Family Law Appellate Update for week ending 12/16/16

FelixBaseman
FelixBaseman

Cranney v. Cranney (Second DCA, December 14, 2016)

In a final judgment of divorce, the trial court awarded the parents shared parental responsibility over the children with the mother having ultimate decision-making authority.  The father appealed and the District Court reversed.

The District Court explained that shared parental responsibly requires, by definition, that “major decisions affecting the welfare of a child are to be made after both parents confer and reach an agreement.”  Thus, the trial court’s award of ultimate decision-making authority to the mother “essentially nullified the [trial court’s] award of shared parental responsibility.”

The District Court added that nothing in the limited record before it showed that the parents had an “extensive inability to cooperate on issues involving the welfare of the children so as to justify an award of sole decision-making authority.”  It also noted that the trial court had failed to make a finding that shared parental responsibility would be detrimental to the children, which the Court stated was required before the trial court could award sole parental responsibility to the mother.

Nelson v. Nelson (Second DCA, December 16, 2016)

During the marriage, the parties purchased a jointly-titled home.  The parties then transferred the home into an irrevocable trust established for the benefit of the wife and her descendants.  The wife was the sole trustee of the trust.  Nevertheless, the trial court ruled that the home was marital property and treated it as such in its equitable distribution scheme.  The wife appealed and the District Court reversed.

First, the District Court found that the trial court had correctly concluded that the trust was intended to be irrevocable by the settlor.  Because neither the beneficiaries nor the trustee had petitioned to modify the terms of the trust, the trial court had “no authority to modify the Trust and reach the [home], an asset of the Irrevocable Trust.”  Effectively, then, the trial court had “impermissibly adjudicated the property rights of a nonparty to [the] dissolution proceeding.”

Saleh v. Altamirano (First DCA, December 16, 2016)

The case was affirmed without an opinion; however, a concurring opinion was filed shedding light on the holding.

In that opinion, Judge Winsor reiterated the rule that where an error appears for the first time on the face of a final judgment, a litigant must bring that error to the trial court’s attention by motion for rehearing or that error is waived for appellate purposed.  In the underlying case, the trial court entered a final judgment that contained provisions which conflicted with terms in the parties’ postnuptial agreement which the trial court had found to be valid and binding.  Nevertheless, because the husband failed to “adequately address” these errors in his “pro se rehearing motion,” he had failed to preserves these issues for appellate review.