Oliphant - Family Law
Spring 1993
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QUESTION 1
ONE HOUR AND THIRTY MINUTES
Only discuss the antenuptial agreement; the distribution of the stock, and custody. Assume the following facts.
Assume that the couple involved in this dispute are Minnesota residents and that Minnesota law applies.
Assume the 14-year marriage between George, a well-off former professional quarterback with the Minnesota Vikings football team, and his spouse, Karon, a full-time homemaker with a high school diploma, broke down when George met Sandy, a wealthy architect. George has been having an affair with Sandy for the past four months. After the divorce, George intends to live with Sandy at her Malibu, California country estate when he's not traveling around the nation broadcasting sporting events (his current job).
George and Karon have two children, girls ages 10 & 12. Both have expressed a strong preference to the trial judge to live with George who they view as more exciting and with whom they say they have a very strong bond. Karon would be considered by most courts as their primary caretaker, although when George has been home he's spent as much time as he could with them.
A custody evaluation prepared for the court by a social worker recognized that Karon has been the primary parent for the children since birth. The social worker recommended that the couple receive joint legal custody but that sole physical custody be placed with George because of the "extremely strong psychological attachment the children have for him and because he is better able to cope with them at an adult level." During the couple's two-month separation the children have lived with Karon, who has twice refused to allow George to see them on weekends.
George has made it clear that if he is given joint legal and sole physical custody, he will see to it that Karon has liberal visitation with the children in the summer, at Christmas and on other holidays.
Evidence at trial indicated that after the divorce George is planning to move to California to live with Sandy and to take a job as the Vice President of the Oakland Raider professional football team. Karon opposes the move, especially if George receives custody of the children. She has asked for sole legal and physical custody of them. She introduced evidence indicating that George doesn't intend to marry Sandy, that he doesn't believe in God, and that he is a lax disciplinarian. The evidence indicated that Karon is a Sunday school teacher at the local Lutheran church and that the children regularly attend church with her every Sunday. Karon has the reputation of being overly strict with the children. Evidence at trial indicated that on occasion she has "spanked the children with a wooden spoon."
Sandy testified at the trial that she and the children get along well, that they will have great bedrooms, a riding stable and their own horses, a swimming pool, and a housekeeper if they are allowed to move with George and George lives with her on her country estate.
An antenuptial agreement was introduced into evidence during the trial. The agreement was executed in 1979, just after Minnesota's antenuptial statute took effect. All of the statutory requirements were met. The agreement contained a provision that declared in part that
"Should the marriage break down, George is to receive sole legal and physical custody of any children, should the couple have children. Karon shall receive $5,000.00 per month for 48 months in temporary maintenance, then nothing. The parties shall retain as their own all nonmarital property. Income from both party's employment during the marriage which is invested during the marriage in stock, bonds or real estate, remains the property of the party who earned the money."
Karon testified at the trial that she fully understood the terms of the agreement when it was entered. She said she voluntarily signed it, that there was no duress. She recalled that George insisted that she see a lawyer to represent her interests but she didn't want to. She explained she "never really thought she'd ever be divorced from George" and "it just didn't seem like the thing to do." She admitted that she carefully read most of the provisions of the contract. George asks that the terms of the contract be enforced.
During the trial the judge expressed concern over how stock given George by members of his family before and during the marriage should be treated. The largest amount of stock was for his family's cleaning business. George's parents, who built the business "from scratch," gave George and his sister each a 40% stock interest in the business.
Evidence during the trial indicated that George's role in the cleaning business during the past dozen years has been to act as an occasional media spokesperson and attend board meetings. He is a member of the family board of directors (there are only four including George). George testified he played no direct role in the day-to-day operation of the business, although if he doesn't like something, he is quick to tell his parents about it. George's mother is the President and Chief Executive Officer of the business. She testified that she makes most of the major decisions for the business, although on occasion she has relied on George's advice. All four members of the board annually voted to use excess earnings to purchase the real estate the company now owns.
The stock given George by his family before the marriage was valued on the day he married Karon at $1 million dollars. It is now valued at $10 million. (Value was determined by arriving at the dollar value of George's 40% interest in the business. No one disputes that current value.) The large increase in value is due to the fact that each year during the past ten years the business made a profit (called by George and his family at trial "retained earnings" or "excess profit.") All of the profit (retained earnings) was invested in real estate rather than being distributed to the stockholders.
