Washington State Supreme Court Cases – week of 6/30/17

The Sate Supreme Court had four decision this week. The topics ranged from meal breaks, domestic violence orders, forfeiture of property without a conviction, and an appeal of a second degree murder conviction (also domestic violence related).

Jun. 29, 2017 – 93564-5 – Brady v. Autozone Stores, Inc.
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=935645MAJ

When a case is in federal court and there is a state law that is a part of the case that the federal courts feel has not been adequately resolved by the state courts, the federal court will turn to our court to get an answer (“certified questions”).

The first question was whether there could be strict liability for not providing a meal break. The court said no (and noted that neither party supported this position).

The second questions was about who carries the burden to prove that an employer did not permit an employee to take a break. The court held an employee can establish a prima facie case by providing they did not get a timely meal break and then the burden shifts to the employer to rebut.

Jun. 29, 2017 – 93645-5 – Rodriguez v. Zavala
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=936455MAJ

The issue in this case was about whether a parent could petition for a protection order for their child. The Supreme Court found the lower courts read the statute unnecessarily narrowly when it read the statute to preclude a parent from obtaining a protection order for their child. The Supreme Court found that the child should have been included in the protection order.

The Supreme Court also held that exposure to domstic violence is harmful under the Domestic Violence Protection Act. Referencing a prior decision, the court stated, “a child is psychologically harmed or placed in fear by observing violence against a family member.”

“Ample evidence supports the view that direct and indirect exposure to domestic violence is harmful….It strains common sense to think that L.Z. was not somehow exposed to domestic violence given the facts of this case. ”

Based on this, the Supreme Court found that the trial court abused its discretion in failing to grant the protection order.

Conclusion:

Zavala’s violent threats against L.Z. are “domestic violence” under the plain language ofRCW 26.50.010(3), and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him. Accordingly, we reverse the Court of Appeals. We also conclude that exposure to domestic violence constitutes harm under the DVP A and qualifies as domestic violence under chapter 26.50 RCW. Because the trial court failed to consider the harm to L.Z. based on an incorrect reading of .010(3), it abused its discretion.

Jun. 29, 2017 – 93907-1 – City of Sunnyside v. Gonzalez
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=939071MAJ

Police are allowed to take property if it is connected to drug manufacturing or distribution (there is significant critique of this policy in discussion of criminal justice reform).For law nerd, RCW 69.50.505. The court noted the case is highly fact-specific. In discussing the law, “the court stated the statute generally does not contemplate forfeiture where the only violation is mere possession of a controlled substance; the violation usually must involve drug manufacturing or transactions.”

The “seizing law enforcement agency” (the City in this case) bears the burden “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” The court noted that there is a difference between the federal and state statutes.

Furthermore, the briefing from both parties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property is “traced as the proceeds of illegal drug activity.” Pet. for Review at 1 O; see also Answer in Opp ‘n to Pet. for Review at 6. While this assumption may be appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is inconsistent with the plain language of Washington’s statute, which allows forfeiture of personal property that was “acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter,” RCW 69.50.505(1)(g) (emphasis added).

 

CONCLUSION
Even where the question is limited to whether substantial evidence supports a finding by a mere preponderance of the evidence, appellate review must be sufficiently robust to ensure that an order of forfeiture is in fact supported by substantial evidence so as not to deprive people of significant property rights except as authorized by law. This is particularly important in the forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and because the government has a strong financial incentive to seek forfeiture because the seizing law enforcement agency is entitled

to keep or sell most forfeited property. RCW 69.50.505(7).

 

Jun. 22, 2017 – 92816-9 – In re Pers. Restraint of Lui
http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=928169MAJ

Petitioner Sione P. Lui challenges his conviction for the second degree murder of his fiancee, Elaina Boussiacos.  The Court of Appeals dismissed each claim as meritless and the Supreme Court affirmed.

The court rejected the claims of ineffective assistance of counsel and related prosecutorial misconduct claims. The court walked through the various claims and analyzed each one concluded there was no basis for the claim. The court rejected the Brady violation claim, the juror misconduct claim, and the newly discovered DNA evidence (there was blood the gearshift the jury new did not belong to the defendant and they later matched the blood).

Conclusion

We affirm the Court of Appeals’s denial of Lui’s claims and dismissal of his personal restraint petition. Lui is not entitled to a new trial due to ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence. Nor is he entitled to a reference hearing to determine whether counsel was sleeping at trial or whether the State withheld exculpatory or impeachment Brady evidence, or to prove his juror misconduct claim.

U.S. Supreme Court Affirms that Obergell Requires Placing Married Same-Sex Parents on Birth Certificates

Maintaining a tradition of issuing cases impacting the LGBTQ community on June 26th, the U.S. Supreme Court issued its decision in Pavan v. Smith, upholding the requirement outlined in Obergefell (the case that banned marriage discrimination based on sexual orientation/gender) that birth and death certificates reflect the same-sex spouse.

The decision was a per curiam opinion, which means it was a decision of the court. Per curiam opinions are rare, but this is the second time since Obergrefell that the court has issued a per curiam opinion with regard to marriage and families. (See U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption for a discussion of the other case).

The Paven case involved two lesbian couples in Arkansas. Both couples were married in another state and then had children in Arkansas, using anonymous sperm donations. Both parents filled out the paperwork to have their spouse listed as the other parent on the birth certificate. In both cases the Arkansas Department of Health issued certificates bearing only the birth mother’s name. The Arkansas Department of Health relied on the Arkansas law that stated that if the mother was married at the time of either conception or birth that the name of her husband shall be entered on the certificate as the father of the child.

The Arkansas Supreme Court upheld the gendered nature of the law as not violating Obergefell, asserting that the statute centered on the biological relationships, not on the marital relationships, and so it does not run afoul of Obergefell.  The U.S. Supreme Court disagreed finding that it denied marriage same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

The per curiam decision goes on to say that Obergefell proscribes such disparate treatment and the Obergefell explicitly referenced birth and death certificates. The court also noted that the statute is not about biology as married men are required to be on birth certificates of the children born of the marriage when ART is used. The decision of the court also noted that the adoption statute allows for birth certificates to be amended to reflect the adoptive, nonbiological parents, to be put on the birth certificate.

Despite being a per curiam decision, Gorsuch, Thomas and Alito dissented. Gorsuch wrote, that he did not believe this case met the threshold of a per curiam decision because he did not think the issue was settled and stable, which are the types of case per curiam decisions are supposed to be reserved for.

This dissent repeated the state’s argument that the per curiam decision noted was false on its face – that biology was the reason for the gendered nature of the birth certificate law. The dissent comes up with the term, “biology based birth registration regime” perpetuating the facially false argument that the gendered nature of marriage and the birth certificate was related to biology. The per curiam opinion specifically discussed this, noting that when an opposite sex married couple uses ART to conceive the husband must be put on the birth certificate and that the adoption law places adopted parents on the birth certificate, so a birth certificate is clearly not about biological connections).

The dissent makes another argument that makes no sense when it stated,  the “State agrees, the female spouse of the birth mother must be listed on birth certificates too.” This whole case is based on the refusal to allow same-sex married spouses on the birth certificate, so it is unclear how the Gorsuch could make this claim. The only way that this claim would be accurate, would be if the state conceded the same-sex spouse should be on the birth certificate, which would make the biological argument pointless.

The dissent does what the conservative agenda often tries to do -create a path to achieving its desired goal to discriminate against the LGBTQ community. The dissent essentially invites states to create “biology based birth registration regimes.” This is clearly an anti-LGBTQ stance, but it is more than that it’s a push towards the idea of biological imparity connected with parenting. The impact of this approach would impact far more people than the LGBTQ community. Assisted reproduction is widely used in the U.S. by opposite-sex married couples, single women, and same-sex couples. According to a February 2014 CNN article, 61,740 babies born using some form of assisted reproduction technology in 2012. A 2015 Huffington Post article notes that there is a guestimate that is 15 years old that between 30,000 and 60,000 children are conceived using sperm or egg donors (the article also criticizes the lack of tracking of this information).

It is also important to connect this case to the other recent per curiam adoption case that said Alabama could not invalidate a Georgia adoption. One of the judges at the Alabama Supreme Court rallied on about the idea that adoption is merely an administrative tool and doesn’t create real parentage and the state can revoke parentage on a whim without meeting the constitutional requirements for biological (“real”) parents. This is perhaps one of the reasons, Chief Justice Roberts, who is an adoptive parent, did not join in the dissent. Adoptive parents understand biology is not the only way people become parents and biology does not somehow make more of a parent.

What does this decision mean for parents using Assisted Reproduction Technology, especially same-sex parents?

This decision makes it clear that if a state has provision that requires a married spouse to be placed on a birth certificate, any effort to restrict this to opposite sex couples will be deemed unconstitutional. The per curiam nature of the decision is an effort to send a strong message – states cannot rely on gendered laws to limit the benefits and responsibilities allocated through marriage. Arguably this would also apply to parentage statutes, statutes that typically say that a child born of a marriage is presumed the legal child of both parents in the marriage.

Nevertheless, the dissent, the long-term hostility to the LGBTQ community and families, and the backlash to marriage equality make it imperative for same-sex couples (and arguably any parent conceiving through ART where they may not be the biological parent to their child – including birth mothers who use an egg donor) to affirm their parentage through a court order. It is clear that there will be continued challenges to parentage and there are still courts and justices open to arguments that same-sex parents aren’t real parents, and more than that, that nonbiological parents are not real parents.

There are two types of court orders, the one that many advocates believe provide the strongest protection are second parent adoptions (more commonly referred to as stepparent adoptions). This is a process where the nonbiological parent would adopt their child. Adoptions are recognized nationally and internationally.

The other option is an order affirming parentage (these have various names). It is an court order that affirms that that the intended parents are the legal parents and would be entitled to enforcement under Full Faith and Credit. States that have adopted a version of the Uniform Parentage Act (UPA) may also have an ability to use the holding out provision for parents who were not married at the time of conception or birth and who have not done an adoption. Provided that the nonbiological parent has met the requirements of the state statute for the holding out provision, they could file a parentage action and affirm their parentage.

JELS has successfully done parentage confirmations in Washington. Every situation is unique and there may be some situations that a parentage confirmation would not be appropriate (i.e., if a child was conceived through intercourse, even if all parties intended the child to be the child of the married couple).  I like parentage confirmations because it does not required either parent to allege that they are not a parent and therefore must adopt their child to become a parent. It should also be less expensive to do a parentage confirmation than an adoption and it is relatively quick. You won’t get the same feel good ceremony many people experience when they do an adoption, it’s more like a somewhat administrative process to affirm your parentage.

Disappointing Parentage Case Out of Idaho

Queer Idahoans had their families narrowly defined, excluding a nonbiological parent from the definition in a recent case, Doe v. Doe, 44419; Supreme Court of Idaho; June 7, 2017.

The case involved a nonmarried couple. In the court’s recitation of facts, it alleged that they were not married because the biomom didn’t not want to formalize the relationship with the nonbiomom. The court concluded that because Idaho’s parentage statute (the statute that defines who is a parent and how you can affirm or rebut your parentage) was clear that the presumption of parentage only applied to married couples and since the couple was not married, the nonbiomom wasn’t a parent (despite the fact their appears to be little to no dispute nonbiomom was involved in ever part of the assisted reproduction decision, there at the birth, and involved in the child’s life as a parent up until the biomom excluded her from the child’s life.

Glaringly absent from the court’s analysis was the fact that the couple’s relationship ended in 2012, for those who have already forgotten our history, same-sex couples were prohibited from marrying in the vast majority of states in 2012. In fact, it was at the end of 2012 that several states, including Washington passed marriage equality (or in the case of Washington, we had a referendum affirming the law passed by our legislature in February 2012). Idaho was not one of those states.

It would take until the June 26, 2015 for the U.S. Supreme Court to uphold marriage equality in Obergefell v. Hodges, 576 U.S. ___ (2015) and outlaw all of the state laws discriminating against same-sex married couples.

The Idaho court refused to create a de facto parentage doctrine and limited an existing decision that perhaps opened the door for nonbiological parents who had acted as parents and formed strong parental bonds with the child from accessing legal rights to the care, custody, and control of  their children.

This means that same-sex couples in Idaho are particularly vulnerable if they have not adopted or confirmed parentage through a court proceeding.

It is worth noting, that the court did not address whether same-sex married couples would be prevented from being presumed to be the legal parents of their child. The court discussed Idaho’s parentage statute, which is gendered (i.e., references “mother’s husband”). The court seemed to indicate that its decision turned not on the gendered nature of the parentage act, but that the couple was not married, with the implication that had the couple been married, the nonbiomom may have been considered a legal parent in the eyes of the court. However, I wouldn’t hold on to this distinction as some sort of bright hope that married same-sex couples will be recognized as parents of their children. The fact that the court failed to address the fact that the parents could not legally marry in Idaho for the entirety of their relationship speaks loudly of a bias that they wanted to hide so as their decision would be less likely to be challenged as discriminatory.

As I have often comment in blogs or presentations – marriage equality does not equal parentage equality. Decisions like this make all too clear how precarious our legal rights to our children can be in the LGBTQI communities. Any parents who have children together who have not adopted or affirmed parentage should seek advice from an attorney in their state.

There are options available. Many states have parentage statutes that include a holding out provision, which means that if you have been living with the child since birth and taking on the role of a parent with the consent of the other party, you may be able to affirm parentage. If you are married, every state should have some law presuming that the child is a child of marriage, and even if the statute is gendered, you could pursue a parentage confirmation.

Second parent adoption (a/k/a stepparent adoption) is the option that many attorneys who practice primarily with LGBTQI clients recommend. While this option always sits badly with me, I do not think an intended parent should have to adopt their own child. However, adoptions have been tried, tested, and affirmed. If you have any concerns your spouse, or if your spouse were to predecease you, their parents, would fight to have you excluded from your child’s life, an adoption may well be the safest option.

Sadly, homophobia is alive and well and we know with the spate of laws passing trying to allow same-sex couples to be denied adoption and foster care placements that homophobia will defeat the best interest of the child for many people. As such, protecting your relationship to your child is crucial.

Bias Based on Sexual Orientation or Religion in a Parenting Plan is Unacceptable and Invalidates the Parenting Plan

Short Overview

The Washington State Supreme Court held that when a parenting plan includes restrictions in any part of the parenting plan based on sexual orientation the entire order is invalidated because

This bias casts doubt on the trial court’s entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle’s sexual orientation.

In some ways, this was already the rule in Washington, but this decision makes it abundantly clear that it is improper to even try to bring up sexual orientation as a factor in a residential schedule, even if the family practiced a religion that viewed homosexuality as sinful.

Case Details

In re Marriage of Black, Docket No. 92994-7; Opinion Author – Justice Fairhurst, Unanimous Opinion with a concurrence authored by Justice Wiggins and joined by Justice Stephens; Attorney for Petitioners – Amanda J. Beane, Kelly F. Moser, Julie Wilson-McNerney all of Perkins Coie, and David Ward of Legal Voice; Attorneys for Respondent – Kenneth Wendell Masters and Shelby R. Frost Lemmel of Masters Law Group PLLC

Legal Voice was one of the leading advocacy groups in this case. Their discussion of this ruling can be found here.

Because of the issues involved in this case, there were numerous amicus (friend of the court) briefs. You can find the list of the attorneys for the organizations providing amicus briefing (ACLU-Wa and National, NCLR, Fred T. Korematsu Center for Law & Equality, SU Law Professor, QLaw, GLAD). Full disclosure, I provided some assistance on the ACLU Amicus brief.

