Family Court Judge Refuses Divorce

Chancellor Jeffrey Atherton

Sometimes, a judge is just looking for some cheap professional attention. That's what we suspect occurred this week when a Tennessee family court judge cited the SCOTUS marriage equality decision, among other reasons, as the stated basis for denying an elderly couple's divorce.

After hearing from 7 witnesses and considering dozens of exhibits over 4-days, Hamilton County Chancellor Jeffrey Atherton refused to grant the divorce sought by the litigants. And now, perhaps by the Chancellor's design, here comes his 15-minutes of ill-conceived fame.

In denying the requested relief upon completion of the proofs, the Chancellor stated that because of the SCOTUS decision in Obergefell v Hodges, the Supreme Court now needed to clarify, "when a marriage is no longer a marriage." The judge's reasoning is flawed to the extent that whatever our High Court has defined as a fundamental right within the context of marriage has nothing relevant to do with a state law divorce proceeding.

Chancellor Atherton further concluded that because the SCOTUS has deemed Tennesseans incompetent to define the central institution of marriage, he is somehow judicially hamstrung on the performance of his sworn duties. Those duties would include presiding over and resolving a contested divorce proceeding through a judgment.

What the...?  Is this guy trying to match wits with Kim Davis over in Kentucky?

Divorce proceedings rarely go to trial. When they do, one of the findings a family court judge is required to make is that the objects of matrimony have been destroyed such that there is no reasonable likelihood the marriage can be repaired; the ole "irreconcilable differences".

To properly conduct a divorce trial, the family court judge then needs to make factual findings in the case -usually about the parties' property in a case like this, without children- as well as make other legal decisions, i.e. whether alimony is appropriate. Then, the judge must issue a judgment of divorce setting forth the decisions of the court.

In this case, after 4-days of testimony, Chancellor Atherton concluded the marriage could be salvaged and hoped the couple reconciled. It appears to us, however, that this couple has become victim to the judge's personal desire to grab headlines by stating his political differences with the Obergefell marriage equality decision.

Divorce is difficult enough for couples without this form of petulant judicial grandstanding. We will continue to monitor this case in order to see what "work around" is utilized to correct this judge's harmful error.

In blogging about the marriage equality civil rights movement over the past decade, we predicted that, if the SCOTUS established a fundamental right to marriage, as it did, there would be plenty of instances where people in positions of power, like this  county judge in Tennessee and like the court clerk in Kentucky, simply refuse to obey the law of the land.

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Same-Sex Divorce Could Require Moving Out-of-State

When our SCOTUS recently struck-down the Clinton-era Defense of Marriage Act, and also held that California's prohibition on same-sex marriage was unconstitutional, proponents of same-sex marriage understandably hailed the decisions as a victory.  Now that the dust has began to settle in these seminal cases, some of the fall-out is going to affect the inevitable divorce proceedings arising from failed same-sex relationships.

The corollary to same-sex marriage, however, is same-sex divorce.  In some cases, when a same-sex couple is married in one of the dozen jurisdictions that recognize same-sex marriage, then moves to a state that does not recognize such nuptials, difficulties arise when the relationship fails.

This is because when you are a same-sex couple, you cannot just get divorced in a state that does not recognize same-sex marriage.  And most states that do recognize same-sex marriages require a minimum residency requirement from 6-months to a year.  Sometimes, moving to another state simply to get a divorce is not a viable option.

Once a same-sex couple splits-up without a divorce certificate, remarriage becomes a legal impossibility.  Bigamy is a crime in all states; you cannot be married to two persons at once.

This common problem highlights one of the major difficulties in the lag between states that recognize same-sex marriages and those that do not recognize such relationships.  Although the federal government must recognize same-sex marriages for purposes of benefits and entitlement  programs, it is state laws that control who is, and who is not, legally married.

Divorce, already a daunting prospect for both heterosexual and same-sex couples alike, is made more difficult without clear legal exit strategies.  Today, Wyoming is the only state that does not recognize same-sex marriages, but will allow a legally married same-sex couple to get divorced.

