A recent Marco Island (FL) Eagle article discussed Florida’s statutes regarding ownership of disembodied eggs and sperm and heirship rights of the children born of them.

As the article correctly points out, in the absence of written agreements regarding the eggs and sperm and estate planning documents regarding the children born of them, the statutes may operate in an unforeseen and unwanted way. If you make all the complex scientific provisions to have children via these methods, it doesn’t make a lot of sense to leave the legal consequences of those precious provisions to a legislated fate you wouldn’t have chosen.

Substantial arrearages in child support payments are a large and growing problem for many custodial parents and the states. There are many reasons for the arrearages, some of which might be reasonably characterized as mitigating circumstances, if not justifications.

On the other hand, according to the Tahlequah (OK) Daily Press, there are also multi-million dollar lottery winners who manage to hide their winnings from the other parent of their child and the state – all the while paying not a dime in current support or toward arrearages accumulated over years.

You can read the unusual (but not unique) article here.

An article in the Kansas City Star reports on a Missouri court ruling that is consistent with the law of many states, but goes against the grain of many. The court held that a man must still support a child who was eventually proven not to be his biological (or adopted) child.

The article rationalizes the ruling by concluding it “pits fairness to men against what is considered best for children”. Certainly, the guardians of public policy stand watch over the rights and interests of innocent children.

But another, more general legal principle is just as key: once a case is decided, it’s decided. This fundamental principle is known as res judicata.

In this case, a paternity hearing was held in 1993. The alleged father apparently had notice and an opportunity to appear to dispute his paternity.

He didn’t do so. Without evidence from the alleged father to contradict the mother’s evidence, the paternity court determined that the alleged father was the legal father of the boy.

Further, even after the man learned that he wasn’t the boy’s biological father, he waited another three years to take action. Way too late.

Where the supremacy of the interests of children does come into play is in consideration of proposed legislation that would bar a paternity determination until a DNA test is produced.

If such legislation passed, any alleged father could evade his obligation to contribute to the support of his child by simply refusing to submit to a test and / or ignoring paternity proceedings – as the father in the reported case did. That would be harmful to children – and against public policy.

Too often, clients with little or no prior experience with the courts have naïve notions and expectations about the legal process, especially in family court.

Lawyers trying to build or defend their cases sometimes have to work hard

• to dispel such notions
• to get clients to appreciate what evidence will actually get before the judge and how it will appear to an objective third party who may not ever get the real “inside” story and
• most importantly, to motivate clients to meet and overcome the real legalistic challenges their cases may face.

One strategy some lawyers resort to is showering clients with “horror stories”: opposing counsel’s, colleagues’, the legal press’ and, occasionally, I am told by others, their own. That’s not to scare clients.

It’s to get them to take their legal case seriously and to stay on top of strategy and preparation from the get-go.

Below is an article (unfortunately, one of many) that everyone with a contested family court case should read. There are many variables, of course, but the legal system really can be this way.

Two Witnesses Not Enough in Custody Case: Petition

Brian Mackey

Springfield – September 23, 2005

A woman denied custody of her two children is asking the Illinois Supreme Court to rule that limiting each party in a child custody dispute to two witnesses is unfair and does not provide the trial court with enough information.

Dustin and Bethany Miller were married in July 2001. In September 2004, Dustin filed for divorce and successfully petitioned for temporary custody of their two children. That December, Adams County Judge John C. Wooleyhan entered an order that set the case for Feb. 9, 2005, and required that if either party wanted to call more than two witnesses at the hearing, they would need to request a pretrial conference at least seven days before the custody hearing date.

Bethany Miller’s current attorney, Richard D. Frazier, said on Friday the two-witness rule was essentially a standing order in Wolleyhan’s courtroom.

The problem, Frazier said, is that Bethany Miller was in the process of changing attorneys as the clock was running out on the seven-day pre-hearing request.

Frazier filed an entry of appearance as Bethany’s counsel in mid-January; but her prior attorney’s motion to withdraw was not approved until Feb. 2, 2005.

Two days before the hearing, Wooleyhan declined Frazier’s request for a continuance.

According to the petition, Frazier made one last pitch to the judge at the hearing: “We would have liked to have called ten witnesses for the hearing today, and probably the most important witness … is my client Ms. Miller’s psychologist.”

