FAMILY LAW

Fall 2010, Professor Marsha Freeman

Grade will be based on final exam. You must be prepared for class which includes being ready to
discuss the cases (what the court was looking at, what are the issues, what facts are relevant, what
reasoning/law did the court apply and why.) There will be extra points given for participation. There
are now minuses back in the grading scale now.

Family Law is about relationships – spouses, parents/children, partners (same sex and opposite
sex).
 Many companies provide benefits to partners
 It deals with formation/termination of marriage, custody/visitation/support obligations, etc.
 It is about constitutional law; it’s considered a state domain – federal law becomes involved
when the states deprive their citizens of rights; it includes marriage laws, property
laws/rights, and parental rights
 It also includes contract law, and negotiation/settlement
 In family law, you can’t serve any competent person – it must be personal service
 Different than other law in that it’s very personal and it’s about ending usually (e.g.,
relationships)

CHAPTER 1 – WHAT IS A FAMILY?

 Traditional: mother, father, and children (doctrine of exclusivity)

 Non-traditional: unmarried, same/sex, with/without children/stepchildren, extended members
of family, and friends; broader concept of who provides the care

1. Conjugal

Baker v. State (p 10)

Benefits and protections incident to a marriage: right to receive a portion of the estate of a
spouse who dies intestate; protection against disinheritance through elective share provisions;
preference in being appointed as personal representative of spouse who dies intestate; right to bring
a lawsuit for the wrongful death of a spouse; right to bring an action for loss of consortium; right to
workers’ compensation survivor benefits; right to spousal benefits statutorily guaranteed to public
employees, including health, life, disability, and accident insurance; opportunity to be covered as a
spouse under group (health and life) insurance policies issued to employee; right to claim evidentiary
privilege for marital communications; homestead rights and protections; presumption of joint
ownership of property and concomitant right of survivorship; hospital visitation and other rights
incident to medical treatment of a family member; and right to receive and the obligation to provide
spousal support, maintenance, and property division in the event of separation or divorce.

Braschi v. Stahl Associates Company (p 15)

 Brief Fact Summary. Two men lived as life partners for over ten years. Upon his partner’s
death appellant was threatened by respondent with eviction based on the theory that he was
not a family member as protected by rent control law.
 Synopsis of Rule of Law. Without legislative definition, the court determines the definition
of family by examining the intent of the legislation. Based on the intent of the rent control law,
an expansive definition of family is appropriate.
 Facts. Appellant Miguel Braschi lived with Leslie Blanchard in a rent controlled apartment
form the summer of 1975 until Blanchard’s death in September of 1986. Respondent Stahl
Associates Co. threatened eviction proceedings against appellant, contending that he was a

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 mere licensee with no right to occupy the apartment since only Blanchard was tenant of
record.
 Issue. Is a couple living in a marriage-like relationship but not formally married protected
under New York Rent Control law?
 Held. The purpose of rent control statutes was to address an acute shortage in dwellings
that resulted in abnormal increases in rent. The statutes also provided noneviction protection
for occupants who are either the surviving spouse of the deceased tenant or some other
member of the deceased tenant’s family. Respondent argues that the family member term
should be construed consistently with the state’s intestacy laws, meaning a relationship of
blood, consanguinity or adoption. However, the noneviction protection does not concern
succession of real property but rather protects a certain class of occupants from sudden loss
of their homes. Respondent’s interpretation would afford protection for distant blood relatives
while denying protection to unmarried lifetime partners. Respondent also contends the family
member definition should be guided by a recently enacted noneviction provision of the Rent
Stabilization Code, which provides a precise definition of family members based on marital or
blood ties. However, the new rent-stabilization system is different than the rent-control
system in that the former is a less onerous burden on the property owner. The term family as
used in the statute should not be rigidly restricted to those who have formalized their
relationship by obtaining, for example, a marriage certificate or an adoption order. This
expansive definition includes two adult lifetime partners. Appellant should be afforded the
opportunity to prove he and Blanchard had a family household. This it determined by the
totality of the relationship, including the exclusive commitment, the manner in which the
parties have conducted their everyday lives and held themselves out to society, and the
reliance placed upon one another for daily family services.
 Discussion. The court determined that based on the purpose of the statute a more
expansive definition of family should be applicable. The court also provides a useful list of
factors to determine family.

Note (p 19): Braschi involves two issues that can distinguished from one another. One is the extent
to which the law should treat same-sex couples as conjugal family members; the other is whether
law should extend such recognition to unmarried conjugal partners more generally.

2. Non-Conjugal

Canada and other countries have different views than the U.S.
Economic family – a broader concept that encompasses all relatives living in the same household,
regardless of how they are related.

Groups

Village of Belle Terre v. Boraas (p 28)

 reasonable to limit households; similar restrictions are contained in homeowner association
documents and other leases

Penobscot Area Housing Development Corp. v. City of Brewer (p 32)

Board from city disapproved & rejected an application for a retarded adult home b/c they wouldn't
meet the definition of a family or its equivalent. Ct. determined that the home wouldn't create a
traditional family setting.
 No perm resident/control when they would come & go.
 No central figure, rotating staff.
 No indiv cooking, staff would do that.
 The reasoning has to do w/a sense of unease b/c unsure whether the criteria is ok.

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  State Interests: they wanted a low-density area, single families. The group-home would be in
contrast w/this policy/goal.
 Real interest is to keep the neighborhood nice & they don't want a group home for retarded
indivs in the area

Borough of Glassboro v. Vallorosi (p 34)

 PROCEDURAL POSTURE: Appellant borough challenged a decision of the Appellate
Division (New Jersey), which affirmed lower court rulings denying the borough injunctive
relief against appellant homeowners, who owned a dwelling in which a group of ten
unrelated college students lived, in a district limited by borough's ordinance to "single
housekeeping units" that constituted either a "traditional family unit" or its functional
equivalent.
 OVERVIEW: Respondent homeowners purchased a home in a district limited by appellant
borough's zoning ordinance to families or their functional equivalent. The home was
occupied by ten college sophomores who shared housekeeping facilities, paid household
expenses through a joint checking account, and planned to continue to reside in the home
until they graduated. Borough commenced an action seeking an injunction against the
students' use and occupancy of the house. A lower court denied the injunction, and an
intermediate appellate court affirmed. The court affirmed, noting that while municipalities
were permitted to limit occupancy to "single housekeeping units," the standard for
determining whether a use qualified as a single housekeeping unit could not be based on
blood, marriage or adoption, but had be functional and capable of being met by either related
or unrelated persons. Sufficient credible evidence supported the lower courts' determination
that the students did not violate the ordinance. The students' relationship showed stability
and permanency and could be described as the functional equivalent of a family, a use
permitted by the ordinance.
 OUTCOME: The court affirmed the denial of injunctive relief to appellant borough, finding
that there was sufficient credible evidence in the record to sustain the lower court's factual
finding that occupancy of respondent homeowner's dwelling by unrelated students showed
stability, permanency, and could be described as the functional equivalent of a family, a use
permitted by the borough's ordinance.

CHAPTER 2 – MARRYING

Loving v. Virginia (p 58)

 Brief Fact Summary. An African-American woman and a Caucasian man were charged and
pled guilty to a Virginia statute banning interracial marriages.
 Synopsis of Rule of Law. The Equal Protection Clause calls for strict scrutiny when
laws contain classification based upon race. Such laws are only upheld if a legitimate
state interest independent of the racial discrimination exists.
 Facts. Jeter, an African-American woman, and Loving, a Caucasian man, were married in
1958 in the District of Columbia. Both where residents of Virginia. The couple returned to
Virginia and was charged with violating the state ban on interracial marriages. The Lovings
pled guilty and were sentenced to a one year suspended sentence so long as they leave the
state and not return for twenty-five years.
 Issue. Does the Virginia statute prohibiting marriages solely on the basis of racial
classification violate the Equal Protection and Due Process Clauses of the Fourteenth
Amendment?
 Held. The Fourteenth Amendment does not permit the freedom of choice to marry to be
restricted by racial discrimination. The State contends that marriage has traditionally been
subject to state regulation without federal intervention under the Tenth Amendment, and that
the statute has a legitimate purpose in preserving racial integrity. Furthermore, the State
claims that the statute punishes both races equally and thus the test under the Equal

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 Protection Clause is if there is a rational basis for a State to treat the interracial marriages
differently.
 The equal application of a statute containing racial classifications does not remove it from the
Fourteenth Amendment’s subjection of racial classifications to the most rigid scrutiny. The
Equal Protection Clause only permits statues containing racial classifications to be
necessary to accomplish a permissible state objective independent of the discrimination. The
statute has no legitimate overriding purpose independent of invidious racial discrimination.
The statute also violates the Due Process Clause by violation the Lovings’ liberty to marry
without due process of law.
 Discussion. The Court found that even if the statute punished Caucasian and African-
American participants equally, it was still subject to strict scrutiny. The state had no
legitimate independent reason for the invidious racial discrimination; therefore the statute
violated the Equal Protection Clause.
 Note. Loving was the first case in which the Sup Ct held unconstitutional a state restriction
on marrying. In its wake, courts have overturned numerous other restrictions.

 Strict scrutiny – race, religion, and speech; state must have compelling government interest
which must be narrowly drawn to achieve only that interest
 Intermediate scrutiny – gender; state must have important government interest and must be
substantially related to that interest
 Rational basis – everything else; state must have rational reason for infringement and should
not be overly inclusive

See note 3 on p 62.

Full faith and credit clause – every state must respect the records, acts, and judgments of a sister
state, unless

Zablocki v. Redhail (p 62)

 Brief Fact Summary. A Wisconsin Statute forced individuals to receive court permission in
order to marry if they have a minor issue not in their custody which they are obligated to pay
support for. Appellant was unable to receive court permission under the statute and brought
suit on behalf of all residents similarly situated.
 Synopsis of Rule of Law. If a statute significantly interferes with the exercise of a
fundamental constitutional right, it must be supported by sufficiently important state
interests and closely tailored to effectuate only those interests. Such interests are
subject to strict scrutiny or “critical examination.”
 Facts. Appellee Redhail was unable to enter into a lawful marriage under a Wisconsin
statute that did not permit a resident to marry without court permission if he has a minor
issue not in his custody which he is obligated to pay support by court order. The statute
allowed court permission only if the marriage applicant submits proof of compliance with the
support obligation and additionally demonstrates that the children covered by the support
order are not then or likely thereafter to become public charges. In 1972 when appellee was
a minor high school student he was found to be the father of a baby girl born out of wedlock
and ordered to pay monthly support. Appellee was unemployed and indigent until 1974, and
unable to make payments. In 1974 appellee applied for a marriage certificate with appellant
Zablocki, a county clerk. The application was denied due to appellee’s failure to obtain the
required court order. It was stipulated that appellee was in arrearage on his payments and
his child had been a public ward since birth, therefore he was unable to satisfy the
requirements for a court order. Appellee filed his complaint on behalf of himself and all
similarly situated Wisconsin residents.

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  Issue. Is a Wisconsin statute that provides that members of a certain class of residents
cannot marry, within the State or elsewhere, without first obtaining a court order granting
permission to marry constitutional?
 Held. The statute is unconstitutional because it significantly interferes with the exercise of a
fundamental right and is not supported by sufficiently important state interests and is not
closely tailored to effectuate only those interests.
 The court employs a critical examination of the state interests advanced in support of the
statute because the right to marry is of fundamental importance. Previous court decisions
have confirmed that the right to marry is protected by the Due Process Clause of the
Fourteenth Amendment.
 Although reasonable restrictions that do not significantly interfere with the right to marry may
be imposed, the present statute absolutely prevents some in the protected class from
obtaining the required order, and places sufficient burdens and significant intrusions on
others.
 Appellant claims that the statute supports the State’s interest in counseling the applicant as
to the need of fulfilling his prior support obligations and protects the welfare of the out-of-
custody children. The first claim is faulty because even if counseling is provided there would
be no interest in continuing to withhold permission to marry after counseling is completed.
The second is faulty for two reasons. First, if the individual is unable to meet payments, the
statute simply prevents marriage without providing any money to the minor children. Second,
the State has numerous other means for extracting the payments.
 There is also suggestion that the statute prevents applicants from incurring new support
obligations. However, this is underinclusive because it limits only the new financial
commitments arising out of a marriage and overinclusive because in many cases the income
from the new spouse may increase the applicant’s ability to pay. The statute may only result
in more children being born out of wedlock.
 Concurrences.
 Justice Stewart. The majority’s reliance on the Equal Protection Clause is misplaced
because it is intended to deal only with invidiously discriminatory classifications. The Due
Process Clause protects the liberty right to marriage, and protection of the State’s interests
must fall short of not permitting poor people to marry.
 Justice Stevens. The Wisconsin Legislature incorrectly assumed that (a) only fathers would
be affected by the legislation and (b) they would never marry employed women. The Statute
cannot withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment.
 Discussion. The majority finds the statute to violate constitutional protections under both the
Due Process and Equal Protection Clauses. The Concurrences appear to differ mainly on
which of these two clauses is more applicable.

NOTE (p 71): Reasonable restrictions that do not significantly interfere with the right to marry can be
imposed by the state. This case sounds like strict scrutiny.

Turner v. Safley (p 71)

 Brief Fact Summary. Inmates brought suit over a Missouri Corrections regulation that
permitted inmates to marry only with permission of the prison superintendent and allowed for
approval only when compelling reasons exist.
 Synopsis of Rule of Law. The reason for the rule did not have a reasonable
relationship to the goals of the penal system, therefore the prisoner’s constitutional
right to marriage was violated.
 Facts. The Missouri Division of Corrections had regulations permitting inmates to marry only
with the permission of the superintendent of the prison, and allowing for such approval only
when there are compelling reasons to do so. Prison officials testified that generally only a
pregnancy or the birth of an illegitimate child where considered compelling. P inmates
brought a class action suit for injunctive relief and damages.

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  Issue. Should a different rule apply in a prison forum that does not include marriage as a
constitutionally protected right? If the rule burdens prisoner’s constitutional rights, should the
restriction be tested under a reasonableness standard?
 Held. Multiple elements of marriage that are not inconsistent with the status of a prisoner are
sufficient to form a constitutionally protected right to marriage. Even under a reasonable
relationship test, the marriage regulation does not withstand scrutiny. Prison inmates retain
those constitutional rights not inconsistent with their status as a prisoner or with legitimate
penological objectives. Although the right to marry is subject to substantial restriction for
prisoners, the expressions of emotional support and public commitment; the religious
spiritual significance; and the expectation that most inmate marriages will ultimately be
consummated remain unaffected by confinement or legitimate correctional goals.
 Petitioners rely on security and rehabilitation as their support for the reasonable relationship
between the rule and correctional goals. This is because marriages can lead to violent love
triangles and the domination of female prisoners who are overly dependent on male figures.
However, love triangles can develop without marriage, and the focus on banning mainly the
female prisoners from marriage is unacceptable. The almost complete ban on such
marriages is overly broad and not reasonably related to legitimate penological objectives.
 Discussion. The Court did not reach the question of if a higher standard of scrutiny is
necessary because it found that the rule did not pass muster under the reasonable
relationship test. However, the Court did state that the regulation may impose an
unacceptable constitutional restriction on non-prisoners because they would be unable to
marry incarcerated individuals.

Notes 1 and 2 (p 74)

 Langone v. Coughlin: The court followed the Turner intermediate standard of “whether the
regulation bears a reasonable relationship to legitimate penological interests.”
 Akers v. McGinnis: The court found that preventing inmate/correctional worker intimate
relations was a legitimate penological interest and that barring relations with inmates’ visitors
and family was reasonably related to that interest.

Michael H. v. Gerald D. (p 74)

 Brief Fact Summary. Carole had an adulterous affair with Michael while married to Gerald.
A child was born while Carole and Gerald were together, but was likely Michael’s child.
Michael and the child by guardian ad litem brought suit to establish paternity and a right to
visitation.
 Synopsis of Rule of Law. An adulterous, natural father does not have a constitutional
right to paternity over the marital father.
 Facts. In 1976 Carole D. and Gerald D. were married and established a home in California.
In 1978, Carole became involved in an adulterous affair with Michael H. She conceived a
child, Victoria, in 1980, with Gerald listed as father on the birth certificate. Gerald has always
held the child out to be his daughter, but soon after delivery Carole informed Michael she
believed he might be the father. In 1981 Gerald moved to New York and Carole, Michael,
and Victoria had blood tests revealing a 98.07% probability that Michael was the father.
Carole visited with Michael for several months, were he held Victoria out as his daughter.
Carole left Michael and took up residence in California with another man. In the summer of
1982 Carole and Victoria visited Gerald in New York, and the three vacationed in Europe. In
the fall she returned to California. In November of 1982 Michael filed a filiation action in
California to establish his paternity and right to visitation. In 1983 the court appointed an
attorney and a guardian ad litem to represent Victoria’s interests. Victoria filed a cross-
complaint asserting that if she had more than one psychological or de facto father, she was
entitled to maintain her filial relationship, with all of the attendant rights, duties, and
obligations, with both. Carole filed for summary judgment while she was again living with
Gerald in New York. In August of 1983 she returned to California and again became involved

Family Law, Fall 2010 6

 with Michael, instructing her attorneys to remove the summary judgment motion. For the next
eight months Michael held Victoria out as his daughter. In April 1984, Carole and Michael
signed a stipulation that Michael was Victoria’s father. The next month Carole left Michael,
instructing her attorneys to not file the stipulation. Carole reconciled with Gerald and they
lived together with two more children being born. In May 1984 Michael and Victoria, through
guardian ad litem, sought visitation rights for Michael pendente lite. A court appointed
psychologist recommended that Carole retain sole custody, but Michael be allowed
continued contact with Victoria pursuant to a restricted visitation schedule. The court
concurred. In October of 1984 Gerald moved for summary judgment on the ground that
under California law there were no triable issues of fact as to Victoria’s paternity. The law
provides that “the issue of a wife cohabiting with her husband, who is not impotent or sterile,
is conclusively presumed to be a child of the marriage.” The presumption may only be
rebutted by blood tests, and a motion for such tests must be made within two years of the
birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging
paternity. In 1985 the Superior Court granted the motion for summary judgment, finding that
Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was
neither sterile nor impotent.
 Issue. Does the presumption established by the law infringe upon the due process rights of
a man who wishes to establish his paternity of a child born to the wife of another man or
infringe upon the constitutional right of the child to maintain a relationship with her natural
father?
 Held. Michael contends as a matter of substantive due process that because he has
established a parental relationship with Victoria, protection of Gerald and Carole’s marital
union is an insufficient state interest to support termination of the relationship. However,
Michael’s interest must be a fundamental liberty to be constitutionally protected.
 Historically, the marital family has been protected rather than the potential father outside of
the marriage. The presumption of legitimacy was fundamental at common law, and could be
rebutted only by a husband who was incapable of procreation or had no access to his wife
during the relative period. The policy rationales were the aversion to declaring children
illegitimate and the peace and tranquility of the States and families. No modern or historical
precedent similarly recognizes the power of the natural father to assert parental rights.
 Michael must establish not that society has traditionally allowed a natural father in his
circumstances to establish paternity, but that it has traditionally accorded such a father
parental rights. To provide protection to an adulterous natural father is to deny protection to a
marital father.
 Victoria’s due process challenge is weaker than Michael’s. Her claim that a State must
recognize multiple fatherhood has no support in history or tradition. The Court declines to
accept Victoria’s argument that she had no opportunity to rebut the presumption of her
legitimacy, because Victoria is not illegitimate.
 Dissent. If we had looked to tradition with such specificity in past cases, many decisions
would have had a different result. The plurality ignores the developing society in which we
live. Liberty must include the freedom not to conform. This is not a new interest, in that of a
parent and a child in their relationship with one another. The plurality’s decision is striking
considering the precedent preventing States from denying important interests to those in
situations that do not fit the government’s narrow view of the family.
 Discussion. The dissent accuses the plurality of being too specific in its search of history to
support the right claimed by appellant. An omitted concurring opinion agreed in the sense
that it objected that the plurality’s historical analysis might foreclose the identification of
future liberty interests.

Presumptive father statute: whenever a child is born during marriage, the husband is presumed to
be the father; many states now permit challenges to this because it’s unfair (DNA testing brought this
about)

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Constitutional restrictions on marriage
 Incest
 Polygamy
 Age
 Same-sex

Singh v. Singh (p 83)

Appeal from annulment judgment; they found out they were uncle and half-niece. Court granted
annulment, then the couple remarried in California. They then filed a motion to reopen the judgment.
Issue is whether a marriage between persons related to one another as half uncle and half niece is
incestuous and therefore void. Connecticut court ruled that it was. This state cited a public policy
exception to the full faith and credit clause.
 NOTE: American courts declare incest a crime; originally it was ecclesiastical courts that did
so.

Back v. Back (p 89)

William Back married a widow with a living daughter; they got divorced and then the man married the
stepdaughter and then had four children. After he died, the ex-wife petitioned to share in estate as
widow alleging that the marriage was null because it was incestuous. The court said that the affinity
relationship ended with the first divorce.

Terms
 Consanguinity: related by blood
 Affinity: related by marriage
 Void ab initio: void from the beginning, as if it never happened (action brought by state or
third party); generally for incompetence (minor, mental, inability to produce children)
 Voidable: option to void the marriage, effective when declared (action brought only by one of
the two parties – e.g., drunk in Vegas)
 Parens patriae: state has the obligation to protect children

When children are born during a marriage that is later annulled, they are considered born during
wedlock even though the marriage is void ab initio. Both voids require a legal decision.

