Litigation

A husband's abusive behavior so adversely affected the wife's mental health that it became improper to cohabit with him and warranted an award of sole custody of the parties' two children to the wife.

The trial court awarded the wife a divorce on the ground of cruel and inhuman treatment. It found that the husband had physically mistreated and verbally abused the children, and had verbally denigrated the wife. She demonstrated through her own testimony, which was corroborated by the testimony of four other witnesses, that the husband's behavior so adversely affected her mental well-being that it became improper to cohabit with him. The wife was also awarded sole custody of the parties' two minor children. In affirming the judgment of divorce and the sole custody award to the wife, the appellate court found that the husband's physical and verbal abuse of the wife and the parties' two children, as well as his failure to recognize the special needs of one of his children, made his fitness as a custodial parent questionable. In considering all the facts available, the court held that it was in the best interest of the children that the wife have sole custody.

IRS Does Not Require Waiving Dependency Exemption in Divorce Decree

Boltinghouse v. Commissioner of Internal Revenue, No. 9063-01

U.S. Tax Court, May 13, 2003

The Internal Revenue Code does not require that an agreement to waive the dependency exemption be incorporated into the divorce decree.

When the Boltinghouses were divorced, they prepared an agreement that provided that the husband would claim one of the parties' two children on his tax return. The agreement did not specify the number of years that the petitioner could claim the child. The Commissioner of Internal Revenue determined there was a deficiency in the petitioner's tax return because 1) the agreement was not incorporated in the divorce decree of the petitioner and his former wife pursuant to section 152(e)(2) of the code ; and 2) the agreement as prepared did not conform to the substance of form 8332 of the code. The Boltinghouses appealed the Commissioner's determination. The tax court held that there was no deficiency because there is no requirement under 152(e)(2) that the agreement be incorporated into the petitioner's judgment of divorce. Furthermore, the agreement conformed to the substance of form 8332 because it unequivocally stated that the husband was entitled to claim one of his two children on his tax return. Although the agreement did not state the number of years for which the petitioner could claim the child, it did state that the parties intended to file separate returns and the petitioner's right to claim the child was to apply to all future years after the petitioner's divorce, which is permissible under the IRS regulations. The tax court therefore decided that the Boltinghouses were entitled to the dependency exemption.

Attorneys' Fees in Louisiana: Husband Pays

Bickham v. Bickham, No. 2002 CA 1307

Ct. App. La., 1st Cir., May 9, 2003

Louisiana law requires a court to award attorneys' fees and court costs to the wife where the husband is in arrears of child and spousal support and fails to show good cause.

The husband was ordered to pay spousal and child support and failed to do so in a timely fashion. The wife brought an enforcement action and was awarded, inter alia, attorneys' fees. Under Louisiana law, the wife was entitled to attorneys' fees unless the husband could show good cause regarding his failure to pay support. The husband's argument was that the initial award was vague and unclear regarding his support obligation. The court rejected the husband's argument and held that because the husband was in arrears of support and failed to show good cause, the court was required to award attorneys' fees and court costs to the wife.

Is Attorney Entitled to a Lien on Child Support?

Covington v. Allamby, No. ED81676

Mo. Ct. of App., May 6, 2003

An attorney is not entitled to a lien on child support, according to an appellate court in Missouri.

The attorney for the mother filed a notice of attorney's lien against the child support awarded to the mother after a paternity hearing, and the trial court quashed the notice. In affirming the trial court's decision, the appellate court noted that the trial court has a wide latitude is quashing lien notices. Although the attorney argued that the trial court's judgment would dissuade attorneys from representing non-monied clients, the appellate court held it could not allow an attorney's lien against an award of child support because the purpose of the support is to provide for the needs of the child. It also distinguished between an impermissible attorney's lien against child support and a permissible lien against spousal support.

Grandparents Do Not Have Automatic Rights

Eakett v. Eakett, No. COA02-936

N.C. Ct. App., May 6, 2003

A grandparent who cannot show that his grandchild was not part of an “intact family” has no standing to seek visitation under North Carolina law.

