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Significant Other’s Can Impact Custody Decisions

In an unpublished opinion in Newman vs. Newman, A15-0561 (Minn.Ct. App. Dec.21, 2015) the court of appeals reviewed an appeal from a divorce involving a 16 year marriage involving three minor children with a mother who had been a full-time homemaker since 2003 and a father who recently retired early. The trial court granted joint legal custody, but granted the father sole physical custody.

Mother appealed and claimed the trial court erred in not granting her joint physical custody or sole physical custody.  The appellate court noted there had been acrimony and a lot of personal attacks in the case and that a current harassment restraining order precluded father from harassing the mother. It was noted this conflict did not support their ability to cooperate under a joint physical custody arrangement.

The court also found that although there was not evidence of domestic abuse, the court had deep concern about the safety of the parties’ daughters around the mother’s live in boyfriend who had been convicted of felony invasion of privacy of a minor for hiding a video camera in his 17 year-old, step-daughter’s bathroom. It was specifically ordered the mother’s parenting time not include her boyfriend and that the mother’s boyfriend directing impacted the physical and emotional safety of the children.

In addressing the best interest factors the court noted nine were neutral, one inapplicable, two favored the father and one favored the mother. The deciding factor was the interaction and interrelationship of a person who may significantly affect the children’s best interests.  In this case the mother’s decision to live with a convicted felon who had harmed his step-daughter lead to her losing physical custody.

If custody is an issue in a divorce or paternity action it is crucial to immediately consult with an experienced divorce lawyer or knowledgeable family law attorney. Decisions about living arrangements, significant others, and high conflict disputes with your spouse can preclude sharing joint physical custody or even lead to a longtime homemaker to lose physical custody.

 

 

 

Attorneys Fees in Family Law

In a divorce or family law matter it is important to factor in the cost of attorney fees and Court costs in an action when deciding how you wish to proceed. It is foolhardy to not seek legal advice in divorce or family law matters. It is wise to understand it often may be difficult and expensive to obtain a Court order directing your spouse to pay your attorneys fees in the matter.

Under the law a Court can award fees to enable a party to carry on or contest the proceedings, provided it finds:

(1) that the fees are necessary for the good faith assertion of the party’s rights in the action and will not contribute unnecessarily to the length or and expense of the proceedings;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Minn. Stat.518.14.

A Court can also award fees against a party who unreasonably contributes to the length or expense of the action, or if a party commits fraud, or takes what a Court determines are bad faith actions in a case. Fees and costs can be awarded at any point in the proceeding.

Attorney fees can be obtained when there is a gross disparity in incomes or financial situations in a case, but it often can be expensive and a lengthy process to obtain an award of fees. Sometimes Courts wait until trial after they hear and consider all evidence before deciding an issue involving fees, or make a small temporary award to allow a party to contest the case, but the award often falls far short of the attorney fees required to take the matter through a time-consuming litigation process or trial. It is folly to assume you are going to be awarded every dollar of fees you are incurring, even if there is a disparity in incomes because, in general, Courts are conservative in awarding fees and do not wish to risk encouraging potentially unnecessary litigation. By granting a large temporary award of fees Courts realize this may lead to more litigation rather than a settlement. Generally Courts want matters to settle and not be litigated.  They have very busy Court calendars already and often times ugly divorce litigation is not their favorite way to spend their time.

Instead of counting on or assuming you will be awarded attorney fees the best strategy is to attempt to minimize your own fees because 90% of cases settle short of a trial and it is never easy to negotiate or convince your spouse to voluntarily pay both sides attorney fees.

First carefully review and read your Retainer Agreement with your attorney to understand how you will be billed. Generally numerous phone calls or e-mails to your attorney will lead to a large attorney fee bill quickly. Do not use your attorney as a therapist or as a way to soothe your hurt feelings as it can be very expensive. Find a good friend, or family member, or therapist to talk about your emotional feelings and disappointment. Try to streamline communications to address multiple issues in a single call or e-mail and try not to constantly barrage your attorney with piecemeal information. If possible try to amicably resolve personal property disputes with your spouse without involving your attorney as fees can escalate fast over battles about old TVs or computers or used furniture that have small real current market value.