Basic Facts

Couple marries young (wife 19, husband 21). They were religious and involved in the church. They had three children and the mother wrapped around her life around the children, giving up her work in her family’s business to be able to focus on her family. The father worked in her family’s business and provided the financial support. Like so many divorcing families, it is clear that both parents loved their children.

Like many people, later in life the mother realized that she was not straight. As much as she loved her family, she could no longer hide this important part of her identity. She told her husband. They continued to reside together, agreeing that the mother would explore her sexual orientation.

The mother was committed to making her children come first. Based on her upbringing and belief that having a stay-at-home parent was important for children, she stayed in the family home, with the father, attempting to disrupt the children’s lives as little as possible, only moving out when the trial court ordered the family home would go to the father and the mother had to move out. The court made the father the primary custodian and said he got to make all the decision about the children (something typically reserved for high conflict cases, particularly instances with domestic violence). In addition to providing limited residential time with the mother and allowing the father to make all major decisions, the trial court limited the mother’s ability to talk about her sexual orientation or introduce the children to her long-term partner. The court of appeals struck down the provisions that were explicitly homophobic, but allowed all the other provisions to remain in place (For more discussion of the basic facts and the court of appeals decision, check out my earlier blog).

Washington State Supreme Court Opinion

Sexual Orientation and Parenting 

The Court reaffirmed that a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children. This principal was first articulated by the Washington State Supreme Court in 1983, In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983) it was reiterated in In re Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996) (trial court abuses its discretion “if it restricts parental rights because the parent is gay or lesbian).

In this case, the GAL issued a homophobic report that was highly critical of the mother for “making choices” to divorce the father and for her “lifestyle choices” and essentially blamed Rachelle for the marriage ending the marriage, believing she should have waited until the children were grown before living an authentic life. The trial court relied heavily upon the GAL report. The Supreme Court stated:

We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands.

The question to tease out in the case was, when is a trial court basing its decision on sexual orientation? The father argued that the trial court did not base its residential schedule based on sexual orientation and that the numerous references to her sexual orientation were simply included for context. The mother argued that the because the GAL report, the trial, and the opinion where full of references and restrictions connected to her sexual orientation, the entire parenting plan was tainted with bias and needed to be reversed.

Previously, our state Supreme Court decisions allowed parenting plans to remain in effect even if there was a reference to sexual orientation. In the Wicklund decision, while the court held that parental rights couldn’t be restricted based on sexual orientation, the result of the case still ended up feeling like that was exactly what was allowed to happen. The trial court trial court focused on causing the least amount of change for the children, which inherently created a bias on the parent who was trying to live more authentically.

The Washington State Supreme Court noted that since Wicklund was decided in 1996 courts have recognized that members of the LGBTQ community are vulnerable to discrimination. The court referenced Obergefell v. Hodges, the decision that affirmed the dignity of same-sex relations and overturned marriage discrimination (as a side note, the court also noted that this decision abrogated its own decision in Andersen v. King County – the case where our state failed to properly apply constitutional rights, arguing that dignity of LGBTQ people should be subject to political whims and that gays were going to get there through the political process. This ultimately happened, but it took six more years and justice deferred is justice denied).

The court did not draw the connection that 1996, when Wicklund was decided, was also the height of the gay marriage panic when the Federal Government passed the Defense of Marriage Act and many other states passed “Baby DOMAs.” When Wicklund was decided, in many states it was still criminal to engage in same-sex sexual relations – those laws wouldn’t be held as unconstitutional for another seven years in Lawrence v. Texas.

I mention the timing because as President Obama noted when he finally supported ending marriage discrimination, attitudes around the LGBTQ community have evolved, not simply with respect to marriage, but with respect to our ability actually live a life without being criminalized.

In the Black case, the State Supreme Court found that the trial court abused its discretion for failing to remain neutral in determining the residential schedule. This is a good ruling, but I would have preferred a bit more bright line ruling: Sexual Orientation cannot be used in determining a residential plan and any plan that bases any part of a decision or restrictions on sexual orientation will be presumed to have abused discretion and will be void. This case does not appear to overrule the caveat that sexual orientation may influence a residential schedule if it harms the child. This is wrong. Would anyone argue that if a same-sex marriage ended because a partner realized s/he had a deep sexual attraction to someone of an opposite-sex that this could harm the child? No. Sexual orientation does not harm children. LGBTQ people are not inherently sexually deviant with a greater likelihood that their behavior could be harmful. In the same way that someone who has a heterosexual orientation may engage in harmful sexual behaviors, it is the actual harmful sexual behaviors that is a problem and has nothing to do with sexual orientation.

Nevertheless, the ruling effectively determined that sexual orientation cannot be used in any part of a parenting plan and if it a trial court makes unnecessary reference to sexual orientation and especially if a trial court includes any limitations based on sexual orientation, it will be presumed to bias the entire parenting plan (not simply the place that references sexual orientation).

Religion and Parenting 

In this case, the children were raised in a conservative Christian faith that was judgmental towards divorce and sexual orientation. The trial court also based parenting decisions on stability and maintaining the religious identity the children were raised in (without ever inquiring as to the children’s own religious beliefs). This clearly favored a particular religion. The mom still maintained a Christian identity, but she embraced Christian ideals that were more accepting. The court determined that the children must be raised in the more conservative Christian setting. This decision also violated the law with regard to parenting decision.

[Washington courts] require an analogous attitude of neutrality regarding conflicting religious beliefs. Although a trial court may consider the parents’ and the children’s religious beliefs when fashioning a parenting plan under RCW 26.09.184(3), it may not favor either parent’s religious beliefs without a clear showing of harm to the children[.]

(emphasis added).

The consideration of religion is intended to allow for an ability to figure out religious holidays and residential schedules and possibly other issues (i.e., coordinating taking children to religious services where there is a gender segregation, coordinating important religious milestones, like bar/bat mitzvahs).

In the Black case, religion and sexuality were intertwined. The argument was basically that because the children were raised in an ultra conservative religion they would be harmed by the mother’s sexual orientation because it contradicted the teachings of their religion. The trial court concluded that the father was better able to maintain the religious beliefs the children had thus far been raised. Thus, the court effectively favored the father’s religion.

The court didn’t do an analysis if either religious practice would harm the child. Arguably, if the court had done such an analysis, if any religious practice would have the possibility of harming the children, the father’s religion, which demands viewing their mother as a sinner, would be more likely to cause an actual detriment to the children.

Bias in a Parenting Plan Requires Dismissal of the Entire Parenting Plan

Parenting plans include numerous provision, there is the time each parent has with the the children, there are decision-making provisions, there are possible restrictions on visitation, and any parenting plan done with lawyers involved will include a vast array of “other” provisions that attempt to help guide parents on behaving respectfully with each other during the challenge of co-parenting. The Supreme Court decision essentially held that these other decisions must be reviewed when the trial court’s decision appears to have been tainted with bias.

What Happens Next? 

Sadly, this decision doesn’t mean an end for the family. Perhaps they will be able to go back to mediation in light of this decision and make agreements about their parenting, and increasing the mother’s time with her children. If they cannot reach agreements, they will have to go to trial. They will have to incur expense to hire a new GAL and likely another psychologist to interview the children. At the time this decision was issued, the court noted that one of the children is already 17, parenting plans do not apply to legal adults, so that means the oldest child will likely not be impacted, because with how slow the process is, he will likely be 18 before a final parenting plan is entered. The vast majority of his high school life had his mother radically diminished from his life because of the bias of the trial court and the bias of the ex-husband. If the ex-husband had not pushed for the restraints and limitations in the children’s life, the court never would have ordered it. The other two children are 14 and 9, so there is still a significant impact that a new parenting plan could have on their lives and their relationships with both parents.

Cases like this are heartbreaking. It seems clear that both parents love their children and that their children love both their parents. But in the way that break-ups can be toxic, this break-up got toxic and the father successfully leveraged the lingering homophobic attitudes to try to diminish the relationship between the children and their mother.

The reality is that as the children grow up, there is no way they will be anything other than resentful to the father for his efforts to marginalize their mother in their lives. Divorce does not inherently harm children, messy divorces where a parent is vindictive against another parent harm children. Children know more than we realize and eventually the father’s relationship with the children will likely suffer from his actions.

It didn’t have to be this way. In fact, our legislature has done everything it can and our courts have interpreted the statutes in ways to try to prevent exactly this kind of harm. The trial court missed an incredible opportunity to apply our state statutes to assist parents in doing what is best for their children. Instead of having a long court battle lasting years and years, had the court followed the statute and court law, the family could have been on a path towards healing and existing in their newly defined family.

Additional Side Note

Sexism, heterosexism, and homophobia are all leaves on the same branch of bias based on sexual stereotyping. In addition to religion and sexual orientation, this case seemed to be tinged with bias based on gender/against a parent who stays at home with children. The Supreme Court did not address this issue, but the decision by the trial court clearly punished the mother for being a stay-at-home parent. It argued that the father was more stable because he had a job. The court and GAL seemed to be critical of the mother for not making more of an effort to become employed outside the home. Despite questioning her ability to support herself, the court denied her alimony.

This case presents a particularly bizarre situation to assert the financial stability of the father because his financial stability is based on his employment with the mother’s parents. That seems like an inherently unstable relationship. What if the father starts dating someone else and the parents fire him? What if the parents evolve in their acceptance of their daughter and fire him for the trauma that he caused to their daughter?

Nevertheless stability referenced in our parenting statute is not financial stability or religious stability, it is the stability of the relationship between the parents. To use financial stability as a basis in a parenting plan deeply contradicts the legislative efforts to usurp that kind of decision through the creation of the child support schedule. It is dangerous to identify financial stability as a basis for a residential schedule because it will inevitably punish one parent. Studies show that regardless of sexual orientation, families almost universally tend to have one parent who makes financial sacrifices to support the family. Because of systemic sexism (i.e., that women still make significantly less for the same jobs as men, particularly if they are women of color), in opposite-sex relationships, it will often make the most economic sense for women to make the financial sacrifice, factoring in “financial stability” would result in systemic discrimination against (primarily) women in parenting decisions.

 

 

 

Summary of February 2017 Supreme Court Decisions

Appellate decisions within two weeks of 2/28/17:

Washington State Supreme Court Decisions:

  • In re Marriage of Zandi, 92296-9 (unanimous opinion)- Court held that out-of-network expenses are uninsured medical expenses and must be paid according to the parties’ child support order.
  • “The legislature defines ‘” [u]ninsured medical expenses”‘ as costs “not covered” by insurance. RCW 26.18.170(18)(d). WAC 388-14A-1020 clarifies that this includes costs “not paid” by insurance, even if those costs would be covered under other circumstances. Because the health care expenses in this case are unambiguously within the scope of RCW 26.18.170(18)(d), financial responsibility is allocated by the 2009 order and may not be modified absent evidence of changed circumstances or other evidence consistent with the requirements of RCW 26.09.170(6)-(7).”

    • In this case, it didn’t matter that the father had requested the mother get pre-approval from the insurance company, the mother thought that the issue was urgent enough to require immediate attention. Nothing in the record indicated that the mother acted in bad faith (she did request pre-approval and was assured by hospital staff it would be approved). The court said that to look at the fact that the father did not have a say in the incurrence of the out-of-network expense, “incorrectly introduces concepts of marital fault into the enforcement of a child support order.”
  •  Estate of Ackerley v. Dep’t of Revenue, 92791-0 , (5-4 opinion, Madison authored majority, Wiggins authored the dissent). This is a case concerning the Estate and Transfer Tax Act, chapter 83.100 RCW. There is something called the “gross-up rule” wherein the federal government assesses estate taxes on gift taxes paid within three years of death. The question was whether they also needed to be included as a part of the Washington taxable estate (this would result in more taxes being owed to the state). The majority said yes. The court held:
    • “Following the legislature’s clear mandate, we must also find that the gift tax paid is part of the Washington taxable estate and transferred upon death as part of the entire estate. Thus, the Washington State Department of Revenue (DOR) properly included the gift tax paid in its assessment of Barry Ackerley’s estate.”

    • The focus of the majority is on the concept of “transfer.”
    • The dissent argued that, “[w]here no transfer exists, Washington’s Constitution prohibits the imposition of an excise tax.” In this case, the federal gift taxes were fully and finally paid during life, so no transfer of gift occurred at death. This would mean exclusion of the gift tax from Washington’s estate tax. This focus of the dissent is on the concept of “direct tax:”
    • “Because the estate tax is imposed on a “transfer of property,” it is an excise tax, not a direct tax. And because the tax is not a direct tax, it is not subject to the uniformity requirement of the Washington Constitution.”

 

  • In re Disciplinary Proceeding Against Conteh, 201,448-8  (unanimous opinion – Madsen author). This case involves the suspension of an attorney and whether the Disciplinary Board should have reviewed the case on its own, even when the attorney did not appeal the suspension. The disciplined attorney appealed the decision of the Disciplinary Board not to review the suspension. The court noted that the attorney did not identify any specific assignments of error or any findings he disagreed with. Since unchallenged facts are assumed to be true on appeal, the attorney had no basis for his appeal.

 

  • Lundgren v. Upper Skagit Indian Tribe, 91622-5 (5-4 opinion – Johnson authored majority, Stephens authored dissent). This case involves a property dispute involving land that was purchased by a tribe and where there had been a long-term fence that was inconsistent with documented boundary lines.
    • Majority Opinion: There were issues of sovereign immunity because of the tribal ownership of the land. The issue involved In Rem jurisdiction and the right of Washington Courts to decide actions regarding property. The majority discussed CR 19 and whether the tribe was a necessary party and determined because the Lundgren’s obtained possession long before the Tribe acquired the disputed property, the Tribe was not a necessary party and therefore there was no concern regarding sovereign immunity. The majority also noted that there would be no other remedy without suit in Washington Superior Court.
    • Dissent: The dissent’s argument is captured succinctly with this quote:

      “While the existence of in rem jurisdiction gives a court authority to quiet title to real property without obtaining personal jurisdiction over affected parties, Civil Rule (CR) 19 counsels against exercising this authority in the face of a valid assertion of sovereign immunity. Proceeding without regard to the Tribe’s defense, the majority gives “insufficient weight” to the sovereign status of the Tribe and erroneously “reach[es] and discount[s] the merits of [the Tribe’s] claims.”

 

  • Peralta v. State, 92675-1  (Unanimous Opinion – Wiggins author). This case involved an admission during pretrial discovery (discovery is where both sides ask questions and provide documents relevant to the case). There is a part of discovery where you can be asked to admit or deny certain facts. This case involved an issue where a woman was hit while walking while intoxicated. She admitted in discovery that she was intoxicated and didn’t attempt to qualify it, like she had a drink, but didn’t think she was impaired. The trial court allowed the admission and required her to be bound by it, including it in a jury instruction. The jury found that Peralta’s intoxication was more than 50% of the reason why Peralta was hit. The Supreme Court upheld the trial court’s decision because the intoxication defense statute provides a complete defense to an action for personal injury when the person injured “was under the influence of intoxicating liquor” at the time of the injury.
  • State v. Arlene’s Flowers, Inc., 91615-2 (Unanimous Opinion –  McCloud author). This case involved the violation of the Washington Law Against Discrimination (WLAD) and the Consumer Protection Act (CPA) by a florist seeking to deny services for a same-sex wedding. I hope to blog about this case in more detail soon, but in the meantime, here are the basics.
    •  The court upheld the WLAD and the CPA and rejected the attempt to create an exception based on religious belief. The court held that the refusal to provide flowers was discrimination based on sexual orientation, rejecting the argument that it was marital status discrimination (and therefor permissible).
      • The florist attempted to argue (1) that it was marital status discrimination, not sexual orientation discrimination (and therefore okay for her to refuse services), (2) the WLAD already an express exemption to RCW 49.60.215 for “religious organization[s]” that object to providing public accommodations for same-sex weddings, thus the attempt to argue that WLAD didn’t cover marriages in secular public accommodations failed. The court also rejected the argument that the WLAD requires a balancing test between the rights of the protected class members (i.e., the public using the accommodation) and the business providing the service and the religious beliefs possibly held by the owner of the company.
      • The court also rejected the claim that the WLAD violated her right to Free Speech or Religious Exercise. The court held that the “WLAD is a neutral, generally applicable law subject to rational basis review.  And the WLAD clearly meets that standard: it is rationally related to the government’s legitimate interest in ensuring equal access to public accommodations.” (Citations omitted)

      • The court also noted that the WLAD withstands strict scrutiny review – rejecting the florist’s argument that the couple suffered no real harm:
        • We emphatically reject [the argument the couple suffered no real harm.] We agree with Ingersoll and Freed that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

      • Finding that Supreme Court has never held that a commercial enterprise, open to the general public, is an ‘”expressive association'” for purposes of First Amendment protections, the court rejected the florist’s Free Association claim.

