Minneapolis Divorce Attorney & Lawyer : Minnesota Family Law Firm : Brown Law Offices : St. Paul, Twin Cities MN Custody Child Support

The Minnesota Court of Appeals has affirmed a substantial spousal maintenance award.

In McCarney v. Hartleben, Ms. McCarney was stay-at-home mother who had taken some courses in an effort to obtain a degree in psychology. Dr. Hartleben worked as a surgeon, earning a net monthly income of approximately $30,000 on gross income of $600,000 per year.

Judge Stauber, in an unpublished decision, opined that the trial court did not err in granting McCarney monthly spousal maintenance payments of $13,000 conditioned on a reduction to $8,000 per month when she obtained the certification necessary to work as a licensed psychologist. Judge Stauber noted:

Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous. In order to successfully challenge a district court’s findings of fact, the party challenging the findings must show that despite viewing that evidence in the light most favorable to the trial court’s findings . . . the record still requires the definite and firm conviction that a mistake was made.

The court did reverse and remand an award of $800 per month to Ms. McCarney to pay her life insurance premiums.

As referenced in other posts on our blog, alimony awards are based upon several factors, including the length of marriage, the financial need of the spouse seeking maintenance (comparing their anticipated income against their reasonable monthly expenses) and the ability of the spouse being asked to pay alimony to make payments to their spouse. The reasonableness of the parties' budgets is based upon the standard of living the enjoyed during the marriage.

In this case, the court indicated that the parties lived a "lavish lifestyle" and had no difficulty accepting the wife's projected budget of $13,000 per month. Given the husband's substantial earnings and the length of the parties' marriage, the court required him to pay a rather significant figure each month.

The good news for husband? Alimony payments are tax deductible. Given his tax bracket, he'll probably only suffer an out-of-pocket loss of approximately fifty-percent of the payment made to his ex wife.

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Do the right thing...even when no one is looking. Great advice from Greg Cook, one of the top private investigators in the country (and, thankfully, stationed right here in the Twin Cities). Greg and I had lunch the other day and engaged in a long discussion about the uses of a private investigator in family law cases despite the fact that Minnesota is a no-fault divorce state.

In terms of property issues, some spouses falsely assume that they can hide assets from the other. Divorce fraud is perpetrated when one party fails to inform the other party of all assets one owns. All searches conducted by Greg and his staff abide by laws and regulations set forth in the Fair Credit Reporting Act, The Fair Debt Collections Practice Act, and the Gramm-Leach-Bliley Act (GLBA). Despite these hoops, they are able to locate bank accounts, cars, homes, boats, business interests, securities and any other tangible property interests held by your spouse.

Individuals asked to pay alimony often under report their income - in an attempt to persuade the court to believe that they don't make enough money to afford to pay. Similarly, a spouse seeking alimony may also under report their income - in an attempt to persuade the court to believe that they don't make enough money to meet their monthly expenses. Investigative methods can prove whether a subject has a place of employment not being reported or there is co-habitation involved (which could decrease alimony and monetary support decisions made by a court based on reduced financial need in your spouse).

Infidelity may be proven through surveillance. Keep in mind, the act of cheating is not a basis to seek a disproportionate award of marital property or custody of your kids. However, much can be learned about a person by knowing the company they keep. Does your spouse's lover have a criminal record? Are your children being neglected while your spouse is out with someone else? If the children form a relationship with this person, what sort of home environment will they be subjected to? Answers to these questions are relevant to the court in determining what is in the best interest of your kids. 

In addition to information relating to your spouse, investigators can help with trial preparation in the form of locating and interviewing witnesses, conducting public record searches, service of process, paternity testing and other background investigations concerning individuals associated with a case.

Our firm has retained Greg in numerous cases and the results are always amazing. He consistently provides us with reliable information that might otherwise have taken months to uncover - if we were ever able to recover it at all.

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Judge Halbrooks has been busy at the Minnesota Court of Appeals. She recently issued three dissolution decisions, none of which were published. Two cases involved property allocation issues, one involved a joint physical custody award and two involved child support calculations:

• Popel v. Popel: Minnesota Court of Appeals (Unpublished). Judge Halbrooks held that the district court did not abuse its discretion in awarding joint physical custody to the parties but remanded for a recalculation of child support and reallocation of non-marital interests.
• Blaeser v. Fiscus: Minnesota Court of Appeals (Unpublished). Judge Halbrooks opined that the district court did not abuse its discretion by failing to modify child support following the emancipation of appellant's oldest child. 
• Murphy v. Murphy: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in the district court's unequal allocation of marital property.

