This case (Goslee v. Goslee, Ark. App. 2012, CA-11-1139) took a dramatic turn several months after the divorce was final.

The parties entered into an agreement in their divorce.  Part of that agreement provided the following provision:  “Husband agrees to pay Wife half of his monthly pension each and every month for as long as he draws it.”

At the time of the divorce, Mr. Goslee received a monthly military-disability payment in the gross amount of $2283, which he had been receiving since he left the military due to his diabetes.  For the next nine months following the entry of the divorce decree, Mr. Goslee paid half of this disability payment to Ms. Goslee.

Then he stopped.  His reason?  His monthly disability  payment is not a “pension.”  Ms. Goslee filed a motion for contempt because he was obviously not complying with the decree nor was he complying with their property settlement agreement.  She had relied on the anticipated monthly income from Mr. Goslee’s disability payments when she entered into the agreement.

They have a hearing and the circuit court sides with the ex-husband.  Reading the provision above, nothing is mentioned about his disability payments – it only says “pension.”  The court further found that the Uniformed Services Former Spouses’ Protection Act (FSPA) does not grant states the power to treat such disability payments as divisible property.

Ouch for the wife.  Could this have been avoided?  It certainly appears that in coming up with the property settlement agreement that the parties intended for the monthly disability payments to be split in half, with half going to Ms. Goslee.  The primary reason I think this is because Mr. Goslee began paying Ms. Goslee half of his monthly disability payments and did so for 9 months.

And then there is the problem of these payments, and likely the pension, not being divisible in this situation due to certain federal law.

I think some creative drafting of the property settlement agreement could have effectuated what the wife was intending to get.  Maybe make Mr. Goslee pay alimony in a monthly amount that is half of the disability amount he receives each month.  This would of course be taxable to Ms. Goslee but then she is getting alimony pursuant to a property settlement agreement instead of having to fuss over federal laws and pensions and such.

Anyway, just another reminder of how important it is to clarify language in property settlement agreements.

This is a rare case so don’t think this is the norm.

This case just decided by the Arkansas Court of Appeals leaves a lot of questions.  The case is Baldwin v. Baldwin, just decided today.

Usually one spouse provides health insurance (through his/her employer) for the other spouse.  Oftentimes I’m asked by the client that is receiving this benefit if the other spouse can be made to continue health insurance coverage AFTER the divorce is final.  My usual answer is “No.”  The reason?  I have found that the vast majority of insurance companies will cover an individual and that individual’s spouse, children, and/or other dependents.  When the divorce is final then the the spouse that was receiving the benefit no longer qualifies under those definitions.  So the coverage stops.

There are ways around this of course.  For instance, the spouse that had been providing coverage could be ordered to pay for another insurance policy for the spouse that is going to be dropped from coverage.  Many times this is looked at as a type of alimony.  Which is also the primary caveat – if you are not a good candidate for alimony then you are not going to be a good candidate to ask for this type of assistance on health care coverage.

In the Baldwin case above, it appears that the husband was ordered to keep the health insurance coverage on his ex wife for a period of three years.  At which time it was presumed she could then obtain her own insurance policy (pursuant to her own testimony at the hearing).  She was prevented from immediately getting her own insurance policy because of some preexisting conditions.

So I’m left to assume that husband’s insurance company was okay with his ex wife staying on his policy for three years after their divorce was final.  Not sure about your experiences in this area but that is an unusual occurrence from my experience.

I’m also left to assume that if the husband’s insurance company was NOT okay with this then husband would have had a representative from his insurance company come to the hearing and testify to that fact.

Note:  The Court of Appeals states that the parties undisputedly viewed the insurance coverage as a type of alimony, and that’s how the Court analyzed the case.  And I understand that.  Just not sure how they were able to keep the ex wife on husband’s insurance.

Many times something or someone happens that causes the non-custodial parent to file for custody.  Oftentimes this involves a new significant other in the custodial parent’s life.

In Hudson v. Hudson (Arkansas Court of Appeals, May 2, 2012) the trial court was faced with just such a situation.  However, the custodial mother had rectified the situation by getting rid of her new boyfriend prior to the hearing, and getting an Order of Protection to boot.  Should this be enough to get her out of hot water?  The trial court said yes, finding that there was not a significant change in circumstances that would warrant a change in custody.  The non-custodial father said no and appealed.

