Minnesota Family Law Issues

Lively Exchange of Ideas About Improvements in MN Family Courts: See Today's Star Tribune

2012-01-20T06:56:00.001-08:00

http://www.startribune.com/opinion/otherviews/137720938.html

Judge Can Only Make Findings of Fact & Conclusions of Law on an Issue If Evidence Is Received

2012-01-17T07:28:00.000-08:00

Frequently I hear complaints from judges that at trial attorneys are focusing on a hotly-contested issue, such as custody, and completely forgetting about related issues such as child support or dependency exemptions. It is not unusual to have several hours, or even days, of testimony on custody and/or parenting time, but then have little or nothing in evidence about the income and expenses of the parties. Then the lawyers seek amended findings of fact on issues for which no trial evidence was received. Likewise, parties who seem to have a settlement may forget about a related issue, like dependency exemptions, when the hotly-contested custody issue is resolved. Something to keep in mind.

"The Judge Looks Bored"- Recommended Reading for Family Lawyers

2012-01-06T10:45:00.000-08:00

The December 2011 issue of BENCH & BAR, the monthly publication of the Minnesota State Bar Association, has a fine article by Hennepin County District Court Judge Jay Quam entitled "The Judge Looks Bored." His observations and recommendations are a must reading for family lawyers since all family law cases in MN are heard by judges and never juries. He provides a good explanation for the frequent comment by judges during court trial: "Please move things along, counsel."

Click the following link, then click Bench and Bar on the lower left of the MSBA home page:

www.mnbar.org

MN Child Support Calculation Must Be Based on Parenting Time As Ordered, Not As Exercised

2012-01-03T12:07:00.000-08:00

Reported in Minnesota Lawyer on 12-26-11 is the Hermann case in which the Court of Appeals reiterated that under the MN child support statute, the 12% reduction in support for a parent who has 10% to 45% of parenting time, as well as the presumption that parenting time is equal when 45.1 % to 50% (Minn. Stat. 518A.36, Sub. 2(i)(ii)) is based upon parenting time as stated in the court order, NOT as exercised. This opinion is a reminder to counsel that at child support review hearings it will be fruitless to argue that the visiting parent/support obligor does not actually exercise all of the parenting time ordered, or in fact exercises more.

Interest on Unpaid Property Settlement Is Statutory, Not Discretionary

2011-12-14T05:57:00.000-08:00

Widely-reported this week was the decision of the MN Court of Appeals that a trial court properly added 10% statutory interest on unpaid property settlement payments (principal due of $4.5 million...yes, million!) owed by a wealthy hedge fund manager to his former wife. For we math "wizards" that's $450,000 in annual simple interest. The appellant had previously sought modification of the property settlement due to changing and adverse market conditions, but that motion was denied by the trial court and affirmed on appeal in 2010 (2010 WL 3543458).
Minn.Stat. 549.09, Sub. 1(c)(2) provides for 10% interest per year on money judgments exceeding $50,000, however prejudgment interest cannot be awarded. The judge has no discretion to award interest at a lesser rate.

MN Court of Appeals: Topic on The District Court Show

2011-11-29T10:29:00.001-08:00

The Minnesota Court of Appeals and its Family Law Mediation Project are the topics of the most recent District Court Show viewable at: www.QCTV.org (see link in right margin here)
At the website,
Click Community and then The District Court Show.
My guests are Judge Roger Klaphake and family lawyer Jeff Hicken. Duration is 30 minutes.

Judge Adopting One Side's Proposed Decree in Contested Case Discouraged

2011-11-10T09:25:00.001-08:00

Occasionally we read in MN appellate decisions that the appellant "challenges the findings of fact...arguing that the wholesale adoption of respondent's findings of fact...reflect the district court's failure to independently assess the evidence, resulting in a manifest injustice..." quoting here from Guiliani v. Anderson reported in Minn. Lawyer on 11-7-11. The appellant prevailed and the case was remanded for more specific findings. The Court of Appeals cited Bliss, 493 NW2d 583, 590 (Minn. App. 1992) which holds that it is not per se reversible error for the trial court to adopt one party's proposed decree. However, it "raises the question of whether the trial court independently evaluated each party's testimony and evidence." I have always made it my practice to make findings of fact as the evidence is presented in the courtroom, then supplement any proposed findings of fact with my own. Simply adopting one side's proposed decree, even if the opponent is pro se and submits none, may result in reversal and remand.

This case also has helpful discussion of the trial court allowing reasonable accommodations to the unrepresented party.

10 Ways to Lose a Custody/Visitation Trial

2011-11-08T06:48:00.000-08:00

Fortunately many of the custody and parenting time (visitation) disputes eventually settle through negotiation or some form of alternative dispute resolution. However, for those matters that go to trial, here are 10 ways your client is more likely to lose their case:

1. Client is unprepared to testify and frequently embarks on rambling narratives which are unresponsive to question.

2. Client is hiding (or lawyer is attempting to hide) "skeletons in the closet" from opposing party/counsel. Sometimes the client's own lawyer is the last to know about a pending criminal charge that may affect the outcome.

3. Failing to provide the judge with a paginated exhibit or a summary of the exhibit. For example, offering several hundred pages of medical or school records, bank statements or credit card billings with no pages or index.

4. Being repetitive with trial exhibits. For example, having your witness read from an exhibit already in evidence. The judge can read.

5. Being repetitive with witnesses. The judge, as trier of fact, does not need to hear from 5-10+ members of your client's family and friends about what a great parent he/she is. Ask yourself: what new is this witness offering to help my client's case?

6. Attempting to offer evidence which is clearly inadmissible: police reports, school records, medical records, all without proper foundation. More than once I have heard an attorney argue, "But judge, it's a police report!" as if that makes it reliable and admissible.

7. Objecting to evidence without stating a legal objection. Objecting that "the evidence is prejudicial to my client" is not a proper objection. It's supposed to be prejudicial! Likewise, failing to object to clearly-inadmissible evidence.

8. Making legal arguments because your client insists that you do so even when the facts in no way sustain the argument.

9. Offering pages and pages of profanity-laden emails or text messages clearly intended to show that your opponent is a bad person. This may be excluded as irrelevant and salacious. You could be sanctioned.

10. Attempting to offer evidence of your opponent's behavior or criminal history (or worse, other members of his extended family) which fails to bear on the parent-child relationship. For example, that when he/she was 16 they went through chemical dependency treatment.

There are more reasons, but that's enought for now.

The number one rule is the Boy Scout motto: Be prepared!...and be sure to comply timely and fully with any Pretrial Order about witness lists and trial exhibits. If you don't, they could be excluded. (See Guiliani v. Anderson in Nov. 7, 2011, Minn. Lawyer)

Civility & Professionalism: More Observations

2011-11-04T06:44:00.000-07:00

Despite the rules adopted by the MN Supreme Court to promote fairness, due process and judicial economy, court rules in family cases continue to be frequently ignored by attorneys and particularly unrepresented parties. Please refer to the posting at bottom of right-hand margin here ("Miscellaneous But Often Ignored...) dated May 3, 2010. Judges are fully-aware of tactical moves by attorneys intended to gain a litigation advantage, such as serving moving papers by fax in the late afternoon of the 14th day before a hearing; or failing to notify opposing counsel when a hearing date is scheduled, or requesting a continuance ex parte just before a hearing or trial because "I was just retained and I need time to do discovery." I would classify these tactics as "sneaky." Another trick is not filing any pleadings at all or a certificate of representation in order to avoid paying a filing fee.

There is the old concept of "clean hands" that lawyers are taught in law school. A lawyer or party that is obstructionist, uncooperative, or uncommunicative (that is, does not have "clean hands") cannot expect special consideration from the court when they ask for a continuance or more time to answer discovery or a motion.

At least once a year all lawyers in MN should read the "Professionalism Aspirations" adopted by the MN Supreme Court and found in the Rules of Court. This would include the lawyers before me yesterday that were arguing and raising their voices as they departed from the courtroom after a contentious hearing. Chill out, gentlemen!

Child Obesity a Factor in Custody Disputes

2011-10-31T06:58:00.000-07:00

An article in Sunday's Wall Street Journal (Oct.29, 2011) discusses childhood nutrition and obesity as a growing factor in child custody disputes. The link is too long to list here, so go to:

http://online.wsj.com/

Then search "obesity".

When this issue has been before me there has been a lack of medical evidence offered as to the child in question, just general allegations that he eats at fast food places several times a week. The party seeking to prove the child is obese and suffering health problems while in the other parent's care has the burden of proof. Mere allegations without medical proof are insufficient in my estimation.

