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2009-2010 Family Law Update

2009-2010 Family Law Update. Presented by : Ronald D. Litvak and Timothy R.J. Mehrtens Litvak, Litvak, Mehrtens, and Epstein, P.C. 1900 Grant Street, Suite 500 Denver, Colorado 80203. In the Matter of Fisher, (CA. Feb. 9, 2009). Attorney Disciplinary Hearing

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2009-2010 Family Law Update

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  1. 2009-2010 Family Law Update Presented by: Ronald D. Litvak and Timothy R.J. Mehrtens Litvak, Litvak, Mehrtens, and Epstein, P.C. 1900 Grant Street, Suite 500 Denver, Colorado 80203

  2. In the Matter of Fisher, (CA. Feb. 9, 2009) • Attorney Disciplinary Hearing • C.R.P.C. 1.8(a): Attorney’s promissory note and deed of trust against the marital residence was to his client’s interest. • C.R.P.C. 1.8(j): Attorney should have obtained a charging lien rather than a promissory note and deed of trust.

  3. IRM Thornhill, (CA. Aug. 21, 2008)cross petition for cert granted Feb. 17, 2009 • When reviewing marital agreements for conscionability: • (1) must review for fraud, overreaching, concealment of assets or sharp dealing not consistent with marital partners. • (2) then review as to whether the agreement is “fair, just and reasonable” • Here, the Agreement was held to be unconscionable • Valuation and the Marketability Discount (cert to Supreme Court) • Discounting isn’t allowed in dissenting shareholder suits • Court of Appeals held that the discount is discretionary with the trial court • Maintenance: party must lack sufficient property to provide for one’s own needs and must be unable to support self through appropriate employment.

  4. IRM Powell, (CA. Feb. 5, 2009) cert. denied Dec. 14, 2009 • Stock options are property “when the employee has an enforceable right to the options.” • Valuation of accounts holding multiple securities: Total value of account vs. values of each individual security • The Appellate Court did not consider it an abuse of discretion to consider the account as one asset.

  5. IRM Obremski & Williamson, (CA. Feb. 5, 2009) • Though military retirement benefits are generally distributable as marital property, military disability benefits are excluded from division as marital property.

  6. CHILD SUPPORT • Determination: • IRM Anthony-Guillar and Guillar, (CA. Mar. 19, 2009) • In the Interest of S.E.G., (CA. May 14, 2009)

  7. IRM Anthony-Guillar and Guillar, (CA. Mar. 19, 2009) • C.R.S. §14-10-115 does not explain how to treat social security benefits received by a minor child as a result of a parent’s disability. • “Benefits actually received” refers to a parent’s disability benefits • A child’s disability payments are income to the child, but the court is not bound to deduct the entire amount of the child’s benefits from the child support obligation.

  8. In the Interest of S.E.G., (CA. May 14, 2009) • The juvenile court has jurisdiction to issue orders of support and orders allocating parental responsibilities in connection with a child support proceeding, regardless of marital status.

  9. ATTORNEY’S FEES • IRM Ensminger, (CA. Dec. 11, 2008), petition for rehearing denied (Feb. 19, 2009); cert. denied (June 15, 2009)

  10. IRM Ensminger, (CA. Dec. 11, 2008), cert. denied June 15, 2009 • Pursuant to C.R.S. 13-17-102(2), attorney fees can be award to parties or non-parties if: • the action lacked substantial justification, • actions are pursued for delay or harassment • if an atty unnecessarily expands the proceeding by other improper conduct. • (In this case, the improper conduct was subpoenaing a non-party as a form of harassment rather than for any relevant issue.)

  11. ALLOCATION OF PARENTAL RESPONSIBILITY • IRM Slowinski and Pagnozzi, (Colo. Feb. 2008) as modified on denial of rehearing (May 1, 2008); cert. denied (Jan. 20, 2009)

  12. IRM Slowinski and Pagnozzi, (Colo. Feb. 2008) rehearing denied (May 1, 2008) • Upon filing a Motion to Restrict Parenting Time under C.R.S. §14-10-129 (4), supervised parenting time takes immediate effect, and a hearing must occur in 7 days. • If the hearing does not occur in 7 days, supervised parenting time under C.R.S. 14-10-129(4) terminates.

  13. GUARDIANS and SPECIAL ADVOCATES

  14. Sidman v. Sidman, (CA. Oct. 29, 2009) • Only the parents’ income, not a guardians’ income, can be included in the calculation of child support. C.R.S. §14-10-115 does not contemplate a guardian’s income. • Any expenses for travel shall be divided between the parents in proportion to their adjusted gross income, not paid for by the guardian to facilitate a parent’s parenting time. C.R.S. §14-10-115(11)(a)(II).

  15. PROCEDURAL & EVIDENTIARY • C.R.C.P. 16.2: • IRM Roberts, (CA., Aug. 7, 2008) cert. granted (Mar. 16, 2009) • IRM Schlep, (CA., Aug. 7, 2008) cert. granted (Mar. 16, 2009) • UCCJEA: • In re the Parental Responsibilities Concerning L.S., and Concerning McNamara and Spotanski, (CA., Oct. 15, 2009)

  16. IRM Roberts, (CA. Aug. 7, 2008) cert. granted (Mar. 16, 2009) • Under C.R.C.P. 16.2(e)(10), the court retains jurisdiction for 5 years after entry of a final decree to allocate material assets and liabilities if a party’s disclosures contain misstatements or omissions. • Though the parties filed a petition for legal separation in Nov. 2004, Wife’s post-decree motion was filed after January 1, 2005, thus the court had jurisdiction to determine Wife’s motion.

  17. IRM Schelp, (CA. Aug. 7, 2008) cert. granted (Mar. 16, 2009) • Like IRM Roberts, the court had jurisdiction under C.R.C.P. 16.2(e)(10) to determine Wife’s post-decree motion to reopen permanent orders, which was filed after Jan. 1, 2005. • The dissent found that since the permanent orders were entered prior to Jan. 1, 2005, C.R.C.P. 16.2(e)(10) should not apply retroactively.

  18. In re Parental Responsibilities Concerning L.S., & McNamara & Spotanski, (CA. Oct. 15, 2009) • UCCJEA provides jurisdiction based upon homestate of the child, then significant connections. • UCCJEA addresses subject matter jurisdiction, which cannot be conferred by consent or waiver, and can be raised at any time. • Pursuant to Full Faith and Credit, Colorado must recognize Nebraska Order because jurisdiction was based upon a statutory ground (significant connections) recognized by the UCCJEA, even though factually the statutory ground was not met.

  19. People in the Interest of E.D., M.D., & A.D., & Concerning S.D. & M.D., (CA. Oct. 29, 2009) Offers of proof at allocation of parental responsibilities hearing was not an abuse of discretion since offers of proof were not limited and actual testimony would not have provided any other information. A guardian ad litem cannot provide protective supervision in lieu of an “agency”; protective supervision by a guardian ad litem would interfere with a parent’s constitutional rights.

  20. The End Ronald D. Litvak & Timothy R.J. Mehrtens Litvak Litvak Mehrtens and Epstein, P.C.

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