Downtown Lawyer » Family Law

Eighth Circuit explains that child’s perspective is paramount in determining habitual residence under ICARA.

Jodie L. Hill — Fri, 06 May 2011 15:43:32 +0000

Stern v. Stern, No. 10-2493.

Facts

Michelle Garland Stern, who has dual citizenship of the United States and Israel, first met Michael Stern, who has dual citizenship of Israel and Canada, in 2000 during a visit to Israel. Michelle later moved to Israel, and the two were married in a religious ceremony. Their son DJ was born in 2003.

In August 2005, Michelle moved to Iowa to complete a doctoral program at Iowa State University. Martin followed in October 2005, after closing his taxi business in Israel. They were married in a civil ceremony in 2006, but Michelle filed for divorce in October 2007. They attempted reconciliation, but Martin eventually moved back to Israel in February 2008. Michelle proceeded with the divorce and was granted temporary custody of DJ.

Martin then brought a separate suit in federal court, petitioning for DJ’s return under the International Child Abduction Remedies Act (“ICARA”). After a bench trial, the trial court denied Martin’s petition, noting that DJ’s habitual residence at the time of the alleged wrongful retention was the United States.

Appeal

On appeal, the Eighth Circuit Court of Appeals noted that the ICARA does not control substantive custody disputes. Instead, it governs selection of the forum where such a dispute should be brought. The court explained that the key question under the ICARA is “whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence.” The court then listed factors to be considered in determining a child’s habitual residence:

The settled purpose of the move from one country to another from the child’s perspective.
Parental intent regarding the move.
Change in geography.
Passage of time.
The child’s acclimation to the new country.

Martin argued that the trial court gave insufficient weight to the parties’ intent to return to Israel after Michelle finished her degree. The court, however, agreed with the trial court that the child’s perspective was paramount. From DJ’s perspective, the settled purpose of his relocation to Iowa was to reside there permanently, at least until Michelle finished her degree. Settled purpose does not require an intention to stay in the new location forever, but does focus on the perceptions and acclimations of the child.

Accordingly, the court affirmed the trial court’s decision.

Arkansas Supreme Court overturns Arkansas Court of Appeals, holding that specific performance cannot compel performance of couple’s agreement after husband’s death.

Jodie L. Hill — Wed, 31 Mar 2010 18:56:13 +0000

Butcher v. Beatty, No. 09-1169.

Thelma and John Healy were married in 1979. In 2006, a trial court found that Thelma was incapacitated and appointed Troy Butcher as guardian of Thelma’s person and Butcher and John as co-guardians of her estate. Butcher later filed a motion to sell the couple’s rental property held as tenants by the entirety, and the trial court that the real property be sold and the proceeds divided between Thelma and John. The rental property could not be sold for the appraised value, so the trial court ordered Thelma to pay John $40,000 for sole ownership of the property. A deed to that effect was drafted and signed by Butcher as Thelma’s guardian. Before John could sign the deed, he passed away.

Believing that John’s death vested sole title to the rental property in Thelma, Butcher refused to pay the $40,000 to Diane Beatty, executor of John’s estate. Beatty sued Butcher to compel specific performance of the agreement, and the trial court agreed, ordering Butcher to pay John’s estate $40,000. Butcher appealed to the Arkansas Court of Appeals, who affirmed the trial court’s decision. Butcher then requested review of the decision by the Arkansas Supreme Court, and the court accepted the case for review.

The court noted that, at the time of John’s death, Thelma and John held the rental property as tenants by the entirety. As such neither spouse owned an undivided one-half interest in the property, and both owned the entire estate with the right of survivorship. This right of survivorship to the whole could be dissolved only by (1) a divorce proceeding, (2) death, (3) voluntary action of both parties. Because John had not executed the deed prior to his death, it was not fully executed and delivered; therefore, the rental property was held by Thelma and John as husband and wife, and she became sole owner upon his death.