The mother of the subject child was awarded sole custody after the father failed to show up at the custody hearing. Thereafter, the paternal grandfather of the child cared for the child while the mother worked. The mother then found new employment and terminated the visitation between the paternal grandfather and the child. The grandfather sought visitation rights under the North Carolina statute that allows grandparents with certain standing to seek visitation. The statute gives a grandparent standing where there has been a custody determination and changed circumstances after the custody determination has been made. The court held that under this statute, the grandfather was first required to show that the child was not part of an “intact family.” Under North Carolina law, the intact family rule protects the supreme right of parents to determine with whom their child may associate. In this case, under North Carolina law, the mother and the child were an intact family, and, therefore, the grandfather did not have standing to seek visitation.

Editor's Note: For more on this subject of grandparents' rights, see 'Defining 'Best Interest,” By Stephen A. Newman, on page 1 of this newsletter.

Defiing Personal Jurisdiction

Chung-A-On v. Drury, S03A0252

Ga. Sup. Ct., May 5, 2003

The father was subject to state court jurisdiction in a support hearing because he had availed himself of the courts in the divorce and custody matters. The mother moved for a modification of child support and the father moved to dismiss, claiming there was a lack of personal jurisdiction. The trial court denied the motion and the appellate court affirmed. The appellate court held that the father was subject to the court's jurisdiction because he had availed himself of the use of the Georgia courts in the past to dissolve the parties' marriage and then to obtain custody of one of the parties' children.

Furthermore, there was a nexus between the subject matter of the present action and the prior actions that the husband had initiated. The court also considered that its exercise of jurisdiction over the husband was “consistent with the notions of fair play and substantial justice” and the husband could reasonably expect that Georgia would be the forum for any other issues regarding the parties' former marriage and issues regarding their children.

U.S. Tax Court, May 13, 2003

The Internal Revenue Code does not require that an agreement to waive the dependency exemption be incorporated into the divorce decree.

When the Boltinghouses were divorced, they prepared an agreement that provided that the husband would claim one of the parties' two children on his tax return. The agreement did not specify the number of years that the petitioner could claim the child. The Commissioner of Internal Revenue determined there was a deficiency in the petitioner's tax return because 1) the agreement was not incorporated in the divorce decree of the petitioner and his former wife pursuant to section 152(e)(2) of the Code; and 2) the agreement as prepared did not conform to the substance of form 8332 of the code. The Boltinghouses appealed the Commissioner's determination. The tax court held that there was no deficiency because there is no requirement under 152(e)(2) that the agreement be incorporated into the petitioner's judgment of divorce. Furthermore, the agreement conformed to the substance of form 8332 because it unequivocally stated that the husband was entitled to claim one of his two children on his tax return. Although the agreement did not state the number of years for which the petitioner could claim the child, it did state: 1) the parties intended to file separate returns and 2) the petitioner's right to claim the child was to apply to all future years after the petitioner's divorce, which is permissible under the IRS regulations. The tax court therefore decided that the Bolting- houses were entitled to the dependency exemption.Bickham v. Bickham, No. 2002 CA 1307

Ct. App. La., 1st Cir., May 9, 2003

Louisiana law requires a court to award attorney's fees and court costs to the wife where the husband is in arrears of child and spousal support and fails to show good cause.

The husband was ordered to pay spousal and child support and failed to do so in a timely fashion. The wife brought an enforcement action and was awarded, inter alia, attorneys' fees. Under Louisiana law, the wife was entitled to attorneys' fees unless the husband could show good cause regarding his failure to pay support. The husband's argument was that the initial award was vague and unclear regarding his support obligation. The court rejected the husband's argument and held that because the husband was in arrears of support and failed to show good cause, the court was required to award attorney's fees and court costs to the wife.Covington v. Allamby, No. ED81676

Mo. Ct. of App., May 6, 2003

An attorney is not entitled to a lien on child support, according to an appellate court in Missouri.

The attorney for the mother filed a notice of attorney's lien against the child support awarded to the mother after a paternity hearing, and the trial court quashed the notice. In affirming the trial court's decision, the appellate court noted that the trial court has a wide latitude is quashing lien notices. Although the attorney argued that the trial court's judgment would dissuade attorneys from representing non-monied clients, the appellate court held it could not allow an attorney's lien against an award of child support because the purpose of the support is to provide for the needs of the child. It also distinguished between an impermissible attorney's lien against child support and a permissible lien against spousal support.Eakett v. Eakett, No. COA02-936

N.C. Ct. App., May 6, 2003

A grandparent who cannot show that his grandchild was not part of an 'intact family' has no standing to seek visitation under North Carolina law.