As hurt as you may be, try to be civil and respectful to your spouse. Personal or verbal attacks may give you temporary satisfaction, but may lead to a barrage of payback attempts to get even or other strategies to punish you in a revengeful manner that will lead to much larger attorney fees for both sides. It can also lead to expensive collateral actions such as Orders for Protection, or Harassment actions, which lead to more fees.  Do not let your emotions drive your actions. Treat your divorce as a business transaction and negotiations, as hard and as cold as that sounds.

Be honest with your attorney and do not hide information or assets. The more your attorney knows the better they can quickly plan how to settle your case. Trying to hide information or assets is unwise and can be deemed fraudulent and that can lead to an attorney fee award and also discredits your credibility with the Court. This can lead to very bad results no matter how good your attorney may be. It can also lead to length discovery requests, or information requests, from your spouse’s attorney, or depositions that lead to much higher attorney fees.

When your attorney requests information or documents, timely get the documents and provide them in an organized fashion. Do not procrastinate in getting information or documents as this leads to follow-up e-mails, letters, or phone calls and more fees and expense. You can save a great deal of expense by carefully organizing the statements, by file folder or clips in order. There are far too many cases where clients bring in a grocery bag of documents accumulated over years that are a mess and take hours to organize and often are incomplete, which again leads to higher fees for a paralegal or staff to try to organize and additional frustration for you.

Keep your children out of the middle of your divorce. Do not attempt to alienate your children against the other parent. If a party feels a parent is undermining a relationship with their children this will lead to anger and hard feelings and more litigation or efforts to get even. It also will cause great emotional harm to your children.

Lastly follow your attorney’s advice. Do not believe you know better or assume you can take shortcuts without seeking the attorney’s input, in particular in negotiating important settlement details, because there may be legal reasons for negotiating a certain way. When in doubt, talk to your attorney, and always before you commit orally, or in writing to any settlement seek your attorney’s input. After you verbally agree to a settlement with your spouse it often can be very difficult to backtrack and negotiate important other matters that may have been forgotten or neglected and this leads to litigation as people get entrenched in verbal promises made along the way.

I know everyone tries to keep their costs down in a Family Law matter, but usually it is more cost effective to discuss your case and the actions that you are considering before you take action, rather than trying to undo it after the fact. It should always be the attorney’s goal to settle your case short of going to trial, which will minimize your own attorney fees because it can be very difficult, time-consuming and cost prohibitive to go through a trial and to attempt to make your spouse pay your attorney fees. Even if the Court does decide to award you attorney fees the Court may only award a small portion of the fees you incurred.

Court-Ordered Grandparent Visitation Upheld in Minnesota

        The Minnesota Court of Appeals recently upheld an order awarding generous visitation to grandparents in A.B. v. Verzhbitskaya, A14-1656, (Minn. Ct. App.  June 15, 2015).  The Court held that a visitation schedule that provided the grandparents with one weekend and one weekday afternoon a month as well a weekly school visits, a nine-day summer visit, and daytime visits on both Thanksgiving and Christmas Eve was not excessive.

 

Minnesota Statute 257C.08, subd. 1 (2014) provides that, when a parent of a minor child is deceased, the court may order reasonable visitation by the deceased parent’s parents (the child’s grandparents) if the visitation is in the best interests of the child and the visitation will not interfere with the relationship between the surviving parent and the child, and the court is to consider the amount of contact with the child and his/her grandparents before the parent’s death.  The courts have held that the grandparents bear the burden of proof that their visitation will not interfere with the parent/child relationship.

 

Understanding the Case

 

In this case, the child had turned eleven shortly after the father’s death, and there was no dispute that the visitation with the grandparents was in the best interest in the child.  In fact, there was testimony that a school counselor had encouraged the grandparents to visit the child at school during lunchtime.

 

Before the father’s death, the mother had sole physical and legal custody, and the father had parenting time on alternating weekends and Wednesday overnights.  The grandparents testified that they frequently saw their grandchild during their son’s visitation time.

 

The Court’s Decision

 

The Minnesota Court of Appeals first held that the amount of visitation time was not excessive.  It noted that the amount of time was significantly less than the amount of parenting time that the father had enjoyed when he was alive and it was consistent with the amount of contact that the grandparents had with their grandchild during the father’s lifetime.

 

The appeals court also found that the grandparents had met the burden of proof that their visitation would not interfere with the mother’s relationship with her child.  Although the mother had cultural concerns that the grandparents were interfering with her decision to raise her child in the Russian Orthodox Church and had taken the child to Catholic church, the court found that the grandparents had provided credible testimony that they would accommodate the mother’s concerns and they would no longer take the child to Catholic church if they had visitation.

