Litigation

Supervised Visitation

Despite financial difficulties, a mother's failure to fulfill the requirements of a “parenting plan” prevented her from filing a modification petition. Nelson v. Nelson, No. 30302-7-II, Court of Appeals of Washington, Division Two, March 9, 2004.

After an extensive parental investigation, the father was awarded custody of the subject child and the mother's visitation with the child was restricted to 4 hours a week of supervised visitation. The investigator concluded that the mother had physically, emotionally and sexually abused the child and had withheld the child from the father without good cause. The court further ordered that after the mother demonstrated that she received appropriate mental health counseling and fulfilled other “parenting plan” requirements, she would be entitled to bring a modification action. Thereafter, the mother brought a modification action, arguing that she had made progress with her therapy and that because of her financial situation she could not afford a professional supervisor during visitation or to comply with other provisions of the “parenting plan.” The trial court awarded the mother unsupervised visitation in consideration of her progress and her inability to afford the professionals needed to complete the obligations of the “parenting plan.” The appellate court reversed. It held that there was no evidence that the mother had fully complied with the original “parenting plan” requirements that would have entitled her to bring a modification action. Although the appellate court noted that it may have been difficult for the mother to comply with certain provisions of the plan because of the cost, that difficulty was not sufficient to warrant the trial court's modification of the visitation schedule.

Attorneys' Fees

Attorneys' fees will not be awarded in a matrimonial action where a party fails to seek the fees in any pleading or motion and does not make the request until after final judgment is entered. Mook v. Mook, Case Nos. 2D02-4718, 2D03-1092, Court of Appeal of Florida, Second District, March 26, 2004.

The husband filed a petition for a divorce in December 2002 and did not seek attorneys' fees or costs. The wife filed a counter-petition that sought, inter alia, attorneys' fees and costs. The husband then filed an amended petition that again did not seek attorneys' fees or costs. As the litigation continued, the husband never moved to amend his pleadings to seek attorneys' fees or costs. After the trial and final judgment was entered, the court reserved its jurisdiction to award attorneys' fees. At this time, the husband served a motion seeking attorneys' fees and costs. The trial court awarded each side attorneys' fees that resulted in a net judgment to the husband of $4922. The wife appealed, and the appellate court reversed. It held that the husband was not entitled to attorneys' fees because a claim for fees must be pled. Pleading attorneys' fees is fundamental to provide notice to the other side, and failure to plead constitutes a waiver. It further held that the husband's request for attorneys' fees after the final judgment was entered was untimely.

Sale of Marital Residence Not Compelled

Where the parties' settlement agreement does not specifically require the sale of the marital residence as a condition precedent to receipt of retirement benefits, a penalty cannot be invoked against a spouse for failure to sell the residence. Herr v. Herr, Index No. 3084/94, Supreme Court of New York, Appellate Division, Second Department, March 15, 2004.

The parties entered into a settlement agreement that was incorporated, but not merged, into a judgment of divorce. The husband agreed to pay a percentage of his retirement benefits to the wife. The agreement further provided that the wife would transfer 20% of the net profits from the sale of the marital residence and that if she failed to do so, would waive her interest in the husband's retirement benefits. There were no conditions attached to the sale of the residence. Thereafter, the wife refused to sell the residence and the husband moved for contempt, to vacate a Qualified Domestic Relations Order (QDRO) filed in connection with the wife's receipt of the husband's retirement benefits, for attorneys' fees and for repayment of sums already paid to the wife under the QDRO. The lower court entered an order in favor of the husband, and the wife appealed. The appellate court reversed. It held that the parties' settlement agreement did not contain language that compelled the wife to sell the marital residence on a date certain or at any time. Therefore, the wife did not disobey any court order and it was improper of the lower court to invoke penalties against the wife.

Jurisdiction

Where one spouse relocates outside of the United States with the children of the parties, that spouse may be subject to the domestic relations long-arm statute of the state of their last residence in the United States because there are rights and obligations stemming from a matrimonial domicile. Cooke v. Cooke, S04F0347, Supreme Court of Georgia, March 29, 2004.

The husband is a citizen of Ireland and the wife is a citizen of Great Britain. The parties were married in 1991 in Great Britain and relocated to Ohio soon after the marriage. In 1992, the parties relocated to Georgia and purchased a home in Fulton County. In 1997, the parties and their children obtained permanent resident status in the United States. The parties also continued to maintain a residence in Great Britain during the marriage. In 1999, the wife and the parties' children relocated back to Great Britain. The children were enrolled in British schools but continued to visit Georgia on school vacations and in the summer. The husband traveled to Great Britain to visit the family. In March, 2003, the husband filed a complaint for a divorce in Georgia that was dismissed for, inter alia, lack of long-arm jurisdiction over the wife. The husband appealed and the appellate court reversed. It held that the wife was subject to the Georgia domestic relations long-arm statute because Georgia was her last residence in the United States. It held that the wife purposefully availed herself of the privilege of maintaining a matrimonial domicile in Georgia, and, as a result, obtained rights and obligations stemming from her residence. The court further held that the wife was only subject to the laws of Georgia with regard to claims for divorce, alimony, child support and property division.

