Litigation

A 2-month-old infant's habitual residence in the country in which it was born cannot be established merely because the mother gave birth in that country and only intended to reside there temporarily. Delvoye v. Lee, No. 02-3943, U.S. Ct. of App. 3rd Cir., May 20, 2003

Christina Lee is a United States citizen and Wim Delvoye is a citizen of Belgium. After Lee became pregnant with Delvoye's child, she began her prenatal medical care in the United States, but subsequently agreed to Delvoye's request to complete her pregnancy care and give birth in Belgium. Delvoye refused to pay for the birth in the U.S., because the health care in Belgium was free. Lee arrived in Belgium with a 3-month tourist visa that she did not renew. After the birth of the parties' child (“Baby S”), the two terminated their relationship, and the father eventually agreed that the mother could return to the United States with Baby S. After Lee's return to the United States with Baby S, Delvoye visited them in the United States, and the parties attempted to reconcile. When reconciliation failed, Delvoye filed a petition in the United States District Court seeking the return of Baby S to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the petition after a hearing and a final order of disposition. Delvoye appealed to the United States Circuit Court and the circuit court affirmed. It held that in order to find a child had been abducted under the Hague Convention, the removal is required to be in breach of the rights of custody of a person under the laws of the state where the child is a habitual resident immediately prior to the removal. The circuit court held that the child did not have a habitual residence in Belgium because the parties never agreed that Belgium would be their common home. Rather, the evidence suggested that the mother only intended to reside in Belgium temporarily for her pregnancy in order to avoid the costs of giving birth to Baby S in the United States. It held that a newborn child could not have a habitual residence until the child had resided in a country and established stability in that country. It noted that simply because a child is born in a particular country because its mother gives birth there does not immediately create a country of habitual residence for the child.

Wife Not Entitled to Credit for Capital Improvements on Marital Residence

Where a divorce judgment is silent regarding who is responsible for carrying charges on the marital residence, a wife is not entitled to credit for capital improvements or for payments toward the mortgage principal upon the sale of the marital residence 14 years after the entry of the divorce judgment. Amaris v. Amaris, 2002-07746, N.Y. Sup. Ct. App. Div., 2d Dept., May 27, 2003.

Mary Ann and Miguel Amaris were divorced in 1988. The divorce judgment provided, inter alia, that the wife was entitled to reside in the marital residence until the parties' youngest child graduated from high school, at which time the parties would sell the residence and equally divide the net proceeds. The agreement was silent regarding who was responsible for payment of the carrying charges on the residence. The youngest child graduated from high school in 1993, but the wife continued to reside in the marital residence. In 2002, the husband moved to compel the sale of the residence and divide the net proceeds as provided in the divorce judgment. In her opposition papers, the wife requested credits for certain expenses, including capital improvements, payments toward the mortgage principal, and for child support arrears. The lower court granted the husband's motion in its entirety and denied the wife's request for credits. The appellate court partly reversed the lower court and remanded for further proceedings. It held that although the wife was not entitled to a credit for capital improvements or for payment toward the mortgage principal, she was entitled to a hearing on the issue of whether the husband was in arrears of child support.

Disgorgement of Attorneys' Fees Not Allowed under IL Parentage Act

Unlike the Illinois Marriage Act, the Illinois Parentage Act does not authorize a judge to order an attorney to disgorge an interim attorney fee award. Stella v. Garcia. Bedrava, Contemnor-Appellant, No. 1-02-0440, Ill. App. Ct., 1st Dist., 3d Div., May 28, 2003.