The mother of the subject child was awarded sole custody after the father failed to show up at the custody hearing. Thereafter, the paternal grandfather of the child cared for the child while the mother worked. The mother then found new employment and terminated the visitation between the paternal grandfather and the child. The grandfather sought visitation rights under the North Carolina statute that allows grandparents with certain standing to seek visitation. The statute gives a grandparent standing where there has been a custody determination and changed circumstances after the custody determination has been made. The court held that under this statute, the grandfather was first required to show that the child was not part of an 'intact family.' Under North Carolina law, the intact family rule protects the supreme right of parents to determine with whom their child may associate. In this case, under North Carolina law, the mother and the child were an intact family, and, therefore, the grandfather did not have standing to seek visitation.

Editor's Note: For more on this subject of grandparents' rights, see 'Defining 'Best Interest,” By Stephen A. Newman, on page 1 of this newsletter.Chung-A-On v. Drury, S03A0252

Ga. Sup. Ct., May 5, 2003

The father was subject to state court jurisdiction in a support hearing bec- ause he had availed himself of the courts in the divorce and custody matters.

The mother moved for a modification of child support and the father moved to dismiss, claiming there was a lack of personal jurisdiction. The trial court denied the motion and the appellate court affirmed. The appellate court held that the father was subject to the court's jurisdiction because he had availed himself of the use of the Georgia courts in the past to dissolve the parties' marriage and then to obtain custody of one of the parties' children. Furthermore, there was a nexus between the subject matter of the present action and the prior actions that the husband had initiated. The court also considered that its exercise of jurisdiction over the husband was 'consistent with the notions of fair play and substantial justice' and the husband could reasonably expect that Georgia would be the forum for any other issues regarding the parties' former marriage and issues regarding their children.

Wife Wins Custody Due to Cruel and Inhuman Treatment by Husband

Rupp-Elmasri-Elmasri, No. 14427/95

N.Y. Supr. Ct. App.Div., 2d Dept., May 5, 2003

A husband's abusive behavior so adversely affected the wife's mental health that it became improper to cohabit with him and warranted an award of sole custody of the parties' two children to the wife.

The trial court awarded the wife a divorce on the ground of cruel and inhuman treatment. It found that the husband had physically mistreated and verbally abused the children, and had verbally denigrated the wife. She demonstrated through her own testimony, which was corroborated by the testimony of four other witnesses, that the husband's behavior so adversely affected her mental well-being that it became improper to cohabit with him. The wife was also awarded sole custody of the parties' two minor children. In affirming the judgment of divorce and the sole custody award to the wife, the appellate court found that the husband's physical and verbal abuse of the wife and the parties' two children, as well as his failure to recognize the special needs of one of his children, made his fitness as a custodial parent questionable. In considering all the facts available, the court held that it was in the best interest of the children that the wife have sole custody.

IRS Does Not Require Waiving Dependency Exemption in Divorce Decree

Boltinghouse v. Commissioner of Internal Revenue, No. 9063-01

U.S. Tax Court, May 13, 2003

The Internal Revenue Code does not require that an agreement to waive the dependency exemption be incorporated into the divorce decree.

When the Boltinghouses were divorced, they prepared an agreement that provided that the husband would claim one of the parties' two children on his tax return. The agreement did not specify the number of years that the petitioner could claim the child. The Commissioner of Internal Revenue determined there was a deficiency in the petitioner's tax return because 1) the agreement was not incorporated in the divorce decree of the petitioner and his former wife pursuant to section 152(e)(2) of the code ; and 2) the agreement as prepared did not conform to the substance of form 8332 of the code. The Boltinghouses appealed the Commissioner's determination. The tax court held that there was no deficiency because there is no requirement under 152(e)(2) that the agreement be incorporated into the petitioner's judgment of divorce. Furthermore, the agreement conformed to the substance of form 8332 because it unequivocally stated that the husband was entitled to claim one of his two children on his tax return. Although the agreement did not state the number of years for which the petitioner could claim the child, it did state that the parties intended to file separate returns and the petitioner's right to claim the child was to apply to all future years after the petitioner's divorce, which is permissible under the IRS regulations. The tax court therefore decided that the Boltinghouses were entitled to the dependency exemption.

