Family Law Case Summaries
Iowa • Nebraska • South Dakota
“It is ill-advised for a spouse to waive alimony in consideration for a waiver of, or to offset, a child support obligation.” The husband earned substantially more than the wife and likely would have been obligated to pay alimony. However, the wife anticipated that the alimony would have been offset by child support so she agreed to waive her right to alimony and he did not seek child support. Even though these were deemed ill advised by the court, the district court approved the reciprocal waivers upon entering the decree. After the divorce the husband lost his job and applied for state benefits. This triggered the state to seek child support from the wife. The state is not bound by the waiver of child support entered into by the husband. Whenever the state is asked to provide support, it is not bound by the decree, however, if the state is not providing support then the parties are bound by the decree.
Parent not entitled to altered visitation during summer months even if they are off work and the child is at the other parent’s home unsupervised. Parents were disputing visitation and child support. The father asked for altered visitation during the summer months because he was off work and available to spend time with the child. The court heard testimony and determined that the child was old enough to stay home alone during the mother’s working hours. The court determined that because the child was old enough to stay home during the mother’s working hours, the father was not entitled to visitation just because he was not working during the day.
Until this hearing the father had been voluntarily been paying child support. As a result of this hearing the father was ordered to pay a higher sum of child support. The mother requested that the father be required to pay retroactive support for the difference. The court denied this request because this was the original determination of child support by the court. Additionally, the mother had contributed to the delay in the determination of child support by the court and she was therefore not entitled to retroactive support.
Property that was owned before marriage is only a factor to consider when splitting marital property. Husband and Wife were splitting up. During the process the husband claimed that he owned some land prior to the marriage. This appears to be disputed, but he contends that he purchased the land with inheritance and borrowed against other assets he owned before the marriage. He also claimed that he used inheritance to purchase the land. The court considered the fact that the couple had been married for 15 years, the land had appreciated during that time, a building had been erected on the land, and any inheritance was deposited into a joint checking account and was marital property. In consideration of all those factors, the court determined the equitable division required the wife be awarded half the value of the property. Because she was successful on appeal the court also awarded her a portion of her attorney’s fees.
Court did not abuse discretion in valuing marital home between both parties’ valuations and also did not abuse discretion in valuing husband’s 401k as of the date of separation. Husband and wife separated and the lower court valued the husband’s 401k as of the date of separation which was nearly 4 years before the complaint for dissolution. The Court recognized that there is no hard and fast rule concerning the date on which marital property is valued. The husband claimed the value of the home was between $15,000 and $16,000 while the wife valued the home at $35,000. The lower court valued the home at $23,078.78 and ordered the husband to pay the wife half of the equity they had acquired in the home. The Court held that both of these decisions were reasonable and were not an abuse of discretion.
Overpayment does not result in credit when circumstances of physical custody have changed. The parents were awarded shared physical custody in their divorce decree and joint legal custody. The father was ordered to pay $897 per month for child support. The father began to work out of state more and began to pay $1400 per month voluntarily. Later, the court increased the child support to $1823.11 per month. He claimed that he was entitled to a credit because he was, paying ahead to handle the inconsistencies in his employment. He had paid approximately $14,000 in excess of the child support judgment. The court determined that the original support amount was awarded in considering the shared physical custody. Because of the fathers out of state employment the mother now had primary physical care of the children. The court was convinced that the extra payment by the father was to essentially modify the child support in recognition of the increase in the mothers physical care of the children. According to the court, the payments were made in accordance with the changed living situations and there was no equitable consideration that warranted the father being entitled to a credit for the overpayment.
