Latest 11 Cases This Week: Monasky v. Taglieri (U.S.), Berenguela-Alvarado v. Castanos (11th Cir.), Marriage of Deal (Cal. Ct. App.)

“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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Monasky v. Taglieri

Court: US Supreme Court

Docket: 18-935

Opinion Date: February 25, 2020

Judge: Ruth Bader Ginsburg

Areas of Law: Family Law, International Law

The Hague Convention on the Civil Aspects of International Child Abduction, 22 U.S.C. 9001, provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. Monasky, a U. S. citizen, asserts that her Italian husband, Taglieri, became abusive after the couple moved to Italy. Two months after the birth of their daughter, in Italy, Monasky fled with the infant to Ohio. Taglieri sought the child’s return to Italy. The Sixth Circuit affirmed a finding that the parents’ shared intent was for their daughter to live in Italy, rejecting Monasky’s arguments in favor of an actual-agreement requirement. The two-year-old was returned to Italy. The Supreme Court affirmed. A child’s habitual residence depends on the totality of the specific circumstances, not on categorical requirements such as an actual agreement between the parents. While an infant’s “mere physical presence” is not dispositive, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can facilitate a determination of whether an infant’s residence is “habitual.” Imposing a categorical actual-agreement requirement is unlikely to address the serious problem of protecting children born into domestic violence and would leave many infants without a habitual residence. Domestic violence should be fully explored in the custody adjudication upon the child’s return. The Convention allows a court to refrain from ordering a child’s return to her habitual residence if there is a grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation. A first-instance habitual-residence determination is subject to deferential appellate review for clear error.

Berenguela-Alvarado v. Castanos

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13436

Opinion Date: February 25, 2020

Judge: Newsom

Areas of Law: Family Law, International Law

Mother filed suit under the Hague Convention, seeking the return of her daughter from Florida back to Chile. The district court found that mother made a prima facie case that father hand wrongfully retained daughter, but that mother had consented to the retention and thus was not entitled to the daughter's return. The Eleventh Circuit vacated and remanded, holding that the district court made critical errors of fact and law in its order. The court held that none of the testimony that father did give could be interpreted as constituting a denial that he threatened mother. The court also held that the district court improperly, but expressly, shifted the burden back to mother on the consent issue. Therefore, the district court erroneously treated her allegation that she signed the consent letter as a result of father's threat as a formal allegation of "duress" that she had to prove by a preponderance of the evidence.

Marriage of Deal

Court: California Courts of Appeal

Docket: A154425(First Appellate District)

Opinion Date: February 24, 2020

Judge: Frank Y. Jackson

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Patricia petitioned for the dissolution of her marriage to Thomas in 2001. A dissolution judgment entered in 2002; a judgment on reserved issues entered in 2008. In 2005, trial court Commissioner Oleon determined, based Thomas’s conduct in the dissolution proceedings and two separate civil actions, that Thomas was a vexatious litigant, and issued an order, prohibiting him from filing any new litigation or motion in propria persona without obtaining leave of the presiding judge. Thomas was also ordered to cover Patricia's attorney fees. In 2006, Thomas unsuccessfully moved (Code of Civil Procedure 170.1) to have Oleon disqualified. Weeks later, Thomas filed another section 170.1 challenge; the court failed to timely respond. Months later, notwithstanding his disqualification, Oleon reentered his previous vexatious litigant orders, effective from 7/29/05 because, when entering his original orders, he neglected to file a mandatory form. In 2018, Thomas complained to the presiding judge regarding Oleon’s post-disqualification involvement. The court issued an order to show cause, then reaffirmed that Thomas qualifies as a vexatious litigant and reimposed the pre-filing order. The court of appeal affirmed, noting that “Thomas appears to have used the opportunity ... to make implicit threats against various members of the California judiciary and State Bar.” The court upheld the 2018 orders as supported by substantial evidence and rejected an argument that a nonplaintiff litigant cannot be designated a vexatious litigant.

Garrison v. Downing

Court: Delaware Supreme Court

Docket: 418, 2018

Opinion Date: February 26, 2020

Judge: Vaughn

Areas of Law: Family Law

Appellant, husband Mitchell Garrison appealed a family court debt-division order issued after his divorce from Appellee, wife Tamika Downing. Before the Delaware Supreme Court, Husband argued: (1) the family court erred by ordering him to pay premarital debts incurred by Wife to pay for the parties’ wedding; and (2) the family court erred by finding that the parties’ prenuptial agreement barred his claim to half of the value of the Wife’s business which she operated during their marriage. After carefully considering the question presented by the Husband’s first claim, the Supreme Court concluded the equitable exception for property acquired in contemplation of marriage should have been construed narrowly to apply only as originally intended. “Due regard must be given to the fact that the rule is an exception to the Family Court’s statutory jurisdiction. In the future, the Family Court should limit the equitable exception to cases involving real property where the evidence shows that it was the parties’ intention that the property, although acquired in the name of one party prior to marriage, was to become marital property upon their marriage. Any enlargement of the equitable exception beyond that must come from the General Assembly.” Regarding Husband’s second claim, the Supreme Court found no error in the family court’s denial of his request for division of Wife’s business.

Lewis v. Lewis

Court: Montana Supreme Court

Citation: 2020 MT 44

Opinion Date: February 25, 2020

Judge: Gustafson

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court dividing marital assets in Husband's dissolution from Wife, holding that the district court did not commit clear error in its findings of fact and did not abuse its discretion. Husband appealed, arguing that the district court erred in distributing approximately twenty-five percent of the total marital estate to Wife and awarding her maintenance for ten years because much of the marital estate was compromised of property that Husband inherited. The Supreme Court affirmed, holding that the district court (1) did not commit clear error in its findings of fact supporting its distribution of the marital estate and award of maintenance; and (2) did not abuse its discretion in its division of inherited property in the marital estate.