Patrick Stella commenced an action under the Illinois Parentage Act seeking to establish parental rights with his alleged child. Bedrava was his attorney in the matter. The mother was not represented by an attorney initially, but then hired Sue Roberts-Kurpis. Roberts-Kurpis filed a petition seeking interim attorneys' fees to be paid for by the father under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act). Bedrava objected to the motion. The trial court ordered Bedrava to “disgorge” the sum of $20,000 to Roberts-Kurpis, which was statutorily permissible under the Marriage Act. Bedrava filed a motion to reconsider, arguing that the disgorgement provision in the Marriage Act did not apply to an action commenced under the Parentage Act. The court denied the motion to reconsider, but Bedrava was granted a stay that would permit him to appeal the interim fee award and the disgorgement order. The appellate court reversed the holding of the lower court in part. It held that although interim fee awards were permissible under the Parentage Act, the disgorgement of fees was not. In its de novo review, it held that not every section of the Parentage Act conferred on the court all the powers given to the court by the Marriage Act. It considered that the legislature had adopted certain sections of the Parentage Act in the Marriage Act, but not others. In particular, it noted that the Parentage Act did not incorporate all of the procedures or broad powers provided in the Marriage Act. It concluded that only the standards specifically adopted by the Parentage Act from the Marriage Act could be applied in parentage cases. Upon a review of the Parentage Act, the appellate court concluded that there was no legislative intent to provide a trial judge with power to disgorge interim fees in a Parentage Act matter.

A 2-month-old infant's habitual residence in the country in which it was born cannot be established merely because the mother gave birth in that country and only intended to reside there temporarily. Delvoye v. Lee, No. 02-3943, U.S. Ct. of App. 3rd Cir., May 20, 2003.

Christina Lee is a United States citizen and Wim Delvoye is a citizen of Belgium. After Lee became pregnant with Delvoye's child, she began her prenatal medical care in the United States, but subsequently agreed to Delvoye's request to complete her pregnancy care and give birth in Belgium. Delvoye refused to pay for the birth in the U.S., because the health care in Belgium was free. Lee arrived in Belgium with a 3-month tourist visa that she did not renew. After the birth of the parties' child ('Baby S'), the two terminated their relationship, and the father eventually agreed that the mother could return to the United States with Baby S. After Lee's return to the United States with Baby S, Delvoye visited them in the United States, and the parties attempted to reconcile. When reconciliation failed, Delvoye filed a petition in the United States District Court seeking the return of Baby S to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the petition after a hearing and a final order of disposition. Delvoye appealed to the United States Circuit Court and the circuit court affirmed. It held that in order to find a child had been abducted under the Hague Convention, the removal is required to be in breach of the rights of custody of a person under the laws of the state where the child is a habitual resident immediately prior to the removal. The circuit court held that the child did not have a habitual residence in Belgium because the parties never agreed that Belgium would be their common home. Rather, the evidence suggested that the mother only intended to reside in Belgium temporarily for her pregnancy in order to avoid the costs of giving birth to Baby S in the United States. It held that a newborn child could not have a habitual residence until the child had resided in a country and established stability in that country. It noted that simply because a child is born in a particular country because its mother gives birth there does not immediately create a country of habitual residence for the child.

Where a divorce judgment is silent regarding who is responsible for carrying charges on the marital residence, a wife is not entitled to credit for capital improvements or for payments toward the mortgage principal upon the sale of the marital residence 14 years after the entry of the divorce judgment. Amaris v. Amaris, 2002-07746, N.Y. Sup. Ct. App. Div., 2d Dept., May 27, 2003.

Mary Ann and Miguel Amaris were divorced in 1988. The divorce judgment provided, inter alia, that the wife was entitled to reside in the marital residence until the parties' youngest child graduated from high school, at which time the parties would sell the residence and equally divide the net proceeds. The agreement was silent regarding who was responsible for payment of the carrying charges on the residence. The youngest child graduated from high school in 1993, but the wife continued to reside in the marital residence. In 2002, the husband moved to compel the sale of the residence and divide the net proceeds as provided in the divorce judgment. In her opposition papers, the wife requested credits for certain expenses, including capital improvements, payments toward the mortgage principal, and for child support arrears. The lower court granted the husband's motion in its entirety and denied the wife's request for credits. The appellate court partly reversed the lower court and remanded for further proceedings. It held that although the wife was not entitled to a credit for capital improvements or for payment toward the mortgage principal, she was entitled to a hearing on the issue of whether the husband was in arrears of child support.