LINK for parents: http://www.mayoclinic.com/health/divorce/HO00055

One-Year Waiting Period for Divorce Promoted by Possible SCOTUS Appointee Based on a MN Study

2011-10-27T06:53:00.000-07:00

In an article at www.slate.com/blogs/xx_factor/2011/10/26/second_chances_act_why_a_one_year_waiting_period_for_divorcing_p.html?wpisrc=tw
there is a further link to an editorial in the Washington Post in which Prof. William J.Doherty (U of MN) and former judge Leah Ward Sears (possible SCOTUS appointee?) promote a mandatory one-year waiting period before parents with minor children may get divorced. Reference is made to a Minnesota study of 2,484 divorcing parents. You will find a link in the Slate article to "Interest in Marital Reconciliation Among Divorcing Parents", authored in part by Prof. Doherty and Hennepin County (MN) Judge Bruce Peterson, published in Family Court Review, Vol. 49, No. 2, April 2011.
Blog in Spring 2010 about possible SCOTUS appointees is at http://www.scotusblog.com/2010/04/wednesday-round-up-29/

To Unrepresented Parties, Part 2: You Must Act Civilly and Respectfully to the Opposing Attorney

2011-10-21T14:26:00.000-07:00

Frequently in family law cases only one party has an attorney. The unrepresented party acting as their own lawyer often acts uncivilly to the attorney, refusing to answer discovery requests or refusing to return phone calls. This is not acceptable behavior and may result in sanctions by the court. Unrepresented parties have the same obligations as lawyers to follow the rules of court AND to act responsibly and civlly to court staff and the opposing party. Some unrepresented parties become upset because their spouse has been "empowered" through the legal process, with the assistance of their attorney. This, however, is not an excuse for rude behavior. Persons who act in this fashion risk being ordered to pay attorney's fees incurred by their opponent due to their non-cooperation.

To Unrepresented Parties: The Judge Cannot Act as Your Lawyer

2011-10-17T13:17:00.000-07:00

Over the past 10 years the Minnesota Judicial Branch has devoted much time, energy and public resources to developing self-help forms and centers to assist unrepresented parties in family court. This gives many people access to justice that they would not otherwise have. I think that 40 years ago the laws and rules of family court were a mystery to most people and they had no alternative but to retain a lawyer. But access to justice does not mean that a judge can act as the lawyer for an unrepresented party. First and foremost it is unethical under the Code of Judicial Conduct. "A judge shall uphold and apply the law...fairly and impartially," states Rule 2.2. The Comment to the rule states "a judge (may) make reasonable accomodations" to pro se parties. Rule 3.3 is clear: A judge shall not practice law.

Parties appearing in family court without a lawyer are expected to follow the rules, with "reasonable accomodations." To me this means that timeliness rules need not be strictly applied unless there is prejudice to the other party, particularly a denial of due process. However, unrepresented parties cannot submit unsworn statements to the judge at the hearing; they must follow the rules of evidence. The purpose of our rules of evidence is to find the truth. Parties cannot circumvent the rules because they do not have a lawyer.

So don't be surprised if when you come to court without a lawyer, the judge simply says to you, "Proceed with your case." The judge cannot act as your lawyer.

Emancipation of Children Alone Not a Basis for Modification of Spousal Maintenance

2011-10-13T07:50:00.000-07:00

The MN Court of Appeals in Geisler v. Geisler, reported 10-3-11, reversed the trial court's modification of spousal maintenance based upon, among other things, the trial court's finding of fact that the emancipation of the parties' children constituted a substantial change in circumstances. The Court of Appeals stated, "...the mere loss of child support cannot constitute a decrease in gross income. See Lee v. Lee, 775 NW2d 631, 635 n.5 (Minn. 2009)" The definition of gross income in Minn. Stat. 518A.39, Sub. 2(a)(1) does not include child support. Geisler is instructive as it states what the court must consider under these circumstances, what the relevant time periods are for analysis of a change in income and expenses, and the type of evidence that will be required for the court to make the necessary findings of fact., ie. detailed and docuemented income and living expenses. Counsel cannot assume that the court will find that the obligee's monthly living expenses have necessarily been reduced due to emancipation of the youngest child.

Requirements for Stipulated Decrees in Minnesota

2011-10-05T06:53:00.000-07:00

Minnesota judges receive many stipulated divorce decrees and marital termination agreements for administrative review or review prior to a default hearing. Those prepared by unrepresented parties often are quite a mess, such as retirement provisions that simply state, "He gets 1/2 of her 401k" and nothing more. These poorly-drafted decrees often result in post-decree litigation due to their vagueness or questionable enforceability.
I am aware that the family lawyer's staff may simply merge the Petition and Agreement into the proposed Decree. But, please, review the decree before sending it to the judge. Be certain that the tense of certain phrases from the Petition are still applicable.

1. VENUE: I see many decrees that state, "That Petitioner has been and now is a resident of the State of Minnesota and County of Wright." But that is not the proper language for the decree. The decree must state the place of residence or domicile when the matter was commenced. Often the Petitioner has moved and no longer resides in the same county as when the petition was signed. This is not a minor point and concerns proper venue.

2. CHILD SUPPORT ORDERS AND MAINTENANCE WAIVERS: Be certain to have detailed findings of fact to support any deviation from the child support guidelines, or a waiver of spousal maintenance, particularly for a long marriage. Attach a Child Support Guidelines Worksheet. Check MSA 518.552 (5) for the requirements for a proper waiver of maintenance. It is preferable that you state each party's monthly living expenses.

3. REAL ESTATE: "Legal to govern" has long been discarded as proper language. Check the legal description once again and don't count on a tax statement as being accurate. We see many requests to amend a decree years later due to incorrect legal descriptions in the original decree.

4. PARENT EDUCATION CLASS: Be sure each party has attended the required class before submitting the decree.

5. NAME CHANGE: Submit the proper affidavit of name change with the decree if your client is requesting a name change.

6. UNEQUAL PROPERTY DIVISION: If the property division varies greatly from an equal division, provide specific findings of fact explaining why, including non-marital property.

Preparing a Client to Testify

2011-10-03T14:08:00.000-07:00

There are abundant resources for lawyers on preparing a client to testify in a jury trial. (Just Google "preparing client trial") Mock trial teams of high schoolers as witnesses do a great job because they are well-coached and practice-practice-practice. Though it is kind of irritating when they turn to look at the judge when they answer each question. But, I digress. Here are a few tips:

1. Have your client go to court and watch a trial for at least an hour...and not a TV judge.
2. Explain how testimony in court differs from any deposition they may have attended.
3. Explain how they must act in listening to their opponent's evidence: No interupting, no facial expressions, no shaking of the head, no whispering.
4. Explain how written documents are introduced. Practice with them if you have a binder with hundreds of pages of exhibits. Consider asking the judge to let your client sit at counsel table so you can easily show them the exhibits.
5. Most importantly: Explain what being responsive to the question means. If asked a "yes-or-no" question, they must answer yes or no, or I can't answer that. No additions, no editorial comment, just answer the question.
6. Be sure they understand how much time the judge has to render a decision.
7. Practice cross-examination with the client. Make sure they understand that they look bad if they argue with opposing counsel (something many law enforcement officers do).
8. Explain that they may not answer the question until the lawyer is finished asking the question.
9. Explain that you cannot help them when they are on the witness stand. All you can do is object.
10. It shouldn't need explaining but do so anyway: no profanity and no raising of one's voice.
11. Consider having them review their affidavits and deposition transcript as they will likely be cross-examined about them.
12. Explain that when either attorney objects to a question, they must wait to answer after the judge rules on the objection and indicates whether they may answer the question.
13. If you feel the need, discuss your ethical obligations if your client is commiting perjury.

Good luck!

The Learned Treatise: Ever Offered One at Trial?

2011-09-28T08:20:00.000-07:00

About 25 years ago as a lawyer I was in the midst of a custody trial when the opposing lawyer offered as evidence a scholarly article written by a University of Minnesota professor who had studied the adverse effects upon children of living with a parent with a chaotic lifestyle, ie. multiple residences and multiple partners. Since this basically described my client, we were sunk and lost the case. For years to come I reminded this attorney (we are now both judges) of how he "pulled a rabbit out of the hat" in that case. I believe that most judges would find a learned treatise very helpful in deciding custody, parenting time and other family law issues. Rule of Evidence 803 (18) provides that a learned treatise may be admitted under certain conditions, but I think the reference to being admitted through an expert witness would probably not be required by most judges given the severely-limited resources of most family court litigants. The Comments refer to the requirement that it be read into the record and not admitted as a trial exhibit as being applicable in jury trials. This should be considered as another tool when your client can't afford the services of an expert witness.

We Need More Family Lawyers on the Bench

2011-09-25T10:09:00.000-07:00

A shoutout to all who attended the MN Chapter of AAML's Divorce Camp at Breezy Point last week. I participated in a judicial panel and thoroughly enjoyed myself. I commented on the need for more family lawyers on the bench. I admit I am biased as I was a family lawyer for 24 years and faced stiff competition to be appointed by those who has a lot more jury trial experience. I think family lawyers (assuming at least 10 years in practice, a longtime unwritten rule) are well-equipped to serve on the bench, having represented many people with complicated legal, financial and social difficulties, as well as having to bill and collect fees from clients, hire and fire staff, and make the payroll and rent payments. I encourage those who have never thought of applying to be appointed as a judge to seriously consider it. Be forewarned: it's a stressful and often discouraging process. But still worthwhile.

Another Thing for Family Lawyers to Worry About: Clients Emailing From Work

2011-09-21T09:30:00.000-07:00

There is an interesting and thought-provoking article on page one of the September 19 issue of Minnesota Lawyer about a recent ABA formal opinion stating that lawyers have the "duty to protect the confidentiality of email communications with one's client." The ABA states that a lawyer must consider whether there is a significant risk that 3rd parties will have access to the communications. Therefore, lawyers should be warning their clients about the potential hazards of emailing the lawyer from work or on a work-provided tablet or PDA or Smartphone, emails which are discoverable and are the property of the employer. The same warning applies to the use of public computers, such as at a public library. The same warning would apply to faxing something to your client at their work. So, family lawyers, if you didn't have enough to worry about already, here is something else.

