109 T he mother ’s homeschool- ing of the minor child was a factor that should have been considered in setting her spousal support, according to a Louisiana appellate court decision. In Rhymes v. Rhymes , 125 So3d 377 (La App 2013), both parents were mechani- cal engineers. At the time of the birth of their daughter, by mutual consent, the mother stopped working to stay home with the child. Four years later, a second child was born.

Perceiv- ing the public school system in Baton Rouge to be inadequate and the private school sys- tem too expensive, the parties decided the wife would home- school the children. She had instructed the children since they were fi ve years of age. The trial court found she was enti- tled to support in the amount of 0 per month for a period of 12 months and to a payment not to exceed

109the Mother S Homeschool Ing Of The Minor Child Was A Factor Tha

109 T he mother ’s homeschool- ing of the minor child was a factor that should have been considered in setting her spousal support, according to a Louisiana appellate court decision. In Rhymes v. Rhymes , 125 So3d 377 (La App 2013), both parents were mechani- cal engineers. At the time of the birth of their daughter, by mutual consent, the mother stopped working to stay home with the child. Four years later, a second child was born.

Perceiv- ing the public school system in Baton Rouge to be inadequate and the private school sys- tem too expensive, the parties decided the wife would home- school the children. She had instructed the children since they were fi ve years of age. The trial court found she was enti- tled to support in the amount of $500 per month for a period of 12 months and to a payment not to exceed $2,400 for a course of study, which would enable her to update her training as a mechanical engineer. However, this ruling was reversed. As in other jurisdictions, the applicable statute stated that “The court shall consider all relevant factors in determin- ing the amount and duration of fi nal support.†This is followed by a nonexclusive list of spe- cifi c factors.

The father could afford the additional payments requested. Evidence elicited from the court-appointed educational evaluator showed the children were well-educated and thriv- ing in their homeschool environ- ment. Testimony further showed the mother’s obligation to home- school the children had an effect on her earning capacity, as she spent approximately 27.5 hours per week on this activity. EQUALIZING PAYMENT BASED ON FUTURE EARNINGS To place the parties in a long- term marriage (more than 25 years) in “roughly equal†fi nan- cial positions, a court may con- sider the parties’ future earnings, according to a Washington appel- late court decision. Marriage of Wright , 2013 WL (Wash App 12/16/2013), explained that a trial court was not required to place the parties in precisely equal fi nancial positions at the moment of dissolution.

Rather, if the spouses were in a long-term marriage of 25 years or more, the court’s objective was to place the parties in “roughly equal fi nancial positions†for the rest of their lives. To reach this objec- tive, the court could account for each spouse’s anticipated postdissolution earnings in its property distribution by looking forward. The court awarded each party more than $8 million, then applied an equalizing pay- ment and three years of spousal maintenance to the wife, leav- ing an immediate imbalance of $3,369,196 in her favor. But, “looking forward,†as was required in a long-term mar- riage, the court also determined that the husband would earn at least $10 million in 2.5 years after dissolution from his surgery practice.

On this basis, he would ultimately end up with nearly $2.7 million more than the wife in the long run. STUDENT LOAN NOT AUTOMATICALLY ASSIGNED TO STUDENT The trial court could not automatically assign the wife’s $40,000 in debt incurred for her nursing school studies to her, an Ohio appellate court has held. Polacheck v. Polacheck , 2013 WL (Ohio App 12/21/2013), rejected the premise that the wife was the sole benefi ciary of her degree and, as such, she should shoulder the entire marital debt. Instead, the appellate court said that a primary consideration in the allocation of marital student- loan debt entailed the evaluation of the relative economic circum- stances of the parties.

Because repayment will require a stream of future income, the parties’ relative abilities to repay the student-loan debt was an appro- priate equitable factor to con- sider. In addition to the economic circumstances of the parties, the HOMESCHOOLING A SPOUSAL SUPPORT FACTOR FEATURES FAIRSHARE CASES: MISCELLANY 110 AMERICAN JOURNAL OF FAMILY LAW trial court should consider any fact it found to be relevant and equitable. It criticized the trial court pointing out that the rel- evant surrounding circumstances of the parties were not fully developed. SURVEYING BUSINESS TRANSMUTED INTO MARITAL PROPERTY The husband’s premarital land-surveying business was transmuted into marital prop- erty, the South Carolina Supreme Court has held.

Pittman v. Pittman , 2014 WL 130497 (SC 1/15/2014), relied on the wife’s testimony that all business deci- sions were made jointly. The court added that the mere use of the business in support of the marriage was further evidence of transmutation. PREMARITAL BUILDING TRANSFORMED INTO MARITAL ASSET The husband’s premaritally owned building was transformed into a marital asset, a Florida appellate court has ruled. Jordan v.