George also received an additional $1 million in stock during the marriage from his parents as a gift "only to him." This is stock in Micro-Chip, Inc., a New York computer company, that George's mother purchased "on speculation." If sold today, this stock would return $2 million dollars cash.
Karon contends that the increased value in all of the stock during the marriage is marital property and subject to division. George insists it's all nonmarital.
Analyze and discuss the various issues a court would consider in ruling on the validity of the antenuptial agreement, the division of all the stock, and which parent should receive custody of the children.
QUESTION 2
ONE HOUR AND THIRTY MINUTES
Only discuss the jurisdictional issues including how various portions of the decree may be enforced; whether the use of contempt was proper; and whether the default judgment should be reopened.
Assume that P is a Minnesota resident at the time of the dissolution and that Minnesota law applies. Assume that R has never been to Minnesota until he brought the action to vacate the judgment.
Assume the following: P and R were residents of Iowa when their marriage broke up about five years ago. P left D and with the couple's three children P moved to Minnesota. Since living in Minnesota, she has purchased a small farm, an old car, some sheep and divorced R.
The dissolution action was begun three years ago. R was personally served with the dissolution petition in Iowa. Later, when he didn't respond, P served R with notice of the date of the dissolution hearing. R ignored everything; he didn't appear for trial or serve any response to the summons and petition.
When R failed to appear for trial, the court entered a decree dissolving the marriage and requiring that R pay $500 a month for child support until the youngest child reached age 18, $500 a month in temporary maintenance for five years and $2,000 in attorney fees. P was awarded the Minnesota farm she purchased upon moving here, legal and physical custody of the children with no visitation to R, the old car, the livestock and a 50% interest in the couple's Iowa home, which R still occupies.
R was personally served with the judgment and decree in Iowa. When R refused to make any payments pursuant to the judgment and decree, P brought an action in Minnesota to hold R in contempt. R was again personally served with notice of the hearing but failed to show up. After taking evidence, the trial judge found R in contempt and ordered R to comply with all future orders or spend seven days in jail. The court also found R $12,000 in maintenance arrears and $12,000 in child support arrears. The court ordered that R pay $5,000 towards P's attorney fees. Although R was personally served with the contempt citation, R has refused to obey it. Later, an arrest warrant was issued by the Minnesota court because of R's failure to comply with its order.
Assume that three years after the dissolution that R brings an action in Minnesota to reopen the default judgment. R alleges that P defrauded the court when she lied at the default hearing regarding the value of the farm and how she purchased it. R alleges that he recently discovered that P secretly withdrew $100,000 from R's pension account when she left Iowa and used those funds to purchase the Minnesota farm. R also asserts that P had no interest in the Iowa home because it was purchased entirely by R before the couple married with "nonmarital" funds. In her response to R's motion to vacate, P admits she lied to the court but alleges that it's no basis for reopening the case because R defaulted, owes over $50,000 in back child support and maintenance, and cannot trace the funds he allegedly used to purchase their Iowa home. R is now in a Minnesota jail, having been arrested when he appeared with his lawyer in a Minnesota court to have his motion heard.
Analyze and discuss the various issues a court would consider in ruling on the jurisdictional problems, the contempt citation, and the effort to vacate the judgment.
BEST ANSWERS
I. Custody
In a Minnesota dissolution proceeding child custody must be determined by a consideration of the best interests of the child. M.S. § 518.17 subd. 3(a). The legislature has set out twelve criteria to aid the court in determining what the best interest of the child would be. Id. at subd. 1(a). The statute directs consideration of all relevant factors, not merely the 12 enumerated.
A court may appoint a guardian ad litem to represent the interests of the children in any custody proceeding. If the court has reason to believe a child is the victim of abuse or neglect, the court must appoint a guardian. In either case, the guardian will advise the court re: custody, support and visitation.
The court may also order an investigation and report concerning custody in any contested custody proceeding. The investigation is to be conducted by the county welfare agency or dept. of court services. This report must consider and evaluate all the factors of § 518.17 subd. 1(a) and include a detailed analysis of these factors. In addition, if joint custody is sought or recommended the report must evaluate the factors of § 518.17 subd. 2, state the position of each party, the investigator's recommendation and reason for the recommendation and reference established means for dispute resolution between the parties.
In this case, although the court has received evidence that Karon ("K") has occasionally spanked the children with a wooden spoon, this is probably within her parental prerogatives. Minnesota criminal assault statutes contain an exception for parental physical discipline aimed at correcting a child's behavior. Without further evidence of more severe physical punishment or injury K's discipline methods probably fall within the exception and thus do not amount to abuse. Thus, the court is not required to appoint a guardian ad litem.