A pair of same-sex divorce cases in Texas, where the Texas Attorney General is opposing such divorce proceedings, are grinding through that state's appellate courts and could provide the opportunity for the SCOTUS to build on its ground-breaking decisions from last term.

But all that is a long-way off for same-sex couples whose relationships have failed.  The bottom line is that same-sex marriages are not treated the same as traditional couples; it will likely take generations for that to occur.

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New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Bottom line: pay your child support obligations.

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High Court Rules Religious Mom Can No Longer Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progress into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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Same-Sex Marriage Cases Go Constitutional

A federal law suit filed last year by two California same-sex couples (one gay; one lesbian) has raised constitutional issues in the gay marriage context and is unfolding in a momentous trial.  In Massachusetts, another federal case tests whether a federal statutory provision that draws a sexual-preference distiniction is constitutional.

The complaint in Perry v Schwarzenneger, filed in the Northern District of California and assigned to Judge Vaughn R. Walker, has high-powered lawyers seeking far-reaching relief for the rights of (gay) individuals.  The case is another chapter in the tumultuous world of 21st Century Californian sex-gender politics.  The "all-in" nature of the Perry case, however, will have effects that touch most families in America.

You may or may not recall that back in 2004, the newly-elected young and dashing San Fransisco mayor Gavin Newsom made an international splash by presiding over same-sex civil marriage ceremonies conducted at City Hall.  The California Supreme Court squashed the practice in about 30-days, voiding all the marriage licenses issued as a result of Gavin's project.

In a May 2008 change of course, the California Supreme Court decided (4-3) the case known as In Re Marriage Cases, holding that any California laws, "that treat persons differently because of their sexual orientation should be subjected to strict scrutiny..."  The California high court decision struck down proposed state legislation seeking to ban same-sex marriage on the grounds the initiative violated the California constitution.

Six months later, in yet another change of course, the California electorate (narrowly) approved Proposition 8, defining marriage as between opposite-sex couples only.  The California Supreme Court swiftly followed suit in Strauss v Horton, upholding the passage of Proposition 8, but applying that referendum prospectively, thereby preserving the approximately 18,000 marriages that had been performed prior to the passage of the referendum; and perhaps unwittingly creating an arbitrary class of persons to which other gays can point in an equal protection analysis.

Enter the lesbian couple Kris Perry and Sandy Stier (Berkeley) and gay couple Paul Katami and Jeff Zarrillo (San Fernando Valley), pictured in the above link emerging from the federal courthouse following the first day of court proceedings.  The couples, very carefully selected by well-funded and well-connected gay rights activists, were apparently up for the arduous task of prosecuting constitutional federal litigation.  Neither couple were among the tens of thousands to take advantage of the narrow 6-month window to obtain a marriage license in mid-2008, making them ideal constitutional-litigants.

Some gay rights activists have criticized the suit as premature and ahead of the public opinion curve on the same-sex marriage issue.  While the concept seems to be gaining ground in abstract opinion polls, to date, only 5-states allow same-sex marriages:  Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.  On the other hand, 29-states (including Michigan) have amended their Constitutions to outright ban gay marriage by defining a marriage as between a man and a woman.

Many in the front-lines of the gay rights movement prefer the slower, state-by-state approach to "resolving" the same-sex marriage issue.  They worry that the Supreme Court could hand their movement a serious setback by issuing a neutral or worse, an anti-gay, decision along the lines of the 1986 Bowers v Hartwick decision (upholding a Georgia sodomy law on the basis there was no constitutional protection for sexual privacy).  It took the high court 17-years to reverse the dubious Bowers decision in the seminal 2003 case of Lawrence v Texas, which expressly overruled their prior decision as defining the liberty and privacy interests of two consenting adults too narrowly to survive a Due Process analysis.

There is also a notion that gay-marriage was removed via the ballot box and that's where the battle should be won.  In our Democracy, however, core individual rights (once defined) are not subject to the ebb and flow of majority rule.

