Family Law Case Summaries
Iowa • Nebraska • South Dakota

Nebraska does not have jurisdiction over Japanese child. The Nebraska Supreme Court determined there was no jurisdiction to hear a custody case where the parties had been living in Japan due to the father's military assignment. The parties left Nebraska when the child was 10 months old and lived in Japan for 2.5 years, when the father retired from the military. The father took the child and returned to Nebraska, and immediately filed for divorce and custody of the child. The mother objected, arguing the Nebraska court had no jurisdiction because the child's home state was not Nebraska. The Supreme Court determined that under the law, the child's home state is where he has lived for 6 months prior to the custody filing, and only the home state would have jurisdiction. Here, the fact the child was born in Nebraska and lived in Nebraska for 10 months did not make Nebraska his home state. The family had sufficient ties to Japan (they had family there, they had been married there) that the father's military assignment did not make the 2.5 years in Japan a "temporary" residence. The Nebraska court should not have heard the original custody case. Carter v. Carter, 276 Neb. 840 (2008).

Iowa allows claim for invasion of privacy between spouses. During the parties' marriage, the husband installed recording equipment secretly in his wife's bedroom. She did not discover the cameras for some time. Although the cameras did not catch anything illicit, the wife was very upset about the situation. The husband filed for divorce, and the wife alleged she was entitled to compensation for her husband's violation of her privacy rights. The husband argued that his actions were not tortious because his wife had no expectation of privacy in the home they shared. The Iowa Supreme Court did not agree, and held that a spouse had a reasonable expectation that his or her activities in the bedroom of the home were private when the spouse was alone in that room. Any right of access to the bedroom held by the husband did not include the right to videotape the wife's activities without her knowledge or consent. The Supreme Court determined the husband had violated the wife's privacy and affirmed the district court's decision to award her damages. In re the marriage of Tigges, 2008 Iowa Sup. LEXIS 165.

Parent must have legitimate reason to move out of state with child. Mother had physical custody of the couple's child. Mother and Father lived near each other, in a town on the Nebraska/Missouri border. Mother and child moved in with Mother's boyfriend, who also lived in the town, at the time of their divorce. Ten months after their divorce, Mother asked the court to allow her to move with her boyfriend to Big Lake, Missouri, which was 17.6 miles away. The child would continue to go to her school in Nebraska, and Mother would drive her the 17 miles from Missouri to Father's home. The district court granted Mother's request for the move. On appeal, the Nebraska Court of Appeals determined that, although the move was less than 20 miles away, Mother still needed to demonstrate a legitimate reason for removing the child from the state. In this case, the move was not based on employment reasons or remarriage, but Mother's desire to continue living with her boyfriend, which was not legitimate. Because Mother did not satisfy the initial threshold of showing a legitimate reason to move, it was unnecessary to determine whether the move was in the child's best interests. Curtis v. Curtis, 17 Neb. App. 230 (2008).

Child Support for high income parents determined on a case by case basis: The Nebraska Court of Appeals determined that in child support cases where the parents earn more than the monthly amounts listed in the Child Support Guidelines-in this case, the parents earned $31,190.17 a month-the amount of support could not be determined by a single method. Instead, the question of proper support in an above guidelines case is determined by the evidence which encompasses not only methodology but rather a variety of other matters relating to the circumstances of the parties and the children. Here, because the father was responsible for 94% of the support amount, the Court used that number to determine his support payment. Drew on Behalf of Reed v. Reed, 16 Neb. App. 905 (2008).

Spouse had duty to disclose expected bonus in divorce proceedings: The Nebraska Court of Appeals upheld a trial court's decision to divide a multi-million dollar bonus as marital property. Before trial, the husband learned he would be entitled to the bonus following a merger. He did not disclose this bonus to his wife, even though she specifically asked for information about bonuses in discovery. After the wife rested her case but before a decree had been issued, the wife asked the court to allow her to introduce evidence of the bonus. She was allowed to, and the trial court found the bonus was marital property. The husband appealed. The Court of Appeals held that that husband knowingly concealed evidence of the bonus by not supplementing his discovery answers, and affirmed the trial court's decision. Myhra v. Myhra, 16 Neb. App. 920 (2008).

