Transcript 2008-2009 Family Law Update

2009-2010
Family Law Update
Presented by:
Ronald D. Litvak and Timothy R.J. Mehrtens
Litvak, Litvak, Mehrtens, and Epstein, P.C.
1900 Grant Street, Suite 500
Denver, Colorado 80203
In the Matter of Fisher,
(CA. Feb. 9, 2009)
 Attorney
Disciplinary Hearing
 C.R.P.C.
1.8(a): Attorney’s promissory
note and deed of trust against the marital
residence was to his client’s interest.
 C.R.P.C.
1.8(j): Attorney should have
obtained a charging lien rather than a
promissory note and deed of trust.
IRM Thornhill, (CA. Aug. 21, 2008)
cross petition for cert granted Feb. 17, 2009



When reviewing marital agreements for conscionability:

(1) must review for fraud, overreaching, concealment of assets or sharp
dealing not consistent with marital partners.

(2) then review as to whether the agreement is “fair, just and reasonable”

Here, the Agreement was held to be unconscionable
Valuation and the Marketability Discount (cert to Supreme Court)

Discounting isn’t allowed in dissenting shareholder suits

Court of Appeals held that the discount is discretionary with the trial court
Maintenance: party must lack sufficient property to provide for one’s
own needs and must be unable to support self through appropriate
employment.
IRM Powell,
(CA. Feb. 5, 2009) cert. denied Dec. 14, 2009

Stock options are property “when the employee
has an enforceable right to the options.”

Valuation of accounts holding multiple securities:
Total value of account vs. values of each
individual security

The Appellate Court did not consider it an abuse
of discretion to consider the account as one asset.
IRM Obremski & Williamson,
(CA. Feb. 5, 2009)

Though military retirement benefits are generally
distributable as marital property, military disability
benefits are excluded from division as marital
property.
CHILD SUPPORT

Determination:


IRM Anthony-Guillar and Guillar, (CA. Mar.
19, 2009)
In the Interest of S.E.G., (CA. May 14, 2009)
IRM Anthony-Guillar and Guillar,
(CA. Mar. 19, 2009)

C.R.S. §14-10-115 does not explain how to treat
social security benefits received by a minor child as
a result of a parent’s disability.

“Benefits actually received” refers to a parent’s
disability benefits

A child’s disability payments are income to the
child, but the court is not bound to deduct the
entire amount of the child’s benefits from the child
support obligation.
In the Interest of S.E.G.,
(CA. May 14, 2009)

The juvenile court has jurisdiction to issue orders of
support and orders allocating parental responsibilities
in connection with a child support proceeding,
regardless of marital status.
ATTORNEY’S FEES

IRM Ensminger, (CA. Dec. 11,
2008), petition for rehearing denied
(Feb. 19, 2009); cert. denied (June 15,
2009)
IRM Ensminger, (CA. Dec. 11, 2008),
cert. denied June 15, 2009

Pursuant to C.R.S. 13-17-102(2), attorney fees can be
award to parties or non-parties if:
 the action lacked substantial justification,
 actions are pursued for delay or harassment
 if an atty unnecessarily expands the proceeding by other
improper conduct.

(In this case, the improper conduct was subpoenaing a non-party
as a form of harassment rather than for any relevant issue.)
ALLOCATION OF PARENTAL
RESPONSIBILITY

IRM Slowinski and Pagnozzi, (Colo. Feb. 2008) as modified on
denial of rehearing (May 1, 2008); cert. denied (Jan. 20, 2009)
IRM Slowinski and Pagnozzi, (Colo. Feb.
2008) rehearing denied (May 1, 2008)

Upon filing a Motion to Restrict
Parenting Time under C.R.S. §1410-129 (4), supervised parenting time
takes immediate effect, and a hearing
must occur in 7 days.

If the hearing does not occur in 7
days, supervised parenting time under
C.R.S. 14-10-129(4) terminates.
GUARDIANS and
SPECIAL ADVOCATES
Sidman v. Sidman,
(CA. Oct. 29, 2009)

Only the parents’ income, not a guardians’
income, can be included in the calculation of
child support. C.R.S. §14-10-115 does not
contemplate a guardian’s income.

Any expenses for travel shall be divided between
the parents in proportion to their adjusted gross
income, not paid for by the guardian to facilitate
a parent’s parenting time. C.R.S. §14-10115(11)(a)(II).
PROCEDURAL &
EVIDENTIARY

C.R.C.P. 16.2:



IRM Roberts, (CA., Aug. 7, 2008) cert. granted (Mar. 16,
2009)
IRM Schlep, (CA., Aug. 7, 2008) cert. granted (Mar. 16,
2009)
UCCJEA:

In re the Parental Responsibilities Concerning L.S., and
Concerning McNamara and Spotanski, (CA., Oct. 15,
2009)
IRM Roberts, (CA. Aug. 7, 2008)
cert. granted (Mar. 16, 2009)

Under C.R.C.P. 16.2(e)(10), the court retains
jurisdiction for 5 years after entry of a final decree
to allocate material assets and liabilities if a
party’s disclosures contain misstatements or
omissions.

Though the parties filed a petition for legal
separation in Nov. 2004, Wife’s post-decree
motion was filed after January 1, 2005, thus the
court had jurisdiction to determine Wife’s motion.
IRM Schelp, (CA. Aug. 7, 2008)
cert. granted (Mar. 16, 2009)

Like IRM Roberts, the court had jurisdiction
under C.R.C.P. 16.2(e)(10) to determine Wife’s
post-decree motion to reopen permanent orders,
which was filed after Jan. 1, 2005.

The dissent found that since the permanent
orders were entered prior to Jan. 1, 2005,
C.R.C.P. 16.2(e)(10) should not apply
retroactively.
In re Parental Responsibilities Concerning
L.S., & McNamara & Spotanski, (CA. Oct.
15, 2009)

UCCJEA provides jurisdiction based upon home
state of the child, then significant connections.

UCCJEA addresses subject matter jurisdiction,
which cannot be conferred by consent or waiver,
and can be raised at any time.

Pursuant to Full Faith and Credit, Colorado must
recognize Nebraska Order because jurisdiction
was based upon a statutory ground (significant
connections) recognized by the UCCJEA, even
though factually the statutory ground was not
met.
People in the Interest of E.D., M.D., &
A.D., & Concerning S.D. & M.D., (CA.
Oct. 29, 2009)

Offers of proof at allocation of parental
responsibilities hearing was not an abuse of
discretion since offers of proof were not limited
and actual testimony would not have provided
any other information.

A guardian ad litem cannot provide protective
supervision in lieu of an “agency”; protective
supervision by a guardian ad litem would
interfere with a parent’s constitutional rights.
The End
Ronald D. Litvak &
Timothy R.J. Mehrtens
Litvak Litvak Mehrtens and Epstein, P.C.