Parental relationship not terminated despite substance abuse problems: Parents of a minor child were caught smoking marijuana in the child’s presence and the Department of Health and Human Services was called. Child lived with his father while her mother went through a substance abuse program, at which point she resumed living with his mother. The child was again removed from his home a year later for continued drug use, and the child lived with a family member. The child returned to the care of his mother when she again relapsed, and the child was placed with his grandparents. Between August of 2008 and June of 2011, the mother tested positive for marijuana 17 times. The State ultimately filed a petition to terminate parental rights, and after June of 2011 mother tested positive for drug use another eight times. Witnesses were called and testified that other than her substance abuse, she was a good parent. The petition to terminate the parental relationship was granted, and mother appealed. On appeal, the court was asked to determine if termination was in the child’s best interest. The court looked at the closeness of their relationship, and the fact that the child expressed a desire to remain close to his mother. Based on this evidence the Court found that terminating the parental relationship would be detrimental to the child, and the termination order was overturned.
Inherited property divisible after 50 year marriage and after jointly spending nearly half the inheritance proceeds. Wife filed for divorce after 50 years of marriage. In late 2006 or early 2007, Husband inherited $306,849 from his mother, and the couple subsequently spent $160,000 of this inheritance on trips and otherwise improving their standard of living. The money was left solely to the husband, but the wife also had access to the account. A primary issue at hearing was whether the court should equitably distribute the inherited property. They noted that inherited property is not divisible unless failure to do so would be inequitable. The court held that based on the length of the marriage, and the standard of living enjoyed by the parties prior to divorce, it would be inequitable to award Husband all of the inherited property. The inherited property was therefore equitably divided between the parties.
Imprisoned father determined to have “abandoned” children; lost parental rights. Twins were born to Jamie and Holly in April of 2010. Prior to their birth, Holly decided to put the children up for adoption through Bethany Christian Services-a decision Jamie did not agree with. The children were born and Holly signed a release of custody of the children. A few days after the children were born, Jamie failed a drug test, his probation was revoked, and he was sent to prison. Bethany Christian Services moved to terminate Jamie’s parental rights. The court stated that Jamie had not “taken prompt action to establish a parental relationship with the children.” He made no inquires about their health after birth, he provided no support to Holly during the pregnancy, and had done very little to demonstrate a willingness to assume custody of the children. The Court found that Jamie had abandoned the children, and the decision was upheld on appeal.
No. 1-282 / 10-1731
IN THE INTEREST OF B.B.A.D. and B.B.B.D., Minor Children, J.S., Father, Appellant.
School District not liable for child’s fall, even though the child required constant supervision and fell during school hours. Mother appeals a jury verdict in favor of defendant School District. Mother brought the claim on behalf of her son, who was handicapped and required a special walker and supervision while at school. Mother argued that her son’s fall was foreseeable based on his condition, it was easily preventable, and the jury was required to find that the defendant was negligent because the supervisor was not close enough to her son when the incident occurred. Mother also argued that the court abused its discretion in reading the following jury instruction, “The mere fact an accident occurred or a party was injured does not mean a party was negligent.” The Court determined that the jury instruction was an accepted and proper instruction, and the jury could properly find that the School District was not negligent. Decision of the district court was affirmed in favor of the School District.
The Iowa Supreme Court finds that medical support payments were spousal support and subject to modification: The parties were divorced in 2004. As part of the dissolution, Husband agreed to pay to Wife $300.00 per month for health insurance costs. Wife remarried and Husband sought a modification to terminate his obligation to pay the $300.00 per month. The district court determined that the monthly health insurance payments were part of the property settlement and determined that, as such, were not modifiable. This was affirmed by the Iowa Court of Appeals. Upon further review the Supreme Court stated that as a matter of law a provision in a dissolution decree requiring one spouse to provide medical support in the form of health insurance payments to the other spouse is modifiable spousal support under Iowa Code §598.21(3).