LGBTQ Rights Going Forward – Possible Impact of a Trump Presidency

During this campaign cycle, we saw the backlash to broad spectrum of efforts to obtain full equality. While Obama was not perfect, under his administration, movements of the people flourished. Immigrant communities organized, raised awareness, and applied pressure achieving at least a few minor gains, like the DREAM Act. Black Lives Matter flourished. While the president was not as forceful as I would have liked, he did defend the movement and under his leadership investigations occurred into police accountability/abuse and reports were issued that have the power to create some systemic change. He raised awareness of about the abuse of our system of incarceration and took steps available on the federal level.

The LGBTQ movement was also able to thrive under Obama. He appointed several members of our LGBTQ community into key leadership positions. Questions about fair housing, included questions about whether LGBTQ people were discriminated against. He also took a position that the ban on marriage discrimination was wrong. When the Supreme Court finally remedied the long standing practice of denying marriage to same-sex couples, the Obama administration went to work on finding all of the places where the federal government was involved and removing any barriers to equality.

It is hard to believe sometimes that Lawrence v. Texas was decided in 2003. How on earth was it only about 13 years ago that some states still outlawed homosexual conduct (i.e., sodomy)?  When the barriers finally began to fall, full equality felt like it came at a rapid pace. This is why, despite all the growth we have had, in many ways the changing administration doesn’t change the longstanding advice for the LGBTQ community.

The people dedicated to these issues have issued FAQs and information. Lambda Legal has Post-Election Facts – Covering marriage (unlikely to see much change), trans youth, conversion therapy, hospital visitation, HIV and concerns about the repeal of Obamacare and hate crimes. NCLR has several blogs, Shannon Minter, their super smart legal director has this to say about the unlikely outcome of repealing marriage. The NCLR is also one of the best resources out there to understand state-by-state differences. The Transgender Law Center issued this Statement on the election.

In addition to these thoughts, I will add, no president, congress, or court has ever simply given the LGBTQ people rights. It has been a hard fought battle, that was based in some incredible activism changing hearts and minds.

It also doesn’t hurt our cause that LGBTQ people are everywhere. Race, religion, ethnicity, and many other identities find people still segregated, largely due to historic discrimination issues, but also because sometimes it is easier to live in communities where you see yourself, you know you are less likely to be targeted for harassment and violence, you know when you go to the store they will have beauty products for your hair, or a grocery store that will meet your kosher needs. This segregation doesn’t occur in the same way for the LGBTQ people, while as grown-ups we may seek out gayborhoods, we are raised Muslim, Evangelical, atheist, Jewish and every other religion. We are Black, Asian, Latinx, Native American/First Nations/Indigenous, White and every other race and combination of race and/or ethnicity. We come from conservative families to progressive to anarchistic families. It is simply impossible to shield yourself from loving someone, a son, daughter, auntie, uncle, parent, who may come out as LGBTQ and the more accepting world expanded the safety area for people to come out. It is impossible to exist in any identity without also having LGBTQ people as a part of that identity.

However, this change is recent. We have not lived in a post-Obergefell (Supreme Court case affirming the dignity of same-sex marriages and holding discriminating against same-sex people in marriage liscenses violated our constitution) world long enough to have let our guard down. Attorneys advising same-sex clients were still saying, get your documents and don’t delay.

What kind of documents should you get?

Transgender people should make sure their identity documents match their gender identity (to the extent possible as they predominately exist in the male/female binary). One place to turn for information on this available at the Transgender Law Center Identity Document Resources– it’s California focused, but it does have information about federal changes. Looking at the California info may also help you figure out how to look for the same in your own state.

Protect your relationship to your children. If you have read any other blogs I have written or seem me present, you have heard me say marriage equality does not equal parentage equalityGet a court order affirming parents are parents. This can be done a couple of ways. Many people are most comfortable with adoptions. There is case law to support that court orders adjudicating parentage will be given full faith and credit, this is essentially an order of parentage, similar to what has been historically called paternity. In Washington State, our law regarding determining parentage is gender neutral (Uniform Parentage Act / UPA, which despite its name is not uniform and many states haven’t adopted it, or they tweak it. Washington tweaked our UPA to be clear it included same-sex couples).

If you haven’t done this, and your family is splitting up, you can make sure that your parenting plan has a finding that you are the legal parents. Parenting plans have extra security under a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA – and unlike the UPA it actually is uniform). There is also something called the Hague convention and signatory countries (countries who have agreed to follow the Hague rules) will also help with the enforcement of parenting plans). There are some concerns with something like this and possible rights and benefits that could flow to your child upon your death, so you should definitely explore other possibilities.

All LGBTQ couples should have estate planning documents – which a way of making you sound wealthy, but really means that you should have a power of attorney, medical directives, a will. These kind of documents are fairly easy to obtain. The reason for having them is mainly to have an additional weapon against discriminatory individuals at important times. These are also the kinds of documents people absolutely needed when there was no marriage. It was the only way that same-sex couples could link themselves in the eyes of the state.

Pay Attention – More Advice Will Come Out Once Trump is in Office with a Republican Congress

There is so much more we will learn in the coming months and years. The hateful rhetoric connected to this election has all of us justifiably nervous. The thing that helps keep me from panicking is remember that our government was set up to thwart major sweeping changes. It took a long time to get where we are and it will not be unwound easily.

Perhaps it means as states that are happy with having the marriage issue decided can try to clean up their statutes that banned marriage and explicitly say that same-sex marriage is allowed in their state (this would mean absent an amendment to our constitution marriages would still have state protection). While states are at it, they should make their laws regarding parentage and have two things clear (1) that families can affirm their parentage if they meet the terms of the UPA (which is basically that you consented to assisted reproduction while married or that you have lived with the child since birth for several years and held the child out as your own) and that the provision apply on a gender neutral basis, i.e., biology is not the only factor in determining parentage.

Also, be sure to reach out when you experience discrimination. The national organizations like Lambda Legal, NCLR, Transgender Law Center, and the Southern Poverty Law Center, need to know what’s happening in people’s lives to respond to it. Also, let your state organizations know. In Washington, groups like Legal Voice and the ACLU have been spearheading many efforts. Our Attorney General created a Civil Rights Division. The QLaw Foundation has a legal clinic that provides free legal advice on civil question (i.e., non-criminal).  Gender Justice League has resources on health insurance issues (among many other things). Ingersoll Gender Center has support groups, resources, and information about providers. There are also many other groups that focus on intersectionality: Entre Hermanos, Trikone NW, NQAPIA, and many more.

I’ll keep trying to update about what’s happening in Washington as several interesting cases concerning LGBTQ people are before our state Supreme Court this week.

Parting thought: Please take care of yourself, legally, socially, and emotionally.

Sexual Orientation and Parenting in Washington State

In Washington State, it has seemed like settled law that sexual orientation and gender identity are not supposed to play a role in parenting decisions. Homosexuality was held as not a valid factor in parenting plan in 1983 in a case called In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983) and Transgender identity was held to not be a valid factor in parenting plans in In re Marriage of Magnuson, 141 Wash.App. 347, 170 P.3d 65 (2007).

 

However, any of us who have grown up in a society that is homophobic and transphobic understand that just because things are supposed to be a certain way, does not mean they are that way. A recent Washington State Court of Appeals decision showed us that a trial court will violate the rules and that an appellate court will reverse the most overtly homophobic aspects of a decision, but will leave the bulk of the decision in place, even though the whole case is infused with homophobia and religiously based discrimination against a parent.

In re Marriage of Black, Docket No. 45788-7-II; Opinion Author Sutton; joined by Worsick and Maxa. Attorneys for Appellant(s) Amanda Beane, Kelly Moser, Julie Wilson-McNerney, and Ward . Attorneys for  Respondent Levy, Masters, Lemmel. Amicus – NCLR – Rasnic; WA State Psychological Association -Clinton, Peterson Aand Nickel-Nguy; ACLU – Talner. – Update the Washington State Supreme Court has accepted review of this case.

Basics of Decision: The appellate court held the trial court erred when it restricted the Mom’s conduct and speech about religion and sexuality without making any specific findings of harm to the children, and erred when it allocated Father sole decision-making authority regarding religious upbringing and daycare. But the court found that the trial court did not err when it designated the father as the primary residential parent, allocated sole decision-making authority for education to Father, denied Mother spousal maintenance based on Father’s inability to pay, and required Mother to pay child support.

Basic Facts: Mother and Father married in 1994 and had three children together. They raised their children in a conservative Christian home and sent them to religious-based schools. For the majority of the marriage, Mom did not work outside the home.

Mom came out as a lesbian and began dating another woman in December 2011. In May 2013, Mom filed for divorce, and both parents sought designation as the primary residential parent and sole-decision making authority regarding the children’s education.

The GAL only spoke to two of the three children, and only spoke to those two children for an hour. The children’s therapist said while the divorce was difficult, they were adjusting. When Mom came out to the children, the therapist told mom to hide her relationship. The therapist also told the mom not to talk about sexual orientation or answer the children’s questions outside of therapy.

Mom’s new partner was supporting her financially and the trial court speculated that Mom’s search for full-time employment or enrollment in an educational program would affect her ability to parent full-time.

The trial court did state that Father was clearly the more stable parent in terms of ability to provide for the needs of the children financially, emotionally, and in maintaining their religious upbringing.

The trial court ordered the mother could not introduce the children to her partner until the therapist decided she could (and provided no requirement that the introduction be made by a certain time).

The Decision: The standard on appeal is “abuse of discretion,” meaning that a trial court decision is manifestly unreasonable or based on untenable grounds or untenable reasons. As long as there is substantial evidence to persuade a fair-minded individual of the truth of the matter asserted, the findings of fact are upheld on appeal.

In determining whether the trial court abused its discretion, the appellate court discussed the inability to use sexual orientation as a reason for restriction and noted that the trial court found there was no basis for .191 restrictions (restrictions that exists because a parent’s behavior harms the child(ren)). Without .191 restrictions, the limitations Mother’s parenting regarding introducing to her partner and discussing sexuality or religion constituted an abuse of discretion. Restrictions aren’t allowed to make the transition of divorce easier.

The court found that the restrictions violated Mother’s first amendment rights, especially because it was a blanket prohibition with no findings made by the court of any actual or perceived harm that the children would suffer from the prohibited speech.

The court noted that in prior cases regarding religion and parenting that parent’s have a right of free exercise of religion.

Despite the appellate court acknowledging that trial court had engaged in “blatantly content-based restrictions” regarding religion, homosexuality, or “alternative lifestyle concepts” the appellate court rejected the argument that the trial court improperly considered Mother’s sexual orientation and favored Father’s religion.

The appellate court focused significantly on the idea that there is no  presumption in favor of the primary care giver in determining a parenting plan (citing a case called Kovacs).  Instead the court focused on the emotional needs and development level of the child and the child’s relationship with siblings and with other significant adults, [and] the child’s involvement . . . [in] school, or other significant activates; finding that “because of [the children’s] sheltered upbringing and emotional development, [the father] was best suited to provide for the children financially and emotionally.”

The trial court also weighed the factor of employment schedule in the father’s favor because Mother’s future employment is unknown.

In the end, the appellate court concluded that there was substantial evidence support the trial court’s findings that (i) both parents had strong relationships and bonds with the children, (ii) they had no prior parenting agreements, (iii) both parents have good potential for future parenting functions, but that father had taken on many of the responsibilities since December 2011, (iv) father was the parent most able to provide stability, and emotional and financial support to the children, (v) father was most able to maintain the other strong relationships in the children’s lives, (vi) none of the children stated their preference to the court, and (vii) the father’s employment situation was best suited to provide him the flexibility to parent the children consistently.

Discussion of Judicial Bias

In response to the question of whether the court’s opinion demonstrated judicial bias, the appellate court found that there was no evidence in the record to support the argument that the trial court based its residential placement on the mother’s sexual orientation or preference for the father’s religion and that the judicial ruling alone is not valid evidence of bias. Somehow the court of appeals held that explicitly biased provisions are not evidence that when the trial court was likely making credibility determinations and other forms of fact-finding that it was likely making those determinations with bias.

Essentially, even though the court entered restrictions based solely on sexual orientation (or as the the trial court called it, “alternative lifestyle concepts”) and effectively limited Mother’s time with her children by not allowing her to exercise residential time with her  new partner, the appellate court found the trial court did not act in a biased manner.

This leads to the natural question: Exactly what must a court do to rise to the level of actual bias for the court of appeals? Would the court have to affirmatively say, “I hate gays”? Would it require a GAL report that wasn’t also biased and a court entering restrictions that a GAL report did not include? Would a requirement for supervised visitation without specific findings allow the court to conclude the trial court was biased?

Unfortunately, this case affirms what many LGBTQI people fear, that the court system will be unfair and limit their parenting in ways they would not if they weren’t LGBTQI. Maybe this court will wind it’s way up to our state Supreme Court. As for right now it is what is called an unpublished opinion, meaning that it is not allowed to used by other courts as authority.

The Problem with the Bias Argument 

There is no doubt in my mind, or likely any person who has had someone make comments about something like their stability in connection to their sexual orientation and their ability to parent, that bias plays a role in the decision. The problem is that in order to maintain the important fiction that judges are unbiased, requesting that a case turn on the issue of bias puts courts in the untenable position of saying that their colleagues are biased. The Supreme Court is unlikely to want to open the door for future cases to claim that there is bias by using this case to acknowledge that bias exists within the judiciary.

Beyond that, determining there is judicial bias isn’t required. In a case where the court enters provision based on sexual orientation, the whole order should be void. There was a case, Wicklund, that essentially held as long as the rest of the order had tenable underpinnings that this would not require the entire order to be vacated. But Wicklund occurred in 1996. 1996 was the year DOMA was signed into law. In 1996, Bowers v. Hardwick, was still good law, and that case said it was okay for states to criminalize sodomy. We have seen a sea change occur in our society with regard to homosexuality and as such, Wicklund, to the extent that it doesn’t vacate the entire parenting plan when the judges explicitly states decisions were based on sexual orientation can be upheld, should be overruled.

Requiring that sexual orientation cannot be a factor for any part of the parenting plan will make it so that parties will be discouraged from claiming sexual orientation inevitably harms children (or now that we have marriage equality that a heterosexual relationship post a same-sex relationship inevitably harms the children).

Then we will be pushed to the next issue – how to deal with covert judicial bias. Like the judge who claims a parents transgender identity or sexual orientation plays not role in the case but places restrictions that are similar to a pedophile even though there are no allegations of any physical harm against the child.