The social workers report presumably complies with the statutory directives and will be of great aid to the judge (not jury) who decides the custody issue.
A. The wishes of the parents.
B. Reasonable preference of the children.
C. Primary caretaker.
D. Intimacy of relationship.
E. Interrelationships between the children and parents and significant others.
F. Child's adjustment to home.
G. Length of time in stable environment.
H. Permanence of proposed custodial home.
I. J. K. Mental health, capacity to love, children's cultural background.
L. Abuse between parents.
In addition the court may consider the fact that K has refused to allow G to see the children on two weekends, M.S. § 518.175 subd. 4., however it is unknown whether this was interference with "duly established" visitation. It is evidence of an inability of the parents to cooperate.
The court shall use a rebuttable presumption that joint legal custody, if requested, is in the best interest of the child. The court must make detailed findings considering--ability to cooperate; methods of dispute resolution; whether sole authority would be detrimental; and whether interspousal abuse has occurred.
Here, the court only has evidence that K, on two occasions, refused visitation. Presumably, however the social worker did give a report with detailed findings on these factors.
The court should not consider the religious differences of the parents nor G and Sandy's unmarried relationship (at least as far as it does not affect G's relationship to the children) M.S. § 518.17 Subd. 1. It may be considered under the rubric of the permanency of the proposed custodial home. The court should not prefer K over G on the basis of the sex of the girls.
Since G has made clear his intention to move the court might incorporate this into her findings and thus avoid the Auge analysis. If not, then the presumption which allows a custodial parent to move out of state must be overcome by K (if G received custody).
K must make a prima facie case which demonstrates that the move is likely to enlarge the children's physical or emotional health in order to obtain an evidentiary hearing. Because not allowing a move would effect a change in custody, and custody must not be modified without a full evidentiary hearing, G's request to move should be granted unless K makes the prima facie showing. Then K must go forward with a preponderance of evidence that the move would endanger the children.
II. Antenuptial Agreement.
Antenuptial agreements are controlled by statute for nonmarital property and by the common law for marital property. The agreement must be analyzed for procedural fairness at the time of execution for substantive fairness at the time of execution and at dissolution.
Both the statute and common law require fair and full disclosure of assets and earnings and that two parties have the opportunity to consult with independent counsel. K has stated that she refused counsel after G's insistence, that she fully understood the terms of the agreement and that she was under no duress. The facts are silent whether G made full disclosure, but let's assume he did. If so, the agreement argues comports with procedural fairness under both the statute and the common law.
The court will not allow the provision regrading custody of the children--it is invalid as against public policy. Maintenance and property division are the proper subjects of the agreement however.
The nonmarital property will be awarded to G unless K meets her burden of proof (preponderance of evidence) that the agreement is unfair. G will have the burden of proof re: marital property.
The agreement does not seem to have been unconsciousable re: nonmarital property either at execution or now. Full disclosure helps avoid overreaching. However, as regards both income and maintenance the court may look at the agreement with a raised eyebrow. Since K would probably be awarded permanent maintenance in light of her lack of job skills and the length of the marriage, the agreement probably does not stand up to a procedural fairness analysis. The agreement must be examined at dissolution to determine if circumstances have so changed that they do not comport with what would have been the reasonable expectations of the parties and if unforseen events would make enforcement unreasonable. K's testimony that she never thought she'd be divorced from G does not really go to foresee ability, merely that she didn't foresee it, but the court is not going to like the radical destruction of her maintenance and property rights that the agreement works.
Conclusion
The non-marital aspects probably pass muster. The custody provision will be stricter and the marital property provision probably fails. G will bear a heavy burden to convince the court that this part is substantively fair.
III. Property Division
Minnesota is an equitable property distribution state. The court will make a just and equitable division without regard to fault and must make detailed findings demonstrating its consideration of such factors as length of marriage, age, skills, income of parties, etc. Each spouse will be conclusively presumed to have contributed substantially to the acquisition of marital property. All property acquired during marriage is presumed to be marital property regardless of form of title. Income is income is marital property, regardless of source. Nonmarital property is property acquired before marriage or as an exclusive gift to one spouse but not the other.
Micro-Chip Stock
This was given to G only by his parents during the marriage. Its appreciation is due solely to inflation or market forces since it is publically traded. In any event, the increase in value has nothing to do with G's efforts. The stock dividends, if any, would be marital property because they would be income. However the stock and its appreciation are both non-marital.
