Our state Supreme Court recently affirmed an appellate decision that I blogged April 22, 2008. In Clayton v. Wilson, Docket No. 81920-3, filed January 21, 2010, the Supremes held that Wilson’s marital community was liable for Wilson’s intentional torts because he committed them while conducting community business.
I laid out the sordid facts of this case in my last blog. Basically, Mr. Wilson hired the boy, Clayton, to do yardwork at his house. After completing the yardwork and before receiving payment, Mr. Wilson sexually abused him.
Immediately after Mr. Wilson’s abuse became known, Mr. and Mrs. Wilson executed a separate property agreement that transferred ownership of 90% of the Wilson’s property from community to the separate property of Ms. Wilson. The Wilson’s then got divorced.
Thus, under one reading of Washington law, Clayton was SOL. Even though he had very obvious and serious damages (he was molested some 40 times between the ages of 14 and 16), he could not get any compensation because Mr. Wilson had transferred all the marital assets to Mrs. Wilson and Mrs. Wilson’s assets were untouchable, because, under Washington law, the innocent spouse is not liable for the intentional torts of the tortfeasor.
The Supreme court clarified that Washington law recognizes and exception to an exception. The innocent spouse is not liable for the intentional torts of the other spouse unless the other spouse committed them for the benefit of the community or in the management of community business.
Here, Mr. Wilson’s tort fell under the second prong. He molested the boy immediately after the boy completed his assigned yardwork. The yardwork was community business.
Wednesday, January 27, 2010
Wednesday, January 13, 2010
In a Proceeding to Disestablish Paternity, DNA Testing Is Not Permissible Unless It Is in the Child’s Best Interest
A new decision from Division II, Parentage of Sec, docket no. 38883-9, held that a court must determine that DNA testing is in the child’s best interest before ordering the testing.
The case pitted a presumptive father against a putative biological father. Washington law presumes that a man is a child’s father if the parents were married when the child was born. It also permits a proceeding to disprove a presumptive relationship if: a) the presumed father and the mother neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception, and b) the presumed father never openly treated the child as his own.
This provision also authorizes a court to require genetic testing, if such testing would be in the child’s best interest.
Here, the putative biological father filed a motion to disestablish the presumptive relationship. In the course of that proceeding, the court ordered the parties to submit to genetic testing. The child and the presumptive father did not comply with the order.
On appeal, the court held the order invalid, because it was issued without the requisite hearing to determine whether such testing was in the child’s best interest.
The case pitted a presumptive father against a putative biological father. Washington law presumes that a man is a child’s father if the parents were married when the child was born. It also permits a proceeding to disprove a presumptive relationship if: a) the presumed father and the mother neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception, and b) the presumed father never openly treated the child as his own.
This provision also authorizes a court to require genetic testing, if such testing would be in the child’s best interest.
Here, the putative biological father filed a motion to disestablish the presumptive relationship. In the course of that proceeding, the court ordered the parties to submit to genetic testing. The child and the presumptive father did not comply with the order.
On appeal, the court held the order invalid, because it was issued without the requisite hearing to determine whether such testing was in the child’s best interest.
Friday, October 16, 2009
Child Support Table May Be Used to Calculate Post-Secondary Support
A new decision from the state court of appeals, Division III, found that it was appropriate to use the child support schedule to determine post-secondary support.
In Goude v. Lieser, # 27753-4-III, the custodial parent filed a petition to modify child support and require the non-custodial parent to pay child support for an additional four years while the child was in college.
In determining whether to order post-secondary support, the court is required, per statute, to determine whether the child is dependent. If the answer is yes, then some level of post-secondary support is due. The amount and duration of support is then calculated based on a list of discretionary factors.
Those factors are: 1) the child’s age, 2) the child’s needs, 3) the expectations of the parties when the parents were together, 4) the child’s prospects and desires, 5) the nature of the post-secondary education sought, 6) the parent’s education, standard of living, and current and future resources, and 7) the amount / type of support that child would have received had the parent’s stayed together.
In this case, the child had graduated from high school and intended to live at home for two years while attending community college. The child then intended to transfer to Eastern Washington University.
To determine the amount of post-secondary support, the lower courts added the estimated cost of attending the community college (not including room and board), plus the basic child support obligation from the child support worksheet, minus the child’s anticipated earnings.
The appellate court affirmed.
In Goude v. Lieser, # 27753-4-III, the custodial parent filed a petition to modify child support and require the non-custodial parent to pay child support for an additional four years while the child was in college.
In determining whether to order post-secondary support, the court is required, per statute, to determine whether the child is dependent. If the answer is yes, then some level of post-secondary support is due. The amount and duration of support is then calculated based on a list of discretionary factors.
Those factors are: 1) the child’s age, 2) the child’s needs, 3) the expectations of the parties when the parents were together, 4) the child’s prospects and desires, 5) the nature of the post-secondary education sought, 6) the parent’s education, standard of living, and current and future resources, and 7) the amount / type of support that child would have received had the parent’s stayed together.
In this case, the child had graduated from high school and intended to live at home for two years while attending community college. The child then intended to transfer to Eastern Washington University.
To determine the amount of post-secondary support, the lower courts added the estimated cost of attending the community college (not including room and board), plus the basic child support obligation from the child support worksheet, minus the child’s anticipated earnings.
The appellate court affirmed.
Monday, July 6, 2009
Sovereign Immunity Does Not Apply to Quiet Title Action Regarding Real Property Subject to Continuing State Court Jurisdiction
A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.
Ex-Husband Should Have Immediately Informed Ex-Wife that he was Receiving Retirement Benefits
A new case from Division III, In Re Marriage of Buchanan, awarded military benefits to the former spouse and reimbursement for health insurance costs that could have been covered by the military. It also awarded attorney’s fees based on intransigence.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.
In a Dependency, Absent a Showing of Actual Harm, DSHS Is Required to Provide Therapeutic Visitation Between the Children and the Mother
A new case from division three, in re Dependency of Tyler L. and Brenden B, No. 27033-5-III and No. 27034-3-III, found that the trial court’s failure to order therapeutic visitation between the children and their mother was an abuse of discretion.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.
Monday, March 16, 2009
In a Custody Dispute Between a Parent and an Indian Custodian, the Child Shall Placed According to State Law
A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.
CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.
The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.
In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.
In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.
I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.
CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.
The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.
In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.
In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.
I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.
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