Unlike the Illinois Marriage Act, the Illinois Parentage Act does not authorize a judge to order an attorney to disgorge an interim attorney fee award. Stella v. Garcia. No. 1-02-0440, Ill. App. Ct., 1st Dist., 3d Div., May 28, 2003.

Patrick Stella commenced an action under the Illinois Parentage Act seeking to establish parental rights with his alleged child. Bedrava was his attorney in the matter. The mother was not represented by an attorney initially, but then hired Sue Roberts-Kurpis. Roberts-Kurpis filed a petition seeking interim attorneys' fees to be paid for by the father under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act). Bedrava objected to the motion. The trial court ordered Bedrava to 'disgorge' the sum of $20,000 to Roberts-Kurpis, which was statutorily permissible under the Marriage Act. Bedrava filed a motion to reconsider, arguing that the disgorgement provision in the Marriage Act did not apply to an action commenced under the Parentage Act. The court denied the motion to reconsider, but Bedrava was granted a stay that would permit him to appeal the interim fee award and the disgorgement order. The appellate court reversed the holding of the lower court in part. It held that although interim fee awards were permissible under the Parentage Act, the disgorgement of fees was not. In its de novo review, it held that not every section of the Parentage Act conferred on the court all the powers given to the court by the Marriage Act. It considered that the legislature had adopted certain sections of the Parentage Act in the Marriage Act, but not others. In particular, it noted that the Parentage Act did not incorporate all of the procedures or broad powers provided in the Marriage Act. It concluded that only the standards specifically adopted by the Parentage Act from the Marriage Act could be applied in parentage cases. Upon a review of the Parentage Act, the appellate court concluded that there was no legislative intent to provide a trial judge with power to disgorge interim fees in a Parentage Act matter.

The appointment of the wife as receiver of income from marital rental property is appropriate where it is established there is a danger of the loss of marital assets and because it maximizes the preservation of marital assets. Rose v. Rose, 2002-07203, N.Y. Sup. Ct. App. Div. 2d Dept, May 19, 2002

The husband and wife acquired certain income-producing rental properties during their marriage. The wife moved, inter alia, for the appointment of a receiver for certain income producing marital property. She alleged that the husband utilized the moneys from these properties for his sole benefit. The wife was appointed as the receiver of the property, and the husband appealed. The appellate court affirmed the decision and held that appointment of a receiver is appropriate when it is established that there is a danger of dissipation or loss of marital funds. The appointment of the wife as receiver was appropriate because it would maximize the preservation of the parties' assets.

Infant Born in Belgium Is American, Says Court

A 2-month-old infant's habitual residence in the country in which it was born cannot be established merely because the mother gave birth in that country and only intended to reside there temporarily. Delvoye v. Lee, No. 02-3943, U.S. Ct. of App. 3rd Cir., May 20, 2003

Christina Lee is a United States citizen and Wim Delvoye is a citizen of Belgium. After Lee became pregnant with Delvoye's child, she began her prenatal medical care in the United States, but subsequently agreed to Delvoye's request to complete her pregnancy care and give birth in Belgium. Delvoye refused to pay for the birth in the U.S., because the health care in Belgium was free. Lee arrived in Belgium with a 3-month tourist visa that she did not renew. After the birth of the parties' child (“Baby S”), the two terminated their relationship, and the father eventually agreed that the mother could return to the United States with Baby S. After Lee's return to the United States with Baby S, Delvoye visited them in the United States, and the parties attempted to reconcile. When reconciliation failed, Delvoye filed a petition in the United States District Court seeking the return of Baby S to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the petition after a hearing and a final order of disposition. Delvoye appealed to the United States Circuit Court and the circuit court affirmed. It held that in order to find a child had been abducted under the Hague Convention, the removal is required to be in breach of the rights of custody of a person under the laws of the state where the child is a habitual resident immediately prior to the removal. The circuit court held that the child did not have a habitual residence in Belgium because the parties never agreed that Belgium would be their common home. Rather, the evidence suggested that the mother only intended to reside in Belgium temporarily for her pregnancy in order to avoid the costs of giving birth to Baby S in the United States. It held that a newborn child could not have a habitual residence until the child had resided in a country and established stability in that country. It noted that simply because a child is born in a particular country because its mother gives birth there does not immediately create a country of habitual residence for the child.

