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a) Twyman v. Twyman (1993) 1. Wife claims emotional harm b/c husband engaged in S + M w/her even though he knew she’d been raped prior to marriage. Is this intentional infliction of emotional distress? A: There must be an injury. 2. Should the ct examine the sexuality between the partners? 3. Teach says this claim isn’t just about the sex, it’s also about the harm (ex: marital rape). 4. Teach says be sure to file a certain set of facts on divorce complaint and a different set of facts on tort complaint. Sometimes however, the ct will insist that both claims be brought at the same time. This changes the proceeding back to a fault system where $$ will be divided based on conduct of the parties. On the other hand, cts will sometimes keep the claims separate so the ct is not influenced by either claim.
B) Role of Counsel
a) Themes 1. Transference—patient directs towards physician a degree of affectionate feeling viewing him like family member or friend. 2. Counter-transference—physician having feelings towards patient. 3. As a lawyer, we should expect clients to expect us to have an authoritative role to get things done. A lawyer who can disentangle psychological problems is as important as legal advice. 4. The lawyer must discern actual results and convey realistic goals. **Always consider the concerns of the kids. Refer what you can’t handle. Don’t overcharge. 5. The role of a lawyer is multi-faceted: handholder, social worker, therapist, etc. 6. There is an ethics hotline w/ABA.
b) Moses v. Moses (1975) 1. Facts: Husband is appealing award of atty’s fees to wife’s counsel. Lawyer worked on case w/wife on average 2 hrs a day for 56 days, and now husband is being asked to pay. Is it lawyer’s fault? The wife mostly called him. 2. Holding: Ct reduced fees from $5000 to $3000 b/c lawyer has duty, if he expects fee to be paid by other spouse, to control excessive demands upon his time, energy, and intellect. 3. To solve the problem, the lawyer should excuse himself from the case, as the lawyer did here.
c) Florida Bar v. Dunagan (1999) 1. Facts: Atty was supposed to file business in couple’s name but mistakenly only included husband. He then represents husband in business suit and moved to dismiss wife for non-ownership. Then, lawyer represents husband in divorce and sends letter to police to warn of wife breaking the peace. 2. In this case, lawyer is guilty of (1) misrepresentation, (2) not saying truth to others, (3) conflict of interest, (4) obligation not to use info from prior proceeding against her, (5) not obtaining consent prior to representing husband. 3. Lawyer defends saying he got consent from her atty. But that’s too late!! 4. Holding: Ct finds against lawyer b/c its conflict of interest to represent 2 clients in substantially related matter w/adverse interests. Lawyer also misrepresented. 5. A lawyer must disclose to parties what joint representation means. This is pertinent w/regard to confidentiality.
d) In Re Tsoutsouris (2001) 1. Facts: lawyer engaged in sexual relationship w/client while representing her in divorce action. Lawyer says it was ok b/c the constitutional relationship did not impair his ability to represent his client. 2. Holding: Lawyer was suspended for misconduct. 3. For some reason, this was a minority opinion b/c of the strong disapproval of atty-client sex. Apparently, although the ABA forbids these relationships, this is not the law unless each state adopts it. 4. **Fenton’s Rule: Don’t have sex with your clients unless the relationship started b4 she became a client.
e) In Re Marriage of Kimura (1991) 1. Facts: Couple married in Japan. They divorce. Now he’s in U.S. and she’s in Japan. Can state of Iowa exercise jur. over divorce? Here, the ct is exerting SMJ. (Not PJ—so min. contacts don’t apply). 2. Every state has statutory residence requirement that the resident establish domicile and give spouse due process notice. The residency requirement indicates state’s interest. Although it may be unfair to Japanese spouse, there’s overriding interest in satisfying state’s interest. 3. But, b/c there’s no min. contacts, this ct can’t adjudicate aspects ancillary to marriage (child custody, division of assets, etc.) 4. This is an ex parte divorce→as long as one spouse meets the state’s requirements, he can divorce w/o the spouse there. Notice MUST be given, however. 5. The difference between residence and domicile is intent. You may have more than one residence, but only 1 domicile. 6. This holding applies to divorce between people of different countries as well as U.S. states. (ex: Abraham couldn’t divorce in FL unless he met the statute and gave notice). 7. If a divorce is challenged in another state, you must show the residency requirement is so short that the state has no interest, or that the residency is a sham. (ex: still keep driver’s license, job, etc.) 8. In order to get PJ, you can use long-arm statute or tag jur. 9. Bi-lateral divorce—couple agrees to get divorce in another jur., comes back, and one spouse decides that he wants to get divorced in home jur. This divorce cannot be challenged. 10. Divisible Divorce Doctrine—A ct w/SMJ but not PJ over both parties cannot adjudicate ancillary matters, thus leaving those matters to another ct or a later proceeding in the same ct. This is used where couples divorce and couple up with others. The ct allows adjudication of status (so the spouse can get remarried to legitimate child on the way), and then continue to litigate the other issue later. This is a compromise b/c you don’t want ancillary matters ignored, nor do you want to restrict people’s status unnecessarily. 11. As a matter of public policy, the ct raised the issue of FNC, but U.S interest outweighed interest of parties. The U.S. wanted to protect its own resident.
