Thursday, March 15, 2012

Bad Behavior Makes for Large Bill

Wife appealed from a trial court order requiring her to pay $552,000 as sanctions and fees to her former husband with respect to two post-dissolution matters. However, she found that her endless and reckless pursuit to achieve her desired result was not a view shared by the Court of Appeals.

At trial, Wife had assets of at least $6 million, though Husband claimed that she had over $30 million in assets. Wife’s ‘war’ on Husband, included not following the court's orders, not appearing in court, and failing to even accept the court's authority to make orders. The Court found her conduct “reckless”, saying that Husband had met his burden of showing that Wife dilatory and uncooperative conduct frustrated the policy of the law to promote settlement of litigation and cooperation among litigants. Further, the Court of Appeals stated that portions of the litigation lacked any legitimate legal basis.

The Court of Appeals affirmed the trial court’s orders. In fact, additional sanctions of $15,000 were imposed against the Wife and $10,000 against her appellate counsel on a finding that the appeal was frivolous.

In re Marriage of Wahl and Perkins
California Courts of Appeal, Sixth District
Case Number: H035712
Date Filed: February 2, 2012

Monday, March 5, 2012

Support Changes if You Don’t Visit as Agreed

A mother commenced dissolution of marriage matter, with a minor child, in November, 2007. In March and April, 2008, the trail court entered temporary orders, including an order for child support in the amount of $1,665.00 per month, and an order for temporary parenting time to Father of alternating weekends (First Parenting Plan, or “FPP”).

In September, 2008, the parties entered a Rule 69 Agreement, wherein they agreed to deviate from the Guideline calculation for support of $1,665.00 per month, to $300.00 per month, in recognition that Father incurred significant travel expense to travel from his state of residence, California, to Arizona to exercise parenting time pursuant to the FPP.

Thereafter, Father lodged a decree which purported the child support deviation to be “permanent.”Mother objected to the decree, alleging the Rule 69 Agreement did not include a “permanent” deviation. The trail court ordered the parties to arbitrate the final language of the decree. In October, 2009, the trail court adopted a revised parenting plan (“RPP”), where Father exercised parenting time only on “the second weekend of every second month.” On October 30, 2009, after the arbitrated decree had been finalized, but before the trail court entered arbitrated decree, Mother filed a petition to modify child support, alleging Father’s travel expense to exercise parenting time was reduced by entry of the RPP, and that Father did not exercise any parenting anyway. Thereafter, the trail court entered the decree, held child support modification hearing, denied Mother’s petition to modify support, and denied Mother’s motion for new trial.

As Mother argued to the trail court, Mother argued to the court of appeals that Father’s failure to visit the child and travel to Arizona, combined with the reduced parenting time of the RPP adopted at Father’s request), constituted a material change of circumstances warranting modification of the child support obligation. Father argued to the court of appeals that when the trail court entered the decree, it already adopted the RPP and, thus, the reduced parenting time did not represent a change of circumstances existing at the dissolution.

The court of appeals found settlement agreements do not preclude modification of support, custody, or parenting time: Settlement agreements, such as the parties' Rule 69 Agreement, do not preclude the modification of “terms concerning ... the support, custody or parenting time of children.” Ariz.Rev.Stat. (“A.R.S.”) § 25–317(F) (2001). An “order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing.” A.R.S. § 25–503(E) (2009).

The court of appeals further found the difference in the anticipated travel costs associated with exercise of the FPP, and the travel costs actually incurred (or not incurred as a result of Father’s failure to exercise the RPP) is a substantial and continuing change of circumstance, which warranted a modification of the child support order, pursuant to A.R.S. § 25–503(E).

The court of appeals held the trail court abused its discretion by denying Mother’s motion for new trial, reversed the denial, and remanded the case for a new hearing on Mother’s petition to modify child support consistent with the court of appeals decision.

Thursday, March 1, 2012

How Parents are Using Child Obesity as a Weapon in Divorces

I was reading the County Bar Associations newsletter and came accross this interesting article that was writen by Tamara Abraham that I found very interesting and would like to share.

Family lawyers have revealed how child obesity is increasingly being used as an argument in divorce court custody battles.

They say separating parents in the U.S. are now regularly accusing one another of allowing children to eat too much junk food, and not encouraging them to do enough exercise.

Risk of bullying and obesity-related diseases, such as diabetes, are often cited as reasons children should live with one parent rather than the other.

Douglas Gardner, a family lawyer in Arizona, told the Wall Street Journal: 'It's come up quite a bit in the last couple of years. 'Typically, one parent is accusing the other of putting a child at risk of developing diabetes or heart disease - or saying that the child is miserable because he's getting made fun of at school.'

While evidence and outcomes vary dramatically, it marks a shift in the nature of arguments employed in custody battles. Jeff Wittenbrink, a family law specialist in Baton Rouge, Louisiana, added: 'It used to be constantly and consistently about smoking. It's only been recently where one parent thinks their kid's not active enough, is gaining weight and eating sugary food.' In a survey by, lawyers said that the subject was becoming a bigger issue in custody battles because the public is becoming more conscious than ever of the health risks associated with obesity.

'If all things are equal but one person only feeds fatty foods and the children have weight problems... it can become an important distinguishing factor'.

Indeed, the trend follows a series of high-profile cases and debates surrounding the subject.

In 2009, a 555 pound teenage boy in South Carolina was taken into state custody after his mother was arrested and charged with criminal neglect. And just this summer, Boston obesity expert David Ludwig sparked controversy when he wrote in an article that 'in severe cases of childhood obesity, removal from the home may be justifiable.'

But, legal experts warn, the obesity argument is only likely to have impact in severe cases. Chicago lawyer Jonathan Merel explained: 'If one side is scratching to find something wrong with the other person, the courts might not give it the same weight. 'If all things are equal but one person only feeds fatty foods and the children have weight problems, I think it can become an important distinguishing factor.'