United States: Recent Cases Illustrate That Family Law Is Fascinating

Originally published in The Legal Intelligencer

While family law may not make the practitioner a multimillionaire, it certainly is fascinating. Sometimes the facts of the cases are more unusual than the fiction created by soap opera writers.

While family law may not make the practitioner a multimillionaire, it certainly is fascinating. Sometimes the facts of the cases are more unusual than the fiction created by soap opera writers. Sometimes the issues are more interesting than the tests created by law school professors.

Three recent cases, one in Tennessee and two in Florida, are illustrative. So, for no other reason than they are interesting, let me tell you about these three cases.

'BURNINE v. DAUTERIVE'

The issue examined in the Court of Appeals of Tennessee's July 27 opinion in Burnine was whether a grandmother could collect retroactive child support from a father even though the mother told the father the child was not his and then later told the father that the child was dead. Both the facts and the issue are interesting. The child lived with the maternal grandmother for a substantial period of time, and the grandmother had to provide for the actual financial needs of the child. Should the father be required to reimburse the grandmother or should the mother's lies to the father stand in the way of reimbursement?

According to the court, the parents were separated when their daughter was an infant. The father initially visited the child, but the mother admitted that she lied to the father and told him the child was not his, and then later, that the child had died. For a lengthy time, custody of the child was transferred between the mother and the maternal grandmother. When the daughter was 3, she was adjudicated dependant by a Georgia court and the grandmother was awarded custody. After the mother completed a drug and alcohol rehabilitation program, custody of the child was returned to the mother and the grandmother was named guardian of the daughter by a Tennessee court. After some years, the child expressed a desire to meet her father. The grandmother went to a local child support services agency to obtain help in locating the father. It took a long time for the agency to locate the father because the grandmother only knew the father's surname.

A Louisiana court entered a judgment of paternity against the father when the child was 13 years old. After a hearing, the father was ordered to pay child support effective Feb. 1, 2007, and the hearing officer simply stated that the defendant was told by the child's mother that the child was not his child.

After paternity was established, the father began visiting his daughter on a regular basis. The father purchased a home in Tennessee after the daughter asked him to come to Tennessee and raise her. When the daughter was 16, the father filed a petition seeking to be named the primary residential parent, and he was awarded custody in 2010. That same year, the grandmother filed a petition requesting that the father be ordered to pay retroactive child support to her for periods preceding the Louisiana court's 2007 order setting forth the father's child support obligations. The father testified that the mother informed him of his daughter's birth in 1993 and he visited the daughter when she was two to three weeks old. He testified that the mother later told him he was not the father of the child and subsequently the mother called him "crying" that the daughter had died.

The mother said she never had the father's name placed on the child's birth certificate because she was afraid the father might try to take the daughter away from her, according to the opinion. The mother testified that when the child was 4, the child stopped breathing and was taken to the hospital. The mother initially told the father that the daughter was back home and doing well but a few weeks later, she called the father and told him the child had passed away. When the father inquired about the daughter's burial, the opinion said, the mother told him: "'Don't worry about anything. We took care of it.'" The mother said she lied about the child's death because she was afraid that the father would take the daughter away from her and move to Louisiana. The mother admitted that she also told the father that the daughter was not his child prior to telling him that she had died. The mother testified that she never contacted the father again after she told him that the daughter had passed away.

During the hearing, the mother testified that the grandmother also knew the father's identity but the mother had told the grandmother that she did not want anything to do with the father, that she did not want the father in the daughter's life, and that she had told the father that the daughter had died. The grandmother apparently went along with those statements and did not instruct the mother to tell the father the truth. The mother also testified that the grandmother never asked her for the father's address or telephone number, the opinion said.

The grandmother testified that she attempted to convince the mother to pursue child support from the father but that the mother refused because she was afraid that the father would come and take their daughter away from her. The grandmother conceded that the father began visiting the daughter regularly and paying child support when his paternity was established in February 2007. Although the grandmother was never asked at trial whether she knew about the mother's lies, both the mother and the father testified the grandmother did know. The mother testified that she told the grandmother about the lie and the fact that she did not want the father in the daughter's life.

At the time of the trial, the daughter was 17. She testified that when she was 7 or 8 years old, her mother told her the father's name and told her about telling the father she had passed away. The daughter said she discussed the issue with grandmother after she went to live with her for a second time, and the grandmother agreed to find her father for her. The daughter testified that her father had been an active part of her life since she finally met him in 2007.

The trial court entered an order requiring the father to pay $40,950 in retroactive child support to the grandmother for the periods of time when she had custody of the daughter during her minority prior to the Louisiana court's order setting child support in 2007.

The father appealed, and the appellate court reversed. The appellate court held that the trial court erred in its apparent conclusion that it was only authorized to deviate from the guidelines in a situation when a father had never known of the existence of his child. The appellate court found that it would be inequitable to require the father to pay retroactive child support when the conduct of the mother and the grandmother prevented the father from knowing of the daughter's existence or taking responsibility for supporting her. The court also found that an award of retroactive child support from father to the grandmother would not benefit the child because it would deprive the father of resources that could be used for the child, who was now living with him.