Moe v. Dinkins (p 95)

 Brief Fact Summary. Ps were prevented from entering into marriage because a New York
law required minors to obtain parental consent prior to marriage. Ps brought suit claiming the
law violated the Due Process Clause of the United States Constitution.
 Synopsis of Rule of Law. Because of the unique position between minors and
marriage, the law is examined under a rational relationship test rather than strict
scrutiny.
 Facts. A New York Domestic Relations Law provided that all male marriage license
applicants between 16 and 18 and all female applicants between 14 and 18 must obtain
written consent from both parents (that are living). Section 15.3 of the law requires women
between the ages of 14 and 16 to obtain judicial approval of the marriage in addition to
parental consent. P Raoul Roe, 18, and P Maria Moe, 15, had a one year old son, P Ricardo
Roe. Ps live together as a family unit and desire to be married to cement their family unit and
remove the stigma of illegitimacy from their son. Maria requested consent from her widowed
mother to marry Raoul, but she refused, allegedly because she wished to continue receiving
welfare benefits for Maria. Proposed P-intervenors Pedro Doe, 17, and Christina Coe, 15,
reside in the home of Pedro’s father and step-mother. Christina is eight months pregnant

Family Law, Fall 2010 8

 with Pedro’s child. Christina’s mother refused Christina’s request to marry Pedro, and
arranged for Christina to have an abortion. Christina refused to do so, and consequently her
mother told her she wished to have nothing more to do with her and was leaving the country
to return to the Dominican Republic.
 Issue. Does the law requiring parental consent to marry deprive Ps of the liberty guaranteed
them by the Due Process Clause of the 14th Amendment to the Federal Constitution?
 Held. The law is constitutional because the State has a legitimate interest in protecting
minors from immature decision making.
 Previous case law has recognized a constitutional liberty interest in marriage, but has not
addressed the marriages of minors. The constitutional rights of children cannot be equated
with adults for three reasons: a) the peculiar vulnerability of children; (b) the inability to make
critical decisions in an informed and mature matter; (c) the importance of the parental role in
child-rearing.
 This law should not be examined under a strict scrutiny standard, but rather it must be
determined if there is a rational relationship between the means chosen and the legitimate
state interests advanced. The parent consent requirement ensures that at least one mature
person will participate in the marriage decision. Because of this and minors’ lack of
experience, perspective, and judgment, the law is rationally related to a legitimate state
interest.
 Ps also allege that the courts as a non-interested party would be in a better position to judge
than parents that are potentially biased. However, the law assumes that parents will act in
the best interests of their children. Ps also claim that this law should be analogized with
contraception and abortion laws, and that the law denies them the means with which to
legitimize their children. However, this ignores the fact that the law is only a postponement to
the right to marry.
 NOTES: Court should have found the law invalid for this case because the mother was
committing fraud.

Covenant marriage – choice given to couples to enter into a regular marriage or covenant marriage;
in exchange for covenant marriage (like lower fees), they covenant that they will wait a certain period
of time before they get a divorce

Polygamy

Bronson v. Swensen (p 99)

 Ps contend that this court did not resolve two of the issues they raised in briefing. First, they
contend that the court's ruling, which cited case law from the State of Utah and followed
controlling Tenth Circuit case law, did not adequately consider their claim that the state has
no compelling state interest in prohibiting polygamy because the cited cases had ruled in a
“conclusory fashion” without sufficient articulation “supported by facts.” This contention
merely revisits an issue Ps already addressed in their prior memorandums. Therefore, it
does not establish grounds to alter or amend under Rule 59(e).
 Second, Ps contend that the court's ruling did not address their argument that the United
States Supreme Court case Lawrence v. Texas, 539 U.S. 558 (2003) invalidates “Utah's
criminalization of the intimate relationship between Bronson and G. Lee Cook.” In its Order,
the court addressed this issue and noted that “the laws in question do not preclude [Ps']
private sexual conduct.”

Sanderson v. Tryon (p 105)

Polygamous & non-polygamous parent. Ct allows polygamous parent to keep the children, absent
any other faults of the mother. Supreme Court of Utah held that a parent’s practice of polygamy is,
taken alone, not a sufficient reason to make a custody award or to permit a meaningful review of a
custody award on appeal.

Family Law, Fall 2010 9

Same-Sex Marriage

States can provide broader rights to its citizens.

DOMA – Defense of Marriage Act:

 Modifies full faith and credit clause
 No state, territory, or possession of the U.S. or Indian tribe, shall be required to give effect to
any public act, record or judicial proceeding of any other state, territory, possession, or tribe
respecting a relationship between persons of the same sex that is treated as a marriage
under the laws of such other state, territory, possession, or tribe, or a right or claim arising
from such relationship
 The problem is that Congress is proscribing the states from giving full faith and credit
 States have discretion (shall)
 Hasn’t been directly challenged, likely because of uncertainty of success (by either side)
o Scalia is a stickler for language so he might say this isn’t constitutional

Baker v. State (pull entire case)

 PROCEDURAL POSTURE: P, three same-sex couples, appealed the Chittenden Superior
Court's (Vermont) denial of their cross-motion for judgment on the pleadings and the granting
of the motion to dismiss filed by Ds, the State of Vermont and towns, in a suit involving D
town's refusal to grant marriage licenses to Ps.
 OVERVIEW: Ps, three same-sex couples, were denied marriage licenses from their
respective town clerks. Ps brought suit against Ds to compel the issuance of the licenses.
The trial court denied Ps' cross-motion for judgment on the pleadings and granted Ds'
motions to dismiss. Ps appealed. The court reversed the trial court's judgment and ruled that
under the Common Benefits Clause of the Vermont Constitution, Vt. Const. art. VII, ch. 1, D
State was constitutionally required to extend to same-sex couples the common benefits and
protections that flowed from marriage under Vermont law. The court stated that it did not rule
that Ps were entitled to the marriage licenses, but that they were entitled to the same
benefits and protections afforded opposite-sex, married couples. The court retained
jurisdiction to give the legislature a reasonable time to remedy the constitutional imbalance.
 OUTCOME: The court reversed the trial court's judgment and retained jurisdiction pending
legislative action because D State was constitutionally required to extend to same-sex
couples the common benefits and protections that flowed from marriage under Vermont law.
 NOTES: the common benefits clause predates the U.S. constitution and requires the state to
provide common benefits and protection to all; court left it to legislature whether to have
marriages or civil unions but the benefits had to be the equivalent of marriage – they ended
up calling it a civil partnership
o civil unions are not the same as marriage – just like separate but equal (race)
doctrine

After Baker v. State (in which we got the first civil unions in the country), the issue became
dissolution of these unions. Texas recognized a civil union just “for the purpose of dissolving”, and
the legislature adopted DOMA literally the next day. A Georgia appeals court ruled that Vermont civil
union did not create a partnership equivalent to marriage – Georgia law forbid one of the lesbians
from having visitation of her four children. The couple went to Vermont specifically to get hitched in
order to get visitation rights again. It didn’t work per appellate court. New York granted survivor
benefits (workers comp) for lesbians and gays after the 9/11 terrorist attack; there were plenty of
fights by families though.

Goodridge v. Dept of Public Health (p 109)

Family Law, Fall 2010 10

  PROCEDURAL POSTURE: P marriage license applicants sued Ds, the state public health
department and commissioner, in the Suffolk Superior Court Department (Massachusetts) for
a judgment that their exclusion from access to marriage licenses violated Massachusetts
law. The trial court granted Ds' summary judgment motion and denied that of the applicants.
The applicants appealed, and the state supreme court granted direct appellate review.
 OVERVIEW: The applicants could not obtain marriage licenses because same-sex
marriages were not recognized. The state supreme court held Mass. Gen. Laws ch. 207, the
marriage licensing statute, did not permit same-sex couples to marry. Denials of the
applicants' attempts to marry involved individual liberty and equality safeguards of the
Massachusetts Constitution, protecting freedom from unwarranted government intrusion into
protected areas of life and freedom to partake in state benefits. Under the equality and liberty
guarantees, regulatory authority had to be rationally related to a permissible legislative
purpose. Chapter 207 was not rationally related to the Commonwealth's asserted rationales
for prohibiting same-sex marriage: (1) providing a favorable setting for procreation; (2)
ensuring a two-parent family with one parent of each sex for child rearing; and (3) preserving
state and private financial resources. Procreation was not a necessary component of civil
marriage, forbidding same-sex marriage would not increase opposite-sex marriages in which
children were raised, and a ban on same-sex marriage was not justified by the alleged
financial independence of same-sex couples.
 OUTCOME: The trial court's summary judgment was vacated, and the matter was remanded
to the trial court for entry of judgment, which was stayed for 180 days to allow the legislature
to take such action as it deemed appropriate.

Now we have same-sex marriage recognized.

Wilson v. Ake (p 121)

 PROCEDURAL POSTURE: Ps, a lesbian couple who were legally married in
Massachusetts, sued Ds, a circuit court clerk and the United States Attorney General,
seeking a declaration that the Defense of Marriage Act (DOMA), 1 U.S.C.S. § 7, 28 U.S.C.S.
§ 1738C, and Fla. Stat. ch. 741.212 were unconstitutional. The Attorney General moved to
dismiss.
 OVERVIEW: The couple argued that DOMA and ch. 741.212 violated the Full Faith and
Credit Clause, due process, equal protection, the Privileges and Immunities Clause, and the
Commerce Clause. The court disagreed. Congress's adoption of DOMA was an appropriate
exercise of its power under the Full Faith and Credit Clause to regulate conflicts between the
laws of different states concerning the validity of same-sex marriages. The ability to marry
someone of the same sex was not a fundamental right under the Due Process Clause, nor
was homosexuality a suspect class for purposes of the Equal Protection Clause. DOMA was
therefore subject to rational basis review, and the statute was rationally related to the
legitimate governmental interest of encouraging the raising of children in homes consisting of
a married mother and father. The couple's claims that DOMA violated the Privileges and
Immunities and Commerce Clauses lacked merit.
 OUTCOME: The Attorney General's motion to dismiss was granted.

Miller v. Jenkins (not in book)

Lesbian couple, with a child, moved to Virginia, then wanted divorce. What does Virginia do now?
This became a huge problem for the state. The court tried to carve out an exception. One of the
women then decided to abscond with the child (and is still missing.) The court is left with having to
recognize the rights of the non-natural mother in order to bring criminal charges against the natural
mother for violating the court’s order. This case is working its way through the court system but is at
a stand-still until the child is found.

Perry v. Schwarzenegger (not in book)

Family Law, Fall 2010 11

The Perry v. Schwarzenegger federal marriage case in San Francisco is a historic ruling that strikes
down Prop 8 because it violates the federal Constitution. The decision makes some big contributions
to the law, but it's the court's factual findings that are likely to be most important in terms of changing
the dialogue in America about marriage.
 What sets this case apart is that the court held a full trial, at which both sides got to present
evidence, and the judge could then sort fact from fiction. The folks fighting marriage for
same-sex couples are pushing a lot of fiction, so it's great to have a judge bring a measure of
reality back to the conversation.
Three of Judge Walker's factual findings stand out.
 First, he rejected the assertion that kids need a married mom and dad, and that restricting
marriage to different-sex couples ensures that more kids are raised in that kind of household.
Instead, the evidence at trial showed that "same-sex parents and opposite-sex parents are of
equal quality," and "Proposition 8 does not make it more likely that opposite-sex couples will
marry and raise offspring biologically related to both parents." State courts addressing
challenges to parenting restrictions have come to the same conclusions (based on the same
evidence), but it's great to have a federal court reinforce these findings.
 Second, the judge held that there is no material difference between same-sex and different-
sex relationships: "Same-sex couples are identical to opposite-sex couples in the
characteristics relevant to the ability to form successful marital unions. Like opposite-sex
couples, same-sex couples have happy, satisfying relationships and form deep emotional
bonds and strong commitments to their partners. Standardized measures of relationship
satisfaction, relationship adjustment and love do not differ depending on whether a couple is
same-sex or opposite-sex."
 Third, Judge Walker held that the Prop 8 Proponents could not identify any factually
verifiable way in which allowing same-sex couples to marry would harm different-sex
couples. Indeed, when the judge pressed the lead lawyer for the Proponents about how
straight people would be harmed, he responded: "Your honor, my answer is: I don't know. I
don't know." Stunning.
Those questions - whether gay people are bad for kids, whether our relationships are the same or
different from those of straight people, and how exactly allowing us to marry would harm
heterosexual marriages - are key touchstones of the marriage debate all across the country. To have
them not only answered, but demolished on the facts after a full trial, is a turning point in the national
discussion of this issue.
The trial has made plain that the other side's arguments, and its passion on the issue, are based not
on any real harm stemming from allowing us to marry, but on misconceptions about us and our
relationships, which lead to a profound discomfort with gay people in general. What power the
judicial system has for sorting through conflicting claims, even those based on emotion. And what an
opportunity for us to get the conflicted middle of the American populace to step back and think again
about whether there's any real reason to be concerned about allowing us the freedom to marry.

Transsexuals and Marriage

M.T. v. J.T. (p 126)

Transsexual case – if the operation has been completed, then a subsequent marriage is generally
valid. If the marriage occurred prior to the operation, then it may be considered a void marriage
(dependent upon jurisdiction.)
 P’s capacity to perform sexually as a female was crucial to the court’s decision.

Comity: In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will
extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly
by recognizing the validity and effect of their executive, legislative, and judicial acts.

Family Law, Fall 2010 12

Restrictions on the Procedure for Marrying

Rappaport v. Katz (p 132)

Two couples – one had been married by the clerk and the other planning to be married – filed suit
alleging a civil rights violation: the clerk required couples to dress appropriately (women could not
wear pants) and had to exchange one or more rings. The court dismissed the case holding this was
not an issue for federal courts (no state/federal conflict), without reaching the merits of the case. The
clerk was indicted for something and this was settled by stipulation by his successor.

Notes
 Most restrictions involve licensing and registration restrictions.
 Marriage by captain of a ship is not valid unless the jurisdiction recognizes common law.
Courts will generally try to find these valid if at all possible.

Soldiers and Sailors Act – a legal avenue when necessary to get out of leases, etc.; lots of
protections.

State of Mind Restrictions

The courts care if you been the victim of fraud in getting married. Such marriages are void ab initio:
duress, coercion, fraud, lack of capacity. In “fault states” there may be a problem in getting divorces;
incapacitation would prevent a divorce. Now all 50 states permit no-fault divorces (NY was the last.)
States that are no-fault will allow you to state grounds for the divorce, so you have to know this and
how to use it because courts/judges may look at it for some reason or other in the proceeding.

Lester v. Lester (p 135)

Ante-nuptial agreements, which were created & entered into by the married couple before the
marriage in order to later invalidate the marriage (declare it null & void), are NOT enforceable,
especially since they were married for 10 years.

Johnston v. Johnston (p 138)

Court ordered annulment of marriage but husband wanted a dissolution. She testified he was not a
prince but a frog (drunk, lazy, etc.) During the marriage she executed an inter-spousal deed,
transferring title to real property she owned prior to the marriage to her name & Donald’s. The trial
judge, after finding the marriage void, declared the deed null & void based upon the failure of
consideration. The appellate court reversed and issued judgment of dissolution.

Billowit v. Dolitsky (NJ from 1970s; not in book)

This is about religious fraud. Husband had held himself out as orthodox Jew – he was not. So the
wife sought an annulment. Religion is more important that the “frog instead of a prince” case like
Johnston. The fraud must be extreme and go to the essentials of marriage which in this case it was.
It reaches until all facets of everyday life. Essential to basic marriage, D must have knowingly
misrepresented himself to other party, and other party must have relied on that misrepresentation –
then fraud will be gross and make the marriage void.

Common Law Marriage

No legally sanctioned event, yet you claim to have a marriage; years ago most states had such
provisions but now must do not. Just like any other marriage, if you lived in a state where such a
marriage was recognized, it would be recognized in another state.
 To be considered as common law marriage, couple must:
o have intent to be or act married,
o have a reputation as being married, and

Family Law, Fall 2010 13

 o hold yourselves out as married;
 If there had been a previously solemnized marriage in another relationship (i.e., divorce)
then you must do all of these things again.
 If there is an actual marriage, then you cannot be in a common law marriage too

In re Estate of Love (p 141)

Couple had been together for many years but not solemnly married even though they held
themselves out to be married (joint accounts, reciprocal beneficiaries, owning real estate but not tax
returns which were not permitted.) Then Love died and her son challenged the will.

CHAPTER 3 - MARRIAGE

Marital Privacy

Marriage is not merely a private contract between the parties, but creates a status in which a state is
vitally interested. (p 152) The pendulum swings a lot these days.

McGuire v. McGuire (p 146)

The trial court ruled in favor of P wife under doctrine of necessaries – man is responsible for
woman’s basic needs if he marries her – and said he should provide more money and better life.
Sup Ct of NE reversed holding that he did in fact provide the bare basics and that was all that is
necessary, citing public policy. Each family decides what is necessary.
 At one time, third parties could sue for services provided under this doctrine
 Anything above the basics is by agreement of the parties (the family) or whatever a court
imposes
 One of Prof Freeman’s favorite cases
 Marriage laws are complicated because marriage is complicated.
 Doctrine of family privacy (which might also be termed the principle of not intervening in
ongoing marriages)

Gender Roles

Graham v. Graham (p 151)

Agreement between wife and husband that he would quit his job and she would pay him $300/mo to
accompany her while traveling. The court said this was not a valid contract. Under Michigan law, she
had no right to make such contracts, and it contravenes public policy issue; the state’s interest is
paramount to individuals’ ability to contract regarding the marriage; they couldn’t affect the laws of
marriage.
 Until relatively recently, there was more interference (or interest) by the court in financial
matters as opposed to non-financial matters.
 The court said you can perhaps make your little in-marriage agreements, but the court isn’t
going to get involved to enforce these.
 Paternalism – woman cannot contract on her own.

Bradwell v. Illinois (p 154)

P was denied admission to Illinois bar because she was a woman. The Supreme Court upheld the
denial. The role of a woman is in the home; man is the protector.

Challenges to the Traditional Marriage Model

Orr v. Orr (p 174)

Family Law, Fall 2010 14

Preference that men support women by requiring alimony. These alimony statutes don’t really say
that all men have to pay alimony to all women – only the ones who are needy. See underlined
material p 174. But using gender neutral terms, it culminates in perverse results. Needy should be
man or woman, as necessary. Can’t be gender based (not rational.) State still has an interest in
marriage, and mostly financial.
 Court held unconstitutional gender-based alimony. Changes the entire concept of gender in
the law (not just family law.) Impetus for legislatures and courts to stop thinking
paternalistically.

McGuire v. McGuire (p 146)

Court said it’s not getting involved in the marriage, and if you want us involved, you have to
separate. See notes 3 and 4 on p 151.

Dunn v. Palermo (not in book)

More than just about keeping a name. Establishment of protection of individual rights. Precursor to
major changes.

Knussman v. Maryland (p 228)

Knussman’s wife was pregnant & her pregnancy ultimately resulted in her confinement to bed rest in
the latter stages. He submitted a written request to his supervisor asking for 4 to 8 weeks of paid
family sick leave to care for his wife & spend time w/ his family following the birth of the child. He
was informed by his director (Creel) that he would only be allowed 2 weeks. He filed grievances and
then ultimately a lawsuit alleging violation of equal protection. The jury concluded that each D denied
Knussman’s request for leave b/c of his gender; however, the jury also found that every D except Jill
was entitled to qualified immunity; she appealed. Court affirmed she was not entitled to immunity but
vacated award as too high and remanded for new trial on damages.

Family Medical Leave Act

 FMLA) applies to your company if you employ over 50 employees within 75 miles of the
worksite, and at least 50 of your employees work 20 or more work-weeks in the current or
preceding calendar year
 FMLA allows ”eligible” employees to take off up to 12 work weeks in any 12 month period for
the birth or adoption of a child, to care for a family member, or if the employee themselves
has serious health condition.
o An “eligible” employee is an employee who has been employed by the employer for a
least 12 months and worked at least 1,250 hours
 FMLA can be taken on an intermittent basis allowing the employee to work on a less than
full-time schedule
 The employer is not allowed to terminate FMLA if the employer falls below 50 employees for
those employees currently on leave. Once the leave has been granted or the employee
provides approval notice, the employer cannot alter the leave
o Doesn’t protect that particular job but must be offered another position if they fill your
position while you’re out
 Employees are required to take their paid time off before unpaid leave kicks in

Reallocation of Duties Within Marriage

By Private Contract

Edwardson v. Edwardson (p 201)

 PROCEDURAL POSTURE: Appellant wife sought review of the decision by the Court of
Appeals (Kentucky) affirming the trial court's judgment denying enforcement of an

Family Law, Fall 2010 15

 antenuptial agreement with appellee husband. Upon accepting discretionary review, the
court agreed to consider the issue of whether parties could enter into an enforceable
agreement in advance of their marriage for the amount of maintenance to be paid in the
event the marriage was dissolved.
 OVERVIEW: Appellant wife challenged the court of appeals' decision affirming the trial
court's judgment denying enforcement of an antenuptial agreement with appellee husband.
The court rejected the view set out in Stratton v. Wilson, 185 S.W. 522 (1916) that divorce
was promoted by an antenuptial agreement which contemplated such a possibility and
adopted the view that parties could enter into appropriate antenuptial agreements. The court
held that in order for an antenuptial agreement to be enforced, there had to be full disclosure
at the time the agreement was entered and the agreement had to be free of any material
omission or misrepresentation. In addition, the agreement could not be unconscionable at
the time enforcement was sought. Upon a finding of unconscionability, a trial court was
entitled to modify the parties' agreement to satisfy the necessary standard. In addition,
antenuptial agreements could apply only to disposition of property and maintenance.
Questions of child support, child custody, and visitation were not subject to antenuptial
agreements. Accordingly, the court reversed the lower courts' decisions and remanded the
cause to the trial court for further proceedings.
 OUTCOME: The court reversed the court of appeals' decision affirming the trial court's
judgment denying appellant wife enforcement of an antenuptial agreement with appellee
husband. The court rejected its previous view that such agreements promoted divorce and
held that parties could enter into appropriate agreements provided that they were entered
after full disclosure and that the agreement was not unconscionable.

Simeone v. Simeone (p 204)

 PROCEDURAL POSTURE: Appellant wife challenged the order of the Superior Court,
Philadelphia (Pennsylvania), affirming the order of the lower court, which dismissed her
exceptions to a master's report upholding the validity of a prenuptial agreement and denied
her claim for alimony pendente lite against appellee husband. She claimed the agreement
was unreasonable and that she was not informed of the nature of alimony pendente lite
when she relinquished it.
 OVERVIEW: The superior court affirmed an order of the lower court dismissing appellant
wife's exceptions to a master's report that upheld the validity of a prenuptial agreement and
denied her claim for alimony pendente lite from appellee husband. She sought review.
Appellant asserted that the agreement was not reasonable and that she had not understood
the nature of alimony pendente lite when she relinquished it in the agreement. The court
affirmed, ruling the agreement was valid and enforceable and that appellant could not
receive alimony pendente lite. The court discarded an earlier approach that permitted
evaluating the reasonableness of prenuptial agreements and held that such agreements
should be interpreted using the same criteria as applied to other contracts. Absent fraud,
misrepresentation, or duress, the spouses were bound to their agreement. It rejected
appellant's suggestion that the agreement should be voided because she had not consulted
with an attorney and ruled that the reasonableness of the agreement was not a proper
subject for judicial review. Ample evidence supported the findings of full disclosure of assets
and the absence of duress.
 OUTCOME: The court affirmed the order of the superior court sustaining the order
dismissing her exceptions to a master's report. Applying the same criteria as governed other
contracts, the prenuptial agreement was valid and enforceable. Thus, appellant wife, who
gave up the right to alimony pendente lite by the terms of the agreement, was barred from
receiving it now.