The father appealed only on the issue of whether there had been a change in circumstances.  He cited that his 9-year-old daughter was continuing to have emotional problems due to the former boyfriend’s actions.  He cited examples of her behavior to the court, including the fact that she remains terrified at times to go to sleep because the boyfriend at one time had threatened to burn their house down and kill their dog.  She’s now afraid at times that her house will burn during the night while she is sleeping.  (See full opinion for further facts about her emotional problems.)

All of this seems to be pretty persuasive stuff.  However the Court of Appeals affirmed the trial court, finding:

The trial court found that the situation of former concern had been resolved, and it found no significant change in
circumstances affecting M.H.’s best interest or jeopardizing her well being and warranting a
change of custody. Based on our de novo review and giving due deference to the superior
position of the circuit court to evaluate the witnesses, we find no clear error in its decision not
to change custody.

The Arkansas Court of Appeals has affirmed a trial court’s decision awarding alimony to a spouse for an “indeterminate” amount of time.  (See Elliott v. Elliott decided April 25, 2012)

The appellate court stated the following about the trial court: “The court ordered alimony to continue for an indefinite time subject to termination by death, remarriage, or a material change in circumstances of the parties.”

My first thought about the trial court’s language was that it was problematic.  The order needed to either specify that this was permanent alimony or that it was rehabilitative/temporary alimony that would terminate on a certain date or upon a certain occurrence.  But in reality, the language used by the trial court is really just another way of ordering permanent alimony because alimony is always modifiable if there is a material change in circumstances.  (Matthews v. Matthews 2009 Ark. App. 400)  Further, alimony, by statute (A.C.A. 9-12-312), terminates upon the death or remarriage of the party receiving the alimony.

So the trial court’s language, while not the best choice, may in fact not detract much from the actual intent of the court’s order.

Note:  There is also an interesting discussion about the husband’s medical school loan of about $103,000.00.  Apparently the husband wanted the wife to take on a portion (presumably half) of this debt in the divorce.  The trial court ordered that husband take it all because he was in a much better position to retire the debt than the wife due to his substantial income ($500,000 per year).  Always important to remember that in Arkansas there is NOT a presumption that debt should be split equally – only that it should be split equitably.  Big difference.  (A.C.A. 9-12-315; and see Keathley v. Keathley, 76 Ark. App. 150 (2001) for one example on the topic)

This past weekend was my birthday.  And my wonderful wife planned a trip to Eureka Springs, Arkansas for us to go and celebrate.

We discovered Eureka Springs many years ago, and since that time we have made it our own little place to escape.  We go at least two or three times a year and we go for a very specific reason – to veg totally out dude.  No specific plan, except to take our time and go around town, have a drink or two (or three), and have some great food.

This weekend I was particularly ready.  A jam packed calendar of hearings and trials makes the stress level rise for an attorney like nothing else.  Having time to get away and re-charge is essential.  And just like Nixon, I was ready to emerge from the weekend victorious, if not fully tanned.

                                

In this case, DHS found that there was incident involving the father “popping” his child on the head.  DHS found that this was sufficient to open an investigation and subsequently open a DHS case against the parents.  The Court of Appeals reversed.  Here is the pertinent excerpt from the opinion:

From my personal blog, originally published April 10, 2009.  Thought I’d re-publish it today since Easter is right around the corner.  Hope you enjoy!

One Man’s Trash is Another’s…

He knew early in the day that this particular evening would be dictating against him.  For one, it would be a full moon.  His movements would have to be even more calculated – quieter.  Next, the city’s festivities brought in people from far and wide – the city would be full to the brim.  More eyes to see him with.

He elected to proceed anyway, arriving at that conclusion primarily for one reason.  He was good.  And not just pretty good.  “One of the best” a colleague had recently described him.

But this night something was wrong.  This entire night had been one strange event after another.  No, event was not the right word.  More like one strange experience after another.  The moon was there, yes.  An added person here and there, yes.  But something was amiss.  His timing was off.  His reflexes slower.  No, not slower, just…off.  “What the hell am I saying,” he muttered to himself.  “I can’t even speak the right way.”

As he waited in the darkness pondering his next move, he thought back to the words of his old mentor.  “If your intuition tells you something is not right, then it’s probably not…let it go…there will be other marks…other nights.”  He smiled for a moment as he thought about the man that had filled such a huge void in his life.  It was not surprising that he was available for such a man to enter his life.  He never knew his father and he “lost” his mother when he was 8 years old.  At least that’s what relatives had told him.  The faint memories he had of his mother were not fond ones.  She seemed to always be unhappy during the times she was around, which became increasingly less often as he got older.  As he sat in the darkness, he understood that he had long ago resigned himself to the probability that his mother had probably “lost” him instead of the other way around.  And probably not by accident.

