Monday, October 17, 2005

Legal Stuff

The Iowa Supreme Court has a couple of family law opinions up:

Markey v. Carney discusses child support issues:
Plaintiff and defendant were old friends, who had a one-night-stand just before the plaintiff's divorce came through. This resulted in a child, who the defendant's family recognized as his, but the defendant would never admit to. Eventually the relationship between plaintiff and defendant's family also became strained and disippated. Plaintiff had tried looking into making the defendant pay child support soon after birth, but the Department of Human Services felt it was a useless case because Iowa law would presume her ex-husband to be the father, as they were still legally married at the time of conception. Other attorneys required substantial sums of money to bring the suit. Eventually, plaintiff worked her way up to a job making approximately $31K per year, and had prepaid legal benefits. This was up from the average $18K per year she'd been making. Meantime, Defendant married and had a child, and was making about $25K per year in base salary, plus some extra from commissions - an extra $4584 in one year. This was down from his prior salary of $50K in another position.

Once she had prepaid legal, Plaintiff filed suit. A paternity test proved the child was Defendants, and following a trial on February 28, 2004, the court entered an order establishing Defendant as the father, granting custody to the mother, setting monthly child support at $425, entering a judgment against Defendant for $21,000 in back child support, and deciding who had to cover such miscellanea as medical expenses and attorney fees. Some basics of the ruling:

1) If extra income is uncertain or speculative, or if it is an anomaly, it is excluded. If it is reasonably expected to be received, then it should be included in gross monthly income by averaging the extra income over a reasonable period of time so the amount included fairly reflects the amount that will be received. The same approach applies to extra income in the form of commissions. Once evidence of extra income has been introduced, the burden is on the recipient of the income to establish that it should be excluded from gross income as uncertain and speculative. The order requiring support based on Defendant's income with commissions included stands.

2) Because of the six-year delay, Defendant claimed she was barred by either waiver, estoppel, or laches.

Equitable estoppel is a common-law affirmative defense “preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.”

Estoppel by acquiescence “is applicable ‘where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right’” Although this doctrine bears an ‘estoppel’ label, it is, in reality, a waiver theory.

Laches is an equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another.

Under these circumstances, the Court found there was no evidence of a false representation or concealment of material facts sufficient to bar her claim based on either estoppel or waiver. It looked at estoppel by acquiescence, and found the facts lacked some kind of affirmative act inconsistent with the intention to collect child support, which it needed in order to imply the obligee parent intended to waive the right to child support. Finally, it found her delay in filing suit was not unreasonable enough to fit the requirements of the laches doctrine.

3) Amount of back support awarded: $21K is a lot of money, particularly when you have to pay it out on top of $424 per month in current support. But the Court said this:
"it is also important to recognize that Joseph knew Kristy was confident that he was the biological father of Dylan. Instead of taking action to determine paternity before getting married and having a child, Joseph essentially ignored the situation. . . .

We think the disposition reached by the trial court was proper under all the circumstances. Upon our review of all the circumstances, we find the amount of support determined by the trial court fairly considers the financial burden of paying past child support in conjunction with a current support obligation, while serving to maintain the fundamental and basic obligation of a parent to support a minor child."

The Court also awarded her the out-of-pocket expenses in filing suit.

The other decision was a rather fact-specific opinion regarding whether a change in custody and order to the county attorney to file termination was in the child's best interests under the law. Short answer: An order directing the State to file a petition to terminate parental rights is not a final judgment appealable as a matter of right. An interloqutory appeal was also not appropriate:
"T.R.’s placement should be fixed, and reviewing a final, rather than an interlocutory, order is a better use of judicial resources. In addition, once the proceedings have terminated, a reviewing court will have a complete record in the event of an appeal. As in Denly, we think the order changing custody will not materially affect the final decision and a determination of the order’s correctness before trial on the merits will not better serve the interests of justice."

No comments: