text: Family Law - Justia Case Law Summaries http://law.justia.com/summaryfeed/family-law/ 2014-11-24T00:11:40-08:00 Justia Inc http://www.justia.com/ Justia Law https://law.justia.com/sites/law.justia.com/files/justia_law_theme_logo.png Copyright 2014 Justia Inc http://law.justia.com/cases/alaska/supreme-court/2014/s-15318.html Asa'carsarmiut Tribal Council v. Wheeler 2014-11-21T10:00:56-08:00 2014-11-22T04:17:59-08:00 J.W. was the son of Jeanette Myre, a member of the Asa'carsarmiut Tribe, and John Wheeler, a non-member. In 2007 Myre petitioned the Asa'carsarmiut Tribal Court to assume jurisdiction over the custody of J.W. After a hearing in which both parents participated. The tribal court awarded Myre primary physical custody and granted Wheeler limited visitation rights. In 2011 Wheeler kept J.W. at the end of a visitation period, then initiated custody proceedings in Alaska superior court. Myre moved to enforce the 2007 tribal court custody order; the superior court found it to be a lawful custody order and returned J.W. to Myre's custody. In 2012 Myre was arrested for child endangerment, and the State of Alaska assumed protective custody of J.W. Wheeler moved for modification of the custody order in the superior court. The Asa'carsarmiut Tribal Council intervened in the superior court proceeding to argue that the superior court lacked jurisdiction to modify the tribal court custody order. The superior court concluded it had modification jurisdiction and determined there had been substantially changed circumstances such that modification was in J.W.'s best interests. The superior court awarded Wheeler primary physical custody. Neither Wheeler nor Myre appealed the superior court's decision, but the tribal council appealed, arguing that the superior court lacked modification jurisdiction. The narrow question before the Alaska Supreme Court was whether the tribal council has standing to appeal the superior court's modification decision in light of the parents' election not to appeal that decision. Concluding that under this circumstance, the tribal council did not have standing, and the Supreme Court dismissed the appeal.View "Asa'carsarmiut Tribal Council v. Wheeler" on Justia Law 2014-11-21 state Alaska Alaska Supreme Court Dana Fabe S-15318 http://law.justia.com/cases/iowa/supreme-court/2014/140806.html In re Interest of A.M. 2014-11-21T07:01:30-08:00 2014-11-21T19:23:15-08:00 In 2013, a child-in-need-of-assistance (CINA) petition was filed alleging that three minor children were in need. The guardian ad litem subsequently subpoenaed Mother's therapist to testify at the CINA adjudicatory hearing regarding her mental health counseling of Mother. Thomas filed a motion to quash the subpoena, arguing that the information sought was confidential where Mother declined to waive the patient-psychotherapist privilege. The juvenile court concluded that Thomas must testify at the hearing. Thomas appealed, and the Supreme Court treated the appeal as a petition for writ of certiorari. The Supreme Court annulled the writ and remanded, holding that Iowa Code 232.96(5)'s statutory exception to the psychotherapist privilege in CINA adjudicatory hearings controlled in this CINA proceeding, and the juvenile court's order enforcing the subpoena requiring Thomas to testify did not violate the confidentiality afforded mental health treatment under the Health Insurance Portability and Accountability Act (HIPAA).View "In re Interest of A.M." on Justia Law 2014-11-21 state Iowa Iowa Supreme Court Thomas D. Waterman 140806 http://law.justia.com/cases/nebraska/supreme-court/2014/s-12-736.html Anthony K. v. Neb. Dep't of Health & Human Servs. 2014-11-21T06:28:17-08:00 2014-11-21T20:57:18-08:00 Plaintiffs, individually and as guardians and next friends on behalf of their seven minor children, sued the Nebraska Department of Health and Human Services (DHHS), several DHHS employees in their official and individual capacities, and the children's guardian ad litem, alleging that over the course of the juvenile proceedings involving their oldest three children, Plaintiffs' constitutional and statutory rights had been violated. The district court sustained Defendants' motions do dismiss, concluding (1) Defendants were entitled to sovereign, qualified, absolute, and statutory immunities; and (2) Plaintiffs' claims against the DHHS employees in their individual capacities were barred by the statute of limitations. The Supreme Court affirmed, holding that the district court (1) did not err in dismissing the claims against the DHHS, the DHHS employees in their official capacities, and the guardian ad litem on the basis that they were immune from Plaintiffs' section 1983 claims; and (2) did not err in dismissing Plaintiffs' claims against the DHHS employees in their individual capacities on the grounds that the claims were barred by the applicable statute of limitations.View "Anthony K. v. Neb. Dep't of Health & Human Servs." on Justia Law 2014-11-21 state Nebraska Nebraska Supreme Court John F. Wright S-12-736 http://law.justia.com/cases/nebraska/supreme-court/2014/s-13-446.html Anthony K. v. State 2014-11-21T06:28:16-08:00 2014-11-21T20:42:12-08:00 After Plaintiffs' oldest three children were removed from Plaintiffs' care and eventually reunified with them, Plaintiffs, individually and as guardians and next friends on behalf of their seven minor children, sued the State, the Department of Health and Human Services (DHHS), and several DHHS employees. The case was brought pursuant to 42 U.S.C. 1983. In the complaint, Plaintiffs sought general and special damages for violations of their constitutionally protected rights to familial integrity, due process, and equal protection. The district court dismissed Plaintiffs' complaint, concluding (1) only the State had been properly served; (2) the State was entitled to sovereign immunity as to Plaintiffs' section 1983 claims that requested monetary damages; and (3) the State was entitled to summary judgment on Plaintiffs' remaining causes of action. The Supreme Court affirmed, holding that the district court (1) properly dismissed DHHS and the DHHS employees for lack of proper service of process; (2) correctly determined that sovereign immunity barred Plaintiffs' claims against the State for monetary damages under section 1983; and (3) erred in not granting the State's motion to dismiss all of Plaintiffs' causes of action but achieved the same result by dismissing all remaining causes of action against the State on summary judgment.View "Anthony K. v. State" on Justia Law 2014-11-21 state Nebraska Nebraska Supreme Court John F. Wright S-13-446 http://law.justia.com/cases/california/court-of-appeal/2014/g048888.html Helgestad v. Vargas 2014-11-18T17:01:04-08:00 2014-11-19T02:56:54-08:00 The issue on appeal in this case was one of first impression in California. An unmarried heterosexual couple had two children together, and a paternity test established that the child belonged to defendant-appellant, George Vargas. The couple separates and appellant moves out. Later, the couple attempts reconciliation, which lasted for nine months. The reconciliation failed, and appellant moved out of the house. Appellant claimed he was entitled for credit for the actual, in-home child support he afforded the children during the nine months he was "reconciled" with them and the mother. The trial court concluded the father was not eligible for any such "Jackson" credits, because this case did not fit the "Jackson" pattern of a child support order which originated in a divorce proceeding, and also because there wasn't a total reversal of custody, but rather a period of shared custody in the context of an attempted reconciliation. The Court of Appeal reversed, believing the same equitable considerations that apply to support orders arising out of marital cases should also apply to support orders arising out of paternity cases. "We see no reason to differentiate total changes of custody from periods of living together in the same household; actual support is actual support."View "Helgestad v. Vargas" on Justia Law 2014-11-18 state California California Court of Appeal William W. Bedsworth G048888 http://law.justia.com/cases/california/court-of-appeal/2014/b254274.html In re Daniel B. 2014-11-17T12:00:48-08:00 2014-11-17T16:08:12-08:00 Mother appealed from the juvenile court's dispositional order declaring two of her children dependents of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j), removing them from the custody of their father, and releasing them to Mother with family maintenance services. The court concluded that Mother's objection to the order requiring her to participate in a domestic violence support group was sufficient to preserve the issues raised on appeal; the juvenile court did not abuse its discretion by leaving the term of Mother's enrollment in a domestic violence support group open ended; but, the juvenile court erred by granting the program's counselors unfettered discretion to decide, based on their own criteria, when Mother has satisfied her court-ordered case plan. Accordingly, the court reversed a portion of the order and remanded to the juvenile court for further proceedings.View "In re Daniel B." on Justia Law 2014-11-17 state California California Court of Appeal Laurie D. Zelon B254274 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41976.html Suter v. Biggers 2014-11-14T14:02:04-08:00 2014-11-14T19:07:10-08:00 This appeal arose from a custody dispute between Jeffrey Biggers and Emily Suter over their two children. Emily remarried, and her husband worked in McCall. Emily made several attempts to modify custody, and each time she was unsuccessful. At trial, a magistrate judge held that last attempt, a permanent move to McCall, would have been a "material, permanent, and significant change" for the children and denied the request for modification. Neither party appealed this finding. At the conclusion of trial, the court found that it would be in the boys' best interests to remain in the Emmett area. Consistent with this finding, the court ordered that Jeff and Emily have joint physical and legal custody, that Jeff have primary custody of the boys, and that Emily have visitation rights throughout the year and over the summer break. Emily appealed that ruling, but finding no abuse of discretion or other reversible error, the Supreme Court affirmed.View "Suter v. Biggers" on Justia Law 2014-11-13 state Idaho Idaho Supreme Court - Civil Roger S. Burdick 41976 http://law.justia.com/cases/nebraska/supreme-court/2014/s-13-643.html In re Interest of Shayla H. 2014-11-14T07:03:16-08:00 2014-11-14T12:45:23-08:00 Father had custody of his three minor children that were "Indian children" within the meaning of the federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA). The children were adjudicated as being within Neb. Rev. Stat. 43-247(3)(a) because they lacked proper parental care. The juvenile court determined that it was in the children's best interests for Father to have only physical custody and awarded legal custody of the children to the Nebraska Department of Health and Human Services (DHHS). The court of appeals reversed, holding that the juvenile court erred by not addressing at the dispositional hearing whether the State made "active efforts," as required by ICWA/NICWA, to return the children's legal custody to Father. The State appealed, arguing that the "active efforts" standard did not apply to the disposition in this case, but rather, the "reasonable efforts" standard applicable in cases involving non-Indian children applied. The Supreme Court affirmed, holding that at any point in an involuntary juvenile proceeding involving Indian children at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the "active efforts" standard of ICWA/NICWA applies.View "In re Interest of Shayla H." on Justia Law 2014-11-14 state Nebraska Nebraska Supreme Court Kenneth C. Stephan S-13-643 http://law.justia.com/cases/west-virginia/supreme-court/2014/13-0892.html Kinsinger v. Pethel 2014-11-13T12:07:45-08:00 2014-11-13T14:31:26-08:00 Carol Kinsinger and Todd Pethel were divorced by a final order entered in 2006. The final order incorporated by reference a settlement agreement stating that Kinsinger was entitled to fifty percent of the martial portion of Pethel's thrift savings plan (TSP). In 2012, Kinsinger prepared and filed a qualified domestic relations order (QDRO), and the family court ordered the Kinsinger be paid one-half of the marital portion of the TSP that was contributed while the parties were married and living together. However, in 2009, Pethel had withdrawn all funds from the TSP. Petitioner filed a petition for contempt of the retirement benefits order. The family court declined to find Pethel in contempt, concluding that Kinsinger failed to timely file her QDRO and therefore forfeited her share of the TSP. The circuit court affirmed, interpreting the family court ruling as an application of the doctrine of laches. The Supreme Court (1) affirmed the circuit court's finding that Pethel was not in contempt of the QDRO; but (2) reversed the circuit court's finding that Kinsinger forfeited her share of the TSP under the doctrine of laches. Remanded for entry of a judgment order awarding Kinsinger the amount to which she was entitled.View "Kinsinger v. Pethel" on Justia Law 2014-11-13 state West Virginia Supreme Court of Appeals of West Virginia Brent D. Benjamin 13-0892 http://law.justia.com/cases/nevada/supreme-court/2014/63311.html In re Parental Rights as to A.L. 2014-11-13T10:03:18-08:00 2014-11-13T18:38:21-08:00 The Clark County Department of Family Services (DFS) filed a petition for protective custody of C.B. and A.L., two minor children, alleging that Mother had either physically abused or negligently supervised C.B., whose face had been burned. The hearing master recommended sustaining the abuse and neglect petition on the ground that Mother had physically abused C.B. The juvenile court affirmed the hearing master's recommendation, concluding that the injury was not accidental. After a trial, the district court terminated Mother's parental rights as to the two children. The court relied on the hearing master's findings, as affirmed by the juvenile court, that Mother was at fault for C.B.'s injuries and that the injuries were nonaccidental. The Supreme Court reversed, holding (1) DFS conceded error on the issue of the district court's reliance on the juvenile court's determination that C.B.'s injury was caused by Mother; and (2) since the finding of intentional abuse was based on a concededly improper failure to admit evidence rebutting a statutory presumption, a new trial was required to determine Mother's parental rights.View "In re Parental Rights as to A.L." on Justia Law 2014-11-13 state Nevada Supreme Court of Nevada Ron D. Parraguirre 63311 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-128.html In re M.C. 2014-11-13T08:02:47-08:00 2014-11-13T13:46:59-08:00 After a termination hearing, the district court terminated Father's parental rights to his child on the grounds that Father was unwilling or unable to take responsibility for the child in a time frame calculated to meet the child's needs and that the termination of parental rights was in the best interest of the child. Father's counsel subsequently filed an appellate brief containing only a procedural history and statement of facts, accompanied by a motion for enlargement of time to allow Father personally to file a supplemental brief. The Supreme Court granted the motion, but Father did not file a supplemental brief by the deadline provided. The Court affirmed, holding (1) the process utilized by Father's counsel in this appeal was proper; and (2) the district court did not err in finding that termination of Father's parental rights was in the child's best interest.View "In re M.C." on Justia Law 2014-11-13 state Maine Maine Supreme Judicial Court Donald G. Alexander 2014 ME 128 http://law.justia.com/cases/arkansas/supreme-court/2014/cv-14-612.html Ingle v. Ark. Dep't of Human Servs. 