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The Ohio Divorce Attorneys with Holzfaster, Cecil, McKnight & Mues author the popular Ohio Divorce & Family Law Blog. They recently posted a useful article entitled "What is Parental Alienation and Parental Alienation Syndrome?"

Attorney Robert Mues notes that there are a number of different factors and circumstances that have an effect on the determination of custody. As in Ohio, Minnesota judges must consider a number of relevant factors when determining the best interest of a child. One of those factors includes whether either parent has continuously and willfully denied the other parent’s right to parenting time or visitation as ordered by a court.

While visitation denials may be relatively easy to prove in court, that alone doesn’t amount to parental alienation. It is not uncommon for some amount of alienation to occur when parents first separate. Usually, the alienation subsides after the parents’ transition through the separation and move on with their lives. In some cases it doesn’t, and instead it continues and escalates to what has become referred to as “Parental Alienation Syndrome.”

This disorder was first identified by Richard A. Gardner, a forensic psychiatrist in the mid-1980s, who defines it as:

Mues accurately points out that there are three stages of parental alienation syndrome. These stages include mild, moderate and severe. In a mild case there are naive alienators and the perpetrator can be educated and changed. However, in a severe case the perpetrator is often delusional and their entire being is focused on destroying the other parent’s relationship with the child. Experts must be brought in to prove the alienation and, more importantly, to assist the child in gaining an accurate perspective on things.

Having handled many custody disputes involving parental alienation syndrome, I can honestly say that they are, by far, the most difficult and raw of all family cases. At the end of the day, the parent who engages in parental alienation behaviors is committing an act of abuse upon a child. The caselaw in Minnesota on this issue is rather undeveloped. But, like so many psychological theories and concepts, the public, and the courts, are becoming much more familiar with the syndrome and consequence of parental alienation.

There are some experts and jurists who have criticized the concept of parental alienation syndrome, calling it "inadmissible junk science." This author, however, questions how many times they've actually experienced and dealt with the conduct described by Gardner. Parental alienation syndrome is very real (no matter what you call it) and is an example of a parenting at its lowest and most neglectful level.

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The Minnesota Court of Appeals recently rendered three family law decisions, none of which warranted publication. One case involved child support issues, another custody and child support and the third property valuation and division:

• Donovan v. Donovan: Minnesota Court of Appeals (Unpublished). Judge Shumaker held that a child support bonus provision was unambiguous and that the doctrine of laches is inapplicable to child support cases.
• Adler v. Espinosa: Minnesota Court of Appeals (Unpublished). Judge Lansing opined that the district court appropriately determined physical custody and child support obligation.
• McCormick v. McCormick: Minnesota Court of Appeals (Unpublished)  Judge Halbrooks found no error in district court's valuation of real estate and denial of fee award, but reversed district court's award of 100% of the marital equity in the homestead to wife.

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Thanks to Mark Pfenning, a divorce lawyer and author who has published many articles geared toward helping parties through the divorce process. His recent article, Divorce Courtroom Tips, provides some helpful strategies and a useful summary of the basic rules of decorum in family court. Here's what Mark has to say:

1. Settle Some Things. This means the judge won't be in control of everything.
2. Expect Unfavorable Decisions. There are three directions the judge can go when making a decision: Your way, your spouse's way, or the Judge's way. As you can see, two out three are not in your favor.
3. Let Your Divorce Attorney Do the Talking. Do not speak unless asked to do so by the Judge.
4. Respect is an Absolute. When addressing the Judge with respect by addressing him/her as "Your Honor."
5. Don't Address Your Spouse. Never speak to or make comments to your spouse when you are before the Judge.
6. Check Your Emotions at the Door. Do not make faces or gestures when the judge or your spouse's attorney is speaking. Judges see this and do not appreciate it.
7. Dress for the Occasion. Your attorney will have a certain strategy on how he/she wants you to be portrayed. Therefore, consult your attorney on how he/she wants you to dress.
8. Write. Don't leave anything to chance. Your attorney will be very busy during the process and cannot remember or write everything down.
9. Come Prepared. Bring as much information, documentation and any pertinent documents that you possibly can with you. It is better to have too much ammunition than not enough.
10. Be Ready to Wait. You will sometimes wait for hours before your case is called.

Good suggestions. I would also suggest leaving all digital devices in the car. I recall a lawyer whose cell phone rang in the middle of his intense cross examination of my client in a recent trial. The more memorable impression was the expression on the judge's face.  