Family business stock
Nardini instructs that appreciation not due to inflation or market forces is marital property. In that case, a closely held business grew largely through the efforts of the husband (and his wife who made his home.) Although G is not as active a player as Mr. Nardini, evidence demonstrates that he does play a not insignificant role. He sits as a member of the board, which has voted to retain earnings each year instead of issuing dividends. Furthermore as Judge Cripper pointed out in his strong Duffy dissent, when a closely held business can decide to retain earnings rather than pay dividends, it is an impermissible elevation of the form of the asset to declare it to be non-marital. Had the company paid dividends, those dividends would have been marital property. Because of the discretionary decision of the board to retain earnings has affected significantly the value of the stock, that appreciation should also be deemed marital property.
Consequently, because G has had some ability to direct the company's operation and has had a similar ability to affect its decision to retain earnings, most if not all of the $9 million in appreciation should be marital property and be justly and equitably distributed.
QUESTION 2
Jurisdiction
Personal Jurisdiction over a nonresident must comply with both MN's long arm Statute § 543.19 and the U. S. Constitution's requirements of due process. Section 543.19 directs that jurisdiction may be had if a nonresident individual:
a) Owns, uses, or possesses real or personal property.
b) Transacts business within the state.
c) Commits an act within the state casing harm or
d) Commits an act outside the state causing harm in the state.
H is doubtful that R can be reached by any of the provisions unless it is a) owns real property. When P purchased the property she was still married to R and thus the property was marital property. An argument could be made that R's somewhat inchoate interest in the farm would be sufficient to satisfy a).
However, no other provisions apply, particularly not d). The appellate courts in Minnesota generally will not recognize that § 543.19 can reach a non-resident for such matters as maintenance child support or any other matter which would impose a personal obligation. The Impala Court's holding is not applicable here because there has been no real availment of benefits in Minnesota by R. The harm of not providing for one's family is generally insufficient to satisfy § 543.19 Ferguson, Mahoney, Impala's holding should be confined to its facts--there the respondent had conceived his children in MN, claimed tax deductions, etc.
Regardless, personal jurisdiction over R will not pass a due process analysis. There was no instate service, nor minimum contacts. There was no purposeful availment of the benefits of the forum (until he appeared 3 years later to move to reopen the judgment). Minnesota courts apply the following analysis to determine if due process will allow personal jurisdiction.
-- Here, none.
-- Here, no purposeful availment.
-- Here, none.
-- Here, Minnesota does have an interest in avoiding having R's children on AFDC. But this is insufficient to confer personal jurisdiction.
-- Minnesota probably not inconvenient to R, but this is insufficient.
Minnesota did have subject matter jurisdiction to grant the dissolution because P had been a resident for 180 days. It could also decide custody because it is the home state of the children under the UCCJA. Minnesota had personal jurisdiction over P because she was living here.
However, the lack of personal jurisdiction over R meant that the order for maintenance and child support was unenforceable. MN did have in rem jurisdiction over the farm (and car and livestock presuming they remaining in MN) and thus could award them to P providing proper notice was given to R. Proper notice--personal service was given. MN did not have in rem jurisdiction over the couple's Iowa property and could not properly award P 50% of it.
Contempt
Civil contempt, as distinguished from criminal contempt, aims not to punish, but to coerce behavior. In order to be legally valid, eight factors must be analyzed.
1. The court must have personal jurisdiction over the defendant.
-- This is a problem here because of no minimum contacts.
2. The original order or decree must specifically delineate the actions that are required or prohibited.
-- The judgment and decree here were probably specific enough to meet this requirement.
3. The decree must give adequate notice to the defendant of the timelines required.
-- Again, probably not a problem.
4. The complainant must specifically enumerate the actions which the defendant did which violate the original order.
-- Not a problem.
5. The court must give the defendant the opportunity for a hearing.
-- R was served with notice and could have appeared.
6. The burden of proof is on the defendant to demonstrate mobility, not unwillingness, to comply with the original order.
7. The court must make specific findings re: the defendant's unwillingness to conform to the original order.
8. The defendant must "hold the keys to the jailhouse" because the court's order specifically lists the action the defendant can take to get out of jail.