2014-11-13T08:01:12-08:00 2014-11-13T11:38:06-08:00 Upon Mother's arrest on drug-related charges, the circuit court declared that C.N. was dependent-neglected and awarded Father permanent custody of C.N. The Supreme Court reversed and remanded, directing the circuit court to return C.N. to Mother's custody. The Arkansas Department of Human Services (DHS) filed a petition requesting an emergency hearing, asserting that issues of grave concern had arisen during the pendency of the appeal. In its ruling from the bench, the circuit court found, among other things, that Mother had been arrested twice in the past year, that placing C.N. in Mother's care was not safe, and that placing it would be detrimental to C.N. to remove him from Father's home. The Supreme Court affirmed, holding (1) the circuit court did not violate the mandate of the Court issued in the prior appeal; and (2) the circuit court's findings were supported by the evidence.View "Ingle v. Ark. Dep't of Human Servs." on Justia Law 2014-11-13 state Arkansas Arkansas Supreme Court Courtney Hudson Goodson CV-14-612 http://law.justia.com/cases/montana/supreme-court/2014/da-13-0790-0.html In re M.S. 2014-11-12T16:02:00-08:00 2014-11-12T19:59:01-08:00 Thirteen-year-old M.S. was placed into emergency protective custody in 2011. After M.S. was adjudicated a youth in need of care, the Department of Public Health and Human Services filed a petition for termination of Father's rights. Because Father was an enrolled member of the Northern Cheyenne Tribe (Tribe), M.S. was eligible for enrollment with the Tribe and, under Indian Child Welfare Act, M.S. was an Indian child. After a hearing in 2013, the district court ordered Father's parental rights terminated. The Supreme Court affirmed, holding that the termination proceedings complied with statutory requirements for proceedings involving an Indian child.View "In re M.S." on Justia Law 2014-11-12 state Montana Montana Supreme Court Beth Baker DA 13-0790 http://law.justia.com/cases/montana/supreme-court/2014/da-14-0221.html In re Marriage of Tanascu 2014-11-12T15:02:05-08:00 2014-11-12T19:26:41-08:00 In 2013, the district court entered a decree of dissolution dissolving the marriage of Wife and Husband. The district court incorporated a property settlement agreement as part of the decree. Approximately one year later, Wife sought relief from the final decree, claiming that the property settlement was unconscionable and that the district court should modify the dissolution decree. The district court denied Wife's request, finding that there was no basis in fact or law to re-open and modify the decree. The Supreme Court affirmed, holding that Wife did not present any substantial reason that her agreement to the settlement should be overturned or that the dissolution decree should be modified.View "In re Marriage of Tanascu" on Justia Law 2014-11-12 state Montana Montana Supreme Court Mike McGrath DA 14-0221 http://law.justia.com/cases/north-dakota/supreme-court/2014/20140084.html Harvey v. Harvey 2014-11-12T12:11:43-08:00 2014-11-12T19:28:19-08:00 Jerry Harvey appealed a district court judgment granting a divorce to Christine Rasmussen Harvey, distributing the parties' marital estate, awarding her primary residential responsibility of the parties' three minor children, and denying him spousal support. Upon review, the Supreme Court concluded the district court's decision to award Christine Rasmussen Harvey primary residential responsibility was not clearly erroneous. Furthermore, the Court concluded the court erred by failing to consider reservation of jurisdiction to award spousal support in the future. As such, the Court affirmed in part, reversed in part, and remanded for additional findings on the issue of Jerry Harvey's disabled status.View "Harvey v. Harvey" on Justia Law 2014-11-12 state North Dakota North Dakota Supreme Court Gerald W. VandeWalle 20140084 http://law.justia.com/cases/california/court-of-appeal/2014/b251636.html In re: Marriage of Schu 2014-11-12T11:01:00-08:00 2014-11-12T12:26:55-08:00 After twenty-three years of marriage, husband and wife separated when wife was convicted of seven counts of unlawful sexual intercourse with a minor under 16 years of age and three counts of oral copulation of a minor 18 years of age. Wife filed a motion for support five weeks before her release from prison, set to be heard three days after her release. The hearing was continued because husband was out of the country and then the hearing was continued a second time when husband could not obtain wife's vocational examination. The trial court concluded that its jurisdiction expired and issued an order denying spousal support to wife. At issue is the marital settlement agreement, which provided that the trial court will reserve jurisdiction to award long-term spousal support "until" wife is released from prison. The court concluded that the parties' conduct after wife's release from prison demonstrates that they did not contemplate the hearing on the issue of long-term support would take place the day of wife's release. Wife requested support before she was released and the hearing went forward as soon as reasonably possible. Therefore, the trial court retained jurisdiction to award long-term spousal support. It would be inequitable to so narrowly construe the word "until" when the parties' conduct and action evince no such interpretation. Accordingly, the court reversed and remanded.View "In re: Marriage of Schu" on Justia Law 2014-11-12 state California California Court of Appeal Arthur Gilbert B251636 http://law.justia.com/cases/oklahoma/supreme-court/2014/113018.html Eldredge v. Taylor 2014-11-12T09:38:28-08:00 2014-11-12T10:57:18-08:00 Partners in a civil union signed co-parenting agreements designating Plaintiff as the parent of Defendant's two biological children. Upon their separation and dissolution of the civil union, Plaintiff continued to act as a parent for the children. Defendant removed the children from Plaintiff's care, changed their last names, and planned to remove the children from Oklahoma. Plaintiff petitioned the District Court for, inter alia, a determination of her parental rights. The district court granted Defendant's motion to dismiss. Plaintiff appealed. This was an issue of first impression in Oklahoma. Addressing the threshold issue of standing with regard to plaintiff's case, the Supreme Court concluded that plaintiff had standing to seek a best-interests-of-the-child hearing when the biological parent relinquished some of her parental rights through a co-parenting agreement. As such, the Court concluded the trial court erred in granting defendant's motion to dismiss the case, and remanded the case to address other issues plaintiff raised on appeal.View "Eldredge v. Taylor" on Justia Law 2014-11-12 state Oklahoma Oklahoma Supreme Court Steven W. Taylor 113018 http://law.justia.com/cases/federal/appellate-courts/ca11/13-14631/13-14631-2014-11-10.html Lightfoot v. Henry Cnty. Sch. Dist. 2014-11-10T14:00:35-08:00 2014-11-10T14:29:30-08:00 Plaintiff filed suit against the School District, her former employer, for violations of the Family Medical Leave Act (FMLA), 29 U.S.C. 2601 et seq., and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. The court held that the School District is not an "arm of the State," and instead operates more like a county or similar political subdivision to which Eleventh Amendment immunity does not extend. Therefore, the court reversed the district court's finding that the School District was entitled to Eleventh Amendment immunity. In regards to plaintiff's ADA retaliation claim, the court affirmed the district court's grant of summary judgment to the School District where the district court did not abuse its discretion by declining to construe plaintiff's ADA retaliation claim as being based on different facts than the ones actually pled in her ADA count. Even when construed liberally, plaintiff's complaint did not give the School District notice that her ADA retaliation claim was based on her request for FMLA leave.View "Lightfoot v. Henry Cnty. Sch. Dist." on Justia Law 2014-11-10 federal U.S. Court of Appeals for the Eleventh Circuit Huck 13-14631 http://law.justia.com/cases/alaska/supreme-court/2014/s-15351.html Chloe W. v. Dept. of Health & Social Services, Office of Children's Services 2014-11-07T10:00:35-08:00 2014-11-07T11:30:19-08:00 Chloe W. appealed the termination of parental rights to her three-year-old son Timothy under the Indian Child Welfare Act of 1978 (ICWA). She claimed the trial court erred by: (1) relying too heavily on a stipulation filed after the close of evidence, which Chloe argued was the result of ineffective assistance of counsel; (2) finding that Chloe had not remedied the conduct that placed Timothy at risk; (3) finding that OCS made active efforts to reunify the family; and (4) finding that terminating Chloe's parental rights was in Timothy's best interests. Because the trial court's findings are amply supported by the record and its legal rulings are correct, the Alaska Supreme Court affirmed the trial court's order terminating Chloe's parental rights to Timothy.View "Chloe W. v. Dept. of Health & Social Services, Office of Children's Services" on Justia Law 2014-11-07 state Alaska Alaska Supreme Court Dana Fabe S-15351 http://law.justia.com/cases/wyoming/supreme-court/2014/s-14-0089.html SAS v. State 2014-11-07T08:06:42-08:00 2014-11-07T15:24:10-08:00 The State filed a petition to terminate Mother's parental rights to her two children pursuant to Wyo. Stat. Ann. 14-2-309(a)(iii) and 14-2-309(a)(v). After a trial, the district court determined that the State had proven by clear and convincing evidence that Mother's parental rights should be terminated pursuant to both statutory provisions. Mother appealed. The Supreme Court affirmed, holding (1) the district court was not deprived of its jurisdiction when statutory deadlines were bypassed; (2) the evidence clearly and convincingly supported the district court's decision to terminate Mother's parental rights pursuant to section 14-2-309(a)(v); and (3) Mother waived her contention that she received ineffective assistance of counsel, and Mother's argument that the cumulative effect of errors violated her due process rights failed.View "SAS v. State" on Justia Law 2014-11-07 state Wyoming Wyoming Supreme Court Kate M. Fox S-14-0089 http://law.justia.com/cases/vermont/supreme-court/2014/2012-415.html Barrup v. Barrup 2014-11-07T08:06:13-08:00 2014-11-07T11:35:46-08:00 The primary issue in this case involved the rights of a former mother-in-law whose property interests were purportedly adjudicated in the final divorce decree between her son and his former wife in an action to which she was not a party. Appellant-former-wife Tammy Barrup appealed an order modifying a final property-division order to account for the recorded interest of her former mother-in-law in property that was purportedly divided in the final divorce decree, and also modifying spousal maintenance. The intervenor, the former mother-in-law Marilyn Barrup, cross-appealed. Upon review, the Supreme Court found no reversible error in the trial court's judgment, and affirmed the outcome.View "Barrup v. Barrup" on Justia Law 2014-11-07 state Vermont Vermont Supreme Court Beth Robinson 2012-415 http://law.justia.com/cases/nebraska/supreme-court/2014/s-14-021.html Charleen J. v. Blake O. 2014-11-07T07:03:08-08:00 2014-11-07T14:43:46-08:00 In 2010, the district court for Boone County issued a default judgment of paternity against the father of a child born out of wedlock. In 2013, the mother filed a complaint for custody in the district court for Madison County, where all parties lived. The district court for Madison County ultimately dismissed the case and vacated its prior orders, concluding that it lacked subject matter jurisdiction because the child's paternity had been decided by the district court for Boone County. The Supreme Court affirmed, holding that because the district court for Boone County did not transfer the cause or otherwise relinquish its continuing jurisdictional priority, the district court did not err in vacating its orders and dismissing the complaint.View "Charleen J. v. Blake O." on Justia Law 2014-11-07 state Nebraska Nebraska Supreme Court Michael McCormack S-14-021 http://law.justia.com/cases/nebraska/supreme-court/2014/s-13-1140.html Huskey v. Huskey 2014-11-07T07:03:07-08:00 2014-11-07T14:43:03-08:00 Upon the divorce of Mother and Father, Mother was awarded custody of the parties' two children, and Father was granted parenting time. Thereafter, Mother joined the military and was assigned to Fort Benning, Georgia for a one-year period. Pursuant to Neb. Rev. Stat. 43-2929.01, which affords procedural protections in cases involving child custody and parenting time to military parents affected by mobilization or deployment, the district court permitted the children to relocate to Georgia with Mother for the remainder of her temporary assignment. Father appealed. The Supreme Court dismissed the appeal, holding that the Legislature did not intend for appellate review of truly temporary orders entered pursuant to section 43-2929.01(4)(a), and therefore, the Court lacked jurisdiction over the appeal.View "Huskey v. Huskey" on Justia Law 2014-11-07 state Nebraska Nebraska Supreme Court William B. Cassel S-13-1140 http://law.justia.com/cases/new-hampshire/supreme-court/2014/2014-030-0.html In re: G.B., III 2014-11-07T06:02:51-08:00 2014-11-07T11:31:45-08:00 Respondent-father G. B., II appealed a Circuit Court order terminating his parental rights over his son, G. B., III. In September 2008, the father was arrested after making arrangements with an undercover state trooper to pay to have the child's mother, Michelle H., murdered. The father pleaded guilty to a class A felony indictment for criminal solicitation to commit murder as principal and/or accomplice. His sentence carried an early-release date of August, 2016. In 2009, Michelle H. died. It appears that at that point, guardianship over the child was granted to either his maternal grandfather, or both of his maternal grandparents, although no certificate of appointment appeared in the record. In February 2012, petitioners, Robert H. (Michelle's cousin) and his wife Carolyn H., petitioned for guardianship over the child. Furthermore, they filed a petition against G.B., III for termination of his parental rights on grounds of abandonment, failure to support, educate or care for the child, and because of his conviction for soliciting the murder of G.B., III's mother. The trial court granted the petition and terminate G.B., II's parental rights. Finding no reversible error, the Supreme Court affirmed the termination.View "In re: G.B., III" on Justia Law 2014-11-07 state New Hampshire New Hampshire Supreme Court Gary E. Hicks 2014-030 http://law.justia.com/cases/new-hampshire/supreme-court/2014/2013-078.html In the Matter of Ismail Yaman and Linda Yaman 2014-11-07T06:02:44-08:00 2014-11-07T11:31:43-08:00 Petitioner Ismail Yaman, a Turkish citizen, and respondent Linda Yaman, a United States citizen, were married in Turkey in August 2000, and respondent became a Turkish citizen in October 2000. Their first child, K.Y., was born in March 2002, in the United States. In January 2003, the family moved to Turkey. The couple's second child, E.Y., was born in Turkey in August 2003. In early to mid-2004, the respondent became suspicious that petitioner was sexually abusing their older child. In December 2004, the parties separated, and early the next year, petitioner initiated divorce proceedings in the Turkish Family Court. On March 13, 2006, after conducting six hearings in which the court considered evidence from both parties and from the independent experts, the Turkish court rejected respondent's claim that petitioner had abused the children, and issued an order granting sole legal custody of the children to petitioner and granting respondent visitation. Respondent appealed the order to the Supreme Court of Appeals of Turkey on two occasions, and both times the appellate court affirmed the family court's order. The family court finalized its order in 2007. Within weeks after the family court's order became final, and without notice to petitioner, respondent fled Turkey with the children by engaging the services of a self-proclaimed "snatch back" specialist. After years of searching, petitioner, who remained in Turkey, was informed in December 2011 that respondent and the children were living in New Hampshire. Petitioner filed a petition pursuant to Article 2 of the Hague Convention on the Civil Aspects of International Child Abduction2 and the International Child Abduction Remedies Act (ICARA) with the United States District Court for the District of New Hampshire. Following a three-day evidentiary hearing, the court ruled that the return of the children to Turkey would not pose a grave risk of harm to them because respondent had not established that