| Rismiller v. Gemini Insurance Co. |
| Court: Louisiana Supreme Court Docket: 2020-CA-00313 Opinion Date: December 11, 2020 Judge: Boddie Areas of Law: Civil Procedure, Constitutional Law, Family Law, Insurance Law, Personal Injury |
| Defendant Gemini Insurance Company appealed a district court's holding La. C.C. arts. 2315.1, 2315.2 and 199 were “unconstitutional as applied to children given in adoption” and overruling the defendants’ peremptory exceptions of no right of action. At issue was whether plaintiffs Daniel Goins and David Watts, two adult children who were given in adoption as minors, had a right to bring wrongful death and survival actions stemming from the deaths of their biological father and his two minor children, who were not given in adoption, and were plaintiffs’ biological half-siblings. After a de novo review, based on the clear and unambiguous wording of La. C.C. arts. 2315.1 and 2315.2, the Louisiana Supreme Court concluded Goins and Watts were “children of the deceased” and “brothers of the deceased” who were permitted to bring wrongful death and survival actions arising from the death of their biological father and half-siblings. In view of the Court's holding that plaintiffs had a right to assert survival and wrongful death actions, the Court declined to address their argument that La. C.C. arts. 2315.1, 2315.2 and 199 were unconstitutional as applied to children given in adoption. |
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| Doe v. Forino |
| Court: Maine Supreme Judicial Court Citation: 2020 ME 135 Opinion Date: December 15, 2020 Judge: Horton Areas of Law: Family Law |
| The Supreme Judicial Court affirmed the judgment of the district court entering a protection form abuse order against Mark Forino and in favor of Forino and Pat Doe's two children after a hearing on Doe's complaint for protection from abuse, holding that the district court did not err. On appeal, Forino argued that the district court erred when it denied his motion to dismiss Doe's complaint on res judicata grounds and his motion in limine to exclude evidence relating to allegations in Doe's previous complaint against him for protection from abuse. The Supreme Judicial Court affirmed after emphasizing the need for caution in applying res judicata in cases regarding family matters, holding that res judicata did not bar Doe's second complaint. |
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| Jaeger v. Jaeger |
| Court: Nebraska Supreme Court Citation: 307 Neb. 910 Opinion Date: December 4, 2020 Judge: Michael G. Heavican Areas of Law: Family Law |
| The Supreme Court affirmed the judgment of the district court transferring sole legal and physical custody over C.J. to Duke Jaeger, subject to Stacey Jaeger's parenting time, holding that the district court did not abuse its discretion. Specifically, the Supreme Court held (1) the district court did not abuse its discretion by moving C.J. to Duke's sole legal and physical custody; (2) the district court did not abuse its discretion in excluding Stacy's testimony about previous abuse allegations; and (3) the district court did not abuse its discretion in overruling Stacey's motion for a new trial. |
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| Weiland v. Weiland |
| Court: Nebraska Supreme Court Citation: 307 Neb. 882 Opinion Date: December 4, 2020 Judge: Lindsey Miller-Lerman Areas of Law: Family Law |
| In this divorce action, the Supreme Court affirmed in part and reversed in part the judgment of the district court ordering Timothy Weiland to pay Ann Weiland a fixed award of $465 per month for military pension benefits and to pay Ann her share of Timothy's retirement benefits had had received and not paid to Ann, holding that the district court erred when it assigned a fixed monthly dollar value. Specifically, the Supreme Court held that under the parties' divorce decree, the district court erred when it assigned a fixed monthly dollar value to Ann's interest in Timothy's military retirement benefits. Ann was entitled to an award of military pension benefits and back payments, but the fixed monthly benefit award and the fixed monthly amount of back payments was vacated. The Court reversed and remanded with directions to determine the equitable distribution of Timothy's military retirement expressed as a formula that adheres to the points awarded in the decree and consistent with a hypothetical retirement date as of the date of the decree. |
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| Windham v. Kroll |
| Court: Nebraska Supreme Court Citation: 307 Neb. 947 Opinion Date: December 11, 2020 Judge: Stacy Areas of Law: Family Law |