MN courts do have statutory authority to issue contempt citations for non-payment of child support or maintenance. However, in this case despite personal service of R with the judgment and decree with notice of the contempt hearing and with the contempt citation, Minnesota cannot assert the requisite personal jurisdiction that would validate the contempt proceeding. Thus, the citation is invalid, R's arrest without merit, and his continued confinement illegal.
Reopening the default judgment.
When there is fraud on the court--a willful misrepresentation which is intended to deceive--a court may reopen a judgment and relieve a party from its terms except those dissolving a marriage. M.S. 518.145 Subd. 2. Because the state has an interest in the marriage contract, the court sits as an interested party in its dissolution. Thus, any attempt to deceive or mislead the court on any material issue is a fraud upon the court. §518.145 specifically exempts fraud on the court from the one year limitation period which covers mistakes, newly discovered evidence or fraud against a party. Thus R's bringing the motion 3 years after dissolution will not be barred as untimely. P's admission that she lied should be conclusive.
In addition, R could argue that the judgment should be reopened because it is void. § 518.145 Subd. 2 (4). Because a court is without power to impose personal obligations without personal jurisdiction, any judgment by a court lacking jurisdiction is void.
In hearing R's motion, the court would not have to sort out whether R could trace the funds used to purchase the home to non-marital funds. It is sufficient that P concealed facts from the court to purposely mislead it and to obtain a favorable judgment at dissolution. This being admitted, the court could reopen the judgment as a material fraud on the court pursuant to § 518.145.
QUESTION 1.
Antenuptial
To be valid under MN § 519.11 this agreement must have been executed prior to the marriage, there must have been full and fair disclosure of the earnings and property of each party and the parties must have had an opportunity to consult with their own counsel. It seems from the facts that these factors were met. The contract, therefore, can determine rights as to the couples nonmarital property. Because the procedural factors were met here, the contract can probably be upheld as to the nonmarital property from a procedural standpoint. Karon's lawyer can attack it from a substantive fairness level. There are two important points in time to consider. First, the time of execution, and second the time of dissolution. What were the parties reasonable expectations and has anything occurred that could have altered those. Mainly we would be looking for things that couldn't have reasonably been foreseen by the parties at the time of execution. Here, I would question whether Karon knew she would be staying home as a mother, rather than earning a living outside the home. If not, she probably wouldn't have agreed to some of these provisions. Second, did both parties perceive what two children would do to their lives. Did Karon really know what her expenses would be.
Next, I would focus on the custody and maintenance provisions. First, custody can not be determine by a antenuptial agreement. Custody decisions ultimately lie with the court. This part of the contract will be invalid, and the court will apply a best interest analysis (I will get to this later) in making this determination. Maintenance can be limited by a valid antenumptial. This provision, however, will be heavily scrutinized. Normally, if an agreement of this type is procedurally valid the burden rests on the person contesting the agreement to show why it should not be upheld. In the case of maintenance, however, we apply a common law standard. Under common law these agreements had to have valid consideration to be upheld. There were two types of consideration. First, the marriage itself was seen as the consideration for the execution of the agreement. Second, the property or financial settlement was seen as the consideration for giving up your marital rights to this stuff. If the second type of consideration was found to be inadequate, then fraud was presumed. To overcome this one person seeking to uphold needed to show that there was full disclosure of earnings and property, adequate consideration, and no duress in getting the other party to sign. Here, Karon admits she voluntarily signed the contract understanding its terms. She also admits that George advised her to see another lawyer evidencing his lack of coercion. I would say, procedurally there was no fraud here, so again she will need to attack it substantively. Clearly, she was a traditional homemaker for 14 years. The maintenance described in this agreement is rehabilitative, and may not be reasonable now. Because she has been out of the work place so long she may find it difficult to get back in and make a go of it. Without this agreement she would be eligible because of her inability to self-support (high school education only) and lack sufficient property to live in the standard to which she has become accustomed. I think there is a good argument that her reasonable expectations are not being met here.
Also, the end of the agreement makes reference to what would normally be deemed marital property (stocks, bonds, real estate acquired during marriage.) Because this is marital property the analysis would be common law as I have just applied in the preceding paragraph. George, therefore, will have the burden of showing there was no fraud. Clearly, this provision looks like both parties expected to be generating income during the marriage. It looks as if only later did Karon decided to be full time mother. This would be a good substantive fairness argument that would show that the couples' reasonable expectations had changed drastically. Also, Karon states that she didn't think they would get divorced. An argument could be made that she didn't want the divorce, George did, and therefore, never would have expected to be faced with this agreement.