petitioner abused them. The court also found, however, that the respondent had established that the children were "settled" in New Hampshire within the meaning of Article 12 of the Hague Convention; in light of this finding, the court ruled that it lacked the authority to order the children's return to Turkey. Alternatively, the court ruled that, given the facts of the case, even if it did have the authority to do so, it would not order the return of the children to Turkey. Petitioner appealed to the United States Court of Appeals for the First Circuit, which determined that the district court erred in ruling that it lacked authority to order the return of "settled" children, but affirmed the trial court's alternative ruling denying return of the children on equitable grounds as a sustainable exercise of discretion. After its review, the New Hampshire Supreme Court held that the circuit court did not err in granting enforcement of the Turkish custody order.View "In the Matter of Ismail Yaman and Linda Yaman" on Justia Law 2014-11-07 state New Hampshire New Hampshire Supreme Court Robert J. Lynn 2013-078 http://law.justia.com/cases/federal/appellate-courts/ca6/14-5818/14-5818-2014-11-06.html Love v. Beshear 2014-11-06T14:00:40-08:00 2014-11-06T14:29:22-08:00 Same-sex couples living in Michigan. Kentucky, Ohio, and Tennessee successfully challenged a variety of state laws concerning marriage. The Sixth Circuit reversed the district court rulings after exploring Supreme Court precedent. None of the theories invoked by plaintiffs--rational basis review; animus; fundamental rights; suspect classifications; evolving meaning--makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters. The court reasoned that a change in the law may result from the Supreme Court constitutionalizing a new definition of marriage to meet new policy views or by "the traditional arbiters of change—the people." The court noted that in 11 years, 19 states and the District of Columbia, accounting for nearly 45 percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universal. "When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers."View "Love v. Beshear" on Justia Law 2014-11-06 federal U.S. Court of Appeals for the Sixth Circuit Sutton 14-5818 14-1341 14-3057 14-3464 14-5291 14-5297 http://law.justia.com/cases/mississippi/supreme-court/2014/2012-ct-01299-sct-0.html In the Matter of the Estate of Boyce Elmore, Deceased 2014-11-06T11:50:13-08:00 2014-11-06T20:50:35-08:00 Boyce Elmore died on November 5, 2000. More than ten years later, Cedric Williams (claiming to be Boyce's son) filed a paternity action in an effort to recover under Boyce's estate. After the chancellor held that Cedric's action was timely, Boyce's estate appealed and the Court of Appeals reversed. The Supreme Court agreed with the Court of Appeals that the chancellor's decision should have been reversed.View "In the Matter of the Estate of Boyce Elmore, Deceased" on Justia Law 2014-11-06 state Mississippi Supreme Court of Mississippi Jess H. Dickinson 2012-CT-01299-SCT http://law.justia.com/cases/mississippi/supreme-court/2014/2012-ca-01423-sct.html Davenport v. Davenport 2014-11-06T11:50:12-08:00 2014-11-06T20:44:55-08:00 Tammy and Dane Davenport were granted an irreconcilable-differences divorce in 2012. Tammy appealed the final judgment of divorce, arguing the trial court erred in dividing the couple's assets, and in excluding certain evidence, and not making certain on-record findings with regard to Tammy's ability to pay alimony awarded to Dane. Finding no error, the Supreme Court affirmed.View "Davenport v. Davenport" on Justia Law 2014-11-06 state Mississippi Supreme Court of Mississippi Michael K. Randolph 2012-CA-01423-SCT http://law.justia.com/cases/mississippi/supreme-court/2014/2013-ia-01074-sct.html Brent v. Mathis, II 2014-11-06T11:50:09-08:00 2014-11-06T20:44:45-08:00 Following his divorce, Vennit Mathis, individually and as next friend of his two minor children, sued Dr. Charles Brent for tortious interference of a marriage contract stemming from the relationship that Brent developed with Mathis' then-wife, Nicole, shortly after the doctor treated Mrs. Mathis for neck pain. Mr. Mathis also sued on grounds of alienation of affection, and reckless infliction of emotional distress. Brent moved for summary judgment on the children's claims, but the trial court denied the motion. After a hearing, the trial court denied the motion. The judge let the parties discuss only standing (of the children) at the hearing. The order denying summary judgment consisted of one sentence, thus, there was no insight into the trial court's rationale on any issues. The Supreme Court granted Brent's petition for interlocutory appeal. Brent argued that the minor children's claim that he alienated the affection of their mother failed as a matter of law because the children lacked standing to bring such a claim: only an aggrieved spouse has standing to bring a claim of alienation of affection. This issue was of first impression; in every other case considered by the Mississippi Supreme Court, a husband or wife has brought the claim for alienation of affection. Mathis argued that "some of the earliest recognitions of alienation of affection involve claims having nothing to do with extra-marital affairs," but deal with intrusion into the family unit by an outside party. The Supreme Court was not persuaded: "[g]iven that Mississippi does not view marriage as a judicially enforced contract," the children's claim for tortious interference with a marriage contract was dismissed. Furthermore, the children failed to produce sufficient evidence to support a claim of intention infliction of emotional distress. The trial court's denial of Brent's motion for summary judgment as to all of the minor children's claims was reversed.View "Brent v. Mathis, II" on Justia Law 2014-11-06 state Mississippi Supreme Court of Mississippi Josiah D. Coleman 2013-IA-1074-SCT http://law.justia.com/cases/arkansas/supreme-court/2014/cv-14-914.html Holloway v. Ark. Dep't of Human Servs. 2014-11-06T11:01:23-08:00 2014-11-06T18:18:53-08:00 Appellant's attorney, Jeffrey Kearney, failed to timely file a notice of appeal from the circuit court's order terminating Appellant's parental rights. Appellant, by and through her attorney, brought this motion for rule on clerk in which Kearney admitted fault for failing to timely lodge the record with the Supreme Court. The Supreme Court granted the motion, holding (1) although the motion was presented as a motion for rule on clerk wherein Kearney accepted fault for the failure to timely lodge the record, the motion should be treated as a motion for belated appeal because of Kearney's failure to timely file the notice of appeal; and (2) Appellant was entitled to relief.View "Holloway v. Ark. Dep't of Human Servs." on Justia Law 2014-11-06 state Arkansas Arkansas Supreme Court Per Curiam CV-14-914 http://law.justia.com/cases/arkansas/supreme-court/2014/cv-14-827-0.html Bohannon v. Robinson 2014-11-06T11:01:20-08:00 2014-11-06T17:55:18-08:00 Appellee filed a petition for an order of protection on behalf of his son against Appellant, the child's mother. After a hearing, the trial court entered an order of protection against Appellant. Appellant subsequently filed a posttrial motion to set aside the order, arguing that there was insufficient evidence to support the circuit court's finding of domestic abuse. The circuit court denied the motion. The court of appeals affirmed. The Supreme Court reversed, holding that the circuit court clearly erred in finding that there was sufficient evidence produced at the hearing to support the entry of a final order of protection against Appellant.View "Bohannon v. Robinson" on Justia Law 2014-11-06 state Arkansas Arkansas Supreme Court James Hannah CV-14-264 http://law.justia.com/cases/montana/supreme-court/2014/da-14-0231-1.html Gardner v. Gardner 2014-11-05T14:59:32-08:00 2014-11-05T16:41:08-08:00 The paternal grandmother (Grandmother) of two minor children petitioned the district court for grandparent-grandchild contact. After a hearing, the district court granted Grandmother weekly phone contact, occasional weekend visits in Billings, Montana, and two weeks during the summer at Grandmother's home in Washington. The natural mother of the children (Mother) appealed. The Supreme Court affirmed the order of the district court with the exception of the provisions regarding extended visits in Washington state, holding that the district court correctly interpreted and applied the grandparent-grandchild contact statute, with the exception of the out-of-state visitation provisions adopted over Mother's objections.View "Gardner v. Gardner" on Justia Law 2014-11-05 state Montana Montana Supreme Court Mike McGrath DA 14-0231 http://law.justia.com/cases/federal/appellate-courts/ca1/14-1763/14-1763-2014-11-05.html Mauvais v. Herisse 2014-11-05T13:30:10-08:00 2014-11-05T19:11:21-08:00 Mother and Father had two minor children. The family lived in Canada for approximately three and a half years before Mother relocated the children to the United States, where the entire family had never lived together. Father filed a petition in a federal district court for the return of his children to Canada pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute, the International Child Abduction Remedies Act. A federal district court granted Father's petition, concluding (1) Canada was the children's country of habitual residence, and they were wrongfully removed for purposes of the Hague Convention; and (2) there was no grave risk that returning the children to Canada would expose them to physical or psychological harm. The First Circuit affirmed, holding that the district court did not err in (1) finding that Canada was the children's country of habitual residence; and (2) concluding that returning the children to Canada would not involve a grave risk of physical or psychological harm.View "Mauvais v. Herisse" on Justia Law 2014-11-05 federal U.S. Court of Appeals for the First Circuit Torruella 14-1763 http://law.justia.com/cases/federal/appellate-courts/ca4/14-1414/14-1414-2014-11-05.html Smedley v. Smedley 2014-11-05T12:00:45-08:00 2014-11-05T15:55:35-08:00 A German court denied Father's petition under the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98, and a German appellate court affirmed. Consequently, Mother did not have to return the children to North Carolina. On a one-month visit to North Carolina, Father decided to keep the children. The district court accorded comity to the German appellate court's decision and granted Mother's Hague petition. The children were ordered to return to Germany. Father appealed. The court rejected Father's arguments on appeal and concluded that the district court properly extended comity because the German court's decision neither clearly misinterpreted the Hague Convention nor failed to meet a minimum standard of reasonableness. Accordingly, the court affirmed the judgment of the district court.View "Smedley v. Smedley" on Justia Law 2014-11-05 federal U.S. Court of Appeals for the Fourth Circuit Allyson Kay Duncan 14-1414 http://law.justia.com/cases/federal/appellate-courts/ca7/14-1063/14-1063-2014-11-05.html MN Life Ins. Co. v. Jones 2014-11-05T08:30:48-08:00 2014-11-05T10:03:00-08:00 Jones was murdered, leaving no will. He owned a life insurance policy through his employer. He did not designate a beneficiary. The policy provided that the proceeds ($307,000) would go first to a surviving spouse (Jones never married), second to surviving children, third to surviving parents, and fourth to his estate. Quincy claimed to be Jones's son; Moore, claimed to be his daughter. The insurance company filed an interpleader action. After paying $24,000 for funeral expenses and $137,000 to Quincy, the company deposited the remainder with the court. Jones's biological sister also claimed the proceeds, arguing that Jones was homosexual and had not fathered children. Jones's income tax returns showed that he had claimed various children as dependents, sometimes omitting Quincy. A DNA test established that Moore was not his daughter. The district judge declined to order a test for Quincy because Jones had held Quincy out as his biological son and had signed an order in 1996 acknowledging Quincy (then six years old) as his son. The judge awarded Quincy the deposited funds.. The Seventh Circuit affirmed. Rule 35 would have allowed, but did not require, the judge to order a DNA test, given the presumption of paternity under Illinois law.View "MN Life Ins. Co. v. Jones" on Justia Law 2014-11-05 federal U.S. Court of Appeals for the Seventh Circuit Richard Allen Posner 14-1063 http://law.justia.com/cases/utah/supreme-court/2014/20120751.html Bolden v. Doe 2014-11-04T10:03:42-08:00 2014-11-04T13:45:54-08:00 In order to object to an adoption under the Utah Adoption Act, unwed biological fathers must not just assert and establish paternity but must also file a sworn affidavit attesting that they are able and willing to support their child. Unmarried mothers are not required to provide similar assurances about how they will care for and support a child. William Bolden, the putative father of J.S., tried to intervene in and object to the adoption of J.S. The district court barred Bolden from intervening because he failed to preserve his legal rights as a father by timely filing a paternity affidavit. Bolden appealed, arguing that the affidavit requirement is unconstitutional because, among other things, it discriminates against unmarried fathers. The Supreme Court affirmed the denial of Bolden's motion to intervene in the adoption proceedings, holding that the affidavit requirement does not violate Bolden's due process or equal protection rights, as (1) Bolden failed to establish an infringement of a fundamental right of substantive due process; and (2) the state's interests in protecting children by facilitating the adoption process are substantially advanced by the statutory affidavit requirement.View "Bolden v. Doe" on Justia Law 2014-11-04 state Utah Utah Supreme Court Thomas R. Lee 20120751 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-120.html Remick v. Martin 2014-11-04T09:02:06-08:00 2014-11-04T11:04:08-08:00 Father and Mother divorced in 2010. In the divorce judgment, the district court awarded sole parental rights and responsibilities along with primary residential care of the parties' son to Mother and granted Father visitation rights. Father filed several post-judgment motions related to his contact with his son. In 2013, the district court denied Father increased contact with his son, finding, among other things, that Father had not successfully completed the Violence No More program. The Supreme Court vacated the judgment, holding that some of the district court's findings were not supported by competent evidence, and the errors were not harmless. Remanded.View "Remick v. Martin" on Justia Law 2014-11-04 state Maine Maine Supreme Judicial Court Ellen A. Gorman 2014 ME 120 http://law.justia.com/cases/georgia/supreme-court/2014/s14a1565.html Spies v. Carpenter 2014-11-03T06:01:31-08:00 2014-11-03T17:36:20-08:00 Husband James Spies and Wife Cynthia Carpenter were married in California in 2000. They had two minor children, both of whom were born in that state. Husband was a movie and television producer and consultant. The family moved to Tennessee for a film project in 2006, and then to the metropolitan Atlanta area in 2011. The parties separated in 2013. Wife returned to California with the children and enrolled them in school. In the meantime, husband relocated to Virginia for another film project. On October 17, 2013, wife filed suit in Superior Court of California for legal separation from husband, and he was personally served in Virginia. Thereafter, the California court entered an order temporarily awarding wife sole custody of the children. That same day, husband filed a petition for divorce in Fulton County Superior Court, in which he requested, among other things, primary child custody. Wife entered a special appearance and moved to dismiss husband's petition on the ground that, inter alia, the trial court was an inconvenient forum under OCGA 19-9-67 of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). After consulting with the California court pursuant to the UCCJEA, the Fulton County trial court granted wife's motion and dismissed husband's entire case on the basis of forum non-conveniens. The Georgia Supreme Court granted husband's application for a