Hopefully our State Supreme Court will make it clear that if a parenting plan involves restrictions based on sexual orientation or religion that the parenting plan will be preemptively invalid and it will be sent back down for a new judge just for the sake of the appearance of fairness. If no judge is available (a possible problem in smaller counties), require a change of venue (i.e., require the case to be heard in another county).

U.S. Supreme Court Reverses Alabama’s Decision to Invalidate a Georgia Adoption

Back in September 2015, I wrote a post about an Alabama Supreme Court invalidating an adoption of a lesbian couple that was issued in Georgia. Today I get to write a post that the U.S. Supreme Court has overturned the Alabama Supreme Court in V.L. v. E.L., 577 U.S. ____ (2016). The court affirmed that adoptions are judgments that must be respected from state to state.

Quick summary of the case. Moms were in a relationship from 1995 to 2011. Biomom gave birth in 2002 to one child and in 2004 to twins. Couple lived in Alabama, but the couldn’t do a second parent adoption in Alabama, so they set up temporary residence in Georgia and the nonbiomom adopted all three children in 2007.

Couple breaks up and biomom withholds the children from nonbiomom. Nonbiomom turns to the court to get visitation and Biomom seeks to dismiss the case. The case goes on for years (break up was in 2011, Alabama Supreme Court decision was issued on 9/18/15) with the court finally concluding that Georgia did not allow the court to enter an adoption order. The court was clear that this was because the couple was not married and that the statute did not allow adoption without invalidating the parent’s rights and since biomom’s rights were not invalidated, Georgia did not have the jurisdiction to enter the adoption order.

The Supreme Court disagreed with Alabama in a Per curiam (meaning a decision by the court as a whole) finding that the Alabama Supreme Court erred in refusing to grant the adoption judgment full faith and credit.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so are confused that parentage issues may now be covered by the Full Faith and Credit. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order. Adoptions are court orders, where all parties are represented and the court makes a judgment.

Other types of court orders are also judgments. For example, there was a recent issue in Texas (see blog post). This was a confirmation of parentage order from California that was upheld applying Full Faith and Credit.

I am an advocate that in Washington, and nationally, especially with states that have Uniform Parentage Acts that affirm that a child born of a marriage is presumed to be the child of the marriage, that same-sex couples should have access to a Confirmation of Parentage. Essentially a court order would make it clear that each parent is an intended parent and that as a parent is entitled to all of the rights and responsibilities of a parent, similar to an adoption without as much expense and invasion (i.e., no need for home studies).

The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive on parent should not be considered somehow more of a “real” parent. This should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple). In fact, I believe that this is something that can and should be able to be done through the Division of Child Support in the same way the state, through the Division of Child Support, establish parentage for opposite-sex couples based on paternity.

The Sad Reality

Even though the U.S. Supreme Court has made it’s decision, there is not necessarily immediate relief for the children and their nonbiomom. They now have to go back to the trial courts and try to work out a parenting plan. Five years passed and it will probably be close to six years before anything is finalized. The kids, born in 2002 and 2007 will be about 15 and ten years old. The twins (the younger children) will have spent more than half their lives with their parents fighting over them. While the U.S. Supreme Court decision is a win for future same-sex couples, and while a win for this family, it brings to mind an expression that “justice delayed is justice denied.” This whole family has lost too much of their lives in this fight.

 

Parentage Establishment and a pending Texas Supreme Court Case

Marriage equality is not parentage equality.

For years, prior to Obergefell, when presenting about issues of family law and LGBTQ identity, I advocated the creation of a process for the adjudication of parentage in Washington State as something married co-parents could do instead of adoption. An adjudication of parentage would be similar to what happens with opposite-sex couples when a state establishes paternity.

States must establish paternity when a mother is receiving a cash grant like TANF and states also provides paternity establishment services to any party that requests it, even if they are not on public benefits.  Typically in these cases, states rely on genetic testing, but they can also rely on the word of the parents.

In a confirmation of parentage action, instead of relying on genetic testing, the state would rely on the presumption of parentage statute. In the past, I have cautioned about the dangers of this approach for same-sex couples because of the concern that if an order stated that the sole source of right to parent was based on the presumption of parentage connected to marriage that other states may try to invalidate the parentage order by arguing that they don’t recognize the underlying marriage.

To back up briefly, in Washington and other states with the Uniform Parentage Act, a child born of a marriage is presumed to be the child of both parents. With Obergefell and the fact that every state must now recognize the marriages of same-sex couples, the concern about the presumption being over-turned because of anti-marriage views is lessened.

I still have some reservations. Not every state has a Uniform Parentage Act. The name is “uniform” is totally deceptive, because even states have UPAs do not necessarily adopt the Act in uniformly. For example, Washington has a gender neutral parentage act, making it clear it applies to same-sex couples.  Nevertheless, to receive federal funding connected to welfare, every state must have some sort of law to get co-parents on the hook for child support, which mean all states are familiar with parentage orders (often referred to as paternity orders).

However, that concern is lessened, especially as Texas has upheld a California Paternity Order between two fathers who used a surrogate. The case is discussed below.

In Berwick, v. Wagner, No. 01–12–00872–CV, Decided September 11, 2014, the appellate court upheld a Judgment of Paternity for the nonbiodad.

<<<UPDATE – On October 23, 2015, the Texas Supreme Court declined to hear the case. This means the decision of the court of appeals stands and the paternity judgment will be recognized by Texas>>>

The basic facts: Couple began dating in 1994; enter into a gestational surrogacy agreement with a married woman in California (Berwicks’ sperm + donated ova in the uterus of the surrogate). A California court entered a Judgment of Paternity before the child’s birth (1) declaring both Berwick and Wagner each to be a “legal parent” of C .B.W., (2) declaring the surrogate and her husband to not be C.B.W.’s legal parents, (3) ordering the hospital to list Berwick in the space provided for father on the original birth certificate, and (4) ordering the hospital to list Wagner in the space provided for mother on the original birth certificate.

Relationship ended in 2008. Nonbiodad filed a two suits, one to recognize the paternity judgment and one under Texas law called a “Suit Affecting the Parent Child Relationship.”  Biodad opposed both actions. He argues that it would be against Texas public policy to recognize the California judgment of paternity.

The basic argument is that biology is king and a child can only have one father. In more detail the argument is, biodad is the only one who has a genetic relationship to the child, that Texas would not ordinarily allow two men to be fathers, and that nonbiodad could not take advantage of the holding out provision because even though he lived in the home for the first two years of the child’s life, he could not “genuinely represent to others that [the child] was his own because of Berwick’s undisputed paternity and Wagner’s confessed knowledge thereof.”

Nonbiodad argues based on the Full Faith and Credit Clause – “it is irrelevant whether his and Berwick’s surrogacy contract would have been enforceable if entered in Texas in the first instance because “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it.”4 E.g., Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 664 (1998) (“[O]ur decisions support no roving ‘public policy exception’ to the full faith and credit due judgments ”).”

Appellate Court’s Decision

The trial court did not err in recognizing nonbiodad as a parent because (1) The trial court correctly recognized that both men had already been adjudicated as parents of the child by the California Judgment of Paternity. and (2) the trial court properly gave full faith and credit to the California judgment.

The court found that biodad’s arguments, “(1) improperly conflates the constitutional principles of full faith and credit with choice-of-law policy considerations, and (2) ignores settled Texas law holding that foreign judgments are entitled to full faith and credit without regard to public policy concerns.”

There was also an issue that is specific to Texas family law, about “managing conservators.” This is not a concept I’m familiar with, but the relevant part is that the court’s rejection of Biodad’s argument for “applying a presumption in favor of a biological “parent” over a parent acquiring “parent” status through other legal channels (be it adoption, presumption, or assisted reproduction.” A legal parent is a legal parent and they are on the same footing, regardless of biology.

Understanding Full Faith and Credit in Parentage vs. Marriage

Many people wondered why marriage was not considered a “Full Faith and Credit” issue and so may wonder why this case is a Full Faith and Credit Issue. Full Faith and Credit requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” There was concern with marriage that marriage certificates were viewed more as an administrative act of a state. It certainly wasn’t a judgment, which is essentially a court order.

An adjudication of parentage or confirmation of parentage that I advocate establishing model forms to create would be a court order. It would have the parents and the child listed as parties. It would make it clear that each parent is an intended parent and entitled to all of the rights and responsibilities of a parent. The goal with approaching legal parentage in this way is to take out the othering of a nonbiolgoical parent. When parents engage in assisted reproduction in order to conceive one parent should not be considered somehow more of a “real” parent. The process of affirming a parent’s legal status as a parent, particularly when they use assisted reproduction, should be as simple as it is for the state to establish parentage of a biological father when a mother is on state benefits and there is no child support order (this process in incredible simple).

The Texas case provides further support that this approach is a viable alternative to adoption. Adoption has simply been the “go to” for so long that it will likely be hard to try something new, but especially in light of marriage equality, our same-sex parents are going to find the idea of having to adopt their child an even harder pill to swallow than it previously was. A order confirming parentage should provide the same protections and instead of requiring a parent to adopt their own child, it says that both parents are and always have been parents and this order is simply making sure that everyone understands that biology doesn’t determine their parentage, they are the full and legal parents.

Alabama Invalidated a Georgia Second Parent Adoption

Updates on this case:

On March 7, 2016, the U.S. Supreme Court reversed the Alabama Court holding that Alabama cannot invalidate the Georgia adoption under the Full Faith and Credit Clause. See blog post here for more discussion. 

On 11/16/15 this case was appealed to the U.S. Supreme Court. More about the appeal is available at the NCLR website – link

One thing we know is that marriage equality does not equal parentage equality. We also know that while the world has seen a significant amount of change in hostile treatment of same-sex couples towards more acceptance, same-sex families still face a much greater threat to their security than their opposite-sex peers. This is particularly true when one parent in a same-sex relationship decides to use homophobia as a tool to deny another parent their rights as a parent. A recent case demonstrates how that can be done with a possible harmful impact that may resonate well outside their individual custody battle.

A quick summary of the facts is important to understand how the case is not necessarily applicable in the way that it might seem at the outset of just hearing that an Alabama Court invalidated a Georgia adoption. In In re: E.L. v. V.L., Jefferson Family Court, CS-13-719; Court of Civil Appeals, 2130683, the couple lived in Alabama. They spent just enough time in Georgia to be able to technically establish residency (and possibly not even that much, appellate court decisions are not detailed in the facts and it appears they may not have spent a lot of time in the state, simply leased a space for the required amount of time).

The couple was together for approximately 16 years and E.L. gave birth to three kids (one set of twins) using assisted-reproductive technology in 2002 and 2004. It was undisputed that V.L. acted as a parent to the twins and they couple sought to legally formalize V.L. as a parent and in 2007 they did a second parent adoption in Georgia after doing research and believing it would be granted in Georgia.

Couple breaks up, biomom apparently doesn’t let nonbiomom see the children. Nonbiomom petitions the Jefferson Circuit Court (Alabama) to recognize her constitutional right to parent and register the Georgia adoption judgment and award her some custody or visitation with the children. Biomom moved to dismiss nonbiomom’s case. On April 3, 2014 (three years after the couple separated and the kids would be 10 and 12), nonbio mom was awarded scheduled visitation. A couple weeks later, the court issued an order that all other relief was denied and the case considered closed. Biomom promptly moved the court to alter, amend, or vacate its judgment (denied on procedural grounds). Biomom appealed the decision.

At the appellate level she argued that:

  1. the Jefferson Family Court lacked subject-matter jurisdiction to rule on V.L.’s petition;
  2. the Georgia court lacked subject-matter jurisdiction to enter the Georgia judgment;
  3. the Jefferson Family Court should have refused to recognize and to enforce the Georgia judgment for public policy reasons; and
  4. the Jefferson Family Court denied her due process inasmuch as it awarded V.L. visitation rights without holding an evidentiary hearing at which E.L. could be heard.

On February 27, 2015, the Court of Civil Appeals released its opinion rejecting the frist three of the arguments, but holding that the Jefferson Family Court had erred by awarding V.L. visitation without conducting an evidentiary hearing. The judgment was reversed and remanded for the Jefferson Family Court to conduct an evidentiary hearing before deciding the visitation issue.

The Alabama Supreme Court noted that implicit in the court of appeal’s opinion was an implicitly finding in the judgment of the Jefferson Family Court that the Georgia judgment was valid and subject to enforcement in Alabama.

On March 11, 2015, biomom appealed the decision to the extent of the Court of Civil Appeals’ affirmance of the judgment of the Jefferson Family Court to the extent that judgment recognized and enforced the Georgia judgment. The Alabama Supreme Court granted the petition. There were several briefs in the case, including that of GAL, the Academy of Adoption Attorneys, and the Georgia Council of Adoption Lawyers.

The court claimed that in its decision, it was not reviewing the legal merits of the Georgia judgment, because the court is prohibited from making any inquiry into the merits of the Georgia Judgment by the Full Faith and Credit Clause of the Constitution and that the validity of a foreign judgment is supposed to be determined by the state in which it was rendered.

Review is limited to whether the rendering court had jurisdiction to enter the judgment sought to be domesticated – essentially a subject matter jurisdiction issue, which is one of the few grounds upon which a judgment may be challenged after that judgment has become final and any available appellate remedies exhausted.

Biomom argued that the Georgia judgment was unenforceable in Alabama because the Georgia court lacked subject-matter jurisdiction because (1) Georgia does not provide for so-called “second parent adoptions” and (2) that V.L. was not a bona fide resident of Georgia at the time of the adoption. Biomom also argued that even if there was subject matter jurisdiction, the Alabama court should not recognize the order because it would be contrary to Alabama public policy.

The Alabama Supreme Court said the only way that they could not enforce the judgment was to find there was no subject matter jurisdiction. The court rejected the claim that Georgia law prohibits any judicial challenge to an adoption more than six months after the date of entry of the decree. The court discussed subject matter jurisidiction and wavier issues, noting that the equitable defenses of laches and estoppel may prevent a party from complaining of a lack of subject matter jurisdiction in Georgia and agreed that Georgia generally will not accept a subject matter jurisdiction challenge to its adoptions. Nonbio mom’s argument is that it doesn’t apply in second parent adoptions because the adoption statute requires termination of each parent and the Georgia court did not explicitly follow this requirement.

The Alabama Court sites the dissent in a refusal of the Georgia court to hear a motion to vacate a same-sex adoption in Georgia and finds that the Georgia court would permit a challenge on jurisdictional grounds to an adoption decree that did not fully comply with  § 19-8-18(b) (termination of the biomom’s rights as a parent).

The Alabama court then reviewed the Georgia law and found that the Georgia law does not allow for a non-spouse to adopt a child without first terminating the parental rights of the current parents. Since biomom’s rights were not terminated, the Georgia court erred in granting the adoption of nonbio mom. The Georgia adoption judgment is void and full faith and credit is not required.

One distinction that was made in this case is the difference between a second parent adoption and a stepparent adoption. A Georgia stepparent adoption would presumably would have been upheld in Alabama, but the court noted their was no question the parties were not married (omitting the reality that they couldn’t marry in most states) and the second parent adoption of a nonspouse was what the court rejected.

Concurrence  – One justice concurred to say that adoption is not a statutory right and there exists no “fundamental right to adopt a child.” Further, the state has a legitimate interest in encouraging that children be adopted into the optimal family structure, i.e., one with both a father and a mother. (As far as I can tell, no one joined this justice in this concurrence).

Dissent – The dissent argues that the majority reached the merits of the decision and that is not allowed – that only Georgia could decide if it’s adoption was valid. (As far as I can tell, no one joined the dissent).

