Family Law Case Summaries
Iowa • Nebraska • South Dakota
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).