Family Law, Fall 2010 16

By Public Policy

McCourtney v. Imprimis Technology, Inc. (p 216)

Unemployment compensation benefits. An individual who is discharged for misconduct is
disqualified from receiving unemployment compensation benefits. D of misconduct: top of pg. 218.
An employer has the burden o proving by the greater weight of the evidence that an employee was
discharged for disqualifying misconduct. The intent of the unemployment compensation statute is to
assist those who are unemployed “through no fault of their own.”

Stanley v, Illinois (p 638)

 PROCEDURAL POSTURE: P, an unwed father, petitioned for writ of certiorari to the
Supreme Court of Illinois challenging its holding that P could be separated from his children
in a dependency proceeding on the single fact that he had not been married to the children's
dead mother. He claimed that his equal protection rights under U.S. Const. amend. XIV were
violated by respondent State of Illinois when he was denied a hearing on his parental fitness.
 OVERVIEW: In a dependency proceeding by the State, the children of P unwed father were
declared wards of the State. P appealed from the order, claiming that he had never been
shown to have been an unfit parent and that he had been deprived of equal protection of the
laws, as guaranteed by U.S. Const. amend. XIV. The state supreme court held that P could
properly be separated from his children upon proof of the single fact that he and the
children's mother, who was deceased, had not been married. P filed a petition for writ of
certiorari. The Court granted certiorari and reversed, finding that the State's interest in caring
for P's children was de minimis if P was shown to be a fit father. The Court held that P was
denied equal protection of the law because all parents were constitutionally entitled to a
hearing on their fitness before their children were removed from their custody. Thus, P, as an
unwed father, was also entitled to a hearing.
 OUTCOME: The Court granted P's petition for certiorari. The Court reversed the state
supreme court's holding and remanded the case to the state supreme court for proceedings
not inconsistent with the Court's opinion.
 NOTES. Presumption of unfitness for unwed fathers (but not unwed mothers); statute says
parent does not include unwed father. See definition p 638-39. Very important case about
fathers’ rights, years before Orr v. Orr. State can bring an action for paternity.

Lehr v. Robertson (p 641)

 PROCEDURAL POSTURE: On writ of certiorari to the Court of Appeals of New York,
appellant putative father sought review of an order affirming the dismissal of the father's
paternity petition and entering an order of adoption in favor of appellees, mother and
stepfather. The putative father claimed a right to notice and an opportunity to be heard
pursuant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment,
U.S. Const. amend. XIV.
 OVERVIEW: The putative father lived with the mother before the birth of a daughter, who
was born out of wedlock. The putative father failed to enter his name in the State of New
York's "putative father registry," which would have triggered notice to him of pending
adoption proceedings. The Supreme Court found that he never had any significant custodial,
personal, or financial relationship with the child and that he waited two years to establish a
legal tie. The Court held that the State of New York adequately protected the putative
father's inchoate interest in establishing a relationship with his daughter through the
provision of laws authorizing formal marriage, through its statutory adoption scheme, and
through the putative father registry. Further, it concluded that the Equal Protection Clause
did not prevent a state from according two parents different legal rights where one had a
continuous custodial responsibility for the child, while the other never established a
relationship. In that neither the Due Process Clause or the Equal Protection Clause was

Family Law, Fall 2010 17

 found to support the putative father's claims, the judgment of the New York Court of Appeals
was affirmed.
 OUTCOME: The Court affirmed the judgment of the New York Court of Appeals, which held
that the putative father was not denied a right to notice and an opportunity to be heard.
 NOTES: This is the only avenue for making such a claim – his lawsuit was not valid in that
regard. Such statutes are extremely important and affects your client’s rights. If you don’t use
the putative registry, you lose all rights including notice.

Caban v. Mohammed (not in book)

 The NY Domestic Relations Law provision, which permits an unwed mother, but not an
unwed father, to block the adoption of their child simply by withholding consent, clearly treats
unmarried parents differently according to their sex
 Gender-based distinctions must serve important governmental objectives & must be
substantially related to achievement of those objectives in order to withstand judicial scrutiny
under the Equal Protection Clause.

Doctrine of Family Privacy

What goes on in your family stays in your family, for the most part. But it also means the state does
get involved in areas it didn’t use to (e.g., child abuse/domestic abuse.)

Disclaimer: Remember that family law is very personal, political, and charged issues for many
people. In this class, we are to focus on the legal aspects of the cases including the decisions and
how they got there.

Pierce v. Society of Sisters (p 1060)

The Compulsory Education Act, which requires parents to send children b/w the ages of 8 to 16 to
public schools in a district where the child lives or be charged w/ a misdemeanor for failure to do so
(i.e. laws requiring attendance in public schools by school-age children), violates the 14th
Amendment b/c it interferes w/ the liberty of a parent to direct the upbringing & education of their
child, along w/ depriving these private schools of their property w/o due process of law.
 See note on p 1061
 Meyer v. Nebraska was about requiring children to be taught in English language
 Prof considers this case just like the other privacy cases

Griswold v. Connecticut (p 238)

Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she
and the Medical Director for the League gave information, instruction, and other medical advice to
married couples concerning birth control. Griswold and her colleague were convicted under a
Connecticut law which criminalized the provision of counseling, and other medical treatment, to
married persons for purposes of preventing conception.
 Ds appealed from their convictions under Conn. Gen. Stat. § 53-32 (rev. 1958) as
accessories. They contended that the application of the accessory statute, which was Conn.
Gen. Stat. § 54-196 (rev. 1958), violated the Fourteenth Amendment. The appellate court
affirmed their convictions, as did the state supreme court. On further appeal, the Court first
held that as accessories, Ds had standing to challenge the substantive law and to raise the
constitutional rights of the married people with whom they had a professional relationship.
 In examining the United States Constitution, the Court found a right of privacy implicit in the
Third Amendment's prohibition against the quartering of soldiers, the Fourth Amendment's
right of people to be secure in their persons, the Fifth Amendment's right against self-
incrimination, and the Ninth Amendment's right to retain rights not enumerated in the
Constitution. The right of privacy to use birth control measures was found to be a legitimate

Family Law, Fall 2010 18

 one. Thus, the Court concluded that Conn. Gen. Stat. § 53-32 (rev. 1958) was
unconstitutional. The Court reversed Ds' convictions.

Eisenstadt v. Baird (241)

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on
birth control and over-population. Massachusetts charged Baird with a felony, to distribute
contraceptives to unmarried men or women. Under the law, only married couples could obtain
contraceptives; only registered doctors or pharmacists could provide them. Baird was not an
authorized distributor of contraceptives. In a 6-to-1 decision, the Court struck down the
Massachusetts law but not on privacy grounds.
 The Court held that the law's distinction between single and married individuals failed to
satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause.
Married couples were entitled to contraception under the Court's Griswold decision.
Withholding that right to single persons without a rational basis proved the fatal flaw. Thus,
the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the
right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is
the right of the individual, married or single, to be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the decision to whether to bear
or beget a child."

Roe v. Wade (p 252)

Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited
abortions except to save the pregnant woman's life. After granting certiorari, the Court heard
arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the
constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired
from the start. Weddington sharpened her constitutional argument in the second round. Her new
opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and
Thurgood Marshall.
 The Court held that a woman's right to an abortion fell within the right to privacy (recognized
in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a
woman total autonomy over the pregnancy during the first trimester and defined different
levels of state interest for the second and third trimesters. As a result, the laws of 46 states
were affected by the Court's ruling.
 Looking at health and safety of mother and then viability of potential life (fetus)
 Analogous to regulating (procedures) ok but outlawing is not
 If no provision allowing for health and safety of mother, then unconstitutional

NOTE: Florida ban on gay adoptions will no longer be enforced as of today, per Governor Crist. The
3rd Circuit Court of Appeals has ruled that the statute is unconstitutional. Who can appeal? Governor,
DCF? Perhaps the next governor might want to enforce. In California, the ruling for gay marriages
will not be appealed either.
 What does it (and cases like Roe, Griswold, Eisenstadt) mean with regard to family law, on a
practical level? The court is narrowing the areas in which it will be involved in private lives.
The court on its own initiative may take baby steps. Occasionally it will be clear that a case
subject matter may come back to the court again and again.

Planned Parenthood of Southeastern Pa. v. Casey (p 258)

The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new
provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A
minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass
procedure). A married woman seeking an abortion had to indicate that she notified her husband of
her intention to abort the fetus. These provisions were challenged by several abortion clinics and

Family Law, Fall 2010 19

physicians. A federal appeals court upheld all the provisions except for the husband notification
requirement.
 The Supreme Court held states could require parental consent for a minor’s abortion (as
long as judicial bypass is available), require a waiting period between seeking and obtaining
an abortion, and require detailed “informed consent” including medical information about the
abortion. The State could not require a signed statement from the woman that she had given
notice to her husband, if any, prior to the procedure. Casey abandoned the trimester
framework, replacing it with pre- and post-viability tests for constitutionality. Roe was
reaffirmed – although “liberty” replaced “privacy” as the alleged constitutional interest – on
the basis of stare decisis (“let the decision stand”), to avoid the appearance that the Court
was vulnerable to political pressure, and because “people had organized their intimate
relationships and made choices that define themselves … in reliance on the availability of
abortion in the event contraception should fail.” Four justices dissented from Casey’s
“reaffirmation of Roe.”
 NOTES: Some say Casey is even more important than Roe for what Casey did to family
privacy. What is the alliance and why is that important? The court allowed most of the
restrictions but still affirmed Roe’s right to an abortion.

Ayotte v. Planned Parenthood (p 278)

 PROCEDURAL POSTURE: Respondent obstetrician and gynecologist and three
reproductive health service clinics brought suit under 42 U.S.C.S. § 1983, alleging that the
Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. §§ 132:24-132:28 (Supp.
2004), was unconstitutional because it failed to provide an emergency health exception. The
U.S. Court of Appeals for the First Circuit affirmed a declaration the Act was unconstitutional.
Certiorari was granted.
 OVERVIEW: The Parental Notification Prior to Abortion Act allows for three circumstances in
which a physician may perform an abortion without notifying the minor's parent. First, notice
is not required if the attending abortion provider certifies in the pregnant minor's record that
the abortion is necessary to prevent the minor's death and there is insufficient time to provide
the required notice. Second, a person entitled to receive notice may certify that he or she
has already been notified. Finally, a minor may petition a judge to authorize her physician to
perform an abortion without parental notification. New Hampshire maintained that in most if
not all cases, the Act's judicial bypass and the State's "competing harms" statutes should
protect both physician and patient when a minor needed an immediate abortion, but the
courts below found neither of those provisions to protect minors' health did so reliably in all
emergencies. New Hampshire conceded that it would be unconstitutional to apply the Act in
a manner that subjected minors to significant health risks. Although the courts below chose
the most blunt remedy of permanently enjoining the enforcement of the Act and thereby
invalidating it entirely, the Court held that this had not been necessary. Only a few
applications of New Hampshire's parental notification statute would have presented a
constitutional problem. So long as they were faithful to legislative intent, then, the lower
courts could issue a declaratory judgment and an injunction prohibiting the statute's
unconstitutional application.
 OUTCOME: The judgment of the First Circuit was vacated, and the case was remanded for
further proceedings.

Lawrence v. Texas (p 243)

 PROCEDURAL POSTURE: On writ of certiorari, petitioners appealed a decision of the Court
of Appeals of Texas, Fourteenth District, upholding Tex. Penal Code Ann. § 21.06(a) (2003).
That state law made it a crime for two persons of the same sex to engage in certain intimate
sexual conduct.
 OVERVIEW: The state appellate court's decision to uphold the Texas law was based upon
the United States Supreme Court decision in Bowers. In considering the doctrine of stare

Family Law, Fall 2010 20

 decisis in the instant case, the Court held that there was no individual or societal reliance on
Bowers of the sort that could counsel against overturning its holding once there were
compelling reasons to do so. The Court further held that there were compelling reasons to
overturn Bowers. The central holding of Bowers demeaned the lives of homosexual persons.
Petitioners were adults at the time of the alleged offense. Their conduct was in private and
consensual. Petitioners were entitled to respect for their private lives. The State could not
demean their existence or control their destiny by making their private sexual conduct a
crime. The Court also noted that the reasoning and holding of Bowers had been rejected in
other nations, and there was no showing that the United States' governmental interest was
more legitimate or urgent.
 OUTCOME: The judgment of the state appellate court was reversed and remanded.
 NOTES: Bowers was about sodomy statutes applied to homosexuals. Lawrence is included
in the privacy line of cases because it’s foreshadowing the question(s) to come. It is almost a
certainty that gay marriage will reach the Supreme Court relatively soon.

Baker v State and Goodrich have basically been supplanted by the respective states. All of these
decisions have been based on state constitutions. Perry will be the first (if it gets appealed) based on
federal constitution. We’ve talked about the traditional roles and the challenges to those roles. Think
about all of these cases - is the court dragging society kicking and screaming into the next
generation, or is society pushing the court? It varies by case.

We’ve been talking about family privacy and how the doctrine has curtailed the state’s involvement.
Now we’re going to switch gears and discuss the doctrine of domestic abuse where the state does
get involved to protect the lives/rights of individuals. Must-arrest laws require police to arrest
someone on DV charges if someone is injured.

Traditional Immunity and Exemption

The first marital rape law was in the 1970s doing away with the marital rape exemption (could not be
prosecuted for the rape of your wife). Most states have now abolished interspousal tort immunity,
enabling victims to bring actions against abusers for such torts as assault, battery, intentional
infliction of emotional distress and even false imprisonment.

Tort and criminal law in relation to family law

Prosecution of domestic violence (DV) was and is difficult and the least prosecuted of all crimes.
Inability to recognize DV and the prevalence of it are both shocking.

Hasday article (p 281)

Biggest fallacy is that rape is about intimacy – it’s not; it’s all about power.
Vindictive wife argument; sanctity/intimacy of marriage argument.

Battered women’s syndrome is an affirmative defense. The difference in self-defense and BWS is
that it’s not imminent at that moment.

People v. Humphrey (p 289)

 PROCEDURAL POSTURE: D appealed from a judgment of the Court of Appeal of California,
Fifth Appellate District, which affirmed a trial court judgment convicting D of voluntary
manslaughter with personal use of a firearm.
 OVERVIEW: D shot and killed the man with whom she lived, allegedly out of fear that he was
going to kill her. D introduced expert and non-expert testimony tending to prove that her
state of mind was affected by battered women's syndrome. The trial court instructed the jury
on second-degree murder, voluntary and involuntary manslaughter, and self-defense, stating

Family Law, Fall 2010 21

 that an actual and reasonable belief the killing was necessary was a complete defense, that
an actual but unreasonable belief was a defense to murder but not voluntary manslaughter,
and that battered women's syndrome was not relevant to the reasonableness of D's state of
mind. The court of appeal affirmed D's voluntary manslaughter conviction and the supreme
court reversed. Evidence of battered women's syndrome was relevant to the
reasonableness, as well as the subjective existence, of D's belief in the need to defend. The
evidence was also relevant to D's credibility. To the extent it was relevant, the jury should
have been allowed to consider it. The contrary instruction was prejudicial error because it
was reasonably probable that it affected the verdict adversely to D.
 OUTCOME: The court reversed the judgment of the court of appeal.
 NOTES: The testimony is generally limited to what battered woman syndrome is – not that it
is necessarily appropriate in the case at bar; it’s up to the jury to weigh this as all evidence.
This applies to same-sex relationships as well – regardless of gender, the victim often feels
embarrassed, trapped, and unable to change his/her circumstances during the actual abuse.
It’s only after, when there is no abuse that they can act.

Giovine v. Giovine (p 298)

 PROCEDURAL POSTURE: P wife appealed from a judgment of the Superior Court of
Atlantic County (New Jersey) that struck from her divorce complaint intentional tort claims
against D husband as barred by the statute of limitations and denied P's request for a jury
trial on all her claims.
 OVERVIEW: P wife sued D husband for divorce. In her complaint, she alleged as alternative
grounds habitual drunkenness and extreme cruelty. Additionally, P asserted claims for
damages based upon assault and battery, intentional infliction of emotional distress, a
continuous wrong resulting in severe emotional and physical damage, negligence, and
property distribution. P sought a jury trial on her claims. The trial court granted D's motion to
strike all tortious claims arising more than two years before the date of the complaint. The
trial court also ruled that P was not entitled to a jury trial. P appealed, and the court affirmed
in part and reversed in part. The court held that the statute of limitations on P's tort claims
pertaining to "battered women syndrome" was tolled provided that P could prove that D's
wrongful acts rendered her temporarily insane which resulted in her failure or inability to
institute her action prior to the running of the statute of limitations. The court affirmed the
denial of a jury trial as to P's equitable or property claims but reversed as to the tort claims.
 OUTCOME: That part of judgment denying P wife a jury trial on her equitable or property
distribution claims was affirmed, but denial of jury trial on her tort claims was reversed. The
court also reversed the striking of P's tort claims as barred by the statute of limitations. The
limitations period as to P's claims based upon battered women's syndrome was tolled as a
result of the insanity caused by D's wrongful conduct.
 Issue: Whether evidence of battered woman’s syndrome may toll a statute of limitations for
tortuous claims where there is medical, psychiatric, or psychological expert testimony
establishing that the tortuous behavior was of a continuous nature such that the victim could
not unilaterally alter (improve) her circumstances?
 Holding: Yes. Evidence of battered woman’s syndrome may toll a statute of limitations for
tortuous claims where there is medical, psychiatric, or psychological expert testimony
establishing that the tortuous behavior was of a continuous nature such that the victim could
not unilaterally alter (improve) her circumstances.
 In the absence of expert proof, the wife cannot be deemed to be suffering from battered
woman’s syndrome & each act of abuse during the marriage would constitute a separate &
distinct cause of action in tort, subject to the statute of limitations.

Mitchell v. Mitchell (p 306)

 PROCEDURAL POSTURE: The former wife challenged a decision from the Middlesex
Division of the Probate and Family Court Department (Massachusetts), which vacated an

Family Law, Fall 2010 22

 abuse prevention order entered against the former husband after he filed a motion for
reconsideration.
 OVERVIEW: The wife obtained an abuse prevention order under Mass. Gen. Laws ch. 209A.
After the motion was extended for one year, the husband's motion to reconsider or vacate
was granted. In reversing, the court determined that Mass. Gen. Laws ch. 209A, § 3
contemplated the modification of abuse prevention orders. Further, it allowed for both
prospective and retroactive relief. With respect to the retroactive relief sought, the court
looked to the principals outlined in Mass. R. Dom. Rel. P. 60(b)(2) (1975) and Mass. R. Civ.
P. 60(b)(2). Motions to vacate seeking retroactive relief on the ground of newly discovered
evidence were not granted unless the evidence was not available at the trial by the exercise
of reasonable diligence, and the evidence was material. Even if the wife's conduct
constituted newly discovered evidence, the evidence merely challenged her credibility. With
regards to prospective relief, the court determined that the standard for such relief was
flexible based on the need for safety in each particular case. The wife's voluntary contact
was insufficient to show that the order was not needed to protect the wife from harm or the
reasonable fear of serious harm.
 OUTCOME: The judgment was reversed. The wife was permitted to seek a new order within
30 days upon a showing of a continuing need for the order.
 Issue: Whether an abuse prevention order can ONLY be modified or vacated, upon the relief
request of a party whom the order is being enforced, where it has clearly & convincingly
been established upon findings of fact that the order is no longer needed to protect the victim
from harm or the reasonable fear of serious harm?
 Holding: Yes. An abuse prevention order can ONLY be modified or vacated, upon the relief
request of a party whom the order is being enforced, where it has clearly & convincingly
been established upon findings of fact that the order is no longer needed to protect the victim
from harm or the reasonable fear of serious harm.

Notes
 Statutes governing divorce & children born out of wedlock provide that certain orders,
including those pertaining to alimony & custody, may be modified upon a showing
respectively, of a substantial or a material & substantial change in circumstances.
 TRO (temporary restraining order), a judge will order an emergency order of protection is ex
parte, the alleged victim goes to the court and literally says I am in fear and have been
attacked, the court will look over the information and grant it. Many will look over the order
and err on the side of caution. After the temporary amount of time and if the other party has
not come through and disproved the claims, the court will give her a permanent restraining
order.
 The renewal of the order is the issue in some cases, at the end of 12 months in order to
renew you have to show that you still have a fear, and if they have been good it is hard to
prove that you still have fear.
 Order of protection have received constitutional challenges saying that because it is ex parte
and due process is missing, and ex parte orders in this case are allowed

Battered women defense is an affirmative defense, can only testify what the syndrome is, it is still a
factual finding for the jury to see if that person fits the requirements for the BWS.

R. v. Malott (p 295)
Sup. Ct. of Canada (1998)
-Judge L’Heurex-Dube concurring:
-Going to discuss the value of evolving evidence of “battered woman syndrome”:
-Lavallee case: Accepted that a woman’s perception of what is reasonable is influenced by her
gender, as well as by her individual experience, & both are relevant to the legal inquiry.