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Three family law appellate decisions for review this week: one adoption opinion from the Minnesota Supreme Court, one published interstate child support opinion from the Court of Appeals and one unpublished divorce opinion from the Minnesota Court of Appeals.

• C.O. v. Doe: Minnesota Supreme Court. Justice Page held that due process required an evidentiary hearing to take place before termination of adoption contract.
• In re the Welfare of S.R.S.: Minnesota Court of Appeals (Published). Judge Klaphake opined that Minnesota courts lacked subject matter jurisdiction to modify father's child support obligation.
• Baumgartner v. Baumgartner: Minnesota Court of Appeals (Unpublished). Chief Judge Toussaint found no abuse of discretion in disproportionate award of marital property and no error in valuation of marital property.

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Following Hennepin County's lead, and a statewide trend, the Anoka County District Court has implemented a pilot early neutral evaluation program for divorcing couples. The evaluations focus on the two key issues involved in a dissolution: custody of children and economics.

Couples can divert from the court system and meet with qualified "neutrals" who will facilitate settlement discussions and (unlike traditional mediation) offer opinions about the merits of a party's position. If successful, the process can save litigants months of emotionally-charged litigation and tens of thousands of dollars in legal fees and costs.

Five Anoka County judges have agreed to participate in the program, including Judge Sharon Hall who says that the early neutral process will allow litigants to "keep some control over their situation." The family law section of the Anoka County Bar Association has been a driving force behind the program, which provides litigants with yet another alternative to traditional litigation.

One big difference between the program in Anoka and Hennepin County involves funding. While Hennepin County covers the bulk of the costs for litigants, the Anoka County program has a very limited budget. Work is done by local lawyers, not county employees, on a sliding fee scale.

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As of September 2, 2008, the Minnesota Court of Appeals will refer all family court appeals for mandatory mediation (with some exceptions for cases involving, for example, domestic violence). The program was designed to decrease costs and conflict for families involved in appellate cases while increasing litigant satisfaction.

Upon the filing of a Notice of Appeal, the Court will immediately refer litigants to mediation. Mediators available to serve include a panel of 12 retired judges and/or experienced family law attorneys. Parties will pay the costs of the mediation on a sliding fee scale.

This pilot program was initiated three years ago as the result of a meeting between Judge Harriet Lansing and William Mitchell College of Law Vice Dean for Academic Programs Nancy Ver Steegh. Ver Steegh is known for her work in the area of family law and alternative dispute resolution, and serves as an Editor for the Family Law Professor Blog. The Chief Judge of the Minnesota Court of Appeals, Edward Touissant, believes the program is here to stay, calling it a "win-win" situation.

A few other states have adopted similar programs, with a resolution rate as high as 76 percent. That's an impressive statistic, given the adversarial mindset of litigants - especially following a trial.

We've seen clients benefit from the trend toward resolving family disputes through mediation.   This new mandatory appellate mediation might just result in additional justification for working with a mediator in the very early stages of litigation and avoiding unnecessary fees, costs, time and emotion.

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In Minnesota, divorce and family cases are tried to the court, not to a jury. This usually results in significant cost and time savings for each of the parties.  For example, a case that might take a week to try to a jury may conclude in half the time through the use of a court trial.  While some advocate for the use of juries in family court, most practitioners believe that bench trials are more appropriate. The court is in a much better position to ascertain the legal merits of the arguments of counsel without drawing on emotion, as jurors typically do.

A family court trial is very different than you may have seen on television.  There are no large audiences or surprise witnesses.  The process is quite controlled and deliberate. The initiating party, called the "petitioner," presents his or her case first. This may include testimony from acquaintances, family members, experts and others.  Once the direct examination of the petitioner's witnesses concludes, the opposing party's ("respondent") lawyer will have an opportunity to cross-examine them. Once the cross examination of all petitioner's witnesses has concluded, respondent will have an opportunity to present witnesses which the petitioner will have an opportunity to cross examine.

Opening and closing statements are somewhat limited in most family court trials.  Because the judge is the decision-maker, there is no need to explain to the court the concept of a burden of proof, the trial process or explain to the court how to digest the information that  will be presented.  Closing statements often take place in writing.  However, every judge differs in thier preference.

Once the trial concludes, the Court has 90 days in which to render a decision.  The decision is put into writing, filed with the court administrator and delivered to the parties and counsel.  Once the decision is received, either party may elect to file an appeal.  This must be done within 60 days from the entry of the order.  If an appeal should follow a trial, you may expect at least one year to pass until the Court of Appeals affirms or reverses the District Court.

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