Severance of Parental Rights While Incarcerated?
Filed under: Arizona Family Law, Divorce Laws, Family Law Attorney, General Family Law, Maricopa County, Opinion
In Arizona Department of Economic Security v. Matthew L., 577 Ariz. Adv. Rep. 13, (3/2/10, Division One), the Court of Appeals was left with the decision of whether the trial court abuse its discretion by refusing to terminate the parental rights of an incarcerated father?
In this case, DES took physical custody of a child from his mother on 2/20/08. The alleged father had been incarcerated in the Department of Corrections on 9/17/07. On 3/17/08 the court ordered the Department to provide paternity testing and a psychological evaluation to see if the incarcerated man was the biological father. The paternity testing was completed on 10/2/08 and the evaluation was completed on 10/24/08. The court received the test results and found the child was dependent as to his father. Father then completed parenting classes while incarcerated, obtained a GED, made numerous efforts to contact the case manager, requested photos of the child, and was seeking permission for a friend to bring the child to prison to visit with him. The case manager never contacted the father. Two months after the completion of the paternity testing the Department changed the case plan to severance and adoption. The Department alleged that Fathers incarceration was “sufficiently long to deprive child of a normal home for a period of years.”
The appellate court on appeal however, opined that there was reasonable evidence to support the trial court’s denial of the request to sever the father’s parental rights.
In support of this conclusion, A.R.S. §8-533(B)(4) authorizes termination of a parents’ rights if the parent is deprived of civil liberties due to a felony conviction and the sentence of imprisonment “deprives a child of a normal home for a period of years.” The Supreme Court has outlined six factors for a trial court to weigh in making a determination of whether the State has met its burden of proof in Michael J. v. Ariz. Dep’t of Econ. Sec, 196 Ariz. 246, 251-52, ¶29, 995 P.2d 682, 686-88 (2000):
1) the length and strength of any parent/child relationship existing prior to imprisonment,
2) the degree to which the relationship can be maintained,
3) the age of the child and how that may affect the ability to have a normal home,
4) the length of the sentence,
5) the availability of another parent, and
6) the effect of the deprivation of the parent on the child. The Dept. argued that the trial court’s failure to make specific findings on the 6 Michael J. factors was reversible error. However, the court of appeals notes that only when the court decides in favor of severance is it necessary to make specific findings on the record. The court of appeals then examines all six factors and finds that there was reasonable evidence to support the trial court’s denial of the petition.
The court of appeals agrees that there was some evidence presented in favor of severance but that “there is no threshold level under each individual factor in Michael J. that either compels, or forbids, severance.” Christy C. 214 Ariz. At 450, ¶ 15, 153 P.3d at 1079.
BINDING AGREEMENTS? Reeder v. Johnson, (Ct. App. Div. I, March 23, 2010).
Filed under: Arizona Family Law, Divorce Laws, Family Law Attorney, General Family Law, Settlement
Is an agreement binding and enforceable under A.R.F.L.P. 69 if it is confirmed on the record by a mediator who is also a judge pro tem?
No, not under the facts of this case because the mediator/judge pro tem did not have the express authority to accept the agreement.
ARFLP Rule 49 provides:
Agreements between the parties shall be binding if they are in writing or if the agreements are made or confirmed on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized by local rule or administrative Order to accept such agreements.
Two types of Agreements are defined as binding under the rule: “(1) Written agreements between the parties, and (2) agreements made or confirmed on the record before a person authorized to accept such agreements, including a judge pro tempore or other person authorized by local rule.” ¶ 8.
In this case, the parties hired and paid a private mediator, who was also a judge pro tem. They reached a settlement and agreed at that time to use the mediator in his judge pro tem role to place their agreement on the record. ¶ 2 (see note 1 for the relevant agreement language that was recorded on the tape recorder). Later, Husband objected to Wife’s lodging of the decree, arguing that the decree did not conform to the Rule 69 agreement. The trial court overruled Husband’s objection and entered the decree.
Husband then filed a Motion for a New Trial, arguing that the mediator was never appointed “’as a judge pro tem in this case,’” and therefore, the requisites of Rule 69 were not met. Husband argued that the mediator was not “a person authorized to accept such agreements” under Rule 69.
The Court of Appeals found that the mediator was not appointed by the court to serve. The Court held that “parties cannot stipulate to assign a judge pro tem to their case.” ¶ 12. The parties must have “an appropriate judicial authority,” such as the assigned trial court judge; appoint their selected pro tem to serve. Id.