Family Law, Fall 2010 23

-Concerns have been expressed that the treatment of expert evidence on battered women
syndrome, which is itself admissible in order to combat the myths & stereotypes which society has
about battered women, has led to a new stereotype of the “battered woman.”
-It is possible that those women who are unable to fit themselves w/I the stereotype of a victimized,
passive, helpless, dependent, battered woman will not have their claims to self-defence fairly
decided.
-Needless to say, women w/ these characteristics are still entitled to have their claims of self-
defence fairly adjudicated, & they are also still entitled to have their experiences as battered women
inform the analysis.
-The legal inquiry into the moral culpability of a woman who is claiming self-defence must
focus on the reasonableness of her actions in the context of her personal experiences, & her
experiences as a woman, not on her status as a battered woman & her entitlement to claim
that she is suffering from “battered woman syndrome.”
-By emphasizing a woman’s “learned helplessness,” in order to establish that she suffers
from “battered woman syndrome,” the legal debate shifts from the objective rationality of her
actions to preserve her own life to those personal inadequacies which apparently explain her
failure to flee from her abuser.
-Therefore, it should be scrupulously avoided b/c it only serves to undermine the important
advancements achieved by the decision in Lavallee.
-There are other elements of a woman’s social context which help to explain her inability to leave her
abuser, & which do not focus on those characteristics most consistent w/ traditional stereotypes (i.e.
lack of job skills, caring for children at home, fear of retaliation by the man, fear of loosing custody of
her children, lack of financial support).
-These considerations necessarily inform the reasonableness of a woman’s beliefs or perceptions of
her lack of an alternative to the use of deadly force to preserve herself from death or grievous bodily
harm.
-How should these principles be given practical effect in the context of a jury trial of a woman
accused of murdering her abuser?
-A judge & jury should be told that a battered woman’s experiences are generally outside the
common understanding of the average judge & juror, & that they should seek to understand
the evidence being presented to them in order to overcome the myths and stereotypes which
we all share.
-Finally, all of this should be presented in such a way as to focus on the reasonableness of
the woman’s actions, w/o relying on old or new stereotypes about battered women.
 In sum, he is basically saying that evidence should be introduced for the purpose of
explaining the reasonableness of her actions, not for the purpose of explaining why she
stayed w/ her abuser.
 Stereotypes (of battered women) have no place in the courtroom & a judge & jury should be
instructed on the relevance of the Battered woman Syndrome evidence.
 Pg. 296 - it is possible that those women who are unable to fit themselves within the
stereotype of a victimized, passive, helpless, dependent, battered woman will not have their
claims to self defense fairly decided”
o “for instance, women who have demonstrated too much strength or initiative, women
of color women who are professions, or women who might have fought back against
their abusers on previous occasions, should not be penalized for failing to accord
with the stereotypical image of the archetypal battered woman”
 Canada is more progressive in their understanding than the US.
 Note 1 pg. 297
 Origins: If you are women in a domestic violence situation the court said that as a mother it is
your responsibility to get the children out of that situation so that they don’t see you getting
hurt.
 Best interest of the children was that they were not to be able to see one parent beating up
the other one.

Family Law, Fall 2010 24

  Mandatory reporter: teachers, principles, Every person in the medical field who are required
reporters, if you are dealing with people who you believe are in a situation of abuse you are
Required to report it to a state agency

Cusseaux v. Pickett
4 part test to state a cause of action for battered woman’s syndrome:
(1) Involvement in a marital or marital-like intimate relationship; could be just partners
(2) Physical or psychological abuse perpetrated by the dominant partner to the relationship over an
extended period of time;
(3) The afore-stated abuse has caused recurring physical or psychological injury over the course of
the relationship; AND
(4) A past or present inability to take any action to improve or alter the situation unilaterally.
grounds you had to rely on only those things that happened with in the last 5 years (NY)
Pg 305 take a look
Vacate order: court order to leave and remain away from a premises and surrendering forthwith any
keys to said premises to the P. Depending on the jurisdiction (NY) you had to show physical abuse,
or else you could not get someone out of the house unless they were violent.
 
C.O. v. M.M. (p 310)
 PROCEDURAL POSTURE: Plaintiff, the mother of a teenage girl, filed a complaint for
protection from abuse pursuant to Mass. Gen. Laws ch. 209A, § 4 against, defendant, a
teenage boy. The Brockton Division of the District Court Department (Massachusetts)
granted an order of protection, and denied the boy's motion to modify the order. The boy
appealed, and the state supreme court transferred the case on its own motion.
 OVERVIEW: The mother filed the motion for protection after the boy allegedly sexually
assaulted the girl. The boy brought the motion to modify after criminal charges against him
were dropped. The trial court denied the motion without holding an evidentiary hearing. On
appeal, the boy argued that the order was improper, as he and the girl were not engaged in
a substantive dating relationship as defined in Mass. Gen. Laws ch. 209A, § 1. The mother
testified that she was not sure that the boy and girl had any ongoing relationship.
Furthermore, the appellate court found that the trial court erred in failing to follow the factors
set out in the statute in determining whether there was a substantive dating relationship, and
instead relied upon judicially constructed factors. The appellate court also held that the trial
court violated the boys due process rights, as well as his statutory rights under Mass. Gen.
Laws ch. 209A, § 4, by refusing to allow him to present evidence and to cross examine the
witnesses during the hearing on the question of continuing the temporary order. The denial
of the right to cross examine witnesses was not a proper exercise of judicial discretion.
 OUTCOME: The abuse prevention order was vacated.
 Issue: When a statute contains express factors to be applied in determining the
appropriateness of an abuse prevention order, must the court apply these statutory factors?
 Holding: Yes. When a statute contains express factors to be applied in determining the
appropriateness of an abuse prevention order, the court MUST apply these statutory factors
& thus, cannot rely on other judicially constructed factors.
 Mass. Statute: Provides a range of protections & remedies for those “persons suffering from
abuse from an adult or minor family or household member.” Included w/I the definition of
“family or household member” are those individuals who are or have been engaged in a
“substantive dating or engagement relationship.”
 4 statutory factors to adjudge the existence of substantive dating relationship:
o The length of time of the relationship;
o The type of relationship;
o The frequency of interaction b/w the parties; and
o If the relationship has been terminated by either person, the length of time elapsed
since the termination of the relationship.

Family Law, Fall 2010 25

  In this case, the P failed to sustain this burden. When asked about the nature of the
relationship, the mother testified that she was “really not sure.”
 Also, in this case, the judge erred when he ignored the above 4 factors & instead improperly
relied upon judicially constructed factors, including the fact that a criminal matter has issued,
& the age of the alleged victim
 While judicial discretion & flexibility are appropriate in applying the statutory D of “substantive
dating relationship,” they do not relieve a ct of its obligation to apply the legislative criteria.
 An inference adverse to a D may be properly drawn from his failure to testify in a civil
matter such as this, however, inference cannot alone meet the P’s burden.
 Ct held: That the abuse prevention order is vacated since there is insufficient evidence in
the record to support a finding of a “substantive dating relationship” b/w the D & P’s
daughter.

Turner v. Lewis (p 314)

 In many states you can seek a protective order in two ways
o Family court/lower court if you are involved in other actions
o If you are involved I other actions you can bring it in criminal court, but here it
requires a higher level of evidence (easier to get the domestic order of protection)

B.A. v. U.S. (p 318)

 PROCEDURAL POSTURE: Defendant petitioned for rehearing of his conviction in the
Superior Court of the District of Columbia of violating a civil protection order (CPO).
 OVERVIEW: Defendant contended that the victim consented to the violation of the CPO
when they reconciled shortly after the CPO was issued. The appellate court did not reach the
issue of a consent defense, because it was satisfied that, on the facts of the case, any
consent by the victim did not establish her consent after the relationship ended. The
evidence established beyond a reasonable doubt that the victim revoked any consent to
violation of the CPO. Defendant tried to approach the victim at work, and she called the
police. At this point, the victim's consent to the violation of the CPO was effectively revoked.
Defendant clearly knew that the CPO had not been vacated. Finally, there was sufficient
evidence to establish the violation of the CPO, where the trial court found that defendant's
conduct in the early hours of the morning was willful. The CPO ordered defendant to "stay at
least 100 feet away from the victim, her home, and her workplace," yet defendant stood
within at least 10 or 12 feet of the victim. In addition, even though the CPO ordered
defendant not to contact the victim "in any manner," he went to her home and spoke with
her, another clear violation of the CPO.
 OUTCOME: The judgment of the trial court was affirmed.
 Facts: Ms. Howard filed a petition & affidavit for a CPO against her ex-boyfriend of 4 yrs, Mr.
Ba. Mr. Ba signed a Consent CPO w/o Admissions, in Dec. 1999, which was effective for a
12 month period. The CPO ordered Mr. Ba not to assault, threaten, harass, or physically
abuse Ms. Howard in any manner, to stay at least 100 ft away from Ms. Howard, her home &
her workplace, & prohibited from contacting her in any manner. CPO further warned that :
Failure to comply punishable as criminal contempt &/or as a criminal misdemeanor & may
result in imprisonment for up to 6 months, a fine of up to $1K, or both. Subsequently, Mr. Ba
was charged w/ one count of violation of a CPO.
 Procedural History: The trial judge found Mr. Ba guilty beyond a reasonable doubt of
violating the CPO & sentenced him to 90 days in jail. Mr. Ba appealed, alleging that the CPO
no longer had legal effect when he entered her property in May. Furthermore, he maintains
that Ms. Howard’s consent is a valid defense to all subsequent violations of the Dec. 1999
CPO.
 Issue: Whether consent to contact while a civil protection order is in effect, which prohibits
such contact, invalidates the order?

Family Law, Fall 2010 26

  Holding: No. Consent to contact while a civil protection order is in effect, which prohibits
such contact, DOES NOT invalidate the order.
 The purpose of the CPO proceeding is to protect the moving party, rather than to
punish the offender.
 In this case, the ct is satisfied that on the facts of this case, any consent by Ms. Howard
during the Jan. to Mar. 2000 period would not establish her consent after late Mar. 2000.
Indeed, the evidence establishes, beyond a reasonable doubt, that Ms. Howard revoked her
consent to violation of the CPO.
 At the point in Mar., Ms. Howard’s consent to the violation of the CPO, if such consent was
possible, was effectively revoked. Moreover, Mr. Ba unsuccessfully sought to vacate the
CPO in Mar. Thus, when he approached Ms. Howard in May, he clearly knew that the one yr
CPO had not been vacated.
 Finally, Mr. Ba’s contention that there was insufficient evidence to establish his violation of
the CPO is unpersuasive.
 The trial ct found Mr. Ba’s conduct in violation of the CPO in May was willful, & resulted in a
violation of the CPO.
 
Attorney General’s Task Force on Family Violence 22-24
 Until “must arrest laws” came into play, officers were not encouraged to arrest anyone.
 Courts have gotten better about prosecuting these domestic violence cases, and extending
the sentences
 Policy of preferred arrest: puts the abuser on notice, helps the community appreciate the
criminal nature of domestic violence, it is a societal value. 

Town of Castle Rock v. Gonzales

 Facts of the Case: Jessica Gonzales requested a restraining order against her estranged
husband. A state trial court issued the order, which prohibited the husband from seeing
Gonzales or their three daughters except during pre-arranged visits. A month later,
Gonzales's husband abducted the three children. Gonzales repeatedly urged the police to
search for and arrest her husband, but the police told her to wait until later that evening and
see if her husband brought the children back. During the night Gonzales's husband
murdered all three children and then opened fire inside a police station, where police
returned fire and killed him. Gonzales brought a complaint in federal District Court, alleging
that the Castle Rock police had violated her rights under the Due Process Clause of the
Constitution by willfully or negligently refusing to enforce her restraining order. The Due
Process Clause states: "No state shall...deprive any person of life, liberty, or property,
without due process of law..." The District Court dismissed the complaint, ruling that no
principle of substantive or procedural due process allowed Gonzales to sue a local
government for its failure to enforce a restraining order. On appeal, however, a panel of the
Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due
process claim. A rehearing by the full appeals court agreed, ruling that Gonzales had a
"protected property interest in the enforcement of the terms of her restraining order," which
the police had violated.
 Question: Can the holder of a restraining order bring a procedural due process claim against
a local government for its failure to actively enforce the order and protect the holder from
violence?
 Conclusion: No. In a 7-2 decision, the Court ruled that Gonzales had no constitutionally-
protected property interest in the enforcement of the restraining order, and therefore could
not claim that the police had violated her right to due process. In order to have a "property
interest" in a benefit as abstract as enforcement of a restraining order, the Court ruled,
Gonzales would have needed a "legitimate claim of entitlement" to the benefit. The opinion
by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order
to any specific mandatory action by the police. Instead, restraining orders only provide

Family Law, Fall 2010 27

 grounds for arresting the subject of the order. The specific action to be taken is up to the
discretion of the police. The Court stated that "This is not the sort of 'entitlement' out of which
a property interest is created." The Court concluded that since "Colorado has not created
such an entitlement," Gonzales had no property interest and the Due Process Clause was
therefore inapplicable. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg,
dissented.
 DISSENT: The issue is not about proper deference to law enforcement but whether there
was a property interest in the restraining order. There
 NOTES: Statutes can be evaluated on their face or adjudicated as applied. Here, the court
said doing nothing is within the discretion of the police.

Note (p 345)
 No drop prosecution policies in addition to mandatory arrest laws

Raucci v. Rotterdam (not in book)

 PROCEDURAL POSTURE: Appellant municipality sought review of a wrongful death and
personal injury case in which the United States District Court for the Northern District of New
York ruled in favor of appellee injured party and mother of deceased in a 42 U.S.C.S. § 1983
action.
 OVERVIEW: Appellee injured party and mother of decedent had been threatened by her
husband, from whom she was legally separated and against whom she had a personal order
of protection. Appellant municipality was aware of the situation. The husband was arrested
for violation of the order, and was then released. He subsequently shot at appellee and killed
the couple's child. The court determined that appellee had shown a special relationship
between herself and the municipality, and that the relationship extended to the couple's son.
The court determined that based on the special relationship appellant was liable for
appellee's injuries as well as the death of her son. The court determined that the damage
award for wrongful death was excessive and ordered either a new trial or remittitur, but
otherwise affirmed the judgment in favor of appellee.
 OUTCOME: The court affirmed the prior ruling in favor of appellee injured party and mother
of deceased with the exception of the amount of damages awarded, having determined that
appellee showed a special relationship between herself and appellant municipality, and that
appellant was liable for damages.

HEALTH CARE

Cruzan v. Director, Missouri Dept of Health (p 356)

 PROCEDURAL POSTURE: Petitioners, parents suing on their behalf and on behalf of their
daughter, appealed a decision of the Supreme Court of Missouri which denied their petition
for a court order directing the withdrawal of their daughter's artificial feeding and hydration
equipment.
 OVERVIEW: Petitioners, parents suing on their behalf and on behalf of their daughter,
requested a court order directing the withdrawal of their daughter's artificial feeding and
hydration equipment after she was rendered vegetative in an auto accident. The appellate
court denied their petition holding that petitioners lacked authority to effectuate the request
because there was no clear and convincing evidence of the daughter's desire to have life-
sustaining treatment withdrawn as required under the Missouri Living Will statute, Mo. Rev.
Stat. § 459.010 et seq. (1986). The United States Supreme Court affirmed. It said that the
Due Process Clause, U.S. Const. amend. XIV, did not require the state to repose judgment
on matters concerning the right to refuse treatment with anyone but the patient herself. The
Court held that a state could choose to defer only to the patient's wishes rather than confide
the decision to close family members.

Family Law, Fall 2010 28

  OUTCOME: The Court affirmed the judgment denying a court order directing the withdrawal
of petitioners' daughter's artificial feeding and hydration equipment because the U.S.
Constitution did not require the state to repose judgment on matters concerning the right to
refuse treatment with anyone but the patient herself.

Skylarsky v. New Hope Guild Center (p 350)

 Action by husband alleging medical malpractice against psychiatrist treating his wife; wife
committed suicide after three days of crazy behavior; husband had been told by doctor to
take wife to emergency room and finally decided to do so the next morning but she killed
herself before he could.
 Did husband have a legal duty to provide care for the wife?
 RULE: A common law duty exists for a person to summon medical assistance for a spouse
where the spouse, by reason of being incapacitated or otherwise unable to make a rational
decision, or in a helpless state and unable to appeal elsewhere for aid, or wherein it is
apparent that an adult is as helpless as a newborn.

DIVORCE / Jurisdiction

Before court is able to adjudicate, it must have jurisdiction over parties (both P and D). Who files
(first) typically determines the forum; also each jurisdiction has its own formulas for child support and
this can vary greatly; age of majority for end of child support also varies (e.g., in NY it is court
ordered to age 21 and thru college; FL is 18 and may include college if parties agree.)
 What matters is how we get jurisdiction
 Court will apply law of the state that has jurisdiction, no matter where they were married or
lived longest; all states have residency requirements
 Generally, service in a civil action can be on anyone of a suitable age and description;
however, for dissolution, it must be personal service and only on the party; if you cannot
locate, there are alternatives including publishing in newspaper

Fink v. Fink (not in book)

 Illinois 1976
 PROCEDURAL POSTURE: P wife sought review of an order from the Circuit Court of Peoria
County (Illinois), which denied her petition to have D husband's Nevada divorce decree
declared void.
 OVERVIEW: The husband vacated his rented room and moved to Nevada. While in Nevada,
the husband, a tenured Illinois teacher, obtained a default divorce decree against the wife,
and he moved back to Illinois and married his girlfriend. The wife filed a petition to have the
Nevada divorce decree declared void, but the trial court gave the decree full faith and credit.
On appeal, however, the court held that the trial court's order was against the manifest
weight of the evidence on the issue of the husband's domicile. The court further held that the
husband was never domiciled in Nevada because his actions did not manifest his intent to
make Nevada his permanent home. The court also held that because the Nevada decree
was void for lack of jurisdiction, it was not entitled to full faith and credit in Illinois.
 OUTCOME: The court reversed and remanded the trial court's order, which denied the wife's
petition to have her husband's Nevada divorce decree declared void.
Notes
 Courts look at domicile (where you intend your home to be) rather than residency (where you
happen to be living)
 Full faith and credit – each state must give full faith and credit to the judgments of other
states
 Husband moved to Nevada and took a low-income job but did not resign teaching job in
Illinois and filed for divorce; wife ignored service from Nevada (a risky move); he obtained

Family Law, Fall 2010 29

 default judgment; she could have done a special appearance just to challenge jurisdiction
but instead filed suit in Illinois to set aside the Nevada judgment
 Court held that wife met her burden overcoming the presumption that his Nevada domicile
was bona fide; Illinois said Nevada did not have jurisdiction over husband and therefore the
divorce was invalid
 Nevada divorce was ex parte – other party was not present and did not put in an answer
 States must give validity when domicile is established, but they are free to determine what
constitutes valid domicile; every state today has determined as a practical matter that a
divorce gotten ex parte by a party in another jurisdiction without the other party putting in an
actual answer is not valid
o This basically puts an end to ex parte divorces because both parties have to be
involved at least somewhat
o Must provide notice and opportunity for a full hearing before a fair tribunal

Sosna v. Iowa (p 418)

 Brief Fact Summary. The Appellant, Carol Sosna’s (Appellant) request for a divorce was
denied because she had not met the one-year residency requirement.
 Synopsis of Rule of Law. A state has an interest in requiring those requesting a divorce be
“genuinely attached” to the state by a showing that they have met the state’s durational
residency requirements.
 Facts. The Appellant married Michael Sosna on September 5, 1964, in Michigan. The couple
lived in New York between October 1967 and August 1971 but separated. In August 1972,
the Appellant moved to Iowa with her three children. In Iowa, the Appellant petitioned for a
divorce in the District Court. The District Court dismissed the case for lack of jurisdiction
because the Appellant had not met the one-year residency requirement. The Appellant
argued in federal court that the Iowa residency requirement violated the United States
Constitution. A three-judge court ruled that the Iowa durational residency requirement was
constitutional. The judgment is affirmed.
 Issue. Whether Iowa’s divorce residency requirement is constitutional.
 Held. Yes. Iowa’s state interest in requiring that those who seek a divorce from its courts be
genuinely attached to the State, as well as a desire to insulate divorce decrees from the
likelihood of collateral attack, requires a different resolution of the constitutional issue
presented than [decided in previous cases]. The judgment is affirmed.
 A state has a right to place requirements on the Appellant’s divorce because the divorce
affects the husband, the wife, as well as the children. Iowa has an interest in not
“intermeddling in matters in which another State has paramount interest . . . .”
 Dissent. The dissenting opinions are as follows:
 Justice Byron White. The case before the court has become moot.
 Justice Thurgood Marshall. The Supreme Court of the United States (Supreme Court) has
departed from its usual treatment of durational residency cases. In analyzing the divorce
statute and its durational residency requirement, the Supreme Court applies an “ad hoc”
balancing test. “Any classification that penalizes exercise of the constitutional right to travel is
invalid unless it is justified by a compelling governmental interest . . . .”
 Discussion. Although the Supreme Court may have struck down durational residency
requirements as a qualification for welfare payments, [Shapiro v. Thompson, 394 U.S. 618
(1969)]; for voting, [Dunn v. Blumstein, 405 U.S. 330 (1972)]; and for medical care,
[Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974)], the Supreme Court has
distinguished this case because the Appellant was not “irretrievably foreclosed from
obtaining some part of what she sought.” Under the residency requirement, the Appellant
would eventually gain “the same opportunity for adjudication.”

Family Law, Fall 2010 30

The federal jurisdiction exception for dissolution cases –
 Generally there is federal jurisdiction when you have (1) diversity of parties and sufficient
amount in controversy or (2) federal question
 Original domestic relations cases (divorce, custody, alimony/child support) cannot be brought
in federal court, barring some extraordinary circumstances; what you can bring are ancillary
issues (enforcement, battery, etc.)
 This allows the states to stay out of other states’ issues and not have their own decrees
challenged

Jurisdiction over the Defendant

Kulko v. Superior Court (p 818)

 Facts: Ezra and Sharon Kulko got divorced in NY. Both children remained with father in NY
during the school years and with mother in CA during the summers. Daughter told father she
wanted to move to CA to live with her mother. Father bought her a one-way ticket to CA and
let her go. Later, son secretly left NY to go to CA to live with his mother.
 Procedural History: Mother sued father in CA seeking sole custody of children and increased
child support. Father moved to dismiss because CA had no personal jurisdiction on him.
State court ruled for mother.
 Issues: Does a party's knowledge that an action performed outside a forum state will have an
impact on a forum state establish "purposeful availment"? Can a forum state claim personal
jurisdiction when the cause of action arises not from the Ds commercial transactions but
rather from his personal, domestic relations?
 Holding/Rule: SCOTUS reversed, ruled for father, no jurisdiction. A party's knowledge that
an action performed outside a forum state will have an impact on a forum state does not
establish "purposeful availment". A forum state cannot claim personal jurisdiction when the
cause of action arises from personal, domestic relations and not from commercial
transactions.
 Reasoning: Parents would be more reticent to enter into amiable visitation agreements if a
party subjected himself to personal jurisdiction in whatever state the other party chose to live.
The P did not gain any financial benefit from sending his daughter to CA. Any financial
benefit gained was not because she moved to CA, but because she moved away from NY. P
only acquiesced to his child's preference to live in CA, an act that one would not reasonably
expect would lead to being haled into court in CA. The separation occurred in NY, contract
seeking to modify was negotiated and signed in NY. The "effects test" says that a state has
power to exercise personal jurisdiction over a party who causes effects in a state by an act
done elsewhere with respect to any cause of action arising from these effects.
 Notes: A state can modify child support only if it has personal jurisdiction over the payor.
Personal jurisdiction is determined under the familiar minimum contacts test, which permits
jurisdiction only if the D has purposefully initiated a minimum amount of contact with the
forum.