| The Supreme Court affirmed the order of the district court modifying several provisions of a judgment establishing custody, visitation, and support of minor children based on the common-law doctrine of in loco parentis, holding that the correct modification standard was applied. In its order, the district court found a material change in circumstances and modified several provisions pertaining to the support of the minor children. The Supreme Court affirmed, holding (1) judgments establishing in loco parentis rights regarding the custody, visitation, and support of a minor child ordinarily will not be modified absent a material change in circumstances affecting the best interests of the child, but whether the in loco parentis relationship has changed is relevant to determining whether there has been a material change in circumstances and whether modification is in the child's best interests; and (2) the district court did not abuse its discretion in finding that a material change in circumstances justified modifying support-related provisions concerning the minor children. |
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| Kaur v. Singh |
| Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 77 Opinion Date: December 10, 2020 Judge: Mark Gibbons Areas of Law: Family Law |
| The Supreme Court reversed the order of the district court denying Rajwant Kaur's motion to set aside a 2004 divorce decree, holding that the district court erred because it did not consider the traditional judicial estoppel factors before considering Rajwant's defense of duress and coercion. In 2004, Rajwant and Jaswinder Singh filed a joint petition for divorce. The district court entered the divorce decree without holding a hearing. In 2019, Rajwant filed a motion to set aside the 2004 divorce decree, arguing that Jaswinder forced her to sign the divorce decree so it was obtained by fraud. The district court denied the motion, finding that, under Vaile v. Eighth Judicial District Court, 44 P.3d 506 (Nev. 2002), Rajwant was judicially estopped from challenging the decree. The Supreme Court reversed, holding that the district court erroneously applied Vaile, in concluding that judicial estoppel precluded Rajwant's motion and failed to consider whether the five-factor test favored application of judicial estoppel. |
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| In re A.K.O. |
| Court: North Carolina Supreme Court Docket: 68A20 Opinion Date: December 11, 2020 Judge: Paul M. Newby Areas of Law: Family Law |
| The Supreme Court affirmed in part and vacated in part the judgment of the trial court terminating Parents' parental rights to their two children, Alyson, age nine, and Adam, age seventeen, holding that remand was required to reconsider Adam's age, reweigh his request to keep Parents' parental rights intact, and to reevaluate guardianship for Adam as an alternative to termination of parental rights. The trial court determined grounds existed to terminate Parents' parental rights based on the grounds alleged in the petitions and concluded that it was in the children's best interests that Parents' parental rights be terminated. Parents appealed, arguing that the trial court erred in determining that termination of their rights was in the children's best interests. The Supreme Court vacated the portion of the order terminating Parents' parental rights to Adam and remanded to the trial court to reconsider guardianship as a dispositional alternative and to give proper weight to Adam's age, his lack of consent to adoption, and his bond with his parents. The Court affirmed the trial court's orders as to Alyson, holding that the trial court did not abuse its discretion in concluding that termination of Parents' parental rights was in Alyson's best interests. |
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| In re A.L.S. |
| Court: North Carolina Supreme Court Docket: 153A20 Opinion Date: December 11, 2020 Judge: Ervin Areas of Law: Family Law |
| The Supreme Court affirmed orders entered by the trial court terminating Mother's parental rights in her two minor children, holding that the trial court did not err or abuse its discretion. The trial court entered orders terminating Mother's parental rights in the children on the basis of neglect, dependency, and willful abandonment. The court further determined that termination of Mother's parental rights was in the children's best interests. The Supreme Court affirmed, holding (1) any error in the trial court's findings of fact was harmless; and (2) the trial court did not err by determining that Mother's parental rights were subject to termination for dependency. |
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| In re A.M.O. |
| Court: North Carolina Supreme Court Docket: 67A20 Opinion Date: December 11, 2020 Judge: Robin E. Hudson Areas of Law: Family Law |
| The Supreme Court affirmed the order of the trial court terminating Mother's parental rights to her minor child, holding that the trial court did not abuse its discretion in determining that termination of Mother's parental rights was in the child's best interests. Based on findings of fact made by clear, cogent, and convincing evidence, the trial court adjudicated several statutory grounds for termination pursuant to N.C. Gen. Stat. 7B-1111(a)(1)-(2) and (7) and concluded that it was in the child's best interests for Mother's parental rights to be terminated. On appeal, Mother argued that the court erred at disposition by concluding that it was in the child's best interests that her rights be terminated. The Supreme Court affirmed, holding that the trial court did not abuse its discretion in terminating Mother's parental right. |