Iowa Supreme Court awards alimony to former homemaker: A husband and wife divorced after 22 years of marriage. The husband was the sole shareholder in a successful corporation and earned over $500,000 per year. The wife had dropped out of college early in the marriage in order to stay home with their children. At the time of the divorce, she had not worked in many years. Each spouse was awarded $3.3 million in assets, and the wife was awarded $5,000 a month in alimony for 4 years. Both parties appealed. The Supreme Court determined that the lower court had not accurately taken into account the wife's sacrifices and role in the family during the marriage. She had enjoyed a high standard of living prior to the divorce, and could not earn more than $30,000 a year based on her skills. The Court awarded her $8,000 a month for three years in alimony so she could return to school, and $5,000 a month in alimony for seven years after that. This alimony award was both a rehabilitative award-to allow her to get an education-and a traditional award of alimony. In re Marriage of Becker, --- N.W.2d --- (Iowa 2008).

Name change must be in the best interest of the child: The Nebraska Supreme Court affirmed a district court's decision to refuse the name change of a minor child, where the child's surname was not the same as either his biological mother or biological father. The mother had remarried and thus, the child's name would not be the same as either of his parents. The mother testified the child wanted the new name and was using his mother's new last name at preschool, and the child would feel closer to his new stepfather if the name were changed. The court found that, although the name was different than both his parents, the mother's testimony did not, on its own, indicate the child's preference for the new surname, and her desire for the child to be closer to his stepfather was not a relevant factor to be considered. The district court determined the mother did not provide sufficient proof to show the name change was in the child's best interests. The Supreme Court affirmed, over the dissenting justices, who argued that a child with a surname different from both parents' surname should always be considered when determining whether a name change is appropriate. In re Change of Name of Slingsby, 276 Neb. 114 (2008).

Promissory note conflicts with Nebraska divorce decree: The Nebraska Supreme Court determined that a party cannot enforce an acceleration clause contained in a promissory note signed by a former spouse. The promissory note involved the terms of payment of the wife's alimony. An acceleration clause was unenforceable because it was inconsistent with the parties' divorce decree. The intent of the promissory note was not to create a debt but to modify the terms of the preexisting obligation in the decree without approval of the court. Absent a valid modification through the court, the terms found in the decree regarding the alimony obligation controlled over the promissory note. A party cannot attempt to change the terms of an obligation in a way that conflicts with a decree, absent a valid modification. Marcovitz v. Rogers, 276 Neb. 199 (2008).

Guardian must have notice before custody determination is made: The Iowa Supreme Court found that the guardian of a Child in Need of Assistance should have had advance notice that the State wanted to modify custody arrangements. The guardian, the grandmother of the child, did not have any advance notice of the State's intent to seek a modification, and at a review hearing, the guardian did not agree to proceed with any changes in the custody. The district court modified the custody over her protest. The Supreme Court held the district court was not able to proceed to modify custody at that hearing without the guardian's consent. The State should have provided notice ahead of time so the guardian would have been aware of its position. In the Interest of K.B., ---N.W.2d --- (Iowa 2008).

Sole legal custody appropriate where history of domestic abuse: In Iowa, a district court granted joint legal custody to both parents in a divorce, and granted primary physical custody to the mother. The district court granted joint custody in part because the father spoke better English than the mother, who spoke very little English. The mother appealed the decision, arguing the father should not have legal custody due to his extensive history of domestic violence, including an attempt to run over the mother and one of his children. The Court of Appeals reversed the district court's decision, finding that evidence of domestic violence created a rebuttable presumption against granting joint legal custody. Here, the domestic abuse history was so extensive that it clearly outweighed the fact that the father spoke English better than the mother. In re Marriage of Hamoda and Shakshak (Iowa Ct. App., August 13, 2008).