"Divorce- Beyond the Basics" episode of The District Court Show Viewable on Web

2011-09-19T09:44:00.000-07:00

My guests on The District Court Show were veteran family lawyers Liz Schading and Bob Howard. You can view this 30-minute episode at:

http://www.QCTV.org/districtcourtshow

We discuss a variety of divorce subjects "beyond the basics."

Kids' DNA May be Permanently Damaged by Parent's Stress

2011-09-13T07:19:00.000-07:00

That children are often the victims of their parents' custody litigation is well-established. A recent study, however, finds that a child's DNA may be permanently damaged by a parent's reaction to stressors such as job loss, marital difficulties or depression. The following is a link to an article describing the study:

http://www.thedailybeast.com/articles/2011/09/12/parents-depression-and-stress-leaves-lasting-mark-on-children-s-dna.html

"OBJECTED To As NON-RESPONSIVE!": The Seldom-Used Phrase at Trial

2011-08-30T07:03:00.000-07:00

There is the old joke where the lawyer says to the judge,"I don't mind if you try my case, but don't lose it!" At trial I appreciate it when family lawyers treat the trial like any other civil trial and make appropriate objections. Not everything you or your client wants to offer as evidence is either relevant or admissible in a family trial. When cross-examining the opposing party it is perfectly fine and good lawyering to object to the witness going on a long narrative in response to a "yes or no" question. If the witness continues to be non-responsive, courteously ask the judge to instruct the witness to be responsive to the question. Unfortunately my experience is that I end up chastising the witness when a "yes or no" question is responded to with a long, sometimes slanderous, diatribe. Please also explain to your client the importance of answering the question and only the question. The trial will be shorter and the transcript less expensive.

Trials are about facts. It seems to me that either party's opinion about the relief they are seeking is irrelevant. That is for final argument, usually by letter after trial. You also could be surprised when your client answers other than what you expected, for example, " Well, I think he should pay me $5000 a month in alimony!" when you had been discussing a substantially different amount.

The Perils of Indemnification Clauses in Divorce Decrees

2011-08-22T08:37:00.000-07:00

The Court of Appeals on 8-8-11 filed Toop v. Toop affirming the trial court's decision and interpretation of an indemnification clause in the judgment and decree where the former wife had abandoned the home after failing to pay the homestead mortgage payments and filed bankruptcy. The trial court had failed to award money damages to former husband for indemnification when he had not incurred any liability relative to the homestead. The former husband also escrowed his spousal maintenance payments instead of making them to former wife. Factually this scenario is likely being repeated in courts throughout this state as unemployment continues to be high and foreclosures continue. The moral is that the homestead provision in a decree must be as detailed and ironclad as possible and anticipate every possible financial circumstance.
See the Winter 2010-11 issue of Family Law Forum published by the MSBA for an excellent article by Lymari Santana and Jeffrey O'Brien.

Judicial process for evaluating custody change motions outlined in Boland Case June 6

2011-06-30T12:57:00.000-07:00

An excellent recitation of the required process for the trial court's consideration of motions for changes of custody (is there a prima facie case?) was reported by the Court of Appeals on June 6 in BOLAND. Rather than summarize it here, I'll just say it is well worthy of your review. I frequently hear motions where the arguments of counsel are far afield from the requirements discussed in Boland.

Divorce Trends Down Among Upper Middle Class and College-Educated Couples

2011-06-19T05:14:00.000-07:00

Check out article in Sunday's New York Times, "Divorce Has Lost Its Groove."

http://www.nytimes.com/

Scroll near bottom to "Fashion" section.

Happy Father's Day!

Yes, Virginia, There is No Santa Claus: Consequences of No Courts Budget

2011-06-17T06:36:00.000-07:00

It is 8 am. on June 17, 2011, and we are but 2 weeks from a government shutdown in Minnesota. It seems those not directly involved with the judicial branch, ie. those in the other 2 branches, are unconcerned with the possible shutdown of the courts on July 1. We in Wright County have begun to send out notices postponing conciliation court cases from July to August, as well as postponing a number of misdemeanor matters to later dates. We also now have only 5 judges with the retirement of Judge Mossey and have been told we are no longer authorized to have a retired judge 3 days per week. Therefore, if you are a family lawyer, do not be surprised if you are unable to obtain a hearing date in Wright County within a few weeks as you may have been in the past. ( I have been told of a Southern MN County that relies on retired judges for about 1/2 of their calendars.) Criminal matters have priority due to statutory and rule mandates. As I used to tell my clients who complained about the support and custody laws: "If you don't like it, call your legislator."

Wright County Judges to Discuss ICMC-ENE Process starting July 1 in Wright County

2011-06-09T06:23:00.000-07:00

On June 22, 2011, from 12:30-1:30 pm. in the Community Room of the Wright County Government Center (across from the law library) Wright County judges will discuss the Initial Case Management Conference (ICMC) process and ENE's which will begin July 1 in Wright County. The process, forms, and orders will be discussed, as well as how qualified ENE evaluators may become involved. The judge conducting an ICMC will NOT be the judge assigned the case. It is a bring-your-own-lunch meeting. Questions should be directed to Judge Halsey at Stephen.Halsey@courts.state.mn.us.

This process has been very successful in resolving cases in other counties. Whether parties go to ENE or mediation will be voluntary.

Requests for Continuances: Please Follow the Rules

2011-05-25T08:05:00.000-07:00

At the risk of being repetitive I am compelled to comment once again upon the common practice of lawyers faxing an ex parte request for a continuance when not having the consent of the opposing party or counsel. These requests are summarily denied as ethically a judge cannot consider them. Usually they are in the nature of "Party X has just retained me regarding the hearing tomorrow at 9:00 a.m. I request a continuance as I have a _____________hearing in __________court (usually something REALLY important like federal court)." Please comply with General Rule of Practice 122 (referred to in Rule 302.02 of the Rules of Family Court Procedure).

Juries in the Age of Facebook: For Those Practicing Beyond Family Law

2011-05-20T11:01:00.000-07:00

Though unrelated to family law where we, of course, only have court trials, a growing area of concern is juror misconduct in this age of Facebook and Google. Law seems always to be years behind technology, but in the area of jury misconduct it needs to quickly catch up. The Criminal Justice (journal) Winter 2011 has an excellent article "Can the Jury Trial Survive Google?" It is copyrighted and only available through the ABA as far as I can tell. It recounts many stories of jurors conducting Internet research before and during jury trials, including during deliberations, and commenting on their case on Facebook and other social networking sites during and after trial. Jurors have attempting to contact the lawyers and parties during trials. Of great concern are 2 issues: (1) unwillingness of some jurors to follow the judge's strict instructions about out-of-court research or contacts; and (2) a disobedient juror's ability to hide their misconduct, including lying during voir dire. Jurors have been found in contempt of court and fined for such Internet-related misconduct, but whether that is a deterent is questionable. Here is a link to a blog on these issues: http://jurytrialsandsocialnetworks.wordpress.com/

A juror caught Googling a defendant's name during a trial replied, "Well, I was curious." NY Times, 3-18-09. Quoted in article listed above.

A related issue is the scouring of Facebook pages and Google searches for damaging information or photos or postings about one's client's spouse or opponent. Though I have been presented at times in affidavits with dozens of pages of profanity-laden emails and texts, I have yet to be presented with something from a social networking site. But its probabnly only a matter of time before that happens. Counsel intending to offer such evidence might want to consider discussing with the client the possible (likely?) adverse response of the judge.

The Risks of the "I'll Pay for Half of Susie's College Expenses" Provision in a Decree

2011-05-09T13:29:00.000-07:00

We judges often see provisions in marital termination agreements that the parties will "divide equally the college expenses of the minor child." As a lawyer I would always caution clients that this was beyond the scope of the court's jurisdiction to order absent an agreement and that if they were going to agree to it , then it was contrary to my advice. Now, as a judge, when I see that provision in an MTA (usually one or both parties is unrepresented) I discuss it on the record with a question such as,"So if you want your child to go to community college and your spouse wants her to go to Harvard, then what?" I am almost always assured that the parties are getting along great (so why are they getting divorced?) and that no further language is necessary, such as mediating the dispute, annual cost limits, tuition only, etc. See the May 9, 2011, issue of Minnesota Lawyer, p. A-14, Kail v. Kail, for an example of how these kinds of provisions can go bad for all concerned, even when the provision is quite lengthy and detailed. I think the crucial fact is the college-aged child was a toddler when the parties agreed to the provision in the divorce decree. They have been to the Court of Appeals twice on this issue.

REVIEW & COMMENT ON NEW FAMILY COURT RULES AVAILABLE

2011-04-21T11:15:00.000-07:00

The suggested amendments to the Rules of Family Court Procedure are available for review and comment. They include changes in time limits for motions and responsive affidavits. I encourage family lawyers to read and comment on these rules. After a cursory rview I see no new limitation on the volume of affidavits that may be filed in support of a motion. I will be commenting on that as I suggest 100 pages as a maximum. The amendments may be found at http://www.mncourts.gov/ under "Public Notices."

Valuation Date Becoming a Common Issue Due to Homes Being "Under Water"

2011-04-18T06:04:00.000-07:00

The appropriate valuation date of the homestead is apparently becoming a more common issue in divorces based upon my discussions with lawyers at pretrial conferences. Minn. Stat. 518.58(1) provides that the valuation date for property is the "initially scheduled prehearing settlement conference, unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable." No specific findings are required if the initially scheduled pretrial is used as the valuation date. (See Terzo reported in 4-11-11 MN Lawyer)

With so many homesteads having mortgage loan balances exceeding fair market value, the strategy of some lawyers is to seek an unequal division of property other than the homestead to offset their own client's negative equity in the homestead. In light of the fact that the homestead mortgage might be foreclosed by advertisement (hence no deficiency judgment possible), this argument is generally unpersuasive to the Court.