Other gays are tired of waiting, however, genuinely offended by the series of referendums passed which discriminate against their sexual orientation.  For example, California already has a progressive civil union statute to protect property rights and employment benefits.  But the Perry case is about much more than property rights and benefits; it is about individual liberty and the sacred right to chose one's life partner, one's spouse, without interference from the state.  Court watchers equate the Perry case to that of Brown v Board of Education (abolishing the "separate but equal" fallacy in public schools) and Loving v Virginia (holding that a state could not prohibit interracial marriages).

Whatever the outcome of the trial, an intermediate appeal to the Ninth Circuit is guaranteed to send this one to the United States Supreme Court.  Plaintiffs are represented by the unlikely but outstanding duo of Ted Olson and David Boies of Bush v Gore fame.  The former represented Bush as Solicitor General; the latter represented Vice President Al Gore in the famous case settling the 2000 presidential election.

Olson's conservative credentials have led some to wonder whether he is serving as a "double agent" planted to hand the movement a serious setback at the high court.  Olson should be taken at his word, however, when he states that, separate is not equal and that a "civil union" is not the same as a marriage.  With 44-wins already before the high-court, Olson likes his chances at that level and genuinely believes he's on the correct side of this issue.

In the meantime, the Perry case has already been to SCOTUS; Judge Walker's decision to televise the trial on YouTube was appealed from the other end of the state by Senator Dennis Hollingsworth.  The appeal stayed the trial judge's decision to stream the trial to the Internet and subject all of us to reading about the case, or suffering through a painful re-enactment of the trial.  Several key depositions (Paul Nathanson and Katherine Young) taken last fall, however, have been leaked to YouTube, and effectively convey the background surrounding what is shaping-up as our next great civil rights struggle.

5-votes will be required to establish precedent once a writ of certiorari is inevitably issued by the high-court in the case.  Olson and Boies will probably need to persuade Justice Anthony Kennedy, an oft-breaker of ties at the Court.

SCOTUS-watchers figure the so-called liberal bloc of Justices (Ruth Bader Ginnsburg, Sonia Sotomayor, Stephen Breyer, and John Paul Stevens) will vote to condemn Proposition 8 as unconstitutional on Equal Protection grounds.  Since Justice Stevens announced his retirement on Friday, effective at the close of this session of the Court in June, President Obama's second high-court nomination takes on critical importance in the Perry case.  Justice Stevens' replacement will most-likely be a confirmed sitting Justice by the time Perry is on the high-court's docket sometime in 2012; the day-after-tomorrow from the Supreme Court's usual long-range perspective.

Of note:  Perry is not the only "gay-rights" case percolating through the federal courts at the moment.  Also destined for certiorari is Gill v Office of Personnel Management.   That case presents a more narrow constitutional challenge to a specific provision of the Defense Against Marriage Act preventing same-sex couples from receiving benefits that other non-gay federal employees receive for their families.

Plaintiff's counsel in Gill, Mary Bonauto, prevailed in the Massachusetts case that legalized gay-marriage.  While Bonauto acknowledges that her more-recent federal case is not the left-coast headline-generator that Perry is, she is mindful that both cases seek to expose the federal government's "double standard" when it comes to same-sex marriage; the feds recognize a wide-variety of marriages once they are licensed by a state, except in the case of gay-marriages.  Bonauto and other legal professionals fear that Perry seeks too momentous and far-reaching relief; the decision, after all, could invalidate anti-gay-marriage laws in nearly 40-states.

Michigan Connection:  In addition to those of us who have a family member involved in a same-sex union (my brother) or who are themselves involved in such a union, the left-coast Perry case could invalidate the 2004 Marriage Amendment to Michigan's constitution.

Also, the electronic divorce attorney (yours truly) will be admitted to the bar of the United States Supreme Court on the final day of this session, June 21st; Justice Stevens' final day of his long career on the high-court.

Stay tuned for the outcomes of these cases folks as we strive to keep you informed of significant developments.

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