discretionary appeal and posed this question: "did the trial court err in dismissing husband's entire divorce petition under OCGA 19-9-67 (a), instead of dismissing only the child custody portion of the case?" The Georgia Court answered this question affirmatively.View "Spies v. Carpenter" on Justia Law 2014-11-03 state Georgia Supreme Court of Georgia Hugh P. Thompson S14A1565 http://law.justia.com/cases/georgia/supreme-court/2014/s14a1051.html Mironov v. Mironov 2014-11-03T06:01:29-08:00 2014-11-03T17:34:41-08:00 On September 27, 2006, Mother Marci Mironov and Father Jeff Mironov were divorced; the decree directed Father to pay $3,750 per month for child support for their two children. In 2008, through a consent order, the parties agreed to reduce Father's monthly child support payments to $1,700. In April 2010, Mother petitioned to modify the child support upward, contending that Father's income had more than doubled since the time of the consent order. The parties, recognizing that Father's income fluctuated, reached an agreement setting his child support obligation at between $1,834.27 and $2,755.00 per month, depending on his income, and memorialized this in a 2011 consent order. However, the parties were unable to resolve the issue of attorney's fees and submitted the matter to the trial court. Each party claimed to have prevailed in the underlying action, Mother because she secured an upward modification of child support, and Father because the settlement was less than the $2,800 a month that Mother had sought before filing the modification action; Mother requested that she be awarded $7,312.50 in attorney's fees, and Father requested that he be awarded $7,242.26. The court issued an order stating that "[s]ince the parties reached an agreement, both with the assistance of counsel, this Court finds that both parties prevailed in this action," and concluded that "justice does not require the award of fees." To the extent that the trial court's order is an exercise of its discretion not to award attorney's fees to the prevailing party, the Supreme Court concluded it was in error as it was based on the erroneous conclusion that there could be, and were, two prevailing parties under OCGA 19-6-15 (k) (5). Accordingly, the Court reversed the trial court's judgment and remanded the case to the trial court for a determination of whether any attorney's fees are due Mother as the prevailing party, and if so, in what amount.View "Mironov v. Mironov" on Justia Law 2014-11-03 state Georgia Supreme Court of Georgia P. Harris Hines S14A1051 http://law.justia.com/cases/georgia/supreme-court/2014/s14f1711.html Fladger v. Fladger 2014-11-03T06:01:26-08:00 2014-11-03T17:33:10-08:00 Appellant-Father Kelly Fladger and appellee-mother Monica Fladger were married in 1994. Their marriage produced two children, who were ages ten and six when Mother filed for divorce in 2011. After a bench trial, the trial court entered an order of divorce in 2012, and then approximately one year later. In a discretionary appeal, Father challenged the amount of child support he has been ordered to pay, which was calculated in part using a high-income deviation. The Supreme Court reversed that portion of the divorce order and remanded for the trial court to make all of the written findings that the child support statute required before such a deviation may be applied.View "Fladger v. Fladger" on Justia Law 2014-11-03 state Georgia Supreme Court of Georgia David E. Nahmias S14F1711 http://law.justia.com/cases/georgia/supreme-court/2014/s14a0835.html Coxwell v. Coxwell 2014-11-03T06:01:25-08:00 2014-11-03T17:33:03-08:00 In a pending divorce action, the Georgia Supreme Court granted an application for interlocutory appeal by Appellant-Husband James Coxwell, who challenged the trial court's denial of his motion to enforce a lost antenuptial agreement between himself and Appellee-Wife Sandra Coxwell. Upon review of the application, the Court held that the appropriate standard of proof for establishing the contents of a lost antenuptial agreement is the preponderance of the evidence standard. Utilizing this standard, the Court concluded that the trial court did not err in holding that Husband failed to prove the terms of the lost antenuptial agreement.View "Coxwell v. Coxwell" on Justia Law 2014-11-03 state Georgia Supreme Court of Georgia Carol W. Hunstein S14A0835 http://law.justia.com/cases/alaska/supreme-court/2014/s-15280.html Villars v. Villars 2014-10-31T10:00:35-08:00 2014-10-31T18:46:57-08:00 Richard and Olga Villars were married in Ukraine in 2004. Richard (a U.S. citizen), signed a Form I-864 affidavit of support in which he agreed to maintain Olga and her daughter, Linda, at 125% of the applicable federal poverty rate. Olga and Linda came to Alaska, and Richard and Olga later divorced. For several years Richard and Olga litigated Richard's I-864 support obligation. After a previous appeal by Olga regarding Richard's obligation for the first eleven months of 2010, the Alaska Supreme Court remanded the case to the superior court to resolve Richard's obligation for that period, which was no longer at issue. The parties have continued to dispute Richard's I-864 obligations for 2009, December 2010, and all of 2011, 2012, and 2013. Following a series of hearings and orders in the superior court relating to these years, Richard filed this appeal, alleging a variety of errors by the superior court regarding its calculations of his obligations and potential offsets against those obligations. Because the superior court properly rejected Richard's attempt to relitigate issues resolved in earlier proceedings, the Supreme Court affirmed the superior court's orders rejecting those claims. The case was remanded for further factual findings.View "Villars v. Villars" on Justia Law 2014-10-31 state Alaska Alaska Supreme Court Dana Fabe S-15280 http://law.justia.com/cases/virginia/supreme-court/2014/131584.html Dinwiddie Dep't of Social Servs. v. Nunnally 2014-10-31T07:04:45-08:00 2014-11-01T09:58:00-08:00 Mother and Father ("Parents") were the parents of twin girls. Mother was a member of the Citizen Potawatomi Nation ("Tribe"), Father was not a member of any tribe, and the children were either members of, or eligible to be members of, the Tribe. The Dinwiddie Department of Social Services (DDSS) filed petitions to terminate Parents' parental rights. The Juvenile and Domestic Relations District Court ("J&DR court") denied the petitions. The DDSS appealed. The Tribe and Parents sought to transfer the case to tribal court. The trial court held that good cause existed not to transfer the proceeding to tribal court and denied the motion to transfer. The court then terminated Parents' parental rights. The court of appeals reversed the trial court's decision on the motion to transfer, vacated the award terminating Parents' parental rights, and remanded. In so doing, the court rejected the traditional "best interests of the child" test in favor of a more limited test involving a substantial risk of harm to a child arising from the transfer to a tribal court. The Supreme Court affirmed and remanded in light of the standards articulated by the court of appeals in Thompson v. Fairfax County Dep't of Family Servs.View "Dinwiddie Dep't of Social Servs. v. Nunnally" on Justia Law 2014-10-31 state Virginia Supreme Court of Virginia Per Curiam 131584 http://law.justia.com/cases/california/court-of-appeal/2014/d064816.html Marr. of Fajota 2014-10-30T13:00:55-08:00 2014-10-31T04:32:41-08:00 Elenita Fajota appealed a trial court order granting her ex-husband, Romer Fajota, joint legal custody of the couple's three children. According to Elenita, Romer admitted to engaging in acts of domestic violence, and the trial court found that Romer had committed domestic violence against her. Elenita argued on appeal that in awarding Romer joint legal custody, the trial court failed to apply the rebuttable presumption set forth in Family Code1 section 3044. The Court of Appeal agreed with Elenita that the trial court abused its discretion by failing to apply the mandatory presumption set forth in section 3044 when it determined that the parties would share joint legal custody of the children. Therefore, the Court reversed the custody order of the trial court contained in the judgment of dissolution, and remanded the matter to the trial court to apply the mandatory presumption in determining the custody of the children.View "Marr. of Fajota" on Justia Law 2014-10-30 state California California Court of Appeal Cynthia Aaron D064816 D065118 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-118.html Tuell v. Nicholson 2014-10-30T09:02:15-08:00 2014-10-30T14:05:01-08:00 After Mother relocated to North Carolina, Mother and Father, who were divorced, litigated the issue of whether their child's primary physical residence would be in Maine or North Carolina. The district court ordered that the child was to live primarily in Maine with Father and that Mother pay child support to Father. The parties then began disputing travel costs. In 2011, the court amended the judgment to provide that the child's travel expenses "shall be reflected as a 50% credit against [Mother's] child support obligation." In 2013, Mother filed a motion "to enforce and clarify" the judgment, requesting that the court amend the 2011 order so as to give her credit against her child support obligation based on the amount of her own travel expenses. The court denied the motion, finding it to be "frivolous," and awarded Father attorney fees. The Supreme Court affirmed, holding that the court did not abuse its discretion in concluding that the motion was frivolous and imposing sanctions.View "Tuell v. Nicholson" on Justia Law 2014-10-30 state Maine Maine Supreme Judicial Court Hjelm Lin-14-85 http://law.justia.com/cases/arkansas/supreme-court/2014/cv-14-85.html Swenson v. Kane 2014-10-30T08:01:34-08:00 2014-10-30T13:12:51-08:00 Shelley Kane, a resident of Texas, filed for emergency temporary guardianship of T.S., her minor niece, citing the declining health of Lois Swenson, the adoptive mother of T.S. The circuit court appointed Kane as temporary guardian. Thereafter, Swenson challenged the constitutionality of Ark. Code Ann. 28-65-203(f)(1), alleging that it creates a procedural law regarding service. In the meantime, Kane filed for permanent guardianship of T.S. After a final hearing, the circuit court appointed Kane as permanent guardian of T.S. and declared section 28-65-203 constitutional because its provisions are "special proceedings" pursuant to Ark. R. Civ. P. 81. The Supreme Court affirmed, holding that Kane's appointed guardianship was a special proceeding and excepted from the Rules of Civil Procedure and governed by statute.View "Swenson v. Kane" on Justia Law 2014-10-30 state Arkansas Arkansas Supreme Court Karen R. Baker CV-14-85 http://law.justia.com/cases/california/court-of-appeal/2014/a140804.html In re A.B. 2014-10-29T14:01:04-08:00 2014-10-29T14:25:14-08:00 Two minors were removed from the home of their mother and placed in the homes of their respective biological fathers in early 2013 pursuant to Welfare and Institutions Code section 361.2. After a contested disposition hearing, the dependency court upheld the removals, ordered the fathers to assume custody of the minors, declined mother's request for reunification services, and ordered Marin County Health and Human Services to conduct home visits and report back within three months pursuant to section 361.2, subdivision (b)(2). The court of appeal previously upheld those rulings. Mother then appealed from the dependency court's subsequent orders which again denied her reunification services and terminated its jurisdiction as to one child, arguing that she had a due process right to a further evidentiary hearing on the home visit reports that could not be conditioned on the sufficiency of her offer of proof. The court of appeal affirmed, noting that mother failed to demonstrate that an evidentiary hearing would have alleviated the court's concerns.View "In re A.B." on Justia Law 2014-10-29 state California California Court of Appeal Margulies A140804 http://law.justia.com/cases/california/court-of-appeal/2014/a140059.html Evilsizor v. Sweeney 2014-10-28T15:00:47-08:00 2014-10-28T15:07:48-08:00 Sweeney issued a subpoena for bank records in the course of divorce proceedings with his wife, Evilsizor. The subpoena sought records from his wife's accounts, but the records included financial information about her father. Her father, John, moved to quash the subpoena. Sweeney responded by agreeing to amend the subpoena to exclude information about John's account activities. John then withdrew his motion to quash, but did so belatedly. The trial court sanctioned him by ordering him to pay a portion of the attorney fees Sweeney incurred in responding to the motion. The court of appeal affirmed. A trial court may impose sanctions under Code of Civil Procedure section 1987.2 against a litigant for pursuing a motion to quash that, even though legitimately filed, was rendered unnecessary by a subsequent amendment or withdrawal of the subpoena.View "Evilsizor v. Sweeney" on Justia Law 2014-10-28 state California California Court of Appeal Jim Humes A140059 http://law.justia.com/cases/montana/supreme-court/2014/da-14-0119.html In re Guardianship of H.O. 2014-10-28T14:41:34-08:00 2014-10-28T18:05:14-08:00 In 2012, L.S.P. filed a petition in Flathead County seeking appointment as the guardian and conservator of her father, H.O., who was a resident of Flathead County at the time of the petition. H.O. subsequently moved to an assisted living facility in Missoula County. The district court appointed L.S.P. and her brother, J.O., temporary guardians and conservators of H.O. In 2014, L.S.P. filed a motion to transfer venue to Missoula County. The district court granted the motion. The Supreme Court affirmed, holding (1) the order transferring venue to Missoula County was a final order and was reviewable by the Court; and (2) the district court did not abuse its discretion by ordering that venue be transferred to Missoula County.View "In re Guardianship of H.O." on Justia Law 2014-10-28 state Montana Montana Supreme Court Michael E. Wheat DA 14-0119 http://law.justia.com/cases/north-dakota/supreme-court/2014/20140037.html Wilson v. Wilson 2014-10-28T13:03:52-08:00 2014-10-28T14:13:48-08:00 Cheryl Wilson appealed a district court judgment granting her a divorce from Brian Wilson, distributing the parties' marital estate, and ordering Brian Wilson pay child support. Upon review of the matter, the Supreme Court concluded the district court did not err in distributing the parties' marital estate. However, the Court concluded the district court incorrectly calculated Brian Wilson's 2011 and 2012 child support obligation. The case was remanded for further proceedings.View "Wilson v. Wilson" on Justia Law 2014-10-28 state North Dakota North Dakota Supreme Court Carol Ronning Kapsner 20140037 http://law.justia.com/cases/north-dakota/supreme-court/2014/20140145.html Interest of J.A.H. 2014-10-28T13:03:48-08:00 2014-10-29T08:57:14-08:00 M.U. is the mother of D.H., born in 1998, and J.A.H., born in 2001. On September 6, 2013, M.U. sought assistance from Burleigh County Social Services due to concerns she was being stalked. Later the same day, a juvenile court officer issued a temporary custody order granting Morton County Social Services temporary custody of the children. At a shelter care hearing, a judicial referee found continued shelter care was necessary, as there was probable cause for deprivation. The State petitioned to obtain custody of the children, alleging the children were deprived. M.U., the mother, appealed the juvenile court order removing her children and placing them in the custody of Morton County Social Services. Upon review of the matter, the Supreme Court remanded this case with instructions that, within sixty days from the filing of this opinion, the juvenile court make expedited findings of fact to determine whether D.H. and J.A.H. were deprived.View "Interest of J.A.H." on Justia Law 2014-10-28 state North Dakota North Dakota Supreme Court Lisa K. Fair McEvers 20140145 20140146 http://law.justia.com/cases/new-york/court-of-appeals/2014/146.html Nguyen v. Holder 2014-10-28T08:03:37-08:00 2014-10-28T13:19:04-08:00 Petitioner, a citizen of Vietnam, was married in New York to Vu Truong, a naturalized American citizen. Petitioner was later granted the status of a conditional permanent resident in the United