 

The court completely disregarded the mother’s claims that the grandparents had interfered with her legal rights to her ex-husband’s estate, stating that those financial concerns were irrelevant to the parent/child relationship.  Thus, it is important that any claims of interference by grandparents focus on the relationship between the parent and child and not on financial issues between the parent and the grandparents.

 

Also rejected was the mother’s argument that other family members be barred from assisting in dropping the child off and picking the child up.  The court found the argument was forfeited because the mother did not provide any legal authority to bar others from facilitating the transfers of the child.

 

The court did reverse the district court’s decision awarding visitation to relatives other than the grandparents, such as the child’s aunt.  The court held that the statute limits visitation to grandparents, so there was no legal basis to extend independent visitation to aunts and other family members.  The court did note that the grandparents did have the right to allow other relatives to join with them in their visitation time.
Do you have questions about a family law issue, including visitation, support or custody? Be sure to contact an experienced Minnesota family law attorney for tailored guidance and counsel.

Family Law – Interpreting Antenuptial Agreements in Minnesota

The Minnesota Court of Appeals recently addressed antenuptial agreements in Peterson v. Deeb, A13-2259 (Apr. 27, 2015).  As opposed to the more well-known “prenuptial agreement,” antenuptial agreements are made between partners after they are already married. The details agreed to in the contract are typically the same as those in prenuptial agreements, including property division, support, and similar matter.

 

Minnesota courts have long recognized antenuptial agreements, which change the statutory provisions for dividing both marital and nonmarital property when marriages are dissolved. Minnesota Statute Section 519.11 codifies the state law on antenuptial agreements.  Agreements are enforceable if the parties provide each other with a full and fair disclosure of their assets and income and the parties have the opportunity to consult with independent legal counsel of their own choice.  When these two requirements are met, the party who challenges the agreement has the burden of proof to show that the agreement was invalid.

 

New MN Family Law Case

 

In this case, the wife had been the sole owner of the parties’ home before the marriage; her equity was $75,000.  There was no dispute that the parties disclosed all of their assets and were represented separately by independent counsel throughout the negotiations and drafting of the agreement.  Under the terms of the agreement, the wife retained her $75,000 nonmarital interest in the home, but the parties agreed that any future increase in value would be considered marital property.  Thus, within 30 days after the marriage ended, the homestead was to be transferred into joint tenancy, with both parties as obligors of the mortgage.

 

After the antenuptial agreement was signed, the parties refinanced the homestead and used that money to purchase a cabin.  The district court found that the parties’ equity in the homestead, including both marital and nonmarital assets, had been eliminated by both the refinancing and by a decline in market value.  Thus, the district court found that selling the parties’ cabin and other real property would enable them to pay each for their nonmarital contributions to the purchase of these assets.  However, the district court awarded the wife $75,000, her interest in the homestead protected in the antenuptial agreement, and the husband was awarded $15,417 for his nonmarital contribution.

 

Points of Contention

 

In this case, the issue was the interpretation of the agreement, not the validity of the antenuptial agreement itself. The district court rejected the husband’s argument that the wife’s nonmarital interest of $75,000 was eliminated when the parties refinanced the homestead and its value decreased.  The Court of Appeal upheld the district court ruling.

 

In reviewing that lower court decision, the Court of Appeals noted that the purpose of contract interpretation is “to give effect to the parties’ intent,” and that a court should “avoid any interpretation that would make a contractual provision meaningless.” The Court of Appeals found that the “overriding purpose and intent of the parties” was to protect each party’s nonmarital party in the event the marriage was dissolved, including both the wife’s $75,000 in equity and the husband’s separate bank account.  The agreement itself did not indicate that purchasing other assets with non marital funds or commingling marital and nonmarital property would result in the marital property being eliminated.

 

The district court held (and the Appeals Court agreed) that the husband’s interpretation, which would eliminate the wife’s nonmarital asset, was “unconscionable” and unfair.   The Appeals Court also found that the district court’s enforcement of the agreement was fair and equitable.  When the parties married, their only real estate asset was the wife’s $75,000 in equity.  When they divorced, more than twelve years later, their equity had increased to $235,000, so the wife’s nonmarital asset ($75,000) was now only 31.9% of the parties’ total equity.  After the awards to each party of their nonmarital assets, 61.5% of the equity remained to be distributed as marital property.   Thus, the parties had obtained a significant increase in their joint assets during the course of the marriage.