Ex parte divorces
 Home state will inquire into whether the foreign state acquired jurisdiction over the movant.
As a practical matter, such proceedings are rare.
 If someone goes to Dominican Republic and gets a divorce and no one challenges it, it will
be valid.
 Who can contest ex parte divorce? The moving party is estopped from later claiming
invalidity of the divorce. The other party may be able to challenge it later, but it will
dependent on circumstances (time, opportunity to appear and have a hearing, etc.)

Family Law, Fall 2010 31

Boddie v. Connecticut (p 415)
 Facts of the Case: Gladys Boddie was a married resident of Connecticut receiving welfare
benefits. She filed for a divorce in New Haven County Superior Court. However, Boddie was
not given a hearing because she had not paid the filing fee under Section 52-259 of the
Connecticut General Statutes. Given her welfare status, she was unable to pay the fee. Her
requests for fee waivers were also denied. Boddie and others who were denied divorces
under Section 52-259 challenged the fee requirement in the United States District Court for
the District of Connecticut. They alleged that the fee requirement violated the Due Process
Clause of the Fourteenth Amendment. The District Court upheld the requirement. Boddie
appealed to the Supreme Court.
 Question: Did Connecticut's fee requirement for divorce filings violate the Due Process
Clause of the Fourteenth Amendment?
 Conclusion: Yes. In an 8-1 decision, the Court reversed the District Court and held the fee
requirement unconstitutional. The Court recognized the importance of "access to the courts"
for Boddie, as state court was the only method of obtaining a divorce in Connecticut. While
the Court acknowledged Connecticut's interest in conserving limited resources and
preventing "frivolous litigation," this interest was not a "sufficient countervailing justification."
Therefore, Connecticut's refusal to allow Boddie to proceed with her divorce was "a denial of
due process" in violation of the Fourteenth Amendment.
 Notes: Court will not approve something against public policy. Deviations from the standards
must be specified and a valid reason. Example: construction in the north will result in higher
salary during summer and unemployment during winter.

In re Estate of Smiley (not in book)

 Whether an indigent P wife in a divorce action or an indigent D wife in a similar action are
entitled, as a matter of constitutional right, to have the court provide them with counsel or
compensate counsel retained by them?
 No. An indigent P wife in a divorce action or an indigent D wife in a similar action are NOT
entitled, as a matter of constitutional right, to have the court provide them with counsel or
compensate counsel retained by them.
 There is no absolute right to assigned counsel; whether in a particular case counsel shall be
assigned lies instead in the discretion of the court.

NOTES: Counsel is only provided in cases where it’s a felony/prison is at issue (not misdemeanor
and jail time); some states provide counsel in termination of parental rights cases or losing custody
of children

CHAPTER 4 – DIVORCE

TRADITIONAL FAULT GROUNDS / DEFENSES

The states promote (good) marriage and protect the weaker spouse in the marriage from being
abandoned, etc. Many states still have grounds as an option or use grounds in other functions. All
states now have no fault divorce.

Egregious – very serious grounds for why one party may be more penalized, etc.

Family Law, Fall 2010 32

WHAT ARE THE GROUNDS?

Cruelty

Benscoter v. Benscoter (p 359)

 The P (H) filed a complaint in divorce on the ground of indignities to the person. At the time
of the hearing, the P was 39 yrs old & the D was 37 & she was suffering from multiple
sclerosis. The main indignity that H was complaining about was that his wife expressed her
disappointment in failing to have a female child & that she verbally abused him & blamed him
for this failure. They were together 15 years, she was ill, and there was possibility he was
seeing someone else.
 The circumstances of the wife (double vision, slurred speech, can’t walk, suicide attempts) –
ill health – explains & excuses a wife’s conduct & the acts of a spouse resulting from ill
health do not furnish a ground for divorce.
 When you’re complaining about past events, there has to be a significant change in the
recent history (whatever the jurisdictional time requirement is) or the court is unlikely to be
persuaded.

What the general grounds are, and were in most states

 Cruelty (mental, verbal, or physical; inhumane treatment)
 Abandonment (for one year - no money, nothing)
 Constructive abandonment (most divorces generally ended up in this category – the party
seeking divorce had to affirm/attest under oath that the other party refused to have physical
relations for over one year)
 Prison (sentence) for over three years (even if released earlier)
 Adultery (required pictures/physical evidence)
o Without evidence, you alleged cruelty instead of adultery
o All lawyers have to put in an affirmation that to the best of their knowledge, the client
is telling the truth. This started under domestic cases but has spread to all civil cases
(in NY).
 Separation agreement as to all terms of the divorce (including support, etc.), file with the
court, and then wait one year; then either party could use this as grounds for divorce -
sounds like no fault divorce with a waiting period

Hughes v. Hughes (p 360)

 This appeal concerns the sufficiency of evidence presented to sustain a finding by the trial
court that D was guilty of cruel treatment toward his wife to entitle her to a separation from
bed & board
 D denied P’s accusations & reconvened for a separation in his favor contending the action of
P in leaving the domicile on Dec. 18th was w/o cause & constituted abandonment.
 The trial judge found the testimony sufficiently convincing to establish that D cursed his wife
on many occasions & declared that he didn’t love either his wife or daughter.
 NOTES: you have to provide documentation/confirmation of cruelty (like can’t sleep, loss of
weight, etc.); circumstantial evidence is not enough if you allege adultery

Adultery

Arnault v. Arnault (p 361)

 Patricia & Elden were married in Aug. 1966 & physically separated in Mar. 1995. In Mar.
1995, Patricia filed a Petition for Divorce & Incidental Matters. Elden filed an Answer. Both
petitions requested a divorce. In Aug. 1995, Elden amended his petition & alleged that

Family Law, Fall 2010 33

 Patricia was guilty of adultery. 5 witnesses testified at trial re 2 incidents of Patricia w/
another man
 The trial ct found that the circumstantial evidence was sufficient to prove Patricia committed
adultery & found Patricia guilty of post-separation adultery
 NOTES: taking the word of one party stating he had an affair is not grounds – it could lead to
collusion

Desertion

NOTE: You can reopen default judgments obtained, for a period of time; claim you never got notice.
The other party would have to reprove abandonment in such a case.

Crosby v. Crosby (p 363)

 P sued for divorce yet was denied an award of permanent alimony based on her refusal to
follow her husband’s decision to change domiciles. This violated the Louisiana statute which
stated that a wife is bound to live w/ her husband & follow him wherever he chooses to
reside. The trial ct found that P was not completely w/o fault in the divorce & thus, not
entitled to permanent alimony. P appealed, contending that the Louisiana statute was
unconstitutional & that she was free from fault.
 Ct held: The Louisiana statute is unconstitutional in that it discriminates against women on
the sole basis of gender by arbitrarily forcing them to follow husbands wherever they choose
to live, in clear violation of the equal protection clauses of the fed. & state constitutions.
 NOTES: gender specific statutes are generally unconstitutional

TRADITIONAL DEFENSES

Recrimination

Rankin v. Rankin (p 364)

 Mr. Rankin instituted an action in divorce against Mrs. Rankin on the basis of cruel &
barbarous treatment & indignities to the person & was amended to include a charge of
desertion. In defense, Mrs. Rankin presented evidence that Mr. Rankin used profanity &
physical violence against her.
 In a proceeding for divorce on the grounds of indignities, it must clearly appear from the
evidence that the P was the injured & innocent spouse.
 NOTES: The fact that married people do not get along well together does not justify a
divorce. The court did not buy the husband’s testimony (too vague). The wife’s testimony
was at least corroborated, but she did not counterclaim for divorce (probably didn’t want one
back in the mid-50s.) Grounds were about being the innocent spouse; if a party could not
prove they were without fault, they would be unlikely to win a divorce.

Connivance

Sargent v. Sargent (p 367)

 I DID THIS ONE
 Court said the husband did nothing to protect his wife and actually facilitated his wife
committing adultery with the chauffeur. Because the wife then was granted the divorce, she
would be entitled to alimony.

Family Law, Fall 2010 34

Collusion

Fuchs v. Fuchs (p 370)

 A final judgment of divorce was rendered in April 1946 in favor of Mr. Fuchs on Mrs. Fuchs
default. Prior to the commencement of that action Mr. Fuchs had commenced a previous
divorce action in which Mrs. Fuchs appeared & denied material allegations of the complaint.
In this action, Mrs. Fuchs claims that Mr. Fuchs’ stated that he wanted a divorce & if she
would permit him to obtain it he would give her full, absolute & complete custody of the child.
Mrs. Fuchs is now moving to set aside the default.
 Court reversed an order denying the D’s motion to open her default & granted leave to
appear & answer. A threat to deprive a mother of her child would be an even more
compelling inducement to persuade her to default in a divorce action.
 NOTES: Generally, a default judgment will not be set aside if you commit collusion. In this
case, the court was willing to set it aside because the issue was really coercion, not
collusion.

Insanity

Anonymous v. Anonymous (p 372)

 The husband filed a divorce action against the wife. The wife argued that she was insane
when she committed adultery against her husband. The husband presented psychiatric
testimony indicating she was able to determine right from wrong, & therefore, was sane at
the time of the act.
 In a divorce action, a party claiming the defense of insanity in order to relieve him/her of
responsibility (i.e. divorce was his/her fault) MUST prove by a preponderance of the
evidence that he/she was insane to overcome the presumption of sanity. The burden of
proving mental condition relieving D of responsibility is on D. Her sanity is presumed & the
presumption MUST be overcome by a contrary showing.
 M’Naghten Rule: ability to distinguish right from wrong or understand the nature and quality
of the act.
 Durham Rule: you have a mental disease and that act in question is a result of that disease.
(much easier than M’Naghten rule)

NO-FAULT DIVORCES

Every state has now adopted no-fault divorces. No fault eliminates the grounds (and incentives for
those grounds). One of the negatives is that it may be “too easy” to get a divorce. It DOES NOT
change negotiation of settlement; you still must determine custody, visitation, support, property, etc.
it DOES eliminate the leverage by the one who didn’t want the divorce. There is not as much
incentive for the leverage and the divorce will take place anyway. The whole point of no fault divorce
was thought to be better because it would theoretically promote harmony in the family unit.

RELIGIOUS RESTRICTIONS

Aflalo v. Aflalo (p 408)

 The parties were married in Israel & had one child. Sondra filed for divorce & Henry refused
to provide her w/ a “get,” which is required by Jewish law in order for the divorce to be final.
Without the get, the wife remains a tied woman & may not remarry in the eyes of Jewish law.
During a settlement conference, the ct was advised by counsel that the matter was 98%
settled, but Henry refused to give Sondra a get.
 Where resolution of the divorce disputes cannot be made w/o extensive inquiry by civil courts
into the religious law of the parties, civil cts MAY NOT override a decision of a religious

Family Law, Fall 2010 35

 tribunal or adjudicate disputes involving religious doctrine, without violating the 1st & 14th
Amendments.

Grounds for divorce in no-fault divorce states (very short discussion)

Keep in mind that uniform acts propose no-fault provisions (irretrievably broken, irreconcilable
differences)

Aflalo v. Aflalo (p 408)

 The parties were married in Israel & had one child. Sondra filed for divorce & Henry refused
to provide her w/ a “get,” which is required by Jewish law in order for the divorce to be final.
W/o the get, the wife remains a tied woman & may not remarry in the eyes of Jewish law.
Henry didn’t want a divorce so he took action w/ the Union of Orthodox Rabbis (the Beth Din)
to have a hearing on his attempts at reconciliation
 Where resolution of the divorce disputes cannot be made w/o extensive inquiry by civil courts
into the religious law of the parties, civil cts MAY NOT override a decision of a religious
tribunal or adjudicate disputes involving religious doctrine, without violating the 1st & 14th
Amendments.
 NOTES: religious tribunal will base its decision on the husband’s testimony and is part of the
problem (gender discrimination). In many states there is a stipulation in civil divorce decrees
that state neither party will stand in the way of a religious divorce.

Annulments and Separations

 Difference between business contracts and stipulations of settlement (annulment or
separation) is that the former is at the beginning while the latter is at the end of a relationship
 The more vague a document is will result in constant interpretation and bickering
 Be detailed and get creative – what might occur and build in contingencies
o Look at ages of children and how they are affected (the parents are fighting over their
own rights and the children become pawns)
o Be cognizant of changes that kids go thru
 States differ in whether or not college for children is included; the biggest reason to include it
is to prevent fighting about it later (NY requires it, FL prohibits it)
 If you deviate from statutory language, you must show the court why (to not violate public
policy)
 If parent represents himself pro so, you must put in there that parent has been advised that
he is entitled to legal counsel and have declined and make them initial it)
o Jurisdictions have varied requirements regarding rights that must be explained
 A good settlement may be close to 40 pages

Annulments and Divorces

 Difference is that one is void and other is voidable
 A third party can bring an action to void a marriage
 Voidable is based on competence (age, insanity)
 Impotence is generally voidable

Covenant Marriage
 When you enter into a covenant marriage, you have to wait a longer period to get a divorce
 It’s like a choice to check off but many people are not informed as to what it means

Family Law, Fall 2010 36

BEST INTEREST

This is the heart of family law practice – the best interest of the children. They are “third party
beneficiaries” to the contract, so to speak.

Custody/Visitation
 We will discuss these in generalities for the most part
 In Florida, we call it “contact time” instead of custody and visitation
 Most states aim for joint custody
 Common law theory of custody – historically until the 60s or so, the father generally was
awarded custody (divorced mother could probably not afford to care for her children
properly); many mothers stayed in bad marriages as a result
 Statutory requirements made a huge difference from common law
o Tender years doctrine – in the 70s/80s, mother generally got custody unless father
could show that mother was unfit; it was a rebuttable presumption that mother is fit to
have custody
o Child support was also now mandatory, and in many cases, alimony
 In the present day, we go by the best interest of the child standard
o Technically this standard is gender neutral
o The factors, however, may not be because one of the things they look to is who is
the primary care-giver and who is the psychological parent; this is often the same
person but can be different
o Some state statutes are very vague while others are more detailed (including health
and interests of the child, age, etc.)
o Florida requires a four-hour course and mediation

In Re Marriage of Carney (p 525)

 William (Pl) & Ellen (Def) were married & had 2 sons. The parties separated shortly
afterwards & by written agreement (1972) Ellen relinquished custody of the boys to William.
The accident left him a quadriplegic.
 William filed the present action for dissolution of his marriage to Ellen. Ellen moved for an
order awarding her immediate custody. The trial judge ordered that the boys be taken from
the custody of their father & that Ellen be allowed to remove them to NY.
 HOLDING: A physical handicap that affects a parent’s ability to participate w/ his children in
purely physical activities is NOT a substantial changed circumstance, by itself, in order to
deny that disabled parent custody
 General Rule: It is settled law that to justify ordering a change in custody there must
generally be a persuasive showing of changed circumstances affecting the child.
And the change must be substantial: a child will not be removed from the prior
custody of one parent & given to the other unless the material facts & circumstances
occurring subsequently are of a kind to render it essential or expedient for the welfare
of the child that there be a change.
 Burden Rule: The burden of showing a sufficient change in circumstances is on the
party seeking the change of custody.

Read about the Roses (pp 436-521)

 Every other issue related to divorce, custody, etc. will be in here

Pusey v. Pusey (p 566)

 PROCEDURAL POSTURE: D husband appealed the order of a trial court (Utah), which in a
decree of divorce awarded P wife half of the assets of a corporation formed during the

Family Law, Fall 2010 37

 marriage and partial attorney fees. The wife cross-appealed that portion of the decree that
awarded custody of the oldest son to the husband.
 OVERVIEW: During trial, the husband testified that the corporation had borrowed substantial
funds but offered no evidence other than his testimony. The trial court conversed with the
two minor children in chambers. The court awarded custody of the oldest child to the
husband and custody of the other child to the wife and awarded half the corporate assets to
the wife, as well as part of her attorney fees. The husband appealed the property division
and attorney fees award, and the wife cross-appealed the custody award. The court affirmed
and found that the husband failed to establish the existence of the loan, and, therefore, the
property award was without error. The court found that because the wife's testimony alone
was sufficient to establish her need, the partial attorney fees award was proper. The court
determined that its earlier caselaw, which demonstrated a maternal preference in custody
matters, was invalid, and overturned those precedents in favor of function related factors.
The trial court correctly applied the factors, and, therefore, the split custody award, while not
favored, was not an abuse of discretion.
 OUTCOME: The court affirmed the divorce decree of the trial court, which awarded split
custody of the minor children, half of the corporate assets to the wife, and ordered the
husband to pay a portion of the wife's attorney fees.

Garska v. McCoy (p 569)

 PROCEDURAL POSTURE: Appellant mother challenged the order of the Circuit Court of
Logan County (West Virginia), which gave custody of her son to appellee father.
 OVERVIEW: A custody dispute arose after the mother sought to have her son adopted by
the mother's grandparents. The father, who was not the child's primary caretaker, refused to
consent to the adoption. The court reversed the lower court's grant of custody to the father.
The court held that W. Va. Code § 48-2-15 obliterated the presumption that children of
tender years should be awarded to the mother. Although § 48-2-15 established the best
interests of the child standard for custody disputes, the child's best interests were served by
a presumption in favor of the primary caretaker parent, if he or she met the minimum,
objective standard for being a fit parent. The lower court improperly removed the minor child
from the custody of the mother, who was the primary caretaker, because there was no
evidence that she was an unfit parent. Nor was there an explicit finding that the mother
intended to abandon the minor child, instead of intending to manipulate the welfare system
to maximize her child's eligibility for benefits. Moreover, the father had little or no emotional
contact with the minor child. Based on the foregoing, the court granted custody of the son to
the mother.
 OUTCOME: The court reversed the lower court's judgment, which granted custody of a
minor child to his father.
 NOTES: This case is important. It sets some precedents regarding primary caregiver that
matters, not the one with the money.

Squires v. Squires (p 574)

 PROCEDURAL POSTURE: Appellant mother sought review of the judgment of the Court of
Appeals (Kentucky) affirming the award of joint custody. The court granted discretionary
review to address the proper construction and application of Ky. Rev. Stat. Ann. §
403.270(4). As the appropriate use of joint custody was the subject of considerable debate
and there was little uniformity among the trial courts of Kentucky in its application, the court
took review of the case.
 OVERVIEW: The issue was whether parties, who were found to be good parents and who
would endeavor to place the interest of their child uppermost, should be denied joint custody
due to their hostility and refusal to cooperate with one another. Ky. Rev. Stat. Ann. § 403.270
manifested the overriding consideration that any custody determination be in the best
interest of the child. Neither parent was the preferred custodian, and the parents' wishes

Family Law, Fall 2010 38

 were not binding on the trial court. As such, the broad array of factors contained in the
statute had to be considered appropriately prior to a determination of joint custody or sole
custody. The trial court was faced with the task of formulating a custody arrangement, which
would as nearly as possible replicate the ideal family life and minimize disruption of the life of
the child. The trial court had to consider those factors set forth in Ky. Rev. Stat. Ann. §
403.270(1). A trial court should then look beyond the present and assess the likelihood of
future cooperation between the parents. Joint custody had to be accorded the same dignity
as sole custody, and the trial court had to determine which form would serve the best interest
of the child.
 OUTCOME: The court affirmed the judgment of the appellate court.

Young v. Hector (p 579)

 PROCEDURAL POSTURE: Petitioner husband appealed the judgment of dissolution of
marriage entered by the Circuit Court for Dade County (Florida), and designating the
respondent mother as the primary custodial parent of the two minor children.
 OVERVIEW: The trial court awarded custody of two minor children to the respondent mother.
Petitioner contended on appeal that the trial court abused its discretion when it awarded
custody of the minor children to the mother. On review, the court affirmed, holding given a
choice between the mother, who maintained constant steady employment throughout the
marriage to support the children (regardless of the amount of her income), and the father
who unilaterally and steadfastly refused to do the same, the trial court's designation of the
mother as custodial parent could not be deemed an abuse of discretion. The court also relied
on the report of the guardian ad litem, which also recommended that the mother be named
primary custodial parent.
 OUTCOME: The court affirmed the trial court's decision designating the respondent mother
as the primary custodial parent of the two minor children, but reversed and remanded the
court's determination as to rehabilitative alimony, distribution of the parties' assets and
liabilities, and attorney's fees for further proceedings. The court held there was substantial
competent evidence to support trial court's discretionary ruling on custody.

Hassenstab v. Hassenstab (p 596)

 PROCEDURAL POSTURE: Appellant father sought review of the order of the District Court
for Douglas County (Nebraska), which denied his application to modify custody of their child
from appellee mother to him, increased his child support obligations, and awarded the
mother attorney fees.
 OVERVIEW: The father filed an application to modify the prior custody determination by
awarding custody of their child to him. Evidence showed that the mother had been involved
in a homosexual relationship before their divorce. The father testified that she had attempted
suicide. The daughter expressed a desire to remain in her mother's custody. The district
court dismissed the father's application to modify. On appeal, the court affirmed the dismissal
of the father's application. The court held that there had been no showing of a material
change of circumstances warranting a modification of the custody order because the
evidence did not establish any harmful effect on the daughter due to the mother's
homosexual relationship. Furthermore, the evidence did not establish that the child's best
interests required a change of custody because it showed that she was happy, self-assured,
confident, dressed in clean clothes that were appropriate for the weather, well-kept, well-
groomed, and a "B" student with few discipline problems.
 OUTCOME: The court affirmed the judgment denying the father's application to modify the
custody order.

MOCK EXAM AT THIS JUNCTURE

Family Law, Fall 2010 39

Allen v. Farrow (not in book)
 PROCEDURAL POSTURE: Petitioner father appealed a judgment of the Supreme Court of
New York County (New York), which awarded custody of father's three minor children to
respondent mother, denied father's requests regarding visitation, and awarded counsel fees
to mother in father's action to obtain custody of the children.
 OVERVIEW: Father instituted proceedings to obtain custody of three infant children in order
to preserve his parental rights because mother allegedly engaged in a campaign to alienate
him from the children and to ultimately defeat his legal rights. Mother maintained that father
had shown no genuine parental interest in the children and that any interest was
inappropriate and harmful. These allegations were brought on by father's sexual relationship
with mother's adult daughter and alleged abusive relationship with the parties' minor
daughter. The trial court awarded custody of the minors to mother. On appeal, the court held
that the best interests of the children were served by remaining together in mother's custody
with the parties abiding by the visitation schedule established by the trial court. The court
found that father's had a demonstrated inability to understand the effect of his words and
deeds upon the emotional well being of the children. As father's resources far outpaced
mother's resources, and father's action lacked merit, the trial court did not abuse its
discretion in its award of counsel fees.
 OUTCOME: The court affirmed the judgment of the trial court that denied father's request for
custody of his three minor children, set forth terms of visitation, and awarded mother counsel
fees.