The psychologist would testify as to Bethany Miller’s mental condition, Frazier told the judge, adding that “his testimony concerning her treatment and her ability to care for her children would be very important for the court to hear.”

Frazier also told the judge of other witnesses that would bolster Bethany Miller’s case, including a priest and a nun.

Wolleyhan stuck to his two-witness rule, the hearing proceeded and custody was awarded to Dustin Miller.

Bethany Miller took her case to the 4th District Appellate Court, arguing that she had not been given the opportunity to prove her case because the trial court improperly barred evidence.

But the Springfield-based appellate court held that it did not have enough information to rule on the matter and affirmed the decision of the trial court.

In rejecting Bethany Miller’s claim, the appellate court wrote that she did not meet the standard set forth in In re Estate of Romanowski, 329 Ill.App.3d 769 (2002), which required that she “must provide the reviewing court with an adequate offer of proof as to what the excluded evidence would have been.”

The appellate court held that Frazier did not inform the court his remarks were in lieu of a formal offer of proof, so the court was never called upon to decide whether Frazier should have been allowed to make an informal offer of proof.

It also held that Frazier’s remarks “fell far short of meeting the criteria for making such an offer. He failed to inform the court, with particularity, what the expected testimony would be or its purpose. His representations constituted nothing more than conclusory descriptions of the subject matter of some of the witnesses’ testimony,” which are not an adequate offer of proof under People v. Singmouangthong, 334 Ill.App.3d 542 (2002).

But in her petition to the high court, Bethany Miller argues that a “statement by counsel may be a sufficient offer of proof when the offered evidence is obvious and when neither opposing counsel nor the court dispute counsel’s statement.” Wright v. Stokes, 167 Ill.App.3d 887 (1988).

Bethany Miller’s petition concludes: “Clearly, the offer of proof was sufficient to allow the trial court to make an informed decision whether to reverse its previous ruling and allow each party to call more than two witnesses. It was also sufficient to allow the appellate court to make an informed decision on this matter.”

Frazier is a partner with Metnick, Cherry, Frazier & Sabin LLP in Springfield.

The case is In re the marriage of: Dustin Miller v. Bethany Miller, No. 101319.

For educational purposes only and not intended to infringe on Copyright 2005 Law Bulletin Publishing Company, Chicago Daily Law Bulletin

A recent Pennsylvania case takes up a difficult issue: how should a paying spouse’s dramatic drop in income impact an award of alimony?

According to the article below from the Pennsylvania Law Weekly, the general rule in Pennsylvania seems to be that where that loss of in income is the result of alcohol abuse, an award of alimony should be based on the paying spouse’s higher earning capacity rather than the spouse’s lower actual income.

In the particular case reported on, however, while the the paying spouse did have an alcohol problem, the spouse seeking alimony did not prove that the paying spouse’s alcohol problem was truly the cause behind his pay cut. Instead, there appeared to be other factors that accounted for it or contributed to it. Therefore, in that particular case, the court based the alimony award on the paying spouse’s actual reduced income.

In certain cases, Florida courts also will look to a spouse’s earning capacity instead of actual income. In Florida, we call that imputing income to that spouse and courts may do it in a child support case as well as an alimony case.

But, unlike Pennsylvania, the Florida courts have not carved out a consistent general rule about loss of income from alcohol.

Family Law Allegations of Alcohol Abuse Fail to [sic] Reduce Alimony Obligation

Melissa Nann Burke; Special to the Pennsylvania Law Weekly

September 12, 2005

Without a finding that an alcoholic parent lost his job because of substance abuse, the alimony he must pay his wife and children should be assessed based on his earnings and not his earning capacity, a state appeals court has ruled.

So instead of having the alimony based on the six-figure income he had been earning earlier, it was based on his current earnings that were less than $20,000.

The court relied on a ruling from 2000 holding that an obligor who lost work due to drug or alcohol abuse is deemed to have voluntarily lost the employment.

In an unpublished ruling, the Superior Court concluded this wasn’t proved in Aungst v. Aungst, PICS Case No. 05-1417 (Pa. Super. Aug. 19, 2005) memorandum (12 pages).

a three-judge panel rejected the arguments of Suzanne Marie Hepfer Aungst, who claimed her husband lost his business and income of $120,000 to $150,000 a year because of a “deliberate” act – substance abuse.

She claimed her husband’s decrease in income – earning less than $500 a week – was, under the circumstances, voluntary.