'ROSSMAN v. PROFERA'

In this July 27 case in Florida's Fourth District Court of Appeal, Jessyca Rossman, the mother, appealed the trial court's order both denying her request to relocate to Texas and granting the father's petition for modification of custody.

The interesting part of this case is the dilemma in which trial courts sometimes place parents by asking the parent who wants to relocate what he or she will do if permission to relocate the child is denied. What is that parent supposed to say? There is no good answer to this question. If the answer is that the relocation will be abandoned, then how likely is it that permission to relocate will be granted? If the answer is that the relocation will take place nevertheless, then how likely is it that permission to relocate will be granted?

According to the opinion, the parties were married for four years and were divorced in 2004. By agreement of the parties, the mother was the primary residential parent subject to a schedule for the father consisting of alternate weekends, half the holidays and several weeks in the summer. The father relocated after the divorce so that he would live closer to the child. The final judgment expressly prohibited the mother from relocating with the minor child outside of Florida without the father's agreement or permission from the court.

In January 2009, the mother served a notice of intent to relocate to Texas, where she and her new husband would accept new jobs. The father filed an objection to the relocation. In June 2009, while the relocation issue was still pending, the mother moved to Texas with her new husband, their child, and the husband's child, the court said. The child whose custody was at issue was left with the father in Florida. The mother and her new husband testified that they were offered new jobs with their current employers and were told their jobs in Florida were going to be terminated. When asked what she would do if leave to relocate the child were denied, the mother responded that she and the child's half-brother and step-brother would be devastated, but she would try to make it work.

The trial court denied permission to relocate the child and placed the child in the father's primary custody. The mother appealed, arguing that her proposed timesharing arrangement would have allowed the father to maintain a continuing meaningful relationship with the child, and that there was no evidence of a substantial change of circumstances. The District Court of Appeal affirmed.

The mother had proposed that the 7-year-old child fly unaccompanied 11 times per year to visit the father, and there was no abuse of discretion in the trial court's conclusion that this arrangement would drastically limit the father's active and ongoing participation in the child's life. Although Florida case law indicated that a proposed relocation is not a change of circumstance that would support a modification of custody, the mother had already actually relocated despite an explicit restriction against relocation, and the mother testified that she would not be returning to Florida regardless of the outcome of the case.

'MORENBERG v. MORENBERG'

In equitable distribution states, marital property subject to division by the court is defined as all property acquired during marriage by either of the parties, usually with some exceptions for gifts from third parties and inheritances. The cutoff point varies from state to state. In many states, the date of separation is a cutoff point, so that anything acquired after separation is separate property of the spouse who made the acquisition, so long as the acquisition is made with separate rather than marital resources. In other states, the cutoff point might be the date on which a divorce complaint is filed or the date of the divorce itself.

Clear as the standard might seem at first glance, questions inevitably arise and gray areas develop. One of the enjoyable aspects of being a family lawyer is that there are so many unanswered questions and there is so much room for creative advocacy.

In Morenberg , a case decided July 27 by Florida's Fourth District Court of Appeal, the issue was whether certain book royalties were marital property. The Florida statutes provide "that the date of filing of the petition for dissolution is generally the latest date for identifying and classifying marital assets."

According to the court, the wife filed for divorce in August 2008 after nearly 46 years of marriage. The husband was an English professor and he wrote two books during the marriage. The husband testified that he began working on the fourth edition of his book, Doing Grammar , in December 2008 or January 2009 and finished the work one day before the trial.

Intending for each party to receive one-half of the parties' combined incomes, the trial court ordered the parties to equally divide all of the husband's royalties including royalties from the fourth edition of Doing Grammar. The District Court of Appeals reversed in part, finding that royalties from the fourth edition flowed from post-dissolution labor and were not subject to division.

The appellate court opinion is very short — just six paragraphs — and contains no discussion of the issue other than the observation that work on the fourth edition was done post-dissolution, even though this was an issue of fact at trial.

The issue in this case is an interesting one because there are many endeavors that take place over a long period of time for which there is no remuneration until the effort is concluded.

Suppose that before the parties are married, the husband has an idea for an invention? During 10 or 20 years of marriage, he tinkers in the basement and develops a model. During separation, he gets a patent. After divorce, he begins to market successfully the invention. Are the proceeds at least in part property acquired during marriage? The same question could be asked about artwork begun during marriage and finished after separation, or about a book written during marriage and revised during separation. If the only work done on a book during separation consisted of revision, aren't some of the resulting royalties remuneration for the work done during marriage and some remuneration for the work done after separation?

I'm sure that unique and interesting issues arise in all areas of the law. I think, however, that unique and interesting fact patterns and legal issues are almost a daily occurrence in my practice, and they are one of the reasons I'm still practicing family law.

www.schnader.com

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