 

Get Legal Help
This case illustrates the importance of obtaining legal counsel whenever an antenuptial agreement is considered.  For questions about these or any other Minnesota family law issues, be sure to seek out the aid of an experienced family law attorney for tailored guidance.

Minnesota Will Only Recognize a Foreign Marriage if the Marriage Was Valid Where Performed

The Minnesota Court of Appeals recently reversed a district court decision that had recognized a “cultural marriage ceremony” performed in Thailand because there was no evidence that the marriage was legally valid in Thailand.  Chang v. Yang  #14-1158 (Minn. Ct. App. Apr. 27, 2015).  The Court of Appeals held that, to have a valid foreign marriage recognized in Minnesota, the marriage must have been valid in the place where it was performed, here Thailand.

 

The Minnesota Family Law Case

 

In this case, the two individuals had participated in a traditional Hmong wedding ceremony almost forty years ago while they were living in a refugee camp in Thailand.  They held themselves out as husband and wife until the wife filed for divorce, and the husband objected, claiming they were never married.

They both took oath before an American official stating that they were married, and then they immigrated to the United States in 1978.  They filed tax returns as “married filing jointly” for twenty-five years.  They had six children, all of whom were adults by the time their mother filed for divorce.

The appellant argued that they were not legally married because, although they participated in a Hmong cultural marriage ceremony, that ceremony did not meet the requirements of Thailand for a legal marriage.  He also said that the appellee was already married to another man at the time of the Hmong cultural ceremony.

The Minnesota Court of Appeals agreed with the appellant that a cultural marriage does not create a legal, valid marriage and that the district court was required to determine whether the Hmong cultural marriage would create a legal marriage in Thailand.  The Minnesota Supreme Court stated the following rule:   “The validity of a marriage is normally determined by the law of the place where the marriage is contracted.  If valid by that law the marriage is valid everywhere unless it violates a strong public policy of the domicile of the parties.”   In re Kinkead’s case, 239 Minn. 27, 30, 57, N.W.2d 628 631 (1953).

The Minnesota Court of Appeals found that the appellant had presented evidence that the cultural marriage was not a valid marriage, namely, material from the U.S. Embassy in Thailand that marriage requires in-person registration of the marriage in the local Civil Registry Office and that Thailand does not recognize common-law marriage.  The court noted that the parties did not have a marriage certificate, and there was no evidence that either party attempted to register the marriage with the Civil Registry Office.   The court found that they had taken an oath before an American official as part of immigration proceedings and that it did not appear that such an oath would support a valid Thai marriage.

The court, thus, remanded the case to the district court to determine whether the cultural marriage was valid under Thai law.

The court also required that the district court issue findings of fact and conclusions of law whether the respondent was entitled to  “putative spouse status,” as per Xiong v. Xiong, 800 N.W.2d 187, 191 (Minn. Ct. App. 2011).

 

Help with Minnesota Divorce
If  you need a divorce or are considering a motion to modify an order and judgment dissolving a marriage, you should consult an experienced Minnesota family law attorney.

Finding of Parental Alienation Leads Court to Modify Award of Custody

In Busch v. Christian, A14-0687 (Minn. Ct. App. Mar. 9, 2015), the Minnesota Court of Appeal upheld a decision of the trial court modifying a custody order to award sole legal and physical custody to a father because the mother had been alienating the child from the father.   In this case, the parents had never been married, but the father’s paternity was recognized soon after the child’s birth.  The initial child custody order had awarded both parties joint legal custody, with sole custody to the mother and parenting time to the father, increasing as the child got older.

Relying on Minnesota Statute section 518.18, the court found that four elements had to be established in order to modify a prior custody order:  (1) a change in the circumstances of the child or custodian; (2) modification would serve the child’s best interest; (3) the child’s physical or emotional health or emotional development is endangered by the current environment; and (4) the harm to the child likely to be caused by changing the environment is outweighed by the advantages of the change.   The court found that all four elements were met. books

The court found that there had been a sufficient change in the circumstances of the child or custodian to support modification of custody because the mother had constantly negatively referred to the father and refused as many as 29 days of parenting time since the last order and her actions caused the father’s relationship with his daughter to deteriorate.

