working, going to local Drs.
v. No surrender NY driver’s license, terminate insurance, get job in Nevada, open bank
account, change billing address
c. His Argument:
i. She sat on rights.
ii. Further, he registered to vote there, had Nevada driver’s license, cell-phone, landline.
Resided there 6 wks
iii. Further, no prejudice because distribution to be performed in NY
d. Analysis:
i. She MUST establish invalidity.
ii. Full Faith & Credit will be given ABSENT IMPROPER SERVICE (lack of due
process) or NO DOMICILE.
iii. That issue to be determined here.
Divorce Procedure:
1. Sosna v. Iowa (pg. 660) (Challenge to 1 year Residency Requirement for Divorce)
a. Background:
i. Carol/Michael marry in Mich. in 1964, live in NY thru 1971. Then separated.
ii. Aug 1972, she move w/ kids to Iowa.
iii. One month later she filed for divorce.
iv. He challenged (served when visiting)
v. Ct finds he not resident and she no meet residency requirement
b. Rule:
i. Court finds he is NOT a resident of Iowa, and she DID NOT meet the 1 year
residency requirement, therefore, she MUST wait to divorce. State has
interest in minimizing decrees to collateral attack.
c. Analysis:
i. States vary in RESIDENCY REQUIREMENT from 6 weeks to 2 years.
ii. Other residency requirements on basis of budgetary or recordkeeping considerations.
iii. Here, various interests—both adults, children, property.
iv. State has interest in minimizing decrees to collateral attack
v. Here, she must merely delay.
Novotny 57
2. Clouthier v. Clouthier (pg. 665) (Challenge to Property Division and Debt Allocation in
Agreement)
a. Background:
i. Lorenzo/Dawn Cloutier married 87
ii. 3 children.
iii. House valued at 80k; 61K on mortgage.
Lorenzo’s father gave them 25K to purchase land & build house, based on home
equity loan. Cloutiers gave him promissory note for 25K plus interest.
iv. Lorenzo employed at LL Bean. Salary 38.6K
v. Dawn work as accountant at Mid-State College. 20K
vi. House has attached apartment. 125/wk rental
vii. They reach pre-trial mediated agreement to sell house to pay debt.
viii. At trial, she sought to have mediation agreement disregarded and have her awarded
the house.
ix. On Aug 2, court said disposition of house to be decided at October hearing.
b. Analysis:
i. That pretrial agreement entered into in context of court-mandated
mediation DOES NOT give force to content of agreement UNTIL approved
by court.
c.
ii. Normally, such agreements should be honored.
Basis for Setting Aside Agreement:
i. Parties agree to set aside
ii. Leaving agreement in place would result in SIGNIFICANT INEQUITY
iii. UNANTICIPATED AND SUBSTANTIAL CHANGE in circumstances since
agreement
iv. Whether the Court can resolve matters NOT contained within agreement in
reasonable way in light of agreement
v. What effect enforcement would have on BEST INTERESTS OF
CHILDREN
d. Application:
i. Equity in house NOT NEARLY ENOUGH to pay off any debt. [Suppose it had
been enough?]
ii. Children had always lived in home.
iii. She could not provide alternative housing were they to sell
Chapter 17 – Divorce (pg. 675 – 714)
1. Watts v. Watts (pg. 677) (Challenge to Adultery Finding)
a. Background:
i. Charles/Linda Watts married 1980
ii. One child.
iii. Linda filed a complaint seeking a divorce on the ground of adultery
b. Adultery:
i. To establish a charge of adultery the Evidence MUST be CLEAR, POSITIVE,
CONVINCING
1. Clear and convincing evidence
2. (not beyond reasonable doubt).
ii. CIRCUMSTANTIAL or DIRECT EVIDENCE OK
c. Application:
i.
ii.
iii.
iv.
v.
Late nights.
Frequently check voice mail. Telephone use increase.
He move out in March 2000, move back in October. Mere infatuation w/ Virginia Mae Glass
Jan. 01, relationship worsens.
March, she hires private investigator
Novotny 58
d. Investigatory Report:
i. Mar 8, He meet Glass, who also work at Printpak, in Williamsburg. Drove to house.
Stayed 4 hours, 20 min. Kisses & embraces.
ii. Mar 14 meet for a few hours
iii. March 15 dinner, movie. Stay until 4:30 at Cedar Springs Drive residence
iv. Mar 23, They meet for several hours. Then he stay until 4:20 at Cedar Springs Drive
residence
e. Analysis:
i. Here meetings covert. No credible explanation offered to justify.
ii. Husband did not give a plausible explanation
iii. He admitted infatuation
iv. Adultery affirmed. Use in asset distribution affirmed.
2. 5th Amendment:
a. United States v. Balsys, 524 U.S. 666, 672 (1998)
i. (“[T]the privilege … “can be asserted in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory,” in which the
witness REASONABLY BELIEVES that the information sought, or
discoverable as a result of his testimony, could be used in a subsequent state
or federal criminal proceeding.”)
3. Ibrayeva v. Kublan (pg. 682) (Challenge to Cruelty Finding for Divorce)
a. Background:
i. Kublan met wife when representing her at hearing in immigration court.
ii. They married, had one child.
iii. Frequent arguments, several physical altercations
iv. She arrested for assault & battery against husband 3 times.
v. He files for divorce. He says cruelty; she says living separate and apart.
vi. Divorce granted based on cruelty. He gets custody of child.
b. Rule:
i. Divorce is granted based on CRUELTY when one spouse has propensity
toward violence amounting to cruelty. Created unsafe and intolerable living
situation. CORROBORATION of cruelty required: photos, witness testimony
c.
ii. The CRUELTY that authorizes a DIVORCE is anything that tends to bodily harm
and thus renders cohabitation unsafe; or as expressed in the older decisions,
that involves danger of life, limb, or health
Analysis:
i. She had propensity toward violence, amounting to cruelty. Propensity made situation
intolerable and unsafe for husband.
ii. She said that he threatened to withdraw immigration petition so that she would be
deported.
iii. Trial court found husband’s (and his mother’s) testimony more credible.
iv. Corroboration required to prevent collusion.
v. Photos of his injuries plus mom’s testimony enough
4. Davis v. Davis (pg. 685) (Social Abandonment Ground for Dissolution)
a. Background:
i. Noel files for divorce against Shepherd
ii. Cruel & inhuman (not at issue)
b. Rule:
i. Abandonment which in addition to its plain dictionary meaning regarding
PHYSICAL DEPARTURE.
c. Analysis:
Novotny 59
i. Constructive abandonment
1. Traditionally refusal to have sex for more than a year DESPITE
repeated requests. (No annual requirement of sexual relations – more of
disagreeing with one another)
2. Repeated requests and individual says no each time
3. Spouse makes it impossible for one to remain in the home
ii. Here CANNOT be used where:
1. No celebrate Valentine’s, Thanksgiving, Christmas, b-day
2. No eat together, attend family functions, no shopping, church, restaurant,
3. Remove clothes from bedroom. Otherwise ignore.
4. Together 41 years.
5.
Carambat v. Carambat (pg. 687) (Divorce Granted because of Habitual and Excessive Drug Use)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
Marry in 93 in Louisiana. Live in Mississippi
Twin boys, James & Tyler, born in 99
Separate Aug 08; file Sept. 08.
He has been smoking since age 14.
Impaired job at printing company. Demoted.
She began to spend more time at country club.
She has started dating Henry. Had contemplated divorce for awhile. Once filing, sexual
relationship w/ Henry.
b. Allegations:
i.
ii.
iii.
iv.
Irreconcilable differences
Habitual cruel and inhuman treatment
Habitual & excessive drug use.
She asks for custody, spousal and child support, equitable division assets, attorney’s fees.
c.
Rule:
i. State law grounds for divorce for drug use requires use to be (1) habitual and (2)
excessive.
d. Analysis:
i. No evidence of cruel and unusual.
ii. James failed to plead recrimination; condonation; adultery. (Recrimination does not bar
granting divorce.)
iii. Chancellor found drug use excessive.
iv. Affirmed
v. [Cf. Ohio Rev. Code Ann. § 3105.10 (C) (“A plea of condonation or recrimination is not a
bar to a divorce.”)]
Separation and No-Fault Divorce:
1. Vandervort v. Vandervort (pg. 695) (Wife Seeks to Vacate Divorce Decree)
a. Background:
i. Roger and Patricia had agreed to divorce w/ his receiving almost all of her marital property.
ii. She will need nursing care for her multiple sclerosis.
iii. Single status plus lack of assets enable her to receive social security disability income &
Medicaid to pay for nursing home care.
iv. They were to live together post-divorce. But acrimony. She went to parents and he said not to
come back.
b. Analysis:
i. She competent.
ii. Fraud—he misrepresented that he was a resident of Oklahoma County and her
agreement does not confer jurisdiction.
Novotny 60
iii. Fraud re: INCOMPATIBILITY. There should be such a conflict of
personalities as to destroy the legitimate ends of matrimony and its
possibility of reconciliation.
iv. Equity and Justice require that they be returned to state of matrimony, even
though normally a colluding party WILL NOT be allowed to contest a
judgment
2. Bchara v. Bchara (pg. 700) (Appeal Divorce Decree)
a. Background:
i.
ii.
iii.
iv.
Adnan (husband) appeals decree of divorce from Marja (wife).
One son in 1995. After that, no sex. He had affairs, which she allegedly condoned.
His belongings put in guest room. They lived separate/apart for over a year.
Husband committed adultery, but recrimination precluded that basis.
b. Rule:
i. A divorce may be granted on the application of either party if and when the husband
and wife have lived separate and apart WITHOUT cohabitation and
WITHOUT interpretation for one year. This statute requires proof of an
intention on the part of at least one of the parties to discontinue
permanently the marital cohabitation followed by physical separation for
the statutory period. Determination of whether lived separate and apart is a
fact-based inquiry, requiring examination of all the circumstances.
c. Analysis:
i. Trial court heard oral (ore tenus) testimony.
ii. He claims not separate and apart until served w/ divorce papers
iii. But after she saw tape, stopped putting funds in joint account, moved clothes, asked
him to move out.
iv. Affirmed
3. Sargent v. Sargent (pg. 704) (Separate and Apart Versus Desertion)
a. Background:
i.
ii.
iii.
iv.
v.
Gary and Patricia married in 1976.
2 children, Dustin (born in ‘81) and Matthew (born in ‘85).
She file for divorce (cruelty) & left home.
He file for divorce (desertion) one year later.
He challenges awarding based on separation when she initially alleged cruelty.
b. Analysis:
i. Court NEED NOT give precedence to one proven ground over another.
ii. Court instead can use discretion.
iii. Here, they lived separate and apart for requisite period (more than one year).
iv. Further, NOT legal desertion is separate after instituting suit for divorce.
Chapter 18 - Property Division: (pg. 715 – 761)
1. Property:
a. Marital
i. Acquired during marriage
ii. May be treated as marital (wholly/partly) because use marital time, energy, $
iii. Salary is considered marital property
b. Separate
i. Acquired before marriage (and not contributed)
ii. Acquired during marriage separately, e.g., by gift or bequest
Property Division Upon Divorce – In General:
1. Sewall v. Saritvanich (pg. 717) (Whether appreciation in value of nonmarital property should be
treated as marital and subject to distribution)
a. Background:
Novotny 61
i. Sewall/Saritvanich married in 93; Sewall file for divorce in 95; hearing in Dec. 96; divorced in
97.
ii. Sewall (41) president of Sewall Co. Dad has voting control but Sewall owns all common stock.
He earns over 100K annually. Has 401K, IRA and owns property in Orono, Castine & Brooklin.
iii. Saritvanich in early forties. Owned convenience store, which she sold before marriage.
Receives $382 monthly. Plans start import/export.
b. Trial Court:
i. Marital estate
1. 500K appreciation in common stock
2. 45K appreciation in 401K plan
3. 2K appreciation in life insurance plan
ii. Sewall to pay Saritvanich
1. 75K in 3 annual installments (15% interest)
2. 6,600 attny fees
3. 20K to reduce mortgage he cosigned
iii. His Nonmarital estate 5.6M
1. Orno property 184K
2. Castine property 250K
3. Common stock 5.1M
4. 401K 120K
5. IRA 10K
6. Insurance 10K
iv. Her nonmarital
1. Rights pursuant to note on convenience store
2. Some (unknown number of) shares in McDonald’s corp.
3. Equity of 34K in house in Old Town
c.
Orono Property:
i. Purchased from mother before marriage by signing note for 100K on which he makes interest
payments.
ii. He doesn’t know actual value when bought (no appraisal)
iii. He and she made improvements to house (she using $ from Old Town mortgage) (He says
worth 3-4K)
iv. Property currently worth 184K
v. The increase in property value has nothing to do with increased value
vi. Increase in value is not marital
vii. If you own something before and it generally increases in value over the years, as long as it
remains separate, not marital
viii. Home improvement using martial funds means a percentage of the increase is marital funds
d. Analysis:
i. Marital property includes increase in value of separate property attributable
to marital estate.
ii. Once can show partly marital, BURDEN on other party to demonstrate that
increase due to inherent value and NOT marital funds/effort.
e.
iii. NO SHOWING, MUST assume marital
iv. Sewall purchases Castine property before marriage, taking out home equity loan on
property he owned (that father had given him).
v. He made monthly payments of 2K from Oct. 93 – Jan 95.
vi. Sold Brooklin property, paying off home equity loan.
vii. Castine property marital?
viii. Where property acquired before marriage and mortgage payments made
during marriage, MARITAL PROPERTY to extent reduce principal owed.
ix. No mortgage existed on Castine property
x. Home equity loan did not reduce mortgage on Brooklyn property.