Stock
All property acquired during the marriage by either party is presumed to be marital property unless the party seeking to show it is nonmarital proves this by a preponderance of the evidence. This is the case regardless of whose name the title is in. To show property is nonmarital one must show it was a gift, bequest, devise or inheritance to only one of the spouses, was acquired before the marriage, is acquired in exchange for nonmarital property, is acquired by a spouse after the valuation date or is excluded by a valid antenuptial contract.
Here, George was given $1 million in stock in a family owned business before his marriage. This amount is definitely nonmarital property since he acquired it prior to the marriage. The problem here lies in the fact that at dissolution the stock is now valued at 10 million. Karon wants the increase in value to be considered marital property. In Minnesota marital property is divided on a just and equitable basis (without regard to marital misconduct so George's affair won't cause him to lose on this). The factors to consider when making this division include: length of marriage (14 years so good argument for fairly equal split), prior marriages (looks to be none), age, health, occupation (Karon has no outside source of income), employability (Karon high school grad.), income of each party (argue Karon deserves more in the settlement because she will make less down the road), etc.
Getting back to the determination of whether the increase in value is marital property or not, Courts will look at whether the appreciation was due to active or passive investment. Passive is like the market forces make the value go up and neither spouse puts any effort into making this happen. If the investment is passive it will retain its nonmarital character even as to the increase in value.
In this case, I think there is a good argument that this was active appreciation. First, George was on the board of directors of which there were only four members. Second, it was a closely held family business. Even if he wasn't involved in the day to day operations he still had a voice (and used it) in the decision making process. Also, he used his position as a semi-celebrity to enhance the business by acting as a media spokesperson. Clearly, he was active in increasing the value of the business, and thus, the increase should be considered marital property. The court does not care that Karon was not involved. The courts see a marriage as a partnership with various components. Each partner contributes different things to make the marriage successful. For instance, Karon provided a home so that George could pursue this business. Also, just because the dividends were distributed to the stockholders does not take away from the fact that the $9 million increase should be marital. The company made the decision to retain earnings when they could have been distributed. There are three ways the court could distribute this money: (1) if its readily divisible just do this, (2) give all stock to George and make him pay Karon a fair/equitable share, (3) liquidate the stock and divide the proceeds.
Micro-Chip Stock
This entire amount (2 million) should be non marital property owned by George. This stock was given to George as a gift and he had nothing to do with its appreciation. Market forces controlled this passive appreciation, and therefore, it retains its nonmarital character.
Custody
Minnesota courts apply a best interest test when faced with a custody determination (§ 518.17). The court is required to make detailed findings of each of the following factors and explain how they came to their conclusion:
(1) Wishes of the parents - George wants joint legal and sole physical custody. Basically he is willing to share decision making with Karon, but wants the girls to reside with him daily. Karon wants sole legal and physical custody. Not only would they live with her but she would make all decisions regarding their upbringing, education, health care and religion.
(2) Reasonable preference of the child. Here both girls want to live with George. The court will look at whether they are old enough to decide this. The judge will talk to both, girls 10 and 12 are normally going to be adequate ages to be able to express a preference so this will weigh in George's favor. Although their reason "he's exciting" may not be great, they also evidence a strong psychological bond with him which is important.
(3) Child's primary caretaker - this is probably Karon. This can no longer create a presumption as it once did under Pikula. It is only one factor. It will be important because this will give them continuity. It isn't surprising it is Karon since she was a homemaker.
(4) Intimacy of relationship - the girls seem to have a strong bond with George. They also seem to like Sandy which is important.
(5) Interaction with parent, siblings and others - here girls get along better with George. Also, will want to keep girls together to offer each other support.
(6) Child's adjustment to home, school, community - the girls have lived in Minnesota for 10 and 12 years. George is proposing to move them to California. This factor weighs against George. Not only is the family falling apart, their dad taking up with a new woman, but also he wants to take them away from the home/school/and community that is familiar to them.
(7) Length of time children have lived in a stable environment - the kids are older so moving them at this point makes it difficult.
(8) Permanence of the proposed custodial home - Karon can provide them with more continuity here. She will probably get the family home in the settlement and remain in the community. Also, she has strong ties to the community because of her involvement with the church. George and Sandy's relationship is tentative. We don't know how long they will stay together since there are no definite plans to marry. The court will also note that George wants to move to a new state and start a new job. We can't be sure how long this will last, or what type of life it will offer the girls.