Certainly there may be a basis to argue for a different valuation date if assets have appreciated or depreciated significantly since the initially scheduled pretrial conference.

Lunch & Judicial Decision-Making

2011-04-14T06:10:00.000-07:00

Ever wondered whether you should set a family hearing in the morning or afternoon? In Wright County we generally set matters at 9:00 a.m., or 1:30 p.m. Lawyers "down in the Cities" seem to like the 1:30 p.m. settings to avoid traffic and our frequent overnight snowstorms. A recent article in Discover magazine suggests that food breaks influence judicial decision-making. Here's the link:

http://blogs.discovermagazine.com/notrocketscience/2011/04/11

It's food for thought.

Genghis Khan Wasn't a Lawyer

2011-04-13T10:01:00.000-07:00

Genghis Khan is, perhaps, the best known conqueror in history who had a scorched-earth strategy, something I have discussed in prior postings and in a recent talk at the Family Law Institute as applied to practicing family law. Judge Jay Quam has a thoughtful 2-page article in the April 2011 issue of Bench & Bar which succinctly informs lawyers about how judges view the "scorched earth, take no prisoners" obstructionist approach. I agree with him 100%. As a side note, coming into a hearing and arguing that the motion should be dismissed or the affidavit disallowed because it was one-day late in service upon you is unlikely to get a favorable response from the judge. I will just quote Judge Quam's last sentence:

By staying above the fray, you will put yourself in a position to win your case.

Here, here!

Necessary Reading for Lawyers Appearing in Domestic Abuse Cases

2011-04-08T10:09:00.000-07:00

The Court of Appeals decision in Schmidt v. Coons, 2011 WL 978948, discussed in the March 28, 2011, issue of Minnesota Lawyer, is must reading if you are a lawyer appearing in OFP cases. The Court of Appeals determined that Chap. 518B, as a remedial statute, "received liberal construction in favor of the injured party." (citing Pechnovik, 765 NW2d at 98-99) Thus, the statute must be read broadly to permit a finding of domestic abuse in a petition brought on behalf of a child where the child was not the subject of the abuse and may not even have been present during the abuse, but the child is a "family or household member" and may be harmed by abuse to a fellow family or household member, to-wit, the child's mother.

I fully understand why the Court so ruled, but as a practical matter I fear that rather than filing post-decree motions in custody or dissolution files, parents will simply file an OFP Petition on behalf of the child and against the alleged perpetrator, and likely fail to name as a party the other parent who likely resides as spouse or significant other to the perpetrator. For example, non-custodial parent talks to child who says, "Mommy's (or Daddy's) friend spanks me!" Non-custodial parent files an OFP petition on behalf of the child and against Mommy's new husband or boyfriend or significant other, failing to name custodial parent as a party. Procedurally this can become a real mess, particularly if neither party has counsel. I have referred to these requests as a "back-door" attempt to modify custody or parenting time through the summary OFP process, a kind of "end run" around the normal process for modification of an existing order. Motions for changes of custody or restrictions on parenting time, where there is an existing order, require significantly more proof, ie. a prima facie finding of endangerment, and most importantly, an evidentiary hearing.

Practicing Family Law Out of a Briefcase and in Starbucks in 2011

2011-04-01T07:08:00.000-07:00

About 20 years ago I was very surprised to call the opposing counsel in a divorce case at his "office" number only to have a 4-year-old boy answer, "Hewoh!" I asked "Is your Daddy there?" This was long before cell phones and the Inter Net. This was the beginning of the trend toward home offices. Clearly at that time our rules of court regarding service of process at an attorney's office were out-of-date. Now they are really out of date. Rule 5.02 still refers to service at an attorney's office. Many lawyers have only a P.O. Box and no fax number on their letterhead. This can cause significant problems if service of process meeting a statutory or rules deadline is necessary. Judges are aware that family lawyers are faxing initial or responsive pleadinmgs on the last possible day, even after regular business hours and on weekend. (Judges do NOT like "motion by ambush.") But I digress.

I came across an interesting blog on the MSBA website posted by Andrea Hable on March 23 entitled "Coffee Shop Ethics." I will put the long link at the end. She discusses the confidentiality problems with working on your client's matters on your laptop through a WiFi connection at the coffee shop; or meeting with your client in a public place like a coffee shop. The article is worthy of your review if this is your regular practice.

http://practiceblawg.com/2011/03/coffee-shop-ethics

Summaries of Financial Documents Very Helpful to the Trier of Fact

2011-03-29T11:07:00.000-07:00

This week Judge Sharon Hall (Anoka County) and I presented at the annual Family Law Institute on the topic "Preparing and Arguing Effective Family Law Motions. One suggestion we touched on briefly was the preparation of summaries of financial documents. It is not helpful to the judge as trier of fact to be presented with an affidavit with dozens of bank statements or credit card statements, without a summary. If they are offered to prove the opponent is a spendthrift, or that their expenses exceed their net income (not unusual during these financial times), it is helpful to have a summary of these documents. If you are trying to prove financial mismanagement, prove it! And show it clearly and succinctly, perhaps via a flow chart. Check out MN Rule of Evidence 1006.

It is often said by many lawyers that they went to law school because they were bad at math. Looking at a page filled with numbers gives many of us a headache. Many of us are visual learners. Don't just tell me, show me. Please document alleged income with paystubs and tax returns. If your client operates a solely-owned corporation or LLC, the opposing side (and probably the judge) will view undocumented alleged income with considerable skepticism. Review those documents carefully and explain any questionable numbers or expense categories. Don't be the last to find out that your client is taking ATM cash withdrawals for personal expenses or buying liquor on the company account.

When child support is an issue, be certain to provide a Child Support Calculation Worksheet.

A Resource for Family Lawyers Whose Clients Are Financially Stressed in the So-called "New Normal" Economy

2011-03-01T14:03:00.000-08:00

I believe I have previously touted the advantages of being a member of the Family Law Section of the Minnesota Bar Association. Its quarterly publication, Family Law Forum, always has insightful, well-written, timely and practical articles. The Winter 2010-11 issue is entitled "Impact of the Economic Downturn on Family Law." One article in particular addresses the new challenges of dealing with real estate in a marriage dissolution given that many homesteads are currently "under water," that is, the total mortgage debt (first and second and maybe third mortgages) exceeds the fair market value. The article is authored by Lymari Santana and Jeffrey O'Brien. Here is a link to these articles:

http://www2.mnbar.org/sections/family-law/newsletters.asp

DECREE MUST HAVE WRITTEN FINDINGS OF FACT SUPPORTING DEVIATION FROM SUPPORT GUIDELINES

2011-02-24T06:49:00.000-08:00

Minn. Stat. 518A.37 requires that the Court make written findings of fact supporting a deviation from the support guidelines even though the parties agree and even though they both have attorneys. Sub. 2 states what the findings must be. Frequently MTA's and decrees come across my desk for administrative approval which have little or no factual findings to support the agreed deviation, and do not have the Child Support Calculator Worksheet attached. Judges would also find it helpful to have verification of incomes by paystubs or W-2's under Sub. 3 of the statute. Failing to provide adequate findings will only delay approval of the stipulated decree.

Award of Attorneys Fees Against Pro Se Party Only Allowed for Extreme Misconduct

2011-02-08T08:29:00.000-08:00

Frequently counsel in family court will request an award of conduct-based attorney's fees because of alleged misconduct in the proceedings by the unrepresented opposing party. In an unpublished opinion filed
Feb. 1, 2011, in Fonss v. DeMartini, the Court of Appeals reversed an award of attorneys fees against a pro se party, finding that "submitting a motion with insufficient factual support is not the sort of 'extreme' infraction for which a procedurally unsophisticated pro se party should be burdened with the legal fees of his opponent." (citing Kassan v. Kassan, 400 NW2d 346,350 (Minn. App. 1987)) Therefore, it appears that a pro se party must engage in much more than a technical violation of the Rules of Court before there would be sufficient facts to warrant an award of conduct-based attorney's fees against them. The trial court must make specific findings of fact supporting any such award.

MN House file 69 creates a rebuttable presumption of joint legal & physical custody

2011-01-20T14:11:00.000-08:00

The Children's Equal Access Parenting Act has been introduced in the House as HF 69. It provides for a rebuttable presumption of joint legal and physical custody. It is worthy of review by family lawyers as the landscape of custody litigation would be substantially altered were this bill to pass in its present form. In my opinion it would result in a greater number of custody disputes going to trial. There are certainly a lot of practical questions to be answered, not the least of which are the impact on children of protracted and expensive litigation, and what kind of order (or disorder) will result if the parents live a substantial distance from one another. How can there be joint physical custody and sharing of equal time with the children (as the bill provides) if one parent lives in Rochester and the other in Duluth, for example? I take no position on the bill as that is a legislative matter and I will certainly enforce the law as passed. It is still worth a look.

