FAMILY LAW FINAL EXAM

Exam length: THREE HOURS

Exam Date: Saturday, December 11, 1993

Exam Time: 1:00 p.m.

Professors Klas & Oliphant.

1. For anonymity, use you assigned test number.

2. Put your test number on this page and on all bluebooks that you use.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office during the firs 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUE BOOKS AND THIS EXAM AT THE END OF THE PERIOD.

6. Graduating Seniors: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT ON ALL BLUE BOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.

7. TYPING AREA. If you are going to type your examination, the typing area is located in the old Boardroom (first floor, room #107). You must return the exam to this room at the conclusion of the exam period.

STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

4. Knowledge of any violation should be promptly reported.

VIOLATIONS OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

Special writing instructions

1. Please write the examination using a pen, not a pencil.

2. Please write on every line, not every other line.

3. Please write on only one side of a page.

4. As noted above, you may use your statutes and general rules of procedure, as long as they are not annotated. They may be indexed, tabbed, or have your own table of contents or you may have various sections underlined or highlighted.

5. Suggested time for each question: One hour and thirty minutes. Don't spend so much time on one question that you don't do a good job on the other.

QUESTION 1.

Assume that P is a real estate broker. Before P married R, P owned three Houses: House A, House B and House C. When the three Houses were originally purchased, P paid $75,000 (market value) for each one (totaling $225,000). P paid $25,000 cash as a down payment on each House at the time they were purchased (totaling $75,000). This left initial mortgages of $50,000 on each House. When P married R the mortgage on House A was $25,000 and the mortgage on House B was $25,000. At the time of the marriage, P had fully paid off the mortgage on house C (there was nothing owing on it.) The market value of each of the three Houses at the time P married R was $100,000.

The couple's marriage lasted 20 years. During the entire time of the marriage they lived in House A and considered it their home. They continued to rent out Houses B & C. From the rental income they eventually purchased another House, House D. At the time of the purchase of House D it had a market value of $100,000. Using money received from the renters of Houses B & C, the couple made a down payment of $50,000 on House D. They then rented out House D. At the time of the dissolution, the market value of House D had not changed, however, the mortgage has been reduced so that only $40,000 is owed on it. The market value at the time of the dissolution on Houses A, B and C is $150,000. (Each House is worth $150,000 on the market.) Neither House A nor House B had a mortgage when the couple dissolved their marriage.

During the marriage P kept a separate account into which P put all of the rental income from all Houses (B, C, & D). After using the money to purchase House D, there was $40,000 left in the account. At the time of the dissolution, there is $55,000 in the account. P also purchased an expensive car for $50,000 about a year before the marriage collapsed. P claims that it was purchased using income from the three Houses. Title to the car was only in P's name. Note that at the time of the divorce, neither house A or B had a mortgage on it.

Prior to the marriage (in 1973) P and R executed an antenuptial agreement. In the agreement R agreed that all of P's nonmarital property, including any income from property or properties, would remain P's nonmarital property during the marriage. The agreement was witnessed but not notarized; P's lawyer drafted the agreement and it is clear that R was explained and understood the consequences of the agreement. In return for signing the agreement, R agreed to accept $10,000 in cash, should the couple divorce.

Assume that because of the couple's current financial picture the court awarded R permanent maintenance of $400.00 per month. Furthermore, assume that R, who has been a traditional homemaker, has not been able to get a job outside the home since the marriage broke down. R has a high school education and was a clerk in a local store before marriage.

P insists that all of the property including the four Houses, car and bank account are all P's property. R claims the antenuptial agreement is void and that R is entitled to a portion of each house, the bank account and the car.

Discuss all of the property and antenuptial agreement issues. Calculate and show your calculations if necessary to support your discussion of the property issues. Assume that Minnesota law applies to the dispute. Note the effective date of Minnesota's antenuptial agreement.

QUESTION 2:

Assume that P and D (both Minnesotans) conceived a child during a "wild spring weekend" in Fort Lauderdale, Florida. At the time D was a high school senior (over age 18) and P was a junior in college. After the weekend they both returned to Minnesota, however, they didn't see each other again for over two years. D didn't tell P she was pregnant or that she gave birth to G. In fact, D refused to tell anyone who was the father of G.

When G was 16 months old, a friend of P's told him that D had a child out-of-wedlock. The friend observed that the child had many of P's features. Because of P's concern that he might be the father of the child, he arranged a meeting with D. At that meeting D said that she thought P was the father, however, she said should would never let P see the child.

Following the conversation, P brought a paternity action in which blood tests indicated a 99.06 probability that P was the father of G. P took D's deposition during which she denied that P was the father or that the two ever had sexual intercourse. When asked to name the biological father, D refused. P moved for summary judgment on the issue of paternity; D demanded a jury trial. The trial judge granted P's summary judgment motion and found that the blood test "removed all doubt." P was recognized as G's father.

P then petitioned the court for custody and/or visitation. P seeks permanent custody of G, a change in G's surname to that of P's, and attorney fees in the amount of $2,000.

The information supplied the trial judge on the custody issue indicates that P is a single 25-year-old male with a Masters Degree in business administration. He is employed with a local lumber company as assistant personnel manager that pays him $28,000 annually. If given custody, he says he intends to put the infant into his company's day-care facility while he is working. His mother and his significant other (SO) have volunteered to help him care for the child if he is unable to do so because of an outside commitment. P has no religious affiliation and does not attend church. His significant other (the two live together out-of-wedlock) has submitted an affidavit saying she has no reservations about raising G.

There is a police department report in the court file that indicates that four months ago SO called 911 and claimed P had assaulted her. However, investigating officers could not find evidence to substantiate the call. No arrests were made.

The court file indicates that D is 20-years-old, lives with her boyfriend, is pregnant with a second child, and receives AFDC as support for G. She says she quit high school in her senior year because of the first pregnancy and has been employed on a part-time basis for a local department store on a couple of occasions. She says that she can spend most, if not all, of her time raising G and has been G's primary caretaker.

D's boyfriend is not presently working. A police report in the file indicates that in 1992 he was convicted of driving while under the influence of alcohol and for possession of a small amount of marijuana.

P's expert psychologist, Q, says that P will make a better parent than D. In Q's opinion P is mature, very concerned about the child, has good work habits, and will insure that the child has "every possible opportunity." Q says that D is immature, doesn't keep a tidy house, and spends too much time with her boyfriend. Q believes that the boyfriend is not a good influence on G because of his "lazy work habits." Q noted that P obviously loves the child and stated "the failure of D to inform P he was a father had a serious negative emotional impact on P because P has been deprived of two years of nurturing and seeing his child grow."

Q recommended that P receive sole legal custody and that D be given reasonable visitation. Alternatively, Q recommended joint physical and legal custody of the child.

A court-appointed social worker SW testified that both parents will make acceptable parents for the child. However, because D has been the primary parent, SW recommended that D receive sole legal and physical custody with P receiving reasonable visitation. SW noted that she had concern with D's boyfriend because of his drinking and possible drug use, but felt D was mature enough to handle any crisis. SW noted that P has no religious affiliation while D attend the local Lutheran church about once a month. SW also noted that it was hard to evaluate how well P could care for the child because he had not yet even visited with it.

P cites Minn. Stat. § 518.175, subd. 4 and subd. 6 (1992) as support for giving him sole legal and physical custody. P also insists that a guardian be appointed pursuant to Minn. Stat. § 518.165, subd. 2 (1992).

Please discuss the following three questions and only these questions.

Assume the following Minnesota statute is in effect:

"If paternity has been recognized, the father may petition for visitation or custody rights in an independent action under section 518.156. The provisions of chapter 518 apply with respect to the granting of custody and visitation."

1. Was the paternity decision correct? Why or why not? What is your analysis?

2. Assume you are the judge. Explain in detail to whom you will give custody of G. (Will you give joint, sole, or what?) Will you allow a name-change? And to whom will you award attorney fees, if anyone? (Don't suggest we need more facts.) Provide a careful analysis.

3. Explain whether the statutes P has cited apply? Why? Why not? (Provide detailed reasoning.)