Wednesday, December 30, 2009

The Year's Most Interesting Custody Cases Wind Up!

Sean Goldman has been returned to the United States, after many months, and many tens of thousands of dollars, of litigation by his father to get him back from Brazil. His Brazilian "step-father"* was able to delay the return to the United States seemingly required by the Hague Convention, and a last-minute review by the Brazilian Supreme Court threatened to delay the final order being carried out until well into 2010. Others, including some on my blogroll** have discussed both the unwillingness of the Brazilian authorities to meet their obligations under the Convention, and the media sideshow which followed the final order, at length.

The willingness or unwillingness of countries to "sign on" to the Hague Convention and, once on, to comply with its terms, does not seem to correlate in a clear way with the degree of "modernity" of the country and government in question; the Japanese legislature is still vigorously debating whether Japan will sign on at all, and some western European signers are notably uncooperative in returning children.

Rifqa Barry is in foster care in Ohio; the Ohio court is attempting to facilitate some kind of dialogue between her and her parents, while the clock ticks by to her 18th birthday, at which time the law says she's an adult, and can go live with whomever she pleases. Based on the facts as I know them, it seems far less likely that her father will hunt her down for an "honor killing" than that she's easily swayed and influenced by others generally, and may find others who are all too willing, for good or ill, to make decisions for her.

Parents: Cherish your children. Children: cherish your parents.

Have a happy, and maybe even more prosperous, new year.

*There now seems to be at least some question as to whether deceased Mom was divorced from Sean's father at the date she remarried, and thus the quotes.

** In particular, Family Law News Blog and

Wednesday, December 9, 2009

Just In Time for The Holidays: When Is That Porsche With The Big Red Bow NOT A Gift?

Ms. Buie was married to Mr. Neighbors. Ms. Buie had previously sold a piece of real estate, and had some money in the bank, so shortly before Mr. Neighbors' birthday, she allowed him to take $60,000 of that money and buy himself a Porsche. . . . . . or so he thought.

As a California court has already observed, ". . . divorce unsettles many of the parties' significant plans and assumptions, no matter how carefully crafted. . ."*

There was, you see, apparently no writing from Buie to Neighbors saying something like "Here is my gift to you!", or if there was, nobody could find it by the time Buie and Neighbors got to court.

California law requires that there be a writing for such a "transmutation" of community property to separate property, except as to a

". . . gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage." **


The trial court said "Gift!", perhaps reasoning that a Porsche was, for a middle-aged husband in Southern California, of a "personal nature", the way clothing or wearing apparel or jewelry is for a middle-aged wife. He would, after all, no more expect her to drive his Porsche than he'd expect her to let him wear her fur coat and diamond earrings.

Not so fast, said the Court of Appeal. The legislative comments to the 1984 enactment of F.C. 852 were fairly explicit that an automobile isn't "a tangible article of a personal nature". In the absence of a writing, there's no gift transmutation of the car from community to Mr. Neighbor's separate property. Even more dismaying for him, since the money used was traceable to Ms. Buie's separate property house proceeds, and she also had never made a written waiver of her right of reimbursement, she was entitled to be reimbursed for her contribution, up to the remaining equity in the car. The car was in essence, all hers, not all his.

If you find a car in your driveway this month, with a card from your spouse on it, save, treasure and keep that card!


* Marriage of Destein (2001)
**
California Family Code Sec. 852