(9) Mental and physical health of all individuals - Karon has obviously had trouble dealing with the break-up as evidenced by her interfering with visitation. The social worker thinks George deals with the girls more as an adult. Also, George evidenced willingness to work visitation out amicably with Karon. This factor weighs in George's favor.
(10) Capacity and disposition of the parties to give the child love, affection and guidance - Karon has shown a concern to guide them religiously, but appears to be too strict and not provide as much affection. Also, girls seem to feel a stronger bond with George. Particularly, this is important since he isn't their primary caretaker but they still feel this way.
(11) Child's cultural background - doesn't really apply here except to say that MidWest and West coast values may be very different.
(12) Affect on child of action of abuser - George could argue that Karon's use of wooden spoon to discipline kids has affected their bond with her.
This is a close call. The court is not supposed to consider a parents conduct (affair) if it doesn't affect relationship with Karon could argue that is does because it teaches the girls immoral values. Because of the age of the girls, the social worker's evaluation I think sole legal and physical custody should be awarded to George with liberal visitation.
Also, when joint legal or physical custody is sought the following factors need to be considered.
(1) Ability of parents to get along (already Karon has shown anger and denial of visits).
(2) Methods for resolving disputes (no work out of the visit problem).
(3) Whether detrimental to the child if one parent were to have sole custody (probably not a problem since George seems reasonable and will let the girls maintain a relationship with Karon).
(4) Whether domestic abuse has occurred (none mentioned). Rebuttable presumption that this would be in the best interest unless prior domestic abuse. Here I think the presumption is rebutted since the parties don't get along.
If George is granted custody he will also need consent of Karon or a court order to move to California. As long as he is not moving to avoid giving her visitation he will be allowed to unless Karon makes a prima facie showing that the girls will be endangered. Upon this showing (affidavits) a full evidentiary hearing will be held.
QUESTION 2.
Minnesota would have jurisdiction to grant P the divorce. This is the case because P was a resident (and probably would be considered to be domiciled) in Minn. for at least 180 days prior to bringing the action. It is not necessary that R be a resident of Minn. in order for P to be granted a divorce. The marriage is considered "the res" over which Minn. is exerting an interest so only one party needs to be a resident to be granted a valid divorce. Also, it appears that P had R personally served with a summons (didn't say this but I am assuming) and petition as required by § 518.11. The facts don't say whether this service was proved by an affidavit of the person making the service. This is required and I will assume it was complied with. Since R did not respond the court entered a decree dissolving the marriage by default per § 518.13. Up to this point there are no real problems. However, in order to impose personal obligations on R, the Minn. court must have personal jurisdiction over him. In order to have personal jurisdiction the party must be present in the state, or appear and waive their objection. Since neither of these were present, MN must try and apply the long-arm statute to get personal jurisdiction over R. For Minn. to gain personal jurisdiction over a nonresident that person must: (1) own, use, or possess real or personal property situated in Minn., or (2) transact any business within the state, or (3) commit any act in Minn. causing injury or property damage, or (4) commit any act outside Minn. causing injury or property damage in Minnesota. I don't think there is anyway to get jurisdiction over R this way. R has never been to Minn., owns nothing here, and has really done nothing that would cause injury in Minn. The only possible argument would be that he did something to cause the break-up of his marriage, thus causing his wife to have to leave and support herself and the kids in Minn. This is a weak argument and would probably fail. The Minn. court, therefore, has no right to impose personal obligations such as child support, attorneys fees, maintenance. Additionally, they would only be allowed to divide property or real estate that was within Minn. They obviously have no interest in, and no control over land in Iowa that a Iowa resident with no contacts in Minn. lives on. Another factor I forget to touch on when doing the long arm statute analysis was the due process argument. In order to gain personal jurisdiction over a nonresident Minn. will do a minimum contacts analysis.
(1) Amount of contact with the state - R has none at this point.
(2) Nature of the contacts - none, only the marriage.
(3) Source of the contacts - no contacts.
(4) States interest - interest in not having wards of the state.
(5) Convenience - Iowa is not too far, but given no contact this test hardly forms an argument for imposing personal obligation on R. R has never, up to this point, purposely availed himself of the state of Minn. in any way.
