Justia Civil Procedure Opinion Summaries

Scott R. appealed the termination of his parental rights to his biological daughter, A.B., under Family Code section 7822,1 which authorizes the termination of rights of a parent who "has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication . . . with the intent . . . to abandon the child." He argued that the one-year statutory period referred only to the year immediately preceding the filing of the petition for termination of parental rights, which precluded its application to him. Scott argued in the alternative that reversal was warranted in any event because: (1) he rebutted the presumption that he intended to abandon A.B.; (2) the termination of his rights was not in A.B.'s best interests; and (3) the juvenile court erred in determining that the Indian Child Welfare Act (ICWA) did not apply absent proof that a tribe he identified actually received notice as required under that statutory scheme. After review, the Court of Appeal rejected Scott's arguments and affirmed the order. View "In re A.B." on Justia Law

After ending their marriage, Ex-Wife and Ex-Husband commenced proceedings in the Moscow Court for division of marital assets. In the Russian Dispute, Ex-Wife claimed that Ex-Husband was concealing and dissipating marital assets through and with the assistance of “offshore companies” around the world. In the United States, Ex-Wife sought information from Gabriella Pugh and her employer in Atlanta, Georgia - Trident - that she expected would reveal Ex-Husband’s beneficial ownership of Bahamian corporation, Tripleton. On referral, the Magistrate Judge granted Ex-Wife's ex parte Application for Judicial Assistance and authorized service of two subpoenas. In these consolidated appeals, Trident challenges the district court's order allowing discovery pursuant to 28 U.S.C. 1782 (Appeal No. 15-13008 (“First Appeal”)) and imposing contempt sanctions (Appeal No. 15-15066 (“Second Appeal”)). The court agreed with the district court that the location of responsive documents and electronically stored information - to the extent a physical location can be discerned in this digital age - does not establish a per se bar to discovery under section 1782; having rejected the Extraterritoriality Argument, the court agreed with the district court that significant “circumstantial evidence” established that Trident Atlanta had “control” over responsive documents in the physical possession or custody of Trident Bahamas; and therefore the court affirmed as to the First Appeal. The court rejected Trident Atlanta's frivolous jurisdictional argument; the Contempt Order is supported by the evidence; and therefore the court affirmed the Second Appeal. View "Sergeeva v. Tripleton Int'l Ltd." on Justia Law

Appellant Tammy Cole was the biological grandmother of N.B. and J.B. In May 2012, DCYF filed a petition alleging that N.B. and J.B. had been neglected by their biological parents. The court appointed CASA to serve as the children’s guardian ad litem. After the court made a finding of neglect and awarded DCYF legal custody, DCYF removed N.B. and J.B. from their parents’ home and placed them in Cole’s physical custody. In November 2013, the biological parents sexually abused N.B. and J.B. during an unsupervised visit. The court subsequently terminated the biological parents’ parental rights, and the abuse and neglect case was closed. In May 2014, Cole and her husband adopted the children. In July, Cole filed a motion in the circuit court seeking to copy the court’s records relating to the children’s abuse and neglect case. Cole also notified DCYF and CASA that N.B. and J.B. had potential negligence claims against these agencies based upon the abuse that occurred while the children were in the legal custody of DCYF. DCYF and CASA objected to Cole’s motion and each requested a protective order. DCYF and CASA argued that Cole was not entitled to make a copy of the court record, and CASA requested that the court grant a protective order limiting Cole’s inspection of the records to review at the courthouse and limiting disclosure of the court file. After a hearing, the court granted Cole’s motion to copy records and also granted CASA’s request for a protective order, in part. Cole only appealed the part of the circuit court's order required that any future case be filed as confidential and the pleadings filed under seal. She argued that this constituted a prior restraint on free speech that violated her rights under the New Hampshire and United States Constitutions because it was neither narrowly tailored nor did it serve a compelling State interest. Further, she asserted that it impermissibly placed the burden upon her, instead of on the parties seeking nondisclosure, and that it unfairly restricted her disclosure while allowing others to disclose the same information. Because the New Hampshire Supreme Court found that the court’s ruling constituted an unconstitutional prior restraint on speech, it reversed this part of the order. View "In re N.B." on Justia Law