His intuition was clear.  And although there were more riches to come as the night grew into the early morning, he elected to take his limited spoils of the evening and go home.  As he stood up he heard, and felt, a thud.  The pain to the back of his head was immediate and intense.  Tears came to his eyes and blurred his vision as his knees buckled and hit the cobblestone of the alley.  Someone grabbed his hair and two men pulled him to his feet.  That was the last thing he remembered as he slipped into unconsciousness.

He awoke on the hard, cold, dusty floor of a jail cell.  His head throbbed with pain.  He touched the back of his head and felt dried blood on top of a huge knot.  Looking around him, he could see that his cellmates had received similar treatment.  He sat up, knees to his chest with his arms around them.  His back was against a stone wall, opposite of the cell door.

As he sat there pondering his predicament his thoughts strayed to his mother.  And immediately an intense anger welled up inside of him.  Even though he knew his coming fate, he somehow still wanted to direct anger towards her.  He was bemused as he realized the futility of such wasted emotion at a time like this.

And as for his father?  “Hmmph,” he spat to himself.  The rumors had always swirled that his father abandoned him before he was ever born.  He always had a suspicion that his father knew who he was – but just didn’t care enough to try to mend the wound of leaving all those years ago.

As he thought about his “parents”, he whispered, “Well, what do you two think of your boy now?  Proud of what you created?”  He shook his head slowly as a disgusted smirk developed on his face.  ”You’re both trash,” he muttered to himself.  He realized his voice had raised and others were starting to stare.  He turned toward a corner of the cell to avoid eye contact.  He could feel tears welling up in his eyes.  After a few moments he muttered,  “I suppose I shouldn’t be surprised.  Trash plus trash is only going to equal one thing…more trash.”  He thought for a moment longer.  A tear streamed down his cheek.  “I wish…” he said.  But he couldn’t finish.  There was simply nothing else to say or do.  There would be no wishes granted on this day.  Especially for a man that had wasted his life – and he knew it.

He sat in silence for a long time.  After awhile, he heard several guards coming down the hall.  One of them opened the cell door.  “Everyone up.  Form a line.”

The feeling of impending doom was overwhelming.  So was the sense of fear.

He had never been so scared in his life.

…………………..

As he got in line he began to realize just how much he had enjoyed his work.  It was his craft and he loved it.  The joy he would feel during a theft was real.  Palpable.  He could feel adrenaline start to shoot through his body just at the thought of it.  He allowed himself a brief smile.

But the smile quickly faded as his thoughts returned to his current plight.  And to the realization that he would never know that joy again.  For the first time in his life he had nothing to look forward to.  This knowledge heightened his despair, which served only to add more weight to his already painful burden.

And oh what a burden it was.  It was worse than he could have ever imagined.  Try as he might, he could not get the pain out of his head.  There was nothing he could think about that would help it.  He thought of his mentor.  That was only fleeting comfort as the pain returned with even more intensity.  He tried to draw up his anger at his parents.  Same result.

This was indescribable.  Death would truly be welcome, even though it would mean the end of all that he knew.  The tears were free flowing now.  Some from pain.  Some from despair.

All from hopelessness.

He could feel himself passing out as he was raised into the air.  He hoped it would be over soon.  The end could not come soon enough.

As he was about to pass into unconsciousness, he heard a voice.  It was a voice he had heard back in the cell.  It was a voice of distaste and nastiness.  It was the voice of someone with a heart that had died long ago.  He listened to this man’s words for quite a while.  After all, he had no choice given their close proximity.

The distasteful man had been mocking the man that was in between them for the past few minutes.  The distasteful man finally said to the in-between man “So you say you are the Messiah?  Well, do something.  Save us!  What kind of king would leave us here to rot and die?!”

This was the last straw.  He summoned enough strength to raise his head and open his eyes.  He looked past the cross that in-between man was hanging from, and looked distasteful man squarely in the eyes and said “Have you no fear of God, for you are subject to the same condemnation?  And indeed, you and I have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.”  He then looked at in-between man, and with all the remorse in his heart said “Remember me when you come into your kingdom.”  His head dropped from exhaustion.