Attorneys' Fees in Louisiana: Husband Pays

Bickham v. Bickham , No. 2002 CA 1307

Ct. App. La., 1st Cir., May 9, 2003

Louisiana law requires a court to award attorneys' fees and court costs to the wife where the husband is in arrears of child and spousal support and fails to show good cause.

The husband was ordered to pay spousal and child support and failed to do so in a timely fashion. The wife brought an enforcement action and was awarded, inter alia, attorneys' fees. Under Louisiana law, the wife was entitled to attorneys' fees unless the husband could show good cause regarding his failure to pay support. The husband's argument was that the initial award was vague and unclear regarding his support obligation. The court rejected the husband's argument and held that because the husband was in arrears of support and failed to show good cause, the court was required to award attorneys' fees and court costs to the wife.

Is Attorney Entitled to a Lien on Child Support?

Covington v. Allamby, No. ED81676

Mo. Ct. of App., May 6, 2003

An attorney is not entitled to a lien on child support, according to an appellate court in Missouri.

The attorney for the mother filed a notice of attorney's lien against the child support awarded to the mother after a paternity hearing, and the trial court quashed the notice. In affirming the trial court's decision, the appellate court noted that the trial court has a wide latitude is quashing lien notices. Although the attorney argued that the trial court's judgment would dissuade attorneys from representing non-monied clients, the appellate court held it could not allow an attorney's lien against an award of child support because the purpose of the support is to provide for the needs of the child. It also distinguished between an impermissible attorney's lien against child support and a permissible lien against spousal support.

Grandparents Do Not Have Automatic Rights

Eakett v. Eakett, No. COA02-936

N.C. Ct. App., May 6, 2003

A grandparent who cannot show that his grandchild was not part of an “intact family” has no standing to seek visitation under North Carolina law.

The mother of the subject child was awarded sole custody after the father failed to show up at the custody hearing. Thereafter, the paternal grandfather of the child cared for the child while the mother worked. The mother then found new employment and terminated the visitation between the paternal grandfather and the child. The grandfather sought visitation rights under the North Carolina statute that allows grandparents with certain standing to seek visitation. The statute gives a grandparent standing where there has been a custody determination and changed circumstances after the custody determination has been made. The court held that under this statute, the grandfather was first required to show that the child was not part of an “intact family.” Under North Carolina law, the intact family rule protects the supreme right of parents to determine with whom their child may associate. In this case, under North Carolina law, the mother and the child were an intact family, and, therefore, the grandfather did not have standing to seek visitation.

Editor's Note: For more on this subject of grandparents' rights, see 'Defining 'Best Interest,” By Stephen A. Newman, on page 1 of this newsletter.

Defiing Personal Jurisdiction

Chung-A-On v. Drury, S03A0252

Ga. Sup. Ct., May 5, 2003

The father was subject to state court jurisdiction in a support hearing because he had availed himself of the courts in the divorce and custody matters. The mother moved for a modification of child support and the father moved to dismiss, claiming there was a lack of personal jurisdiction. The trial court denied the motion and the appellate court affirmed. The appellate court held that the father was subject to the court's jurisdiction because he had availed himself of the use of the Georgia courts in the past to dissolve the parties' marriage and then to obtain custody of one of the parties' children.

Furthermore, there was a nexus between the subject matter of the present action and the prior actions that the husband had initiated. The court also considered that its exercise of jurisdiction over the husband was “consistent with the notions of fair play and substantial justice” and the husband could reasonably expect that Georgia would be the forum for any other issues regarding the parties' former marriage and issues regarding their children.

U.S. Tax Court, May 13, 2003

The Internal Revenue Code does not require that an agreement to waive the dependency exemption be incorporated into the divorce decree.