She wanted the court to impose a support obligation based on her husband’s earning capacity rather than his current income, according to the opinion.

The Aungsts’ daughters are ages 14 and 16, and the couple have since divorced, said John A. Prodoehl, attorney for Suzanne Aungst.

“If you get drunk and lose your job, you still have to pay your mortgage,” said Prodoehl, who practices in Media, Pa. “If you get drunk and lose your job, you should still have to support your children.”

The appeals panel summarized the Superior Court opinion, Laws v. Laws, 758 A.2d 1226 (Pa. Super. 2000), this way:

“If an obligor loses his or her job due to drug or alcohol abuse, it is deemed to be a voluntary loss of employment. He or she will then be assessed a support obligation based on earning capacity rather than actual earnings.”

But the Delaware County trial court found last year that Aungst’s husband, William Harrison Aungst III, had not deliberately reduced his earning capacity.

The trial judge said Aungst’s business could have failed “maybe for reasons of alcohol problems,” but “that may be one of many, many reasons [that] it failed.”

Aungst also had an accident after losing his business.

According to the opinion, he came in contact with a bolt of electricity that caused him to fall nearly 40 feet from a ladder and suffer brain damage.

David DiPasqua, who represented Aungst, said: “Two things happened: He got electrocuted, and he tried to start his own business and failed, in part because of the drinking.”

The Superior Court panel said Aungst presented a factual distinction from the Laws case.

“The Laws holding was based on a factual finding that the applicant ‘lost employment because of alcohol addiction and substance abuse,'” the panel explained.

“Without such a finding, Laws is inapplicable.”

In so holding, the panel concluded the trial court had not abused its discretion when it based Aungst’s support obligation on his actual earnings instead of on what he made before his business failed.

Judges Maureen Lally-Green, Jack A. Panella and Senior Judge Stephen A. McEwen Jr. participated in the decision.

On appeal, Suzanne Aungst also had argued that the trial court should have considered her husband’s real estate assets, worth approximately $500,000.

According to the opinion, William Aungst owns six properties in Darby, Pa. – five stores and one house – valued at close to $500,000. After expenses, his income was about $900 a month, and his mother pays the property taxes and some of the other property expenses.

The Superior Court said Suzanne Aungst had waived the issue “for failure to develop any supporting argument.”

The court said Suzanne Aungst had also waived her argument that the court should have required her husband to provide medical insurance for the family.

William Aungst testified that his business ended in mid-2002.

Starting in 1999, he made $19,000 a year. According to the opinion, Aungst was living with his mother and has admitted to having a drinking problem.

Suzanne Aungst filed her petition for spousal and child support in January 2004.

Later that year, the trial court ordered William Aungst to pay $562 monthly to his wife and $831 monthly to support the children, according to the opinion.

For educational purposes only and not intended to infringe on Copyright 2005 ALM Properties, Inc.

According to an article from right here in South Florida, more women are seeking prenuptial agreements. That’s been my observation in my practice as well.

Besides the fear of the unknown future cited in the article, more and more of my prenup clients report having been burned in the well-known past by a previous spouse skipping out with assets prior to the divorce or by the divorce process itself.

They don’t want to expose themselves to those risks again. They want agreements to protect them.

And they want to know how to structure and manage their finances and property to support the agreements.

A FOX News article reports that thirty-two percent of fathers ordered to pay child support don’t pay in full and on time – if at all. This may not really be news to many people.

What may be news is the report that forty-three percent of non-custodial moms court-ordered to pay child support also don’t pay in full and on time – if at all. Yes, according to the article, there are 674,000 non-custodial moms ordered to pay child support.

In truth, both percentages are staggering. What do they really tell us about non-custodial parents – or child support calculations and orders?

Well worth reading.

Southwest Florida’s News-Press.com recently ran an interesting article condemning the legal mandate of strict confidentiality in cases where parents of minor children are accused of abandoning, abusing or neglecting their children. In these juvenile dependency cases, the identities of family members and of the party who called the abuse hotline are all protected.

This strict confidentiality in dependency cases stands out in our sunshine state, which boasts a strong public policy favoring exposing most court case records to public access and scrutiny. The article features the generally less-trumpted arguments against confidentiality in dependency cases.

Florida’s dependency system is charged with protecting tens of thousands of Florida’s children. Although not detailed in the article, there have been several highly publicized cases where children allegedly needed protection from their protectors.