Case Briefs - Family Law - (Prof. Margaret Ryznar - Spring 2013)

Marriage
·         Courtship and premarital agreements
o   Heart balm statutes
§  Statutes that increase or decrease the right to sue for a broken promise to marry
§  Rivkin v. Postal
·         Tennessee requires written evidence of the promise or two disinterested witnesses to an oral promise to marry. Family members are not disinterested.
o   The engagement ring and rescinded promise to marry
§  Two approaches
·         Fault-based
o   Whoever broke the promise is at fault and loses title to the ring
·         No-fault (Indiana)
o   Full title does not vest in Donee until the marriage occurs. Even if the Donor is at fault in breaking the promise to marry, he still gets the ring back.
o   Premarital agreements
§  In re Shanks
·         Three requirements for valid premarital agreements
o   Voluntariness
o   Conscionability
§  Substantive conscionability
·         It can only put the parties back in the situation they were in before the marriage, no more.
§  Procedural conscionability
·         Parties must have equal bargaining power in the agreement.
o   Opportunity to read and understand the terms.
·         Marriage rules
o   Two rules
§  Void marriage
·         Manifestly unlawful. Marriage is void ab initio and legally never existed.
§  Voidable marriage
·         The marriage is valid until it is declared invalid.
o   Loving v. VA
§  States cannot apply racial restrictions on marriage.
o   In re adoption of M.
§  Incestual marriages are forbidden. But adoptive relationships can be severed under truly exceptional circumstances. When an adoptive father conceives a child with his adopted daughter, the best interests of the newborn are to be raised in a traditional family. The adoption is voided as to the father so that they can marry.
o   State v. Holm
§  Bigamy is the act of marrying someone with the knowledge that you or her are married to somebody else.
§  One can be convicted of bigamy even if he gets married only in a private ceremony without seeking a marriage license from the state.
§  The criminalization of bigamy is constitutional.
·         Equal protection
o   The statute is facially neutral. It does not punish the status of being a religious polygamist but the act of polygamy.
o   Kirkpatrick v. District Court
§  The child wants to marry pursuant to a state statute that requires only one parent to authorize it. The father challenges the statute’s constitutionality. There are three fundamental interests:
·         Father’s parental right to forbid her from marrying
·         Mother’s parental right to authorize the marriage
·         Daughter’s fundamental right to marry.
§  With so many competing interests, the standard for determining the constitutionality is reasonableness. Because the statute will always be a two versus one scenario AND judicial discretion, it is a good balance of interests.
§  The minor’s marriage is voidable. She can void it when she reaches majority.
·         Annulment
o   Blair v. Blair
§  Fraud can be grounds for annulment.
o   Annulment puts the parties back in the position they were in before the marriage. No property division, spousal support, or other divorce questions.
·         Marriage licenses
o   Carabetta v. Carabetta
§  Two requirements for marriage:
·         License
·         Solemnization
§  The parties had a religious ceremony but no license, held themselves out as married.
§  The statute does not expressly say that a marriage is void ab initio or voidable due to lack of a license. Case law says that a license with no solemnization is still a valid marriage, so a license is not absolutely necessary.
·         Common law marriage
o   Jennings v. Hurt
§  Requirements for CL marriage
·         Agreement
·         Cohabitation
·         Capacity
o   Must be single and unmarried throughout.
·         Community recognition
o   Parties must hold themselves out as married.
·         Putative spouse doctrine
o   An equitable remedy for an unknowing putative spouse who is harmed by a marriage that is later found to be void ab initio or declared invalid (e.g., for intestacy laws, alimony, etc).
o   In Indiana, the doctrine will never supersede spousal rights of a valid marriage.
·         Marital duty of support
o   McGuire v. McGuire
§  Courts will not get involved in disputes within intact marriages
o   Doctrine of necessaries
§  At common law, the man is required to provide the wife with necessaries (food, clothing, shelter, and medical care). The husband is liable for the wife’s contracts to purchase necessaries. The same rule applies to children.
Reproduction
·         Abortion
o   Roe v. Wade
§  Mother’s interest in her right to privacy outweighs the state’s interest in protecting the unborn during the first trimester
·         Parental autonomy
o   Meyer v. NB; Pierce v. SoS
§  Fundamental familial interest in making education decisions balanced with state’s interest in educating children.
·         Choosing subject matters, public or private school.
o   Prince v. MA
§  Child labor laws. State has a higher interest.
o   WI v. Yoder
§  Compulsory education.
o   Troxel v. Granville
§  The statute provides that any third party can sue for visitation rights and win if it is in the best interests of the child.