How to Present an Effective Argument

2011-01-06T06:04:00.000-08:00

Recently I heard several motions in similar civil cases on the same day. The difference between the effectiveness of the arguments was striking. In one case, and perhaps the most organized argument I have heard in my 8-1/2 years on the bench, the attorney first outlined the points she was going to make, then provided a set of documents to which she would refer, and then presented the argument in a clear, concise and effective manner. Later in the day and at other times during the week several attorneys included in their arguments such comments as,"...and as you will see on page 4 of Exhibit 1 attached to John Doe's Third Supplemental Affidavit..." HUH? I had several hundred pages of documents and wasn't about to take 5 minutes to find the document, though I would have had counsel asked me to. The attorney could simply have given me a copy with the relevant portion highlighted.

There is the old phrase "Keep It Simple, Stupid" which really applies to arguments in court. Many of us are better visual learners than audio learners. Even in complicated civil and criminal cases, often witnesses are describing an accident scene with no reference to a map or photo. If you are arguing incomes, give the judge a clear, enlarged photocopy of the paystub with the relevant parts highlighted. Provide copies of relevant cases you are citing.

A little extra effort will go a long way in presenting an effective argument.

Admissibility of Child's Statements in an OFP or Family Hearing

2010-12-23T11:09:00.000-08:00

Worthy of review is the recently-reported Wahl case (Minn. Lawyer 12-20-10) which primarily addresses whether threats of suicide may constitute "domestic abuse" under Chap. 518B, but also discusses the admissibility of a child's statements. Whether such statements are admissible under the "catchall" exception of Evidence Rule 807 requires an analysis of 8 factors under State v. Edwards, 485 NW2d 911, 915 (Minn. 1992):

1. Are the statements spontaneous?
2. Did the person speaking to the child have a preconceived idea of what the child should say?
3. Were the statements in response to leading or suggestive questions?
4. Did the child have an apparent motive to fabricate?
5. Would one expect a child of such age to fabricate such statement?
6. What was the child's mental state at the time?
7. Was there consistent repetition of the child's statements?
8. Did the child have an apparent motive to speak truthfully?

Counsel wishing to introduce a child's statements through the hearer should be familiar with Rule 807 and the above-noted cases.

Best Not Heard in Court: "But Judge, That's Not How They Do It In XYZ County!"

2010-12-09T13:09:00.000-08:00

Much of my family law practice for 24 years took place in Anoka County. As a pup lawyer I learned very quickly that the phrase, "But that's not how they handle these cases in Hennepin County," did not carry much, if any,weight, in Anoka County and, in fact, probably would harm my case. Back in the late 1970's and early 1980's there were still special rules for each judicial district. Thankfully, those were eliminated. However, it is still important for family law practitioners to find out the particular procedures of the district and county in which their case is to be heard. It is a good idea to determine:

1. Does that court liberally appoint guardians ad litem or only in the most severe cases of child abuse?

2. Does that court have an agency available for custody/ parenting time mediation and/or studies?

3. What is the presiding judge's predilection toward argument? Does the judge allow argument about matters not discussed in affidavits or beyond the scope of motions? Does the judge prefer or insist that counsel stand during arguments?

4. Does this judge or county require an initial case management conference (ICMC) to discuss ENE and mediation prior to setting any contested custody parenting time or other motions? (This is a practice I have recently adopted.)

5. Does the judge have a preference regarding verbal settlement agreements? (I much prefer written stipulations.)

6. Does the judge like a Judge's (or courtesy) copy or do they think this is a waste of paper?

7. Will the presiding judge allow an appearance by telephone for a default hearing?

Judges' preferences may be found in the Judicial Directory in Minnesota Lawyer and in bar association resources.

The Harsh Realities of the Looming State Budget Deficit

2010-12-08T12:51:00.000-08:00

On Dec. 7 I attended a 7th Judicial District presentation for legislators and the media about initiatives in the judicial branch to make the branch more efficient and better able to face possible budget cuts. These include e-charging, e-filing of civil pleadings, remote interpreters, and in-court updating of records. One of the judges made a great point which needs to be communicated to civil and family law practitioners:

Drastic budget cuts to the courts will mean that judges will handle those cases which we are mandated by law and the Constitution to process under strict deadlines, that is criminal cases, particularly for people in custody. Delays for civil and family cases could become a part of the "new normal."

Keep this in mind when you see one of your legislative representatives. Our system of justice in Minnesota, and to some extent the livelihood of many civil lawyers, is at great risk.

Dressing a Client for Court

2010-12-01T07:16:00.000-08:00

There is a good article at http://www.minnlawyer.com/
under JD's Rising about having your client dress appropriately for court.
This is generally not a problem in civil court for represented parties, but can be a problem in criminal court. Defendants sometimes appear in muddy or oily work clothes, or sleeveless dirty T-shirts, or worse. Something to keep in mind. Showing disrespect for the court is not a recipe for success.

Affidavits: Accentuate the Positive, Minimize the Negative Unless Very Relevant

2010-11-02T07:12:00.000-07:00

While I realize that the emphasis in affidavits on negative parenting characteristics of one's opponent has long been the practice, I feel compelled to comment on it. Judges continue to receive dozens of pages of affidavits which demonize the opponent, commenting on entirely irrelevant family history such as brother's drug addiction or sister's abortion, and attaching many pages on profanity-laden emails or text messages. Judges may be asked to review dozens of pages of photos of little Susie with all of the members of the extended family, or cards from Grandma, or surveys of the quality of schools where each parent resides. At the same time the party's own affidavit may say little or nothing about their history of parenting the child, philosopy of child-rearing, or willingness to promote visitation with the other parent. Certainly facts which bear on parental fitness or endangerment of the children need to be alleged, but counsel need to be selective and factual, not relying on innuendo. It often appears that counsel did not even review their client's affidavit, but simply served and filed it. A more satisfactory result is likely when one accentuates the positives and minimizes the negatives.

The New Normal: Loss of Staff in Anoka County Domestic Relations Unit Leads to Changes

2010-10-26T07:35:00.000-07:00

As a result of loss of one staff person in the Anoka County Domestic Relations Unit, it appears that greater scrutiny will take place of contested custody cases. This was relayed in an email to members of the Anoka County Bar Association this week. If ENE or media is unsuccessful, the parties may stipulate to a custody evaluation. Once the evaluation is ordered by the Court, The Domestic Relations Unit will conduct an intake assessment and determine on a case-by-case basis whether an evaluation is the "best utilization of resources or is not appropriate or feasible." The Unit may decline to conduct an evaluation and will so notify the Court.

Such changes are a part of the "New Normal" we keep hearing about in the Minnesota Judicial Branch. Litigants and their counsel need to keep apprised of these changes as the days of "free" custody and parenting time evaluations is long past. ENE and mandatory mediation prior to any contested hearings forces parties to seek resolution of their dispute before expending thousands of dollars in attorneys fees and inundating the court with hundreds of pages of affidavits airing all of their "dirty laundry."

Caution is Key Where Parties Stipulate to Custody Modification Standard as "Best Interests"

2010-10-05T12:50:00.000-07:00

In Wolff v. Ostergren, reported in Minn. Lawyer on 10-4-10, the Court of Appeals clarified the strict requirements of Minn. Stat. 518.18 (d)(i) where the parties stipulate that future modifications of custody will be governed by the "best interests" standard instead of the so-called "endangerment" standard. Both parties must be represented by counsel or "the court found the parties were fully informed, the agreement was voluntary, and the parties were aware of its implications." (Sub. d(i)) Considering these specific findings of fact are required, it would seem a prudent practice to have both parties appear at the default hearing seeking approval of the MTA containing such a stipulation, particularly if one party is unrepresented.

Wright County Launches Batterer's Intervention Program; New Statute Affecting DANCO's

2010-09-30T09:55:00.000-07:00

Frequently in OFP orders or sentencing orders in cases of domestic assault, the batterer is ordered to complete either an anger management program or a domestic abuse program. The former is sometimes ordered as apparently there is greater likelihood of insurance coverage than for the latter. My experience has been that many batterers never complete the program. Wright County COurt Services is launching a batterer's intervention program consisting of 24 weekly open group sessions of 2 hours each at a cost of $30 each. The program is facilitated by Central Minnesota Mental Health Center. Unfortunately, some counties are suspending such programs due to budgetary constraints.

Effective 8-1-10 Minn. Stat. 629.75 requires that an expiration date for a domestic abuse no-contact order(DANCO) be indicated at sentencing.. It also appears that a DANCO may be ordered even if a jail sentence is executed in a criminal case.

Rules Prohibiting Ex Parte Communications.

2010-09-24T07:40:00.000-07:00

Ex parte communications from pro se parties and attorneys, particularly in family law cases, are the subject of frequent complaints by judges. Indeed they are our pet peeve. Recently a pro se party told me in a joint phone conference that an attorney helped write an ex parte letter to me and that the attorney said it was OK since opposing counsel was being copied. This convinces me that there is considerable misunderstanding about ex parte communications. Sending a copy to opposing counsel does not make an ex parte letter or email acceptable under the rules. Judges are prohibited by Rule 2.9 of the Code of Judicial Conduct from considering ex parte communications except in limited circumstances.

Attorneys are encouraged to review within the Professional Aspirations adopted by the MN Supreme Court, Sec. IV. Lawyer and Judge, Subd. A(6):
We will avoid argument or posturing through sending copies of correspondence between counsel to the court, unless specifically permitted or invited by the court.

Judges realize that family law clients can be very demanding. But that does not excuse violating our rules.