In September 2015, the Trinity County Department of Health and Human Services (Department) filed a juvenile dependency petition as to then eight-year-old S.N. The petition alleged that mother "failed to protect [S.N.] in that she drove under the influence of alcohol with [S.N.] in the vehicle, resulting in a single car collision into the embankment, causing [S.N.] to suffer serious physical and emotional harm." The petition further alleged that mother "failed to provide [S.N.] with adequate medical care in that [S.N.] had ligature marks and abrasions on her chest as a result of a vehicle accident which were not immediately treated due to the mother telling [S.N.] she was not 'hurt enough' to require medical care." C.N., mother of minor S.N., appealed the juvenile court’s orders taking jurisdiction and later terminating jurisdiction after awarding custody to father at disposition. She contended the court failed to obtain a valid waiver of her right to a contested jurisdictional hearing. Mother further contended that trial counsel rendered ineffective assistance of counsel at the jurisdictional hearing. In the published portion of the Court of Appeal's opinion, the Court concluded the trial court failed to obtain a valid waiver. Because this error was found as harmless beyond a reasonable doubt, the Court of Appeal affirmed the juvenile court’s orders nevertheless. View "In re S.N." on Justia Law

A mother and father shared joint legal and physical custody of their daughter. The mother moved for sole legal and primary physical custody, alleging that a sustained lack of cooperation between the parents and other changes in their lives justified the modification of custody she requested. She moved in the alternative for a modification of the custody schedule. The superior court found there was no substantial change in circumstances justifying a modification of custody and awarded partial attorney’s fees to the father. The father appealed, but the Supreme Court affirmed these decisions. The case was remanded nevertheless for the superior court to consider whether the mother’s proposed modification of the new custody schedule would have been in the daughter’s best interests. View "Collier v. Harris" on Justia Law

May 7, 2015 was the second day of Kenneth and Melissa Coons' divorce hearing. Near the end of the hearing, the trial court called a brief recess and asked counsel to meet in chambers. According to the trial court, during the meeting, it told the parties that “it would not and could not distribute [husband’s] military retirement because he had not yet served the requisite number of years to vest in the system. In short, there was not yet anything to distribute because [husband] had no entitlement to the benefit.” The trial court indicated that the benefits could be distributed only once they vested; because husband was ten months shy of a full twenty years of service as of the final hearing date, there was nothing to distribute. Following this conference in chambers, the parties entered into an stipulation resolving all outstanding issues. With respect to property division, wife agreed to accept a lump-sum payment of $15,000 and waived any claims to husband’s expected but not-yet-vested military retirement benefit. Wife affirmed on the record her satisfaction with the stipulation, and the trial court incorporated the stipulation into the final divorce decree. The court signed the final order the next day. Wife sought to set aside the stipulated final order for divorce on the ground that she entered into the agreement in reliance on that in-chambers “weather report” in which the trial judge misstated the applicable law. Finding no abuse of the trial court's discretion in declining to set aside the stipulation, the Vermont Supreme Court affirmed. View "Coons v. Coons" on Justia Law

H.O. appealed the termination of her parental rights to her child, B.P. H.O., suffered from drug addiction, depression and other mental health issues, and the effects of long term childhood trauma. B.P., suffered too: she was born addicted to methamphetamine, endured withdrawal, was abandoned by H.O. during infancy, and experienced multiple disruptions when forming attachments with H.O. and various foster parents. On the other hand, after several tries, H.O. achieved sobriety; benefited from treatment in a structured environment; and became an attentive and caring mother to another child, A., in that structured environment. She also engaged in partially supervised, therapeutic visitation with B.P., and the two began to form what witnesses at the termination hearing called a social relationship with an emerging emotional attachment. Despite all that, the Department of Social and Health Services recommended termination of H.O.'s parental rights. The Supreme Court reversed, finding that where a child has special needs (here, special attachment needs); and where, as here, those special needs were exacerbated by the State's failure to timely provide necessary services to the biological parent; then the State has failed to prove this legislatively mandated prerequisite to termination (absent futility, which was not shown here). View "In re Welfare of B.P." on Justia Law