§  The law is overbroad and infringes the parent’s right to parental autonomy.
·         Emancipation
o   State v. RR CR
§  Moving out and living a disapproving lifestyle is not sufficient for emancipation.
§  E.g., formal proceedings, getting married, or enlisting in the military.
Divorce
·         Jurisdiction
o   At least one spouse must have six months residency in Indiana and three months residency in the county in which the divorce is filed.
·         Non-married persons
o   Marvin v. Marvin
§  Property distribution for cohabitating couples upon “divorce”
§  Parties had an express contract; P to render homemaker services, D to render support, and to share all property equally. The contract is enforceable, despite questionable public policy concerns. Equal division of the property.
§  The contract can be express or implied.
·         Fault grounds
o   Some states look to fault to determine the property distribution. Indiana does not.
o   Lister v. Lister
§  The act of adultery does not have to be proved. Only have to prove:
·         Infatuation with another person,
·         Adulterous inclination, and
·         Opportunity to commit adultery.
§  That H paid for her divorce, allowed her to move into the mobile home next to his house, to drive his cars, and that they took trips together is sufficient to prove fault for adultery.
§  Connivance (express or implied consent) is a defense to a claim for divorce on adultery.
o   Muhammad v. Muhammad
§  Cruel treatment is putting the spouse in danger or in fear of danger to life, limb, or health by unnatural conduct that makes the marital relationship revolting.
§  A male-dominated culture that restricts the W’s diet and leads to nervous breakdown is cruel treatment to a modern woman.
o   Reid v. Reid
§  Desertion is breaking off cohabitation with the intent to desert the marriage. Constructive desertion is causing a spouse to break off cohabitation.
§  Even though the marriage was unsatisfactory, W is at fault because she left and filed for divorce two months later, which speaks to her intent to desert.
§  H’s conduct cannot be considered constructive desertion because the reason he failed in some duties (raising the kids and sexual contact) was due to his exceling at other duties (working and providing for the family).
o   Parker v. Parker
§  Under the doctrine of recrimination, if both parties are at fault, then the court will not grant a fault-based divorce. The conduct of each party must be equally wrong.
§  Verbal abuse, firing weapons outside her business, and causing hospitalization for severe anxiety is much worse than W’s adultery after the separation
o   Haymes v. Haymes
§  Cohabitation after filing for divorce does not necessarily mean that the spouse condones the other’s conduct and does not bar a fault based divorce.
·         No-fault divorce
o   Bennington v. Bennington
§  Living separate and apart is a valid ground for no-fault divorce. Simply living in a separate dwelling is not sufficient if the spouse continues to contribute to household duties.
·         Property distribution
o   Marital property schemes
§  Separate property
·         Each spouse owns property separately both before and during the marriage.
·         On divorce, all property is subject to equitable distribution, but each spouse retains separate rights to gifts, devises, and intestate shares.
§  Community property
·         Property acquired during the marriage is owned equally. But gifts, devises, and intestate shares are owned separately.
·         On divorce, community property is split equally between the two.
o   Ferguson v. Ferguson
§  For equitable distribution, the court looks at the totality of the circumstances to determine a reasonable allocation. W was entitled to part of H’s separate property because she could have earned it herself if she had pursued a career rather than being a homemaker.
o   Distribution in Indiana
§  Hotchpot theory
·         ALL property (even non-marital property) that each party acquired up until divorce is subject to distribution.
§  The distribution must be fair and reasonable with a rebuttable presumption that there should be an equal division.
·         Factors
o   Contribution of each spouse to the acquisition of certain property;
o   Whether certain property was brought into the marriage or acquired by gift;
o   The economic circumstances of each spouse, especially the custodial spouse;
o   Conduct that caused the dissipation of property;
o   Current earnings or potential earnings for each spouse.
·         Maintenance/Alimony
o   Three types
§  Permanent
§  Rehabilitative
·         Just until the spouse gets on her own two feet.
§  Reimbursement
·         To reimburse one spouse who paid for an expense(s) of the other spouse, like tuition.
o   Mani v. Mani
§  It is against public policy to consider fault in alimony decisions. But, when the fault had an adverse economic impact on the pecuniary interests of the marriage OR when the fault was egregious, it can be considered.
o   Michael v. Michael
§  Distribution analysis
·         H only worked for 1/3 of the marriage, but he cooked and chauffeured W. In turn, W excelled at work. H is not necessarily entitled to an equal division, but the division should be higher.