The court further explained that specific performance is not available if performance is impossible. Upon John’s death, his estate no longer had any interest in the rental property from which to compel Butcher to perform under the previous agreement.

The court then remanded the case for further proceedings.

Arkansas Court of Appeals holds that attorney for incompetent person is not entitled to attorney’s fees for challenge of guardianship.

Jodie L. Hill — Thu, 14 Jan 2010 16:01:19 +0000

In re: the Estate of Mary Elizabeth Reimer, incompetent, No. CA09-770.

In 2004, George Reimer petitioned for guardianship over his wife, Mary Elizabeth Reimer. The trial court found Mrs. Reimer incompetent and appointed Mr. Reimer as guardian over her person. Two years later, Mr. Reimer moved to change guardians, and Karen Hunter, Mrs. Reimer’s daughter, was appointed as guardian over Mrs. Reimer’s person and estate. In 2008, Mrs. Reimer moved to terminate the guardianship, arguing that she was not notified about the expansion of the guardianship to include her estate and that she no longer needed a guardian. Hunter filed an amended petition for appointment of herself as guardian of Mrs. Reimer’s person and estate. At a joint hearing, the trial court held that the amended petition cured any notice defects and that a guardianship of the person and estate was still needed. Hunter remained as guardian. After the hearing, Mrs. Reimer’s attorney, Frances Morris Finley, moved for attorney’s fees incurred on her behalf, and the trial court denied that motion.

Finley appealed the denial. The Arkansas Court of Appeals held that Finley had standing to appeal the order because she “has a pecuniary interest affected by the court’s disposition of the matter below.” The court then upheld the trial court’s ruling, noting that no Arkansas statute authorized an award of attorney’s fees under these circumstances.

Post-nuptial agreement regarding "indiscretions" is void.

Jodie L. Hill — Tue, 28 Jul 2009 19:47:04 +0000

In 2000, Vergestine Cooper discovered that Bernard, her husband of twenty-eight years, was having an affair. In order to save their marriage, Bernard signed a contract to pay Vergestine $2,600 if his indiscretions led to a permanent breakdown of the marriage. In 2005, Bernard disappeared, and Vergestine learned that he had continued the affair. During the couple’s divorce proceedings, the trial court upheld the terms of contract, but the court of appeals overturned it. In upholding that decision, the state Iowa Supreme Court cited a 1887 precedent, in which the court rejected a couple’s post-nuptial agreement because it dealt with matters “pertaining so directly and exclusively to matters of the home.” The current court also rejected “injecting the courts into the complex web of interpersonal relationships and the inevitable he-said-she-said battles that would arise in contracts that can be enforced only through the probing of the marital relationship.” Accordingly, the court remanded the case for reconsideration without regard to the unenforceable contract. For the full story, click here.

Tennessee man loses parental rights because of animal abuse in front of his children.

Jodie L. Hill — Thu, 23 Jul 2009 22:04:44 +0000

The Tennessee Department of Children’s Services was granted temporary custody of a couple’s three children after six cases involving the family. The parents pleaded guilty to child abuse and neglect. The parents were ordered to work on their issues related to anger, frustration, the mother’s medical needs, and establishment of a clean and stable home. These efforts were unsuccessful; however, and the trial court terminated the parents parental rights to the children. Specifically, the trial court found that two of the children suffered from severe child abuse from the father’s torturing, killing, and drinking the blood of gerbils in their presence. On appeal, the Tennessee Court of Appeals upheld the termination of parental rights as being in the best interest of the children. For the full story, click here.

Louisiana judge suspended for demeaning manner during domestic abuse hearing.