Division of Marital Estate:
i. She challenges division of marital estate.
ii. She gets 75K.
Novotny 62
iii. But increase value of Orono property will require reevaluation on remand.
2. White v. White (pg. 721) (Challenge to Division Marital Assets)
a. Background:
i.
ii.
iii.
iv.
v.
Husband has annual income 185K.
Total marital assets 8.5M
Wife unemployed. Ill health. Inoperable brain tumor.
She says marital assets 20M
He admitted that he deposited 1M from sale parties’ business to nondisclosed bank account
and that he has 2 accounts in Ohio— 1- 50K; the other 642K
b. Challenges to Trial Court:
i. 612K wife received as temporary support not credited to her, but court also did not
credit monies husband used (in excess of 600K). (Given to family as cars/loans)
ii. 300K used by wife to purchase autos not attributed to her because she already
credited w/ monies from sale of business which were used to buy the cars.
iii. Value of jewelry furs not charged to wife, but value jewelry charged to husband. Yet,
his jewelry not charged to him and $ for girlfriend dissipation.
iv. Dissipation of assets – not promoting marital interest
v. One way to benefit me is give money to someone new I am seeing
vi. Here, spending money for his girlfriend on buying a new house for both of them to
stay, makes where the money is coming from unclear
1. He has provided no records
2. He is being credited around him some spenditures
vii. Those funds that are being misused will be considered part of your spenditure
viii. He withdrew 550K from BankOne account and he credited with value of Ormond
Beach home (where he advanced 300K to girlfriend to close). But he provided no
records and this all post separation.
ix. Inheritance? But commingled with marital assets.
1. If you mix inheritance with marital funds, it is NO LONGER
considered separate because such funds were comingled, thus
considered as marital funds
x. She says shouldn’t be equal distribution marital assets given his egregious conduct
and fraudulent concealment. But within discretion.
3. Thomson v. Thomson (pg. 724)(Date as of which to Calculate QDRO)
a. Background:
i. David/Marjorie marry in ‘82; permanently separate in ‘04.
ii. They develop plan (thru mediator) incorporated into 06 divorce.
iii. He retain home.
iv. She receive 53% net estate to help establish housing for minor children
b. Retirement Account:
i. Co. looked at earning in 03-05 to calculate projected benefit if he retired at expected
date 4/1/15.
ii. Mar. 2006 present value of benefits 286K, marital portion 271K.
iii. Once they considered a fair distribution of entire estate in dollar terms, they
calculated the percentage of PERS benefits on her side of ledger.
Novotny 63
iv. Agreement. She get 46.96% of monthly benefit.
v. Post Dec. 04 all other property acquired is separate not subject to distribution.
c. Final Accounting:
i. Final accounting of benefits based on salary 13-15 (where salary substantially
increased).
ii. Because increased years of service and higher salary, her payout 80% more than
projection.
iii. He seeks to amend in light of salary data of relevant years.
iv. But Hartley v. Hartley:
v. Absent clear language to contrary in property division agreement, court should base
retirement benefits on employee spouse’s high-three salary years at time retirement.
d. Retroactive:
i. Hartley decided later.
ii. Nonetheless, where K unambiguous must enforce.
iii. Under his plan, he entitled to benefit base don years of service and highest average
monthly salary at time retirement.
iv. Deferred distribution distributes benefit actually received. Implemented via Qualified
Domestic Relations Order (QDRO), which enforces court order of distribution
e. Marital Share:
i. Marital share = Number of years worked during marriage divided by total
number years worked.
ii. While other property acquired post separation is separate, that no apply to pension
benefits
4. Alford v. Alford (pg. 729) (Marital Debt)
a. Which Debts are Marital (Up to the State)
i. Debts acquired during marriage by either or both spouses’ property
considered MARITAL.
ii. In allocating responsibility for marital debt:
1. debt’s purpose
2. which party incurred the debt
3. which party benefitted from incurring debt
4. which party best able to repay debt.
b. Background:
i. Pamela and Stanley married in 79, separated in 89 but remained married another 12
years (for sake of child).
ii. He voluntarily paid 200/mo child support until daughter turned 18. Maintained
health insur for daughter, paid her medical bills and paid for college tuition. He also
gave financial assistance if wife requested.
c.
Divorce:
i. He files for divorce upon learning Wife had taken out second mortgage 10K.
ii. He later learned obtained credit cards in his name upon which she had defaulted
d. Trial Court:
i.
ii.
iii.
iv.
v.
Each party awarded own car.
Wife’s debts paid out of marital estate.
Marital assets divided equally.
Upon his motion, trial court modified
H to pay W’s debt up to 8K including
1. Visa debt up to 3.5K (incurred after daughter 18)
2. Commercial Credit plan loan up to 1K
3. Pay off her loan against 401K, not to exceed 4.5.
Novotny 64
vi. After debts paid, parties add values of separate 401Ks and investment accounts. He to transfer
sufficient shares to equalize.
e.
f.
Court of Appeals:
i. Marital vs separate debt
ii. Marital incurred during marriage for joint benefit or acquisition of marital
property.
iii. (Agreed that her debts were marital because maintaining living expenses and payment
allocations)
Supreme Court:
i. Reverse insofar as make initial determination of which separate and which marital.
ii. Will follow other courts in classifying all debt as marital.
iii. [But see Garcia v. Garcia Samano, 2019-Ohio-3223, ¶ 10 (Ohio App.) (“An appellate court
reviews the trial court's classification of property or debt as marital or separate under the
manifest-weight-of-the-evidence standard.”)]
iv. Here, she acquired debt; he best able to pay. But unclear re: purpose of debt or who benefitted.
Remand
Complex Property Division Issues:
1. Martinez v. Martinez (pg. 739) (Equitable Restitution)
a. Background:
i.
ii.
iii.
iv.
Karen/Jess married in 68.
3 children born between 70 & 75.
He entered medical school in 77, graduated in 81.
She files in 83, awarded in 85
b. Trial Court:
i.
ii.
iii.
iv.
v.
vi.
vii.
His residency salary 100k
She contributed greatly to his college educ., medical degree, internship.
She got house. Must pay 309/mo mortgage.
He has lien on house for 17,678 (half equity in home)
300/mo for each child.
400/mo for five years for her. But terminate after 3 years if she remarry.
He provide health, accident & dental insurance for children and life insurance policy on
himself for children’s benefit.
viii. Personal property divided equally
ix. 19K student loans to him
x. She get attorney fees 2500.
c.
Appeal:
i. Child support, alimony, attorney fees inadequate.
ii. She get tax exemptions plus 600/mo per child plus permanent alimony 750/mo.
iii. Appellate Court says medical degree not property. But Equitable Restitution:
1. Length of marriage
2. Financial contributions and personal development sacrifices made by
spouse requesting restitution
3. Duration of contributions/sacrifices during marriage
4. Disparity in earning capacity between spouses
5. Amount property accumulated during marriage
d. Restitution:
i. Nonterminable interest (like property). No end upon remarriage.
ii. But restitution makes marriage like commercial venture.
iii. Value of degree speculative. (Worth 1.5M?)
iv. Seems analogous to property interest on this analysis.
v. Almost all jurisdictions do not treat professional degree as property.
Tax Consequences of Divorce:
1. Weaver v. Weaver (pg. 757) (Tax Consequences Division of Marital Assets)
a. Background:
i. Melissa & Richard Weaver divorce on ground of irreconcilable differences
Novotny 65
ii. Trial court finds marital estate worth 555K not including other property already
divided.
iii. He got 55%; she 45%
b. Analysis:
i. First divide property into marital and separate.
ii. Then consider factors including:
1. who contributed to
a. (a) acquisition of property and
b. (b) stability/harmony of home; prior asset
expenditures/distributions; need; other equitable factors;
ability to avoid periodic payments.
c.
iii. Should also consider tax and other economic consequences.
Tax Consequences:
i. She has received retirement/pension, subject to taxes if liquidated.
ii. But she will be more likely to need to do so and she should not bear burden.
iii. Would not be penalized if put those funds into her own retirement.
iv. His focus on real property; her focus on $.
v. She getting 1250/mo (plus child support)
vi. Finding no tax consequence not abuse.
2. Mikhail v. Mikhail (Challenge to Refusal to Find Dissipation)
a. Background:
i. Salma & Wassef Mikhail marry in 64. Divorced 2001.
ii. Parties agree about distribution of much of personal and real property.
b. Financial Misconduct:
i. If a spouse has engaged in FINANCIAL MISCONDUCT, including but not
limited to, the dissipation, destruction, concealment or fraudulent
disposition of assets, the court MAY compensate the offended spouse with
a distributive award or with a greater award of marital property.
c. Financial Misconduct Charge:
i. Gifts to children and secretary.
ii. Failure to diversify
d. Trial Court:
i. Criticized acts occurred while parties still together
ii. Investments hardly speculation.
iii. Borrowing money from broker to invest (i.e., on margin) had been consistent
practice.
e. Appellate Court:
i. Investment portfolio worth went from 44M to 24M
ii. Refuse to adopt prudent investor strategy requirement
iii. Must show wrongful conduct
3. Hypo:
a. Lee and Kim have been unhappily married for several years in Marryland, which requires
couples to live separate and apart for two years before they can get a no-fault divorce. Lee has
finally decided to divorce Kim but is unwilling to wait two years. Lee packs some clothes and
goes to the state of Freeland, which has a six week residency requirement. Lee meets that
requirement and Kim is served with actual notice of the impending divorce. Kim decides not to go
to Freeland to contest the divorce.
b. Lee secures a divorce based on irreconcilable differences and, a few weeks later, wins the
Freeland lottery. Kim would love to share the lottery proceeds and contests the divorce in
Marryland, claiming that Freeland lacked personal jurisdiction over her and so could not grant
Novotny 66
the divorce and, in any event, Marryland's requirement for securing a divorce based on having
lived separate and apart for two years has not been met. What result?
i. Kim wins. While Freeland had jurisdiction over Lee it did not have jurisdiction over Kim and
so could not grant the divorce.
ii. Lee wins. As long as Lee established domicile in Freeland, met Freeland’s
residency requirement, and gave Kim the required notice, the divorce will be
recognized in Marryland.
iii. Kim wins. Marryland will not recognize the divorce because Marryland’s requirement for living
separate and apart has not been met.
iv. Lee wins. Because Kim refused to challenge the divorce in Freeland, she lost the right to
contest it later.
4. Hypo – Marital Share of Home Example:
a. A home valued at $100,000 is purchased with a $30,000 down payment by one party. During the five
years of marriage, the principal owed ($70,000) is reduced by $5,000 using marital funds. In that
event, the degree to which the house is part of the marital estate is 5000/100,000 = 1/20.
i. Reduced what principal was owed by 5000
b. Suppose that the home is now worth 110,000. In that event, 1/20 of that value (5,500) is part of the
marital estate. The individual who does not have a separate interest in the house should be credited with
2,750—his/her share of the value of the marital interest in the house.
5.
Hypo: Marital Property?
a. Alice Adams owns her own house, mortgage-free. She meets and falls in love with Robin
Reynolds and they marry. During the marriage, they live in Alice’s house, although no
improvements are made to the house using marital funds.
b. When the couple divorces five years later, Robin claims that the house is marital property
because they as a couple lived there during the marriage. Alice claims that the house is her
separate property. What result?
i. Absent state law to the contrary, the house will be treated as Alice’s separate
property and is unlikely to be subject to distribution.
ii. Because the couple lived together in the house, the house will be treated as marital subject
to distribution.
iii. The house will be treated as partially marital—the number of years that they lived in it as a
marital couple divided by the number of years that the house was owned will determine
the relevant fraction.
iv. While the house is likely to be treated as marital, Alice will likely be allowed to keep it as
long as Robin’s share can be accounted for through the distribution of other assets
Chapter 19 - Spousal Support
1. QRDO:
a. 2 plans
i. Defined Contribution
1. Employer pays in a certain amount into retirement. Monthly payouts
eventually made in light of how much is in account.
ii. Defined Benefit
1. How much is paid depends upon when individual retires (might get
higher percentage for working longer) and highest earning year(s)
Novotny 67
2. Two Methods of Dividing Property
a. Frozen – Consider as if retire at time of divorce
i. At TIME OF DIVORCE, create fraction (FD). Denominator is number of years
at company. Numerator is number of years married while at company.
ii. Look at highest earning year(s). Apply applicable percentage (defined by
retirement policy) as if employee is retiring now. Multiply by fraction (FD) to
get marital interest in pension benefit. Split equitably (often in half).
iii. Stops at divorce
iv. EXAMPLE:
1.
Kim has been working for the state for the past 25 years and has been married to
Jordan for 15 of those years. Kim is now eligible to retire. Kim receives a 2.2% benefit
for each year taught. The past three years were the highest earning years ($50,000,
S51,000, and S52,000). Were Kim to retire now, the monthly pension benefit would
be
a.
$51,000 (average earning of three years) x .55 (2.2% benefit x 25 total years
worked) (25 x .022=.55) / 12 = $2337.50
b.
Jordan and Kim are about to divorce. To determine the marital interest in
the $2337.50, multiply it by 15/25, which = $1402.50. Jordan might
well receive $701.25 monthly.
b. Traditional – Figure when retire
i. At TIME OF RETIREMENT, create fraction (FR). Denominator is number of
years at company. Numerator is number of years married while at
company.
ii. Look at highest earning year(s). Apply applicable percentage (defined by
retirement policy) as if employee is retiring now. Multiply by fraction (FR) to
get marital interest in pension benefit. Split equitably (often in half).
iii. Includes years post-divorce
iv. EXAMPLE:
1. Suppose that Jordan and Kim divorce now but Kim works for another 10
years before retiring. Now Kim’s highest earning salaries are $60,000,
$61,000 and $62,000. Now that Kim is retiring, the monthly benefit is
a.