f) Sosna v. Iowa (U.S. 1975) 1. Facts: Couple is divorced. Husband is personally served with notice in Iowa when he visits his children. Wife was a resident of Iowa for one month, even though statute requires 1 year. Wife claims that the statute requirement violates equal protection. 2. Holding: Ct upholds residency requirements of the statute as meeting due process and equal protection. The ∏ doesn’t meet the requirements b/c she’s only been a resident for 1 month, but statute says must be 1 yr. Ct says that the requirement doesn’t take away her right to divorce, it only DELAYS it. (same as underage marriage case) 3. States don’t want to become divorce mills, but why not? Doesn’t divorce mean extra revenue from ct fees? But states say no b/c it’s contrary to welfare of the state (family stability). Also, state has interest to adjudicate claims of own residents b4 residents of other states. 4. **This case is often cited for proposition that ‘family law is the province of the states.’
g) Ankerbrandt v. Richards (U.S. 1992) 1. Ex-wife (Missouri) sues husband (Louisiana) for domestic abuse in fed ct based on diversity. 2. But, there is a domestic relations exception to fed jur., so the ct refuses to hear the case. There are too many policy concerns. 3. The rationale is b/c its more efficient. Family matters are already clogging state cts and cts don’t want family issues to clog up fed cts as well. 4. the exceptions to this case is: (1) fed cts can hear cases involving enforcement of alimony, custody, property division as long as judgment is FINAL. [If the order is modifiable, the ct will not hear it]. Also, (2) the ct will hear tort actions that involve family law b/c its completely separate from family issues. Finally, (3) enforcement of contract cases (ex: pre-nup), but not those that can be modified by family ct. 5. Doctrine of Abstention—Fed ct, even w/o domestic relations exception, may abstain from hearing a case that involve state matters (ie. family laws). This goes back to Sosna v. Iowa.
C) Child Custody and Visitation
a) “The resolution of custody disputes thereby reflects the fundamental tension between respect for family autonomy versus the need for state intervention.” (p. 797)
b) Devine v. Devine (1981) 1. Holding: Ct awarded custody of 2 sons to mom even though both parents were fit to have the kids. 2. Ct imposes ‘tender-yrs’ presumption (kids under age 7) that mom will be better caretaker. The problem with this is that while it makes cases easier, it doesn’t lead to the best result in every context. 3. Before this, ct imposed ‘Paternal preference’ rule under the presumption that the dad owned the kids like property, and that the kids could help the dad in his labor. 4. Nowadays, the ct uses neither presumption b/c presumptions are not always correct and it violates equal protection. 5. **Instead, ct imposes ‘specific finding of fact’ based on context. 6. The author Mnookin suggests that if both parents seem equipped to have custody, the ct should flip a coin to decide b/c it’s just as fair as any other rationale. 7. Primary Caretaker Presumption—the spouse who spent the most time with the kid during the marriage should keep the kid after the divorce. The problem is that it’s not always correct and it doesn’t account for a change of lifestyle after the divorce. 8. **Now ct uses ‘best interests of the child’ standard. Factors include: stability, love and care, willingness and ability to educate, and personal factors that affect the kid. 9. When custody is contested, me get the kids 60% of the time. This is probably b/c men only contest when they have a good case. But most divorces are done w/o contesting (‘private ordering’). 10. Nowadays, to enhance private ordering, parents will come up w/joint-custody plan.
c) Palmore v. Sidoti (U.S. 1984) 1. Facts: White couple divorces, wife gets kid and married black man. Ex-husband contests b/c change of circumstances. 2. Holding: Supreme Ct rejects this b/c it was racial prejudice and the wife situation has not changed adversely to make her unfit to keep kid. 3. The ct may not support racial prejudice as the DETERMINATIVE factor in the best interests of the kid. The ct doesn’t mention if it could be a factor, but cts since then haven’t touched it.
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