But he could see that in-between man was saying something to him.  He could not move his head, but his eyes looked toward in-between man.  And with an intensity and clarity that was razor sharp, in-between man said “Amen, I say to you, today you will be with me in Paradise.”

And with that, he closed his eyes and his head drooped.  He could feel his strength waning.  He knew it would not be long now until the last spark of life would leave him.

But he could feel his face forming an ever so slight smile.  The feeling of hopelessness was fading.  An inexplicable feeling of, could it be joy?, began to rise within him.  For a fleeting moment, he did not understand what was happening.

But then it all became clear.

He was on his way to see his one true parent.  The parent that had been there all along.  The parent that would never leave or abandon him.

The Father that he never knew.

Happy Easter!

We all know how our economy has faired over the past few years.  One area that has suffered is the family vacation.  Families are taking fewer vacations because they simply can’t afford it.

In fact, family vacations had been in decline long before the economy went into the tank.  In OVERSCHEDULED KIDS, UNDERCONNECTED FAMILIES: THE RESEARCH EVIDENCE, Dr. William J. Doherty of the University of Minnesota posits that its not just vacation time that is suffering.  Kids are many times “over scheduled” to the point that family time falls by the wayside.

Well, you don’t have to schedule a bunch of days off work or spend a lot of money to have a meaningful get away with the family.  Parenting.com has put together a great list of 51 mini and cheap vacations for the family.  Every state is represented so there’s no excuse for not checking it out!

Click here for the article.

If you followed the national news last week you know that President Obama’s health care law (Obamacare as it is often quipped) was a front and center issue.  Long story short, the U.S. Supreme Court held hearings last week to help decide what to do with certain portions of the health care law.  Portions that may in fact be unconstitutional.  Taking it a step further, if these areas are indeed found to be unconstitutional, and consequently unenforceable, what do we do with the rest of the enormous health care law?  There is a strong sentiment by many, including (it appears) some of the justices on the Supreme Court, that such a decision will gut the rest of the law and therefore the entire health care law must be stricken.

A decision is scheduled to come down in June.

As you know, attorneys are bound by ethical rules.  These ethical rules cover virtually every area of the practice of law, even comments that an attorney may or may not make to the media during a trial, or maybe in the days leading up to a trial.  In fact, before they are selected to sit on a particular trial, potential jurors are often questioned if they have read, seen, or heard anything about the case in the media.  This is an effort to provide the parties with as unbiased a jury as possible.  The people deciding the case should not be influenced by, for example, statements made by one party to the media.  The reasons are obvious:  the statements might be false; might be intended for jurors to hear; might not be in context; etc.

Which brings me to President Obama’s comments on the Supreme Court’s deliberations last week and into this week.  (click here for NY Times article on he subject)  President Obama not only addressed the issue publicly, he even sent what many news agencies have categorized as a warning to the U.S. Supreme Court.  He made such comments as to indicate that the high court would be acting without “judicial restraint” and participating in judicial activism if they struck down his law.  In fact, the NY Times (Mark Lander) stated ”Mr. Obama offered both a robust defense of the law and a barbed warning to justices thinking of striking it down.”

He even referred to the justices as an “unelected group of people” and how could they “overturn a duly constituted and passed law.”  Well Mr. President, the U.S. Supreme Court makes these kinds of decisions, and strikes down such passed laws, all the time.  That is part of the court’s purview and charge.

He then went on to make it very clear that the court would be hurting millions of Americans if they strike down the health care law.

I find it highly inappropriate, and desperate for that matter, for a sitting president to make such public comments that are clearly designed to influence the court’s decision.  If the president wanted to defend his health care law then he should have requested permission to be on the agenda and then marched himself over there last week to be grilled by the justices just like the other lawyers.  But I suspect he didn’t want to do that.  He would rather take pot shots at the court from the outside.  Knowing full well that the justices cannot, and will not, be able to make any response to what he says to the media.

Disappointing Mr. President.  Disappointing.

A Mexican national said he has been barred from entering the United States to bury his 10-year-old son, a U.S. citizen who died Tuesday in a house fire in northeastern Pennsylvania that killed three other people.

Attorneys for Fidelmar “Fidel” Merlos-Lopez are trying to win humanitarian parole so he can attend the funeral, but say U.S. Customs and Border Protection has rebuffed their efforts.

Here’s a link to the article…NY Daily News article.