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| In re A.P. |
| Court: North Carolina Supreme Court Docket: 208A20 Opinion Date: December 11, 2020 Judge: Paul M. Newby Areas of Law: Family Law |
| The Supreme Court affirmed the order of the trial court terminating Parents' parental rights in their minor child, holding that the issues identified by counsel as arguably supporting the appeal were meritless. The trial court entered an order terminating Parents' parental rights in the child on grounds under N.C. Gen. Stat. 7B-1111(a)(1), (3). The court further determined that it was in the child's best interests that Parents' parental rights be terminated. Parents each filed timely notice of appeal. Counsel for Parents jointly filed a no-merit brief on behalf of their clients. The Supreme Court reviewed the issues identified by counsel and affirmed, holding that the trial court's order was supported by clear, cogent, and convincing evidence and was based on proper legal grounds. |
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| In re B.E. |
| Court: North Carolina Supreme Court Docket: 11A20 Opinion Date: December 11, 2020 Judge: Cheri Beasley Areas of Law: Family Law |
| The Supreme Court affirmed the orders of the trial court terminating Parents' parental rights in their two minor children, Justin and Billy, holding that the trial court did not err. The trial court entered an order adjudicating the existence of grounds to terminate Parents' parental rights for neglect, willful failure to make reasonable progress to correct the conditions that led to the children's removal from the home, and dependency. The court then concluded that terminating Parents' parental rights was in the best interests of the two children. The Supreme Court affirmed, holding (1) the trial court did not err in adjudicating grounds for termination of Mother's parental rights for neglect; and (2) the trial court did not abuse its discretion in concluding that it was in Billy's best interests to terminate Father's parental rights. |
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| In re C.A.H. |
| Court: North Carolina Supreme Court Docket: 188A20 Opinion Date: December 11, 2020 Judge: Morgan Areas of Law: Family Law |
| The Supreme Court affirmed the decision of the trial court terminating Father's parental rights to his child on the grounds of willful failure to pay for the cost of care of the child and willful abandonment, holding that the trial court did not err or abuse its discretion. The trial court concluded that grounds existed to terminate Father's parental rights based on Father's willful failure to pay for the child's care and Father's willful abandonment of the child. The court further found that termination of Father's parental rights was in the child's best interests. The Supreme Court affirmed, holding that the trial court did not err in concluding that grounds existed to terminate Father's parental rights pursuant to N.C. Gen. Stat. 7B-1111(a). |
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| In re D.M. |
| Court: North Carolina Supreme Court Docket: 339A19 Opinion Date: December 11, 2020 Judge: Ervin Areas of Law: Family Law |
| The Supreme Court affirmed the orders of the trial court terminating Parents' parental rights in their three minor children, holding that the trial court did not err or abuse its discretion. The trial court entered an adjudication order determining that parents' parental rights were subject to termination on the basis of neglect and willful failure to make reasonable progress toward correcting the conditions that had led to the children's removal from the family home. The court further concluded that termination of Parents' parental rights would be in the children's best interests. The Supreme Court affirmed, holding that the trial court did not err by (1) determining that Father's parental rights were subject to termination on the basis of neglect; and (2) finding that Mother’s parental rights were subject to termination on the basis of neglect pursuant to N.C.G.S. § 7B-1111(a)(1). |
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| In re J.S. |
| Court: North Carolina Supreme Court Docket: 92A20 Opinion Date: December 11, 2020 Judge: Morgan Areas of Law: Family Law |