$61,000 (average of three years) x .77 (35 x .022 = .77) (2.2% benefit x
35 total years worked) = $46,970 / 12 = $3914.17.
b. To determine the marital interest in the $3914.17, multiply it by
15/35, which = $1677.50. Jordan might well receive $838.75
monthly.
2. Suppose that the maximal percentage of income distributed at retirement is
capped at what is earned at 25 years, (Here .55) Suppose the further that Kim
receives a $500 salary increase each year after her 25th year. Her highest
earning years are $56,000, $56,500, and $57,000. When Kim retires, that
monthly pension benefit is
a.
$56,500 x .55 (25 x .022 = .55) / 12 = $2589.58.
b. To determine the marital interest in the $2589.58 multiply it by
15/35 which = $1109.82 Jordan might well receive $554.91
monthly
Novotny 68
c.
Difference:
i. FD is likely a bigger fraction than FR (because none of the post-divorce years
are included in the denominator).
ii. But the monthly pension benefit at time of divorce would likely be lower because
lower salary or lower percentage.
iii. Or, in alternative, pension benefit lower because amount in retirement account at
time of divorce smaller (miss out on additional contributions and benefit of
compounding interest).
3. Orr v. Orr (pg. 765) (Constitutional Challenge to Alabama Alimony Statute)
a. Background:
i. 2/26/74 William & Lillian Orr divorce.
ii. He ordered to pay $1,240/mo.
iii. 7/28/76 contempt proceeding because he in arrears
iv. In defense he argue Ala statutory scheme unconstitutional
v. Judgment against for $5,524 (owed support plus attorney fees)
b. Analysis:
i. Here, differential treatment based on sex.
ii. MUST be closely tailored to promote important state interests.
iii. Here, Alabama implicitly announces preference that women play subordinate role.
iv. Ala Ct. Civil Appeal cites other interests:
1. Provide for needy spouses (use sex as proxy)
2. Compensate women for past discrim.
v. But no need to use sex as proxy because already consider finances to make judgment
re: support. (Needy males should also receive support.)
vi. Women discriminated against in this sphere? Even if the claim is that employment
market discriminates, that could be taken into account in sex-neutral statute.
vii. Here, only group harmed involves needy men.
Spousal Support Standards and Factors:
1. Moore v. Moore (pg. 773) (Challenge to Increase in Spousal Support)
a. Background:
i. John/Denise married in 75.
ii. In 99, she diagnosed with Multiple Sclerosis
iii. 2001 He left marital home, retired, move to Iowa take care of mother, and then to
Florida, Texas.
iv. Divorce 03. She gets 87% marital assets.
v. He retired, still pay 100/mo. Until her death, remarriage, or she reach
age 65.
Novotny 69
vi. Day before divorce final, she sell home to Russell. Move to Iowa to be near children
and receive MS treatment.
vii. Then move back & live w/ Russell.
viii. She employed by car dealership until 2007. Continued to receive salary from there
even while employed at Chamber of Commerce (and while in Iowa). On dealer’s
insurance plan.
ix. Since divorce, John remarried. House husband in Tex. His income from
inheritance/gifts from Mom.
b. Lower Court:
i. Upon info re: Luanna’s income & financial holdings, trial court increased monthly
payment from 100 to 1500.
ii. (May be due in part to guess about how much her treatment for MS—Tysabri—will
cost her.) Insurer hadn’t yet decided. Dept. of Social Security hadn’t responded re:
disability payments.)
c. Analysis:
i. Court can modify alimony because of changes since divorce:
1. Necessities of recipient
2. Financial ability of obligor
d. Factors to Consider:
i. Intentional reduction of gross income
ii. Inquiry into earning potential if party un- or underemployed
iii. Intentional inflation of expenses
iv. Offsetting effect of cohabitation on expenses.
e. Application:
i. Denise unable to work due to MS. But no reporting of her disability/social security
income. Determination premature.
ii. She must show actual expenses & financial needs for support unmet, despite
cohabitation. No showing. Her budgets were not her actual expenses but what was
fair. Still lower than at time of divorce. (Bank records indicate expenses much lower.)
iii. Cohabitation not a basis to modify, but may affect expenses. (She seems to
be banking her monthly alimony checks.)
f. Assets Transfer:
i. She says that CDs signed over to Russell for payment of medical expenses but no
proof to that effect.
ii. She sold house to him at 175K, even though fair market value 205K. (She claims
600/mo rent.)
g. Medical:
i. Tysabri estimated to cost 3500/mo. She estimates that she will pay 15% (525/mo.)
ii. She receive 450/mo to help cover costs.
h. John’s Income:
i. His income in 01 (62.5K) might have been relevant to potential income in 03 (time of
divorce). But now that he is 60 and has been unemployed for 7 years, not relevant.
ii. Further, not clear his unemployment was to avoid alimony obligation.
iii. Luanna’s salary cannot be used to supplement John’s income for
purposes of support.
iv. Further, she (Denise) not prevailing party so costs not awardable.
i. Ohio Revides Code Ann § 3105.18
i. If a continuing order for periodic payments of money as alimony [or spousal support]
is entered in a divorce or dissolution of marriage action that is determined on or after
Novotny 70
May 2, 1986 … , the court that enters the decree of divorce or dissolution of marriage
does not have jurisdiction to modify the amount or terms of the alimony or spousal
support unless the court determines that the circumstances of either party
have changed and unless … the following applies:
1.
In the case of a divorce [or a marriage dissolution], the decree or a separation
agreement of the parties to the divorce that is incorporated into the decree
contains a provision specifically authorizing the court to modify
the amount or terms of alimony or spousal support.
2. Hoverson v. Hoverson (pg. 783) (Challenge to Trial Court Division of Assets and Order of Support
a. Background:
i. Carl (49)/Sandra (42) Hoverson married in 04. One child.
ii. She was a radiologic technician. Earned about 57K in 03. (She says technology has advanced
since she last worked.)
iii. Carl (& Ron Offut) establish Hoverson Farms, potato operation. His share of partnership 9.5M
iv. In 08, he formed w/ sons from prior marriage land holding companies CHF Huntsville
(963K interest), CMC Farms (3M Interest), CHF Union Lake (134K interest).
v. Sometimes, they live separately (she in Fla., he in ND). Jan 2010, sue for divorce.
Reconciliation. Aug 2010 sue for divorce.
b. Trial Court:
i. She gets custody of child (as agreed).
ii. Dec. trial.
iii. Marital estate 14.5M.
1. She gets 20% (2.8M); he get s 80% (11.6M)
iv. Spousal 3000/mo for 2 yrs. Child support 3000/mo.
c.
Appeal:
i. Alleged errors. Fail recognize:
ii. He at fault (evidence of affair)
iii. Dissipation of assets (to sons)
iv. Inappropriate to award based on ratio (years marriage/years farming)
v. His expert evaluation incorrect.
vi. He says she awarded too much.
vii. standard of review -- clearly erroneous
d. Factors:
i. Respective ages of parties
ii. Earnings ability
iii. Duration of marriage and conduct of parties during marriage
iv. Station in life
v. Circumstances/necessities of each
vi. Health and physical condition
vii. Financial circumstances as shown by property owned at time
viii. Property’s value at time
ix. Its income-producing capacity
e.
f.
Division Equitable:
i. Should be equal after long marriage.
ii. But 10 years could be considered relatively short
Application of Relevant Factors:
i. 6 years relatively short
ii. Marriage later in life (she no contribute to business)
iii. They kept majority assets separate
iv. Her living in Fla much of the time helped undermine marriage
v. His affair helped undermine.
vi. Economic fault when transfer to children.
Novotny 71
vii. She brought 140K to marriage
viii. This was a possible way to distribute, although not required.
g. Child Support:
i. Applicable tables only go to 12.5K/mo (parents’ income)
ii. Permitted to deviate, especially in light of child’s needs. (No evidence presented on
that score.)
h. Attorney Fees:
i. In determining how much paid by opposing party, consider:
1. How much owned as result of property distribution
2. Relative income
3. Whether property is liquid or fixed assets
4. Whether actions unreasonably increased time spend on case
i. Support:
i. Preference for rehabilitative (to enable spouse to get necessary skills)
ii. Permanent support when cannot be rehabilitated.
Chapter 20 - Separation Agreements (pg. 803 – 849)
Separation Agreements
1.
Schipper v. Quinn (pg. 803)
a. Background:
i. Daniel Quinn & Suzanne Schipper married in 1980; separated in 1992. Divorced
in 1994.
ii. Part of property settlement was that she would transfer her stock interest in
Skyline Engineers of Md to him or to corporation for no consideration. He agrees
to indemnify for any state/federal taxes.
iii. He later requested that she sign addendum that she would pay federal/state
income taxes, interests and penalties over and above 100K.
iv. Final divorce decree incorporate by reference separation agreement and
addendum on child custody. No reference to addendum on tax liability.
b. Incorporation & Merger:
i. In previous decision interpreting Maryland law, held that where parties
intend a SETTLEMENT AGREEMENT to be incorporated but NOT
merged into decree, STILL ENFORCEABLE CONTRACT.
c. Family Court:
i. Court found addendum invalid because induced by fraud (he said only tax
liability of corporation)
ii. Had jurisdiction over the contract because part of the divorce.
iii. Court gave the agreement the force it would have had in Maryland (and so in
accord with full faith and credit guarantees).
iv. Because agreement not incorporated and merged into decree, its validity was still
open to being assessed.
d. Ohio Terminology:
i. Cherry v. Figart , 620 N.E.2d 174, 176 n.1 (Ohio App. 1993) In the present
case, the decree expressly states that the separation agreement is incorporated
into the decree. However, the separation agreement states that while it will be
incorporated into the decree, "not withstanding such incorporation, this
agreement shall not be merged in such decree." IF THE TERMS OF THE
SEPARATION AGREEMENT ARE INCORPORATED INTO A DECREE,
THE AGREEMENT MERGES INTO THE DECREE AND NO LONGER
EXISTS AS AN INDEPENDENT CONTRACT. Its terms will therefore be
enforced as part of the decree.”
Novotny 72
ii. Greiner v. Greiner, 399 N.E.2d 571, 572 (Ohio App., 1979) If the terms of a
separation agreement are incorporated into a decree of divorce or alimony, the
separation agreement merges into the decree and no longer exists as an
independent contract and its terms will be enforced as part of the decree. If a
separation agreement is not incorporated by reference into a divorce
or alimony decree, nor declared invalid, but only identified and
attached as an exhibit to the divorce or alimony decree, the
separation agreement will continue to be a valid and binding contract
and its terms will not be enforced as part of the decree, but will be
enforced as any other contract.
2.
Sveen v. Melin (pg. 807) (Minn. statute revoking beneficiary designation of former spouse)
a. Background:
i. Mark Sveen and Kaye Melin marry in 1997.
ii. He names her as primary beneficiary under will with children from previous
marriage named as contingent beneficiaries.
iii. In 2002, Minn. adopts automatic revocation statute
iv. They divorce in 2007 but he does not change will.
v. He dies in 2011
vi. Sven children challenge her beneficiary status.
b. Minnesota Law:
i. Minn. Law incorporates a presumption that an individual who divorces a
spouse no longer would want that person to be a beneficiary under the
will.
ii. Court order or individual’s own specification would override
revocation.
c. Analysis:
i. Contracts Clause restricts state power to disrupt contractual
arrangements.
ii. 2 step analysis
1. Substantial impairment of contractual relationship?
2. If substantial impairment is state law appropriate and
reasonable way to advance significant/legitimate state interest
d. Substantial Impairment?
i. Extent to which undermines bargain; interferes w/ reasonable
expectations and prevents party from safeguarding/reinstating rights
ii. But this is designed to reflect testator intent.
iii. Does not undermine testator expectations.
iv. Mere default rule.
v. Further, testator can circumvent default presumption
3. Bratton v. Bratton (pg. 810) (Postnup Enforceable?)
a. Postnuptial Agreements:
i. As a general matter, NOT CONTRARY to PUBLIC POLICY
1.
There MUST be CONSIDERATION
2. ENTERED into KNOWLEDGABLY
3. NO evidence of FRAUD, COERCION, DURESS
b. Background:
i. Cynthia and Michael married on June 26, 1982
ii. He had completed 1st year medical school
Novotny 73
iii. She employed as research technician.
iv. She had a child from previous marriage.
v. At time of trial, they both had 2 minor children ages 16 & 13.
c. Postnuptial Agreement:
i. On Aug. 26, 1983 Agreement
ii. In event he guilty of statutory ground of divorce,
1. split jointly owned property
2. she gets ½ net gross income (after taxes)
d. Context:
i. She claims that prior to marriage they discussed her foregoing career as dentist to
stay home and raise family if he provide ½ income
ii. When she again expressed interest a year into marriage, he offered to formalize
prior agreement.
iii. He says no prior discussion but Doctors with whom she worked warned her that
she needed to protect herself. She contacted attorney. At that time, no marital
difficulties.
e. Trial Court:
i. Found property agreement enforceable.
ii. He was making 550k
iii. She was an unsuccessful real estate broker.
iv. Divorce granted on inappropriate marital conduct
f. Analysis:
i. Prenuptial and reconciliation agreements enforceable.
ii. This is POSTNUPTIAL.