States on the basis of her marriage. It was subsequently discovered that Petitioner's mother was Vu Truong's half—sister, and Petitioner was his half-niece. An immigration judge ordered Petitioner removed from the United States on the ground that her purported marriage was void. The Board of Immigration Appeals affirmed. On review, the United States Court of Appeals for the Second Circuit asked the New York Court of Appeals whether the marriage in this case, where the husband was the half-brother of the wife's mother, was void as incestuous under N.Y. Dom. Rel. Law 5(3). The Court of Appeals held that a marriage between a half-uncle and half-niece is not void as incestuous under section 5(3).View "Nguyen v. Holder" on Justia Law 2014-10-28 state New York New York Court of Appeals Per Curiam 146 http://law.justia.com/cases/california/court-of-appeal/2014/c075626.html In re L.S. 2014-10-27T13:01:45-08:00 2014-10-28T07:59:03-08:00 J.S. (mother) and L.S. (father), appealed juvenile court orders denying their petitions for modification and terminating parental rights to their minor children. The parents argued the court applied the wrong burden of proof in denying their petitions for modification and abused its discretion in concluding there was insufficient evidence to grant the requested modification. The parents also contend the court and the El Dorado County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). Finally, the parents argued the court erred in failing to find they had established the beneficial parental relationship exception to termination of parental rights. The Court of Appeal concluded that the juvenile court's failure to apply the proper burden of proof in ruling on the petitions for modification and the errors in the ICWA notice required reversal.View "In re L.S." on Justia Law 2014-10-24 state California California Court of Appeal George Nicholson C075626 http://law.justia.com/cases/california/court-of-appeal/2014/h039774.html In re D.S. 2014-10-27T13:01:38-08:00 2014-10-27T17:00:21-08:00 Mother, age 19, was released from jail and needed a place to stay, so she moved in with A., age 45, who had an extensive criminal history. Mother began prostituting at A.'s request. Both were arrested. A. remained incarcerated until November, 2010. Mother was released, learned she was pregnant, and notified A. In March 2010 mother began living with new boyfriend, B. A. unsuccessfully sought to obtain a declaration of paternity form. B. was present at the baby's birth and married mother two months later. Mother filed a parentage action naming A. as father. Days later, A. was released and attempted to file a paternity action, but was informed that an action already was pending. Mother never served A. and nothing happened until A. filed a response a year later. A. saw the baby three times before he was incarcerated again and gave mother $20 for diapers. Mother had another child with B. The children moved in with B's mother, who would not allow A. to see the baby and who sought guardianship of both children due to mother's substance abuse. A DNA test confirmed that A. is the child's biological father. As of January 2013, mother and B. had obtained an apartment and were employed. The court ruled that A.'s status controlled. The appeals court reversed, noting that A. provided only minimal financial support, threatened the baby's caregivers, and did not vigorously assert his legal rights until the Department was required to step in.View "In re D.S." on Justia Law 2014-10-27 state California California Court of Appeal Eugene M. Premo H039774 http://law.justia.com/cases/arizona/supreme-court/2014/cv-14-0085.html J.D. v. Hon. Hugh Hegyi 2014-10-27T13:01:16-08:00 2014-10-27T13:07:48-08:00 Daughter accused Stepfather of sexual abuse. Because Daughter was a minor at the time of the accusation, Mother asserted victims' rights on her behalf. Before trial, Daughter turned eighteen. Stepfather then filed a motion to compel Mother to submit to a defense interview, which the superior court granted. Mother and Daughter sought special action relief in the court of appeals. The court held that the right of a parent who exercises victims' rights on behalf of a minor to refuse a defense interview expires when the victim reaches the age of eighteen. The Supreme Court vacated the opinion of the court of appeals and the order of the superior court, holding that a parent who exercises victims' rights on behalf of a minor child is statutorily entitled to refuse a defense interview through the final disposition of the charges, even if the child earlier turns eighteen.View "J.D. v. Hon. Hugh Hegyi" on Justia Law 2014-10-27 state Arizona Arizona Supreme Court Scott Bales CV-14-0085 http://law.justia.com/cases/nebraska/supreme-court/2014/s-13-900.html In re Interest of Gabriella H. 2014-10-24T07:03:34-08:00 2014-10-24T15:08:44-08:00 The State filed a petition to terminate Father's parental rights to his daughter based on Father's abandonment of the child. After a hearing, the juvenile court entered an order terminating Father's parental rights to his daughter, finding clear and convincing evidence that Father had abandoned the child and that termination was in the child's best interests. The court of appeals reversed, concluding that the evidence was insufficient as a matter of law to establish that Father intentionally abandoned the child due to Father's lack of absolute certainty concerning paternity and his incarceration while awaiting trial. The Supreme Court reversed, holding (1) clear and convincing evidence supported the finding of abandonment because Father was initially involved in his daughter's life but later demonstrated no interest in her or in exercising parental responsibilities; and (2) the evidence clearly and convincingly established that termination of Father's parental rights was in his daughter's best interests.View "In re Interest of Gabriella H." on Justia Law 2014-10-24 state Nebraska Nebraska Supreme Court William B. Cassel S-13-900 http://law.justia.com/cases/west-virginia/supreme-court/2014/13-0999.html In re Child of Stephen H. & Tamara P. 2014-10-23T12:06:18-08:00 2014-10-23T18:38:46-08:00 Father filed a motion to modify and amend a parenting plan, after which Mother filed her own motion for modification and amendment. The family court entered an order making changes to the parenting plan. The circuit court made additional changes to the parenting plan. Thereafter, on reconsideration, the circuit court overturned the final decision of the family court as it pertained to the time allotted Mother and Father for the parenting of the couple's child. Mother appealed and Father cross-appealed. The Supreme Court (1) reversed the circuit court's order disturbing the family court's allocation of parenting time; and (2) affirmed the circuit court's order insofar as it left undisturbed the family court's determination that changed circumstances justified modification of the child's parenting plan and insofar as it ratified the family court's decision to permit Mother to continue as the sole decisionmaker pertaining to the child's extracurricular activities.View "In re Child of Stephen H. & Tamara P." on Justia Law 2014-10-23 state West Virginia Supreme Court of Appeals of West Virginia Brent D. Benjamin 13-0999 http://law.justia.com/cases/wyoming/supreme-court/2014/s-14-0033.html Bullock v. Bullock 2014-10-23T08:05:37-08:00 2014-10-23T19:43:20-08:00 Father and Mother were divorced in the winter of 2013. Later that year, Mother filed a contempt action asserting that Father had violated the divorce decree in several respects. The district court entered orders (1) holding Father in contempt for failing to provide health insurance coverage and/or proof of insurance for the parties' daughter; (2) sanctioning Father for failing to exercise summer visitation with the parties' son; (3) ordering that Mother would have use of outbuildings associated with the residence in which she and the children were entitled to reside under the decree; and (4) requiring Father to pay Mother's attorney fees associated with the contempt motion. The Supreme Court affirmed in part and reversed in part, holding (1) the record did not contain clear and convincing evidence that Father violated an order requiring visitation with his son; (2) because the evidence showed that Father had obtained the required insurance for his daughter, Father's contempt was not proven by clear and convincing evidence; and (3) the district court properly required Father to pay attorney fees Mother incurred when she was required to seek court enforcement of the divorce decree.View "Bullock v. Bullock" on Justia Law 2014-10-23 state Wyoming Wyoming Supreme Court William U. Hill S-14-0033 S-14-0069 http://law.justia.com/cases/delaware/supreme-court/2014/460-2013.html Fuller v. Delaware 2014-10-22T10:00:59-08:00 2014-10-22T10:18:15-08:00 Dana Fuller appealed a Family Court decision denying her petition for expungement of her juvenile record because she had committed three traffic violations as an adult. In this case, the Family Court held that Fuller's violations of Title 21, which governs motor vehicles, were "subsequent . . . adult convictions." But the Family Court has reached different conclusions in other cases as to whether a traffic violation under Title 21 of the Delaware Code is a subsequent adult conviction that precludes expungement of a juvenile record. On appeal, Fuller argued that Title 21 offenses were not "subsequent adult convictions" and the denial of her expungement was therefore erroneous. After review, the Supreme Court held that a "subsequent adult conviction" is a later conviction only for a crime in violation of Title 4, 7, 11, 16, or 23 of the Delaware Code, and does not include a violation of Title 21. Accordingly, we reverse the Family Court's decision.View "Fuller v. Delaware" on Justia Law 2014-10-21 state Delaware Delaware Supreme Court Leo Strine 460, 2013 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41100.html Urrutia v. Harrison 2014-10-21T15:48:16-08:00 2014-10-25T04:01:56-08:00 The district court awarded attorneys fees to Lynn Urrutia against appellants Ty Harrison and Robert Schutte under Idaho Code section 12-120(3), 12-121, and 12-123, as well as sanctions against the appellants' attorney under Idaho Code section 12-123 and I.R.C.P. 11. These awards stemmed from the divorce of Lynn and Johnny Urrutia in 2007 and the divorce decree's division of the marital property. "'The most egregious conduct of defendants,' in the district court's opinion, was the filing of the Third Amended Counterclaim, which 'states two causes of action against Lynn: (1) that the second lien has priority over Lynn's claims and (2) that Lynn as the owner of the property was unjustly enriched.' The judge noted that the Second Lien, with a priority date of 2008, could not conceivably be higher in priority than Lynn's deed of trust, which was recorded in 2007. He observed that the Appellants knew the $220,000 claimed in the Second Lien, like the First Lien, contained numerous items that did not constitute improvements to the arena property and were not lienable under the mechanic's lien statutes. And, even though the Appellants knew that the owner of record of the arena property was Sundance Arena, LLC, they sought personal recovery against Lynn under an unjust enrichment theory for improvements made to the property, which she did not own." Finding no reversible error, the Supreme Court affirmed the award of fees and sanctions to Lynn Urrutia.View "Urrutia v. Harrison" on Justia Law 2014-07-31 state Idaho Idaho Supreme Court - Civil Jim Jones 41100 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41688.html Health & Welfare v. John Doe (13-29) 2014-10-21T15:48:12-08:00 2014-10-28T04:40:18-08:00 John Doe was the biological father of T.C. Doe was a juvenile when T.C. was born. Doe paid Mother a total of $52.00 in child support, despite a court order requiring him to pay Mother child support of $253.00 per month. Doe owed approximately eight thousand dollars in unpaid child support. Doe never provided T.C. or Mother with any alternate form of support such as clothing, diapers, or food. During T.C.'s life, Doe was regularly incarcerated and had no contact with T.C. for months at a time; including a substantial period of time that the child protection proceedings were ongoing. Doe has been unable to maintain employment or a home and typically resides in the homes of various girlfriends. Doe was addicted to methamphetamine and, when not in custody, he used methamphetamine. Doe had an extensive criminal record and has been a defendant in more than forty criminal matters. A petition was filed under the Child Protective Act (CPA) asking a magistrate court to place T.C under the supervision of the Department. The same day, the magistrate court ordered the removal of T.C. on the basis that continuation in the home would be contrary to T.C.'s welfare. The magistrate court placed T.C. in the care of the Department of Child Services. Doe learned of the Department's petition when his aunt informed him of the proceedings. His parental rights to T.C. were ultimately terminated on grounds that the trial court found Doe neglected T.C., and that it was in the child's best interests to have Doe's parental rights terminated. Doe appealed, but finding no reversible error, the Supreme Court affirmed the trial court's order.View "Health & Welfare v. John Doe (13-29)" on Justia Law 2014-08-01 state Idaho Idaho Supreme Court - Civil Joel D. Horton 41688 http://law.justia.com/cases/idaho/supreme-court-civil/2014/42020.html Termination of Parental Rights (Father) 2014-10-21T15:48:03-08:00 2014-10-25T03:59:15-08:00 The magistrate court dismissed a petition to terminate the parental rights of the biological father of two children and to permit the children's stepfather to adopt them. The magistrate court dismissed the action on the ground that the petitioners had failed to prove that termination of the father's parental rights would be in the best interests of the children. Finding no reversible error, the Supreme Court affirmed.View "Termination of Parental Rights (Father)" on Justia Law 2014-08-22 state Idaho Idaho Supreme Court - Civil Daniel T. Eismann 42020 http://law.justia.com/cases/idaho/supreme-court-civil/2014/41301.html Gugino v. Sallaz 2014-10-21T10:52:27-08:00 2014-10-21T19:57:49-08:00 Dennis Sallaz and Renee Baird were married in Oregon in 1996. Baird filed for divorce in Idaho in 2004. The magistrate court entered a partial decree at the request of the parties, granting the divorce in 2005. The decree included a certificate in accordance with Idaho Rule of Civil Procedure (I.R.C.P.) 54(b) certifying the decree as a final judgment upon which execution may issue and an appeal may be taken. Neither party ever appealed from the certified judgment. The magistrate court conducted a subsequent trial regarding the division of property and debts, and issued its amended findings of fact and conclusions of law in 2007. After several post-trial motions, the magistrate court entered an amended order in 2012, settling property and debt issues. Sallaz filed a notice of appeal to the district court a few months later. Then Baird filed for Chapter 7 relief in bankruptcy. The filing of the bankruptcy petition stayed the appeal in the district court until Sallaz received permission from the bankruptcy court to pursue the appeal. Jeremy Gugino, the bankruptcy trustee, intervened in the appeal as a real party in interest. While the appeal from the magistrate's division was pending before the district court sitting in its capacity as the intermediate appellate court, Sallaz filed an independent action in Ada County asserting for the first time that the Oregon marriage was invalid. The bankruptcy trustee intervened and filed a motion to dismiss the action on the basis that it was an impermissible collateral attack on the magistrate court's property settlement order. Sallaz then requested that the district court, as the intermediate appellate court, remand the case to the magistrate division to determine the validity of the marriage. The district court held that Sallaz's challenge to the validity of the marriage was untimely, that Sallaz had impermissibly raised an issue for the first time on appeal, and that Sallaz was estopped by his inconsistent positions from challenging the parties' marriage. Sallaz requested that the Supreme Court to remand the case to the magistrate court for a determination regarding the validity of the