| The Supreme Court affirmed the order of the trial court terminating Mother's parental rights to her three minor children, holding that the issues raised by counsel in a no-merit brief did not entitle Mother to relief. The trial court found that Mother's parental rights were subject to termination pursuant to N.C. Gen. Stat. 7B-1111(a)(1), (7), and (9) and that termination of Mother's parental rights to her three children was in the children's best interests. Mother appealed, and her appellate counsel filed a no-merit brief on Mother's behalf. The Supreme Court affirmed, holding (1) the trial court did not err in finding and concluding that a basis for termination of Mother's parental rights existed; and (2) the trial court's order was based on proper legal grounds. |
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| In re K.D.C. |
| Court: North Carolina Supreme Court Docket: 27A20 Opinion Date: December 11, 2020 Judge: Morgan Areas of Law: Family Law |
| The Supreme Court reversed the orders of the trial court terminating Mother's parental rights to her two children, holding that the trial court erred in finding that grounds existed to terminate Mother's parental rights pursuant to N.C. Gen. Stat. 7B-1111(a)(1), (2) and (6) and that it was in the children's best interests to terminate Mother's parental rights to both children. The trial court determined that grounds existed to terminate Mother's parental rights based on neglect, failure to make reasonable progress, and dependency. On appeal, Mother challenged two of the trial court's findings of fact as being unsupported by the evidence. The Supreme Court reversed, holding (1) portions of the trial court's findings were not supported by clear, cogent, and convincing evidence; and (2) the trial court's findings of fact did not support its conclusions of law that grounds existed to terminate Mother's parental rights. |
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| In re K.P.-S.T. |
| Court: North Carolina Supreme Court Docket: 451A19 Opinion Date: December 11, 2020 Judge: Ervin Areas of Law: Family Law |
| The Supreme Court affirmed the order entered by the trial court terminating Father's parental rights in his minor children, holding that the trial court did not err or abuse its discretion. The trial court entered an order terminating Father's parental rights in his children on the basis of a determination that his parental rights were subject to termination for neglect and willful failure to make reasonable progress toward correcting the conditions that had led to the removal of the children from the home. The court further determined that termination of Father's parental rights was in the children's best interests. The Supreme Court affirmed, holding that the trial court did not err by finding the existence of at least one ground for terminating Father's parental rights and that termination of Father's parental rights would be in the best interests of the children. |
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| In re N.K. |
| Court: North Carolina Supreme Court Docket: 54A20 Opinion Date: December 11, 2020 Judge: Ervin Areas of Law: Family Law, Native American Law |
| The Supreme Court remanded this termination of parental rights case to the trial court, holding that while the trial court correctly applied North Carolina law in terminating Mother's parental rights, the case should be remanded for further proceedings intended to ensure compliance with the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-1963. The trial court found that Mother's parental rights were subject to termination under N.C. Gen. Stat. 7B-1111(a)(1) and (2) and that termination of Mother's parental rights would be in the child's best interests. The Supreme Court remanded the case, holding (1) the trial court did not abuse its discretion by failing to conduct an inquiry into the issue of whether a guardian ad litem should have been appointed for Mother; (2) the trial court did not err in determining that Mother's parental rights were subject to termination for neglect and that termination of Mother's parental rights was in the child's best interests; and (3) this case should be remanded for further proceedings concerning whether the notice of ICWA were complied with and whether the child was an Indian child for purposes of ICWA. |
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| In re Q.B. |
| Court: North Carolina Supreme Court Docket: 59A20 Opinion Date: December 11, 2020 Judge: Davis Areas of Law: Family Law |
| The Supreme Court affirmed the order of the trial court terminating Mother's parental rights to her minor child, holding that the trial court did not abuse its discretion in failing sua sponte to conduct a second inquiry into the appointment of a guardian ad litem (GAL) to assist Mother in her termination of parental rights proceeding. After a hearing, the trial court entered an order concluding that termination of Mother's parental rights was warranted on the grounds of neglect and dependency. The court also concluded that it was in the child's best interests that Mother's parental rights be terminated. On appeal, Mother argued that the trial court abused its discretion by failing sua sponte to conduct a second inquiry into whether Mother should be appointed a GAL to assist her during the termination proceeding. The Supreme Court affirmed, holding that the trial court did not abuse its discretion by failing sua sponte to conduct a second inquiry into the need to appoint a GAL for Mother. |