Court expresses preference for percentage method in dividing defined benefit pension plans: Husband and wife were divorced on June 30, 1999. At the time of the dissolution, Husband had an IPERS pension plan. The dissolution decree awarded Husband 60% of the plan and Wife 40% of the plan. The husband’s state pension was a defined-benefit plan. Under a defined-benefit plan, the future benefit received is determined in advance, based on a benefit formula. Such a plan provides a benefit that is related to the employee’s earnings and length of service. There are two acceptable methods for dividing pension benefits: the present-value method and the percentage method. Under the first method, a court determines the current value of the plan and awards a spouse a share of the total. Under the percentage method, the court awards the spouse a percentage of the pension that is payable when the benefits mature. Although both methods may be used to divide a defined-benefit plan, the Iowa Supreme Court has expressed a preference for the percentage method. The present-value method presents problems because it requires the court to determine the present value of the plan before it can allocate a portion to the spouse. Determining the present value of a defined-benefit plan is complicated and requires actuarial science. This is partially because the present value actually represents a series of payments computed into one lump sum payment in current dollars. In expressing this preference, a court also considers the economic difficulty of paying a lump sum amount at the time of dissolution. In re Brown, 776 N.W.2d 644 (Iowa 2009).
Lack of cooperation in visitation schedule can be basis for modification of custodial provisions: The parties’ marriage was dissolved in August 2006. In May of 2008, the parties filed cross-petitions for modification of the custodial agreement. To change a custodial provision of a dissolution decree, the applying party is required to establish by a preponderance of the evidence that conditions, since the decree was entered, have so materially and substantially changed that the children’s best interests make it expedient to grant the requested change. The court stated that the Mother’s rigid attitude towards the implementation of the visitation schedule in the original dissolution decree and subsequent modification, which envisioned some degree of cooperation and flexibility between the parties, was prevalent throughout her testimony. The court determined the Mother’s lack of cooperation in communicating with the Father and facilitating his visitation with the children was a substantial change in circumstances necessitating a change in physical care. Father was awarded physical care of the children. In re Marriage of Haynes, 2009 Iowa App. LEXIS 1654 (Iowa Ct. App. Dec. 17, 2009).
The family farm was not a marital asset but the equity in the property was subject to division: Wife’s mother and father owned a farm in Marion County, which was to eventually pass to the wife and her sister. The Wife’s mother died and her father remarried. The father then sold the farm to the Husband and Wife at a substantial discount to “keep the farm in the family.” Although the farm was in the Husband’s and Wife’s name, the court found that the farm was the Wife’s and her Sister’s property. The Court concluded it was appropriate to exclude the farm from the property settlement in the divorce action. However, it determined that the equity in the farm was subject to division as marital property because marital funds had been used to update and maintain it. In re Marriage of Angier, 2009 Iowa App. LEXIS 1374 (Iowa Ct. App. Oct. 7, 2009).
Court upholds award to Wife of one-half of the marital assets: Husband contends that the court did not equitably divide the parties’ assets in the divorce proceeding. The equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or non-marital. The second step is to value the marital assets and marital liabilities of the parties. The third step is to calculate and divide the net marital estate between the parties. The purpose of a property division is to distribute the marital assets equitably between the parties. The Nebraska Supreme Court determined that there was no abuse of discretion in the property division because the court attempted to arrive at a relatively equal division of assets and debts and its award fell within the general rule that an equitable division of property was achieved so long as a spouse was awarded one-third to one-half of the marital estate. Ging v. Ging, 18 Neb. App. 145 (Neb. Ct. App. 2009).
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 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).
District Court can ignore agreement of the parties regarding child support calculations: The mother had physical care of the parties’ son. The father was awarded two months of summer vacation and was ordered to pay child support. The son later moved to the father’s home in Florida. The father sought to modify the previous child support order. The parties stipulated that support should be calculated based on joint physical care. The district court calculated the mother’s support at $439 per month. The Court of Appeals held that the district court was not bound to the parties’ agreement regarding calculation of support and was correct to find there was no joint physical care of the child. The mother’s child support could be reduced by 50% when the child was with her for more than 39 consecutive days; however, the mother was not entitled to an 80% reduction because the father would still have costs in maintaining the child’s permanent home. Lucero v. Lucero, 16 Neb. App. 706 (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).