The Court of Appeals discussed the policy supporting its ruling:
“The limitation on the authority of judges pro tem serves a valuable policy goal. Were private mediators allowed to charge a fee for their services with the understanding that they could transform themselves into judicial officers to place the imprimatur of the court on their work, the rules would effectively authorize judges pro tem to use their official status to leverage their private income. We cannot conceive that the Supreme Court intended to approve such a practice when it drafted Rule 69.”
¶ 14, n. 3.
The Court of Appeals did not evaluate the enforceability of the agreement under contract law principles, because that issue was not presented to it. ¶ 15, n. 4. In dicta, the Court of Appeals cited to Emmons v. Superior Court, 192 Ariz. 509, 512, ¶ 14 (Ct. App. 1998) “(holding, in a case not involving the enforceability of a settlement agreement under a court rule, that ‘enforcement of settlement agreements . . . are governed by general contract principles’).” Id.
Nor did the Court of Appeals rule on the trial court’s failure to conduct an evidentiary hearing under Sharp v. Sharp, 179 Ariz. 205 (Ct. App. 1994), given that it ruled the agreement unenforceable under Rule 69.
“Under Rule 69, in contrast to Rule 80(d), ‘on the record’ does not mean that the agreement must be made orally in open court. The agreement merely must be memorialized by an authorized recording device such as the [tape recorder used] here.” ¶ 9.
This update has been prepared by the Case Law Update sub-committee of the Executive Council of the Family Law Section.
Qualified Domestic Relations Order (QDRO)
Filed under: Arizona Family Law, Divorce Laws, Family Law Attorney, General Family Law, Maricopa County
A “qualified domestic relation order” (QDRO) is a domestic relations order that creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and that includes certain information and meets certain other requirements.
For simplicity, a domestic relations order is a judgment, decree, or order (including the approval of a property settlement) that is made pursuant to state domestic relations law (including community property law) and that relates to the provision of child support, alimony payments, or marital property rights for the benefit of a spouse, former spouse, child, or other dependent of a participant.
In simpler terms, a QDRO is an order that needs to be included in a divorce agreement when dealing with retirement funds acquired between two spouses during the course of their marriage. A QDRO establishes one spouse’s legal right to receive a designated percentage of another spouses “qualified plan” account balance or benefit payments.
A domestic relations order can be a QDRO only if it creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a part of a participant’s benefits. For purposes of the QDRO provisions, an alternate payee cannot be anyone other than a spouse, former spouse, child, or other dependent of a participant.
A spouse receiving a designated percentage of another spouses “qualified plan” will be responsible for paying the related income taxes when that money is received in the form of a pension, annuity or other defined withdrawals.If any qualified retirement account proceeds transfer to a spouse without entry of a proper QDRO, such proceeds are treated as a taxable distribution. This means the acquiring spouse is subject to liability for proceeds received without a proper QDRO and likewise responsible to the IRS for money that is actually received from these related proceeds.
Therefore, it is important that any decree involving retirements benefits include a properly executed QDRO from their “plan administrator.” Most organizations and/or companies providing retirement benefits designate policy and procedure for a plan administrator to assist parties subject to divorce proceeding in acquiring the proper documents needed to be executed and submitted with their divorce decree.
There is nothing in ERISA or the Code that requires that a QDRO (that is, the provisions that create or recognize an alternate payee’s interest in a participant’s retirement benefits) be issued as a separate judgment, decree, or order. Accordingly, a QDRO may be included as part of a divorce decree or court-approved property settlement, or issued as a separate order, without affecting its qualified status. However, as not to confuse and/or prolong the issue, it is strongly suggested that a properly executed and approved QDRO from a plan administrator accompany any finalized decree of dissolution. Therefore, if a parties divorce decree involves distribution of and divisions of retirement benefits it is encouraged that at a minimum the following be included:
1. Name and mailing address of the “plan participant” (you) and the “alternate payee” (your ex);
2. Each retirement qualified, plan account to be split up under your divorce;
3. The dollar amount or percentage of benefits to be paid from each account to the alternate payee;
4. The number of payments or benefits period covered by the QDRO; and
5. If a QDRO has not been completed, your papers should specify that a qualified domestic relations order is being established under your state’s domestic relations laws and Section 414(p) of the Internal Revenue Code.
If you have further questions, comments or concerns regarding the applicability of a QDRO to your domestic relations proceeding, contact our law firm to set up a consultation with an experienced attorney regarding the subject matter.