1. ENFORCEABLE even if NOT INCIDENT to SEPARATION
assuming certain condition met.
g. Severable?
i. Look to INTENTIONS of the PARTIES.
ii. This designed to provide support in event divorce. Provisions not intended to be
performed separately
h. Consideration:
i. PROMISE NOT TO LEAVE DOES NOT qualify as CONSIDERATION,
because SEPARATION/DIVORCE NOT IMMINENT
ii. [Even were this consideration, might be thought coercive???].
iii. Forego dentistry? Vague illusory promise. Never took admission less much less
enrolled in school
Bankruptcy and Post-Divorce Litigation
4. In re O’Brien (pg. 818) (Whether attorney fees representing client in divorce can be discharged
in bankruptcy)
a. Background:
i. Post-divorce litigation between Debtor and former wife concern modifications to
and alleged breaches of divorce decree and related separation agreement (mostly,
child support)
ii. Debtor & wife held in contempt.
iii. Fee award to Crowne for services to debtor to come out of retirement account
iv. In Chapter 7, debtor claimed retirement accounts exempt. No one objected.
Novotny 74
b. Analysis:
i. Because NO PARTY in INTEREST OBJECTED, RETIREMENT
ACCOUNTS EXEMPT and not part of bankruptcy estate.
ii. Fee award not domestic support obligation.
iii. Crowne may try to collect as contractual obligation but Debtor can assert
appropriate defenses.
Termination of Quasi-Spousal Relations:
5.
Marvin v. Marvin (pg. 822) (Remedies Available When Cohabitating Parties Break Up)
a. Background:
i. Lee and Michelle live together for 7 years. All property acquired in his name.
ii. She claims oral agreement live together combining efforts/earnings. She
alleges she gave up lucrative career as entertainer/singer.
iii. During this period, acquired much property including movie rights over 1M.
iv. His divorce final Jan 1967.
v. May 1970, he ask her to leave. After Nov. 1971, he refuse further support.
b. Analysis:
i. NON-MARITAL PARTNERS MAY enter into EXPRESS CONTRACTS, as
long as NON-MERETRICIOUS.
ii. IMPROPER TRANSFER OF COMMUNITY PROPERTY VOIDABLE at
instance of AGGRIEVED PROPERTY. Betty no complain.
iii. PREVALENCE of NON-MARITAL RELATIONSHIPS requires
MODIFICATION of MERETRICIOUS APPROACH.
6. Hewitt v. Hewitt (pg. 828) (Enforcement of Agreements between Cohabiting Parties)
a. Background:
i. Together from 1960-75
ii. 3 children
iii. No ceremonial or common law marriage
iv. Child support not at issue
v. She claims based on his promise to share life, property, earnings, property that
she entitled to ½ share.
vi. They are students at Grinnell in Iowa. She becames pregnant.
vii. They held out as married. She helped him advance.
viii. They appear to be conventional married family.
b. Analysis:
i. RECOGNIZING that RIGHTS arise from NON-MARITAL has a variety of
PUBLIC POLICY IMPLICATIONS.
ii. Such parties CAN make CONTRACTS where SEXUAL RELATIONS NOT
part of CONSIDERATION.
iii. STATE LAW PROHIBITS COMMON LAW MARRIAGE, which the
decision below would undermine.
Novotny 75
iv. Illinois recognizes PUTATIVE SPOUSE if go through CEREMONIAL
MARRIAGE AND COHABIT.
v. WILL NOT ENFORCE EXPRESS/IMPLIED CONTRACT for
COHABITANTS
vi. 750 Ill. Comp. Stat. Ann. 5/214 (“COMMON LAW MARRIAGES
CONTRACTED in this State after June 30, 1905 are INVALID.”).
7.
Connell v. Francisco (pg. 835) (Distribution of Property Acquired During Meretricious
Relationships) (Only in Oregon and Washington)
a. Background:
i. Richard Francisco & Shannon Connell met in Toronto in 1983.
ii. She is a dancer from NY; He is a producer from Las Vegas with net worth 1.3M (in Feb
1984).
iii. They cohabited in Las Vegas from Nov 1983 to June 1986, where she worked as a paid
dancer. She also further assisted with various chores.
iv. Nov. 1985 Prince Productions purchased B & B on Whidbey Island.
v. They moved there (she manages) until relationship ended in 1990.
vi. While on Whidbey Island, many viewed them as married. (She used his name, with
“acquiescence,” for business purposes.)
vii. Will lists her as beneficiary. Both sought to enhance fertility. He gave engagement ring.
viii. 1986-1988 she received no pay for working at Inn. 1989-1990 receives $400/week
ix. Property Acquired During Relationship:
1.
2.
3.
4.
5.
6.
Condo in Langley WA 65K
Waterfront lot next to Inn 35K
Alan May property 225K
Restaurant property 320K
Langley house 105K
Condo in Las Vegas 110K
a. She did not contribute financially toward purchase of any property.
Some held in his name individually or in name of Prince productions
x. End Relationship:
1. When separated in Mar 90
2. She had 10K in savings, 10K in jewelry, clothes, car, NY aptmt lease.
Continued to get 400/wk salary until Sept 90.
3. His net worth now2.7M (increase of almost 1.4M). He receiving 5K/wk
salary form Prince Productions.
xi. Suit:
1.
She sought just equitable distribution of property acquired during
relationship.
2. Relationship sufficiently long/stable to qualify.
3. Property subj to distribution that which would have been community
property had they married.
4. Increased value pension plan (169K) split evenly.
b. Analysis:
i. Under Washington law, a MERETRICIOUS RELATIONSHIP is a STABLE
MARITAL-LIKE RELATIONSHIP where BOTH PARTIES COHABIT with
KNOWLEDGE that a LAWFUL MARRIAGE DOES NOT EXIST.
ii. Factors
1. CONTINUOUS COHABITATION
2. DURATION of the RELATIONSHIP
Novotny 76
3. PURPOSE of the RELATIONSHIP
4. POOLING of RESOURCES and SERVICES for JOINT PROJECTS
5. INTENT PARTIES
iii. PARTIES have chosen NOT to MARRY and thus PROPERTY ALREADY
OWNED NOT SUBJECT TO DISTRIBUTION.
iv. The PROPERTY ACQUIRED during the RELATIONSHIP is PRESUMED
to be SUBJECT TO DISTRIBUTION. Title does not rebut.
v. When JOINT FUNDS are used to IMPROVE SEPARATE PROPERTY, there
MAY be RIGHT of COMMUNITY REIMBURSEMENT (which may be offset
by use).
Alternative Dispute Resolution:
8. Schechter v. Schechter (pg. 846) (Enforcement Arbitration in Custody
a. Background:
i. Parties agree to rabbinical arbitration tribunal.
ii. Parities awarded joint custody of visitation w/ 14-yr-old daughter.
iii. P sought to have award approved by court; D agreed except as to custody.
b. Analysis:
i. Custody/visitation not subject to arbitration.
ii. That part of P’s motion should have been denied.
iii. [See also Kelm v. Kelm, 749 N.E.2d 299, 304 (Ohio 2001) (“in a domestic
relations case, matters of child custody and parental visitation are not subject to
arbitration”).]
Chapter 21 – Jurisdiction Over Custody Visitation and Adoption Awards: (pg. 851-889
Jurisdiction Statutes:
1. UCCJA = Uniform Child Custody and Jurisdiction Act
2. UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act
3. PKPA = Parental Kidnapping Prevention Act
a. Gives Federal Force to the UCCJA
The UCCJEA and Home State Jurisdiction
1.
Castro v. Castro (pg. 852) (Jurisdiction for Custody)
a. Background:
i.
ii.
iii.
iv.
v.
Julie/Crescencio Castro marry/live in Illinois. Separate in 2010 while she pregnant
She moved to North Dakota where the child grew up.
He commences divorce action in Illinois in June 2011.
She sues for physical/legal custody in North Dakota in Sept. 2011. No answer.
In Oct. 2011 she moved for default or interim relief. After consultation w/ Illinois judge,
ND judge said ND child’s home state and had jurisdiction. However, inconvenient forum.
Crescencio only seeking visitation in Illinois.
b. District Court Reasoning:
i. He does not question her having physical custody (so no dispute there)
ii. With respect to his alleged abuse of alcohol, all evidence in Illinois.
iii. No evidentiary issues regarding visitation that are specific to ND.
iv. Insofar as he is seeking decision-making authority, evidence of alcohol abuse and
its effect would be in Illinois not ND.
v. Court dismisses her action, saying she can refile if he seeks custody.
c. Analysis:
Novotny 77
i. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
gives JURISDICTIONAL PRIORITY and EXCLUSIVE CONTINUING
JURISDICTION to CHILD’S HOME STATE.
ii. ACCORDS with Parental Kidnapping Prevention Act (PKPA) for
JURISDICTIONAL PURPOSES.
d. Checklist:
i. COURT MUST DETERMINE if it has JURISDICTION (e.g., as home state)
& then WHETHER ANOTHER STATE has PENDING CUSTODY
PROCEEDING or has ISSUED A DECREE.
ii. COURT CAN ONLY MODIFY a DECREE UNDER LIMITED
CONDITIONS.
iii. CAN DECLINE JURISDICTION if INCONVENIENT FORUM.
e. Home State:
i. LIVED there for at LEAST 6 MONTHS, OR
ii. LIVED there SINCE BIRTH
f. Inconvenience Forum?:
i. Whether domestic violence has occurred and is likely to continue and which state
can best protect
ii. Length of time child has resided outside state
iii. Distance between court in this state and the court where jurisdiction would be
assumed
iv. Relative financial circumstances of parties.
v. Agreement of parties as to which state should assume jurisdiction
vi. Nature/location evidence including child testimony
vii. Ability of court to decide expeditiously
viii. Familiarity of court w/ facts/issues in litigation
g. Holding:
i. Failed to analyze factors appropriately.
ii. Should exercise jurisdiction (and then have continuing)
The Hague Convention on the Civil Aspects of International Child Abduction:
2. Abbott v. Abbott (pg. 860) (Interpretation of Hague Convention on the Civil Aspects of
International Child Abduction)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
Timothy (British)/Jacquelyn (American) Abbott live in Chile with son AJA (born 95)
Separate 03
She has care/control; he has direct/regular visitation.
Chilean law confers ne exeat right before she takes him out of Chile.
After he got British passport for son, she got ne exeat order.
Aug 05 she takes son to Texas.
File divorce Feb 06.
May 06 he seek return son pursuant to Convention
Texas court says ne exeat right is not right of custody so return right not authorized
b. Analysis:
i. When CHILD UNDER 16 WRONGFULLY REMOVED/ RETAINED,
COUNTRY MUST ORDER RETURN CHILD FORTHWITH.
ii. REMOVAL WRONGFUL when in VIOLATION of RIGHTS OF CUSTODY.
iii. RIGHT OF CUSTODY includes RIGHT to DETERMINE RESIDENCE.
iv. NO RETURN REMEDY for VIOLATION RIGHTS OF ACCESS.
Novotny 78
v. PLACE OF RESIDENCE includes COUNTRY OF RESIDENCE.
vi. RIGHT OF ACCESS includes RIGHT to TAKE a CHILD for limited period
of time to PLACE OTHER than HABITUAL RESIDENCE.
vii. State Dept. says NE EXEAT is RIGHT OF CUSTODY
viii. To INTERPRET CONVENTION to AVOID RETURN REMEDY, even
where ne exeat right exists, would ENCOURAGE CHILD ABDUCTION.
c.
EXCEPTION:
i. DO NOT have to RETURN if it would CAUSE PSYCHOLOGICAL HARM or
PUT CHILD in INTOLERABLE SITUATION.
d. Stevens Dissenting:
i. Timothy cannot make medical, religious decisions etc. for AJ.
ii. Drafters had wanted to force noncustodial parent to return child.
iii. Parent has other remedies if denied visitation, but not return.
iv. Place of residence makes more sense w/i country.
The Indian Child Welfare Act:
3. Adoptive Couple v. Baby Girl (pg. 878)
a. Background:
i. Mother & father (member Cherokee nation) engaged in 08. She pregnant. He wants to
move up wedding date and will not provide financial support until married.
ii. Mother break off engagement. Texts: Support or relinquish rights? He chooses latter by
text.
iii. She selects South Carolina couple to adopt.
iv. Couple present at birth in Oklahoma. She signed forms and relinquished custody.
v. During pregnancy and 1st 4 months, he provide no financial support.
vi. He signed papers accepting service and saying not contesting adoption, although he
testified he thought relinquishing rights to mother.
vii. In adoption proceeding he sought custody.
viii. Trial when child 2. Couple could not establish that child would suffer serious emotional/
physical harm if he had custody.
ix. At 27 mos., he given daughter.
b. ICWA:
i. 1. Any party seeking involuntary termination of parental rights MUST
demonstrate that active efforts have been made to provide remedial
services and rehabilitative program to prevent break-up Indian family.
ii. 2. MUST establish beyond reasonable doubt that continued custody of
child by Indian parent/custodian likely result in serious
emotional/physical harm.
iii. 3. In absence of good cause, preference given to member of child’s
extended family, other members of tribe, other Indian families.
c. Analysis:
i. The sections speak to interruption of continued custody or unwarranted
removal.
ii. HE CANNOT invoke because he NEVER had LEGAL/PHYSICAL
CUSTODY of Baby Girl.
iii. [Is Court mirroring nonmarital father’s jurisprudence?]
Novotny 79
iv. Other ruling would deter would-be adoptive families.
v. Reversed and remanded
d. Sotomayer Dissent:
i. This statute also applies to parental right terminations, so is triggered.
ii. This reasoning would also apply to father w/ visitation rights and has supported.
iii. Baby Girl has already lived w/ father for 18 mos. Devastating to remove her
again.
iv. [Is ICWA triggered because of past 18 mos.?]