Family Appellate Mediation Program

2010-09-09T09:24:00.000-07:00

The Minnesota Court of Appeals in September 2008 started a pilot program of mediating family appeals. According to information provided to district court judges by Judge Klaphake of the Court of Appeals, the goals were to reduce case load, reduce time to disposition, meet challenges of unrepresented appellants (31% of family appeals are pro se) and diminish the court's role in ongoing family conflict. While mediation occurs, there is a stay of transcript preparation (and cost) and stay of briefing. Statistics show that since inception, 207 cases were ordered to mediation, with 56 approved for "opt out;" 47 are currently in the mediation process and 101 completed the process, of which 48% settled. Disposition times have been reduced from 294 days in 2008 to 231 days in 2009, with mediated/settled appeals being dismissed in only 89 days. Lawyers have reported increased litigant satisfaction with the appellate process and substantial cost savings to their clients. If you disagree with these conclusions, please post a comment or send me a confidential email.

Court of Appeals Approves Obligor Making Mortgage Payment as Part of Support Obligation

2010-08-30T08:57:00.000-07:00

As reported in Minnesota Lawyer on August 23, 2010, in Tiede, the trial court may allow a child support obligor to make the homestead mortgage payment as a part of the support obligation when the obligee has failed to make the mortgage payments despite having been ordered to do so. In light of the recession and mortgage foresclosure crisis, plus the fact that many mortgage loans are on homesteads with negative equity, this is a reasonable result. If the children remaining in the homestead is required in the decree, such residence being in their best interests, it only seems consistent that the custodial parent should not put that residence at risk by failing to pay the mortgage loan. Frequently judges hear disputes of this nature requiring the interpretation of real property provisions in divorce decrees prepared by pro se parties. Since the trial court cannot modify the real property provision, the ability of a party to obtain post-decree relief may be severely limited due to their failure to provide a mechanism in the decree for handling either party's defaults in the payment of debts, including homestead mortgage loans. Just another reason that proceeding without counsel in a divorce may result in serious unintended adverse consequences.

Emergency, what emergency?...and Suggestions on Finalizing Divorce Settlements

2010-08-12T07:13:00.000-07:00

EMERGENCY?
There are certain times of the year when more "emergency" motions are presented to the court, often ex parte in nature, within a few weeks, and sometimes mere days, before events that in and of themselves can be stressful for children:
Christmas
The first day of school in September
The re-marriage/ wedding of one parent
Summer vacation

When these motions are brought we judges often hear the argument from counsel, "Judge, you must make a decision quickly because ____________ starts in just a few days." When counseling clients that want to bring such last minute motions, lawyers may wish to remind their clients that their emergency may not be considered an emergency by the judge and that the judge has 90 days to make a decision. The Court will most certainly inquire whether mediation has been attempted and, if not, why not. I posted Judge Steve Aldrich's article on "emergency motions" in January; you can find it below under "older posts."

FINALIZING DIVORCE SETTLEMENTS
Check out comments by Anoka County Judge Alan Pendleton on p. 48 of the August issue of Bench & Bar about making a record to increase the chances of a settlement withstanding a motion to vacate a MTA.
I have commented on this in Older Posts below.

Top Ten Reasons to Settle Your Divorce

2010-08-05T08:56:00.000-07:00

Anoka County District Court Judge Kristin Larson discusses the top 10 reasons to settle a divorce on the Minnesota Judicial Podcast. See link in the right column.

Buyer's Remorse: When Parties Seek to Withdraw MTA or Vacate Stipulated Decree

2010-06-22T09:40:00.000-07:00

Worthy of your reading and consideration is the Davies decision (A09-1356) of the Court of Appeals filed June 15, 2010. Judge Connolly discusses at length the different standards for pre-decree motions to withdraw a stipulation or MTA, versus post-decree motions to vacate a stipulated decree under Minn. Stat. 518.145. There are also several comments that are instructive for family law practitioners:

1. "Motions for new trial are not authorized where, as here, there was no trial..."
2. Footnote: "We note that appellant was represented by a series of attorneys throughout the dissolution proceedings." (hmm...)
3. A claim that one's constitutional right to substantive due process was violated cannot be brought, for the first time, on appeal.
4. The trial court cannot, by judicial fiat, accept portions of a stipulation, reject others, and then impose conditions to which the parties did not agree, thereby denying them their day in court.

At a time when we judges see many parties in family court represented by a "series of attorneys," this decision is particularly instructive.

The Last Holdout State With Fault Divorce

2010-06-21T07:29:00.000-07:00

New York is the last of the 50 states to eliminate "fault" grounds for divorce, with legislation pending to do so. It has been the only state with fault divorce for 25 years. Minnesota in 1974 followed California (1970) in entering the no-fault divorce era. Occasionally we hear proposals to return to the fault standard as a means to keep marriages, and families, intact. Here is a link to the article:
www.nytimes.com/2010/06/17/opinion/17coontz.html

The most applicable commentary in the article is about mediation and the long-term advantages to parents and children of a successfully-mediated divorce. Link in the article is to a 12-year study of litigating -vs-mediating parents in custody disputes: http://emeryondivorce.com/divorce_mediation_study.php

See also the posting below about collaborative law.

If you have an interest in history, check out the legislative history of grounds for divorce in MN on page 55 of volume 30A of Minn. Stat. Annotated. Prior to passage of the no-fault divorce act the grounds were:

1. Adultery
2. Impotency
3. A course of conduct detrimental to the marriage relationship
4. Imprisonment subsequent to the marriage
5. Wilful desertion for one year
6. Habitual drunkenness for one year
7. Three years of civil commitment
8. Continuous separation for a period of 2-5 years or more under a court decree

Current ground is simply "irretrievable breakdown of the marriage relationship."

New Civil Summons- Not Applicable to Marriage Dissolutions?

2010-06-17T07:54:00.000-07:00

Effective July 1, 2010, there is a new civil summons that is required under the Rules of Civil Procedure. There is discussion on the MSBA PracticeBlawg http://practiceblawg.com/2010/06/new-civil-summons-available-on-practicelaw/ concluding that it is NOT applicable to marriage dissolutions. Since I must following my own "rules and disclaimer" in the right margin of this Blog, you will have to draw your own conclusions.

An Article on "Contempt of Court" Worth Reading

2010-06-14T12:59:00.000-07:00

A frequent headline over the past year has been contempt proceedings against a well-known Minnesotan who failed to comply with a judge's orders. The May/June 2010 issue of Bench and Bar has a very good article on contempt of court, the law and process of which is frequently misunderstood by pro se parties appearing in family court. The article is written by Renville County District Court Judge Randall Slieter.

In late 2008 there was clarification by the MN Court of Appeals as to the availability of the contempt remedy when non-compliance with a divorce decree's property division is involved. Prior to those decisions, Mn law generally was that contempt was not available to compel compliance or punish failure to comply with the property division provisions of a divorce decree. For example, contempt was not available for failure to pay a cash property., execution on a judgment being an available remedy. Burgardt, 474 NW2d 235, 236 (Minn. App. 1991).

In Alexander-Knight v. Knight, A07-2181, an unpublished decision filed 11-25-08, Judge Michele Larkin wrote an opinion which describes the law and procedure for a finding of contempt. The requirement of specific findings of fact is emphasized. The trial court was reversed and the case remanded for additional findings of fact consistent with the requirements of Hopp, 279 Minn. at 173, 156 NW2d at 215. The trial court cannot change the property division itself. Dicta at the end of the opinion is instructive relative to enforcement of the property division provision in a divorce decree:

An order for title transfer and sale may be an appropriate means of implementing or enforcing the provisions of...the decree...(if it) preserve(s) equity interest in the homestead.

In Saby v. Saby, A07-2421, also an unpublished decision, filed 12-16-08, Judge Halbrooks writes an opinion reversing the trial court which found contempt where the party awarded real property failed to partition it and satisfy the other party's lien in violation of the divorce decree. Foreclosure of the judicially-imposed lien on real property is available as a remedy, but not contempt.

There are other cases which hold that contempt is available as a remedy when the alleged contemnor failed to transfer title to an asset since all that was required was a signature (essentially a ministerial act) not the payment of money.

Those seeking a finding of contempt should consider updating themselves on the law of contempt before filing a motion.

Podcast #8: Courtroom Rules Not Made to Be Broken

2010-06-08T03:20:00.000-07:00

New podcast accessible at the link at right is primarily directed at pro se parties. I appreciate very much the professionalism of the 99% of the lawyers that appear in my court. But it's that 1% who either violate the rules of decorum or appear to be putting on a show for their client. This kind of behavior demeans the profession and usually does not produce a favorable result.