The parties in this dispute were the parents of a daughter, born in August 2004. The parties were living in Vermont and obtained a final parentage order in December 2012: Mother was awarded sole legal and physical parental rights and responsibilities; father was awarded significant parent-child contact (PCC). In October 2013, the court granted father’s motion to enforce his parent-child contact. The court warned mother that if she withheld or denied father’s right to contact in the future, it would seriously consider modifying parental rights and responsibilities. The court was persuaded that mother had no ability or disposition to foster a positive relationship and frequent and continuing contact with father, and that it was in the child’s best interests to have frequent and continuing contact with him. In August 2014, mother and daughter moved to Virginia. Father remained in Vermont. By agreement, father was to be provided with PCC during Christmas 2014 and during the early spring and summer of 2015. The Christmas visitation did not occur. In April 2015, father moved to enforce the PCC order. Father asserted that he had been unable to schedule a spring visit because mother refused to tell him where the child lived and which school she attended. In 2015, father filed emergency motions for sanctions and for enforcement, indicating that mother was not cooperating with father's requests. Shortly before father’s second filing, mother asked the court to relinquish jurisdiction over this case to Virginia courts. Mother argued that she and the child no longer had a significant connection to Vermont and that the “center of gravity regarding the child’s care, protection, schooling and personal relationships center fully in Virginia.” Mother appealed the trial court’s imposition of sanctions against her and its denial of her request that Vermont relinquish jurisdiction over this case to Virginia. She argued that the evidence did not support the imposition of sanctions and that the court erred in evaluating her jurisdictional request. Finding no reversible error, the Vermont Supreme Court affirmed. View "Ward v. LaRue" on Justia Law

Scott Klein appealed, and Janis Klein cross-appealed, a district court order denying Scott's motion to terminate spousal support. In the divorce judgment, the district court awarded Janis permanent spousal support of $4,500 per month until such time as she died or remarried. Scott alleged Janis habitually cohabitated with another individual in a relationship analogous to marriage for at least one year, as required to terminate a permanent spousal support award under N.D.C.C. 14-05-24.1(3). Janis, among other arguments, argued N.D.C.C. 14-05-24.1(3) did not apply to cohabitation prior to August 1, 2015. Because he did not satisfy the requirements under N.D.C.C. 14-05-24.1(3), the district court denied Scott Klein's motion to terminate the spousal support. Finding no reversible error, the North Dakota Supreme Court affirmed the denial. View "Klein v. Klein" on Justia Law

During Husband and Wife’s divorce proceedings, the trial court entered a decree of dissolution approving and incorporating a separation agreement that the parties entered into. The agreement provided that Husband pay spousal support to Wife for her lifetime. Husband later filed a motion for relief from judgment pursuant to Ohio R. Civ. P. 60(B), requesting that the spousal support order be vacated because his annual income had decreased significantly. The trial court dismissed Husband’s motion, concluding that Rule 60(B) relief was not available because the trial court had not retained jurisdiction to modify the spousal support award. The Second District Court of Appeals affirmed but certified that its holding was in direct conflict with the holding of the Tenth District in Noble v. Noble. The Supreme Court affirmed, holding that a trial court does not have jurisdiction under Rule 60(B) to vacate or modify an award of spousal support in a decree of divorce or dissolution where the decree does not contain a reservation of jurisdiction to modify the award of spousal support pursuant to Ohio Rev. Code 3105.18(E). View "Morris v. Morris" on Justia Law