Jodie L. Hill — Wed, 08 Jul 2009 16:15:00 +0000

Judge Timothy C. Ellender, a Terrebonne Parish judge, was suspended by the Louisiana Supreme Court after his treatment of Eula Warren during a protective order hearing. Ellender stated, “Heat, big smoke, but no fire. Dismissed,” and told Warren, “You want a divorce, get a divorce. You’re not getting a [temporary restraining order]. See y’all later.” Warren complained to the Office of Special Counsel that Ellender seemed to approve of her husband’s abusive behavior, stating, “I understand now why women don’t go to the courts for help/protection because that judge treated me just like my husband does.” Ellender admitted to having been “impatient” and “dismissive” during the hearing, but denied having violated the codes of judicial conduct. In addition to the suspension, the Louisiana Supreme Court ordered Ellender to pay a $185 fine and complete a training course on addressing domestic violence cases. For the full story, click here.

"Homosexual environment" insufficient reason to remove infant from lesbian home.

Jodie L. Hill — Fri, 19 Jun 2009 15:27:01 +0000

The West Virginia Supreme Court ruled that Kathryn Kutil and Cheryl Hess, a lesbian couple, was entitled to an order preventing the removal of one of their seven foster children to a “traditional” home. In late 2007, the couple accepted the baby who was born with cocaine and oxycodone in her bloodstream. A month later, the guardian ad litem filed a motion to remove the baby from the “homosexual environment,” calling it “detrimental to the child’s overall welfare and well-being.” The Department of Health and Human Resources added that the Kutil-Hess house had seven children in it, which exceeded the state limit on five unrelated children. The trial court ordered that the child be transferred to a home with a father and a mother.
On appeal, the West Virginia Supreme Court found that the child “has formed a close emotional bond and nurturing relationship with her foster parents, which cannot be trivialized or ignored.” The court further noted that the department caused that problem and “ignored any consideration of the impact relocation would have on Baby Girl C’s emotional, physical, and mental development.” Finally, the court held that the couple “should not be excluded from consideration for the reason stated by respondent.” For the full story, click here.

California’s Attorney General seeks to invalidate same-sex marriage ban.

Jodie L. Hill — Mon, 22 Dec 2008 18:07:37 +0000

See the unfolding story here.

Arkansas Supreme Court explains distinction between res judicata and collateral estoppel.

Jodie L. Hill — Fri, 12 Dec 2008 16:12:39 +0000

Powell v. Lane, No. 08-282

This case revolves around a fake marriage and adoption. After mom and dad separated, mom petitioned the court to establish paternity for the child, alleging that she and dad had never been married and that he was the child’s father. Dad was served, but never entered an appearance or filed an answer. Mom obtained a default judgment that the marriage invalid and that dad was the legal father of the child.

Mom later married a second husband, and they petitioned for him to adopt the child. Dad refused to consent to the adoption and filed a petition for divorce. The trial court held the first marriage invalid and granted the adoption because dad had failed to pay child support. Dad appealed to the Arkansas Court of Appeals, who reversed and remanded the case back to the trial court. Mom and second husband filed a petition for review with the Arkansas Supreme Court.

On appeal, mom argued that dad was barred by res judicata from re-litigating the issue of validity of the first marriage. Res judicata requires a showing that (1) the first suit resulted in a final judgment on the merits, (2) the first suit was based on proper jurisdiction, (3) the first suit was fully contest in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties. The court noted that res judicata also bars claims that could have been litigated in the first suit.

While mom insisted dad’s claim was barred by res judicata, the court stated she intended to assert that collateral estoppel barred his claim. Collateral estoppel requires a showing that (1) the issue sought to be precluded was the same as that involved in the prior suit, (2) the issue was actually litigated, (3) the issue was determined by a valid and final judgment, and (4) the determination was essential to the judgment. The court pointed out that collateral estoppel does not apply to claims that could have been litigated in the first suit, only to claims that were actually litigated.

The court further explained that “actually litigated” meant that (1) the issue was raised in the pleadings, (2) defendant had a full and fair opportunity to be heard, and (3) a decision was rendered on the issue. The court held that because dad had had a full and fair opportunity to be heard regarding the validity of the marriage–but chose not to respond–collateral estoppel applied to bar dad’s new claim regarding validity of the marriage.

The court further held that dad’s consent to the adoption by second husband was unnecessary because dad had failed to pay child support for over a year.