The court found that modification was in the child’s best interests and provided a detailed analysis of the statutory factors.  The mother challenged the court’s conclusion on four of the factors.  First, the court found that the intimacy of the relationship of the parent and child favored the father, as he genuinely loved the child while the mother tried to alienate the child from the father.  The court was convinced that the mother had an unhealthy relationship with the child, noting that after the father had physical custody, the mother went to the child’s school every day to have lunch with her.  It was noted that the daughter was afraid to tell her mom that she loved her dad because of her mother’s constant negative state.

Second, the court found that the child’s adjustment to home, school, and community favored the father.  The court found that the child was better adjusted at school and with her peers after her father had custody.  It was again noted that the mother’s daily lunches with the child at school interfered with the child’s independence and were inappropriate.

Third, the court found that the continuity of a stable, satisfactory environment favored the father even though the child had lived for a longer period of time with the mother.  There was concerned that, since the change in custody to the father, the child was no longer sleeping in her own room but was sleeping with her mother when she had parenting time with her mother.

Fourth, the court found that the physical and mental health of the parents and child favored the father even though he had a recent DUI conviction because of the court’s concern that the mother because of the mother’s “persistent, uninterrupted and outrageous” interference with the father’s visitation.

It was also noted that the child had adjusted well to her father’s custody. And that she had improved in some significant aspects, including her hygiene.  Although she continued to have difficulties in school, the father had hired a tutor for her.

If you are involved in a custody dispute, you should consider retaining an experienced family law attorney who can assist you in developing a record that will support your claim for custody in light of the statutory factors.

New Minnesota Family Law Case – Rauworth v. Rauworth

In Rauworth v. Rauworth, A13-2104 (Minn. Ct. App. Feb. 2, 2015), the Minnesota Court of Appeals issued significant rulings on (1) post-trial motions; (2) permanent maintenance; and (3) attorneys’ fees.

Post-Trial Motions:  The court upheld the district court’s decision to award an increase of $570 in spousal maintenance, but reversed the district court’s decision to award retroactive maintenance.

The district court had awarded the additional $570 because of the tax consequences of spousal maintenance, which is taxable income to the spouse receiving maintenance and a deduction to the spouse paying spousal maintenance.  The court noted that the rule allowing for amendment of findings of fact requires courts “to apply the evidence as submitted during the trial of the case, and may neither go outside the record, nor consider new evidence.  The court found that the ex-wife’s post-trial exhibit should have been excluded, but that there were enough facts outside of the post-trial exhibit to support the change.  At trial, the ex-wife’s expert had testified about the tax consequences of spousal maintenance, so there was evidence from trial on the issue.  Further, the court found that the change did not unduly prejudice the ex-husband as his income was greater than his expenses, and he would be able to deduct the spousal maintenance from his income on his tax return. Symbol of law and justice in the empty courtroom, law and justice concept.

The court, however, held that the district court erred in awarding six months of retroactive maintenance, as this was a new issue filed for the first time on a motion for amended filings or a new trial.   The court noted that the ex-wife could have moved for the payment of interim maintenance under Minnesota Statute Section 518.131, subd. 1(b).

Permanent Maintenance:  The court upheld the district court’s decision in denying permanent maintenance, noting that the party seeking maintenance has the burden of proof.  In this case, the wife was awarded $600,000 in retirement funds, which would yield retirement income when she reached retirement age.  The court held that the award of rehabilitative maintenance, limited to twelve years, was fair and just because she would have access to retirement income at the end of twelve years.  The court did note that, if she were unable to meet her living expenses at that time, she would be able to bring a motion to modify the maintenance award later on.

Attorneys’ Fees:  The court held that the district had acted within its discretion in denying need-based attorneys’ fees.  The court held that the ex-wife did not show any need for attorneys’ fees as she has a full-time job, she got nearly $800,000 in marital property, and she was awarded substantial maintenance through 2025.   Based on this decision, courts are likely to deny need-based attorneys’ fees where a party has substantial income, including maintenance, and has been awarded substantial assets.

As this case illustrates, it is important to raise all relevant claims and request all relevant relief when you first file for divorce, or, at least, at trial, as it may be impossible to raise new claims after a divorce judgment is entered.  Therefore, if you are considering a divorce, consider hiring an experienced family law attorney to assist you.