Wetch v. Wetch (p 599)

 PROCEDURAL POSTURE: P mother appealed the judgment of the District Court for Cass
County (North Dakota), changing custody of the parties' two minor daughters from the
mother to D father. The mother contended that the district court erred in refusing to consider
custody-related evidence predating a previous custody decree.
 OVERVIEW: By stipulated agreement in 1993, the mother received custody of the children.
The father sought custody a year later when the mother wanted to move with the children to
Tennessee. The matter was resolved by stipulated agreement, and an amended judgment
was entered permitting the mother to retain custody of the children, but restricting her to
reside within a certain area. The following summer, the mother moved with the children to
Tennessee without permission of the father or the district court. The district court granted the
father's motion for change in custody, specifically excluding any evidence of the parties'
conduct prior to the 1994 amended judgment. The father argued that the doctrine of res
judicata precluded the district court from considering the custody-related evidence predating
the 1994 amended judgment. The court disagreed and reversed the district court's judgment.
The court held that, where the original custody award was based upon agreement by the
parties without evidentiary hearing or fact-finding by the district court, the district court was
required to consider all relevant evidence, including pre-divorce conduct in deciding a
change in custody motion.
 OUTCOME: The court reversed the district court's judgment and refusal to consider earlier
evidence in making its determination on modification of custody.
 NOTES: Relocation used to be that you had to have permission of other spouse or court,
and court allowed only for remarriage or couldn’t find a job where they lived. This has
changed over the years. Many states say custodial parent’s happiness is what matters –
children will be happier if custodial parent is happier.

Palmore v. Sidoti (p 538)

 PROCEDURAL POSTURE: Certiorari was granted to the District Court of Appeal of Florida,
Second District, which affirmed without opinion an order of a trial court divesting petitioner
mother of the custody of her child and awarding custody of the child to respondent father
because of the mother's remarriage to a member of a minority. The mother appealed.

Family Law, Fall 2010 40

  OVERVIEW: A mother challenging a state court order divesting her of custody of her child
contended that, contrary to the trial court's findings, it was not in her pre-school child's best
interests to be removed from her custody, while the father alleged that the child would be
damaged by being raised in a racially mixed household. The mother was remarried to a man
of a different race. The trial court determined that there was no question as to the parental
qualifications of the mother or her new husband and was entirely forthcoming as to race
being the rationale for its holding. The United States Supreme Court reversed, holding that
the Fourteenth Amendment would not brook such governmentally-imposed discrimination
based on race. While the Court found that the State of Florida had a substantial
governmental interest for purposes of the Equal Protection Clause in protecting the interests
of children, such an interest could not support the State's toleration of prejudices based on
race. The reality of private biases and the possible injury such biases could inflict on a child
were determined by the Court not to be permissible considerations for removal of an infant
child from its mother.
 OUTCOME: The Court reversed the judgment upholding an order divesting the mother of
custody of her child.
 NOTES: This was all about race – the 14th amendment does away with government imposed
discrimination. The mere act of the court being asked to intervene makes it a state action.
Shelley v. Kraemer. Although the US Sup Ct reversed, the Fla Ct of Appeals said the Court
did not directly tell them to reinstate the original custody decree.

Uniform Child Custody Jurisdiction and Enforcement Act (CCJEA)

 The courts of those states must communicate and determine which state has the most
significant connections to the child. A court which has made a child-custody determination
consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until
either (1) that court determines that neither the child, the child's parents, nor any person
acting as a parent has a significant connection with the State that made the original order
and that substantial evidence is no longer available in the State concerning the child's care,
protection, training, and personal relationships, or (2) that court or a court of another State
determines that the child, the child's parents, and any person acting as a parent do not
presently reside in the State that initially made the child custody order.

Jones v. Jones (p 538)

 PROCEDURAL POSTURE: Appellant mother sought review of a decision by the Circuit
Court of the Fifth Judicial Circuit, Marshall County (South Dakota), which granted custody of
the parties' minor children to appellee father.
 OVERVIEW: The mother and father sought a divorce on grounds of mental cruelty. The trial
court, contrary to the recommendation of a psychologist, awarded custody of the parties'
minor children to the father. The mother sought review and the court affirmed. The court
noted that the primary consideration in a child custody proceeding was the welfare of the
children. The court also said that the trial court had broad discretion regarding the custody
award and that the award could have been reversed only for an abuse of that discretion.
Thus, the court said that it was compelled to uphold the award unless the trial court's findings
of fact were clearly erroneous. The court held that the trial court did not clearly err when it
found that the father was likely to be the better parent in the long run. The court cited the trial
court's findings regarding the stability of the family atmosphere in which the children were
being raised in the father's custody, and the father's ongoing recovery from alcoholism. The
court also noted that, because both the father and children were Native American, the father
showed a greater sensitivity for the children to be exposed to their racial heritage.
 OUTCOME: The court affirmed an order that awarded custody of the parties' minor children
to the father, rather than the mother.

Family Law, Fall 2010 41

Indian Child Welfare Act (ICWA)
 Protects Indian children from being displaced from reservation in adoption proceedings,
protects their rights to know of their heritage, and should be used in conjunction with
everything that they know.

Kendall v. Kendall (p 549)

 PROCEDURAL POSTURE: Plaintiff wife and defendant husband both appealed the
judgment of the Norfolk Division of the Probate and Family Court (Massachusetts) which
placed restrictions upon sharing of their respective religious beliefs with their minor children,
in divorce proceedings. Defendant argued that the judgment burdened his free exercise of
religion. Plaintiff challenged the award of joint custody, the division of property, and the
denial of attorney fees.
 OVERVIEW: Plaintiff wife, who was Jewish, and defendant husband, who was Catholic,
were married, understanding that their children would be raised in the Jewish faith. Plaintiff
filed for divorce after defendant joined a fundamentalist Christian church and after she
adopted Orthodox Judaism. The family court granted divorce, and entered an order
restricting each parent's ability to indoctrinate the children in a manner promoting their
alienation or rejection of the other parent, awarded joint custody of the children and division
of the marital property, and denied attorney's fees to plaintiff. Both parties appealed. On
appeal, the court affirmed the judgment, holding that the order was supported by substantial
evidence and that the order was intended for a wholly secular purpose: limiting the emotional
harm to the children caused by negative messages presented by defendant's religion. The
court further held that the lower court's award of joint custody was within its discretion
because plaintiff had not shown any conflict other than inability to reconcile religious
differences. The division of the marital estate, and denial of attorney fees, were also within its
discretion.
 OUTCOME: The court affirmed the judgment of the lower court, holding that its finding that
the harm to the children by exposure to defendant husband's religious beliefs was so
substantial as to warrant a limitation on defendant's religious freedom was supported by
substantial evidence. The court further held that the lower court's award of joint custody, the
division of the marital estate, and denial of attorney fees were within its discretion.
 NOTES: Most of the time courts do not want to be in the position to saying that you can’ t
expose your children to your religion. This was considered substantial harm because he was
doing more than exposing them, he was frightening them with not only they would but also
their mother would be going to hell if they did not practice his religion, this is not about
religion but rather the harm that it was causing. The psychological harm was that he was
terrifying the children. This is not a case of religious freedom. Para. 67 pg. 553, they won’t
allow one parent to negatively affect the relationship of the other parent via religion.

McMillen v. McMillen (p 554)

 PROCEDURAL POSTURE: Appellant, a divorced father, sought review of the judgment of
the superior court (Pennsylvania), which vacated a trial court's award to him of the general
custody of his son. By vacating the trial court's judgment, the general custody of appellant's
son remained with appellee mother.
 OVERVIEW: Appellant father and appellee mother were divorced. Appellee was originally
given primary custody of the couple's child. The child repeatedly and steadfastly expressed
his preference to live with appellant. Six years later, a trial court awarded general custody of
the child to appellant. The trial court found that the child's best interests would be served
most appropriately by placing the child in the custody of appellant because of the child's
desire to live with appellant as well as the fact that each home was a suitable environment.
The custody order was vacated by the court below. The judgment of the court below was
reversed on appeal and the trial court's order was reinstated. First, the court found no abuse
of discretion in the amount of weight afforded the child's preference. The record showed that

Family Law, Fall 2010 42

 the child's preference to live with his father was supported by more than sufficient good
reasons. Moreover, the court found no abuse of discretion in the trial court's conclusion that
the child's best interests would be served more appropriately by placing him in his father's
custody because the child's preference tipped the evidentiary scale in favor of appellant.
 OUTCOME: The judgment of the court below, which vacated a trial court's award of child
custody to appellant father, was reversed and the trial court's order was reinstated. The trial
court's finding that the best interests of a child would be served most appropriately by placing
the child in the custody of appellant was not an abuse of discretion because both parent's
homes were suitable and because child preferred to live with father.
 NOTES: Most judges do not ask leading questions, they try and elicit answers about their
life, what is your life like with mom or dad, to get an idea of what is happening. What they do
or don’t act, and what is good or bad for them. Very few directly interview the children.
Children are generally never questions in open court, generally in judge’s chambers.
Attorneys can insist on being present. If a child knows that mom and dad’s attys are standing
behind me it is a chilling effect, knows they will tell mom and dad, it is still a difficult question
to listen to children, when and how. Every jurisdiction has a preference on this, Florida says
around the age of 12, the court should give preference to the child’s issue.
 In reality the court looks for consistency and stability for the children.
 The standard for a modification of custody is a substantial change in circumstances—many
courts do not consider age as a substantial change.
 Notes pg. 556 #1
 The growing trend toward recognizing the rights of children might suggest that the right
answer is yes. Certainly in a situation where the parents are equally fit to assume custody,
and both want custody, then the temptation to maximize happiness by allowing the child’s
preference to control seems almost irresistible. Turning to the child’s preference may be a
way to avoid this agony as much as it is an objective way to decide what is best for the child.
 #2 the uniform probate code, section 5-206 gives a minor of 14 years or more the right to
“nominate” his guardian unless his choice is “clearly contrary to the best interest of the
minor”
 The older the children get the harder it will be to tell them where to live.

Rose v. Rose:
 the courts decide
 court did not really like Steve.
 The only review here is the abuse of discretion

Schult v. Schult (p 560)

 PROCEDURAL POSTURE: Appellant guardian ad litem challenged a judgment of the
Appellate Court (Connecticut), which affirmed the granting of sole custody of appellee child
to appellee grandmother. Appellant claimed it was an abuse of discretion to permit appellee
child's attorney to advocate a position regarding custody contrary to that of appellant.
 OVERVIEW: During a bitterly contested divorce, appellant guardian ad litem was appointed
for appellee child at the request of appellee mother and the trial court also appointed an
attorney to represent appellee child. At trial, appellant testified as a witness and advocated
granting custody to appellee mother. Appellee child's attorney argued that custody should be
granted to appellee grandmother. The trial court overruled appellant's objections to the
position advocated by appellee child's attorney and granted custody to appellee
grandmother. The appellate court affirmed the judgment and the court affirmed. The court
held that because the trial court determined it was in the best interests of appellee child, it
was permissible for appellant and appellee child's attorney to advocate different positions.
Because the case was difficult and there were concerns about child abuse if appellee child
was returned to appellee mother, the court held it was not an abuse of discretion for the trial

Family Law, Fall 2010 43

 court to hear both positions. The court held that although ordinarily the attorney should look
to the guardian, such action was not required under the circumstances of the case.
 OUTCOME: The court affirmed the granting of custody of appellee child to appellee
grandmother. The trial court did not abuse its discretion by allowing the attorney for appellee
child to advocate a position adverse to that of appellant guardian ad litem.
 NOTES: Court is going to look at what is the obligation to the child.

Uniform Marriage and Divorce Act

Page 612

Both parents should have relationships with the children when possible.
The court may modify visitation, in the best interest of the child, based on substantial/material
change in circumstances.
Eldridge v. Eldridge (p 613)
 PROCEDURAL POSTURE: Subsequent to the parties' divorce, custody of their children was
awarded to appellee. Appellant then moved the trial court to expand her visitation. The trial
court allowed appellant unrestricted overnight visitation with the parties' older child. On
review, the Tennessee court of appeals reversed, finding an abuse of discretion by the trial
court. The supreme court granted review.
 OVERVIEW: The court of appeals modified the trial court's visitation order to prohibit the
presence of appellant's partner in the home during the child's overnight visitation with
appellant. The court of appeals failed to identify any legal or factual error by the trial court
that constituted an abuse of discretion and failed to establish how its ordered modification
would cure the trial court's supposed error. It was not the function of an appellate court to
tweak a visitation order in the hopes of achieving a more reasonable result than the trial
court. Appellate courts corrected errors. When no error in the trial court's ruling was evident
from the record, the trial court's ruling had to stand. There was no evidence in the record that
the child had been, or would be, subject to physical or emotional harm from overnight stays
with appellant while appellant's partner was present in the home, or was there evidence that
the child's moral well-being would be jeopardized if the trial court's visitation order were
implemented. The evidence supported a reasonable conclusion that unrestricted overnight
visitation was in the child's best interests.
 OUTCOME: The judgment of the court of appeals was reversed and the judgment of the trial
court was reinstated because there was no evidence the trial court abused its discretion in
entering the visitation order modified by the court of appeals, or was there evidence the child
had been, or would be, harmed as the result of the trial court's order. The trial court's order
was in the child's best interests.

Zummo v. Zummo (p 618)

 PROCEDURAL POSTURE: Appellant, a divorced father, challenged an order from a trial
court (Pennsylvania), which prohibited appellant from taking his children to religious services
contrary to the Jewish faith during periods of lawful custody or visitation. Appellant argued
that the trial court erred in relying on an oral prenuptial agreement, and that the order
violated his constitutional rights and constituted an abuse of discretion.
 OVERVIEW: The father challenged an order that prohibited him from taking his children to
religious services other than those of the Jewish faith during periods of lawful visitation.
Appellant argued that the order violated his constitutional rights. The parties had orally
agreed prior to marriage that any children would be raised as Jews, and during the marriage
the children were raised as Jews. The trial court held that it was in the children's best
interests to preserve the stability of their religious beliefs. The trial court also based its order
on the fact that the father's practice of Catholicism was sporadic while appellee mother's
practice of Judaism was active. Rejecting the precedential authority cited by the lower court,
the appellate court reversed the order because the decision to give the oral prenuptial

Family Law, Fall 2010 44

 agreement any significance was constitutionally impermissible. Holding that U.S. Const.
amend. I specifically preserved the essential religious freedom of individuals, including the
right to shape the lives of their children, the appellate court held that, while a parent's
religious freedom might yield to compelling interests, it could not be bargained away.
 OUTCOME: The court vacated that part of the order that prohibited the father from taking his
children to religious services contrary to the Jewish faith, holding that the constitutionally
recognized parental authority was not extinguished by divorce. The court held that parental
authority included the right to pursue whatever course of religious indoctrination that a parent
saw fit to engage in during periods of lawful custody or visitation.

Baures v. Lewis (p 605)

 PROCEDURAL POSTURE: A Superior Court, Appellate Division (New Jersey) judgment
affirmed the denial of P custodial mother's request to remove herself and her child out of
New Jersey after D noncustodial father objected. P appealed. The Supreme Court of New
Jersey granted certification.
 OVERVIEW: The parents were divorced. Their child had pervasive developmental disorder,
a form of autism, and was receiving special treatment in New Jersey. P was receiving
physical help from her parents, but her parents' home was Wisconsin. P's financial picture
was tight. P wanted to move to Wisconsin to live near her parents. P described the special
programs available there. D father objected to the move. Therefore, N.J. Stat. Ann. § 9:2-2
required the courts to approve the removal. Section 9:2-2's purpose was to preserve the
familial relationship rights of the noncustodial parent and the child. The supreme court
clarified in detail the procedural and substantive requirements for a court to give its removal
approval and established a 12 factor test to determine whether the move was inimical to the
child's interests. Visitation was but one element, not an independent prong. The burden was
on the custodial parent, who sought to relocate, to prove two things: a good faith motive and
that the move was not inimical to the interests of the child. The supreme court remanded for
the trial court to follow the enunciated tests and procedure.
 OUTCOME: The supreme court reversed the judgment and remanded the matter for further
proceedings consonant with their opinion.
 NOTES: there is a presumption today, including in Florida, that if you can meet the two
prongs, relocation will be granted.

Chaddick v. Monopoli (p 665)

 PROCEDURAL POSTURE: Petitioner mother sought review of the decision of the Fifth
District Court of Appeal (Florida) where the court dismissed her petition in an action for
custody of her two children. A Virginia court had awarded custody to respondent father, and
the Florida judge had dismissed the petition under the Uniform Child Custody Jurisdiction
Act, Fla. Stat. ch. 61.1302 -61.1348 (1997).
 OVERVIEW: Petitioner mother sought review of two cases in direct conflict, related to the
communication between a Florida judge and a judge in Virginia, who both had the same
family law cause before them. Petitioner was awarded custody of two children by a
Massachusetts court, with respondent father to have summer visitation rights. Petitioner
moved to Florida, and respondent to Virginia. Petitioner sent the children to respondent in
Virginia, but an airline would not permit them to travel back to Florida without petitioner's
address, which she refused to provide. Respondent filed a change of custody motion with a
Virginia court, which was granted. Petitioner cooperated in Virginia, and when she lost there,
sought redress in a Florida court. The Florida judge communicated with the Virginia judge
and dismissed petitioner's action pursuant to the Uniform Child Custody Jurisdiction Act,
Fla. Stat. ch. 61.1302 -61.1348 (1997).The Florida supreme court affirmed the trial court's
dismissal of the petition under the circumstances of the case. The supreme court
disapproved of the conflicting case and approved the district court's decision.

Family Law, Fall 2010 45

  OUTCOME: The state supreme court approved of the district court's dismissal of petitioner
mother's action for child custody, where a sister state court had granted custody to
respondent father because, under the provisions of a statute of the first state, the sister state
had exercised its jurisdiction in substantial conformity with that statute
 NOTES: Another act was the Federal Parental Kidnapping Prevention Act (FPKPA). Mother
voluntarily appeared in Virginia court after father filed suit. This subjected her to Virginia
jurisdiction. She should have appeared specially and contested Virginia’s jurisdiction to begin
with. She isn’t entitled to a second bite of the apple (in Florida after Virginia ruled against
her).

Uniform act – a model (promulgated by a uniform commission) that is not law; it may be adopted in
full or in part or not at all by the individual states. Statutes are actually law while uniform acts are not
unless adopted. Congress cannot make state law.

Troxel v. Granville (p 621)

 PROCEDURAL POSTURE: On writ of certiorari to the Supreme Court of Washington;
petitioners appealed the judgment of the state supreme court, reversing an order which
granted their petition for visitation of the grandchildren, and holding that Wash. Rev. Code §
26.10.160(3) unconstitutionally interfered with the fundamental rights of parents to rear their
children.
 OVERVIEW: Petitioner grandparents petitioned a Washington Superior Court for the right to
visit their grandchildren. Respondent mother opposed the petition. The case ultimately
reached the Washington Supreme Court, which reversed the order of visitation entered by
the superior court. The court granted certiorari. The court found that the visitation order was
an unconstitutional infringement on respondent's fundamental right to make decisions
concerning the care, custody, and control of her two daughters. The state superior court
failed to accord the determination of respondent, a fit custodial parent, any material weight;
announced a presumption in favor of grandparent visitation; and failed to accord significant
weight to respondent's already having offered meaningful visitation to petitioners. The court
concluded that the Due Process Clause of the United States Constitution did not permit a
state to infringe on the fundamental right of parents to make child rearing decisions.
Accordingly, the court held that Wash. Rev. Code § 26.10.160(3), as applied in this case,
was unconstitutional.
 OUTCOME: Judgment affirmed; the visitation order in this case was an unconstitutional
infringement on respondent's fundamental right to make decisions concerning the care,
custody, and control of her two daughters.
 NOTES: This case is about standing – the federal constitution requires this statute to be
unconstitutional as it interferes with a parent’s rights. Many states, lawyers, courts, etc.
thought this case says no one but parents can have standing. This is not the case. The court
will weigh a number of factors

ECONOMICS OF DISSOLUTION

 The family is the key instrument of the distribution of wealth in this family.
 Divorce is the major determinant of who lives in poverty.
 Divorce, like marriage, is controlled by states, so every state has its own policy on
distribution of assets.

Types of Distribution

 Marital property – all property acquired during marriage by either party regardless of type
[ON EXAM]

Family Law, Fall 2010 46

  Most states exclude property brought into the marriage, gifts to one, inheritance
 Alimony – distribution of family income to a spouse, based on need and ability to pay
 Child support – distribution of family assets to provide for care of child

At common law, there was no divorce.

States use a list of factors that they MAY consider; some jurisdictions require courts to state which
factors are considered.
Some states are vague while others are specific about support.

Property Distribution

Canakaris v. Canakaris (not in book)

 PROCEDURAL POSTURE: The court reviewed a decision of the First District Court of
Appeal (Florida), which reversed the trial court's award to petitioner wife of respondent
husband's undivided one-half interest in their marital home as lump sum alimony, the award
of permanent periodic alimony, and attorney's fees.
 OVERVIEW: In a dissolution proceeding ending a 33-year marriage, the trial court awarded
petitioner wife respondent husband's undivided one-half interest in their marital home as
lump sum alimony, $ 500 weekly permanent periodic alimony, and attorney's fees. The
district court reversed. The court reversed the district court and reinstated the trial court's
judgment. No rule of law dictated the property disposition and alimony terms; the trial judge
had discretion to establish equitable terms. Petitioner helped respondent in his profession
and business and maintained the home while he became successful in his careers. The
lump sum award was clearly within the trial court's discretion and was justified as part of an
equitable distribution of the parties' property acquired during their marriage. The periodic
alimony award was reasonable given the parties' income, length of the marriage, standard of
living, age and education, and the totality of financial circumstances. Finally, the award of
attorney's fees was proper to avoid an inequitable diminution of the fiscal sums granted
petitioner.
 OUTCOME: The court quashed the district court's decision reversing petitioner's award of an
undivided one-half interest in the marital home as lump sum alimony, the award of
permanent periodic alimony, and attorney's fees, and reinstated the trial court's judgment
because it was reasonable and within the trial court's discretion
 District court reversed this final judgment, holding the award of the marital home as lump
sum alimony improper because “(a) review of the record reveals no special equity of the wife
in the marital home.”
 It remanded the periodic alimony award to the trial court for the limited purpose of
“determining, based upon evidence, the needs of the wife.”
 Finally, the district court concluded that the award of attorney's fees was improper because
the wife had the ability to pay for the services of her attorney.