Jordan , 127 So3d 794 (Fla App 2013), explained that the wife was an instrumental part in coordinat- ing and helping with the “vast improvements†that were done to the building, which included replacing walls, installing new fl ooring, adding columns and a fl ag pole to the front, modify- ing lighting and other electrical work, adding an additional park- ing lot, replacing the roof, and putting in new doors and win- dows. Contrary to the husband’s arguments, these actions went beyond “mere maintenance†but were considered improvements that enhanced the value of the building. LAND VALUED AT ITS PROPERTY TAX ASSESSMENT Valuation of land owned by the parties based on its property tax assessment was affi rmed by the Alaska Supreme Court.

Urban v. Urban , 314 P3d 513 (Alaska 2013), rejected the husband’s argument that value should have been derived from a real estate agent’s valuation, which suggested that the four-parcel property was worth only $35,800. The agent val- ued one parcel and then extrapo- lated the value of all four parcels. The agent testifi ed that local real estate values had dropped dra- matically after the property was purchased for $98,000. The wife submitted a county tax assessment showing a total value of $92,424, which had been discounted by 50 percent from the previous year.

The real estate agent testifi ed that the tax valuation did not adequately DIVORCE QUIZ (1) ANSWER No, according to a recent Indiana appellate court decision. Ryan v. Janovsky, 999 NE2d 895 (Ind App 2013), a matter of fi rst impression in Indiana, reversed the trial judge who had ruled that the wife had waited too long. The dissolution decree provided for an equal division of the husband’s monthly pension benefi ts calculated as of the date of the decree. Although the appellate court agreed with the trial judge that the wife’s delay was “inordinate,†and noted that she offered no explanation for the extremely long period of time before preparing the QDRO, it did not agree that the delay caused the forfeiture of her right to a portion of the pension benefi ts.

The court explained that the wife’s right arose from the settlement agreement; the QDRO only cre- ated her right to be paid directly from the pension plan. Neither of these rights was yet enforceable because the pension benefi ts were not yet payable to anyone. The settlement agreement provided that the wife would begin receiving her portion of the retirement benefi ts when the husband began receiving his. Presumably, these benefi ts would be paid in monthly installments. When an obligation was payable in installments, the statute of limitations ran as to each installment as it became due.

The applicable statute of limitations would therefore not begin to run until the date of the fi rst distribu- tion from the pension plan, at the earliest. The court concluded that, although it may be a good idea to have the paperwork in place well in advance, there was no reason to require a QDRO be entered prior to this date, which had not yet occurred. FEATURES 111 account for the recent decline in the real estate market. According to the appellate court, absent an appraisal, a trial court may rea- sonably choose to rely on a tax valuation over a real estate bro- ker’s estimate. The trial court made a reasonable decision that the tax valuation was more reli- able than the real estate agent’s opinion.

HUSBAND’S CRIMINAL CONDUCT WAS FINANCIAL MISCONDUCT The husband’s criminal con- duct was deemed fi nancial mis- conduct, by the Supreme Judicial Court of Maine , which was a relevant factor in the parties’ property distribution. In Lesko v. Stanislaw , 2014 WL 117351 (Me 1/14/2014), the husband was arrested, indicted, and convicted of multiple counts of sexual abuse of girls who had been his piano students. The state high court found that the trial court methodically evaluated the way the husband’s criminal con- duct, convictions, and incarcera- tion had and would continue to fi nancially affect the house- hold. Specifi cally, it found that his criminal conduct resulted in the expenditure, from the mari- tal estate, of “tens of thousands of dollars in legal fees;†his con- duct, particularly his victimiza- tion of some of the patients from her medical practice, caused her to lose income through the loss of patients; his “lengthy†incar- ceration, which would likely extend into their son’s adult- hood, would cause her to suffer the loss of a fi nancially contrib- uting coparent; his incarceration would adversely affect his cur- rent and future earning poten- tial; and the specifi c nature of his criminal conduct would pre- clude him from doing many of the jobs for which he was quali- fi ed.

Importantly, the trial court did not consider the evidence of the husband’s criminal con- duct for purposes of discern- ing moral fault and expressly excluded the introduction of sentencing transcripts, witness statements, and other materials bearing on the specifi c offenses for which he was convicted, stat- ing that this evidence “would be at best cumulative and at worst infl ammatory.†NO RELOCATION PRESUMPTION IN JOINT CUSTODY CASE The presumption favor- ing relocation only applied in cases in which a parent had been granted sole or primary custody of a child, the Arkansas Supreme Court has decided. In Singletary v. Singletary , 2013 WL (Ark 12/12/2013), the parents had joint custody. The appellate court affi rmed the grant of sole custody to the father due to the mother’s relocation as a result of her new husband’s job transfer.