§  Maintenance analysis
·         H should have gotten alimony. He plans on going into a competitive field, so he must go back to school for training.
o   Rosenberg v. Rosenberg
§  Alimony is based on need. Need is a subjective standard: maintaining the same lifestyle as she had during the marriage. W was wholly dependent on H and had no career skills.
§  The court awarded a lump sum distribution to W based on the following factors
·         Contributions to the well-being of the family;
o   H worked and neglected the family
·         Circumstances leading to divorce;
o   H committed adultery and drove W to substance abuse
·         Contributions by each party in obtaining marital property
o   W furnished and maintained the home by herself
§  The court shifted the legal fees to the loser; policy of putting parties on equal footing.
o   Lucas v. Lucas
§  Marriage, cohabitation, de facto marriage, etc. does not per se end alimony obligations.
§  Although W entered a de facto marriage with someone else, was receiving marriage benefits, etc., there was no change in circumstances big enough to warrant full termination of alimony.
·         Marital property
o   Bender v. Bender
§  For unascertainable pension benefits, we can either
·         Determine the likelihood that it will vest (the present value) and award the value to the other spouse with other marital property; or
·         Assume that it will vest, award a percentage, and enforce the award once it vests.
o   In Indiana
§  An unvested pension is NOT “property”; does not go into the hotchpot.
§  Divisible property
·         Vested pensions
·         Personal injury awards
·         Professional goodwill
·         Disability insurance benefits if premiums are paid during the marriage
·         Tax returns
·         Annuities
·         Remainder interests and life estates in property.
§  Indivisible property
·         Contingent income
·         Academic degrees
§  ALL debts pre-marriage up until divorce go into the hotchpot and the court divides them equitably.
o   Roberts v. Roberts
§  An academic degree is not a marital asset, even if it was financed by the other spouse. However, the degree will be considered in determining H’s potential for future income.
§  Debts go into the hotchpot as well, but the court assigned the debts to H.
·         Taxes
o   Child support is not GI to Payee or deductible to Payor.
o   Alimony tax treatment can be changed according to the terms.
o   Only the custodial parent can claim a child as a dependent.
Children
·         Child support
o   Downing v. Downing
§  Child support calculation is based on the reasonable needs of the child. Reasonable means maintaining the standard of living that the child would have had if the family were still intact.
o   Indiana’s CS statute
§  Cannot determine it by premarital agreement
§  Does not take fault into account
§  Only considers:
·         Custodial parent’s financial resources;
·         Non-custodial parent’s financial resources;
·         The standard of living the child would have had if the family were still intact; and
·         Child’s physical or mental condition and educational needs.
·         College expenses
o   Curtis v. Kline
§   Requiring non-custodial parents of non-intact families to pay for college expenses violates EP because it does not require the same of intact families.
o   Indiana’s statute
§  Child must file before the age of 19
§  The amount the NCP must pay is based on
·         The child’s aptitude and ability
·         The child’s ability to pay for it herself through:
o   Work
o   Loans
o   Financial aid
·         Each parent’s financial resources.
§  The normal child support paid to the custodial parent is reduced by funds paid for education.
·         Altering child support obligations
o   Pohlman v. Pohlman
§  The law does not allow NCPs to request a decrease in CS obligations because of subsequent children. The law furthers a legitimate state interest in maintaining the intact standard of living for the first children and NCP has notice that subsequent children do not warrant a change in circumstances. But, if the CP ever asks for increased support, subsequent children are a defense to increased support.
o   Olmstead v. Ziegler
§  In determining a NCP’s financial ability to pay CS, the NCP’s actual earnings are irrelevant. The NCP’s reasonable earning potential is what matters. NCPs cannot willfully stop working and pursue a different career and ask for a decrease in CS obligations. There must be an actual event that causes the NCP’s earning potential to decrease.
§  Indiana follows this rule.
·         Enforcement
o   State v. Oakley
§  Instead of incarceration for failure to pay CS, the judge put the NCP on probation with the condition that he could not have any more kids until the arrears were paid or the probation period expired. Jail is not an efficient means to punish deadbeats.
§  This is a minority rule. It encourages abortion, infringes the fundamental right to procreate.