Collaborative Law: It's Been Around Almost 20 Years, Started in MN

2010-05-28T07:01:00.000-07:00

I just videotaped an episode of The District Court Show on the topic of Collaborative Law with Twin Cities attorneys Linda Wray and Ron Ousky. I will post a note in the future when it is available for viewing on the QCTV website. They discussed how collaborative law was started by Minneapolis attorney Stu Webb about 18 years ago to provide a more healthy means for resolving family law disputes as opposed to the "scorched earth" litigation process with which we are all familiar. The "participation agreement" signed by the attorneys and parties is central to that process because if the case is contested and heard in court, neither attorney can appear in court; the parties must retain new counsel for court. The agreement is intended to reduce fear and anxiety in the process by requiring full disclosure. The collaborative team may include mental health professionals, financial advisors and parenting consultants. An important aspect is to get the parties to be forward-thinking instead of focused on the "sins of the past", so to speak. All discussions in the collaborative process are confidential and cannot be used in court, just as in mediation. Rather than relay further information, you may go to http://www.collaborativelaw.org/ for a volume of information. An interview with Linda Wray, discussion of the Uniform Collaborative Law Act, and an opposing viewpoint by attorney Nancy Zalusky Berg, are in the Spring 2010 issue of the Family Law Journal:
http://www2.mnbar.org/sections/family-law/newsletters.asp

"Integration" Standard Inapplicable in Motions to Modify Joint Physical Custody

2010-05-24T11:55:00.000-07:00

Occasionally judges hear motions for modification of joint physical custody in which the argument by the moving party is that the child has been living with them substantially more than 50% of the time, therefore they want sole physical custody. Frequently in these cases it appears that one parent never had any intention of complying with the "equal residency" provisions of the divorce decree and agreed to it simply to pay less child support. Nevertheless, the integration standard of Minn. Stat. 518.18 (d)(iii) does not apply to such cases as there cannot be integration when the parties already have joint physical custody. Consider a footnote by Judge James Swenson in an order in a Hennepin County District Court case, Snetsinger, court file 24-FA-248938:
The integration standard set forth in (Minn. Stat. 518.18) (d)(iii) does not apply because joint physical custody assumes that the children will be integrated into both households. "This integration of a child into the homes and community of both parents is the necessary outcome and goal of a joint custody arrangement..." In re the Marriage of Johnson, 777 P.2d 305, 307 (Mont. 1989) The Court understands that Johnson does not represent Minnesota precedent, but Montana is also a uniform act state and the Montana court's analysis is persuasive.

The moving party in such cases must prove either "endangerment" of the child or interference with joint physical custody.

Post-decree modification of maintenance: Pension as income or property?

2010-05-12T13:48:00.000-07:00

A recent unpublished Court of Appeals decision, Hemp, 2010 WL 1657024, is worthy of review by family law practitioners and judges as it considers once again which portions of a maintenance obligor's pension may be considered as income or property when a motion to modify maintenance is brought. The Court discusses Lee, 775 NW2d 631 (Minn.2009), which held "a district court may include in its calculation of an obligor's ability to pay maintenance the portion of an obligor's monthly pension payment exceeding the amount the obl;igor is entitled to receive each month as marital property." The Court of Appeals in Hemp approved the district court's apportionment of the monthly pension benefit between what is marital property and what is not. The district court, however, erred in its interpretation of the valuation method used in the original dissolution decree. I think one lesson to be learned is that counsel and the court should make detailed findings of fact in the original decree as to the valuation method agreed-upon by the parties or as ordered by the court so that such method is clear to the court hearing post-decree motions on maintenance.

MIscellaneous But Often-Ignored Family Court Rules and General Rules of Practice

2010-05-03T08:04:00.000-07:00

It has been widely-publicized that the Minnesota Judicial Branch is laboring under some intense budgetary pressures. Therefore, it is very important that family lawyers follow the various Rules to avoid unnecessary work by court staff and judges, and to avoid continuances. These Rules include the following:

1.    Minn. R.Civ. P. 5.05: Don't file original documents if you have faxed them to the Court. Be sure to pay the fax fee. Inquire before sending the judge a courtesy copy. Personally, I do not want a judge's copy.

2.   Rule of Family Court Procedure (RFCP) 303.03(c): Settlements efforts regarding motions, other than a motion for temporary relief, must be certified to the court prior to hearing. The rule recommends that mediation be considered.

3.   RFCP 303.03(d): The taking of oral testimony at a motion hearing is not permitted absent prior approval of the court. The rule has very specific requirements for the motion to allow oral testimony. Note the last sentence that no child under age 14 will be allowed to testify without prior approval by the court and prior notice to the other party.

4. RFCP 305.01: Prehearing Statements must be served and file no less than 10 days prior to the Prehearing Conference. Handing your client's Prehearing Statement to the judge at the hearing may result in sanctions. It also will not enable your client to avoid paying the court filing fee if none was previously paid.

5. RFCP 309.01: Orders to Show Cause(OTSC) regarding contempt, motions and affidavits have specific requirements. OTSC often are presented without the the required language. Please do not assume that the sample order on the court website is up-to-date and accurate.

6. RFCP 302.02: Continuance requests must comply with Minn. Gen. R. Prac. 122, ie.by properly-served and filed motion. Most judges will ignore or deny any ex parte continuance request, even if a copy is sent to opposing counsel. We judges are well-aware of the practice of parties hiring attorneys at the last minute in order to try to get a hearing continued.

7. RFCP 303.01 (a)(2): Except where thye parties are residing together and there is a possibility of abuse, the party scheduling the hearing must promptly give notice to the opposing party. Judges will scrutinize the service of motion papers with the absolute minimum 14-days' notice, including faxing pleadings to opposing counsel late in the day or after-hours on the 14th day. "Motion by ambush" will likely result in the granting of any continuance request from the served party.

8. GRP 119: Motions for awards of attorney's fees of $1,000 or more must be supported by an affidavit and time records. This Rule is rarely followed.

If you follow these Rules, the judge will more likely conclude that you are an experienced family law practitioner that knows what they are doing.

Unbundling of Legal Services, Part 2

2010-04-26T11:11:00.000-07:00

I first addressed this issue in my January 22, 2010, posting. There is an article in the Minnesota Lawyer on April 19 about unbundling of legal services and "ghost-writing" documents for clients. There is a comment that some lawyers feel it helps the court because some lawyer involvement is better than none at all. I strongly disagree. The following is a frequent occurence: I recently had a case where after both parties hired lawyers and battled over temporary issues, they both showed up for trial without counsel and completely unprepared. I am sure these low-income folks incurred substantial attorneys fees and are worse off than when the case started. Twenty years ago I often observed a veteran judge in the Tenth Judicial District (now deceased) start a family court hearing with pro se parties by simply saying, "Petitioner, you may proceed! Don't know what to do? Go hire a lawyer." The judge gave them no help whatsoever. Unrepresented parties assume the judge is going to help them, including drafting their decree. They do not understand that the judge cannot give them legal advice. I also feel it is unethical for counsel to withdraw from a family case on the eve of trial.
It does a disservice to parties, I believe, to ghost-write a document, such as an affidavit or memo of law, replete with legalese and case citations, and then send them into court unrepresented. Preparing an affidavit to which the client swears to the truthfulness, but has no idea what the legal arguments mean, is unethical, and not the least bit helpful to the Court.
I would appreciate very much your comments.

The Vanishing County-provided Custody/Parenting Time Evaluation

2010-04-19T08:03:00.000-07:00

Most of my practice in the 1980-90's was in Anoka County where for years custody/visitation mediation was free to the parties and the custody evaluation was for little or no fee. How times have changed with the budgetary pressures on counties and the courts. It is important to find out if the court where your case is venued orders mediation or custody evaluations through the county's social service agency or a contracted-provider. Frequently lawyers appearing before me make a motion for an evaluation only to be informed (in front of their client) that Wright County has not provided custody/parenting time evaluations since the Fall of 2008; mediation remains available and is free to the parties. Before making a motion check with the court to find out if mediation and/or an evaluation is available in your case.

Preparing and Arguing Effective Family Law Motions

2010-03-19T11:57:00.000-07:00

This is the title of an article authored by Judge Sharon Hall (Anoka County) and myself in the Winter 2009-10 issue of Family Law Forum. The issue is entitled Pesky Problems in Family Law and includes articles on bankruptcy, attorney-client privilege, child support, and collaborative law. Copies are available for download at:

http://www2.mnbar.org/sections/family-law/newsletters.asp

If you are a member of the Family Law Section of the MSBA you should have received a copy in February. If you are not a member, you should consider joining as the Section has frequent meetings and seminars with CLE credit.

Here is a brief excerpt:

Frequently-ignored rules include the following:
a. Rule 303.01(a)(2) requiring counsel to advise the opposing party or counsel of the scheduling of a motion...
b. Rule 303.03(c) requiring counsel to certify settlement efforts...
c. If an Order to Show Cause is required, such as for a contempt motion, be certain that it complies with Family Court Rules 303.05 and 309...

It continues to amaze judges that attorneys sometimes behave like they are in the midst of a political campaign, accentuating all of the bad behavior of the opposing party, while saying little or nothing about the nature of their own client's relationship with the children...

I appreciate it very much when attorneys accentuate the positives and downplay the negatives, unless the negatives are relevant to the parent-child relationship and endanger the children.

Written Marital Termination Agreements (MTA) Always Preferable

2010-03-01T06:48:00.000-08:00

Frequently at a Prehearing Conference the attorneys want to read an agreement into the record, with a Decree, approved as to form by the attorneys, to follow. I discourage this practice as on occasion the verbal agreement falls apart within days of its reading into the record, or one or both parties fire their attorneys and think they can back out of the agreement. A few years ago I had a case with a pair of attorneys fighting over the wording of the Decree for 6 months. I ordered a transcript, charged 1/2 to each attorney, and drafted the decree myself. I encourage attorneys to bring a draft MTA to the Prehearing Conference so that the agreement is clear to their clients and the attorneys thereafter need not obtain a transcript. Attorneys sometimes want to argue by letter (ex parte) what should be in the decree. Family Court Rule 307(b) provides for the process when a verbal stipulation is read into the record.

An example of something read into the record in a verbal stipulation that would best be in a written MTA as it is vague and probably not clearly understood by the parties:

The homestead is awarded to Petitioner, with Respondent having the standard "Hennepin County" variable lien..."

What does that mean? (Its probably 2 full pages in a Decree.) I would be shocked if the parties understood what that means. In this time of many homes being "upside down", ie. mortgage loan balance exceeds fair market value, both parties are best served with a detailed MTA, not a verbal agreement read into the record.