Court finds premarital agreement did not exclude division of assets acquired during marriage. The parties entered into a premarital agreement. Some of the husband's property was inadvertently omitted from the agreement. The district court gave the wife part of a savings plan listed as part of the husband's premarital property in the agreement, as well as part of an annuity that was omitted. The husband appealed, arguing that she was not entitled to any of the plan or annuity. The Supreme Court held that the savings plan and annuity had earned money during the marriage. The wife was entitled to part of the money because the premarital agreement did not allow the husband to keep the benefits earned from the plans during the course of the marriage. Sitz v. Sitz, 275 Neb. 832 (2008).

Wife not entitled to payment for husband's family farm stock. In a dissolution action, the district court did not award a "Grace award" to the wife. A "Grace award" is a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse's gifted or inherited stock or property in a family agricultural organization. The wife argued that she should be awarded a cash award because the husband's interest in the corporation was considered premarital property. The Court of Appeals upheld the district court's decision, stating the "Grace award" was not warranted here because the parties had a substantial marital estate apart from the interest in the stock, and the estate had been fairly divided. Charron v. Charron, 16 Neb. App. 724 (2008).

Lump sum child support payment approved by the Supreme Court. The parents of a minor child made an agreement where the father would pay the mother $14,000 in a lump sum and the mother would give him a credit towards any future child support. The father was later order to pay child support. The Supreme Court held the agreement was enforceable and the father was entitled to a credit for the payment. Although public policy forbids enforcement of a private agreement that purports to discharge a parent's liability for child support, the agreement here did not discharge the father's obligation. The lump sum payment was made for the benefit of the child and equity required the payment to be considered a lump sum child support payment, not a waiver of support altogether. The father was still obligated to pay support in the future. Jensen v. Jensen, 275 Neb. 921 (2008).

Iowa law gives weight to child’s preference regarding physical care: The thirteen year old daughter testified in her parents’ dissolution trial. She expressed a strong, unequivocal desire to live with her mother, and testified that her younger brother felt the same. The district court determined that the daughter was credible and sincere in her testimony, and granted the mother physical care of the children. The father appealed. The Iowa Supreme Court determined that Iowa law gives weight to a preference expressed by a child for one parent to be the primary caregiver over the other parent, depending on the age, maturity, and strength of the preference of the child. Here, the child was credible and mature enough to testify as to that decision, and the Supreme Court awarded physical care to the mother. In re Marriage of Powers, --- N.W.2d --- (Iowa 2008).

Action to enforce dissolution decree not barred by claim preclusion: The parties divorced in 2004. The decree stated that the ex-husband shall repay a debt to the wife’s father, the amount of which was in dispute. Following the divorce, the ex-husband did not repay the debt. The wife eventually paid her father the debt owed by the ex-husband. She later filed a motion to enforce the decree in order to recover from her ex-husband the money she had paid. The district court ordered the ex-husband to pay the wife back. He appealed. The Court of Appeals determined that because neither party insisted the district court in the original divorce decide the amount of the debt, they had relinquished their right to litigate the disputed issue later on; therefore the issue was barred by claim preclusion. The Supreme Court reversed. Because the wife was not relitigating who owed the debt but was simply seeking to enforce the decree, claim preclusion did not prevent the enforcement of the decree as it was written. In re Marriage of Ginsberg, ---N.W.2d --- (Iowa 2008).

Offset method should be used in calculating child support for joint physical care: Where the court awarded joint physical care to the parents of three children, but provided that one parent had actual physical care for more days a year than the other parent, the district court did not calculate child support using the offset method provided in the Iowa Child Support Guidelines. The Iowa Supreme Court determined that child support in all joint physical care cases should be decided using the offset method, even in cases where one parent may have the children for more days each year. However, a district court may vary the amount of support if it makes written findings supporting a departure from the Guidelines. In re Seay, ---N.W.2d--- (Iowa 2008). 