Wife Not Entitled to Credit for Capital Improvements on Marital Residence

Where a divorce judgment is silent regarding who is responsible for carrying charges on the marital residence, a wife is not entitled to credit for capital improvements or for payments toward the mortgage principal upon the sale of the marital residence 14 years after the entry of the divorce judgment. Amaris v. Amaris, 2002-07746, N.Y. Sup. Ct. App. Div., 2d Dept., May 27, 2003.

Mary Ann and Miguel Amaris were divorced in 1988. The divorce judgment provided, inter alia, that the wife was entitled to reside in the marital residence until the parties' youngest child graduated from high school, at which time the parties would sell the residence and equally divide the net proceeds. The agreement was silent regarding who was responsible for payment of the carrying charges on the residence. The youngest child graduated from high school in 1993, but the wife continued to reside in the marital residence. In 2002, the husband moved to compel the sale of the residence and divide the net proceeds as provided in the divorce judgment. In her opposition papers, the wife requested credits for certain expenses, including capital improvements, payments toward the mortgage principal, and for child support arrears. The lower court granted the husband's motion in its entirety and denied the wife's request for credits. The appellate court partly reversed the lower court and remanded for further proceedings. It held that although the wife was not entitled to a credit for capital improvements or for payment toward the mortgage principal, she was entitled to a hearing on the issue of whether the husband was in arrears of child support.

Disgorgement of Attorneys' Fees Not Allowed under IL Parentage Act

Unlike the Illinois Marriage Act, the Illinois Parentage Act does not authorize a judge to order an attorney to disgorge an interim attorney fee award. Stella v. Garcia. Bedrava, Contemnor-Appellant, No. 1-02-0440, Ill. App. Ct., 1st Dist., 3d Div., May 28, 2003.

Patrick Stella commenced an action under the Illinois Parentage Act seeking to establish parental rights with his alleged child. Bedrava was his attorney in the matter. The mother was not represented by an attorney initially, but then hired Sue Roberts-Kurpis. Roberts-Kurpis filed a petition seeking interim attorneys' fees to be paid for by the father under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act). Bedrava objected to the motion. The trial court ordered Bedrava to “disgorge” the sum of $20,000 to Roberts-Kurpis, which was statutorily permissible under the Marriage Act. Bedrava filed a motion to reconsider, arguing that the disgorgement provision in the Marriage Act did not apply to an action commenced under the Parentage Act. The court denied the motion to reconsider, but Bedrava was granted a stay that would permit him to appeal the interim fee award and the disgorgement order. The appellate court reversed the holding of the lower court in part. It held that although interim fee awards were permissible under the Parentage Act, the disgorgement of fees was not. In its de novo review, it held that not every section of the Parentage Act conferred on the court all the powers given to the court by the Marriage Act. It considered that the legislature had adopted certain sections of the Parentage Act in the Marriage Act, but not others. In particular, it noted that the Parentage Act did not incorporate all of the procedures or broad powers provided in the Marriage Act. It concluded that only the standards specifically adopted by the Parentage Act from the Marriage Act could be applied in parentage cases. Upon a review of the Parentage Act, the appellate court concluded that there was no legislative intent to provide a trial judge with power to disgorge interim fees in a Parentage Act matter.

A 2-month-old infant's habitual residence in the country in which it was born cannot be established merely because the mother gave birth in that country and only intended to reside there temporarily. Delvoye v. Lee, No. 02-3943, U.S. Ct. of App. 3rd Cir., May 20, 2003.