Chapter 22 - Child Custody: (pg.891-935)
Historical Child Custody Approaches
1.
Shelly v. Westbrook (pg. 891) (Custody of Children)
a. Background:
i. Parents marry in 1811.
ii. He abandons her.
iii. She goes with one child to live with her father and there has 2nd child.
iv. Mother drowned herself.
v. Father avowed atheist.
vi. Grandfather and father compete for custody
b. Analysis:
i. FATHER’S ATHEISM would have meant that CHILDREN would be RAISED in
IMMORAL ENVIRONMENT.
ii. CHILDREN SHOULD NOT go with HIM.
Contemporary Child Custody and Visitation Standards
1.
Palmore v. Sidoti (pg. 898) (Challenge to Modification of Custody Due to Mother’s Interracial
Marriage)
a. Background:
i. Linda Sidoti Palmore and Andrew Sidoti divorced 1950.
ii. She awarded custody.
iii. He sought modification due to changed conditions involving mother’s cohabitation
with a person of a different race (She Caucasian, boyfriend African-American).
iv. Trial court modifies based on best interests
b. Analysis:
i. Best interests controlling.
ii. It would IGNORE REALITY to suggest that RACIAL/ETHNIC PREJUDICES
DO NOT EXIST or that ALL MANIFESTATIONS of those PREJUDICES have
been ELIMINATED.
iii. PRIVATE PREJUDICES MAY be OUTSIDE the reaches of the law, BUT the
LAW CANNOT, directly or indirectly, give them EFFECT.
c.
iv. The effects of RACIAL PREJUDICE, however real, CANNOT justify a RACIAL
CLASSIFICATION REMOVING an INFANT CHILD from the CUSTODY of its
NATURAL MOTHER found to be an APPROPRIATE PERSON to have such
CUSTODY
Note:
i. On remand, the court looks to the best interest of the child presently
1. Because of how much time passed with the child living with Dad and the family
moved, the Court deemed it would be destabilizing to the child to modify custody
again
2. In re Marriage of Gambla & Woodson (pg. 902) (Challenge to Custody Decision)
a.
Background:
Novotny 80
i. Christopher Gambla (Caucasian) & Kimberly Woodson (African-American) divorce; she
awarded custody of Kira Marie.
ii. Trial court thought that Kimberly could provide breadth of cultural experience including how
to deal w/ hostility that biracial persons sometimes face. [Cf. MultiEthnicPlacementAct race v.
cultural appreciation]
iii. He has extensive visitation. Alternating weeks until she starts school. At that point, Tuesdays,
Thursdays, alternating weekends and holidays. During summer breaks, alternating weeks.
b. Analysis:
i. Best interests is the controlling standard.
ii. Affirm trial court unless against manifest weight of evidence.
c.
Factors – Best Interest:
i. Wishes of parents re: custody
ii. Wishes of child as to custodian
1. (no preference at 2 years)
iii. Interaction/Interrelationship w/parents, sibling, other persons
1. (great relationship w/ brother Che)
iv. Child’s adjustment to home school community
v. Mental/Physical Health of all involved
vi. Physical Violence (or threat of) by possible custodian, against child or another
vii. Occurrence of ongoing abuse
viii. Willingness/Ability encourage relationship with other parent.
1. (He better? Maybe because of removal petition, since withdrawn.)
3. Fulk v. Fulk (pg. 908) (Challenge to Custody Award)
a. Background:
i. Rhonda & Jeffrey married one year
ii. One child.
iii. He granted temporary custody as mother was having an affair with an unstable woman
b. Custody Factors: Determining Best Placement of Child After Custody Disputes
i. Age, Health, Sex Child
ii. Which Parent had Continuity of Care Prior to Separation
iii. Who Has Best Parenting Skills, Willingness/Capacity To Provide Primary Child
Care.
iv. Parent’s Employment & Responsibilities
v. Physical/Mental Health/Age Parents
vi. Emotional Ties Of Parent & Child
vii. Moral Fitness Of Parent
viii. Home, School, Community Record Of Child
ix. Preference By Law
x. Stability Of Home Environment & Employment Of Parent
xi. Other Factors Relevant To Parent-Child Relationship
c.
Non-Considerations:
i. MARITAL FAULT SHOULD NOT be used as SANCTION in decision
ii. DIFFERENCES in religion, personal values, & lifestyles SHOULD NOT be
SOLE BASIS for decision.
d. Application:
i. Must make findings of fact on each factor. [matter of state law]
ii. Here continuity of care spoke to father.
Novotny 81
iii. Mother’s affair w/ emotionally unstable woman did not speak to mother’s moral
fitness.
iv. Tender years presumption still in force and should have been discussed.
v. Jeffrey had also taken part in relationship with this woman
vi. Rhonda lives w/ parents.
vii. Jeffrey may still be using drugs.
viii. Jeffrey’s having (1) padlocked pregnant wife in house, (2) threatened to kill, should
have been given more weight.
ix. Error to grant 1-hour visitation at McDonald’s 8 a.m. Sunday
x. Overnight visitation w/ noncustodial is rule not exception.
4. In re Marriage of Minx (pg. 913) (Challenge to Refusal to Prohibit Father from Taking Child to
Church)
a. Background:
i. Wendy/David divorce.
ii. She gets custody of Nicole.
iii. He has visitation 3:30 Friday to 5:30 p.m. Sunday, alternative weekends.
iv. They belong to different Christian denominations and Nicole getting may be
confused.
b. Analysis:
i. Wendy as CUSTODIAL PARENT gets to DETERMINE RELIGION.
ii. But he has right to unrestricted visitation and free exercise.
iii. NO EVIDENCE of HARM by attending both churches
iv. PARENTAL AUTHORITY in matters of RELIGIOUS UPBRINGING MAY be
ENCROACHED ONLY upon a showing of a SUBSTANTIAL THREAT of
HARM to the “PHYSICAL or MENTAL HEALTH of the CHILD or to the
PUBLIC SAFETY, PEACE, ORDER, or WELFARE.
5.
In re JNS, Hamilton City (pg. 921) (Parental Objections to Gender Dysphoria Treatment)
a. Background:
i. Feb. 17 Hamilton County sought temporary custody of child as child was threatening
suicide.
ii. Parents agreed to safety plan where child raised by maternal grandparents.
iii. April 17 Family Services sought to establish dependency (no fault necessarily
implied).
iv. Hospital sought to begin hormone therapy.
v. Parents objected. Family Services sought to award permanent custody to
grandparents.
vi. Child presents with anxiety/depression. Daignosed gender dysphoria
(discomfort/stress caused by discrepancy between gender identity and gender
assigned at birth)
vii. Treatment could range from psychotherapy to hormonal therapy to gender
resassignment surgery.
viii. Child threatens suicide if forced to return to parents’ home.
b. Analysis:
i. Better if resolved within family.
ii. Should court act whenever child threatens suicide because no consent to desired
procedure like rhinoplasty or other cosmetic surgery?
iii. Legal custody awarded to grandpas.
iv. Child continue to attend high school
Novotny 82
v. Grandparents can consent to name change, shall provide insurance. Hormone
therapy if approved by psychologist not associated with Cinci Children’s Hosp.
vi. Parents granted reasonable visitation.
6. Hypo:
a.
Robin and Lee are the parents of Alice and Brian. Robin has primary physical custody in the
state of Traditionland, while Lee has extended visitation during the summer months in
Carefreeland. One summer when the children have been visiting for a month and a half, Lee
decides that the children are doing much better with him than with Robin. He files in
Carefreeland to modify custody, claiming that the modification will be best for the children.
Both Traditionland and Carefreeland have their own versions of the UCCJEA, which mirror
each other and the Uniform Act. Robin opposes Lee's motion with all appropriate arguments.
What result?
i. As long as Lee is correct that the modification would best promote the children's
interests, he is likely to be successful.
ii. Because Robin opposes Lee's motion, Lee is likely to be unsuccessful on the merits.
iii. The Carefreeland court is likely to reject his motion for lack of
jurisdiction, absent some compelling reason such as some sort
of emergency.
iv. The Carefreeland court will assert jurisdiction, but will have to communicate with the
Traditionland court to make sure that all relevant information is considered.
Chapter 23 - Enforcement and Modification of Custody: (pg. 937-980)
Introduction to Custody
1.
Ronny M. v. Nanette H. (pg. 938) (Jurisdiction Initial Custody)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
Ronny M & Nanette H dating in 1998 when 16.
2 children, Ronny Jr. (Oct. 1999) & Lavar (Nov. 2000)
Ronny abusive. June 02 arrested for assault.
Protective order. She granted temporary custody.
They reconcile. He convicted more domestic violence.
Nanette and boys move into shelter.
Ronny completes batterer’s intervention program.
2003 supervised visitation. Then unsupervised every other weekend.
Ronny involved w/ boys until 2007, when stop seeing them.
2008 she receives nursing degree
2009 marry husband, Robert. Move to Alaska.
2010 Robert & Nanette have child.
b. Legal Proceedings:
i. 2010 She files in Alaska for physical/legal custody.
ii. He file answer. He seek primary physical & joint legal.
iii. He seek interim relief. Weekly or open phone conversation; shared physical.
iv. He says impossible to communicate w/ children
v. She fearful to send to Fla.
vi. She awarded legal/physical. He awarded telephonic 2 times/wk. 6-7 p.m. [4 hour
time difference]
c. Evidentiary Hearing:
i. She says very bonded with boys. Further they are thriving in Alaska. Boy Scouts.
Sports.
ii. Ronny had voluntarily stopped exercising visitation rights.
iii. He tried to contact kids but did not know where they were in Alaska.
iv. He didn’t call at designated time because trying to get his own kids to bed.
Novotny 83
v. Nicole testified she and Ronny have 3 kids who relate well to Ronny Jr & Lavar.
vi. In April 07, Ronny & Nanette have miscommunication about picking up boys from
school.
vii. He accuses her of causing onset of Parental Alienation Syndrome.
viii. She says she had allowed unlimited contact. But Ronny used against her so she
following court provisions.
d. Superior Court Ruling:
i. She has primary physical. Joint legal where she has ultimate say.
ii. Ronny awarded telephonic/electronic 2 times/week for hour. Plus one hour on
weekends.
iii. Could see boys when she visited Fla
iv. He could have temp 2-3 weeks summer of 12
v. Up to 6 weeks in subsequent summers, as long as he pay all airfare/travel expenses.
e. Appellate Review:
i. Set aside only if record indicates clearly erroneous (definite and firm impression that
court made mistake) or court abused discretion.
f.
ii. Abuse discretion:
1. Considered improper factors
2. Failed to consider statutorily mandated factors
3. Assigned disproportionate weight to some factors while ignoring others.
UCCJEA:
i. Home state jurisdiction (child there at least 6 consecutive months before
commencement)
ii. Children in Alaska 17 months before commencement. Alaska home state.
iii. There was no existing Fla order to be enforced, so Alaska could assert jurisdiction.
iv. Need not make express findings on all factors. [Ohio presumes appropriate factors
considered, absent clear evidence to contrary]
g. Trial Court’s Factor:
i. 1. no evidence special needs
ii. 2. she had been primary caretaker and had done good job
iii. 3. love and affection between boys and both parents
iv. 4. Nanette has provided stable home with positive environment for boys
v. 5. Nanette has gone above and beyond to create positive relationship with Ronny,
although he has not done the same.
vi. 6. Significant history of domestic violence by Ronny against Nanette, but he has
overcome statutory presumption against awarding him custody
vii. 7. No evidence of substance abuse.
h. Ronny’s Challenge:
i. 1. it was not in boys’ best interest to move to Alaska w/ Nanette
1. Relocation to subvert relationship?
2. But better opportunity family (husband need not make frequent trips).
Grades improve. Sports opportunities.
3. She could earn more as nurse
4. When 2 miles away, Ronny no exercise visitation
ii. 2. superior court erred in finding that she was more willing/able than he to
facilitate/encourage relationship with other parent.
1. But supported in record re: permitted communications.
iii. 3. abuse discretion for superior court to give ultimate decision-making authority in
award of joint legal custody
Novotny 84
1.
But Nanette/Ronny do not cooperate w/ each other so well.
iv. Challenge rejected.
2. Rohmiller v. Hart (pg. 947) (Aunt Visitation)
a. Background:
i. Rohmiller is identical twin of BH’s mother.
ii. Hart & mother reside together 1st year of BH’s life.
iii. Around 1st birthday, Hart injured BH—pled guilty to malicious punishment of child.
iv. Hart & mother separate. She lives with various family members in Iowa including
sister for 5 wks. Otherwise, saw BH 8 hrs/month
v. When mother died, Hart awarded custody over different family member.
vi. BH moved to Minn. Hart denies access to mother’s family
vii. Rohmiller and her father (Clayton) petition for visitation
b. GAL Report:
i. Animosity between parties.
ii. Both Hart & Rohmiller positive forces in BH’s life
iii. BH flourishing w/ Hart.
iv. If awarded visitation, must be clear communication of Hart’s parenting goals.
v. Would be in best interest for Rohmiller and Clayton to be awarded visitation.
c. District Court:
i. Rohmiller and Clayton (visitation no longer contested) jointly granted visitation as
long as in Minn.
ii. Court says Clayton need not be present, even though statute does not specifically
authorize aunt visitation.
iii. Hart challenges amount to visitation and grant to Rohmiller. Appellate ct upholds
visitation to Clayton but reverses to Rohmiller.
d. Supreme Court:
i. 3rd party visitation under statute?