Court should not have invalidated adoption by lesbian "step-parent": Two women, Heather and Jamie, were in a relationship, and two children were born to Jamie. Heather adopted both the children. Heather and Jamie ended their relationship, and Heather asked the court to determine custody and related issues regarding the children. The district court decided that Heather's adoption of the children was not valid and thus, it could not decide any issues relating to custody. The Supreme Court held that the court granting the adoptions had jurisdiction over the issue, and the district court had no grounds to invalidate the adoption court's decision. Thus, the district court should have determined the issues relating to Heather's request for custody. Schott v. Schott, 744 N.W.2d 85 (Iowa 2008).

Nebraska court denies increase in alimony after woman voluntarily leaves job: Ex-wife sought modification of an alimony award after her ex-husband's income increased by $200,000 in two years. She argued that his increase in income, coupled with her return to school after quitting her job, showed a material change in circumstances, entitling her to more alimony. The Supreme Court determined that the ex-husband's increase in salary was not substantial because he had significant expenses while living and working in India. Additionally, the ex-wife had quit her job for personal reasons, not because of schooling, and her voluntary reduction in income was not to be rewarded by increased alimony. Simpson v. Simpson, 275 Neb. 152 (2008).

Nebraska Supreme Court determines date of valuation for investment accounts: In a 1998 divorce decree, the district court awarded half of the husband's investment accounts to his wife. The husband was responsible for filing the QDRO (Qualified Domestic Relations Order) to initiate the transfer of funds to the wife. The accounts were never divided. The wife attempted many times to get her half of the accounts but after 8 years, had not received her funds. The value of the accounts dropped in those 8 years. She eventually sued. The Supreme Court determined that the wife was entitled to her share of the accounts, and that the value of her share should be based on the value of the accounts on the date of the divorce decree. Blaine v. Blaine, 275 Neb. 87 (2008).

Court modifies child support order using other state's laws: The Nebraska Court of Appeals determined the district court did not have the power to use Nebraska substantive law to modify a New Mexican child support order. The district court was required to use the law of New Mexico when considering whether to change the original child support order. Wills v. Wills, 16 Neb. App. 559 (2008).

Premarital agreement valid: The Nebraska Court of Appeal determined a premarital agreement was enforceable even though the woman's attorney was not present when she signed the agreement. She had an attorney who advised her prior to the signing, which was adequate representation. Although her husband's assets had not been fully disclosed at the time of the signing, the agreement was not unconscionable because the parties' intentions were clear and both were represented by counsel. Edwards v. Edwards, 16 Neb. App. 297 (2008).

Standard for terminating parental rights in Nebraska: The Nebraska Court of Appeals was asked to determine whether to terminate the parental rights of a mother convicted of conspiring to kill her child's father. The court found that incarceration cannot be the sole reason for terminating a parent's rights. When deciding whether to terminate a parent's rights, a court should look at the crime committed and the victim of the crime. Timothy T. v. Shireen T., 16 Neb. App. 142 (Nebraska 2007).

Marital Assets in South Dakota: The South Dakota Supreme Court held that inherited property separated from the couple's marital property for many years was a marital asset. Inherited property, although always kept separate, was included in the marital assets because one spouse contributed to the upkeep and management of the inherited property through his farming and work for the family. Halbersma v. Halbersma, 738 N.W.2d 545, (S.D. 2007).

South Dakota child support determined by child's actual needs: The South Dakota Supreme Court recently determined the standard for child support in cases where parents made more than $10,000 per month. The standard for determining child support is the child's actual needs and the standard of living when the parents' income is higher than what is provided in the state's child support schedule. McKittrick v. McKittrick, 732 N.W.2d 404 (S.D. 2007).

Joint physical care plans in Iowa: In cases where joint physical care is shared by divorced parents, the chances of a successful joint care plan are reduced when one parent objects to the agreement. The court will consider the child's best interests and the ability of the parents to communicate and cooperate. In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007).