Because the trial court correctly found that the parties had a “true joint-custody relationship,†the presumption favoring relocation did not apply. AFFAIRS WITH TWO MEN FAVORED FATHER’S CUSTODY Awarding custody of the divorcing parties’ two children to the father was supported by the mother’s affairs with two men, according to a Mississippi appel- late court ruling. In Borden v. Borden , 130 So3d 1168 (Miss App 2014), the mother argued (unsuccessfully) that she was being unfairly punished for her extramarital affairs. However, the lower court found that the fol- lowing factors favored the father: age, health, and sex of the chil- dren; parenting skills, willing- ness and capacity to provide primary child care; moral fi tness of the parents; home, school, and community record of the chil- dren; and stability of the home environment.

It found that only the continuity-of-care factor favored the mother. STALKING PROTECTION WITHOUT CRIMINAL CONVICTION A divorcing wife was entitled to a protection order to prevent stalking by the husband without fi rst having to obtain a criminal conviction of stalking, the South Dakota Supreme Court has held. Trumm v. Cleaver , 841 NW2d (SD 2013), explained that “domestic abuse,†which was a necessary fi nding for a protection order, could be proven without requir- ing a criminal conviction. HALF ADVANCE PAYMENT RETAINER TURNED OVER TO OTHER SPOUSE The husband’s attorney was ordered to turn over to the wife half of his advance pay- ment retainer to level the play- ing fi eld between the parties, according to a recent Illinois Supreme Court decision.

Marriage of Earlywine , 996 NE2d 642 (Ill 2013), rejected the argu- ment by the husband’s attorney that the fees were not subject to disgorgement because they were held in an advance pay- ment retainer and became his 112 AMERICAN JOURNAL OF FAMILY LAW DIVORCE QUIZ (2) ANSWER No, according to a recent Supreme Court of North Dakota decision. Bredson v. Mackey, 2014 WL 563796 (ND 2/13/2014), fi rst noted that visitation was only awarded to a nonparent if exceptional circumstances existed and it was in the best interest of the child. An appro- priate award of visitation to a nonparent may exist when the nonparent was a psychological parent or when the nonparent had an established relationship with the child.

A psychological parent was, “A person who provides for a child’s daily care and who, thereby, develops a close bond and per- sonal relationship with the child … to whom the child turns for love, guidance, and security.†A North Dakota statute provided that grandparents and great-grandparents may be granted visitation rights in the best interest of the child; stepparent visitation may also be ordered. In this case, the court found that the facts did not meet the applicable standard. The father’s new wife had spent only one day per month over the previous 14 months with the child. The court added that the father’s wish to have his new spouse facilitate his visitation did not create exceptional circumstances to justify nonparental visitation. property upon payment.

The court explained that in contrast to a general retainer or a secu- rity retainer, an advance pay- ment retainer consisted of a present payment to the lawyer in exchange for the commitment to provide legal services in the future. Ownership of an advance payment retainer passed to the lawyer immediately upon pay- ment. Accordingly, the funds had to be deposited in the law- yer ’s general account and could not be placed in a client’s trust account due to the prohibition against commingling funds. However, when, as in this case, both parties lacked the fi nan- cial ability or access to assets or income to pay reasonable attor- ney fees and costs, the court could order disgorgement of fees already paid to an attor- ney. It added that it was clear from the attorney–client agree- ment that the advance payment retainer in this case was set up specifi cally to circumvent the “leveling of the playing fi eld.†content may not be copied or emailed to multiple sites or posted to a listserv without the articles for individual use.

,400 for a course of study, which would enable her to update her training as a mechanical engineer. However, this ruling was reversed. As in other jurisdictions, the applicable statute stated that “The court shall consider all relevant factors in determin- ing the amount and duration of fi nal support.†This is followed by a nonexclusive list of spe- cifi c factors.

The father could afford the additional payments requested. Evidence elicited from the court-appointed educational evaluator showed the children were well-educated and thriv- ing in their homeschool environ- ment. Testimony further showed the mother’s obligation to home- school the children had an effect on her earning capacity, as she spent approximately 27.5 hours per week on this activity. EQUALIZING PAYMENT BASED ON FUTURE EARNINGS To place the parties in a long- term marriage (more than 25 years) in “roughly equal†fi nan- cial positions, a court may con- sider the parties’ future earnings, according to a Washington appel- late court decision. Marriage of Wright , 2013 WL (Wash App 12/16/2013), explained that a trial court was not required to place the parties in precisely equal fi nancial positions at the moment of dissolution.

Rather, if the spouses were in a long-term marriage of 25 years or more, the court’s objective was to place the parties in “roughly equal fi nancial positions†for the rest of their lives. To reach this objec- tive, the court could account for each spouse’s anticipated postdissolution earnings in its property distribution by looking forward. The court awarded each party more than million, then applied an equalizing pay- ment and three years of spousal maintenance to the wife, leav- ing an immediate imbalance of