Lump Sum Alimony

 District court in the instant decision held that the award of the husband's one-half interest to
the wife as lump sum alimony was inappropriate because she had no “special equity” in the
marital home.
 Term “special equity” was created to describe a vested interest in property brought into the
marriage or acquired during the marriage because of contribution of services or funds over
and above normal marital duties. This vested interest is not alimony.
 Although the statutory prohibitions underlying the formulation of the special equity doctrine
no longer exist, this vested interest aspect of the doctrine remains a viable part of our case
law.

Family Law, Fall 2010 47

  The term “special equity” has also been used to justify an award of lump sum alimony. When
employed in this context, it concerns only whether the equities of the case justify a lump sum
award. The property interest or lien concept of “special equity” is entirely distinct from the
determination of parties' equities in a lump sum alimony award.
 The term “special equity” should not be used when considering lump sum alimony; rather, it
should be used only when analyzing a vested property interest of a spouse
 Ordinarily . . . a lump award should be made only in those instances where some special
equities might require it or make it advisable; for instance, where the wife may have brought
to the marriage, or assisted her husband in accumulating, property.
 A lump sum allowance of permanent alimony is not “fit, equitable and just” unless the
husband is in a position to make payment of the sum so granted over and above the
requirements attendant upon the maintenance of his business or employment .
 A judge may award lump sum alimony to ensure an equitable distribution of property
acquired during the marriage, provided the evidence reflects: a justification for such lump
sum payment, and financial ability of the other spouse to make such payment without
substantially endangering his or her economic status
 Although the award of lump sum alimony is not dependent upon a finding of a prior vested
right, there does arise upon the entry of a final judgment of a lump sum award a vested right
which is neither terminable upon a spouse's remarriage or death nor subject to modification.
 It may consist of real or personal property, or may be a monetary award payable in
installments

Permanent Periodic Alimony

 Permanent periodic alimony is used to provide the needs and the necessities of life to a
former spouse as they have been established by the marriage of the parties.
 The two primary elements to be considered when determining permanent periodic alimony
are the needs of one spouse for the funds and the ability of the other spouse to provide the
necessary funds.
 The criteria to be used in establishing this need include the parties' earning ability, age,
health, education, the duration of the marriage, the standard of living enjoyed during its
course, and the value of the parties' estates.
 General rule: permanent periodic alimony is terminated upon the death of either spouse or
the remarriage of the receiving spouse.
 Once instituted, permanent periodic alimony is subject to modification upon a substantial
change of circumstances, and may be converted to rehabilitative alimony if the
circumstances warrant such a change in the alimony scheme.
 Although rehabilitative alimony is not at issue in these proceedings, it is necessary to define
its purpose in order to distinguish it from permanent periodic alimony.
 The principal purpose of rehabilitative alimony is to establish the capacity for self-support of
the receiving spouse, either through the redevelopment of previous skills or provision of the
training necessary to develop potential supportive skills.

Judicial Discretion of the Trial Judge

 The judge possesses broad discretionary authority to do equity between the parties and has
available various remedies to accomplish this purpose, including lump sum alimony,
permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in
property, and an award of exclusive possession of property.
 The trial court's discretionary power is subject only to the test of reasonableness, but that
test requires a determination of whether there is logic and justification for the result.

 Has been overturned by the supreme court.

Family Law, Fall 2010 48

  Special Equity: interest in separate property of the spouse at the divorce which you acquire
by contribution to the spouses separate property
 Not a marital asset, but her contribution has given her an interest in it.
 Gave a non titled spouse and interest in the separate property of the spouse.
 Marital property: all property acquired during the marriage by either spouse regardless of
title.
 Excludes property that was inherited, gifts and awards (personal injury)
 Bought with marital funds, no matter who earns the money in the marriage they are marital
funds.
 Case is the precursor of equitable distribution “special equity”. Florida is now an equitable
distribution state.

O’Brien v. O’Brien (not in book)

 PRIOR HISTORY: Cross appeals, by permission of the Appellate Division of the Supreme
Court in the Second Judicial Department, from an order of said court, entered February 11,
1985, which modified, on the law, and, as so modified, affirmed a judgment of the Supreme
Court at Special Term (Richard J. Daronco, J.; opn 114 Misc 2d 233), entered in
Westchester County, inter alia, (a) granting a divorce to defendant wife, (b) granting
defendant maintenance arrears against plaintiff, (c) decreeing that the medical school
degree and license to practice medicine obtained by plaintiff during the marriage are marital
property and subject to equitable distribution, (d) making a distributive award to defendant in
the total sum of $ 188,800 as her equitable share of said medical degree and license, (e)
directing plaintiff to maintain a life insurance policy for the benefit of defendant to insure the
payment of the $ 188,800, and (f) awarding expert witness fees to defendant's expert, and
counsel fees to defendant's counsel. The modification consisted of deleting the decretal
paragraphs which (1) decreed that said medical degree and license are marital property
subject to equitable distribution, (2) made the distributive award to defendant, (3) directed
plaintiff to maintain a life insurance policy for the benefit of defendant, and (4) awarded
expert witness fees. The Appellate Division remitted the matter to Supreme Court for further
proceedings. The following question was certified by the Appellate Division: "Was the order
of this court dated February 11, 1985 properly made?"
 DISPOSITION: Order modified, with costs to defendant, and case remitted to the Appellate
Division, Second Department, for further proceedings in accordance with the opinion herein
and, as so modified, affirmed. Question certified answered in the negative.
 PROCEDURAL POSTURE: Defendant appealed the decision of the Appellate Division of the
Supreme Court in the Second Judicial Department (New York), which reversed the trial
court's holding that plaintiff's license to practice medicine was a marital asset in a divorce
case.
 OVERVIEW: Plaintiff and defendant divorced after being married over nine years, during
which time plaintiff attended medical school and received a license to practice medicine,
which was the only asset the parties had at time of the filing of their divorce. Defendant
worked while plaintiff took full-time medical school classes; defendant's salary contributed to
the couple's expenses during this time. The court held that according to the Equitable
Distribution Law, N.Y. Dom. Rel. Law § 236(B)(c), (d), there were only two types of property,
marital and separate, and the court held that the medical license was a valuable property
right and part of the marital estate.
 OUTCOME: The decision that a medical license was not a marital asset was reversed
because the statute stated that marital assets were either separate or marital assets and a
license to practice medicine acquired during the marriage was an asset as considered by the
statute.
 Ct held: (1) license to practice medicine, acquired during marriage, is marital property subject
to equitable distribution; (2) working spouse is entitled to equitable portion of license, not

Family Law, Fall 2010 49

 return of funds advanced; (3) there was no suggestion that wife was guilty of fault sufficient
to shock conscience of court, as required for fault to be proper consideration in equitable
distribution of marital property; (4) Appellate Division's affirmance of award of counsel fees
was not an abuse of discretion; and (5) wife was entitled to award for fees of expert witness
who evaluated husband's medical license.
 NOTES: Before O’brien there had been many cases on what could be considered marital
property, before this case it was considered only tangible things. “pick up and handle, dirt”.
This case was a huge shift away from this, defined marital property as anything that
contributes to the enhanced earning capacity of the marriage.
 Criteria for Equitable distribution: 1. What is marital property? Enhanced earning capacity. 2.
How should it be valued?
 NY has very strict teaching requirements, if you don’t get your master’s degree within 5 years
you lose your teaching license, so she gave up her ability to have a permanent teaching
position.
 Concept of contribution: determines how something should be valued.
 He says that she should only be paid back what she had put in
 Court says that marriage is an economic partnership, and no matter what state you are in,
doesn’t depend who makes the most money. That’s what the NY court was looking at. They
decided that medical license is marital property in NY, then they have to talk about how to
value it.
 New license v. old license; a new license has no present value, until he starts using we don’t
currently have an amount. old license: would be valued as income, merged into the
marriage, we don’t have to value it separately.
 Equitable distribution is the distribution of the marital assets, we look at marital property to
see what assets they are then we look at how to divide it. Then when we divide it, it is an
entitltement it is NOT alimony. You can get a distribution of the assets on Monday and then
get remarried on Tuesday and nothing will change, not based on need.
 Once it has been argued and split you can’t go back.
 Alimony can change, it is not constant.
 Receiver would rather get the money in an equitable distribution split; and entitltemen to the
marital assets
 Alimony: ability to pay and the need.
 MOST STATE DO NOT FOLLOW O’BRIEN, DEGREES, CELEBRITY STATUS BUT THEY
WILL LOOK AT THE CONTRIBUTION OF THE MARRIAGE AND MAY DIVIDE IT THE
SAME..
 Florida does not consider a degree marital property but what matters is how the state will
divide the property by contribution.

Postema v. Postema (p 713)

 PROCEDURAL POSTURE: Plaintiff wife and defendant husband challenged the decision of
a trial court (Michigan), which concerned a property settlement that was issued as part of the
wife and husband's divorce proceedings. Specifically, they challenged the value placed on
the husband's law degree.
 OVERVIEW: A wife supported her husband while he attended law school. The parties moved
to another city for the husband's education. The wife postponed her education, took on most
of the domestic duties, and the stress of the husband's law school education. The parties
separated shortly after the husband's graduation. As part of the divorce action, the trial court
valued the husband's law degree and divided it to equalize the property settlement between
the parties. Both the husband and wife appealed. The court remanded the matter to the trial
court and held that the trial court had to consider the law degree in a property distribution,
not as part of a determination of alimony. However, rather than looking only to the
commercial value of the degree, where the degree was the product of a concerted family

Family Law, Fall 2010 50

 effort, a trial court had to consider equitable principles. The trial court had to take into
account the sacrifices, efforts, and contributions toward attainment of the degree, including
the length of marriage after attainment of the degree, the sources and extent of the student's
financial support, and the overall division of the marital property.
 OUTCOME: The court remanded to property division determination to the trial court for
reconsideration of the value of the husband's law degree based on equitable principles
 Ct’s TEST for valuation: Any valuation of a non-student spouse’s equitable claim involving an
advanced degree involves a 2 step analysis: (1) An examination of the sacrifices, efforts, &
contributions of the non- student spouse toward attainment of the degree; and (2) Given
such sacrifices, efforts, & contributions, a determination of
 NOTES: The holding in Postema is the minority rule. Cts in a majority of states have held
that educational degrees don’t constitute marital property. They are saying that the law
degree was marital property. The Postema court calls it the end product of a concerted
family effort. They do not value it the same way the NY court would have: they weren’t
looking at future amounts, they were looking at what she had put in. The degree=marital
property but when they value it they do not follow enhanced earning potential, they are
looking at a present split only; what she put in.

Elkus v. Elkus (p 719)

 PROCEDURAL POSTURE: Defendant appealed the judgment of the Supreme Court of New
York County (New York) ruling that plaintiff's celebrity status was not marital property subject
to equitable distribution.
 OVERVIEW: Plaintiff and defendant divorced, and plaintiff moved for an order determining
that plaintiff's celebrity status and any income derived from it did not constitute marital
property subject equitable distribution. The trial court determined that plaintiff's celebrity
status was not marital property and defendant appealed. On appeal, defendant argued that
plaintiff's increased celebrity status was due in part to defendant's sacrifices and should be
included in their marital property. The court agreed, holding that plaintiff's celebrity status
was the same as a that of a licensed professional and subject to equitable distribution.
Furthermore, the court held that the appreciation of plaintiff's career that resulted from
defendant's contribution was also marital property subject to equitable distribution.
Consequently, the trial court's decision ruling that plaintiff's celebrity status was not marital
property was reversed, and the case was remanded to the trial court for further divorce
proceedings.
 OUTCOME: Judgment ruling plaintiff's celebrity status was not marital property subject to
equitable distribution was reversed, because plaintiff's success was attributable in part to
defendant's contributions
 NOTES: Ct held: It is the nature & extent of the contribution by the spouse seeking equitable
distribution, rather than the nature of the career, whether licensed or otherwise, that should
determine the status of the enterprise as marital property. They are extending the concept of
what marital property is to anything that contributes to the enhanced earnings of the
marriage: here her talent. Professional good will: enhances the earning capacity of the
marriage, where you have a good reputation. Extending it to celebrity status. The other
spouse contributes substantially. These are minority views.

61.075 Equitable distribution of marital assets and liabilities.--

 See separate document for text

Dividing Property Equitably

Ferguson v. Ferguson (p 709)

 PROCEDURAL POSTURE: Appellant husband sought review of a final judgment of divorce
entered by the Newton County Chancery Court (Mississippi), awarding a divorce to appellee

Family Law, Fall 2010 51

 wife, together with custody and support of the minor child, and denying the husband's
counterclaim for divorce and custody of the child.
 OVERVIEW: The wife filed for divorce on the grounds of adultery and requested permanent
custody of the minor child. The husband denied the adultery charge, counterclaimed for
divorce based on habitual cruel and inhuman treatment, and also sought custody of the
child. The chancellor denied the husband's requests and awarded the wife a divorce,
custody, child support, and alimony. The chancellor's judgment also included a division of
marital property and future interests in the husband's retirement and pension plans. The
court, en banc, affirmed in part and reversed in part. The court adopted guidelines for the
equitable division of marital property and remanded for a re-evaluation of the marital division,
which included the wife's interests in the retirement and pension plans. The court affirmed
the awards for divorce and custody. The court held that the charge of adultery was
established by clear and convincing evidence and that the chancellor's finding that the
husband was morally unfit to be a parent was not an abuse of discretion.
 OUTCOME: The court affirmed the granting of a divorce to the wife, together with custody
and support of the minor child. The court adopted guidelines to aid chancellors in the division
of marital property under the equitable property division method, reversed the award of
marital assets, and remanded to the chancery court to re-evaluate the property division in
light of the guidelines
 NOTE: Ct held that the chancellor was w/I his authority to order Billy to effect a transfer of
title to Linda to the marital home & the surrounding 4 acres to accomplish an equitable
division. Affirms the granting of a divorce to the wife, together w/ custody & support of the
minor child. W/ adoption of guidelines to aid judges in division of marital prop. under the
equitable prop. division method, this Ct reversed the award of marital assets & remands the
case to the chancery ct to re-evaluate the marital division in light of these guidelines.

Note: Mississippi in 1994 first steps into equitable distribution.

Siegel v. Siegel
 PROCEDURAL POSTURE: The court (New Jersey) considered a question of res nova of
whether defendant husband's gambling losses incurred before the filing of the divorce
complaint by plaintiff wife, but after the marriage was irreparably fractured, fell within the
matrimonial "pot" as a credit to distributable assets, or whether it equated with a "dissipation"
of funds to be borne solely by defendant who placed the family treasury at risk.
 OVERVIEW: The issue before the court was one of first impression. Defendant husband
incurred a casino gambling loss before plaintiff wife filed the divorce complaint, but after the
marriage had already deteriorated to a terminal level. Defendant's gambling indebtedness
was evidenced by a note from him to a closely-held corporation of which he was an equal
one-third shareholder. The note was executed 10 days after the complaint for divorce was
filed, purportedly for "losses" which had already been sustained. Previously the court denied
defendant's application to compel plaintiff to execute a joint income tax return during the year
in which the debt was incurred. Defendant, with full knowledge of that ruling, then forged
plaintiff's signature to the return. In light of the circumstances, the court required that
defendant fully assume the gambling indebtedness. To require that plaintiff assume any of
the indebtedness would have resulted in inequity.
 OUTCOME: The court required defendant husband to fully assume his gambling
indebtedness because it would have been inequitable for plaintiff wife to assume
responsibility for defendant's debt.
 NOTES: Requiring D to fully assume the gambling indebtedness not only places the parties
where they belong, but also where they positioned themselves, especially since this ct is
unconvinced of the actuality of the alleged losses, or P’s knowledge of them assuming its
occurrence. Ct held: The debt belongs to the gambler, w/o offset or credit. The courts do not
like people who come into the court with unclean hands. He has incurred a substantial

Family Law, Fall 2010 52

 amount of debt, he wanted this to be considered marital debt because he brought it in when
they were married. Need to look at a concerted family effort, or else it is just one person
squandering what they brought in. Courts don’t like the idea that you are not being truthful to
the court.

Marital home: most of the time the marital home will either stay with the person who has the children
if they can keep it up, it can be sold and divided, but there are some tax consequences. As long as
you remain on the note you are liable. If the other person defaults the creditors will come after you,
no matter the agreement, proponent for selling and splitting.

Tax situation: if the house is not your primary residence you will lose “homestead” and if you sell it
10 years later after everyone moved out and the kid is 18 but the husband has moved out, when the
house is sold he gets stuck with the capital gains tax because the IRS says that in order to avoid
paying capital gains tax you would have had to lived in the house 2 of the 5 years before the sale.
 If the other party is not buying them out and the one party is staying on the note, and if they
have not lived there in 2 of the 5 years preceding the sale; they will get slammed with fees.
Capital gains have to be offset in the settlement agreement.
 being on the note and liable
 capital gains tax issue

Alimony
 Distribution of income between the two spouses, it is not a gift.
 Based on
o The ability to pay on the part of one spouse
o The need on the part of the other spouse
 YOU have to have both parts
 Status of the marriage; standard of living, usually for long term marriages and the more
needy spouse will keep the same status as they had before WHERE THERE IS MONEY TO
DO SO
 Rehabilitation: similar to concept of need but it is aimed at the short term and not the long
term, you do not want to foster dependence allowing the needier spouse to move on
 Can depend on the length of the marriage and can replace the status
 Recipient spouse receives an earned benefit, NOT A GIFT

Distribution of property is an entitlement; different states handle it differently

 Community property – started out as statutory law; only in 8 states today (AZ, CA, ID, LA,
NV, NM, TX, and WA); only 3 of those states have strict community property (literally a 50/50
split); whoever is titled owner is the manager of the property and can do whatever but they
act in a fiduciary capacity (must act in good faith, can’t harm other party); less protection to
creditors; at death, spouses can leave their half to heirs; these states do not recognize
tenancy by the entirety
 Equitable distribution - started out as common law, and still referred to as common law
distribution or equitable distribution even though it’s all codified now; property acquired
during the marriage or merged during the marriage; property that is separate remains
separate; you have to show the contribution to increase value; in community property you
don’t; creditors can attach separately owned property

Laing v. Laing (p 724)

 PROCEDURAL POSTURE: Appellant former husband sought review of a decision in favor of
appellee former wife by the Superior Court of the State of Alaska, Third Judicial District,
regarding property division in a divorce action.
 ISSUE: Is non-vested pension a material property for purposes of property distribution?

Family Law, Fall 2010 53

  OVERVIEW: The husband claimed that the property distribution award in the divorce action
was improper because the wife's award included a full credit for the husband's nonvested
pension. The court affirmed the property distribution award but reversed and remanded the
award regarding the pension, requiring the trial court to redistribute the assets in light of the
pension's improper distribution. The court held that the pension was a marital asset to be
divided by how much the husband was to receive, not on how much he might have received.
Thus, the trial court either had to retain jurisdiction for distribution when the pension was paid
or issue a qualified domestic relations order if the Retirement Equity Act of 1984, as it
applied to the Employee Retirement Income Security Act of 1974, applied. There was
sufficient evidence to support the value of the real property based on the parties' stipulations
and the finding of the wife's declining health. The wife's premarital land was properly
considered in the property distribution and the husband was correctly ordered to temporarily
make the payments on the property to prevent its foreclosure.
 OUTCOME: The court affirmed the decision for the wife as it related to the property
distribution award, but reversed the judgment for the wife regarding the distribution of the
nonvested pension.
 NOTES: It is marital property, then you have to determine how to value it: present value or
reserved jurisdiction? Present value is too speculative. Remember this is not coming from
the pension – it’s not being distributed; it’s actually an offset. This court went with reserved
jurisdiction (the majority view today) – the pension will not be distributed until and unless it
vests, then the title holder is entitled to it as well as the spouse could then get his/her share;
typically this doesn’t occur until the title holder retires. A good family law attorney does not do
this. Instead, use a QDRO – qualified domestic relations order. Pensions are governed by
ERISA (employment retirement income security act) which is a very strict law. QDROs are a
two-step process: (1) get a pension evaluator during divorce stage to value the anticipated
amount of the pension (future = at the time of vesting/retirement); the parties will agree then
on what the split will be; (2) the evaluator sends his evaluation to the plan administrator who
tells the court how it must be paid out (lump sum payments or monthly payments); the court
cannot tell the plan administrator how to distribute; the non-titled spouse has to have the
same type of distribution as the titled spouse. This is signed by the court and is part of the
divorce decree. Remember that vested pensions are divisible, but you still may use a QDRO.

Mansell v. Mansell (not in book)

 PROCEDURAL POSTURE: Appellant husband, a retired military service member, sought
review of judgment from the Court of Appeal of California, Fifth Appellate District, which held
that the portion of military retirement pay waived by service member in order to receive
disability benefits was divisible marital property under the Uniformed Services Former
Spouses' Protection Act, 10 U.S.C.S. § 1408.
 OVERVIEW: The court reversed a judgment, which determined that state courts, consistent
with the federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C.S. § 1408,
could treat as property divisible upon divorce military retirement pay waived by the retiree in
order to receive veterans' disability benefits. Under the statute, a former spouse could
receive up to 50 percent of disposable military retirement pay. Disposable retirement pay
was defined as the total retirement pay minus certain deductions, including any amount
waived in order to receive disability benefits. The court held that the clear language of the
statute exempted portions of retirement pay waived in order to receive disability benefits from
the divisible amount. The court rejected arguments that the savings clause or the broad
purposes of the act required a different interpretation. While recognizing the possible
inequities of this provision to former spouses, the court stated that the clear language of the
statute could not be ignored.
 OUTCOME: The court reversed the judgment and held that the clear language of federal
Uniformed Services Former Spouses' Protection Act exempted that portion of the retirement

Family Law, Fall 2010 54

 pay that a service member waived in order to receive disability benefits from the amount of
divisible retirement pay upon divorce.
 NOTES: Service members injured during service may elect to swap out 20% of pension with
disability payments (which are non-taxable). The spouse doesn’t like this because then they
would not get a percentage of that 20%. US Sup Ct was held that (1) the Act pre-empted the
application of state community property or equitable distribution law to military retirement pay
that is waived by a retiree in order to receive veterans' disability benefits, (2) the Act could
not be read merely as a garnishment statute designed solely to set out the circumstances
under which, pursuant to a court order, the Federal Government will make direct payments of
retirement pay to a retiree's former spouse, and (3) the Act must be read literally, even
though such a reading might inflict economic harm on many former spouses of military
retirees, because a different reading would do violence to the Act's plain language and
ignore much of the legislative history. On remand, the State Appeals Court said this was not
about McCarthy but was a contract case in which the husband had agreed.

