All in the Family: Parenting time and personal injury take center stage

Spring has arrived early. We can’t help but wonder whether a pattern of nice weather bears relation to a limited number of family law appellate decisions in the last month. At the same time, things seem to be heating up at the Capitol.

Two key developments to discuss this month: shared parenting legislation and an unreported decision involving ongoing jurisdiction over a divorce litigant’s personal injury lawsuit.

Shared parenting legislation

Each session of late, it seems the Minnesota legislature considers some sort of “co-equal” custody or parenting time legislation. This year is no exception.

Legislation creating a presumption of equal parenting time in divorce and paternity cases passed the Minnesota Senate Family Care and Aging Committee on February 27, 2019.

Republican Sen. Karin Housley of St. Mary’s Point authored Senate File No. 1295, suggesting that the “time for reform in this area of Minnesota law is long overdue.”

In present form, her legislation provides that it is presumed that “the court shall award each parent 50 percent of the parenting time for [a] child.”

The legislation further provides that if the court deviates from the equal presumption, it shall make written findings of fact supported by clear and convincing evidence that the deviation results from: (1) untreated mental health issues; (2) untreated substance abuse issues; (3) domestic abuse; (4) verifiable scheduling conflicts; or (5) a child’s special needs.

Other factors the court must evaluate under S.F. 1295 include whether one parent has: (1) engaged in unwanted interference between the other parent and a child; (2) made false allegations of abuse; or (3) chronically denied or minimized parenting time for the other parent.

Housley’s bill awaits a hearing by the Judiciary and Public Safety Finance and Policy Committee.

While Housley argues that it is “time to come together and pass bipartisan legislation that puts the interest of kids first,” others disagree with the underlying presumption.

In a recent blog post by Illinois divorce attorney Karen Covey, she noted that “more than 35 states are considering adopting shared parenting laws this year.” Recognizing a change in public sentiment, Covey reiterated that Florida and Kentucky recently passed equal parenting laws.

Covey noted a number of ways that shared parenting legislation harms children, including: (1) putting the “rights” of parents above the best interests of a child; (2) a presumption running directly contrary to the developmental needs of a child.

Regardless of which side of the issue you find yourself on, it cannot be denied that S.F. 1295 falls squarely into Covey’s criticisms. In fact, much of Housley’s bill runs directly afoul of the needs of a child during each developmental stage as recently addressed by the Minnesota Supreme Court Advisory Task Force.

Minnesota has the only split legislature in the country, making it difficult to predict where S.F. 1295 is headed.

The $27 million dollar question

In terms of appellate decisions, it has been a relatively quiet month on the family law front. However, the unpublished Kedrowski decision recently addressed an interesting give and take in terms of a personal injury recovery.

Husband and Wife were married in 2001 and had two children. Husband was the majority owner of a development company. The parties separated in 2009.

In 2010, Husband sustained serious injuries when a plane he was piloting crashed. Husband brought a tort claim against the airplane engine manufacturer as a result of the crash.

In 2012, the parties entered into a stipulated divorce decree. The decree valued various assets of the parties and provided an award of alimony to Wife in the amount of $2,700.00 per month, subject to review after three years. The parties did not stipulate to a reservation of the District Court’s jurisdiction over Husband’s personal injury action.

In 2015, Husband moved for a review of the relevant spousal maintenance award. The District Court reduced his obligation to $1,800.00 per month, but made no finding that Husband’s income had increased or decreased substantially since entry of the original decree.

In January 2016, a jury awarded Husband $27.7 million dollars in damages in his lawsuit against the airplane engine manufacturer. However, the District Court granted the manufacturer’s post trial motion for judgment as a matter of law. That motion was affirmed by the Court of Appeals and is now pending at the Supreme Court, which heard arguments on March 5.

Husband again moved to terminate his spousal maintenance obligation in 2017. The District Court denied Husband’s request, but retained jurisdiction of Husband’s personal injury claim insofar as any marital interest arose therefrom. Husband appealed.

Wife argued that the District Court properly retained jurisdiction over Husband’s personal injury action as “an extension of its continuing jurisdiction of spousal maintenance.” The Court of Appeals disagreed.

Judge Heidi Schellhas reiterated that “property settlements are final and may be modified only upon a showing of fraud, mistake, newly discovered evidence or other extraordinary circumstances.”

More specifically, the Court of Appeals noted that although Husband was injured in a plane crash prior to the dissolution of his marriage to Wife, Wife stipulated to the division of the parties’ assets “without reference to…or reservation of” any interest she may have had in Husband’s personal injury action.

Because the division of the parties’ property became final upon entry of the divorce decree, with no timely appeal thereafter, the Court of Appeals reversed.

Judge Schellhas opined that “reversal does not preclude Wife from arguing the existence of a substantial change in circumstances in a maintenance-modification motion in the event that Husband recovers a substantial personal injury award.”

We find it rather surprising that the personal injury action wasn’t referenced in the parties’ divorce decree. The opinion suggested that Husband’s injuries included amputation of his left leg, reconstruction of his right ankle, facial disfigurement, and a traumatic brain injury.

The lesson from Kedrowski? Always treat potential tort claims an “asset” for inclusion in a divorce decree. In this instance, Wife’s attorney may have dodged a significant malpractice claim thanks to JNOV.