1. “If parent deceased, court MAY award to parent/grandparents if in
best interest.
ii. Can also order visitation to 3rd party (not foster parent) if child resided with for
2 years and
1. in best interests of child
2. Petitioner and child have emotional relationship creating
parent/child relationship
3. Visitation would NOT INTERFERE with relationship between
custodial parent and child.
iii. Child reasonable preferences MAY be considered if child of sufficient age.
e. Analysis:
i. But this does not allow visitation over parent objection.
ii. She says statute silent about whether others can petition. But statute not completely
silent on who can be awarded visitation; rather specifies.
iii. She says absurd to exclude merely because have not reached magic 2 years. But
within discretion.
Novotny 85
iv. Further, merely because aunt/uncle might be awarded in certain cases does not
create right.
v. Under common law, someone in loco parentis may qualify.
vi. After Troxel, 3rd party visitation if:
1. 1. give special weight to parental wishes
2. 2. No presumption in favor of awarding visitation
3. 3. more than mere best interest
vii. District Court found likely emotional harm if all ties severed. But no finding re:
limiting Rohmiller’s time.
viii. She can visit when grandpa visits.
Modification of Custody:
3. Watkins v. Watkins (pg. 959) (Custody Modification Sought)
a. Background:
i. Tonda/Matt marry in 96
1. 3 children:
2. Ashley (born 1992)
3. Brittni (born 99)
4. Cristian (born 01)
ii. Divorced 05.
1. Brittni/Cristian spend Sun. morn – Wed eve with Tonda; Wed. evening – Sun morn
w/ Matt
iii. Tonda in relationship w/ Corey
1. Corey had 2 kids w/ Victoria (Joss, Conner) I previous (Clayton)
iv. Matt married to Victoria (former wife of Corey)
1. 1 child, Braydon
v. Matt/Victoria live w/
1. Joss, Conner, Braydon (their child) & Brittni & Cristian
2. Wed eve-Sun. morn
vi. Tonda/Corey live w/
1. Brittni & Cristian Sun. morn-Wed. eve
a. Joss & Connor Tues & Thurs and every other weekend
b. Clayton used to live there but now lives w/ maternal grandparents
b. Custody Modification Rule: (pg. 961)
i. In order for the court to make a custody modification, the moving party MUST
show a substantial or material change in circumstances.
c. Material Change in Circumstances:
i. 1. Tonda cohabiting w/ Corey, registered sex offender
ii. 2. Corey’s son’s Clayton under jurisdiction of juvenile court system and poses threat
to other children
iii. 3. Tonda evicted from various residences and unable to provide necessary stability.
iv. Court finds for Tonda and maintains status quo.
d. Nebraska Statute:
i. No person shall be granted custody of or unsupervised parenting time, visitation or
other access with, a child if anyone residing in the person’s household is required to
register as a sex offender under the Sex Offender Registration Act or as a result of a
felony conviction in which the victim was a minor or for an offense would make it
contrary to the best interests of the child for such access unless the court finds
Novotny 86
that there is no significant risk to the child and states its reasons in
writing or in the record.
e. Court Stated Its Reasons:
i. Clayton—there is risk but he lives elsewhere. No contact order continues between
Clayton & Brittni/Cristian.
ii. Modification to no-contact order may be made if Clayton comes back home.
iii. Corey in 9th yr of 15 yr registration. Attempted sex w/ 14 yr old when he 21.
iv. But no record of anything since then. Further, he & Victoria had married since then
and had children.
v. Ashley had had no problems w/ Corey.
vi. Lack of stability—some concern but not enough to justify change.
Relocation:
1.
DePrete v. Deprete (pg. 966) (Permission to Relocate)
a. Background:
i. Beth/Michael marry 2000. 2 children. Divorce 08. Joint legal. She has physical; he
visitation.
ii. She file to relocate to San Antonio, where fiance, Col. Longo, will be stationed as
active duty dental officer.
b. Longo Testimony:
i. Known each other since 95; engaged 09.
ii. Residing in San Antonio 18-19 mos.
iii. RI native. Visits 2-3 times year; 4 days to a week each time.
iv. Has 3 bedroom house.
v. Would encourage visits to RI.
vi. Acknowledges may be reassigned.
vii. Will marry whether or not children permitted to relocate.
c. Beth Testimony:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
She primary caretaker. Get them ready for school. Feed/dress. Pick them up.
Kids visit on alternate weekends. Telephone contact w/ dad every day or every other.
She teacher. Salary 53K.
If go to TX, get Master’s degree. Increase salary 4-5K/yr.
San Antonio schools very good.
Kids interacting well w/ Longo, becoming more comfortable w/ him.
Relationship w/ ex good, until he told she remarry.
Even if denied relocation would still remarry. Move, because of difficulty maintaining longdistance relationship.
ix. Kids could still skype, telephone. Extended spring, summer vacations.
x. Admits not flexible with husband visitation requests.
xi. Would move w/ husband if he relocated.
d. Michael (Grandparent) Testimony:
i. See kids whenever son has them— Wed, alternate weekend.
ii. Attends 90% sporting events
e. Michael (Father) Testimony:
i. Asked her why take kids away. She says send on long weekend; summer.
ii. Older son cried. He said do everything he could to prevent move.
iii. Coaches soccer, basketball.
iv. Never misses sporting events
v. Once she announced remarriage plans, he had asked for extra time. Never granted.
Novotny 87
vi. Fears complete breakdown in relationship.
vii. He would gladly take on primary caretaker role.
f.
Trial Court:
i. Both parents have deep loving relationship with children.
ii. Defendant father more credible witness than plaintiff mother (seeking relocation
permission)
iii. RELOCATION DECIDED in terms of BEST INTERESTS.
g. Weighting of Factors:
i. 1. adding children and herself to Longo’s plan would involve no cost
ii. 2. in Texas, could be stay-at-home mom and avoid daycare costs.
iii. 3. P could more easily pursue Master’s in Texas and increase salary 4K-5K.
iv. 4. P would have more time to assist in kids’ classes.
v. 5. Schools in San Antonio better performing than in RI.
vi. 6. If not permitted relocate, difficult to build relationship between children and
Longo.
vii. 7. quality of life better for her & children in Texas.
viii. 8. Activities in which children involved in RI also in Texas.
h. BUT
i.
ii.
iii.
iv.
v.
vi.
Grandparents not in Texas.
Children doing well in school in RI
Older son had been going through problems. Now doing better.
D’s contact w/ children greatly reduced in they move.
P not always good now about informing P re: developments. Mite be worse.
Children well-settled in RI.
vii. She cannot relocate w/ children. If she wishes to go, they will be with father
2. Brown v. Brown (Role of Child Preference in Custody Decisions)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
Father and Mother marry December 16, 1991 3 children:
Melissa Rene, born December 17, 1991
Nicholas and Natalie, born June 10, 1995.
The parties separated on October 30, 2000
She awarded divorce on ground of adultery.
He awarded custody. Had moved in with parents.
b. Analysis:
i. BEST INTERESTS of CHILD is PARAMOUNT CONSIDERATION.
ii. NOT AWARDED as REWARD OR PUNISHMENT.
iii. MORALITY RELEVANT insofar as AFFECTS WELFARE OF CHILD.
c. Mother:
i. Children have excessive number of tardies when she brings them to school. Forgets
lunches.
ii. Lost her job for excessive tardiness/absenteeism.
iii. Bad temper
iv. Missed birthday parties, sports, award functions
d. Dad:
i. Affair over
1. (1) was active in raising the children;
2. (2) often cooked meals;
3. (3) helped with school work;
Novotny 88
4. (4) took the children to church; and
5. (5) attended the children's recreational events.
ii. Better temperament
e. Child Preference:
i. The child's preference will be given little weight where the wishes of the child
are influenced by the permissive attitude of the preferred parent.
1. Here, children 6 & 10.
ii. South Carolina law requires the family court to consider a child's reasonable
preference for custody. However, the weight given depends upon the child's
age, experience, maturity, judgment, and ability to express a
preference.
1. Somewhere between 12 & 14 important dividing line.
f.
De Facto Custody:
i. Husband's third shift job and his living with his parents would, normally, be a
negative factor.
ii. But children have a close relationship with their paternal grandparents
iii. This living arrangement will actually assist the husband in caring for the children
since the grandparents will be home with the children while he is working third shift
Chapter 24 – Child Support (pg. 981 – 1025)
Jurisdiction – Constitutional
1.
Divorce = One party DOMICILED
2. Property/ Spousal Support = Personal Jurisdiction over BOTH PARTIES
a. NOTE:
i. But some states claim that they have jurisdiction to divide marital property located
within the state even if there is only personal jurisdiction over one of the parties. This
has not been addressed by the US Supreme Court.
Jurisdiction – Statutory:
1.
Custody =UCCJEA (home state)
2. Support = UIFSA (Uniform Interstate Family Support Act). A court asserting jurisdiction has
exclusive continuing jurisdiction for as long as one of the parties remains in the state.
a. Before UIFSA, we had URESA (Uniform Reciprocal Enforcement of Support Act) & RURESA
(Revised Uniform Reciprocal Enforcement of Support Act )
Child Support
1.
Straub v. B.M.T. By Todd (pg. 981) (Agreement Re: Non-support of Child)
a. Background:
i. Francine Todd & Edward Straub sign agreement—he no responsible for any child
they might procreate.
ii. He already has 5 kids from previous marriage.
iii. She ends relationship unless he father child.
iv. Nov. 1987 she gave birth
v. Jan 91, she asked to have him declared father.
vi. Trial court ordered 130/wk + arrearage 20/wk plus medical expenses.
b. Analysis:
i. 3 ELEMENTS Before Agreement Considered Contract:
1. OFFER
2. ACCEPTANCE
Novotny 89
3. CONSIDERATION (sexual intercourse, continue relationship, which public
policy prohibits being considered as consideration)
ii. Where AGREEMENT VIOLATES PUBLIC POLICY NO CONTRACT
CREATED.
iii. NEITHER PARENT has RIGHT to CONTRACT AWAY SUPPORT
PAYMENTS.
iv. DONOR to LICENSED PHYSICIAN NOT considered PARENT.
1. No such thing as artificial insemination by intercourse
2. Licensed physician does IVF Not a parent.
2. Turner v. Rodgers (pg. 986) (Appointment of Counsel For Individual Facing Incarceration
Because Of Failure To Pay Child Support?)
a. Background:
i. South Carolina enforces child support orders thru civil contempt proceedings.
ii. Parent 5 days behind may be asked to show cause why should not be held in
contempt, e.g., by showing cannot pay.
iii. Michael Turner ordered to pay Rebecca Rogers $52/wk. Her father, Larry Price, has
custody of child.
iv. First 4 times held in contempt paid twice prior to jail, twice after being jailed for 2-3
days.
v. Fifth time did not pay; completed 6 month sentence.
vi. After release, still in arrears. New show cause order issued. Hearing.
b. Turner Testimony:
i. At first did drugs.
ii. Started working but broke back. Filed for disability.
iii. Now that he’s off drugs will start paying
c. Court Order:
i. 12 months detention. Can purge order by having zero balance. Lien on Supplemental
Security Income or other benefits.
d. Right to Counsel:
i. South Carolina Supreme Court REJECTED RIGHT TO COUNSEL at
CONTEMPT HEARING.
ii. Considering Eldridge Factors, Due Process DOES NOT require.
1. Indigence can be established w/o attorney help
2. sometimes, person opposing also unrepresented.
iii. Substitute Procedural Safeguards:
1. Notice to D that ability to pay is critical factor
2. use of form to elicit relevant financial information
3. Opportunity at hearing for defendant to respond to statements/questions
about financial status
4. express court finding that D has ability to pay.
Child Support Jurisdiction, Procedures, Modification, and Enforcement:
1. J.R. v. L.R. (pg. 1002) (Challenge to Support Order)
a. Background:
i. J.R. & L.R. married in 1988.
ii. Nicholas, born 1989, Jessica, born 1991.
Novotny 90
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
Stormy relationship. Sometimes violent.
She has one-nighter w/ S.G. Becomes pregnant.
9 ½ years later, J.R. told.
They separate.
He instant messages Jessica that she should find real father. Should tell her brother that his
dad dead.
J.R. & L.R. reconcile
In 2001, she moves to NJ
He follows, hoping to reconcile.
During this time, she abuses alcohol and unable to support children financially/ emotionally.
She receives public assistance. Files complaint against JR for support.
He ordered to pay support for both.
He files for paternity testing. He only father of Nicholas.
He leaves, keeps in contact w/ Nicolas.
He has no relationship w/ Jessica.
LR seek support from SG, who claims counter to best interest to be tested and who wants no
relationship w/ Jessica. Further, would hurt his kids if they knew.
Jessica wants to know, even if have no relation. Will have no relationship with JR.
SG submits to testing
b. Trial Court Order:
i. SG (99.9% probability) told to pay $75, given income and other support obligations.
J.R., psychological dad, told to pay $75.
c. Analysis:
i. SG appeals, says destructive to relationship w/ JR.
ii. But too late (she already knew), and he should have been forced to submit to testing.
iii. NATURAL PARENT is PRIMARY SOURCE OF SUPPORT.
iv. EXCEPTION if STEPPARENT ACTIVELY INTERFERES.
v. Even if HARMS his CURRENT FAMILY, fact remains that she is his daughter.