Impact of this decision 

This decision could impact any second-parent adoption in Alabama from another state where the non-Alabama statutory language is ambiguous enough as to allow Alabama to interpret it to require the termination of the biological parent’s parental rights. It’s a relatively small subset of people.

However, at the time that I am writing this, according to the National Center for Lesbian Rights, who keeps the best records I’ve found on these issues, only 14 states explicitly allow same-sex couples to second parent adopt. At least, thirteen states, including Georgia and Washington do not prohibit second parent adoptions and they have been performed in some counties. This means anyone from these 13 states, and any place where the statute is not unequivocal in it’s allowance of a second parent or stepparent adoption and the lack of a need to terminate at least one parent’s rights could be invalidated by Alabama (or another state who follows Alabama’s lead).

It is a troubling decision because adoptions have long been believed to be orders that were believed a court would not terminate. Sure there’s the full faith and credit clause and that’s a strong legal argument all by itself, but there is also the best interest of the child. It’s a fairly universal belief that excluding a parent from participating in the life a child is detrimental to the child. Even parents who have done awful things to their children are typically allowed supervised visits with their children.

The over-emphasis on biology makes the concurrence so troubling. The ability to adopt may not be a fundamental right, but once an adoption has occurred a parent is a parent. Adoptive parents are just as much of a parent as a biological parent in the eyes of the law. If the concurrence were to become the law of the land this view of adoption would destabilize all adoptive families, regardless of whether the parents are opposite-sex or same-sex.

Does this mean nonbiological parents shouldn’t adopt? 

No. It is possible this case (or a similar case down the road) could get appealed to the U.S. Supreme Court. Given that Chief Justice Roberts is an adoptive parent, I think he will find this decision repugnant and vote with the “liberal” arm of the court and overturn the decision. Even if this case does not go forward to the U.S. Supreme Court, hopefully it will be an anomaly. Adoptions are intentional acts by both parents. It speaks volumes about the intent of each parent and even if the adoptions isn’t allowed, a nonbioparent could argue in the alternative that they are a de facto or psychological parent (in states that have those doctrines) and the adoption decree could be evidence of the intent of the family to be a family.

This case also makes a distinction between stepparent and second parent adoptions. It is unpleasant to think that a parent who is there in the whole process of assisted reproduction and pregnancy or surrogacy and there in the child’s life is a “stepparent”, but if that is the hook that prevents a state like Alabama from invalidating a parent-child relationship, then so be it.

The Ugly Side of People

There are an unfortunate number of family law cases where one parent goes to great lengths to prevent the other parent from having access to the child(ren). Unfortunately the LGBTQ community is no exception. Even more unfortunate is that in the LGBTQ community biological parents also use homophobia or transphobia to assist in their battle to exclude the other parent. Chiefly the bioparent who now says they aren’t LGBTQ and doesn’t want their child to be around someone who is LGBTQ. (Side note in this case it isn’t clear that biomom made any statements that she was no longer LGBTQ, but given the public policy argument reference in the decision, it seems likely that is the case.)

This case will go down in my memory of one of the worst offenders along with Miller v. Jenkins (a 2006 case with proceedings in Vermont and Virginia where the bio mom used the court system to try and take her child a way from the other parent and when that failed she kdnapped the child and took the child to Central America), and In re L.B. (a 2005 case in Washington that created our de facto parentage doctrine – where a lesbian couple used a known sperm donor and when the couple split biomom married the sperm donor and tried to claim they were an in tact parent and nonbiomom should not be able to have residential time with the child).

This decision would not even exist but for a parent who was in a 16 year relationship with their co-parent trying to stop all legally-required contact with their three kids. While I believe the court should not have decided the case in the way it decided the case. I also believe that biomom should not have made these legal arguments. The trauma and damage that occurs in the lives of these children as a result of this huge legal battle to deny them one of the parents they’ve known their entire lives is tragic and completely unnecessary. This couple went to great lengths and expense to make sure that they were both parents of their children and now one parent is trying to undo all of that at great cost (monetary and emotional) to the whole family.

Obergefell -Same-Sex Marriage Equality Arrives- Short Discussion of Impact

There is so much to say about the Obergefell case. The beauty of Kennedy’s opinion is recognized by many who loved to hear his recognition of the discrimination of same-sex couples and the evolution from outlaws to outcasts, to now being able to participate fully in the institution of marriage.

The legal beauty of the decision requires some bright legal minds who are aware of what is happening in the federal courts of appeals. Kennedy’s opinion mentions “fundamental liberties” approximately 27 times. Also the combination of Windsor and Obergefell make it clear laws regarding at least lesbians and gays (and possibly bisexuals and trans* people) will not be presumed to be valid. This means that despite not discussing the level of scrutiny, it is clear that a heightened level of scrutiny must be applied and this is consistent with how the federal courts of appeal are handling cases.

The dissents are shamefully political and not based in solid legal theory. They set a new low on judicial writing, with Scalia writing “huh” in his opinion. They sound like toddlers throwing a tantrum in a sandbox (or a pundit without any valid credentials getting ready to speak on Fox news).

One of the most offensive aspects of the dissent is Roberts’ comparison to Dred Scott. Justice Roberts’ opinion states that ending the prohibition of marriage to same-sex couples in the states where it remained outlawed is as offensive as a decision stating that enslaved people are property.  It made this comparison in part because Justice Kennedy relied on a legal theory of Substantive Due Process and his sky is falling claim about the impact of the majority of a Supreme Court making decisions.

The dissent forgets that a core principal of constitutional protections is that discrete and insular minorities must be protected against the legislative power of the majority to infringe upon their rights.

Instead the dissent seems to have a focused solely on the post-decision politics of this decision and creating sound-bites and a road map for ways to continue to discriminate against LGBTQ people. I am intentionally not saying same-sex marriages and LGBTQ people, because I think it’s important to be clear that people who cite a religious objection to same-sex marriage have no basis to protesting same-sex marriage in their faith, there is no question that same-sex marriage is not in the bible, the questionable issue is whether the bible says anything about people who engage in same-sex sexual relations. Thus, the question would be whether a business or other entity can discriminate against LGBTQ individuals, which is perfectly legal in many states for business transactions, employment, and housing.

Obergefell Only Ended Marriage Discrimination 

This point on the dissent brings up a couple of things that should be clarified regarding the overall impact of Obergefell.

Marriage Equality does not Equal Parentage Equality

Biology creates a unique issue for many queer couples (note: I am using queer here because the issues are not simply unique to same-sex couples and may apply to couples where one or more partners is trans*). Many state laws recognize that married couples may use a alternative reproduction methods to have children and that when these methods are used the children born are the legal children of both people in the marriage. States very on their laws, even if they adopted a Uniform Parentage Act, the state may not have adopted it in its entirety. Many states do not have a statutory presumptions. This is why the advice of the experts is that same-sex couples should still do a second-parent adoption. 

Adoptions are a known regardless of where a couple may move or if the biological parent relocates with the intention of excluding the intended parent from the life of the child, an adoption will be recognized and enforced throughout the U.S.

California has recently passed a confirmatory adoption statute, which as I understand it, basically allows a presumed parent to easily be adjudicated as a legal parent. It also reduces the obstacles and costs of adoption to parents by eliminating the need to do a home study.

Concerns about Legal Protections for LGBTQ Parents  

Mississippi prohibits adoption of same-sex couples and a lawsuit has recently been filed to challenge this adoption ban. Some states do not have laws that allow for second parent adoption.

Parents that don’t do a second parent adoption may run into obstacles at divorce, especially if there is a biological or adoptive parent that does not want the parent without legal protections to have a relationship wit the child. In Washington, we have a statute that has protections based on the presumption of a child born of marriage being a legal child of both parents, we also have a holding out provision that is similar to the de facto parentage doctrine, both of which allow for a person who was an intended parent by both parents to be determined to be a legal parent. If a couple divorces in Washington, courts should recognize the right of both parents to be in the child’s life and not have their sexual orientation or gender identity held against them. That being said, recently a court in Washington denied a parent’s access to her children based on her sexual orientation (she was in a heterosexual marriage and came-out as a lesbian). That decision is being fought and that judge or commissioner should be sanctioned for acting in a discriminatory manner.

The moral of the story is that Marriage Equality does not equal Parentage Equality. LGBTQ parents still need to think about the protections available for both parents and use the family planning/protection tools to protect the child(ren)’s relationship with the intended parents.

 

Most States Do Not Have Laws Banning Discrimination Based on LGBTQ status

For many people in the U.S., they could get married on a Saturday and fired on Monday because there are not protections against discrimination in employment. There are also not protections in every state in housing or public services.

In Washington state we have those protections, but recently Arlene Flowers tried to challenge that and say that should be allowed to refuse to provide flowers for a same-sex couple who were getting married. This is a prime example of the poor logic involved because the florist provided flowers for this couple for holidays, birthdays, etc., so they were providing flowers that nurtured a same-sex relationship and a relationship outside of marriage, but suddenly when the couple wanted to get married they wanted to say that their religious beliefs would be violated for providing flowers for this event (it’s unclear if in the future they would have refused to provide flowers for anniversaries given that they had previously sold flowers for anniversaries).

The court rejected the florist’s claim. In Washington we have a nondiscrimination law (passed in 2006, only one year before our first domestic partnership law). This means that to do business in Washington a business must agree not to discriminate against the classes protected in the nondiscrimination law. Thus, the florist couldn’t discriminate. The ultra-conservative sky-is-falling crowd claim that religious institutions are threatened by marriage equality and priests, orthodox rabbis, etc. are going to be required to perform marriages. This is no more true than claiming that the state could require that they allow women to be allowed in religious leadership positions. Religions are allowed to continue to be as discriminatory as they want when they are engaging in religious activities.

 

 

Family Law Unpublished Decisions from Division 2 -June 16, 2015

In follow-up to yesterday’s post about Division I unpublished family law cases, here are some updates from Division 2 that came down today.

 

In Re The Marriage Of Carrasco, Docket No. 45767-9; Opinion Author Worswick; Concurring: Johanson and Melnick; Attorney for Apellant/Cross-Respondent Josephine C Townsend; Attorneys for Respondent/Cross-Appellant Carolyn Marie Drew and Patricia S. Novotny

Basics of decision: Husband appealed the trial court’s decision regarding maintenance (a/k/a spousal support/alimony) and division of property. He argued that the trial court failed to impute income to his ex-wife for purposes of calculating spousal maintenacne and child support, the decision to award “supplemental” maintenance; securing payments via life insurance policy, ordering Husband to pay all expenses for his adult daughter’s eating disorder treatment, and using the trial date to calculate Wife’s share of the Husband’s retirement account. The court rejected Husband’s claims, affirmed the trial court’s decision, and granted Wife Attorney’s fees.

Basic Facts: 19 year marriage, married while Husband was in school, by the time of divorce, Husband was employed earning roughly $16,210 in gross monthly income. Shortly after marriage, Wife quit her job to raise the couple’s first of three children. From 1994 to 2012 the couple lived off of Husband’s student loans, grants, stipends, and financial aid. Couple acquired few assets. Owned one home in Vancouver, Washington.

Court provided for spousal maintenance of $5,500 per month for a total of nine years, a five year base, plus an additional four years to allow Wife the time to Wife to seek higher education. Husband ordered to have life insurance in Wife’s name equivalent to amounts owed for maintenance. Property divided as follows: Half of Husband’s retirement account to each spouse as separate property; house to Husband with half of the equity to Tarantino. (Parenting plan and child support also entered, but do not appear to be in dispute, except for the imputation of income issue).

Husband had also stipulated in trial that he was going to pay for their adult daughters treatments connected to her eating disorder and then sought not to pay it.

On interesting point of the appeal is that Husband sought to assign error to findings of fact, but did not argue the findings lacked substantial evidence so they are considered verities on appeal.

Division II rejected the claim that income needs to be imputed for maintenance, noting that the only limitation on the amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just. Husband failed to carry his burden of showing that the trial court abused its discretion by ordering an unjust maintenance award.

Division II rejected the argument that, for child support purposes, Wife should have been found to be voluntarily unemployed and her income should have been imputed to minimum wage. The trial court made findings that Wife had attempted to rejoin the workforce, that she was volunteering to gain experience, and that she was attempting to learn a new skill (medical billing). Division II said this provided tenable grounds for the trial court’s ruling that Wife was not intentionally unemployed. Thus, the trial court did not err by not imputing income to Wife for purposes of calculating child support.

The trial court awarded Wife maintenance for nine years, compensating wife for the unrealized benefits of Husband’s education. Husband argued that there was no proof that Wife supported him through medical school, so she should not be compensated and that maintenance should be limited to the number or years Wife needs to get an education. Division II rejected this argument noting that where there are unrealized education benefits a trial court must consider four factors (1) the amount of community funds expended for educational costs, the income the community would have earned had the student spouse worked rather than gone to school, (3) the nonstudent spouse’s lost educational or career opportunities given up due to the student spouse’s education, and (4) each spouse’s future earnings prospects. The court noted that the law does not require reimbursement for past separate expenditures but to reimburse the supporting spouse for expected future benefits from the educated spouse’s increased earning potential that had not yet come to fruition at dissolution. Division II also reiterated that there is no rigid formula for awarding maintenance.

Division II also rejected the argument that the trial court abused its discretion in requiring Husband to maintain a life insurance policy to cover maintenance payments to Wife. Husband’s arguments were (1) if he died and wife got a lump sum, she could invest it the money and the resulting interest would create a windfall, and (2) wife wouldn’t owe taxes on life insurance policy but she owes taxes on her monthly spousal maintenance payments, creating a windfall due related to the lack of taxation. The court rejected this stating that there is no requirement that a property division be mathematically precise – it must be just and equitable. Husband failed to show the trial court manifestly abused its discretion or created an unjust and inequitable result.

Division II rejected Husband’s argument that he intended a cap of approximately $20,000 on his daughter’s medical treatment. Division II noted the stipulation was made on the record in open court and that a stipulation made in open court is a binding contract. The trial court found that the parties agreed to Husband paying all expenses related to daughter’s eating disorder. The transcript clearly says “all treatment” without a cap. Division II also notes that Husband’s argument against the agreement is that Wife may some day seek to enforce the agreement in an absurd manner and the court says this claim is not ripe because there is no allegation that she is currently seeking to enforce it in an absurd manner. In the future, the context rule of contracts will permit a court to interpret the stipulation in a reasonable manner consistent with Husbands intent.

Division II rejected the argument that Wife had no right to retirement benefits after the separation – noting again that the court may divide up all property, community or separate, as shall appear just and equitable. The court noted that the characterization of property as community or separate does not control its distribution and a court must consider all relevant factors and has the discretion to dispose of separate and community property so long as it is just and equitable. Husband failed to prove that the trial court manifestly abused its discretion by using the trial date instead of separation date and notes that Husband did not argue that the award was not just or equitable.

Wife filed an affidavit of financial need at least 10 days before oral argument and finding that Wife had a financial need, the court granted her attorney fees on appeal in amount to be determined by the court’s commissioner.

In the Marriage of Allen, Docket No. 31619-0; Opinion Author: Fearing; Concurrence: Brown and Siddoway; Attorney for Appellant: Jeffrey Ray Allen   (Appearing Pro Se); Attorney for Respondent: Catherine Marie Allen   (Appearing Pro Se) and Kacie L Maggard, Yakima County Prosecutor’s Office

Father appealed an order increasing his child support obligation based upon (1) Commissioner should have recused himself because the commissioner previously represented Jeffrey against his former wife; (2) Court erred in denying request for change of venue; and (3) Court denied Father due process when another commissioner changed his child support obligation because he never received information about Mother’s finances. All of the Father’s arguments were rejected and the order modifying Father’s child support order were affirmed.

