Archive for the ‘Family Law’ Category

Partitioning Co-Habiting Couple’s Real Estate

Thursday, April 30th, 2009

Vern and Nancy lived half the year in California and half in Montana. They were not married. Vern inherited a home from his dad in Glasgow that served as their Montana residence. Vern purchased two additional properties in Glasgow: an additional home they fixed up for a rental with a loan secured by his inherited home and another run-down property for cash. He placed both of these two additional acquired properties in his and Nancy’s name jointly.

Vern and Nancy ended their relationship after 8 years. Vern sued for partition of the two jointly titled properties. The trial court awarded the rental to him and ordered him to pay Nancy $5,400 for her contribution to the property. Based upon emails between the parties post-separation as well as testimony, the trial court found Vern intended the run-down property as a gift to Nancy. The court ordered Vern to deed the property to her or pay her $5,300 for the property.

Vern appealed the portion of the decision awarding Nancy the run-down property. He argued that he had not intended to simply give Nancy the property — and in any event, legal title was in their names jointly and there was no evidence of delivery.

The Montana Supreme Court affirmed the decision, emphasizing that partition actions are actions in equity. In a partition action, the court starts with the presumption that jointly titled property is owned in equal shares. That presumption is rebuttable, however. Evidence of unequal contribution to the property is sufficient to lead to another presumption: that the parties own shares based upon their relative contribution. That presumption is rebuttable too: by evidence that one party intended a gift to the other. According to the Supreme Court evidence of intent to gift casts a wide net: “The party may establish proof of a gift by parol evidence, such as conduct over the course of time, the relationship between the two parties, the sharing of expenses, labor, or any other admissible means.” One might wonder what evidence could not be offered as proof of a gift.

The case is Anderson v. Woodward 2009 MT 144

Posted in ASSET AND DEBT DIVISION, Family Law | 1 Comment »

Birth Dates Published By the Court

Friday, April 10th, 2009

The Montana Supreme Court published In Re Marriage of Chapman and Panagakis, 2009 MT 119N, on April 9, 2009. The decision itself contains the full dates of birth of both children. Section 4.50 (c)(4) of the Rules for Privacy and Public Access to Court Records in Montana states that full birth dates of any person are not to be shown in any public court record. Technically, this inclusion of private information in a court decision does not violate the Privacy Rules, as Section 4.50 (d) places sole responsibility for keeping such information out of court records on the litigant: “It is the responsibility of the filing party to comply with these rules to protect private information.”

This case illustrates the difficulty in sanitizing public court records of information that could lead to identity theft or worse. It is exceedingly easy for these kinds of details to be overlooked. Once published on the internet, however, all court control of this information is lost. These birth dates will be available forever.

Posted in CHILDREN, Family Law | No Comments »

Using Initials for Parents’ Names

Monday, March 23rd, 2009

In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (“Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”

Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.

Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.

Posted in Appellate Practice, Family Law, Parenting Plan Evaluations, Uncategorized | No Comments »

Findings Needed For Appellate Review

Thursday, February 19th, 2009

Trial court must include findings and conclusions in its order. Reversed for failure of District Court to do so in a parenting plan modification case. Here the Judge ordered both permanent change to the parenting plan plus ordered future counseling with the reservation to the judge to make further modifications to the order, which it did. Reversed and remanded for findings. Marriage of Banka. 2009 MT 33.

Posted in Family Law, Uncategorized | No Comments »

Adoption: termination of father’s parental rights denied. 2009 MT 22

Thursday, February 19th, 2009

District Court refused to terminate father’s rights and allow the guardians, the maternal grandparents, to adopt. The court can terminate if under Section 42-2-610 MCA, the putative father failed to establish and maintain relationship, or under Section 42-2-608 MCA, father is unfit. Here the father was in Iraq for a time, then came back and sought contact with the child and provided some support. That was enough to cause the trial court not to terminate his rights. Affirmed by the Supreme Court.

Adoption of R.A.J. 2009 MT 22.

Posted in Family Law, Uncategorized | No Comments »

Sealing of parenting plan investigative reports

Wednesday, February 20th, 2008

The reports of parenting plan investigators appointed under Section 40-4-215 (4) M.C.A. must be filed as part of the court record but “… may, without objection, be sealed.” The investigator must make not only the report generated, but the underlying documents, testing results, names of everyone the investigator spoke with — upon which the report is based. The investigator has broad powers: to obtain medical records of a child (less than 16 years of age) without obtaining the parents’ or the child’s consent. This is clearly a discretionary judicial act, but no standard for ruling is expressed.

With the new Access Rules, best practice is to routinely move to seal such reports and underlying documents.

Posted in Family Law, Medical Records, Parenting Plan Evaluations | No Comments »

Motion to seal parenting plan interviews, reports, investigations, testimony

Wednesday, February 20th, 2008

Section 40-4-216 (4) M.C.A. allows a court to seal interviews, reports, investigations and hearing testimony if it finds that keeping the information secret is necessary to protect the child’s welfare. Ironically, the new Access Rules may make it far easier to seal such records — when the only alternative is internet publication.

Section 40-4-216 (3) allows the public to be barred from a parenting plan hearing if barring the public is in the best interests of the child.

Posted in Family Law, Parenting Plan Evaluations | No Comments »