Christina Lee is a United States citizen and Wim Delvoye is a citizen of Belgium. After Lee became pregnant with Delvoye's child, she began her prenatal medical care in the United States, but subsequently agreed to Delvoye's request to complete her pregnancy care and give birth in Belgium. Delvoye refused to pay for the birth in the U.S., because the health care in Belgium was free. Lee arrived in Belgium with a 3-month tourist visa that she did not renew. After the birth of the parties' child ('Baby S'), the two terminated their relationship, and the father eventually agreed that the mother could return to the United States with Baby S. After Lee's return to the United States with Baby S, Delvoye visited them in the United States, and the parties attempted to reconcile. When reconciliation failed, Delvoye filed a petition in the United States District Court seeking the return of Baby S to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction. The district court denied the petition after a hearing and a final order of disposition. Delvoye appealed to the United States Circuit Court and the circuit court affirmed. It held that in order to find a child had been abducted under the Hague Convention, the removal is required to be in breach of the rights of custody of a person under the laws of the state where the child is a habitual resident immediately prior to the removal. The circuit court held that the child did not have a habitual residence in Belgium because the parties never agreed that Belgium would be their common home. Rather, the evidence suggested that the mother only intended to reside in Belgium temporarily for her pregnancy in order to avoid the costs of giving birth to Baby S in the United States. It held that a newborn child could not have a habitual residence until the child had resided in a country and established stability in that country. It noted that simply because a child is born in a particular country because its mother gives birth there does not immediately create a country of habitual residence for the child.

Where a divorce judgment is silent regarding who is responsible for carrying charges on the marital residence, a wife is not entitled to credit for capital improvements or for payments toward the mortgage principal upon the sale of the marital residence 14 years after the entry of the divorce judgment. Amaris v. Amaris, 2002-07746, N.Y. Sup. Ct. App. Div., 2d Dept., May 27, 2003.

Mary Ann and Miguel Amaris were divorced in 1988. The divorce judgment provided, inter alia, that the wife was entitled to reside in the marital residence until the parties' youngest child graduated from high school, at which time the parties would sell the residence and equally divide the net proceeds. The agreement was silent regarding who was responsible for payment of the carrying charges on the residence. The youngest child graduated from high school in 1993, but the wife continued to reside in the marital residence. In 2002, the husband moved to compel the sale of the residence and divide the net proceeds as provided in the divorce judgment. In her opposition papers, the wife requested credits for certain expenses, including capital improvements, payments toward the mortgage principal, and for child support arrears. The lower court granted the husband's motion in its entirety and denied the wife's request for credits. The appellate court partly reversed the lower court and remanded for further proceedings. It held that although the wife was not entitled to a credit for capital improvements or for payment toward the mortgage principal, she was entitled to a hearing on the issue of whether the husband was in arrears of child support.

Unlike the Illinois Marriage Act, the Illinois Parentage Act does not authorize a judge to order an attorney to disgorge an interim attorney fee award. Stella v. Garcia. No. 1-02-0440, Ill. App. Ct., 1st Dist., 3d Div., May 28, 2003.

Patrick Stella commenced an action under the Illinois Parentage Act seeking to establish parental rights with his alleged child. Bedrava was his attorney in the matter. The mother was not represented by an attorney initially, but then hired Sue Roberts-Kurpis. Roberts-Kurpis filed a petition seeking interim attorneys' fees to be paid for by the father under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act). Bedrava objected to the motion. The trial court ordered Bedrava to 'disgorge' the sum of $20,000 to Roberts-Kurpis, which was statutorily permissible under the Marriage Act. Bedrava filed a motion to reconsider, arguing that the disgorgement provision in the Marriage Act did not apply to an action commenced under the Parentage Act. The court denied the motion to reconsider, but Bedrava was granted a stay that would permit him to appeal the interim fee award and the disgorgement order. The appellate court reversed the holding of the lower court in part. It held that although interim fee awards were permissible under the Parentage Act, the disgorgement of fees was not. In its de novo review, it held that not every section of the Parentage Act conferred on the court all the powers given to the court by the Marriage Act. It considered that the legislature had adopted certain sections of the Parentage Act in the Marriage Act, but not others. In particular, it noted that the Parentage Act did not incorporate all of the procedures or broad powers provided in the Marriage Act. It concluded that only the standards specifically adopted by the Parentage Act from the Marriage Act could be applied in parentage cases. Upon a review of the Parentage Act, the appellate court concluded that there was no legislative intent to provide a trial judge with power to disgorge interim fees in a Parentage Act matter.