不審 FAMILY LAW MATTERS » Uncategorized

A Tale of Two Dads: One Presumed, One Biological

Administrator — Fri, 14 Oct 2011 16:54:57 +0000

Mom was involved with two men. She became pregnant. She married one of them. The other was the actual biological father, although at the time of the marriage she was not sure of that. Mom and Husband separate after four years and a divorce action was filed. Father files motion to intervene and has a blood test that establishes the fact of his paternity. Mom and Husband reconcile and oppose Father’s request for visitation. The Court makes a specific finding that Father is the father, but determined that it was not in the best interests of the child for the court to establish a parental relationship.

The Father then filed a Rule 59 motion. The trial court granted the motion and reversed itself. The Supreme Court reversed the reversal on the grounds that once the trial court rules, it cannot simply change its mind without meeting the specific (and rather narrrow) grounds in Rule 59.

The trial court purported to rely upon Paternity of Adam, 273 Mont. 351 903 P2d. 207 (1995). Like Adam, the trial court refused to declare that Father had a father/child relationship. Unlike Adam, it actually made a specific finding that Father was father. It is instructive to read the relevant paragraph in Adam:

“Through the mother’s stipulation that Bob was Adam’s father, the statutory presumptions in favor of John as the biological father were rebutted. However, as pointed out by the United States Supreme Court in Lehr, that biological determination merely sets the stage for the next question: Is it in the best interest of Adam to judicially declare the father/child relationship and thereby grant Bob the prerogatives of a parent?” See Adam at page 357. In Adam, the prospect of the continued involvement of a third party intruding in this ongoing and reconciled family was determinative. And so it was in this case.

Marriage of Johnson and Johnson, and Walak, Intervenor. 2011 MT 255.

Beargrass in bloom

Administrator — Sat, 20 Jun 2009 20:05:30 +0000

Jammin’ … hand-jammin’ that is.

Administrator — Sat, 20 Jun 2009 20:01:57 +0000

Hand Jam

Getting away from it all … for a few days

Administrator — Sat, 20 Jun 2009 19:56:28 +0000

Climbing a crack up Lolo way.

Value Rise Brings Maintenance Demise

Administrator — Mon, 01 Jun 2009 14:22:58 +0000

Donald and Irene divorced in 2004 after 43 years of marriage. He was 70 and she was 69 at the time. The trial court then divided their assets including his pension approximately equally — according to the valuation testimony at trial. Donald had some part time jobs and had more social security than Irene. The trial court awarded Irene lifetime maintenance of $1,000 a month from Donald. Donald appealed the maintenance award as well as the trial court’s inclusion of all of premarital and inherited assets of both parties in the marital estate. The Supreme Court affirmed the original decision in In Re Marriage of Crilly 2005 MT 311.

Five months after the Supreme Court had affirmed the trial court’s initial decision, Donald filed a motion to end maintenance. The trial court ultimately granted the motion and this time, Irene appealed. Irene had been awarded 3 lots as part of her division of the marital net worth. At the time of trial, those lots were valued at $225,960. She subsequently sold the lots for $556,000 — approximately $330,000 more than the value at trial. Donald’s income, through no fault of his own, had decreased $1,000 a month. And the sale of the property converted the lots to income-producing property.

The Supreme Court affirmed. Clearly, the division of property in retrospect was not equal by a long shot and there was ample reason, the Court held, to find that continuing to require Donald to pay Irene maintenance was unconscionable.

The decision is In Re Marriage of Crilly, 2009 MT 187.

Jointly Titled Premarital Home Distributed to Husband in 5 Month Marriage

Administrator — Thu, 07 May 2009 15:58:08 +0000

Does title control distribution of assets in a divorce? Nope.

Seven months before this couple married, they purchased a home. They bought the home with the husband’s money. They titled the home jointly. They marry. They separate 7 months later. Husband makes all the mortgage payments on the home before and after separation.

The trial court awards the home to husband. Wife appeals claiming the trial court had no jurisdiction to award the home to husband because title was joint and the home was purchased before marriage. Section 40-4-201(1) MCA grants trial courts the power to equitably distribute property “…however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.”

The Supreme Court affirmed, holding that title — in and of itself — does not control the distribution of property in a divorce.

Marriage of Markegard, 2009 MT 152N

Birth Dates Removed

Administrator — Wed, 22 Apr 2009 16:18:44 +0000

The Montana Supreme Court withdrew its opinion in Marriage of Chapman and Panagakis, 2009 MT 119N and reissued the opinion without the birthdates of the two children. Now the opinion reflects only the year of their birth.

4 Attorneys, 3 Custody Evaluations, 3 Hearings = 1 Vexatious Appeal

Administrator — Thu, 09 Apr 2009 22:52:10 +0000

Father and mother adopt a stipulated parenting plan for their 3 year old in 2003. In the spring of 2004 father files a motion for an order of protection against the mother. Denied by the trial court. In the summer of 2004, Father files petition to change the parenting plan. Trial court adopts mother’s proposed amended plan, not father’s. In early 2007, father files petition to change the amended parenting plan. In June of 2008 the trial court again ruled in mother’s favor, amending the plan and holding father in contempt for his failure to follow the prior parenting plan. During the five years between the 2003 stipulated parenting plan and the latest amended parenting plan in 2008, father had employed serially 4 different attorneys. The parents and their child, at father’s insistence, had gone through 3 full custody evaluations.

Father appeals. The Montana Supreme Court not only affirms the trial court holding, but finds the appeal vexatious and awards mother her attorney fees on appeal. The case is In Re Marriage of Sartorie 2009 MT 117N. It’s a non-cite case.

Consequences of Domestic Violence: 6 year old child — 17 foster placements in one year

Administrator — Wed, 08 Apr 2009 16:09:09 +0000

In the Matter of B.S. and G.S. 2009 MT 113, there were numerous incidents of domestic violence witnessed by the 6 year old boy and 3 year old daughter. The parental rights of both the mother and the father were terminated. The mother appealed. Among other things, the mother argued that there was insufficient proof that the children had been abused or neglected because the children had never gone through a psychological examination. See Paragraph 24. The effect of the children’s observations of parental violence, was obvious: “Six-year-old G.S. had been in 17 residential placements during the preceding year, and was possibly headed for “the next level” of inpatient therapeutic treatment due to his extreme levels of violence.” See Paragraph 15.

A tough start in life for these kids. A good decision by the trial court and the Montana Supreme Court.

Comments on Montana Appellate Rule Changes

Administrator — Tue, 07 Apr 2009 15:09:28 +0000

I submitted these proposed additional changes to the Montana Appellate Rules in my letter of March 28, 2009 to the Montana Supreme Court. March 28, 2008 Comments to Proposed Appellate Rule Changes