2. O’Neil v. Wal-Mart: (pg. 1007) (Challenge to Refusal to Cover Stepson)
a. Background:
i. Commissioner of Essex County Dept. of Social Services seeks to force Walmart to
cover employee Amie Vradenburg’s stepson.
ii. Walmart says not covered under eligibility guidelines.
b. Employee Retirement Income Security Act:
i. Federal law outlines conditions under which group health plans must cover under
Qualified Medical Child Support Order
c. QMCSO:
i. Qualified Medical Child Support Order
1. (i) which creates or recognizes the existence of an alternate recipient’s right
to, or assigns to an alternate recipient the right to receive benefits for which a
participant or beneficiary is eligible under a group health plan, and
2. (ii) with respect to which the requirements of paragraphs (3) [contact info] &
(4) [limits to power to compel] are met
d. Alternative Recipient:
i. Alternate recipient defined as “any child of a participant who is recognized under a
medical support order as having a right to enrollment under a group health plan with
respect to such participant
Novotny 91
ii. WPL is stepchild who has never lived w/ her. She is not his legal guardian and he has
not been declared as dependent for tax purposes.
iii. But order of support issued by Essex County Family Court suffices.
iv. Order substantially applies because includes name social security of participant and
recipient (plus latter’s birthday)
e. Can Compel Coverage?
i. Necessary to meet law requirements related to medical coverage?
ii. Child need not reside w/, be dependent for tax purposes, or be born in wedlock
f. Is Coverage Here Type/Form Benefit Not Otherwise Provided?
i.
ii.
iii.
iv.
Plan includes stepchildren who live w/ participant in parent-child.
Must be claimed as dependent every other year
Must live w/ participant 9 months of year.
WPL not included
g. Exception under NY Law:
i. No employer, health insurer, group health plan, health maintenance organization, or
other entity offering medical benefits whether by insurance or otherwise, including
an employee retirement income security act or service benefit plan, shall deny
enrollment of a child under the health coverage of the child’s parent on the ground
that:
(i) child born out of wedlock
(ii)child is not claimed as dependent on parent’s federal tax return, or
(iii) the child does not reside with the parent or in the insurer’s service area
h. Discussion:
i. NY law holds stepparents, like natural parents, responsible for support when child is
or about to become recipient of public assistance.
ii. Preemption? But not when state law has tenuous connection with covered plans, as is
true of laws of general applicability, especially when involve area traditionally subject
to state law.
iii. Congress no attempt preempt state support statutes. SO EXCEPTION TO NORMAL
REQUIREMENTS.
3. Lopez-Ruiz v. Botta (pg. 1017) (Challenge to Amount of Support Ordered)
a. Background:
i. Carolina Lopez–Ruiz & Alejandro F. Botta divorced in Pa. One child.
ii. She moves to Columbus. He to Boston.
iii. Pa. order registered in Ohio and they agree that Franklin County Juvenile Court will
exercise jurisdiction.
b. Trial Court:
i. Guidelines
1. 833.56/mo when insured or
2. 757.86 + 93.67 for medical
ii. Magistrate suggest decrease by $100.
iii. Father appeals, suggesting further reduction should be granted.
iv. Trial court rejects his contention.
v. Appellate court suggests private schooling costs should not be considered. Remand.
vi. Trial court now reduces by 200.
c. Basis of Challenge:
i. Does not take into account transportation costs (visit from Boston). But could send
child.
Novotny 92
ii. Differences in cost of living between Boston and Columbus. But explicitly accounted
for.
iii. Benefits from remarriage. But she still responsible for various costs.
iv. Her standard of living higher. But he buys child expensive toys, even though defers
dental, new car.
v. Much deference given to court.
4. Balk v. Rosoff (Who is to Pay for College Education of Child)
a. Separation Agreement:
i. The parties' separation agreement, which was incorporated but not merged into the
parties' judgment of divorce, and the judgment of divorce both include provisions
requiring that each parent pay one-half of the cost of a college education for each of
their children.
ii. BUT the parties shall have approved in writing, in advance, the child's enrollment in
any private secondary school or residential college. Such approval shall not
unreasonably be withheld
b. Daughter Acceptances:
i. Daughter accept at SUNY Binghamton & Boston University (latter 3X cost, rankings
similar).
ii. He told her to go to former and she decided to go to latter.
iii. Mother seeks contribution
c. Analysis:
i. Lower court said WITHHOLDING CONSENT UNREASONABLE. But that
inaccurate.
ii. He should instead PAY ½ of what would have COST to go to SUNY.
5. In Re Martinez (Whose Law Controls Emancipation for Handicapped Child of Marriage)
a. Background:
i. Martinez & Hannia Pastor reside and divorce in New York
ii. She awarded custody & support for children, including DEM, until she emancipated.
iii. D.E.M. would become emancipated when she 21, or completed four years of college,
whichever came last, but in no event past the age of twenty-two.
iv. 1998 DEM rendered quadriplegic.
v. 2006 move to Texas for health.
vi. Shortly before 21st birthday, moved for modification because of disability.
vii. But NY law does not require support for adult disabled children.
viii. NY ended support
b. Trial Court:
i. Hannia files “original” action in TX for support
ii. He challenges subject matter and personal jurisdiction.
iii. Trial court granted temporary support
c. Appellate Court:
i. No subject matter jurisdiction. NY has continuing exclusive jurisdiction because he
still lives there.
ii. Further to change duration that must be permitted under law of issuing state.
d. UIFSA:
i. Uniform Interstate Family Support Act
Novotny 93
1.
Establishes Jurisdiction for modifying support—state where order originates
as long as one of the parties (child or one of the parents) remains, unless
agreement to contrary.
6. Long0 v. Longo (Calculate Support over Guidelines)
a. Background:
i. Charles & Joy Longo 2 children.
ii. He ordered to pay $1,666.67/mo for each child.
b. Statute:
i. Where combined income over 150K,* the court shall determine the amount of the
obligor's child support obligation on a case-by case basis and shall consider
the needs and the standard of living of the children who are the subject
of the child support order and of the parents.
1. *Now roughly 300K
c. Trial Court:
i. Paid cash for expensive cars.
ii. Interest in Fla. condo
iii. 600K home
iv. Owned boat (for awhile)
v. Dine in expensive restaurants
vi. Older attends private school. Younger will too.
vii. If made 150K, would pay $915.46/child, which wouldn’t even cover tuition.
viii. She gets 84K/yr, which covers about 7/8 costs of living in current home.
ix. Children awarded 20K/yr.
x. He says pays about 3700/yr for children’s health insurance. Not reversible error for
trial court to fail to include.
xi. Trial court took into account her spousal support (even if did not use worksheet) and
has great discretion.
7.
Murray v. Murray: (Evaluation of Stock Options for Purposes of Support)
a. Background:
i. Graeme Murray & Susan Murray are divorced. She has custody of Iain and seeks child
support modification.
ii. Unexercised stock options were considered in property distribution.
iii. He was making $212,702, now makes $325,743. She notes that stock options received
since divorce not counted.
b. Trial Court:
i. Trial court included value of stock options, yielding salary of $481,109.60.
ii. Child support $6,821.27/mo.
c. Appellate Court:
i. Trial court analysis subject to abuse of discretion standard.
ii. Basically, Ohio includes all income received unless specifically excluded.
iii. Can treat appreciation in value as income once can be exercised (between 1 and 10
years after receipt).
iv. Else, could shield income from consideration in child support
v. Beyond reasonable needs of child?
1. Should be calculated to maintain commensurate standard of living.
2. 10% assumed reasonable
vi. Determination of stock option worth
Novotny 94
1.
First day can be exercised minus price on day granted, e.g., look at price on
Feb 1, 1994 (when granted) and then look at price at Feb. 1, 1995 when could
be exercised.
2. For unexercised options (investment choice), consider how much they have
appreciated in past year. For unexercised options from 1994 in later year,
e.g., 1996, look at price on Feb. 1, 1996 (establishing baseline) and price on
Feb. 1, 1997.
Chapter 14 – Parents Economic Duty (pg. 557-600)
Economic Relations – Support of Children
1. People in the Interest of S.P.B (pg. 559) (Challenge under Due Process and Equal Protection to
Sections of Uniform Parentage Act)
a. Background:
i. PDG (the natural father) admits paternity of SPB, but denies obligation to support child.
ii. PDG never married mother, CFB, and they do not live together.
iii. He offered to pay for abortion.
b. Argument:
i. Imposing support obligation w/o affording say re: abortion denies equal protection.
ii. Her decision to have child contrary to his wishes is intervening factor which
breaks nexus between him and child.
iii. GENDER-BASED DISTINCTIONS MUST serve IMPORTANT
GOVERNMENTAL OBJECTIVES and be SUBSTANTIALLY RELATED
thereto. (Immediate Scrutiny)
iv. State has IMPORTANT INTEREST in protecting child.
v. Shared parental obligation serves 3 interests
1. Interest of child in receiving adequate support
2. Interest of state in ensuring that children do not become wards
3. Interests of parents in being free from state intrusion
vi. DANGER that accepting this would always afford man a way of AVOIDING
SUPPORT (simply offer to pay for abortion)
2. Americana Healthcare Center v. Randall (pg. 563) (Challenge to Child’s Being Assessed Costs
of Mother’s Care)
a. Background:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
Harry/Juanita Randall have son, Robert.
Robert has not resided in South Dakota since 1954.
Harry died in 1981.
In 1985, she drafted trust document
She, Juanita, beneficiary.
Robert is trustee and residual beneficiary.
Principal consists in house (30K) + 100k in mutual funds.
Trust does not give permission to invade principal for Juanita’s benefit
She had accident requiring hospitalization.
He placed her in nursing home, especially for those with conditions like Alzheimer’s.
He sought Medicaid assistance (in light of her limited income). Was denied because of
trust.
He filed for bankruptcy protection. Unsuccessfully.
Trust produced 5-6K/yr plus her social security used for legal fees for guardianship,
bankruptcy proceedings and attempt to receive Medicaid benefits.
In June 1991, he asked to remove her from home. She there until Dec. 1991. 36.7K owed.
He named individually, as trustee, as guardian.
At summary judgment hearing, American also sought relief under SDCL 25-7-27
b. South Dakota Law:
Novotny 95
i. REQUIRES CHILD to PROVIDE SUPPORT when FINANCIALLY ABLE to do
so.
c. Analysis:
i. He was able to pay once he received 100K in mutual funds.
ii. Discriminate against children of indigent parents?
1. But this not arbitrary. Child has received benefits from parent.
2. Rationally related to legit end, providing for elderly.
iii. Due Process violation?
1. But he has numerous contacts with state: power of attorney, legal guardian.
As trustee, holds title to property
2. Robert on notice that his mother was in need because of overdue bills.
3. Weinand v. Weinand (pg. 571) (Stepparent Support Obligation)
a. Background:
i. Mark/Debra Sue married in 1990.
ii. Nicole born in 1995.
iii. Shortly after separation in 97, Bradley Sinsel move in w/ Debra and becomes father
figure to Nicole.
iv. Later determined that Sinsel the father. No support ordered because they live
together.
b. District Court Opinion:
i. Mark maintained connection w/ Nicole and voluntarily paid $300/month support.
ii. District court granted him visitation. Ordered $133/month (down from support table
of $190/month). Basically, court added to her income what Sinsel would be required
to pay and then calculated.
c. Analysis:
i. No one questions his being granted visitation.
1. States sometimes protect Parents for Stepparent visitation to protect the
relationship that has developed
ii. NO COMMON LAW DUTY of STEPPARENT to SUPPORT.
iii. Obligation because of loco parentis status?
1. But that requires willing adoption of all obligations—support, directing
education, control, etc. He not now loco parentis.
2. IN LOCO PARENTIS arises when the STEPPARENT VOLUNTARILY
and INTENTIONALLY takes the CHILD into HIS/HER HOME and
assumes the RESPONSIBILITY for the CHILD.
a.
Since this RELATIONSHIP is based on the INTENTION of the
STEPPARENT it is TERMINATED at WILL and in most cases
when the MARRIAGE ENDS
iv. DEFACTO PARENT – maintaining and supporting child / acting as a parent
v. Support order vacated.
Novotny 96
Parental Liability:
1. Ridgell v. McDermott (pg. 580) (Negligent Failure to Supervise)
a. Background:
i. Ridgell employed as teacher assistant in Southview School in St. Louis.
ii. April 26, 2011 son wrestled her to floor. When she got up, he kicked her in head
causing her to fall backward and hit head on desk.
iii. Numerous injuries resulting from attack—post-concussion syndrome, migraines,
concussion, concentration/memory disturbances, cognitive/memory deficits,
depression.
iv. Suffers permanent restriction from working with children.
v. Seeks past/future medical expenses and lost wages
b. Negligent Supervision:
i. Defendant has LEGAL DUTY to use ORDINARY CASE to protect Plaintiff
against UNREASONABLE HARM RISKS.
ii. A BREACH OF DUTY
iii. The breach is PROXIMATE CAUSE of resulting harm
iv. ACTUAL DAMAGES to Plaintiff’s PERSON/PROPERTY
v. Parents Liable for CHILD’S DANGEROUS PROPENSITIES when FAIL TO
ACT reasonably in ATTEMPTING to RESTRAIN from INJURING
ANOTHER.
c. Analysis:
i. School responsible?
1. But Parents had prior knowledge of son’s violent attacks (punch,
grab, tackle, kick)
2. Parents DID NOT medicate, get counseling or behavior modification
treatment, seek hospital treatment.
ii. Jury could find that this was within the area of parent’s supervision as breach of their
duty to reasonably control and retrain their son from injuring another.