As far as the custody issue goes there may be a way to enforce the custody determination. We have to evaluate this under the UCCJA. This was enacted to avoid jurisdictional competition to deter abductions, to avoid relitigating custody decisions, promote and expand the exchange of information and to make uniform the laws. For Minn. to decide this custody matter they must first see if they have custody. They have custody if this is the child's home state at the time of commencement of the proceedings. A home state means where the child lived for at least 6 months prior to the proceeding. The facts establish that P brought this action two years after she moved to Minn. The kids had definitely lived in Minn. over six months prior to the proceeding so the Minn. court need go no father than this in determining that they do in fact have jurisdiction under the UCCJA. Also, they could exert jurisdiction because it is in the best interest of the children because the children and one parent have significant connections with Minn. and there is substantial evidence concerning the kids care, protection , training and personal relationships. They have lived in Minn. for two years and own property there so this is clearly in their best interests. Next, Minn. should look to see if there were any proceedings concerning custody pending in other states. There were not. The only reason now for Minn. to not turn down jurisdiction would be if it was an inconvenient forum. The court should consider: (1) if another state is or recently was the child's home state (MN has been the home state for 2 years), (2) if another state has closer connection (probably not unless the kids are pretty old and lived most of their life in Iowa), (3) substantial evidence about kids in another state, (4) parties agree to another state, (5) if jurisdiction by MN would contravene any of this acts purposes. It looks as if there is no reason why MN should not accept jurisdiction. As long as R got proper notice then this MN court was free to make the custody determination.
There are two types of contempt: civil and criminal. Civil contempt is used for the purpose of bringing about future compliance. If a court wants to issue this they must give the party notice and a hearing. At the hearing the contemptor should: (1) show compliance or the inability to comply, (2) the court should make specific findings that the party was in fact in contempt and also find that confinement will be affective in bringing about compliance, (3) give contemptor chance to show good faith effort to comply and (4) give contemptor the ability to gain release if they comply (keys to their jail cell). Again, the purpose is to gain compliance. The court is issuing this order would need to show that R had the ability to pay the $12,000 in maintenance arrears, $12,000 in child support arrears, and $5,000 in attorneys fees before giving R a 7 day jail sentence. If R is not able to pay this financially, jail will not bring about compliance. As I stated earlier I don't think MN has personal jurisdiction to impose these obligations on R anyway, so this contempt order can probably be thrown out as well.
The second kind of contempt is criminal. The purpose behind this is to punish past behaviors. It is not necessary in this case to allow the contemptor a way to comply, and then be released. Because it is a fixed time of confinement, however, the contemptor must be afforded the proper due process procedures. He must be given notice, an attorney, and opportunity to respond. The procedures clearly weren't followed here.
Reopening Default Judgment
There are only two ways to reopen a decree after one year has posted. In this situation it has been three years so one of these must apply for R to succeed. First, if the party wasn't personally notified of the proceeding a court may reopen a case. However, in this case R was personally notified of the proceeding, but chose not to attend.
Second, a party can reopen after 1 year has past if they can show that there was fraud on the court when the judgment was granted. (The only things that can't be reopen here are dissolutions, separations and annulments). To show fraud on the court in Minn. one must show there was systematic effort on the part of one party to defraud the court. Minn. says the difference between regular fraud and fraud on the court is one of the decree. Thus, fraud on the court must be pretty substantial. MN have found that lying substantially about ones assets can rise to this level. Here P's actions were pretty bad. She had the sole responsibility to be truthful about her assets, and she misrepresented them. If R bought the Iowa home prior to the marriage he will own it as nonmarital property unless they put money into its upkeep. Any appreciation P would be entitled to, but not the value at the time of the marriage. Furthermore, P can't escape her lies by pointing out bad things she thinks R has done. It is no defense to defrauding the court to say "well the other party did it too. "
In one of the original cases on this reopening issue the court was re-opening a stipulation. They saw the fraud there as fraud on the court because the court is a party to a stipulation. I would argue that an analogy exists with a default judgement. In this case the court had to rely on what one party told them. P had a responsibility to be truthful particularly here where the court probably had no jurisdiction over R, P had a responsibility to be completely up front. I would say that the lack of jurisdiction itself would probably be enough to get this re-opened. By R coming to MN he is now availing himself of the court system here, and unless he is only here to object to personal jurisdiction, he may be ready to have personal obligations imposed and get the property divided.
In order to show fraud on the court the settlement must be grossly unfair. I think this was the case here since R never even got to present evidence or litigate the issues.
R should not have been arrested. First, I would argue he was only there challenging the courts decisions and challenging that the contempt orders were invalid and he must be released.
Also, P admits she lied to the court. She should not be rewarded for this by being allowed to retain her settlement.