In re Adoption of A.C.B.

Court: Supreme Court of Ohio

Citation: 2020-Ohio-629

Opinion Date: February 26, 2020

Judge: DeWine

Areas of Law: Family Law

The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the probate court finding that a single payment of child support made by Father did not amount to the provision of support "as required by law or judicial decree" and therefore concluding that Father's consent was not required for the adoption of his child, holding that the single payment was insufficient to preserve Father's right to object to the adoption of his child. Father was a biological parent of the child who was ordered by a court to pay child support of $85 per week. The only payment Father made in the year before the filing of the adoption petition was a single payment of $200, constituting less than five percent of his annual obligation. On appeal, Father asserted that under Ohio Rev. Code 3107.07(A), provision of any amount of maintenance and support during the statutory one-year period constituted maintenance and support "as required by law or judicial decree." The Supreme Court disagreed, holding that, under the plain language of the statute, Father did not provide for the maintenance and support of the child "as required by law or judicial decree" for the requisite one-year period.

Theberge v. Theberge

Court: Vermont Supreme Court

Citation: 2020 VT 13

Opinion Date: February 21, 2020

Judge: Eaton

Areas of Law: Family Law

This appeal arose from the denial of defendant Mary Ann Theberge’s post-judgment motion to enforce the cost-of-living adjustment (COLA) to a spousal-maintenance award made in her favor in the parties’ divorce action. The trial court found that the parties agreed to a modification of the maintenance award eliminating the yearly COLA and that, consequently, plaintiff Gerald Theberge’s maintenance payments - which continued after the alleged agreement, absent the COLA - were not in arrears. Accordingly, the court denied the enforcement motion. The Vermont Supreme Court held that a tuition agreement between the parties was a valid contract such that, if plaintiff agreed to waive defendant’s obligation thereunder in connection with a second agreement, he would have given up a legal right he was otherwise free to exercise. As a result, remand was necessary for the trial court to determine whether the parties entered an agreement with corrected factual findings. In connection with this remand, the Court noted that the trial court considered defendant’s receipt of ten years of maintenance payments without COLA to constitute “waiver by performance.” However, it was unclear whether the trial court was referring to waiver in the context of evidence that defendant made an oral agreement to waive the COLA, or whether it was referring to waiver as the relinquishment of a known right through defendant’s failure to seek enforcement of the COLA sooner than she did. Upon remand, the trial court was asked to clarify its conclusion regarding defendant’s “waiver by performance.”

Campbell v. Campbell

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0627

Opinion Date: February 24, 2020

Judge: Jenkins

Areas of Law: Family Law

The Supreme Court reversed the order of the circuit court affirming the family court's order denying Michael Campbell's motion to modify his spousal support obligation to his former wife, Joanna Campbell, holding that the family court erred by denying Michael's petition to modify his spousal support award and that the circuit court erred by affirming the family court's ruling. On appeal, Michael argued that he was entitled to modification of his alimony obligation because his current monthly spousal support obligation was greater than his currently monthly retirement income and that the lower courts erred by refusing to modify his spousal support obligation to an amount commensurate with his ability to pay. The Supreme Court reversed, holding that the lower courts erred by refusing to grant Michael's modification petition.

In re Interest of Bass

Court: Wyoming Supreme Court

Citation: 2020 WY 27

Opinion Date: February 26, 2020

Judge: Michael K. Davis

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the district court dismissing without prejudice Grandmother's petition seeking temporary guardianship of Grandchild for failure to prosecute, holding that the district court did not abuse its discretion. Grandmother filed her petition for temporary guardianship on May 9, 2017. On June 26, 2017, the district court issued an order to show cause, noting that no action had been taken on the petition in more than two years and ordering Grandmother to show cause why the matter should not be dismissed. The court subsequently entered an order dismissing the petition with prejudice. The Supreme Court affirmed, holding that the district court did not abuse its discretion in dismissing the petition.

Shipley v. Smith

Court: Wyoming Supreme Court

Citation: 2020 WY 26

Opinion Date: February 25, 2020

Judge: Kate M. Fox

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court establishing paternity, custody, visitation and child support, holding that the district court did not abuse its discretion in any aspects of its child support apportionment. Specifically, the Supreme Court held (1) the district court did not abuse its discretion in failing to make the support obligation retroactive; (2) the district court did not abuse its discretion by declining to impute Father's income at the amount he earned in a previous, higher-paying position; and (3) Mother's arguments regarding allocation of responsibility for the child's medical insurance and medical costs were not ripe for review.

Walsh v. Smith

Court: Wyoming Supreme Court

Citation: 2020 WY 25

Opinion Date: February 24, 2020

Judge: Boomgaarden

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court modifying visitation and child support after Mother moved to Idaho, holding that the district court did not abuse its discretion. After Mother moved to Idaho from Wyoming Father petitioned to modify custody, visitation and support, requesting physical and residential custody of the parties' daughter. Mother counterclaimed to maintain primary physical custody of the child. The district court then issued a final order concluding that Mother's move constituted a material change in circumstances and that it was in the child's best interest for Father to have primary physical and residential custody of the child. The Supreme Court affirmed, holding that the district court did not abuse its discretion when it (1) determined that it was in the child's best interest for Father to have primary physical and residential custody of the child after she enters kindergarten; and (2) established the visitation plan.