NOTE: Children are entitled from support from the disability portion of military pay even though
spouses are not entitled to spousal support from it.

CHILD SUPPORT

This is distributing the assets of the family for the benefit of the children, and is an entitlement.
Deviation from the child support order must be explained to the court which must approve.

 Custodial parent generally has far higher expenses than non-custodial parent.
 Child support is not meant to necessarily provide equal support but is meant to deflate some
of the costs of raising the children.
 Policies: child support is meant to provide all around general support and the non-custodial
parent is not entitled to an accounting, unless they can prove the custodial parent is abusing
the child support
 Generalizations: even after it theoretically ends (depends on state – 18-21, college, etc.), the
custodial parent generally still provides support to the child, even if they are away at college.
Florida and other states say a court cannot impose college costs. New York and other states
do include college expenses.
o There is a basic clause that says both parents agree to pay half the costs of a state
school including tuition, room/board, books; child is required to take loans, grants,
etc., first.
 Today there are child support guidelines in every jurisdiction
o These are always about the parents’ ability to pay and income
o There are certain standards but can vary greatly
o Expendable income is after normal deductions
o Later children from a subsequent relationship generally doesn’t lessen your
obligation to the first children; some jurisdictions will take them into consideration and
divide it more equitably (public policy that none of the children should be deprived)
 Policy is that child should be able to live in style they would have had if the marriage had
remained intact; the windfall is that the custodial parent also benefits

Schmidt v. Schmidt (p 784)

 PROCEDURAL POSTURE: P mother sought review of the judgment of the Circuit Court of
the Fourth Judicial Circuit of Moody County (South Dakota), which awarded a change in
custody of the eldest of three boys to D father, and the father sought review of the judgment
which required him to pay $ 250 monthly child support for the other two boys.
 OVERVIEW: The father and mother had three children and later divorced. By stipulation,
they agreed that the mother would receive custody of the three boys. At the divorce hearing,

Family Law, Fall 2010 55

 the trial court awarded custody of the boys to the mother. The father was ordered to pay $
375 monthly child support. Subsequently, he made a motion to modify the provisions in the
divorce decree. He requested custody of the oldest son and that all three boys be permitted
to reside with him during the summer months. The motion further requested that child
support obligations be modified accordingly. The son testified that he preferred to live with
his father. Evidence was also presented that the son was having problems in school and had
gotten into minor trouble with the law. The trial court awarded a change of custody of the son
to the father and required the father to pay $ 250 monthly child support for the other two
boys. The court affirmed in part the judgment, holding that the trial court did not err in finding
that the best interests of the son required modification of custody because it was evident that
he was having problems while in his mother's custody and preferred to live with his father.
 OUTCOME: The court affirmed in part and reversed and remanded in part the judgment,
which awarded a change in custody of the eldest of three boys to the father and required him
to pay $ 250 monthly child support for his other two boys.

What about when a paying parent reduces his income voluntarily? The court has the ability to impute
the income he could theoretically still make. If it’s involuntarily, the court will generally reduce the
child support.

In re Marriage of Bush (p 788)

 PROCEDURAL POSTURE: Appellant father and cross-appellant mother sought review of an
order from the Circuit Court of McLean County (Illinois), which entered a joint custody order
between the parents and decided child support.
 OVERVIEW: Appellant father and cross-appellant mother disputed the trial court's finding as
to appellant's status in a medical partnership and the inclusion of goodwill in the valuation of
the partnership. The parties also appealed on issues relating to child support, custody, and
visitation. On appeal, the court affirmed in part and reversed and remanded in part. The
court affirmed valuation of a partnership interest because testimony from the two experts
presented conflicting opinions which justified the court's decision. The trial court abused its
discretion when it ordered appellant to place child support arrearages in a trust fund for the
child because the order was not legally justified under Ill. Rev. Stat. ch. 40, par. 503(g)
(1987) and Ill. Rev. Stat. ch., par. 510 (1987). The trial court's decision to deny a contempt
finding was not against the manifest weight of the evidence. The trial court's overall award of
20 percent of appellant's net income was excessive for a child of such tender years and, as
such, constituted an abuse of discretion.
 OUTCOME: The court affirmed in part and reversed and remanded in part an order involving
the issues of child support, custody, and visitation in a case between appellant father and
cross-appellant mother. The court held that it was an abuse of discretion to order appellant
to place support arrearages in a trust and that the denial of a contempt order was not against
the manifest weight of the evidence.
 NOTES: Some states look just at the non-custodial parents’ income and ability to pay,
regardless if there is actual need. The concept of windfall varies with circumstances; it may
not be a windfall if the custodial parent doesn’t have the same level of income. Also,
“visitation” is not a term used in Florida anymore – now it’s “contact time”.

NOTES:
 Court shall determine the minimum amount of support by using guidelines.
 Unvested pensions are valued at present value; the jurisdiction is reserved until the actual
distribution.
 Anyone who has been married to someone 10 years or more is entitled to collect on his
social security, assuming they collect more on his than on her own; no limit so all ex-spouses
can do this no matter how many you have; it’s up to 50% of what he collects. This is a
protection that ordinarily would have to be paid out of welfare.

Family Law, Fall 2010 56

Murray v. Murray (p 791)
NOTE: Unexercised stock options have been held to constitute part of “gross income” for purposes
of calculating child support obligations.
Solomon v. Findley (p 791)
 PROCEDURAL POSTURE: D former husband sought review of a judgment from the Court
of Appeals (Arizona), which allowed Ps, former wife and daughter, to pursue their claim for
post-majority educational support in contract. D contended that any agreement with P former
wife was merged into their dissolution decree and that the obligation to perform the
agreement ended when P daughter reached majority.
 OVERVIEW: D former husband and P former wife incorporated a provision for post-majority
educational support for P daughter into their divorce decree. Ps filed a breach of contract
action against D after their attempt to enforce the provision in divorce court failed. The trial
court granted D's motion to dismiss. The court of appeals reversed the trial court's dismissal
and D sought review. The issue on appeal was whether the provision in question merged
into the decree of dissolution so as to bar a separate claim for breach of contract. The court
approved the court of appeals' judgment in favor of Ps. The court found that the post-majority
educational support provision did not merge into the dissolution decree. The court concluded
that the provision retained its independent nature and was enforceable as a contract claim
because the divorce court did not have authority to enforce it.
 OUTCOME: The court approved the judgment in favor of Ps, former wife and daughter. The
post-majority educational support provision did not merge into the dissolution decree and
was enforceable as a contract claim against D former husband because a divorce court did
not have authority to enforce it.
 NOTES: Where you include college expenses, you have to include enforcement of it. This is
a contract case – the provision was merged into the divorce decree. The trial court denied
the contempt action because it no longer had jurisdiction (child was no longer a minor.) The
trial court also denied the separate breach of contract agreement because it was merged in
the divorce decree = a catch-22. The appellate court remanded finding that the provision did
not merge into the decree.

Merger
 Contract + judgment of divorce
 The agreement (stipulation of settlement) merges into the judgment of divorce
 This allows contempt action rather than a separate plenary action for specific performance
 You can actually still bring both

Graham v. Graham (p 753)

 PROCEDURAL POSTURE: Appellant mother challenged an order of the Superior Court of
the District of Columbia, which modified prior alimony and child support orders after ruling
that an increase in appellee father's income was, by itself, an insufficient basis upon which to
modify the orders.
 OVERVIEW: A father was ordered to pay alimony and child support. His salary increased,
and the mother filed a motion for increased support payments. The trial court ruled that the
increased income was an insufficient basis upon which to modify the support order. On
appeal, the mother argued that the trial court applied an incorrect legal standard. The court
reversed and remanded the trial court's order. It held that the procedure followed by the trial
court did not comport with the standard for modification. A material change in either the
father's income or in the needs of the children and the mother could be the basis for
modification of the support order. The trial court could act to ensure, where there was a
material increase in the father's financial resources, that he did not increase his standard of
living without also increasing his children's standard of living.

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  OUTCOME: The court reversed the order modifying the prior alimony and support orders
and remanded the case for further consideration.
 NOTES: modification requires substantial change in circumstances.

Note (p 755)
 Court held that advanced age and medical condition was reasonable change in
circumstances warranting a reduction in alimony obligations.

Ainsworth v. Ainsworth (p 798)

 PROCEDURAL POSTURE: P mother challenged the judgment of the Caledonia Superior
Court (Vermont) that awarded her less than the amount calculated under the guidelines for D
father's support of the parties' children to avoid an inequitable result.
 OVERVIEW: The mother sought increased child support under the guidelines because the
original award was more than 15 percent lower than an amount calculated under the
guidelines. Although the trial court decided that the husband was not obligated to support his
stepson, it ordered him to pay the mother and their two natural children less than the
guideline amount to avoid an inequitable result. The court reversed and remanded. The trial
court had discretion to deviate from child support amounts calculated under the guidelines
based on the father's expenses in supporting his second family because support payments
were excludable from income used to determine the primary support obligation. It was
irrelevant whether the father was supporting a natural or stepchild, because the stepparent
support statute created a general obligation of support. The trial court abused its discretion in
finding that the strict application of the guidelines would have been inequitable because,
although it had evidence of the parties' incomes and expenses, its conclusions did not
specify the reasons for the amount of support awarded or show consideration of the statutory
factors.
 OUTCOME: The court reversed the judgment that awarded the mother less than the amount
calculated under the guidelines for the father's support of the parties' children to avoid an
inequitable result. The court remanded for more precise findings.
 NOTES: It depends on jurisdiction if “after” children (whether natural or step) alleviates your
support obligation to the previous children. In those jurisdictions that do, they will also look at
the new spouse’s income as well.

Child Support Enforcement v. Brenckle (p 825)

 PROCEDURAL POSTURE: Petitioner Alaskan officials filed suit for child support
enforcement against D father. A Massachusetts district court denied the father's motion to
dismiss or for summary judgment, and the father appealed. The Supreme Judicial Court on
its own initiative transferred the case from the Appeals Court.
 OVERVIEW: The father's divorce decree assessed child support payments against the
father, which were to be paid until the child reached majority and to continue if the child
enrolled in a post-secondary educational program. The mother did not press for payment
until the child enrolled in college. The father urged that the child support obligation had
ended and that the district court could not enforce the Alaska judgment absent an
independent finding that the father owed a duty of support. The court held that (1) the
father's substantive rights were protected under both the Uniform Interstate Family
Support Act (UIFSA), Mass. Gen. Laws ch. 209D, and the Uniform Reciprocal
Enforcement Security Act (URESA), Mass. Gen. Laws ch. 273A; (2) UIFSA could be
applied retroactively in the case; (3) UIFSA required no independent review by a
Massachusetts court whether the father owed a duty of support to the child as an Alaska
court had already made that determination; (4) Alaska was authorized to pursue the action
on the mother's behalf; and (5) the child did not forfeit child support because the custodial
parent did not take immediate measures to enforce delinquent child support obligations.

Family Law, Fall 2010 58

  OUTCOME: The judgment was affirmed and the matter was remanded to the trial court for
such other proceedings as were necessary to enforce the judgment.
 NOTES: UCCJEA and UPKPA started out as uniform acts and have been adopted by each
state. Under UIFSA, it didn’t matter that mother did not pursue arrearages – she could not
waive the child’s right to it. Prior to this uniform act, she would have had to go to the other
state to file an action – very time consuming, very expensive. Now she is represented by the
state attorney’s office who files the necessary papers in the home state; it’s simply an
enforcement process handled remotely.
 Know these three statutes, what they stand for and what they mean.

NOTES: If someone has warrant out for failure to pay child support and they are driving cross
country and get stopped, they can get arrested. It is interstate enforcement. If you have a
professional license and are behind in child support, you can lose your license to practice. This can
be worked out if you agree to pay, but otherwise you can’t work.

Hicks v. Feiock (p 839)

 PROCEDURAL POSTURE: D was charged with contempt for failing to make court-ordered
child support payments. D claimed that he was financially unable to make the payments. The
state trial court held that state law presumed that D remained able to comply with the terms
of the order and found him to be in contempt. The Court of Appeals of California, Fourth
Appellate District, Division Three, reversed.
 OVERVIEW: The state court of appeals determined that the legislative presumption violated
the Due Process Clause. The prosecutor claimed that the trial court erred when it ruled that
whether an individual was able to comply with a court order was an element of the offense of
contempt rather than an affirmative defense to the charge, that Cal. Code Civ. Proc. §
1209.5 shifted to the alleged contemnor the burden of persuasion rather than simply the
burden of production in showing inability to comply, and that the state appellate court erred
when it determined the contempt proceedings were quasi-criminal. The Court held that it
could not depart from the state appellate court's resolution of the state law issues. However,
the state appellate court erred when it sustained D's challenge to the statute under the Due
Process Clause simply because it concluded that the contempt proceeding was quasi-
criminal as a matter of state law. The state appellate court should have determined whether
the contempt judgment would have been purged by D paying off his arrearage. If so, the
proceeding was civil and the statute was constitutionally valid.
 OUTCOME: The judgment was vacated and remanded.
 NOTES: The purpose of this case is the distinction between civil and criminal contempt. In
criminal case, you have due process rights; in civil, you may not. You can still go to jail either
way. Civil contempt is considered remedial in nature – all they have to do is comply and they
can get out. Criminal contempt is punitive in nature.

Child Support
 Guidelines from state statutes
 Also number of federal laws
 UIFSA adopted by all states means that you can enforce child support from anywhere any
where else
 Drivers license revocation is a huge deterrent for nonpayment of child support

State Dept of Revenue v. Beans (NOT IN BOOK)

 PROCEDURAL POSTURE: Appellant state sought review of an order of the Superior Court
of the State of Alaska, Third Judicial District, Anchorage, which granted summary judgment
in favor of appellee obligor father and held that Alaska Stat. § 25.27.246, which provided for
the suspension of delinquent child support obligors' driver's licenses, was unconstitutional.

Family Law, Fall 2010 59

  OVERVIEW: Appellant state notified appellee obligor father that his driver's license was to
be suspended, pursuant to Alaska Stat. § 25.27.246, unless he complied with a child support
payment order. Appellee filed suit and contended that § 25.27.246 was unconstitutional. The
trial court granted summary judgment in favor of appellee. On appeal, the court affirmed only
the part of the judgment that held that Alaska Stat. § 25.27.246(i) did not prevent appellee
from seeking judicial relief based on inability to pay. The court reversed and remanded and
held that the statute clearly articulated a legitimate public policy for targeting the driver's
licenses of delinquent obligors because appellant needed to collect child support from all
obligors. The sanction of losing a license was rational, and as soon as appellee began to
comply with a payment agreement, then appellant was to release his license. Appellee was
not denied due process or equal protection of the laws because appellant could not have
required payments beyond his best efforts. There was no right to a jury trial because
appellee was permitted to have a judge review his claims.
 OUTCOME: The court reversed the order, which granted summary judgment in favor of
appellee obligor father, and remanded to the trial court. The court held that the statute, which
allowed appellant state to suspend delinquent child support obligors' driver's licenses, was
constitutional, because it did not require payment beyond appellee's best efforts.
 NOTES: what standard did they apply? Rational basis. Does the state have a rational basis
to pass this ordinance to revoke a driver’s license for failure to pay child support? Yes. It is
an effective tool. Even without UIFSA, a warrant from one state will be useful in another
state.

Sanderfoot v. Sanderfoot (not in book)

 PROCEDURAL POSTURE: Petitioner appealed a judgment from the United States Court of
Appeals for the Seventh Circuit affirming the district court's ruling that under 11 U.S.C.S. §
522(f)(1), respondent former spouse could use a state homestead exemption in bankruptcy
to avoid a lien created by the divorce decree on the marital home.
 OVERVIEW: When petitioner Farrey and respondent Sanderfoot divorced, a Wisconsin court
awarded each one-half of their marital estate. Among other things, the decree awarded
Farrey's interest in the family home and real estate to Sanderfoot and ordered him to make
payments to Farrey to equalize their net marital assets. To secure the award, the court
granted Farrey a lien against Sanderfoot's real property. Sanderfoot did not pay Farrey and
subsequently filed for bankruptcy, listing the marital home and real estate as exempt
homestead property. The Bankruptcy Court denied his motion to avoid Farrey's lien.
 ISSUE: whether § 522(f) of the Bankruptcy Code allows a debtor to avoid the fixing of a lien
on a homestead, where the lien is granted to the debtor's former spouse under a divorce
decree that extinguishes all previous interests the parties had in the property, and in no
event secures more than the value of the nondebtor spouse's former interest.
 HOLDING: We hold that it does not.
 Petitioner's former spouse could not avoid a lien created by the divorce decree on the marital
home by applying a state homestead exemption in bankruptcy. When the parties were
divorced, respondent received title to the marital home and was ordered to pay petitioner a
sum of money secured by a lien against the home. Respondent filed bankruptcy and sought
to avoid petitioner's lien under 11 U.S.C.S. § 522(f)(1) by claiming a state homestead
exemption. The appellate court affirmed the district court's ruling that the lien was avoidable.
The U.S. Supreme Court reversed because a debtor who did not possess an interest in
property before a lien attached could not avoid the fixing of a lien on that interest. Because
the divorce decree created the parties' interests in the marital home at the same time it
created the lien against the property, respondent did not possess his interest before the lien
attached.

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  OUTCOME: The court reversed because respondent could not avoid the fixing of a lien on
an interest that he did not possess before the lien attached, and the divorce decree created
the parties' interests in the property at the same time it created the lien.
 NOTES: this is simply a deferred interest in her own property. You can’t discharge your
debts to your ex-spouse by filing bankruptcy.

Bankruptcy
 One spouse may end up liable for all of the joint debts (joint and severable liability) if one
spouse files for bankruptcy. The holder of the debt doesn’t care who has to pay.
 One person who try to “buy out” the other or separate the debt somehow to avoid this type of
situation
 Bankruptcy is specialized so you should probably refer to an attorney who handles that area,
although you need to know the basics

Moore v. City of East Cleveland (p 1118)

 Grandmother had her son and grandchild along with another child (a cousin) living in public
housing; city ordinance prohibited the cousin as not a “family member” and the grandmother
was fined and jailed; court of appeals affirmed and Ohio sup ct denied review. This is a form
of taking.
 Supreme Court reversed and said this ordinance was too intrusive. Even though the city had
legitimate interests, the ordinance did not serve those interests. The usual judicial deference
is not applicable here. The city can’t tell you who the family is as long as there is a relation.
 NOTES: In public housing, if anyone in the household commits a crime, the entire family is
evicted. Similar to someone using a car and committing a crime – the car is impounded,
even if the owner was not involved. You generally can’t say who can live with you, but you
can limit how many people.

Miscellaneous
 State has a lot of power and with it a responsibility to protect people.
 Once it gets involved, the state doesn’t like to leave.

Alternative Dispute Resolution

 There are three different methods
o Arbitration – agree that decision will be binding, generally not appealable; not as
popular in family law for that reason
o Mediation – Florida requires mediation before a court will get involved; third party
facilitator who will mediate between the parties who may or may not be represented;
the mediator cannot tell them their rights, he only mediates; mediation can be
appealed generally
o Collaborative lawyering – big C is an agreement drawn up by parties and their
lawyers that they agree there should be a negotiated resolution without litigation;
they bring in mental and financial health experts, coaches, etc. and everyone works
as a team; if one of the parties withdraws and wants to litigate instead, these
agreements usually require the attorney to withdraw as well and not represent that
party. There is some concern about a party’s right to counsel, but ABA has stated
this is not at issue here. Little c is all the programs involved.

Family Law, Fall 2010 61

FAMILY LAW - MOCK EXAM

What are the issues? What are the rules of law for each issue? Apply the rules to the facts.

Long-term residence = domicile

 Jurisdiction
 Ex parte
 Time duration
Competency = void or voidable (annulment)
 What makes it void?
 What makes it voidable?
 Which is appropriate in this case? (apply it to the facts)
Grounds or no fault jurisdiction
 What does it mean?
 What grounds does she need?
Common law marriage
 Intent
 Duration
 Hold themselves out as married
Constitutionality
Consanguinity / affinity
Full faith and credit
Presumptive father statute
 Putative father registry
Adoption/due process
Federal jurisdiction exception
 No original action in federal court for divorce, custody, or support
State court
 Jurisdiction
Unfitness
 Best interest of the child
Alternatives/collaborative

If you are told certain things in the fact pattern, you don’t have to argue them. If there are two sides,
explore both and come to a conclusion. Generally, case names are not important, but some key
cases may show up in the multiple choice section.

Family Law, Fall 2010 62

FINAL EXAM
 Three hour time limitation
 Comprehensive over whole semester
 1 essay worth 60 points
o Spot the issues, state the rule or rules, and apply the facts; if there is a counter
argument to be made, make it, and then choose the most appropriate to the facts;
the application is what you have to focus on mostly
o On scratch paper, list the issues (leave space), add rules, add facts; essentially you
have written the essay; don’t forget counter-arguments and conclusions
o Limit of 2 bluebooks; examsoft limit is 14,400 characters
 30 m/c worth 40 points, based on short fact patterns

You may bring in an outline

 One 8.5x11 piece of paper on both sides; it must be handwritten in blue ink; it must be your
own work
 This should be a study tool instead of a crutch during the exam
 This is merely a “comfort zone” and won’t work in place of knowing the material

EXAM REVIEW
 Constitutionality of marriage restrictions; can’t put burden on marriage itself
 Traditional restrictions
 Same sex marriage; states have acted based on state constitutions
 Common law marriage elements
 Roles; challenges to those roles;
 Gender and the law
 Private contract
 Family and Medical Leave Act; know what we went over
 Unmarried fathers
 Adoption and family privacy and the progression; Orr v Orr; Casey now more important than
Roe
 Tort and criminal law, battered women syndrome, legal obligations to violence; Castle Rock
 Health care; Cruzan case
 Dissolution of marriage
 Jurisdiction
 Access to courts and limitations
 Traditional grounds and defenses
 Religion
 Custody and support
o Standard for original decree
o Florida no longer has custody and visiting; it now has contact time
o Different approaches
o Modification standard
 UCCJEA
 UFKPA
 UIFSA
 Property distribution; special equity case
 Differences in marital property and valuation; degrees
 Contribution to marital assets
 Alimony
o Standards

Family Law, Fall 2010 63

 o Ability to pay on one side and need on the other
o Equitable distribution (entitlement)
 What constitutes property
 Pensions, disability; how to value, jurisdiction; deferred assets
 Child support
o Know basics and guidelines
o Understand what you can and can’t discharge
o Can’t get out of child support by filing bankruptcy
o Revoking licenses
 Nontraditional families
 Alternate dispute resolution
 Abuse and neglect

Family Law, Fall 2010 64