marriage. The Supreme Court denied Sallaz's motion. Sallaz then appealed the district court's intermediate appellate decision and continued to challenge the validity of the parties' marriage in Oregon. On the intermediate appeal in the district court Sallaz asserted that the marriage was invalid because the marriage ceremony allegedly was performed by an individual who was not authorized to perform marriage ceremonies, and (for the first time), that the marriage ceremony was invalid because no Oregon marriage license could be found of record. Under either theory, Sallaz argued that invalidity of the marriage deprived the magistrate court of subject matter jurisdiction to grant a decree of divorce. Upon review, the Supreme Court affirmed the district court's determination that the magistrate court had subject matter jurisdiction to terminate the parties' marriage and divide the community property.View "Gugino v. Sallaz" on Justia Law 2014-09-19 state Idaho Idaho Supreme Court - Civil Walters 41301 http://law.justia.com/cases/idaho/supreme-court-civil/2014/40883.html Carr v. Edgar 2014-10-21T10:52:25-08:00 2014-10-21T20:00:08-08:00 Crystal Edgar and Brad Carr were the parents of D.C., born in 2003. Edgar and Carr were never married. Both Edgar and Carr have served in the Idaho National Guard since D.C.'s birth, resulting in custody disputes arising from the parties' deployments. Edgar's contempt convictions arose from Carr's allegation that Edgar committed two separate violations of the parties' Parenting Plan, which was incorporated into the magistrate court's Order for Entry of Stipulation for Decree Regarding Paternity, Child Custody and Child Support (the May 12 Order). The magistrate court heard Carr's contempt allegations, and found Edgar guilty on two counts. On Count I, the magistrate court sentenced Edgar to five days jail, suspended, a $5,000 fine, suspended, and placed her on two years unsupervised probation. On Count III, the magistrate court sentenced Edgar to three days in jail, to be served immediately. More than a month later, and after Edgar had completed serving her jail time, the magistrate court entered its Judgment of Contempt and found that Edgar "willfully violated the court order that specifically provided that decisions concerning which school [D.C.] would attend be made jointly by the parties." The magistrate court also concluded that Edgar "blatantly breached her obligation of good faith and fair dealing when she summarily denied [Carr's] last chance to see his son before being sent to a war zone where many fathers have not returned." Edgar appealed. The district court issued its Memorandum Decision and affirmed the magistrate court's decision. Upon review, the Supreme Court concluded the magistrate court erred by convicting Edgar of contempt on a basis different from that which was alleged in Carr's affidavit and the district court erred in affirming that conviction. Accordingly, the Court reversed the judgment of conviction.View "Carr v. Edgar" on Justia Law 2014-09-26 state Idaho Idaho Supreme Court - Civil Joel D. Horton 40883 http://law.justia.com/cases/maine/supreme-court/2014/2014-me-115.html Craig v. Caron 2014-10-21T08:02:51-08:00 2014-10-21T12:25:41-08:00 Sarah Craig, individually and on behalf of her two children, filed a complaint for protection from abuse alleging that Krystal Gayle Caron, the ex-wife of Craig's boyfriend, came into her home and hit her. The trial court found that Caron had stalked Craig and entered an order of protection from abuse. Caron appealed, arguing that the district court erred in entering the judgment because Craig and her children were not family or household members or dating partners of Caron and because her conduct did not constitute stalking. The Supreme Court agreed with Caron and vacated the judgment, holding that because the parties were not family or household members or dating partners, and because Caron's conduct did not fall within the definition of stalking pursuant to the protection from abuse statute, the statute did not authorize the entry of a protection from abuse judgment for Craig and her children.View "Craig v. Caron" on Justia Law 2014-10-21 state Maine Maine Supreme Judicial Court Leigh Ingalls Saufley 2014 ME 115 http://law.justia.com/cases/georgia/supreme-court/2014/s14a1194.html Carr-MacArthur v. Carr 2014-10-20T06:01:17-08:00 2014-10-20T06:10:22-08:00 Mother Annie Carr-MacArthur and Christopher Carr ("Father") were married in 2004; they had one child, born in 2005. The couple divorced in 2009. The incorporated settlement agreement gave the parties joint legal custody of the child, with primary physical custody to Mother, who had just moved to Florida. Father, who was in the Air Force, was based in Georgia. At the time of the divorce, Mother had certain physical and mental health issues, of which Father was aware, and that he believed to be manageable. In 2010, Mother surrendered physical custody of the child to Father after the Florida Department of Family and Child Services determined her home was unsafe due to unsanitary conditions, empty prescription bottles found throughout the home, and cat food on the floor and kitchen table. At a Georgia juvenile court, Father filed a petition for deprivation after Mother requested the child be returned to her; in October 2010, Father filed a petition for modification of custody, child support, and alimony. In a final order entered September 2013, the trial court modified custody, named Father the primary physical custodian, and made associated changes in child support. Mother appealed the superior court's grant of a change in child custody and child support in regard to her minor child. The Supreme Court reversed only on the issue of calculating child support: "[w]hile the trial court can certainly deviate from the presumptive amount of child support in a modification action, if it does so, it must "enter a written order specifying the basis for the modification . . ." The case was remanded for the trial court to make its mandatory written findings.View "Carr-MacArthur v. Carr" on Justia Law 2014-10-20 state Georgia Supreme Court of Georgia P. Harris Hines S14A1194 http://law.justia.com/cases/new-hampshire/supreme-court/2014/2013-034.html In the Matter of Susan Spenard and David Spenard 2014-10-17T07:02:58-08:00 2014-10-17T07:16:27-08:00 Petitioner Susan Spenard appealed the final circuit court orders in her divorce from respondent David Spenard. She argued that the trial court erred by: (1) imputing income to her of $4,000 per month for purposes of child support and alimony; (2) denying her request to reopen the case based upon newly-discovered medical evidence; (3) not accounting for two promissory notes, one of which the respondent sold prior to the final hearing, in dividing the marital estate; and (4) misidentifying two investment accounts, and awarding the respondent an interest in one of the accounts. Upon review of the particular facts of this case, the Supreme Court affirmed in part, vacated in part, and remanded the case for further proceedings. The Court found "ample support" in the record that petitioner's income was $4,000 per month; the trial court did not err in denying petitioner's request to reopen the case (because petitioner was at fault for failing to obtain a medical diagnosis prior to trial); the trial court erred by denying petitioner's request for a property division modification based on the undisclosed promissory notes; and in light of the property distribution modification, the trial court did not address the misidentified investment accounts ("petitioner may raise these issues on remand").View "In the Matter of Susan Spenard and David Spenard " on Justia Law 2014-10-17 state New Hampshire New Hampshire Supreme Court Gary E. Hicks 2013-034 http://law.justia.com/cases/california/court-of-appeal/2014/c075278.html In re D.H. 2014-10-16T13:01:03-08:00 2014-10-16T20:29:37-08:00 Jason H. (father) appealed the juvenile court's determination to deny him reunification services with the minors, now 16-year-old D.H. and seven-year-old T.H. The trial court found two reunification bypass provisions applied: (1) father had previously had reunification services and his parental rights terminated to the minors' half siblings and father had not made reasonable efforts to treat the problems that led to the removal of the half siblings; and (2) father was incarcerated and the provision of services would be detrimental to the children. Father argued these bypass provisions did not apply as he had made reasonable efforts to treat the problems that led to the removal of the half siblings and reunification services were in the minors' best interest; and, it would not be detrimental to the minors for him to be provided reunification services. Upon review, the Court of Appeal agreed with father that there was not sufficient evidence to support the finding that he had not made reasonable efforts to treat the problems that led to the removal of the half siblings, because the record revealed that the problems that led to the removal of the half siblings (unsafe and unhealthy conditions) were different from those presented in this case (alcohol abuse, anger management problems and domestic violence); nor did the record establish any connection between the two sets of problems or even that father received services in the prior case for the problems manifest in the present case. However, the Court found sufficient evidence to support the finding that father was incarcerated and it would be detrimental to the minors to provide services. Accordingly, the Court affirmed the juvenile court.View "In re D.H." on Justia Law 2014-10-16 state California California Court of Appeal M. Kathleen Butz C075278 http://law.justia.com/cases/west-virginia/supreme-court/2014/14-0041.html In re Name Change of Jenna A.J. 2014-10-16T12:06:26-08:00 2014-10-16T15:44:10-08:00 Mother and Father, who were not married, had a child. The child was given Father's surname at birth. After the parents ended their relationship, the circuit court granted Mother's request to change the child's surname to a hyphenated name using both parents' last names. The Supreme Court reversed but did not remand the case to the circuit court for further proceedings. Nevertheless, the circuit court sua sponte noticed the case for a hearing, after which the circuit court purported to grant Mother's petition and again changed the child's surname to the hyphenated name. The Supreme Court reversed, holding that the circuit court had no authority to hold the evidentiary hearing or to enter the order changing the child's name for a second time.View "In re Name Change of Jenna A.J." on Justia Law 2014-10-16 state West Virginia Supreme Court of Appeals of West Virginia Allen H. Loughry, II 14-0041 http://law.justia.com/cases/alaska/supreme-court/2014/s-15172.html Riggs v. Coonradt 2014-10-16T10:00:40-08:00 2014-10-16T14:23:49-08:00 A mother appealed a modified decree involving the custody of her three children. The superior court decided that the parents' inability to communicate justified a modification of the existing joint-custody arrangement, and that the best interests of the children favored an award of sole legal custody to their father. After review, the Supreme Court concluded that the superior court did not abuse its discretion in making these decisions. Furthermore, the Court affirmed the allocation of the costs of the court-appointed guardian ad litem. The case was remanded for the superior court's clarification of one issue: whether it meant to include, in its final modified decree, a change to the father's weekend visitation schedule made by the attorney who drafted the decree.View "Riggs v. Coonradt" on Justia Law 2014-10-16 state Alaska Alaska Supreme Court Peter J. Maassen S-15172 http://law.justia.com/cases/ohio/supreme-court-of-ohio/2014/2013-1932.html In re B.C. 2014-10-16T06:02:35-08:00 2014-10-16T18:57:11-08:00 Appellant was found to have knowingly and voluntarily surrendered her parental rights to her child and to have agreed that it was in her child's best interest that permanent custody be granted to the state. Four days after the child's adoption by his foster family was finalized, Appellant filed a notice of appeal and a motion for leave to file a delayed appeal. The court of appeals concluded that the notice of appeal was not timely filed and dismissed the appeal, also determining that there was no authority for filing a notice of appeal from a judgment terminating parental rights after the expiration of the deadline. The Supreme Court affirmed, holding that due process does not entitle a parent whose parental rights have been terminated the right to a delayed appeal from the judgment of termination.View "In re B.C." on Justia Law 2014-10-16 state Ohio Supreme Court of Ohio Judith Ann Lanzinger 2013-CA-72 http://law.justia.com/cases/louisiana/supreme-court/2014/2014-cj-1119.html C.M.J. v. L.M.C. 2014-10-15T15:02:16-08:00 2014-10-16T20:39:01-08:00 This case concerned a highly contested custody dispute over three minor children. After an eleven-day trial and extensive written reasons for judgment, the trial court awarded sole custody of the children to the father and conditionally reserved visitation privileges to the mother. The Court of Appeal reversed and remanded for a new trial. The issue on appeal to the Supreme Court was whether the court of appeal erred in finding the trial court abused its discretion in prohibiting the children from testifying at trial and not relying on a sexual abuse evaluation. After careful consideration, the Court found no abuse of the trial court's discretion nor did it find any manifest error. The Court reversed the court of appeal's judgment and reinstated the trial court's judgment.View "C.M.J. v. L.M.C." on Justia Law 2014-10-15 state Louisiana Louisiana Supreme Court Marcus R. Clark 2014-CJ-1119 http://law.justia.com/cases/oklahoma/supreme-court/2014/111905.html In re Adoption of K.P.M.A. 2014-10-14T14:05:13-08:00 2014-10-14T14:25:00-08:00 The issue this case presented for the Supreme Court's review centered on the termination Respondent-appellant Billy McCall's (Father) parental rights to K.P.M.A. (Child). Child was born out-of-wedlock to T.Z. (Mother) in 2012. Prospective adoptive parents, petitioners-appellees Marshall and Toni Michelle Andrews had had physical custody of the child since she was released from the hospital after birth. On appeal of his termination, father argued: (1) whether his due process rights were violated; (2) whether he received ineffective assistance of counsel during the termination proceedings; and (3) whether the trial court's determination was supported by clear and convincing evidence. After review of the trial court record, the Supreme Court concluded that termination of the natural father's parental rights was improper because the natural father's due process rights were violated, and the termination of the natural father's parental rights was not supported by clear and convincing evidence.View "In re Adoption of K.P.M.A." on Justia Law 2014-10-14 state Oklahoma Oklahoma Supreme Court Douglas L. Combs 111905 http://law.justia.com/cases/california/court-of-appeal/2014/b253816.html In re Quentin H. 2014-10-14T13:00:56-08:00 2014-10-14T13:59:55-08:00 Father, convicted of sexual abuse of a child under 14 years old in 1987, appealed the jurisdiction findings and disposition order declaring his children dependents of the juvenile court. Welfare and Institutions Code section 355.1 subdivision (d), creates a rebuttable evidentiary presumption that a parent who has previously been convicted of sexual abuse or is required as the result of a felony conviction to register as a sex offender poses a substantial risk of harm to a child in his or her care or custody. The court concluded that Father adequately rebutted the presumption of current dangerousness by identifying contrary evidence in the Department's own records. The court reversed and remanded with directions because the juvenile court improperly relied solely on the presumption to sustain the allegations in the dependency petition relating to Father, rather than evaluating the totality of the circumstances of the evidence in the record.View "In re Quentin H." on Justia Law 2014-10-14 state California California Court of Appeal Dennis M. Perluss http://law.justia.com/cases/wyoming/supreme-court/2014/s-13-0281.html In re Estate of Scherer 2014-10-14T08:07:36-08:00 2014-10-14T18:57:50-08:00 From Lilyanna Knudson's birth until Ronald Scherer's (Decedent) death, Knudson believed and considered the Decedent to be her father. After learning that he was not, Knudson filed a petition seeking a determination that she was the Decedent's heir. Specifically, Knudson argued that, pursuant to the judicially-created doctrine of equitable adoption, she was the daughter and heir of the Decedent. The district court dismissed Knudson's petition, concluding that Wyoming law does not recognize equitable adoption and that equitable adoption would be contrary to Wyoming's probate code. The Supreme Court affirmed, holding that, based on the Court's interpretation of Wyoming's probate code, Wyoming does not recognize the doctrine of equitable adoption, and therefore, Knudson was not an heir.View "In re Estate of Scherer" on Justia Law 2014-10-14 state Wyoming Wyoming Supreme Court E. James Burke http://law.justia.com/cases/kansas/supreme-court/2014/112590.html State v. Moriarty 2014-10-14T08:02:29-08:00 2014-10-14T11:49:38-08:00 The Attorney General alleged that the Chief Judge of the Tenth Judicial District exceeded his authority and contravened Kansas law by issuing an administrative order permitting marriage licenses to be issued to same sex couples. The Attorney General sought an order directing the Chief Judge and clerk of the district court to immediately cease from issuing marriage applications or licenses to same gender couples and an order vacating the Judge's administrative order. The Supreme Court declined to grant the relief sought, as the Attorney General's right to relief on the merits was not clear, but granted the Attorney General's alternative request for a temporary stay of the Chief Judge's administrative order insofar as the order allows issuance of marriage licenses. The Court then requested additional briefing on the pending issues of whether the Chief Judge possessed authority to issue the administrative order and whether the interpretations and applications of the United States Constitution by the Tenth Circuit Court of Appeals are supreme and modify any Kansas state ban on same-sex marriage.View "State v. Moriarty" on Justia Law 2014-10-10 state Kansas Kansas Supreme Court Lawton R. Nuss http://law.justia.com/cases/alaska/supreme-court/2014/s-15212.html Dodge v. Sturdevant 2014-10-10T10:00:35-08:00 2014-10-10T20:51:33-08:00 The superior court ordered that divorced parents each claim one of their two children for the federal income tax dependency exemption. Both children resided primarily with the mother, and the court ordered her to sign and file a federal form waiving her exemption for one child. The mother appealed, arguing the superior court lacked authority to order her to sign the waiver form. The Alaska Supreme Court adopted the majority view that a custodial parent may be ordered to sign the waiver form, and affirmed the court's order.View "Dodge v. Sturdevant" on Justia Law 2014-10-10 state Alaska Alaska Supreme Court Daniel E. Winfree http://law.justia.com/cases/alaska/supreme-court/2014/s-15346.html Jamie H. v. Alaska Dept. of Health & Social Services, Office of Children's Services 2014-10-10T10:00:34-08:00 2014-10-10T14:49:24-08:00 Jamie and Anna They stopped using drugs when they realized Anna was pregnant with their son Ian, but after the birth they went back to abusing drugs and alcohol, with periods of sobriety. Although Ian lived with his parents during his early years, by the time he was four, he and his two non-party siblings were living with Ian's grandmother in Oklahoma while his parents lived elsewhere. According to Jamie, Ian was exposed to domestic violence by Jamie's brother during that time. Jamie, Anna, and Ian moved to Alaska in 2004. Once in Alaska, Jamie and Anna had three more children. The couple's relationship was chaotic and physically abusive, and apparently they were separated at the time of trial. All four children have special needs.The Office of Children's Services (OCS) sought termination of Jamie's, but not Anna's, parental rights to Ian. In closing argument, Jamie asserted that termination of his parental rights was not in Ian's best interests because OCS had not identified any permanent placement. But the superior court did not specifically address this issue in its findings when it ordered the termination of Jamie's parental rights. Jamie appealed, arguing that the termination should be vacated because the decision does not clearly state that termination of Jamie's parental rights was for purposes of freeing Ian for adoption or other permanent placement. The Supreme Court concluded that given the facts and circumstances of this case, the superior court did not err when it found that termination was in Ian's best interests.View "Jamie H. v. Alaska Dept. of Health & Social Services, Office of Children's Services" on Justia Law 2014-10-10 state Alaska Alaska Supreme Court Joel H. Bolger http://law.justia.com/cases/nebraska/supreme-court/2014/s-13-1995-s-13-1000.html State ex rel. Connor H. 2014-10-10T07:02:58-08:00 2014-10-11T20:44:07-08:00 Connor was born out of wedlock to Blake and Amanda and given Amanda's maiden surname. Amanda was granted sole legal and physical custody of Connor. Amanda subsequently married and changed her surname to that of her husband. Thereafter, both Amanda and Blake sought to change Connor's surname - Blake proposing his surname and Amanda proposing her married surname. The district court entered an order changing Connor's surname to Blake's surname, giving preference to the paternal surname and using a "substantial evidence" standard. The Supreme Court reversed, holding (1) the district court applied an incorrect burden of proof, as the child's best interests is the controlling standard; (2) the district court wrongfully gave preference to the surname of Blake because no automatic preference as to the surname of a child born in wedlock exists in Nebraska law; and (3) the evidence was insufficient to show that a change to either Blake's surname or Amanda's married surname would promote his best interests. Remanded.View "State ex rel. Connor H." on Justia Law 2014-10-10 state Nebraska Nebraska Supreme Court Cassel http://law.justia.com/cases/mississippi/supreme-court/2014/2012-ct-01258-sct-0.html Borden v. Borden 2014-10-09T12:02:42-08:00 2014-10-10T04:45:17-08:00 In a divorce and child-custody dispute between Shannon and Mary Jane Borden, the chancellor awarded custody of their two sons to father-Shannon. The Court of Appeals affirmed the judgment. Finding that the chancellor gave undue weight to Mary Jane's misconduct under three separate "Albright" factors, and that the chancellor erred in rejecting the guardian ad litem's recommendation without providing reasons and a summary of the guardian's report, the Supreme Court reversed the judgments of the lower courts and remanded this case for further proceedings.View "Borden v. Borden" on Justia Law 2014-10-09 state Mississippi Supreme Court of Mississippi William L. Waller, Jr. 2012-CT-01258-SCT http://law.justia.com/cases/federal/appellate-courts/ca9/14-35420/14-35420-2014-10-07.html Latta v. Otter 2014-10-07T13:31:07-08:00 2014-10-07T13:33:10-08:00 Plaintiffs filed suit for declaratory and injunctive relief, challenging Idaho and Nevada statutes and enacted amendments preventing same-sex couples from marrying and refusing to recognize same-sex marriages validly performed elsewhere. As a preliminary matter, the court concluded that, in Sevcik v. Sandoval, a live case and controversy still exists even though Nevada's officials have ceased to defend their laws constitutionality where the Governor and Clerk-Recorder remain parties and continue to enforce the laws at issue. Further, the Supreme Court's summary dismissal in Baker v. Nelson is not controlling precedent that precludes the court from considering plaintiffs' claims. On the merits, the court held that the Idaho and Nevada laws violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbian and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex. The laws do not satisfy the heightened scrutiny standard the court adopted in SmithKline Beecham Corp. v. Abbott Labs. The court rejected defendants' essential contention that bans on same-sex marriage promote the welfare of children by encouraging good parenting in stable opposite-sex families. Defendants' other contentions are without merit. Because defendants failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation. Accordingly, the court affirmed the district court's judgment in Latta v. Otter. The court reversed and remanded the judgment in Sevcik.View "Latta v. Otter" on Justia Law 2014-10-07 federal U.S. Court of Appeals for the Ninth Circuit Reinhardt 14-35421 12-17668 http://law.justia.com/cases/california/court-of-appeal/2014/b251066.html In re D'Anthony D. 2014-10-03T14:00:59-08:00 2014-10-06T11:45:08-08:00 Father appealed from a dispositional order denying his request for custody of his son and daughter, who were removed from their mother's custody under Welfare and Institutions Code section 361. The court concluded that the juvenile court erred when it failed to consider father's custody request under section 361.2. The court rejected the Department's contention that a parent is precluded from requesting custody under section 361.2 based on jurisdictional findings made under a preponderance of the evidence standard. However, the error was harmless because the juvenile court made a finding under section 361, by clear and convincing evidence, that placing the children with father would pose a substantial danger to their physical health and well-being. View "In re D'Anthony D." on Justia Law 2014-10-03 state California California Court of Appeal Kitching B251066 http://law.justia.com/cases/wyoming/supreme-court/2014/s-14-0044.html McAdam v. McAdam 2014-10-03T08:12:29-08:00 2014-10-06T11:45:08-08:00 Wife and Husband were divorced by stipulated decree. In post-divorce contempt proceedings, each party claimed the other party was in contempt. The district court (1) concluded that both parties were in contempt for failing to list to martial residence for sale as required by the decree and ordered the home listed by a specified date; and (2) concluded Husband was not in contempt for failing to transfer half of his investment accounts and stock options to Wife but ordered Husband to transfer an investment account and three stock options to Wife. The Supreme Court affirmed, holding that the district court (1) properly modified the stipulated decree when it ordered Wife to share any loss on the home if it sold, or, if it did not sell, to pay one-half of the mortgage payment; and (2) did not err in not ordering Husband to pay Wife's fees and costs.View "McAdam v. McAdam" on Justia Law 2014-10-03 state Wyoming Wyoming Supreme Court Marilyn S. Kite S-14-0044 http://law.justia.com/cases/texas/supreme-court/2014/13-0277.html Pike-Grant v. Grant 2014-10-03T08:10:38-08:00 2014-10-06T11:45:09-08:00 Husband filed for divorce from Wife in 2009. The first recital in the divorce decree indicated that the hearing resulting in the judgment occurred in November 2011 and that Wife attended the hearing. Another recital in the divorce decree, however, indicated that the final hearing, at which Wife did not appear, occurred in September 2011. Wife filed for a restricted appeal, claiming that she did not appear at the hearing that resulted in the divorce decree. The court of appeals dismissed the restricted appeal, concluding that Wife appeared at a hearing in November 2011, and therefore, her restricted appeal was foreclosed for want of jurisdiction. The Supreme Court reversed, holding (1) the record conclusively supported the recital that the final hearing resulting in the divorce decree occurred in September 2011, and neither Wife nor her attorney participated in the hearing; and (2) therefore, the court of appeals erred in concluding it had no jurisdiction over Wife's restricted appeal. Remanded.View "Pike-Grant v. Grant" on Justia Law 2014-10-03 state Texas Supreme Court of Texas 13-0277 http://law.justia.com/cases/connecticut/supreme-court/2014/sc19045.html Niro v. Niro 2014-10-03T06:00:52-08:00 2014-10-06T11:45:09-08:00 When Sandy Niro commenced this action for dissolution of her marriage to Peter Niro, she served a subpoena duces tecum on Peter's brother, Anthony Nero, and Anthony's wife, Nanette Niro (together, Plaintiffs), seeking certain financial records. The trial court denied Plaintiffs' motions to quash the subpoenas and ordered them to produce the records. Plaintiffs subsequently filed a writ of error with the Supreme Court challenging the trial court's order of production. The Supreme Court dismissed the writ of error, holding that the trial court's order was not an appealable final judgment under the test established in State v. Curcio, and therefore, the Court lacked subject matter jurisdiction over the writ of error.View "Niro v. Niro" on Justia Law 2014-10-14 state Connecticut Connecticut Supreme Court Peter T. Zarella SC19045 http://law.justia.com/cases/nevada/supreme-court/2014/62654.html Henson v. Henson 2014-10-02T11:50:07-08:00 2014-10-06T11:45:12-08:00 When Husband and Wife divorced, the district court entered a divorce decree allocating Wife a community property interest in Husband's Public Employees Retirement System (PERS) pension plan. The district court later entered a qualified domestic relations order (QDRO) giving Wife a survivor beneficiary interest in Husband's PERS pension. Husband filed a motion to modify the QDRO, arguing the QDRO did not effectuate the division in the divorce decree. Wife moved for a judgment awarding her the community property pension payments she could have received since the time Husband became eligible to retire. The district court granted Husband's motion to modify the QDRO and denied Wife's motion for judgment. The Supreme Court affirmed, holding (1) unless specifically set forth in the divorce decree, an allocation of a community property interest in the employee spouse's pension plan does not also entitle the nonemployee spouse to survivor benefits; and (2) the nonemployee spouse must first file a motion requesting immediate receipt of his or her portion of the community property interest in the employee spouse's pension benefits.View "Henson v. Henson" on Justia Law 2014-10-02 state Nevada Supreme Court of Nevada Michael A. Cherry 62654 http://law.justia.com/cases/california/court-of-appeal/2014/a142192.html C.F. v. Superior Court 2014-10-01T17:01:00-08:00 2014-10-06T12:14:15-08:00 The Mendocino County Health and Human Services Agency filed a petition under Welfare and Institutions Code section 300 on behalf of Minors, ages 3, 7, and 8, alleging that Mother had a substance abuse problem that inhibited her ability to parent her children and that the parents were not providing adequate food or shelter. Deputies found the children in the care of men at a home with drugs and dangerous objects. There was no refrigerator; the toilet would not flush. There was no running water, and there were dead mice in the house. An open power panel posed a significant fire danger. The children had been wearing the same clothes since Mother had left them four nights earlier. Mother appeared to be "extremely high." She provided a urine sample, saying it would be "dirty." The Minors were subject to the Indian Child Welfare Act, 25 U.S.C. 1901. For several months, Mother did not engage in services, despite repeated efforts to contact her. The juvenile court found that Mother had partially complied with her case plan, that there was no substantial probability Minors would be returned to her custody within 18 months of their removal, that reasonable services had been offered, and that active efforts had been made to prevent the breakup of the Indian family. The court terminated reunification services and set a hearing under section 366.26 to determine a permanent plan for the children. The appeals court affirmed. View "C.F. v. Superior Court" on Justia Law 2014-10-01 state California California Court of Appeal Rivera A142192 http://law.justia.com/cases/california/court-of-appeal/2014/b255116.html In re Ernesto R. 2014-10-01T14:00:59-08:00 2014-10-06T11:45:13-08:00 Mother appealed an order terminating her parental rights to her one-year-old son based on her long term substance abuse. The court concluded that Mother was not denied effective assistance of counsel where her trial attorney did not file a Welfare and Institutions Code section 388 petition to modify an order bypassing reunification services. The court held that an attorney in a dependency