·         Jurisdiction
o   Kulko v. Court
§  A visitation agreement is not enough minimum contacts to confer personal jurisdiction. Doing so would discourage visitation.
o   Draper v. Burke
§  Uniform Interstate Family Support Act
·         Child custody
o   Devine v. Devine
§  Tender years presumption is unconstitutional on EP. A “primary caretaker” presumption is OK because it is facially gender-neutral.
o   Palmore v. Sedate
§  The best interests of the child is the standard for custody. Race and social stigma is not a factor, except in preserving minority cultures.
o   Sagar v. Sagar
§  Parents had joint legal custody but could not agree on a religious ceremony. The child can decide for herself when she reaches an age of understanding.
o   Fulk v. Fulk
§  Fault is not a factor in determining custody. However, if a fault is characteristic of something that would not be in the best interests of the child to be exposed to, it can be considered. Affairs, violence, and accidents signal a lack of integrity, responsibility, and stability and weigh against granting custody.
o   Rowe v. Franklin
§  Be careful about going beyond the statutory factors for best interests. Financial resources are not a best interests factor unless one parent cannot even provide basic necessities.
o   Peter-Reimers v. Reimers
§  Fault is not a factor, but domestic abuse is a factor. The divorce was granted on extreme cruelty for mental and physical abuse. The domestic abuse was mental because H had an affair and physical, too.
§  In Indiana, domestic abuse is sufficient to deny custody and create a presumption of supervised visitation.
o   Bell v. Bell
§  Legislatures prefer joint physical and legal custody because it encourages both parents to be actively involved in the child’s life.
§  That the parents could not decide on one thing (the daycare provider) was not enough to award full legal custody to mom.
·         Visitation
o   Hanke v. Hanke
§  In determining duration, frequency, and the need for supervision of visitation, the best interests of the child is the standard.
o   Turner v. Turner
§  Suspending visitation for failure to pay child support is only appropriate when the NCP has the ability to pay but refuses to do so. It is not in the best interests of the child to keep a poor NCP away from the child.
o   Troxel v. Granville
§  Third party visitation statutes violate the fundamental interest in parenting.
·         Judicial determinations
o   McMillen v. McMillen
§  When both parents are equally fit and cannot agree on physical custody, the child’s preference should be taken into account.
§  After the age of 14 in Indiana.
o   Leary v. Leary
§  Guardians ad litem are appointed at the discretion and direction of the court. They can serve as advocates, factfinders, or somewhere in between.
o   In re Rebecca B.
§  Expert testimony is helpful to determining child custody. Experts should meet with all parties to get a full picture that provides credible testimony.
o   Ciesluk v. Ciesluk
§  When it is necessary to modify custody or visitation, there is an equal burden on both parents to prove the positives and negatives of modifying.
·         Policy concerns
o   Clark v. Jeter
§  The statute of limitations for filing for child support must be reasonable. Six years from birth is too short.
§  Mom might not want to sue for a while to maintain an amicable relationship with dad. Mom might not realize the need for support until later when costs increase.
o   Wallis v. Smith
§  A contract for mom to use birth control is not enforceable. Mom’s breach does not absolve dad of child support obligations.
o   Stanley v. IL
§  A presumption that unwed fathers are unfit parents is unconstitutional. Unwed fathers must be given a hearing to determine their fitness as a parent.
o   Michael H. v. Gerald D.
§  A presumption that the husband is the father of the wife’s child is constitutional. It can only be rebutted by proof that the husband was impotent or absent for a significant period of time such that it would be impossible for him to be the father. Any other rule would allow any third party to arbitrarily penetrate any intact family and demand paternity formalities.
·         Termination of parental rights
o   Smith case
§  Foster parents have no constitutional parental rights.
o   Santosky v. Kramer
§  Termination of parental rights on a preponderance of the evidence that the parents were unfit and failed to maintain contact with the children or plan for their future was unconstitutional on Procedural Due Process.
§  Three-pronged PDP standard
·         Private interests at stake
o   Fundamental parental rights
·         Risk of error
o   The PE burden is low, same as a tort standard. But the proceeding is similar to a criminal trial. The state has unlimited resources while parents have limited resources.
·         Public interests at stake
o   The state has an interest in having cheap, efficient proceedings and a higher interest in protecting children from neglect.
§  The private interests vastly outweigh the state interest. Termination of parental rights requires something higher than PE of unfitness.
o   State v. Brady
§  Termination of parental rights requires compelling circumstances. The court must recognize when a mother is on the right track and on her way to becoming a fit parent. If there is evidence that she will one day reasonably be able to be a fit parent, then termination of parental rights is not appropriate; the child must remain in foster care.
·         Child abuse
o   Indiana rules
§  Everyone is a mandatory reporter of child abuse based on a subjective standard of what constitutes child abuse.
§  Child in Need of Services
·         The burden for DCS to prove that a child is CHINS is PE.
·         Adoption
o   Indiana rules
§  NO equitable adoption. There must be formal proceedings.
§  Surrogacy contracts are unenforceable.

§  Same sex couples and unmarried cohabitants can file a joint petition for adoption.

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