In a decision to be released next week, Keller vs. Keller, the Connecticut Appellate Court has overturned a hefty order of alimony and support entered by a Superior Court judge.
The Defendant husband held a law degree from Columbia University and was licensed to practice in two states. After a brief practice, he had gone into finance and most recently had owned a hedge fund that had , at first, done very well but had later turned sour. At the time the order entered, the fund was closed. The evidence showed that Attorney Keller had no income and the family was living on borrowed money and the last of their liquid assets.
In Connecticut and elsewhere, judges may make orders of alimony and support based on a finding that the payor has earning capacity even if he or she is unemployed or underemployed. Tn the Keller case, the judge did just that, finding that Attorney Keller had a gross earning capacity of $25,000 per month. Based on that finding, the court ordered him to pay combined alimony and support of $9,000 per month during the pendency of the case.
The Appellate Court overturned the order, not because the lower court did not have discretion to consider earning capacity but because the court failed make a finding as to Attorney Keller’s net earning capacity. Under Connecticut law, orders of alimony and support must be based on net income whether that income is real or merely imputed.
The lesson for litigants hoping to obtain orders against their unemployed or underemployed spouse is to present evidence specifically on the subject of what they believe their spouse could earn after taxes.
Writing this month for the New York Times, Megan Wood speaks of divorce as an opportunity for women to create a new identity — a trend that is, apparently, gaining some traction.
The idea of name reinvention after divorce was popularized by Cheryl Strayed in her riveting memoir, “Wild — From Lost to Found on the Pacific Coast Trail.” The author, born Cheryl Nyland, explains that she needed a meaningful new name after her divorce and, rather than opting to return to her birth name, chose one that fit her history. Cheryl had, she freely admits, strayed. While we question whether most women would find comfort in such a decision — query, can one be passive-agressive toward one’s self? — still the issue of what name to carry forward is one most divorcing women confront.
For most of us, the question is whether we are most comfortable identifying ourselves as we have throughout the years of our marriage, perhaps as the mother of our children — maybe from a prior marriage — or as our father’s daughter. The option of adopting a brand new name is a more radical notion.
The options are not quite as open for women divorcing in Connecticut as Wood reports them to be in New York. Outside of divorce, any Connecticut citizen may apply for a name change in Connecticut courts and, as long as there is no intent to defraud creditors or others, the application will ordinarily be granted. However the free no-fuss name-change option available in family court for divorcing women is limited. Under the family law statute on the subject, you may only elect to resume a birth name or other former name, not a new one.
I’d be remiss in not acknowledging that the name change statute applies to men as well. However, typically this means simply dropping the part of a hyphenated name that already included his birth name — hardly as traumatic a decision as that faced by women.
Last month the Connecticut Supreme Court issued a decision in favor of a fencing contractor who had failed strictly to comply with the terms of the Connecticut Home Improvement Act which provides a checklist which must be followed if a home improvement contract is to be enforceable in court.
In this case, the contractor was allowed to collect the last $11.000 or so the homeowner had originally agreed to pay for construction of a fence in 2004. Almost from the beginning of the collection dispute, it had become clear that the construction contract was unenforceable because it lacked a beginning and ending date — one item on the short statutory checklist. Walpole Woodworker’s only hope was that a court would find that fairness required that it be paid under a theory of fairness known as quantum meruit.
Before anyone in the business gets comfortable with the idea that the courts can and will step in to protect contractors who have been careless about their contracts, they should consider that it took almost 8 years including a trial and two levels of appeals for the contractor finally to get the help he wanted from the courts.
Here’s what really happened: In 2004, Walpole Woodworkers, Inc. signed a contract with homewner, Sid Manning, to build a fence for $22,318. As soon as Walpole Woodworkers received a deposit of $11,000 the work was done. When collection of the balance became a problem, they first tried to appease the homeowner by modifying the fence so it would better contain his small dog. Next came the lawsuit. Now, almost 8 years from the signing of the defective contract — after the expenses of a trial in Superior Court, an appeal to the Connecticut Appellate Court and a review by the Connecticut Supreme Court — the contractor has finally been awarded the “fair value” of the work completed in 2004 and 2005. Faced with a number of tests for determining what fair value was, the Court chose a simple one — the balance that the parties had originally agreed to under the faulty contract.
The Supreme Court makes no mention of interest or costs of collection probably because collection costs must be included in the contract, and, absent an enforceable contract, cannot be charged to the losing party. We wonder whether the Plaintiff now believes that the “win” was worth the costs and efforts involved — costs and efforts that could have been avoided by simply checking his contract against the statute.
CONNECTICUT’S DEPARTMENT OF CHILDREN AND FAMILIES ANNOUNCES BIG CHANGES IN HOW IT WILL HANDLE REPORTS OF CHILD ABUSE OR NEGLECTPosted: February 13, 2012
Last year, the new Commissioner of the Connecticut Department of Children and Families (DCF), Joette Katz, called an end to surprise home visits in most cases of reported child abuse or neglect. According to the Connecticut Mirror , Commissioner Katz felt that the practice was inconsistent with the principles of the Department. Katz believes that only 10 to 20 percent of reports of abuse are serious enough to warrant a surprise visit. All others are now to be pre-announced by telephone.
Soon, the Department is scheduled to make another big change. Rather than investigating all reports of child abuse or neglect in the way police might investigate crime, the DCF has announced that beginning in March 2012 it will operate on a model known as Differential Response. Under that model, only a small percentage of reported abuse or neglect will be investigated. Instead, cases considered by the department to be less serious will be approached by collaborating with the family. The goal will be to keep children within the family setting by directing the family to appropriate community services. In keeping with the new policy, the agency’s child abuse “hotline” has even been re-named the “care line”.
The Differential Response model has both proponents and critics. Both groups seem to agree that a benefit of using Differential Response is cost savings. Reducing the number of adversarial proceedings related to claims of abuse or neglect and keeping more children in their home settings saves money. Proponents also argue that collaborating with families to support them in efforts to correct behaviors detrimental to the welfare of children, results in better long-term outcomes for the children.
Opponents don’t necessarily disagree with the concept in principle, but caution that the success of the model depends entirely upon how well it is implemented. They argue that, to produce good outcomes for children, social workers need to be able to do adequate screening and follow-up to be sure the desired results of are actually being achieved and maintained. In other words, DCF workers must be empowered to oversee their cases over time once an initial determination of the seriousness of a case has been made.
Connecticut is just one of many states that have adopted the Differential Response model of child protection, but a 2009 report notes that several states, including Florida abandoned the approach after results were either unsatisfactory or inconsistent among districts.
The question for Connecticut residents is whether the Department can provide funding and resources adequate to ensure that the children of families who have not undergone a traditional investigation will be protected and that their situations will be monitored over time. We would like to know what you think.
Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship. However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.
Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing. Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.
Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.
Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused. In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.
Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.
Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming study identifying a long list of lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.
The lesson here is to make the strongest possible effort to achieve a healthy parenting plan for your children, but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.