The Mother was receiving public benefits and the State of Washington moved in Grant County Superior Court, where the order was originally entered for an increase to the Father’s obligation. After divorce, Mother moved to Everett, Snohomish County, and father moved to Tacoma, Pierce County. Father moved to change venue to Snohomish County. Wife requested it remain in Grant County alleging the father was seeking to avoid modification.

The Court ordered a change of venue unless the State objected and the state objected to a change of venue on the ground that transferring venue would delay the motion to increase child support. The Motion to change venue was denied and the hearing was rescheduled. Father sought reconsideration, but mislabeled his motion for reconsideration causing confusion. At this time Father aslo argued the Commissioner should have recused himself since he used to be Father’s attorney. Father’s request for reconsideration was rejected as untimely.

Division III noted that Father’s brief contained no citation to the record and egregiously violated RAP 10.3 and 10.4 and thus, Father’s assigned errors are treated without merit. Division III noted that since Father did not raise the issue of disqualification until after the commissioner denied Father’s motion to change venue and so the issue was waived for assignment of error.

Division III noted that RCW 26.09.280 allows for a child support modification to proceed in the court in which the final order, judgement, or decree was entered, and so it was proper to be filed in Grant County. The Commissioner’s reliance upon the objection of the state and to avoid further delay modifying child support order was a validly articulated reason for the decision not to change venue and thus did not abuse discretion.

Father also made the claim that the state had the responsibility to provide proof of personal service or certificate of mailing. Division III said the Civil Rules allow for proof to be provided by a declaration of service and so Due Process was not denied to Father.

Attorney Fees – a portion of an opening brief must be devoted to fees or expenses under RAP 18.1(b). Argument and citation to authority are required under the rule to advise the court of the appropriate grounds for an award of attorney fees as costs. Both parties failed to devote a section of their briefs to their requests for attorney’s fees, therefor both requests were denied, plus they were pro se so likely incurred no fees.

 

Family Law Unpublished Decisions from Division 1 -June 15, 2015

There have not been many published family law cases of late. I thought since there were a couple of unpublished decisions, I would mention them, even though they do not seem to offer much in terms of legal interpretations, but sometimes it’s interesting to see what’s happening in other family law cases.

In Re Marriage Of: Halligan,, App., Docket No. 71391-4; Opinion Author: Linda Lau; Concurring; Dwyer and Shindler; Counsel for Appellant John Halligan (Pro Se); Counsel for Respondent Micheal Schein

Brief Facts: Couple married 9/1995 and separated 6/2012. One child born in 2011. Husband gross income ~$13,000; W gross income ~$3,200. Total assets about $564k distributed 60% to Wife and 40% to Husband. For a seventeen year marriage, wife was awarded five years of maintenance at $3,500. There was also a child support award amount, but the amount was unclear (at one point it looked as if the $3,500 may have been maintenance and child support, but I think it was on top of the $3,500 in maintenance).

Issue 1: Retirement Benefits: The parties used Steven Kessler, whom the court described as “an experienced certified public accountant” to calculate the value of their retirement plans. Husband did not challenge the valuation of one of the retirement pensions during the expert’s testimony, but did on his direct testimony. The admission of the report without objection and the lack of questioning the expert on this point were significant factors and the court felt his opinion was largely unchallenged factored heavily into the court’s decisions as there was nothing in the record to indicate that the trial court’s decision to rely on Kessler’s opinion was unreasonable or an abuse of discretion.

Issue 2: Attorney’s Fees: Husband also challenge the award of attorney’s fees to Wife at the trial level. When a party seeks to challenge the attorney’s fees, they must establish that “the court used its discretion in an untenable or manifestly unreasonable manner.” Wife had incurred attorneys fees of $60,621 and the court awarded $18,000 in attorney’s fees. Division 1 declined to overturn the court’s award of attorney’s fees.

Issue 3: Exclusion of Expert Witness: Husband attempted to provide the testimony and report of Neil Bennett, a vocation counselor. He did not disclose it in a timely manner and the court sanctioned Husband by excluding the witness. Here Division I notes that in Husband’s appeal he made factual assertions not supported by the record in violation of RAP 10.3(a)(6). Division I noted that when a trial court imposes a severe sanction, such as witness exclusion, the record must clearly demonstrate that the court considered (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether a lesser sanction would probably suffice. Division I noted that the trial court considered all three factors on the record and there is no evidence of abuse of discretion in the exclusion of the testimony.

An notes is that the trial court rejected the claim that a continuance automatically extended all discovery deadlines without entry of a new case scheduling order or the court’s approval.

Issue 4: Post-Separation Payments to Fidelity 401(k): The post-separation payments to the 401(k) were connected to a loan from the 401(k) to buy the property. The trial court noted this and found no need to provide credit for payment to a debt assigned under temporary orders. Division I found no abuse of discretion and also noted that mischaracterization of property is not grounds for setting aside the trial court’s property distribution if the division of the property is fair and equitable and that this post-separation payment was not crucial to the court’s decision.

Issue 5: Federal Tax Exemption: Husband made an argument that there was a scrivener’s error in allocating the tax exemption to the Wife instead of alternating, but the record indicates that the tax exemptions were awarded in connection with the amount of child support payments.

issue 6: Verification of Work-Related Daycare Expenses: Husband wanted some sort of proof for work-related daycare expenses, but he failed to provide any meaningful legal argument or citation to relevant authority and the court declined to consider his argument.

Attorney’s Fees on Appeal: Despite an overall tone of the opinion that sounded like there were at least some points the court thought were without merit, the court did not award attorney’s fees on appeal.

 

In Re The Marriage Of: Robin Maelee Hitz, Res. And Eric James Hitz, App.; Docket No. 71413-9; Opinion Author: Spearman, Concurring: Applewick & Dwyer; Counsel for Appellant: T Reinhard G ‘ron’ Wolff;  Counsel for Respondent: Robin Maelee Hitz   (Appearing Pro Se). 

Husband appeals, claiming that the trial court “lost jurisdiction” (Division I’s quote) ove the case. Division I notes Husband misrepresents relevant facts and that no authority supports is claim that the dissolution became a new proceeding for purposes of the statutory entitlement to a change of a judge when the bankruptcy court lifted a stay and allowed the dissolution to proceed.

Brief Facts: Husband and Wife owned a business together. The judge disclosed a relationship owned by his family and the bank and the parties waived any potential conflict. There was a nine-day trial. The decree assigned Wife the responsibility of liquidating the community assets as paying debts owed. Husband didn’t cooperate and his parents filed a lawsuit against the parties in 2012 claiming an unsecured promissory note (the judge disqualified itself from this case, but noted he thought it had been unnecessary). In April 2012, funds were ordered to be divided between the bank, the parents pursuant to their lawsuit and the parties. Husband filed motions for recusal without noting his motions for hearing. At some point Husband also filed for bankruptcy. After a stay lifted pursuant to the bankruptcy filing, the court denied the motion for recusal, awarded Wife $18,000 in attorney fees and entered a restraining order against Husband. The court also denied Husband’s motion for reconsideration an imposed sanctions against Husband of $5,000 under CR 11.

Division I Discussion: Division I notes that appellant’s brief must contain an argument with legal authority and references to the relevant part of the orders and that Husband’s legal arguments are based on assertions of fact largely unsupported by any reference to the records and that some citations are inaccurate or contradicted by the record.

Recusal – Division I notes that Husband’s argument is factually incorrect as the judge recused himself in a different case and expressly declined to recuse himself in this case. The affidavit of prejudice was also untimely and Husband’s argument that the bankruptcy court granting relief from the automatic stay did not somehow create a new action. It was not a modification, but a continuation of the original issue.

Attorney’s Fees – Husband’s request for attorney’s fees was denied. The court did find that appeal was frivolous, but did not impose additional sanctions. The court did award attorney’s fees for wife.

 

Nathan Brown, Iii, Appellant V. Mi K. Brown, Respondent, Docket No. 71398-1, Opinion Author: Dwyer; Concurring: Spearmand and Appelwick; Attorney for Appellant: Nathan Brown III   (Appearing Pro Se); Attorney for Respondent: Joseph Orry-leroy Baker  

Father’s petition for a parenting plan modification was dismissed and sanctions were imposed for his failure to comply with the court’s scheduling order. Court affirmed and found his appeal frivolous and awarded fees to Mother.

Basic Facts: Original parenting plan provided three sons reside a majority of time with Mother. Father sought to modify. A superior court commissioner entered orders finding adequate cause for a trial and appointed a GAL. After the GAL filed her report Father filed a motion for a temporary order adopting his proposed parenting plan and “several provisions of the GAL report” and terminating child support based on the age of the oldest child and requesting a change of residence for the other two children. The commissioner denied the request for change in the residential schedule pending trial and stated that no child support adjustment was properly before the court. Over the next couple of months Father did not file pleadings required by the case schedule or the pretrial conference order, including no witness or exhibit list, no financial declaration, and no trial brief. Mother filed a motion to dismiss the petition with prejudice and terms based on Father’s file to comply with the case schedule. The court found there was “absolute noncompliance” with court orders and nothing would suggest mitigating circumstances and awarded terms in the amount of 75% of Mother’s attorney fees.

Division I Discussion: While dismissal is disfavored it is justified when a party willfully and deliberately disregards reasonable court orders, resulting in prejudice to the other party, and impairing the efficient administration of justice under CR 41(b). Disregard of a court order without reasonable excuse or justification is deemed willful.

Division I rejects the following claims by Father:

1 – Commissioner’s temporary order resolved issues making trial unnecessary (new issue on appeal). The temporary order was only temporary pending trial – argument rejected.

2 – The “or” was disjunctive and therefore terms and sanctions should not have been awarded. Plain language is clear that this is not what the statute intends- argument rejected.

3- The trial court erred in placing the sanctions on Father instead of Father’s attorney. Statute is clear sanctions can be on individual or attorney – argument rejected.

4- Mother was not prejudiced and that Mother failed to sufficiently mitigate her prejudice. Mother’s attorney had to prepare and also attempted to follow-up with Father’s attorney to make sure deadlines were met – argument rejected.

5- Father was not sufficiently warned about sanctions (new issues on appeal). Terms are clear under KCLCR 4(g)(4), plus Mother’s attorney had numerous calls, e-mails and letters to Father’s counsel regarding failure to comply with case schedule – argument rejected.

Division I granted Mother’s request for fees on appeal. The court stated that Father’s appeal presented no debatable issues and mother entitled to an award of fees and costs on appeal.

Lundy v. Lundy – ERISA and Divorce

 

When couples divorce, sometimes it can be challenging to figure out how to divide up assets, especially when valuing the assets is complicated or there are a variety of state or federal laws impacting the ability to divide the assets.

Assets can include stocks, real property (houses), bank accounts, and retirement. Some of these items are easier than others to divide up, like a bank account. In a bank account, money is money and there are no rules about accessing money.

Retirement and pensions are a different matter. For some couples, retirement or pension may be one of their only assets. There are often rules about how and when retirement funds can be transferred. It is not unusual for couples who have enough assets to try to divide their other property in a manner that allows the spouse with the retirement to keep the retirement account.

A recent Division 1 case discussed a case where the parties may have attempted to waive the Wife’s retirement interest in Husband’s account: Craig S. Lundy, Resp. vs. Kelly Lundy, App., Docket No. 71900-9 -I, File Date: June 1, 2015; Opinion Appelwick, Counsel for Appellant: J. Bruce Smith and Phillip James Buri; Counsel for Respondent: Perry William McConnell 

This case involved a couple that was married in 1984 and divorced in 2009. They both worked and had retirement accounts. Their divorce decree awarded “all retirement funds and 401Ks in [his/her] name.” The couple did not have children.

About four years later Husband died without a will and without any children. At the time of Husband’s death, his retirement account was valued at about half a million dollars. Husband worked at Boeing and his retirement account controlled by ERISA, a federal scheme for regulating employee benefit plans. Wife was listed as the beneficiary of the account.

Husband’s estate (managed by a sibling) petitioned to get the retirement funds from Wife, relying on RCW 11.07.010(2)(a), which provides that the designation of a spouse as beneficiary of a nonprobate asset is automatically revoked upon dissolution of marriage. Wife argued that the statute was preempted by ERISA, meaning the law didn’t not apply to his retirement because federal law supersedes state law.

The question here is whether Wife was able to retain funds, not whether the plan properly provided the funds to Wife.

Division 1 cited a 2001 U.S. Supreme Court case, Egelhoff v. Egelhoff, 532 U.S. 141, (2001) that the statute is preempted “to the extent it applies to ERISA plans.” The Court said that after Egelhoff, there is no doubt that RCW 11.07.010 is inapplicable to ERISA benefits. Division 1 also discussed a recent Supreme Court case which discussed ownership of similar benefits after distribution, Hillman v. Maretta, U.S. , 133 S. Ct. 1943, 1952, 186 L. Ed. 2d 43 (2013), noting that this case is not on point, but it suggests the same outcome would be appropriate in this situation.

Division 1 discussed other U.S. Supreme Court ERISA cases: Boggs v. Boggs, 520 U.S. 833, 835-36, 841, 117 S. Ct. 1754, 138 L. Ed. 2d 45 (1997) and Kennedy v. Plan Administrator for Dupont Savings and Investment, 555 U.S. 285, 129 S. Ct. 865, 172 L. Ed. 2d 662 (2009), both basically holding that what the ERISA type plan says regarding distribution applies to the plan administrator and post-distribution to whomever received the benefits.

Division 1 also discussed Ninth Circuit Cases, Carmona v. Carmona. 603 F.3d 1041,1062 (2008) and a pre-Egelhoff case, Emard v. Hughes Aircraft. Inc.. 153 F.3d 949 (9th Cir. 1998). abrogated by Egelhoff. 532 U.S. 141. See 603 F.3d at 1061- 62.  The Carmona court observed, Emard was abrogated by Egelhoff. 

In the Carmona, when Husband had already retired and the plan refused to change the beneficiary, noting that beneficiary was irrevocable upon his retirement. In the couple’s divorce a Nevada court attempted to award Husband both pension plans as his separate property. Husband tried to get new wife placed as his survivor beneficiary. The Nevada court said former-wife waived her right to the plan benefits and she would be unjustly enriched if she remained the beneficiary. The court ordered the plan administrators to change the survivor beneficiary to New Wife or for Former Wife to place funds in a constructive trust with the New Wife as the beneficiary. The Ninth Circuit overturned the court’s orders, finding constructive trusts are impermissible as it was clearly an attempt to avoid ERISA and it is preempted.

The state cannot revive a preempted statute simply by applying it in a post-distribution argument. The court also says that waiver is not apparent on the face of the dissolution decree. Wife did not expressly disavow any interest in the proceeds of the account as beneficiary. “Disclaiming an ownership interest is not the same as disclaiming future rights as a beneficiary.”  

In order to waive a future interest, the ex-spouse must explicitly waive the right to receive ERISA proceeds. The court provides the following examples: See, e.g.. Kennedy. 555 U.S. at 289 (exspouse divested of “‘all right, title, interest, and claim in'” ERISA accounts); Andochick v. Bvrd. 709 F.3d 296, 297 (2013) (ex-spouse waived “any interest, including but not limited to any survivor benefits” and “‘released and relinquished any future rights as a beneficiary under”‘ ERISA plans), cert, denied. 134 S. Ct. 235, 187 L. Ed. 2d 145 (2013); Estate of Kensinger v. URL Pharma. Inc.. 674 F.3d 131, 132-33 (2012) (ex-spouse agreed to “waive, release, and relinquish any and all right, title and interest” in ERISA accounts).