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| In re R.L.D. |
| Court: North Carolina Supreme Court Docket: 122A20 Opinion Date: December 11, 2020 Judge: Robin E. Hudson Areas of Law: Family Law |
| The Supreme Court affirmed the orders of the trial court terminating Mother's parental rights to her minor child, holding that the trial court's conclusion that one statutory ground for termination existed pursuant to N.C. Gen. Stat. 7B-1111(a)(1) was sufficient in and of itself to support termination of Mother's parental rights. The trial court entered an order determining that grounds existed to terminate Mother's parental rights on the grounds of neglect, dependency, and willful abandonment. The court further concluded that it was in the child's best interests that Mother's parental rights be terminated. The Supreme Court affirmed, holding that the trial court did not err by adjudicating that grounds existed to terminate Mother's parental rights. |
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| In re S.D.H. |
| Court: North Carolina Supreme Court Docket: 231A20 Opinion Date: December 11, 2020 Judge: Paul M. Newby Areas of Law: Family Law |
| The Supreme Court affirmed the trial court's orders terminating Father's parental rights to his two minor children, holding that the issues identified by counsel as arguably supporting the appeal were meritless. As to Mother and Father, the trial court concluded that four statutory grounds existed for termination under N.C. Gen. Stat. 7B-1111(a)(1)-(3), (6), and that it was in the children's best interests that Parents' parental rights be terminated. Father appealed from the termination orders. Father's counsel filed a no-merit brief on Father's behalf. After reviewing the issues identified by counsel in the no-merit brief the Supreme Court held that the trial court's orders were supported by clear, cogent, and convincing evidence and were based on proper legal grounds. |
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| In re T.N.C. |
| Court: North Carolina Supreme Court Docket: 88A20 Opinion Date: December 11, 2020 Judge: Morgan Areas of Law: Family Law |
| The Supreme Court affirmed the orders of the trial court terminating Mother's parental rights to her two children, holding that the trial court properly decided to terminate the parental rights of Mother. On appeal, Mother asserted that her counsel's cross-examination of a witness for the Wilkes County Department of Social Services during the termination hearing and Mother's counsel's closing arguments constituted ineffective assistance of counsel. The Supreme Court affirmed, holding that Mother's counsel did not render ineffective assistance, and therefore, there was no prejudice to her in the hearing proceedings. |
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| In re Z.O.G.-I |
| Court: North Carolina Supreme Court Docket: 41A20 Opinion Date: December 11, 2020 Judge: Paul M. Newby Areas of Law: Family Law |
| The Supreme Court vacated the dispositional portion of the trial court's order terminating Father's parental rights to his minor child and remanded for entry of a new dispositional order, holding that the trial court misapprehended the legal effects of the termination. The trial court concluded that grounds existed to terminate Father's parental rights based on N.C. Gen. Stat. 7B-1111(a)(1) and (2) and that termination of Father's parental rights was in the child's best interests. The Supreme Court affirmed the trial court's adjudication of grounds under section 7B-1111(a)(2) but vacated the dispositional portion of the trial court's order, holding that the trial court's decision to order both that Father's parental rights be terminated and that Father be allowed to continue co-parenting the child suggested a misapprehension of the legal effects attendant to terminating parental rights. Therefore, the case was remanded for a new dispositional determination. |
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| Lindstaedt v. George |
| Court: North Dakota Supreme Court Citation: 2020 ND 309 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Criminal Law, Family Law |