Supervised Visitation

Despite financial difficulties, a mother's failure to fulfill the requirements of a “parenting plan” prevented her from filing a modification petition. Nelson v. Nelson, No. 30302-7-II, Court of Appeals of Washington, Division Two, March 9, 2004.

After an extensive parental investigation, the father was awarded custody of the subject child and the mother's visitation with the child was restricted to 4 hours a week of supervised visitation. The investigator concluded that the mother had physically, emotionally and sexually abused the child and had withheld the child from the father without good cause. The court further ordered that after the mother demonstrated that she received appropriate mental health counseling and fulfilled other “parenting plan” requirements, she would be entitled to bring a modification action. Thereafter, the mother brought a modification action, arguing that she had made progress with her therapy and that because of her financial situation she could not afford a professional supervisor during visitation or to comply with other provisions of the “parenting plan.” The trial court awarded the mother unsupervised visitation in consideration of her progress and her inability to afford the professionals needed to complete the obligations of the “parenting plan.” The appellate court reversed. It held that there was no evidence that the mother had fully complied with the original “parenting plan” requirements that would have entitled her to bring a modification action. Although the appellate court noted that it may have been difficult for the mother to comply with certain provisions of the plan because of the cost, that difficulty was not sufficient to warrant the trial court's modification of the visitation schedule.

Attorneys' Fees

Attorneys' fees will not be awarded in a matrimonial action where a party fails to seek the fees in any pleading or motion and does not make the request until after final judgment is entered. Mook v. Mook, Case Nos. 2D02-4718, 2D03-1092, Court of Appeal of Florida, Second District, March 26, 2004.

The husband filed a petition for a divorce in December 2002 and did not seek attorneys' fees or costs. The wife filed a counter-petition that sought, inter alia, attorneys' fees and costs. The husband then filed an amended petition that again did not seek attorneys' fees or costs. As the litigation continued, the husband never moved to amend his pleadings to seek attorneys' fees or costs. After the trial and final judgment was entered, the court reserved its jurisdiction to award attorneys' fees. At this time, the husband served a motion seeking attorneys' fees and costs. The trial court awarded each side attorneys' fees that resulted in a net judgment to the husband of $4922. The wife appealed, and the appellate court reversed. It held that the husband was not entitled to attorneys' fees because a claim for fees must be pled. Pleading attorneys' fees is fundamental to provide notice to the other side, and failure to plead constitutes a waiver. It further held that the husband's request for attorneys' fees after the final judgment was entered was untimely.

Sale of Marital Residence Not Compelled

Where the parties' settlement agreement does not specifically require the sale of the marital residence as a condition precedent to receipt of retirement benefits, a penalty cannot be invoked against a spouse for failure to sell the residence. Herr v. Herr, Index No. 3084/94, Supreme Court of New York, Appellate Division, Second Department, March 15, 2004.

The parties entered into a settlement agreement that was incorporated, but not merged, into a judgment of divorce. The husband agreed to pay a percentage of his retirement benefits to the wife. The agreement further provided that the wife would transfer 20% of the net profits from the sale of the marital residence and that if she failed to do so, would waive her interest in the husband's retirement benefits. There were no conditions attached to the sale of the residence. Thereafter, the wife refused to sell the residence and the husband moved for contempt, to vacate a Qualified Domestic Relations Order (QDRO) filed in connection with the wife's receipt of the husband's retirement benefits, for attorneys' fees and for repayment of sums already paid to the wife under the QDRO. The lower court entered an order in favor of the husband, and the wife appealed. The appellate court reversed. It held that the parties' settlement agreement did not contain language that compelled the wife to sell the marital residence on a date certain or at any time. Therefore, the wife did not disobey any court order and it was improper of the lower court to invoke penalties against the wife.

Jurisdiction

Where one spouse relocates outside of the United States with the children of the parties, that spouse may be subject to the domestic relations long-arm statute of the state of their last residence in the United States because there are rights and obligations stemming from a matrimonial domicile. Cooke v. Cooke, S04F0347, Supreme Court of Georgia, March 29, 2004.

The husband is a citizen of Ireland and the wife is a citizen of Great Britain. The parties were married in 1991 in Great Britain and relocated to Ohio soon after the marriage. In 1992, the parties relocated to Georgia and purchased a home in Fulton County. In 1997, the parties and their children obtained permanent resident status in the United States. The parties also continued to maintain a residence in Great Britain during the marriage. In 1999, the wife and the parties' children relocated back to Great Britain. The children were enrolled in British schools but continued to visit Georgia on school vacations and in the summer. The husband traveled to Great Britain to visit the family. In March, 2003, the husband filed a complaint for a divorce in Georgia that was dismissed for, inter alia, lack of long-arm jurisdiction over the wife. The husband appealed and the appellate court reversed. It held that the wife was subject to the Georgia domestic relations long-arm statute because Georgia was her last residence in the United States. It held that the wife purposefully availed herself of the privilege of maintaining a matrimonial domicile in Georgia, and, as a result, obtained rights and obligations stemming from her residence. The court further held that the wife was only subject to the laws of Georgia with regard to claims for divorce, alimony, child support and property division.