In the absence of an express agreement, waiver requires “unequivocal acts or conduct evincing an intent to waive.” Wagner v. Wagner. 95 Wn.2d 94, 102, 621 P.2d 1279 (1980).

Bottom Line for Divorcing Parties: (1) Determine whether your plan is governed under ERISA, if it is, make sure to include explicit language regarding any waiver of ERISA proceeds (see language court referenced above). (2) Whenever you divorce, update your beneficiary designations, make sure that prior to divorce you investigate what it would take to update your beneficiary designations from your plan administrator and consider including a provision in the divorce decree that the other party comply with all requirements.

Side note for attorneys regarding Motions to Strike and Impose Sanctions: Motions to Strike sentences or sections out of briefs waste everyone’s time and it is a practice the court discourages.  See Footnote 6: We also deny the parties’ various motions to strike and impose sanctions. Both parties engaged in practices that we discourage. Motions to strike sentences or sections out of briefs waste everyone’s time. O’Neill v. City of Shoreline, 183 Wn. App. 15, 24, 332 P.3d 1099 (2014). The citations to unpublished cases in the briefing was in violation of our rules. GR 14.1(a): Johnson v. Allstate Ins. Co.. 126 Wn. App. 510, 519, 108 P.3d 1273 (2005). However, we do not welcome motions from the parties seeking sanctions for doing so. This court is aware of its authority to award sanctions and can determine on its own when to do so. See RAP 18.9(a) (“The appellate court on its own initiative . . . may order a party or counsel [who] fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court.”

 

Supreme Court’s Oral Arguments on Marriage

On April 28, 2015, the United States Supreme Court heard the marriage cases. There are essentially two cases being heard on marriage equality: (1) Should same-sex couples be able to be married in any state (i.e., no state can prohibit marriages of same-sex couples). There are basically two legal arguments for this, one is based on the Equal Protection Clause and one is the marriage is a fundamental right argument. (2) The second question before the court is, if the court says that states can discriminate against same-sex couples in their marriage laws, can those states refuse to recognize marriages performed in other states.

There are arguably three outcomes that could happen from this case (1) same-sex couples will be allowed get married in every state in the U.S. (2) same-sex couples will be able to get married in a state that recognizes same-sex marriage and when they travel to another state, that state must recognize their marriage (i.e., that state cannot effectively deny the existence of their marriage); or (3) the court comes down and says that marriage is meant to be an institution between opposite-sex couples, and while states may amend their laws and extend marriage to same-sex couples, because of the historic definition of marriage no other state has to recognize that marriage.

This third outcome would be a bit of a nightmare decision. In the time since the Windsor decision there have been a number of states and federal circuits who have interpreted the U.S. Constitution as requiring marriage equality. I have not been able to find anything that addresses what happens in these states if the third outcome occurs. Do all the marriages that occurred disappear? Do we wend up with a national version of California’s Proposition 8 where all of these people will stay married but no one else can get married? Or in jurisdictions where the decisions were not appealed, will marriage equality remain the law of the land? I suspect if the court goes the third way Lambda Legal, the National Center for Lesbian Rights, and the ACLU will have answers for us.

The positions against marriage equality are the same as they have always been. A state has an interest in supporting opposite-sex relationships for the purpose of procreation and of course, the argument that marriage has always been between opposite sex couples, and therefore it should always stay an institution between opposite sex couples.

I didn’t read the written briefing on this case, so my discussion is limited to oral arguments. One of the points I wish would have been made more clear was that civil marriage as it exists today is different from anything that existed a millennial ago. The female justices tried to get at this point, in a tribute to the importance of diversity, pointing out that women used to not be equal before the law and were not separate individuals but morphed into their husbands, but that has changed:

 JUSTICE GINSBURG:  But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago.  I mean, it wasn’t possible. Same­-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship.  Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.  And same­sex unions wouldn’t ­­ wouldn’t fit into what marriage was once.

To be fair, it is not only women or the “liberal wing of the court” that discussed the history of discrimination against women in marriage. Justice Roberts discussed the practice where a woman’s legal rights and obligations disappeared/were subsumed by those of her husband.

 CHIEF JUSTICE ROBERTS:  Coverture was not ­­ coverture was not a universal aspect of marriage around ­­ around the world.  And there again, if you look at the basic definition, it is between a man and a woman.  It does not always say between a man and a woman in which the woman is subordinate in legal respects.

Although I don’t think that Roberts’ point was to say that we used to have this unfair and presently unconstitutional practice where a woman had no legal identity separate from her husband to discuss how our definition of marriage has changed. Instead, I think he was trying to argue that this long-term theory of coverture was always about a man and a woman and so this supports a historical definition of marriage between men and women. I don’t think it’s a stretch to say that the most hardcore opponents of marriage equality would also be proponents of bringing back coverture and ending divorce, or at least no fault divorces. That’s not me taking the argument to an extreme, here’s a little snippet of the argument from the marriage opponents that provides the echo of that belief.

 MR. BURSCH ( Special Assistant Attorney General, Lansing, Mich.; on behalf of Respondents):  Well, let me give you an example.  We’re ­­ we’re talking about something that’s  going to change the meaning of the institution over generations.  And ­­ and, you know, you have things like no-fault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn’t expect.

Or a discussion of the history of miscegenation laws:

 JUSTICE KAGAN:  Well, they were dealing then with men and women coming together, but the question was, well, there might be a black woman and a ­­and a black man or a white woman or a black woman and a white man and ­­- and there was no inquiry into whether that was a traditional form of marriage.  If there had been such an inquiry in this country, they would have come up pretty short.

Then there was this bizarre discussion of marriage in the time that Plato lived – 428 B.C. No, I’m not joking. I would hate to be the attorney trying to respond to the marriage laws of the Athens in 428 B.C., and wondering how the opposition to marriage equality can make arguments with a straight face about god and Christianity and the fear that it will impinge on Christian morality and then talk about marriage as a pre-Christian idea.

This argument that history should dictate our present particularly disturbing. Perhaps it’s because I’m a woman and history has said that being a woman means I’m not a full and equal citizen. We didn’t get universal suffrage in the U.S. until 1920. Should our vote be taken away because of history? I believe most civilizations permitted slavery until the 1700 or 1800s. Should we go back to notions of slavery just because it existed for a long time. Absolutely not. We as a society struggles to overcome an unjust and unequal past, and that past should not be able to dictate our future. But I digress…

Oral arguments on the second issue (if states are allowed to define marriage as excluding same-sex couples are they allowed to refuse to recognize same-sex marriages validly entered into in other states) provide some satisfaction for a lot of people because there is some discussion of the Full Faith and Credit Clause. I have long heard people ask why states can refuse to recognize the marriage of same-sex couples performed in other states.

Justice Scalia brought up the issue of Full Faith and Credit to try and say that no one was making a Full Faith and Credit argument. Justice Sotomayor took the argument that Full Faith and Credit wouldn’t apply to task.

Basically the argument is that Full Faith and Credit applies to judgment but not to the overall laws for a state because that would allow one state to legislate for another and that would be bad. Justice Sotomayor takes issues with the idea that a marriage certificate is somehow different from a birth certificate or a divorce decree/judgment. Because of this she essentially arguments that the Full Faith and Credit Clause should apply to the recognition of valid marriages in states that would otherwise prohibit same-sex marriages.

Unfortunately, I think there were a couple of missed opportunities in this argument. One, whether or not every state would have to recognize an adoption decree that lists a same-sex couple is a question that was not explored.

Two, asking the question of whether a state that doesn’t not recognize marriage could be required to enforce a divorce decree. For example, if a couple was married and living in Washington but had property in Tennessee. They break up and the court awards the property to the spouse whose name is not on the property, can Tennessee refuse to honor the judgment because its based on a marriage that they don’t recognize or because it is a judgment are they required to enforce it?

What about parenting plans? Does the answer change if the child is presumed to be the parent of both parents (i.e. born during the marriage and therefor presumed to be the legal child of both parents – I believe this is universally true that if a married couple has a child through assisted reproduction the non-biological parent is presumed to be the legal parent by virtue of the marriage)? What about if the child was adopted by both parents?

As per usual, there was a lot of discussion that demonstrates the animus against same-sex couples. There were comparisons to child marriage and whether or not states can still have protections for children if another state says anytime after puberty marriage is allowed. There were also the kissing cousin analogies. My biggest problem with these arguments, is that typically when a couple enters into a marriage not allowed by another state, the marriage can be voidable. It’s not that you walk into another state and your marriage immediately dissolves or is deemed void. It’s that you can go to court and say I don’t want to be married to this person any more and by the way it isn’t/wasn’t a legal marriage. But there are even prohibitions against using this argument. For example, if an underage couple gets married and then try to claim in their 40s that there marriage was invalid, that argument won’t fly, basically because by not doing something about it earlier they affirmed their marriage.

Then there are the plural marriage arguments. The idea that if you alter the sex discrimination in our current statute, you open the door to plural marriage. The argument is if you allow same-sex couples to marry, what right would states have to limit marriage to two people. I think Petitioners did a solid job identifying the tangle that would exist in the rights and protections the states allow for two people versus more than two people.

Let me be clear, I believe that adults should be able to make arrangements in a variety of ways, including having consensual polyamorous relationships. But I think the proper way to do that is through contracts, not altering the marriage statute, in part because the rights conveyed through marriage are so linked to two people. If you have two spouses, which one would be the default for medical decisions, how do you divide up property? I don’t think our current structure can be adopted to the model of plural relationships.

I guess we can be grateful that there was not bestiality comparison.

Nevertheless, I find the claim that marriage laws, when first passed, were not intentionally discriminatory to be disingenuous. First, marriage laws when first passed in the U.S. were about the ownership of women. They were absolutely discriminatory. Second, until about 12 or 13 years ago, it was legal to throw people in jail in many states for engaging in same-sex consensual sex acts. That was back when we had a conduct versus identity argument. The idea that it was okay to be gay, you could just never act on it. Homosexuality wasn’t illegal just homosexual sex. When we have such a history of animus towards same-sex couples it’s hard to see how the laws could have been anything other than intentionally discriminatory. Perhaps it didn’t really occur to lawmakers that same-sex couples would ever want to get married since they could never consecrate their marriages without facing criminal penalties.

I also found the argument made by Justice Scalia that if there is a constitutional protection afforded to same-sex marriage that clergy would be required to perform same-sex marriages to be a specious and purely political argument, with no basis in constitutional law. His argument was essentially that because the state allow clergy to perform legal marriages, they would be required to perform same-sex marriages. Justice Kagan sought to clarify this, pointing out that rabbis can refuse to perform interfaith marriages and the state has never intervened despite constitutional protections against religious discrimination. To take it a step further than Kagan, we have never required any church to allow women in their highest positions because of the separation of church and state, even though that kind of sex based discrimination is considered an unconstitutional violation of equal protection laws and in violation of our civil rights laws.

All of the commentary following oral arguments is that we simply do not know how the court will decide. I think that the Republican party is hoping that the court will decide for marriage equality. It eliminates it from a campaign issue in a way that hurts them. They can get on their soapbox about judicial activism or try and argue that businesses should be able to discriminate, but they won’t have to come out with a position on marriage equality and defend a position of exclusion that has fallen out of favor with most Americans.

There was also an excellent discussion on Slate’s Amicus: The Politics of Law and if I remember correctly, some commentators believe that if this would be a 5-4 decision, Roberts may make it a 6-3 decision in order to write the opinion. That Roberts may be tired of this being considered the Kennedy court (as Kennedy is typically the swing vote) and may want to have an opportunity for a legacy as the Roberts court.

In the meantime, as a married lesbian and an attorney who works in the LGBTQ community, specifically in the area of family law, I will hope for marriage equality throughout the land. No state should have the right to take away my marriage just because they don’t like me being gay. It is also contrary to state interest in protecting families to create obstacles to family formation and family dissolution that the current hodgepodge of laws creates.

Characterizing Family Operated Businesses in a Dissolution

Family operated business can make the dissolution of a marriage more complicated. A recent published Division III case discusses characterizing the farm ground and equipment of a family farm where Husband worked the farm that the Father-in-Law tried to create as separate property for wife. Division III of Court of Appeals determined that the trial court erred in failing to recognize the community interest in the farming operations and assets and sent the case back to the trial court for a determination of whether the distribution would have been the same if the property was properly characterized.

The court’s ruling affirms a piece of advice from a KCBA Family Law Meeting presentation by Shelby Lemmel on April 3, 2015. Whenever possible, have a trial court clarify if it would have distributed property in the same manner regardless of the character of the property. It’s also good advice for judges who don’t want any part of their decisions remanded. If the court would have distributed the property in the same manner whether it was characterized as separate or community, and the court order stated this, the parties would not have to go back to trial.

In re the Marriage of: Jeannie Kile & Gordon B. Kendall, Docket No. 31523-1-III, File Date: 04/09/2015; Opinion: Siddoway; Counsel for Appellant Craig Mason; Counsel for Respondent Martin Louis Salina

The oversimplified facts of this case are Husband and Wife were together for approximate 28 years and had two adult children together. Wife’s father had a messy divorce and he was trying to keep the farm as his daughter’s separate property.  Husband learned farming business from Wife’s father and eventually quit his day job to farm the land full-time. He was paid for his work, the testimony was that he was paid fairly, but there was no evidence in of market wages or benefits in the record. Interestingly, Husband was in charge of determining how much he was paid.

It seems that from the appellate court’s perspective, one of the places where Father may have gone wrong to actualize this intent was charging fair market value for the lease, especially since Wife did not have separate property assets to pay the lease. Instead, the community and Husband bore “burdens and risks in performing the lease obligations.” Another interesting point was that the couple hadn’t entered into any kind of agreement regarding farm lease to clarify that there intent was that it would be separate property. There was another parcel of land where Husband issued a quit claim deed and the court found that (among other things) kept it as separate property (possibly with a right of community reimbursement for payments).

After Wife filed for divorce in 2011, her father sent a notice terminating the farm lease based on dissatisfaction with Husband’s performance asking that Wife turn the farming operations over to her son. Wife’s father died in January 2012, leaving the farm ground in trust in which Wife and Son have beneficial interests.

Husband was awarded about 80% of the parties’ separate property.

Regarding the Farm Lease as a gift “gift,” the court’s analysis focused on the concept of a gift as a voluntary transfer or property without consideration and that here, since there was an exchange of consideration because there was a lease/contract. Offering a contract on market terms is not a gift.

Turning next to the question of whether it qualified for separate property under RCW 26.16.010, rents, issues, and profits of separate property, the court noted that, where a spouse has separate property, the statute recognizes his or her authority to manage it “as fully, and to the same extent or in the same manner as though he or she were unmarried.” Here the court noted that it was not separate property in existence prior to marriage, Husband used part of his retirement to help fund the operations (even if they were restored at a later time) and Wife trusted Husband to pay himself a wage based on what was good for the farm. The court found that this was a spousal enterprise and did not qualify as separate property of a spouse, instead it fell squarely in the “fundamental premise of the community property system that both spouses contribute to property acquisitions in a joint effort to promote the welfare of the relationship.”

Wife failed to overcome the presumption of the community character of the farm lease. Wife admitted that the parties never executed any joint property agreement that would change the legal character of the farm lease and its profits from community to separate property.

In the case of the equipment lease, the father had forgiven a debt of approximately $50,000 and this evidence was determined to be sufficient to rebut any presumption of a gift to the community.