2. Knight v. Merhige (pg. 583)(Parental Responsibility for Adult Son who (Foreseeably) Murdered
Family Members)
a. Background:
i. Nov. 26, 2009 Muriel/Jimmy Sitton host annual Thanksgiving dinner for 16 family
members.
ii. Merhiges usually do not attend with their son Paul, who has history of violent
aggressive behavior.
iii. 1996-2006 Paul lived in home and financially dependent on them. In 1999, he
attempted suicide by shooting self in chest.
iv. Paul believes that Dr. Joseph caused Paul’s illness/injury/damage.
v. In 2009, Paul excluded from their home and instead in Miami condo. He became
reclusive, only allowing housekeeper, who reported that he had stopped mental
health treatment and medications.
vi. Merhiges invited Paul to Thanksgiving. He very interested asking about whether
Uncle Dr. Joseph and sisters would attend.
vii. Paul allowed entry. All went OK during dinner.
viii. He went to car. Brought back gun.
ix. Killed Mrs. Joseph, both sisters, Sittons’ 6-year-old daughter.
Novotny 97
b. Suit:
i. Merhiges sued by Patrick Knight (whose wife killed), Sittons (whose daughter killed),
Joseph (whose wife killed).
ii. Allege Merhiges created foreseeable zone of risk, by surreptitiously inviting him to
dinner despite his known threats of violence. They failed to provide adequate
supervision, guidance, control
iii. Circuit court said no legal duty to control actions of emancipated son
c. Analysis:
i. Legal duty based on foreseeability?
1.
MUST be BASED on
a.
SPECIAL RELATIONSHIP between Plaintiff and Defendant,
OR
b. DEFENDANT’S CONTROL of PREMISES, or
INSTRUMENTALITY or PERSON CAUSING INJURY.
ii. Even if could be based on FORESEEABILITY ALONE, MUST DENY
RECOVERY based on PUBLIC POLICY where Defendant’s conduct involves
inclusion of adult family member into extended family circle.
iii. Generally, NO DUTY TO CONTROL UNLESS SPECIAL RELATIONSHIP to
Plaintiff.
1. Generally, FAMILY MEMBERS have NO SPECIAL DUTY to other
ADULT FAMILY MEMBERS.
iv. Parents MAY NOT be HELD LEGALLY RESPONSIBLE for actions of their
ADULT CHILDREN UNLESS having control such as where there is legal
custody.
v. Did ACTOR’S OWN AFFIRMATIVE ACT subject others to RECOGNIZABLE
HIGH DEGREE OF RISK., e.g., because peculiarly likely to commit intentional
misconduct.
vi. RECOGNITION OF DUTY here might adversely affect family relationships,
would discourage family from providing a haven for troubled relatives.
Property Ownership – The Uniform Transfers to Minors Act (UTMA) and the Uniform Gifts
to Minors Act (The UGMA):
1. Sutliff v. Sutliff (pg. 595) (Challenge to Use of Funds Given under Authority of Uniform Gift to
Minors Act)
a. Background:
i. Children’s account has over $466K. Father custodian of monies given by his parents.
Collins, business partner, custodian of monies given by father.
ii. Support order $400/week against father. Collins & father used UGMA funds to
account for up 75% of support obligation.
iii. Trial court upheld use of the funds that way.
b. Sec. 5305 (b):
i. The custodian shall pay over to the minor for expenditure by him or expend for the
minor’s benefit so much of all the custodial property as the custodian deems
advisable for the support, maintenance, education and benefit of the minor, in the
manner, at the time or times, and to the extent that the custodian, in his discretion,
deems suitable and proper, with or w/o court order, w/ or w/o regard to the duty of
himself or of any other person to support the minor, or his ability to do so, and w/ or
w/o regard to any other income or property of the minor, which may be applicable or
available for any such purpose.
Novotny 98
c. Discussion:
i. Purpose of UGMA to provide inexpensive, easy mechanism for giving property to
minors. Before UGMA, had to set up trust or guardianship.
ii. Custodian holds, manages, invests and dispenses property during minority but must
deliver property, proceeds + interest upon child’s attaining majority.
iii. Custodian may not use for self nor to fulfill existing support obligation.
iv. Trustees owes fiduciary duty to beneficiary, violated when he has a personal interest
in trust dealings that might affect judgment.
v. To extent use of UGMA funds relieved father of reasonable support obligation,
violation of trust.
vi. Parent who does this violates duty of loyalty and is subject to surcharge and removal.
However, this was not clear before and so these acts alone will not constitute bad
faith in this case.
vii. Remand for bad faith analysis.
d. Ohio Rev. Code Ann. § 5814.04
i. (B) The custodian shall pay over to the minor for expenditure by the minor, or expend
for the use or benefit of the minor, as much of or all the custodial property as the
custodian considers advisable for the use and benefit of the minor in the manner, at
the time or times, and to the extent that the custodian in the custodian's discretion
considers suitable and proper, with or without court order, with or without regard to
the duty or ability of the custodian or of any other person to support the minor or the
minor's ability to do so, and with or without regard to any other income or property
of the minor that may be applicable or available for any purpose. Any payment or
expenditure that is made under this division is in addition to, is not a
substitute for, and does not affect the obligation of any person to support
the minor for whom the payment or expenditure is made.
Chapter 12 – Minority Status (pg. 477-512)
Emancipation:
1. In re Marriage of George (pg. 478) (16-year-old with Child Emancipated?)
a. Background:
i. Robert/Betty George divorced.
ii. ADG lives w/ Betty.
iii. ADG had child. No longer attending school. He claims support no longer owed
because she emancipated herself.
iv. Trial court agrees
b. Analysis:
i. Entering Navy NOT GROUNDS for SUPPORT TERMINATION BUT
FACTOR in reduction.
ii. Emancipation NEED NOT TERMINATE SUPPORT OBLIGATION.
iii. Courts differ about whether dropping out and getting job emancipates and ends
support obligation.
iv. On remand, court should also consider child’s resources as well as having had child.
Novotny 99
2. Ohio Rev. Code Ann. § 3119.86 (West):
(1) The DUTY OF SUPPORT to a CHILD imposed pursuant to a COURT CHILD SUPPORT
ORDER SHALL CONTINUE beyond the child's eighteenth birthday ONLY under the
following circumstances:
(a) The CHILD is MENTALLY OR PHYSICALLY DISABLED AND is INCAPABLE of
SUPPORTING or MAINTAINING himself or herself.
(b) The CHILD'S PARENTS have AGREED to CONTINUE SUPPORT beyond the
child's eighteenth birthday pursuant to a SEPARATION AGREEMENT that was
INCORPORATED into a DECREE OF DIVORCE or DISSOLUTION.
(c) The CHILD CONTINUOUSLY ATTENDS a RECOGNIZED and ACCREDITED
HIGH SCHOOL on a FULL-TIME BASIS on and after the child's eighteenth
birthday
(2) The DUTY OF SUPPORT to a CHILD imposed pursuant to an ADMINISTRATIVE CHILD
SUPPORT ORDER SHALL CONTINUE beyond the child's eighteenth birthday ONLY if
the CHILD CONTINUOUSLY ATTENDS a RECOGNIZED and ACCREDITED HIGH
SCHOOL on a FULL-TIME BASIS on and after the child's eighteenth birthday.
3. Powell v. Powell, 676 N.E.2d 556, 560 (Ohio App 1996)
a. The EMANCIPATION of a CHILD MAY be AFFECTED in many ways:
i. marriage,
ii. entering the armed services,
iii. leaving home, becoming employed and self-subsisting, OR
iv. in any other manner in which the parent authorizes or occasions the child to
remove himself from parental subjugation, control and care.
4. Ford v. Ford, 167 N.E.2d 787, 788 (Ohio App. 1959)
a. BUT even if a CHILD has been EMANCIPATED, if he thereafter BECOMES UNABLE
TO SUPPORT HIMSELF, the PARENTS' DUTY to SUPPORT HIM REVIVES.
5.
In re Marriage of Festers (pg. 480) (Reinstatement of Child Support Obligation)
a. Background:
i. Pursuant to 1973 dissolution, Husband has $150/month child support obligation.
ii. In 1976, sixteen-year-old child travels to Oklahoma, falsifies age, and marries James Kicks
without parental consent.
iii. Within month, child returns to Colorado to live with wife.
iv. Feb 18, 1977 marriage annulled—underage and lacked parental consent
v. After daughter’s annulment, wife sought reinstatement of support and contempt for nonpayment of $1500.
vi. Child support obligation revived as of Mar. 1977, $600 in arrears.
vii. Wife claims payments owed throughout because marriage void ab initio.
viii. Husband argues cannot de-emancipate.
b. Analysis:
i. EMANCIPATION AUTOMATIC upon VALID MARRIAGE, which is
determined in light of place of celebration (under Colo law).
ii. Oklahoma law makes marriage VOIDABLE.
iii. EMANCIPATION MAY be TERMINATED any time during minority.
iv. Oklahoma law provides for SUPPORT DURING PENDENCY of
ANNULMENT ACTION.
1.
PERMANENT SUPPORT CANNOT be AWARDED in ANNULMENT.
v. Thus, FALSE that she can seek support from EX-HUSBAND rather than him as
parent.
Novotny 100
Child Liability:
1. Horton v. Hinely (pg. 486) (Georgia Law makes child under 13 Immune from Suit in Tort?)
a. Background:
i. Horton’s 7-year-old son suffered 3rd & 4th degree burns over 60% body from burning
gasoline
ii. Johnny Hinely & Clint Proudfoot, 9, set can on fire.
b. Analysis:
i. Georgia Statute says INFANCY NO DEFENSE if CHILD REACHES 13.
ii. Perhaps that means possible defense for younger, e.g., depending upon
maturity.
iii. But this statute provides IMMUNITY RATHER THAN mere possibility of
defense.
1. Court DECLINES to accept Horton’s invitation to interpret Statute to
provide ONLY a DEFENSE OF INFANCY to children under 13
Juvenile Courts:
1. Walker v. State (pg. 489) (Whether Adult Court Can Convict Juvenile of Manslaughter)
a. Background:
i. Walker & 3 boys swimming at pond.
ii. Bubba Rains (.410-gauge shotgun) & Aaron Lyman (.22 caliber rifle) hunting snakes.
iii. Walker asks Lyman for rifle. Shoots into pond. Sinkey says won’t reach other side.
iv. He aims at Edward Cooper (black child), 532 ft away, who is fishing with his family.
v. Lyman had said only one bullet left.
vi. Testimony that if had aimed at Cooper would have missed because of wind.
b. Arkansas Law:
i. WAIVER of JUVENILE COURT JURISDICTION NOT AVAILABLE for
14/15-year-old for UNLISTED FELONY.
ii. Listed felonies include capital murder, murder in 1st or 2nd degree,
kidnapping 1st degree, aggravated robbery, rape or battery in 1st degree.
c. Analysis:
Almost all courts say once a GENERAL JURISDICTION COURT ACQUIRES
JURISDICTION of a JUVENILE, it MAY CONVICT and SENTENCE the
JUVENILE for a LESSER INCLUDED OFFENSE
i.
ii. Will RELY on PROSECUTORS NOT to OVERCHARGE.
iii. Court holds that the CIRCUIT COURT WAS NOT WITHOUT JURISDICTION
to CONVICT AND SENTENCE Walker for MANSLAUGHTER
Abuse and Neglect:
1. DeShaney v. Winnebago County Dept. Social Services (pg. 499) (County Violates Due
Process Guarantees by Failing to Protect Boy from Father?)
a. Background:
i. Joshua DeShaney born in 1979
ii. Father granted custody pursuant to divorce.
iii. Go to Neenah Wis, where 2nd marriage, which also ends in divorce.
iv. 2nd wife had called Winnebago authorities, saying Randy had hit Joshua, leaving
marks. Prime case for child abuse.
v. DSS interviewed father. He denied. No further action
vi. Jan 1983, Joshua at hospital w/ multiple bruises/abrasions.
vii. Doctor alerts and hospital takes temporary custody.
Novotny 101
viii. Child protective team meets (pediatrician, psychologist, police detective, county
lawyer, DSS workers, hosp. personnel). Not enough to retain but recommend several
measures.
1. Enroll in preschool
2. Counselling services
3. Encourage girlfriend move out
ix. Randy DeShaney enters into voluntary agreement w/ DSS.
x. Month later caseworker called. Joshua has suspicious injuries.
xi. Caseworker made further visits. Joshua has head injuries. Girlfriend still there.
xii. Nov 83, emergency room notifies Joshua again treated.
xiii. Later visits; he too sick to see social worker.
xiv. March 84 severe beating life-threatening. Severe brain damage.
b. Analysis:
i. Mother files 1983 action for failing to protect
ii. 7th Circuit says STATE NOT OBLIGATED PROTECT from RISK PRIVATE
VIOLENCE.
iii. MUST have SPECIAL RELATIONSHIP.
iv. Perhaps undertaking to provide Joshua protection yields special relationship.
v. But that imposes DUTY because of increased limitation on ABILITY TO ACT.
vi. The Due Process Clause of the 14th Amendment provides that “No State
shall deprive any person of life, liberty, or property, without due
process of law.”
1.
BUT NOTHING in the language of the Due Process Clause itself
requires the State to PROTECT the LIFE, LIBERTY, and PROPERTY
of its CITIZENS AGAINST INVASION by PRIVATE ACTORS
2. The clause is phrased as a LIMITATION on the State’s power to act,
NOT as a GUARANTEE of CERTAIN MINIMAL LEVELS of SAFETY
and SECURITY
3. It FORBIDS the STATE itself to DEPRIVE INDIVIDUALS of life,
liberty, or property without due process of law, but its language
CANNOT fairly be extended to impose an AFFIRMATIVE OBLIGATION
on the State to ENSURE that those INTERESTS DO NOT come to
HARM though different means.