不審 FAMILY LAW MATTERS

Partitioning Co-Habiting Couple’s Real Estate

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 Removed

April 22nd, 2009

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.

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Mount Hague

April 15th, 2009

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Summary Dismissal of Motion to Modify Parenting Plan Reversed

April 13th, 2009

Parents divorced in in Colorado 1999 with 2 children ages 1 and 3. They agreed to week on/week off parenting plan. Dad moves to California and back twice. Mom moves to Pony, Montana in 2005 and 2 months later, dad moves to McAllister, Montana and resumes the original Colorado parenting schedule. (Google places the two communities, near Ennis Lake, 26 miles apart). In 2007, mom registers the Colorado decree in Montana, then moves to modify the parenting plan. The District Court dismissed her case without hearing.

Reversed. The Montana Supreme Court cited allegations by mom that: 1) current age of the children (11 and 13) and changed needs; 2) children having difficulty at school arising from inconsistent rules and schedules in the 2 households; 3) children having expressed strong desire to change the plan.

The Court found these allegations, if true, “… could warrant modification of the parenting plan pursuant to §40-4-219, MCA.” §40-4-220 MCA requires a trial court to deny a motion to modify a parenting plan “… unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interest of the child ….” Neither the Appellant nor the Supreme Court opinion cited this statute, however.

In Re Marriage of Chapman and Panagakis, 2009 MT 119N.

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Birth Dates Published By the Court

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.

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

April 9th, 2009

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.

Posted in Appellate Practice, Uncategorized | No Comments »

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

April 8th, 2009

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.

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Comments on Montana Appellate Rule Changes

April 7th, 2009

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

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Mystic Lake

March 27th, 2009

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Child Support for Disabled Adult Children

March 26th, 2009

In Re Marriage of Clapsaddle, 2009 MT 91N decided March 24, 2009, concerns the limits of withholding. These two pro se parents had 2 children, one of whom was a disabled adult. The trial court granted mom’s motion to withhold child support from dad’s income. Dad had past due support. The trial court imposed a child support withholding order. The amount withheld was limited by the court relying upon 40-5-309(3). Mom argued they should have applied 40-5-416 to establish limits on withholding. The Supreme court affirmed the trial court’s reliance on 40-5-309 saying that was a statute for courts and 40-5-416 was limited to actions before the Montana Child Support Enforcement Division (CSED).

The more interesting thing about the case, however, was that the child support for 2 children included support for a child who was an adult but disabled. Neither parent raised child support for an adult as an issue.

The term “”child”" is not defined in our basic child support statute, 40-4-204 MCA. However, the term is defined in 40-5-201 (2) which reads:

(2) (a) “”Child”" means:
(i) a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii) a person under 19 years of age and still in high school;
(iii) a person who is mentally or physically incapacitated if the incapacity began prior to the person’s 18th birthday; or
(iv) in a IV-D case, a person for whom:
(A) support rights are assigned under 53-2-613;
(B) a public assistance payment has been made;
(C) the department is providing support enforcement services under 40-5-203; or
(D) the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act.
(b) The term may not be construed to limit the ability of the department to enforce a support order according to its terms when the order provides for support to extend beyond the child’s 18th birthday. ”

Typically we think of the term of child support being limited to the 19th birthday of a child if they are still enrolled in high school, relying on the support modification provisions of 40-4-208(5). But you might consider longer term child support if you encounter a case involving a disabled child.

Posted in CHILD SUPPORT AND MAINTENANCE, Uncategorized | 1 Comment »