There was another property that was purchased during the marriage. Not only did the undisputed evidence support the trial court’s findings that the conveyancing deeds reflected Wife’s purchase in her name as separate property, but Husband also executed a quit claim dead. The court noted that since the farm made payments and the farm was determined to be community property there may be a right of community reimbursement but it does not result in a change (“transmutation”) of the property from separate to community.

The appellate court noted that remand was required where, “it appears the trial court’s division of property was dictated by a mischaracterization of the separate or community nature of the property.” The court said it is unclear whether the court would have divided the property the same way had the assets been properly characterized, which required remand to enable the trial court to make a just and equitable division of the property considering its correct characterization.

On the issue of spousal maintenance, the trial court found that Husband’s request was vague and there was no information regarding his willingness or ability to work. The spousal support statute is permissive (a court “may” grant). RCW 26.09.090. Trial court awarded Husband $650,000, including 80 percent of the parties’ community property and the court found that Husband failed to establish any abuse of discretion for failing to award maintenance on top of this. Though the court did note that with the re-characterization of property, the trial court has the authority to revisit its decision on maintenance on remand.

Dividing property between friends/romantic relations – Unpublished decision

A recent case came down that addressed an issue of dividing property between what appears to be an unmarried couple, but could have been friends. There are not a lot of these cases that make it to the appellate level and this case provided a lot of references (case law, restatements, etc) and is useful for attorneys dealing with a similar issue.

The case, Fisse v. Garvie, No. 70603-9-1 – Opinion Author – Verellen; Concurring Judges: Leach and Dwyer;  Attorney for Appellant – Joseph Grube, Attorney for Respondent – Garvie appeared pro se. 

The court said the question here was whether a fact finder must make an all-ornothing decision on unjust enrichment liability where money has been given to another person. The court said no, “liability only attaches where the circumstances of the benefit would make it unjust to retain it.” (Citations omitted).

Fisse gave Garvie $100,000 to pay various debts. Fisse wanted the full $100,000 back, but a jury only awarded $50,000. Fisse appealed, but the court concluded that it was within the jury’s discretion to determine the extent to which Garvie was unjustly enriched. The appellate court found that substantial evidence supported the jury’s verdict and the trial court did not abuse its discretion in denying Fisse’s motion for judgment as a matter of law including prejudgment interest, additur, and a new trial.

The trial court instructed the jury on unjust enrichment and the measure of damages:

To prevail on a claim of unjust enrichment, Plaintiff Brian Fisse has the burden of establishing each of the following propositions:

 

(1) That Defendant Heather Garvie received a benefit;

 

(2) That Heather Garvie received the benefit at Brian Fisse’s expense; and (3) That the circumstances make it unjust for Heather Garvie to retain the benefit without payment to Brian Fisse.

 

 

If you find for Plaintiff Brian Fisse on the claim of unjust enrichment, then he is entitled to restitution, or the restoration of any benefit conferred on Defendant Heather Garvie.

 

 

This means that Brian Fisse is entitled to the reasonable value of the funds provided to Heather Garvie.

 

 

The jury rejected the claim that it was a loan, but did find Garvie was unjustly enriched, and ordered a $50,000 award for Fisse. Fisse argued it should have been for the full $100,000 amount, but the court of appeals found that there was evidence that Fisse received some benefit. Garvie did things like cook meals for Fisse, Fisse regularly stayed at Garvie’s house without paying rent, Fisse didn’t contribute to the household bills. It was also possibly that the jury could have concluded that the $100,000 was a gift and thus not subject to restitution.

The court of appeals also rejected Fisse’s claim that interest should have been accruing prior to the judgment, in part because the final sum of the judgment was only ascertainable post-judgment.

The court’s denial of additur and for a new was upheld. There was no abuse of discretion. The jury’s determination that only $50,000 was unjustly retained was well within the range of evidence presented and there is no evidence in the record to suggest that the jury’s damages award was so inadequate to indicate it must have been the result of passion or prejudice.

 

Family Law Unpublished Decisions – L&I settlements & converting separate and community property

The vast majority of legal cases settle, this is true in family law as well. Possibly even more important in family law cases with children, because trial is so adversarial and damaging to family relationship. But there are times in which the issues are too important for one party to settle. There are sometimes emotional factors that prevent settlement too. Of the cases that actually make it trial, far fewer are appealed. Of those that are appealed only some of them are published, meaning that they are allowed to be cited to support a theory of a case. Nevertheless, unpublished opinions provide a glimpse into issue that people struggle with and arguments that are made and either accepted or rejected by the appellate courts. These can be a useful tool for attorneys in advising their clients on the possible outcomes of a case. A quick summary of the nonpublished family law type cases in the last 14 days is below.

In re Marriage of Bierline, 71344-2-I  – Opinion- Author: Judge Spearman, concurring Judges: Trickey and Lau. Attorney for Appellant – Jason Woehler; Attorney for Respondent James Gallagher. 

Wife was granted a share of Husband’s pending L&I settlement in the dissolution decree in 2003. Husband failed to inform Wife or trial court that he reached a settlement in March 2003, about three months before the dissolution was finalized. A couple months after the dissolution was finalized, Wife noted a motion for an order enforcing the decree, clarifying and compelling payments, and entry of judgment. Right before the hearing Husband filed for bankruptcy, so Wife’s motion was stayed. Bankruptcy Court found Husband had engaged in bad faith and other deceptive practices and dismissed the bankruptcy in February 2004.

Wife  re-noted her hearing and in March 2004, the trial court ordered a specific sum. No further action was taken for more than nine years, when in October 2013, Wife made a claim, which the trial court granted. Husband filed a motion to quash the order of examination and halt further enforcement proceedings as time barred under RCW 4.16.02 and 6.17.020. Wife did not respond or appear at this hearing. Court granted the motion that it was time-barred.

When Wife appealed. The appellate court noted that Wife’s claim that the settlement date was not the date that the started the time clock could not be heard on appeal because she failed to raise it below. Nor did she seek reconsideration of the order granting the motion under CR 59 or move to vacate the order under CR 60. The court rejected her claim that she could raise the issues under RAP 2.5(a).

There were also errors in the perfecting the record on appeal (making sure the appellate court had all the files from the trial court necessary to review claims in the appeal).

The appellate court rejected the claim that CR 11 motions for sanctions should be granted. The court did grant attorney’s fees because appellant did not preserve issues for appellate review and did not merit discretion review and so they found that the appeal was frivolous and awarded reasonable attorneys fees and costs on appeals in compliance with RAP 18.1(d).

In re Marriage of Bolton and Schneider71212-8-1  –Opinion Author: Judge Cox; Concurring Judges: Schindler and Verellen. Attorney for Appellant – Kenneth Karlberg, Attorney for Respondent Michael Finesilver. 

Separate property was converted to community property and even if it weren’t husband failed to argue that the characterization impacted the overall distribution of property.

This is a case about converting separate property into community property. The court cited the standard that, in order to convert separate property to community property, the presumption of its separate character must be overcome by clear, cogent, and convincing evidenceIn re Estate of Borqhi. 167 Wn.2d 480, 484-85, 491-92, 219 P.3d 932 (2009). The appellate court agreed with the trial court that in this case the burden had been met and affirmed the trial court’s distribution of property.

Overall facts, it was a mid-length marriage – 13 years. The couple had lived in a home purchased by Husband 10 years before their marriage. They did several different projects on the home throughout their marriage and refinanced the mortgage. Husband also executed a quit claim deed that conveyed the property to both Husband and Wife and noted that the consideration of the conveyance is “to create community property.”

After concluding that the home was community property, the court found that an equal division of the assets was equitable. The court awarded the home to Husband and the three rental properties in Arizona to Wife, but the court awarded the proceeds from the post-separation sale of the Arizona vacation home to Husband.

Husband appealed claiming the trial court erred in characterizing the residential home as community property. The appellate court held that the quit claim deed and related documents show by clear, cogent, and convincing evidence Husband had converted his separate property to community property. The trial court and the appellate court rejected Husband’s claim that he did not intend to transfer the property – that he executed the deed merely to satisfy the bank’s requirement to secure the loan for the remodel. The appellate court held that he clearly executed the quite claim deed and his motive is irrelevant.

The court distinguishes this case from In re Estate of Borqhi, which was a State Supreme Court plurality decision involving a third party placing the title of real property the wife owned in both spouses name, but both spouses had passed away at the time of this case and there was no evidence in the record as to why the third party placed both names on the title. In this case, Wife’s name wasn’t simply added to the title, a quitclaim deed was executed, one thing the Borghi court explictly stated could transfer property and demonstrate intent to transfer property from separate to community.

The court also noted that more importantly to the characterization of the property that Husband did not contend or demonstrate that the trial court’s characterization of the residential home was crucial to its overall distribution of property or that the alleged mischaracterization resulted in an inequitable division of assets. Thus, even if Husband was correct regarding the legal characterization, he failed to establish an error in characterizing the property would be grounds for reversal.

Attorney’s fees on appeal denied.

Family Law – Post-Secondary Support Case

Anne Sprute (Bradley), Respondent V. Eric Bradley, Appellant, 45608-7, Division II, March 10, 2015 (Published in Part)

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Post-secondary Support:

Couple divorced in 2003 and amended their child support order in 2011 to read  reserved post-secondary support.

Holdings:

(1) Sprute was not required to file her child support worksheets with her request for postsecondary educational support in order to timely request such support;

(2) Sprute’s GI bill benefits could only be applied to reduce her own postsecondary educational obligations under 38 USC § 3319(f)(3)

(3) the trial court did not abuse its discretion by failing to cap postsecondary educational support at the amount charged by UW, and

(4) the trial court erred by using the one-child column to calculate child support for the parties’ minor child because the parties were supporting two children.

 

May 2013, Sprute filed a petition to amend child support, requesting postsecondary educational support for the oldest child.  The initial petition did not include proposed child support worksheets and the court found rejected Bradley’s claim that since the child had graduated by the time the worksheets were filed that the petition for postsecondary support was untimely.

 

Court’s Analysis

(1) Worksheets do not need to be filed to in order to preserve filing date

Statute at issue – RCW 26.09. 175 ( 1), which states that a proceeding for the modification of a child support order ” shall commence with the filing of a petition and worksheets.”

Finding- Sprute exercised her right to request postsecondary educational support by filing her petition to modify for two reasons: language in CSO was that party had to exercise a right, not commence a proceeding and filing a petition to modify exercises that right and a petition to modify without worksheets is sufficient. (2) Following In re Marriage of Pollard, 99 Wn. App. 48, 55-56 (2000), effective date is the date filed, even if worksheets not filed for a year.

 

(2) Cannot Provide a Credit for Post 9/11 GI Bill Benefits 

Overall question – is providing a credit for the GI Bill an impermissible division of benefits under 38 U.S.S § 3319(f)(3)?

The Post 9/11 GI Bill allows a recipient to transfer a certain number of months to her children and it’s not allowed to be considered an asset in marital distribution. Court distinguishes from In re Marriage of Boisn, 87 Wn. App. 912, 943 .2d 682 (1997), which held that if a third party paid, then a parent wasn’t required to reimburse the other parent. Here the court found that there was no “third party” paying for college because the GI Bill belongs to Sprute.

 

(3) No Cap for Postsecondary Education Expenses

The court noted that Bradley did not reference RCW 26.19.009(2) and the non-exhaustive factors. Instead, Bradley argues that it is not fair to make him pay for the most expensive college alternative, and that he does not have sufficient income to pay the award. The court said that the parents’ current and future resources is only one of several factors the trial court can consider.

Bradley did cite In re Marriage of Shellenberger, 80 Wn. App. 71, 906 P.2d 968 (1995) in support for the argument he cannot afford to pay the award. The court found that Bradley produced no evidence that paying the child’s postsecondary support would burden him to the point of filing for bankruptcy.

The court also rejects Bradley’s argument that postsecondary educational support generally must be limited to the cost of public school based on Shellenberger and In re Marriage of Sterns, 57 Wn. App. 707, 789 P.2d 807 (1990).  In this case, the court found that the trial court made specific findings justifying Joshua’s selection of an out-of-state school, that the parties had a history of sending their children to private schools.

(4) Must use the column for support based on the total number of children receiving support. 

The court held that post-secondary support is support and so the support for the minor child should be reduced by using the column for the number of children for whom support is owed, in this case two children. The Court cites In re Marriage of Daubert, 124 Wn. App. 483, 502-03, 99 P. 3d 401 (2004) and In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2103).

 

The rest of the opinion was unpublished, but they are interesting issues, so I include a summary of those issues as well.

  1. Discovery Issues – There was a concern about the completeness of the discovery by Sprute. The court found no discovery abuse, but did order certain additional answers and documents. The standard on review is abuse of discretion, decision is based on untenable grounds. In this case the documents provided could answer the questions for which Bradley said he needed additional documents. There was also a question of whether the documents requested could lead to the discovery of admissible evidence regarding Sprute’s net income.

 

  1. 45 Percent Cap on Child Support. RCW 26.19.065(1) provides that child support should be capped at 45% of a parent’s income. Bradley attempted to raise this issue on appeal, but he did not bring and the court declined to address this argument on appeal.

 

  1. Attorney Fees. Court declines both parties’ requests for attorney’s fees. Sprute because RAP 18.1 does not provide an independent basis for the award of fees. Bradley failed to request attorney’s fees in his opening brief, as required by RAP 18.1(b).

 

That concludes the summary of the case. There are several issues at play in this case that would make for an interesting appeal to the State Supreme Court. The issue of post-secondary support is a particularly challenging issue. The cost of a college education has sky-rocketed. With that, the amount that parties end up paying for post-secondary can surpass how much they paid when the child was dependent. It seems to me that there should be a cap on post-secondary support, at minimum the 45% cap should apply, but perhaps no parent should ever pay more post-secondary support than they would pay for a dependent child. Although perhaps this cap has to be created by the legislature.

Surrogacy Panel at the University of Washington School of Law

Tonight, I attended a panel at the University of Washington School of Law on Compensated Surrogacy. Each of the panelists, Peter Nicholas, Sarah Ainsworth, and Terry Price, have published law review articles in the recent Washington Law Review on different aspects of compensated surrogacy. This blog post provides some of the highlights from the panel. I will note that I have not yet read their articles, so any errors are mine.

 

  • Terminology
    • Compensated Surrogacy happens when a woman acting as a surrogate voluntarily agrees to carry a child for another person or persons for payment.
    • Compassionate Surrogacy happens when woman acting as a surrogate voluntarily agrees to carry a child for another person or persons without payment.
    • Gestational Surrogacy is a type of surrogacy where the woman acting as a surrogate carries the child is not biologically related to the child. It is the most common form of surrogacy in the U.S. and it is believed to the most common form worldwide.
    • Traditional Surrogacy is a type of surrogacy where a woman acting as a surrogate carries the child is genetically related to the child.

 

  • In Washington State Compensated Surrogacy is a crime. It is a gross misdemeanor. Compassionate Surrogacy is allowed. As an aside, there are no known cases by the panelists of anyone being charged for a compensated surrogacy.

 

  • There are FDA regulations that discriminate against men who have sex with men. If a man has had sex with a man in the last five years, he is ineligible to have his sperm implanted in another woman – in contrast a man who has not had sex with another man within the last five years, but who have had sex with someone who is HIV positive, so long as it has been a year, he can provide sperm.

 

  • A major motivating factor in a woman choosing to act as a compensated surrogate is altruistic, that they want to help a family have a child. This is true in the U.S. and internationally, including India.

 

  • There are no consistencies in state laws regarding surrogacy, whether allowed and regulated or not allowed.

 

  • In the absence of state or federal laws and regulations, surrogacy agencies and medical practitioners often have their own criteria around surrogacy to ensure protections for intended parents and women who act as surrogates.
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