When the Boltinghouses were divorced, they prepared an agreement that provided that the husband would claim one of the parties' two children on his tax return. The agreement did not specify the number of years that the petitioner could claim the child. The Commissioner of Internal Revenue determined there was a deficiency in the petitioner's tax return because 1) the agreement was not incorporated in the divorce decree of the petitioner and his former wife pursuant to section 152(e)(2) of the Code; and 2) the agreement as prepared did not conform to the substance of form 8332 of the code. The Boltinghouses appealed the Commissioner's determination. The tax court held that there was no deficiency because there is no requirement under 152(e)(2) that the agreement be incorporated into the petitioner's judgment of divorce. Furthermore, the agreement conformed to the substance of form 8332 because it unequivocally stated that the husband was entitled to claim one of his two children on his tax return. Although the agreement did not state the number of years for which the petitioner could claim the child, it did state: 1) the parties intended to file separate returns and 2) the petitioner's right to claim the child was to apply to all future years after the petitioner's divorce, which is permissible under the IRS regulations. The tax court therefore decided that the Bolting- houses were entitled to the dependency exemption.Bickham v. Bickham, No. 2002 CA 1307

Ct. App. La., 1st Cir., May 9, 2003

Louisiana law requires a court to award attorney's fees and court costs to the wife where the husband is in arrears of child and spousal support and fails to show good cause.

The husband was ordered to pay spousal and child support and failed to do so in a timely fashion. The wife brought an enforcement action and was awarded, inter alia, attorneys' fees. Under Louisiana law, the wife was entitled to attorneys' fees unless the husband could show good cause regarding his failure to pay support. The husband's argument was that the initial award was vague and unclear regarding his support obligation. The court rejected the husband's argument and held that because the husband was in arrears of support and failed to show good cause, the court was required to award attorney's fees and court costs to the wife.Covington v. Allamby, No. ED81676

Mo. Ct. of App., May 6, 2003

An attorney is not entitled to a lien on child support, according to an appellate court in Missouri.

The attorney for the mother filed a notice of attorney's lien against the child support awarded to the mother after a paternity hearing, and the trial court quashed the notice. In affirming the trial court's decision, the appellate court noted that the trial court has a wide latitude is quashing lien notices. Although the attorney argued that the trial court's judgment would dissuade attorneys from representing non-monied clients, the appellate court held it could not allow an attorney's lien against an award of child support because the purpose of the support is to provide for the needs of the child. It also distinguished between an impermissible attorney's lien against child support and a permissible lien against spousal support.Eakett v. Eakett, No. COA02-936

N.C. Ct. App., May 6, 2003

A grandparent who cannot show that his grandchild was not part of an 'intact family' has no standing to seek visitation under North Carolina law.

The mother of the subject child was awarded sole custody after the father failed to show up at the custody hearing. Thereafter, the paternal grandfather of the child cared for the child while the mother worked. The mother then found new employment and terminated the visitation between the paternal grandfather and the child. The grandfather sought visitation rights under the North Carolina statute that allows grandparents with certain standing to seek visitation. The statute gives a grandparent standing where there has been a custody determination and changed circumstances after the custody determination has been made. The court held that under this statute, the grandfather was first required to show that the child was not part of an 'intact family.' Under North Carolina law, the intact family rule protects the supreme right of parents to determine with whom their child may associate. In this case, under North Carolina law, the mother and the child were an intact family, and, therefore, the grandfather did not have standing to seek visitation.

Editor's Note: For more on this subject of grandparents' rights, see 'Defining 'Best Interest,” By Stephen A. Newman, on page 1 of this newsletter.Chung-A-On v. Drury, S03A0252

Ga. Sup. Ct., May 5, 2003

The father was subject to state court jurisdiction in a support hearing bec- ause he had availed himself of the courts in the divorce and custody matters.

The mother moved for a modification of child support and the father moved to dismiss, claiming there was a lack of personal jurisdiction. The trial court denied the motion and the appellate court affirmed. The appellate court held that the father was subject to the court's jurisdiction because he had availed himself of the use of the Georgia courts in the past to dissolve the parties' marriage and then to obtain custody of one of the parties' children. Furthermore, there was a nexus between the subject matter of the present action and the prior actions that the husband had initiated. The court also considered that its exercise of jurisdiction over the husband was 'consistent with the notions of fair play and substantial justice' and the husband could reasonably expect that Georgia would be the forum for any other issues regarding the parties' former marriage and issues regarding their children.