| Terry George appealed a domestic violence protection order entered against him, claiming the district court erred, without properly explaining the factual basis for its decision, in finding that a preponderance of the evidence supported that actual or imminent domestic violence had or would occur. Nicole Lindstaedt and George dated for approximately four years. They lived together and had a child in common. In February 2020, Lindstaedt petitioned for a domestic violence protection order against George, alleging he choked her, punched her, threatened to kill her, and forced her to have sex with him. After a hearing, the district court found George had committed domestic violence and issued a protection order against him. The order prohibited George from having contact with Lindstaedt for two years. The North Dakota Supreme Court concluded the district court’s finding of domestic violence was not induced by an erroneous view of the law, nor was the Court left with a definite and firm conviction a mistake has been made. The Supreme Court's review of the record showed Lindstaedt presented sufficient evidence for the district court to find domestic violence by recent physical harm and nonconsensual sex. The Supreme Court therefore affirmed the domestic violence protection order. |
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| Sather v. Sather |
| Court: North Dakota Supreme Court Citation: 2020 ND 306 Opinion Date: December 17, 2020 Judge: Crothers Areas of Law: Civil Procedure, Family Law |
| Amber Sather appealed a trial court judgment in hers and Adam Sather's divorce, a judgment that included a parenting plan for the parties’ children. She argued the district court erred by failing to include certain parenting plan provisions in the judgment. The North Dakota Supreme Court found section 14-09-30, N.D.C.C., required all parenting plans, including plans stipulated to and adopted by the court, to contain provisions regarding decision-making responsibility, dispute resolution, transportation and exchanges, and summer parenting time; or an explanation as to why the provisions were not included. The parenting plan here did not include these provisions or explain why they were not included. Thus, the Supreme Court concluded the district court erred by adopting the parties’ parenting plan without either all of the information in N.D.C.C. section 14-09-30(2) being included, or after considering the best interests of the children as required by N.D.C.C. section 14-09- 30(1), providing its own findings regarding the same. Judgment was reversed and the matter remanded for further proceedings. |
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| In re Marriage of Rader |
| Court: Oklahoma Supreme Court Citation: 2020 OK 106 Opinion Date: December 15, 2020 Judge: Kane Areas of Law: Family Law |
| The issue this case presented for the Oklahoma Supreme Court's review centered on a child custody dispute between divorced parents where divorce actions were filed in two different states at different times. Petitioner-Appellant Ty Rader ("Father") appealed an Oklahoma trial court's order finding Kansas had exclusive, continuing child custody jurisdiction, and that Oklahoma did not have jurisdiction to make an initial child custody determination under Oklahoma's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The Oklahoma Supreme Court held that because the Kansas child custody proceeding was dismissed by the parties, it was of no effect in the present matter, and the Oklahoma judge erred in failing to determine whether or not Oklahoma had become the minor child's new home state under the UCCJEA at the commencement of this proceeding. Thus, the Court reversed the part of the trial court's order finding the Oklahoma court did not have jurisdiction over child custody, and remanded to the trial court to consider whether or not Oklahoma became the minor child's new home state, and, if so, to consider Respondent-Appellee Brenda Rader's ("Mother") forum non conveniens argument, pursuant to 43 O.S. section 551-207. If Petitioner failed to establish Oklahoma as the new home state, the trial judge was ordered to transfer the matter to Kansas, pursuant to the UCCJEA. |
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| In re Neveah M. |
| Court: Tennessee Supreme Court Docket: M2019-00313-SC-R11-PT Opinion Date: December 10, 2020 Judge: Clark Areas of Law: Family Law |
| The Supreme Court reinstated the trial court's judgment terminating Mother's parental rights on the basis of the statutory factor enumerated in Tenn. Code Ann. 36-1-113(g)(14), holding that the statute is ambiguous and that In re Ayden S., No. M2017-01185-COA-R3- PT, 2018 WL 2447044, 7 (Tenn. Ct. App. May 31, 2018), is overruled. Section 36-1-113(g)(14) requires a person seeking termination of parental rights to prove by clear and convincing evidence that a "parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child." In In re Ayden S., the court of appeals interpreted this language as requiring proof that a parent was both unable and unwilling personally to assume legal and physical custody or financial responsibility of a child. In In re Amynn K., No. E2017-01866-COA- R3-PT, 2018 WL 3058280, 14 (Tenn. Ct. App. June 20, 2018), the court of appeals construed the statute as requiring proof that a parent was either unable or unwilling to personally assume legal and physical custody or financial responsibility of a child. The Supreme Court held that the In re Amynn K. interpretation best effectuated legislative intent and thus reversed. |
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