case has no obligation to file a futile section 388 petition to modify an existing order. In this case, given Mother's history of parenting two older children who were removed from her custody and care, the filing of such a petition would have been futile. Accordingly, the court affirmed.View "In re Ernesto R." on Justia Law 2014-10-01 state California California Court of Appeal Yegan B255116 http://law.justia.com/cases/delaware/supreme-court/2014/439-2013.html Thomas v. Thomas 2014-10-01T09:06:42-08:00 2014-10-01T16:37:42-08:00 In 2011, wife Stacey Thomas filed for divorce from husband Calvin Thomas, which was granted in early 2012. After that, the Family Court rendered final decisions on several ancillary matters. Husband raised six issues on appeal of those decisions: (1) the Family Court erred by not equally dividing the marital property; (2), erred by determining that the Wife was dependent and therefore entitled to alimony; (3) erred by applying a 2.5 percent interest rate to calculate the Wife's income from her inheritance, instead of some higher interest rate; (4) erred when it refused to retroactively modify the amount of the interim alimony award; (5) the Family Court imposed an impermissible punitive fine when it found Husband in contempt of its interim alimony order; and (6) the Family Court erred when it awarded Wife a portion of her attorney's fees. Upon review, the Supreme Court concluded the Family Court erroneously applied the alimony statute in making its final award. The other issues raised by the Husband were without merit. Therefore, the judgment of the Family Court was affirmed in part, and reversed in part. The case was remanded to the Family Court for further proceedings. View "Thomas v. Thomas" on Justia Law 2014-10-01 state Delaware Delaware Supreme Court Randy J. Holland 439, 2013 http://law.justia.com/cases/indiana/supreme-court/2014/34s04-1410-jp-607.html In re Paternity of D.M.Y. 2014-10-01T08:01:30-08:00 2014-10-01T16:37:40-08:00 In 2010, A trial court found Father in arrears in child support in the amount of $21,337 and ordered that $15,000 in funds attached from Father's bank be released to Mother. The State later intercepted an additional $7,025 from Father's bank account, and the sum was distributed to Mother. In 2013, the court issued an order finding Father in indirect contempt for his willful failure to pay child support as ordered, finding him to be in arrears in the amount of $13,055. Father appealed, arguing that the trial court failed to credit him for the distribution of $7,025 to Mother. The Supreme Court reversed, holding that the trial court's arrearage calculations did not give Father credit for the $7,025. Remanded to recalculate Father's arrearage to provide him credit for the $7,025 payment.View "In re Paternity of D.M.Y." on Justia Law 2014-10-01 state Indiana Supreme Court of Indiana 34S04-1410-JP-607 http://law.justia.com/cases/montana/supreme-court/2014/da-13-0790.html In re M.S. 2014-09-30T15:07:07-08:00 2014-10-01T16:37:35-08:00 Thirteen-year-old Child was removed from her parents' care and placed into protective custody after her mother was arrested for possessing dangerous drugs with intent to distribute. Thereafter, Child was adjudicated a youth in need of care and placed in the temporary custody of the Department of Public Health and Human Services. The Department then sought permanent legal custody and the termination of the parental rights of both parents. At a summary judgment hearing, the district court ordered Child's parental rights terminated and awarded the Department permanent legal custody of Child. The Supreme Court affirmed, holding that the termination proceedings complied with statutory requirements for proceedings involving an Indian child. View "In re M.S." on Justia Law 2014-09-30 state Montana Montana Supreme Court Beth Baker DA 13-0790 http://law.justia.com/cases/alabama/supreme-court/2014/1121462.html In re: C.C. v. L.J. 2014-09-30T13:00:17-08:00 2014-10-01T16:37:46-08:00 The Supreme Court granted certiorari review to address whether a juvenile court may exercise jurisdiction over a termination-of-parental-rights claim when the grounds for the termination did not involve a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." The Court held that a juvenile court may exercise jurisdiction under 12-15-114 over a termination-of-parental-rights claim when the subject of the termination was not a child alleged "to have committed a delinquent act, to be dependent, or to be in need of supervision." "[T]he legislature clearly expressed its intent in its 2014 amendments that under the 2008 AJJA the juvenile court have exclusive original jurisdiction over all termination-of-parental-rights proceedings. For this case, the Supreme Court reversed the judgment of the Court of Civil Appeals and remanded this case for that court to consider any arguments that may have been pretermitted by the Court of Civil Appeals' analysis. View "In re: C.C. v. L.J." on Justia Law 2014-09-30 state Alabama Supreme Court of Alabama 1121462 http://law.justia.com/cases/federal/appellate-courts/ca8/13-2592/13-2592-2014-09-30.html Alexander v. Avera St. Luke's Hospital 2014-09-30T08:10:33-08:00 2014-10-01T16:37:26-08:00 Plaintiff, a pathologist, filed suit against Avera, alleging that Avera violated federal and state laws for terminating a Services Agreement. Plaintiff filed suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq.; the Family Medical Leave Act (FMLA), 29 U.S.C. 2617 et seq.; and the South Dakota Human Relations Act (SDHRA), S.D. Codified Laws 20-13-1 et seq. The court affirmed the district court's grant of summary judgment dismissing all of plaintiff's claims because plaintiff was an independent contractor of St. Luke's Hospital under his Services Agreement and not an employee.View "Alexander v. Avera St. Luke's Hospital" on Justia Law 2014-09-30 federal U.S. Court of Appeals for the Eighth Circuit James B. Loken 13-2592 http://law.justia.com/cases/new-hampshire/supreme-court/2014/2014-002.html In re C.M. 2014-09-30T06:07:49-08:00 2014-10-01T16:37:12-08:00 Respondents, Larry M. and Sonia M. appealed a Circuit Court order terminating their parental rights over their children, A.M. and C.M. On appeal, Larry argued that the trial court erred by: (1) proceeding with the termination case based on an underlying neglect case in which he was improperly denied counsel; and (2) finding that termination of his parental rights was in the best interests of the children. Sonia argues that the court erred because: (3) the trial judge did not recuse himself despite the fact that he presided over the underlying neglect case in the circuit court. Both respondents argue that the court erred by: (4) failing to afford them twelve months from the superior court's de novo finding of neglect within which to correct the conditions which led to the finding of neglect; and (5) finding that the petitioner, the New Hampshire Division for Children, Youth and Families (DCYF), made reasonable efforts to assist them in correcting the conditions that led to the neglect finding. Finding no reversible error, the Supreme Court affirmed. View "In re C.M." on Justia Law 2014-09-30 state New Hampshire New Hampshire Supreme Court Robert J. Lynn 2014-002 http://law.justia.com/cases/south-carolina/supreme-court/2014/27448.html Brown v. Baby Girl Harper 2014-09-29T13:09:16-08:00 2014-10-01T16:37:06-08:00 Birth Mother was twenty-three years old when she learned that she was pregnant very late in the pregnancy. She received no prenatal care. She did not tell her parents she was pregnant, even though she lived with them. She gave birth alone after presenting to the emergency room when she went into labor with Baby Girl. Shortly after the birth, Birth Mother mentioned to hospital staff that she might be interested in placing Baby Girl for adoption. Other hospital workers were aware that Birth Mother was considering adoption, including the nurse midwife who delivered Baby Girl. The nurse midwife told Birth Mother that the nurse midwife's cousin, Adoptive Mother, was considering adoption, and gave her Adoptive Mother's telephone number. Birth Mother agreed to have Adoptive Mother adopt Baby Girl. Adoptive Mother's lawyer rented office space in an executive suite shared by other law firms, including the law firm where the attorney-witness worked. On the morning of the adoption, Adoptive Mother's lawyer asked the attorney-witness to act as a witness to the execution of the Consent. In addition, Adoptive Mother's lawyer asked a legal assistant from another law firm that also shared the office suite to be the second witness to the adoption. The legal assistant was present when Birth Mother signed the Consent, but did not see her initial the remainder of the document. She understood her role to be that of a witness to Birth Mother's signature. Adoptive Mother's lawyer notarized Birth Mother's signature. However, the attorney-witness did not enter the room until after Birth Mother signed the Consent, although she had the impression that Birth Mother had signed the Consent shortly before she entered the room. Neither witness was present for any discussions between Adoptive Mother's lawyer and Birth Mother regarding the Consent. The attorney-witness testified that she believed that Adoptive Mother's lawyer had explained the Consent to Birth Mother outside of her presence. Once the witnesses were in the room, Adoptive Mother's lawyer restated his prior conversation with Birth Mother in summary fashion. The witnesses signed the Consent, and the attorney-witness's law clerk notarized their signatures. The entire transaction lasted approximately ten minutes. Birth Mother left the office with Adoptive Mother's mother, who drove Birth Mother back to the local hotel where she had spent the previous night. Birth Mother spent time alone with Baby Girl there, and then relinquished Baby Girl to Adoptive Mother. However, Birth Mother explained that she "felt immediately that something was not right with the process." Five days later, Birth Mother sent a registered letter to Adoptive Mother's lawyer formally revoking her consent. The family court issued an order in a bifurcated hearing finding the Consent was invalid and requiring Baby Girl's immediate return to Birth Mother. In its order, the family court noted the only issue presented to the court was "whether the consent document was properly executed and, based on that ruling, whether Birth Mother's request for emergency transfer of legal and physical custody of the minor be granted." The court held that the relevant statutory provisions were clear and mandatory, such that strict compliance was required. Adoptive Mother appealed the court of appeals' decision affirming the family court order. Finding no error, the Supreme Court also affirmed. View "Brown v. Baby Girl Harper" on Justia Law 2014-09-29 state South Carolina South Carolina Supreme Court Jean H. Toal 27448 http://law.justia.com/cases/california/court-of-appeal/2014/b251917.html In re Francisco D. 2014-09-29T13:00:52-08:00 2014-10-01T16:37:06-08:00 Adoptive Mother appealed the juvenile court's removal of her adoptive son from her care under Welfare and Institutions Code section 300. The court affirmed the juvenile court's finding of jurisdiction over the child under subdivision (j) and affirmed the disposition order because there is a substantial and current risk to the child that warrants his removal. Further, the evidence indicates that the child is not a member of an Indian tribe, nor is he the biological child of a member of a child. Consequently, the Indian Child Welfare Act (ICWA), 25 U.S.C. 1912(a), 1903(4), is inapplicable to his dependency case, regardless of adoptive Mother's own Indian tribal membership. View "In re Francisco D." on Justia Law 2014-09-29 state California California Court of Appeal Kitching B251917 http://law.justia.com/cases/new-jersey/supreme-court/2014/a-1-13.html Maeker v. Ross 2014-09-29T08:08:32-08:00 2014-10-01T16:36:55-08:00 In this case, Beverly Maeker and William Ross, although unmarried to each other, lived together and shared a marital-like relationship from 1999 to 2011. In the course of that relationship, Maeker alleged she gave up a career and devoted herself to Ross, who promised to support her in the future. In short, Maeker claimed that the two entered into a palimony agreement. In 2011, their relationship dissolved, and Maeker filed an action to enforce Ross's promise to provide financial support. Ross argued that the alleged agreement was not reduced to writing and could not be enforced under the 2010 Amendment to the Statute of Frauds. The trial court rejected Ross's argument, concluding that the Legislature intended the 2010 Amendment to be prospectively applied. The Appellate Division reversed and dismissed Maeker's complaint, holding that the Legislature intended that any palimony agreement as of 2010 had to be in writing and that oral agreements predating the Amendment were no longer enforceable. Upon review of the matter, the Supreme Court disagreed with the Appellate Division, finding that the Legislature did not intend the 2010 Amendment to apply retroactively to oral agreements that predated the Amendment. "In amending the Statute of Frauds, the Legislature was aware that historically the Statute has been construed -- absent a legislative expression to the contrary -- not to reach back to rescind preexisting, lawfully enforceable oral agreements. The Legislature has given no indication that it intended to depart from the traditional prospective application of a change to the Statute." Accordingly, the Appellate Division was reversed and Maeker's complaint reinstated. View "Maeker v. Ross" on Justia Law 2014-09-25 state New Jersey Supreme Court of New Jersey Barry T. Albin a-1-13 http://law.justia.com/cases/california/court-of-appeal/2014/b247885a.html Eneaji v. Ubboe 2014-09-25T12:01:04-08:00 2014-10-01T16:36:08-08:00 Plaintiff challenged an order denying her request to renew a domestic violence restraining order against her former spouse. On rehearing, the court reinstated the original opinion reversing the order denying the request for a renewal of the domestic violence order. The court concluded that the trial court erred in concluding that the denial was appropriate because nothing happened in the three years since the restraining order. Further, the trial court incorrectly concluded that Ritchie v. Konrad required a reasonable apprehension of future physical abuse. Under the circumstances, the order denying the renewal request must be reversed and remanded to the trial court for further proceedings.View "Eneaji v. Ubboe" on Justia Law 2014-09-25 state California California Court of Appeal Ferns B247885 http://law.justia.com/cases/indiana/supreme-court/2014/21s01-1409-ad-592.html In re Adoption of O.R. 2014-09-25T08:02:45-08:00 2014-10-01T16:36:08-08:00 Child was four months old when she was placed in foster care with Adoptive Parents. When Child was six years old, Adoptive Parents filed a petition to adopt Child. Child's biological father (Father) refused to consent to the adoption. The trial court entered an order in favor of Adoptive Parents, concluding that Father's consent to adoption was not required. The Supreme Court affirmed, holding that the record not only supported the trial court's conclusion that Father's consent to the adoption of Child was not required but also supported the trial court's conclusion that Adoptive Parents' adoption of Child was in Child's best interest.View "In re Adoption of O.R." on Justia Law 2014-09-25 state Indiana Supreme Court of Indiana Robert D. Rucker 21S01-1409-AD-592 http://law.justia.com/cases/delaware/supreme-court/2014/75-2014.html Taylor v. Taylor 2014-09-23T12:00:59-08:00 2014-10-01T16:35:36-08:00 Appellant (Husband) Austin Taylor appealed a Family Court decision denying his Motion to Reopen an Alimony Order, which was entered by the court without his participation. On appeal, Husband argued that a default judgment was not appropriate under Rule 60(b) because he was not properly served, and he did not have a fair opportunity to contest the amount of the obligation imposed upon him. "The decision to reopen an alimony order lies in the sound discretion of the Family Court. But this case involves unusual circumstances," and the Supreme Court concluded that the Family Court abused its discretion in denying the Husband's motion to reopen. View "Taylor v. Taylor" on Justia Law 2014-09-23 state Delaware Delaware Supreme Court Leo Strine 75, 2014