Debt allocation in Iowa divorce cases: The Iowa Supreme Court determined that debt accumulated by one spouse after divorce proceedings had been filed was not part of the marital estate. The court found the debt was a dissipation of the couple's assets when the spouse could not explain how he had gotten so much debt, and the debt was not related to household or business expenses. The spouse was solely responsible for the repayment of the debt, which was not included in the couple's property. In re Marriage of Fennelly and Breckenfelder, 737 N.W.2d 97 (Iowa 2007).

Child support modification in Nebraska: In order to modify an order for child support in Nebraska, the parent seeking the modification must show a material change in circumstances has occurred subsequent to the entry of the original decree, justifying the requested change. Among the factors to be considered in determining whether a material change of circumstances has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support is paid and whether the change is temporary or permanent. Kramer v. Kramer, 15 Neb. App. 518 (Nebraska 2007).

Joint physical care in Nebraska: When determining whether a joint physical care custody arrangement is appropriate, based on the child's best interests, the court will look at all the circumstances and decide. Zahl v. Zahl, 273 Neb. 1043 (Nebraskas 2007).

Parents' interest in termination of rights: In Nebraska, the fact that a child was in foster care 15 months out of the last 22 months is not proof of unfitness. The parent has a commanding interest that must be considered when the state is deciding whether to terminate the parent's rights. In re interest of Xavier H., 274 Neb. 331 (Nebraska 2007).

Child support agreements in South Dakota: Two parents made an agreement that they would not seek child support for the child in their care. The court found that parents cannot contract away obligations for future child support, and that one parent's independent financial means does not relieve the other parent of child support obligations. Dahl v. Dahl, 2007 S.D. 64 (South Dakota 2007).

Social Security benefits and marital property: The South Dakota Supreme Court determined that social security benefits are a factor to be considered when dividing marital property in a divorce action.Johnson v. Johnson, 2007 S.D. 56 (South Dakota 2007).

Abandonment in South Dakota: Total desertion or abandonment of a child must be shown by clear and convincing evidence. The parent must have the intent to abandon the child and give up his parental obligations. The fact that the father was out of state did not mean he had abandoned his daughter when he attempted to contact her and sent her gifts and letters over the years. In re Termination of Parental Rights over T.E.L.S., 732 N.W.2d 740 (S.D. 2007).

Debt allocation in South Dakota divorce cases: A spouse's personal guarantee on a business loan was considered a contingent liability and thus, the court did not deduct the loan from his total assets when dividing marital assets. Contingent liabilities are extremely remote and the likelihood of having to pay is little. Speculative contingent liabilities should not be considered in apportioning the parties' assets for purposes of a property division. Larson v. Larson, 2007 SD 47 (South Dakota 2007).

Name changes for minor children in South Dakota: A child whose parents were not married was given the mother's last name on her birth certificate. Eighteen months after the child was born, the father filed a petition to change his daughter's surname to his. The issue of what surname a child should use is guided by a determination of what is in the best interest of the child. Many factors are to be considered in a name change, including the child's preference and identification of the child as part of a family unit. In re Name Change of L.M.G., 738 N.W.2d 71 (S.D. 2007).

Contempt for failure to follow divorce decree: In Iowa, a man was found in contempt of court and sentenced to 30 days in jail for failing to pay his wife certain expenses as ordered in their divorce decree, including unpaid medical and dental costs for his children. A party is not excused from complying with the divorce decree simply because he is dissatisfied with its terms. Ary v. Iowa Dist. Court for Benton County, 735 N.W. 2d 621 (Iowa 2007).

Equitable division of business assets in Iowa: Where a couple had substantial business assets held in the wife's name, the court determined the value of the couple's business after listening to experts. Interest was awarded as part of the assets because the wife was given six years to pay her husband his share of the business assets. Finally, it was appropriate to place an equitable lien on the wife's stock in the business to ensure the assets were paid. In re marriage of Keener, 728 N.W.2d 188 (Iowa 2007).