The Importance of General Rule of Practice 11

2010-02-24T07:02:00.000-08:00

Minn. General Rule of Practice 11 governs the filing of confidential information, that is, documents containing so-called "restricted identifiers" such as Social Security numbers and account numbers. Attorneys generally follow Rule 11.02 (a)(i) in filing a Confidential Information Form, however, violations of the remainder of the Rule thereafter are frequent. Often judges find attached to affidavits copies of paystubs, bank statements, cancelled checks, and credit card statements replete with confidential information. Family Court files are open to public inspection unless otherwise ordered by the Court, therefore, the filing of such documents puts your client at risk of identity theft, and attorneys at risk of malpractice. Recently in a court trial the lawyers before me filed literally hundreds of pages of exhibits containing "restricted identifiers." Attorneys may find themselves subject to sanctions (Rule 11.04) for violating General Rule 11. Easy solutions include simply complying with Rule 11.03 with a cover sheet designated "Sealed Financial Source Documents" or redacting all but the last 4 numbers of an account number on a document. Court administration has neither the time nor the responsibility to do the redaction for attorneys.

Back to the Future: Maintenance Terminating on Cohabitation

2010-02-11T09:34:00.000-08:00

Senate File 2362 is a proposed bill which would amend Minn. Stat. 518A.39, Sub. 3, to add that spousal maintenance terminates on "cohabitation by the party receiving maintenance with a nonrelated person of the opposite sex for six months or longer." It brought back memories to me of divorce decrees from the 1980's and perhaps 1990's when parties agreed that cohabitation would terminate maintenance. I recall as a lawyer having contested hearings about whether there was, indeed, cohabitation of the obligee with a boyfriend, or just a dating relationship that did not amount to cohabitation. Private investigators would be hired by parties to scope-out the alleged cohabitation and get photos of the "cohabitator's"car parked overnight. I seem to recall that cohabitation clauses were struck down, but I may be wrong. I would appreciate your comments.

Top Ten (or so) Questions for A (Family) Law "Emergency"

2010-01-25T09:15:00.001-08:00

Top Ten (or so) Questions

for

A (Family) Law "Emergency"

By Judge Stephen C. Aldrich, Hennepin County District Court

PRIOR QUESTIONS: --Is there original or continuing jurisdiction

elsewhere and favored by the PKPA/UCCJEA?

[28 U.S.C. Sec.1738a]

--Is there a judge already assigned?

10. Are both attorneys here? [MRPR 3.5 (g)]

--Why not? [MnGRP 3.01]

--How and when was the other side notified?

9. Is the reason for ex parte hearing in the order? [Id. 3.01]

8. Was there a prior application? [Id. 3.02(1)]

--What is changed from the prior application? [Id. 3.02(2)]

7. Is there a written affidavit [Id. 303.04(a)]

--Is each requested relief supported in the affidavit?

[Id. 303.04(g)]

6. Should the judge eyeball/question this attorney?

5. Oh, Yeah? Who says?

--Why wait until now?

--Is there really a need for a TRO? [Id. 303.04 and .05]

4. With what foundation? (How sure are we about the emergency-creating facts?)

3. Do we need an expert's emergency input?

2. What's the least intrusive/restrictive we can safely be pending the hearing when both sides are present?

1. What's the shortest proper time for emergency relief to be granted until a hearing with both sides present?

What do the law and rules say?

518.005 (rules of civil procedure apply except¼)

518.131 (subd. 9, will permanent decision be prejudiced?)

(Is such relief permitted? Subd. 2 & 3)

518.158 (relative exparte temp. custody order; 518.17

518B.01, subd. 7 (ex parte OFP)

518.D (UCCJEA) Uniform Child Custody Jurisdiction & Enforcement Act

257.0651 and Indian Child Welfare Act, 25 U.S.C. Sections 1901-1963

Lawyer as Peacemaker; "ghost writing" court documents.

2010-01-22T13:33:00.000-08:00

A thought-provoking article in the Fall 2009 Family Law Quarterly (Vol. 43, No. 3) is entitled "Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court," authored by Forrest S. Mosten, a lawyer for over 30 years who is listed as an adjunct professor at Hamline School of Law. For those of you who practice in "the trenches" and are threatened with discharge if a client's email is not returned in 10 minutes, I would appreciate your comments if you read the article. HERE IS A LINK to the author of the article: http://www.mostenmediation.com/books/articles/Lawyer_as_Peacemaker.pdf

I disagree (as a judge) with some of the author's comments about unbundling of legal services and "ghost-writing" of documents. Horizontal undundling means the attorney represents the client on only one or some of the contested issues. Vertical unbundling includes just drafting documents, just providing advice, or appearing in court on a limited basis, such as just at a temporary hearing. Apparently some states require lawyers to disclose their authorship on any legal docuemnts that they "ghostwrite." I favor such a rule in Minnesota. These documents cause substantial problems when pro se parties submit agreements and/or decrees for administrative approval, or appear for a default hearing. Most have no idea what all of the legalese means in their lengthy agreement or decree. Worse yet they are upset when the Court won't approve an agreement to a substantial downward deviation from the support guidelines absent specific findings of fact required by statute. Again, I solicit your comments on these issues as clearly practicing family law in this recession has been very challenging.

Supervised Parenting Time Orders

2010-01-14T12:47:00.000-08:00

In cases where supervised parenting time (visitation) is ordered under Minn. Stat. sections 518.175 or 518B.01, Sub 6(4) or 257.541, it is important that the conditions for supervision be specific in the parties' agreement or court order. The King County (Washington) Superior Court has a useful agreement and oath for visitation supervisors. If you would like a copy, leave a comment with your email address and I will email one to you. It is important for the safety of children that the parents and supervisor understand and comply with specific rules and conditions for visitation, particularly if the supervisor is not a child safety center or a social service agency.

Client Overconfidence

2010-01-08T09:50:00.000-08:00

Parties in family law cases frequently have an unrealistic opinion of their chances of success in a trial or contested hearing. If you are a family lawyer you probably have a number of examples that come to mind: the over-the-road truck driver that wants to seek custody of preschool children, or the parent that has had no relationship whatsoever since birth with a grade-school-age child, but wants custody. The following are a couple of articles on the psychology of overconfidence and importance of settling a case. You might find them interesting:

"Study Finds Settling is Better Than Going to Trial," by Jonathan Glater, The New York Times, August 8, 2008.

"Cocksure: Banks, battles, and the psychology of overconfidence, " by Malcolm Gladwell, The New Yorker, July 27, 2009.

A useful quote from the first article: "Most clients think they are completely right. (says Michael Shepard, a lawyer in San Francisco) A good lawyer has to be able to tell clients that a judge or jury might see them differently...Part of it is judgment and part of it is diplomacy."

One of the purposes of early neutral evaluation (ENE) is to encourage each party, with the assistance of a "neutral", to conduct a realistic evaluation of the facts of their case and their chances for success in a contested hearing. I solicit your comments on whether ENE serves this purpose and, also, whether it reduces the likelihood of post-decree litigation.

Excessively lengthy affidavits with voluminous attachments

2009-12-18T13:25:00.000-08:00

It appears that with the advent of word processing capability in almost every client's home, family lawyers are allowing clients to submit to them, and then serve and file with the court, lengthy affidavits filled with spiteful venting of alleged facts that "do not affect the custodian's relationship to the child" (Minn. Stat. 518.17 (1) and, worse yet, are "redundant, immaterial, impertinent, or scandalous" in nature, therefore, being subject to striking by the Court under Rule of General Practice 303.02 (a). Family lawyers should be cautious in permitting clients to vent their anger in affidavits, alleging the opposing party's adultery, premarriage abortion, incarceration of relatives, or flirtatious conduct. Lawyers should also use restraint when asked to file dozens or hundreds of pages of emails and text messages between the parties. Doing so may result in sanctions from the Court.

Court-appointed attorneys' representation of indigent party after paternity adjudication

2009-12-11T13:27:00.000-08:00

Indigent parties in paternity cases are entitled to court-appointed counsel under Minn. Stat. 257.69, Subd. 1 (1990), including all proceedings under Minn. Stat. 257.51 to 257.74 (The Parentage Act). Sometimes court administrators and privately-retained attorneys question whether the entitlement to representation ceases once paternity is established. Since Sec. 257.541 governs custody and parenting time with children born outside of marriage, representation must continue until these issues are also resolved. See the last paragraph of McNeal v. Swain, 477 NW2d 531 (Minn. App. 1991) and LaTourell v. Dempsey, 518 NW2d 564 (Minn. 1994).

Launching Minnesota Family Law Issues Blog

2009-12-11T08:27:00.000-08:00

I am Judge Steve Halsey, chambered in Buffalo, Wright County, MN, in the Tenth Judicial District. Before being appointed to the bench by Governor Ventura in May 2002, I practiced primarily in the area of family law for 24 years. I have served on a planning committee for Family Law continuing judicial education seminars for judges in Minnesota. All issues arising in family law are of interest to me, especially domestic abuse matters. I am hopeful that this blog can be used by judges and attorneys to share opinions, questions and concerns in family law matters in Minnesota.

"The District Court Show" is a 30-minute cable television program that I have hosted for 6 years. We just finished the videotaping of our 48th episode. A recent episode may be viewed at http://www.qctv.org/. Click "Community", then scroll to "The District Court Show," and click "Watch Full Episode."