Bay Area Green Business

Earning Capacity and Immigration Status in California Child Support Calculations - In re Marriage of Parker

November 12, 2014, by

Decisions about whether and how much child support a divorcing spouse or co-parent should pay often depend on both how much money he or she makes or could make. The latter factor, usually referred to as "earning capacity," can be difficult to quantify in many cases, and even more so when the parent's immigration status prevents them from legally working. The state's First District Court of Appeals recently considered one such case.

money-trap1-771882-m.jpgHusband filed for divorce from Wife in 2011, and the parties agreed the following year to a stipulation where Wife retained sole physical custody of the couple's only child. The stipulation also gave Husband visitation rights but didn't require him to pay child support. In 2013, Husband filed a motion seeking shared physical custody and for the Wife to pay him child support. Husband explained to the court that he was an undocumented immigrant who had overstayed his visa. Because of this status, Husband said he wasn't able to work as a traditional employee. Nevertheless, he said that he'd worked as a carpenter for roughly 20 years and was planning to be a self-employed carpenter.

At the time, Husband said he was making about $750 per month. Opposing the child support request, Wife said the trial court should impute to him an income of $2,600 per week based on past earnings. She pointed to a 2011 income declaration in which Husband said he was making $65 an hour as a carpenter and working 40 hours per week. Instead, the court imputed a "minimum wage earning capacity" to Husband and awarded him 15 percent custody of the child. The court also ordered Wife to pay Husband $54 a month in child support. Husband appealed the decision.

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California Court Says Child Entitled to Lawyer in Her Parents' Custody Spat - In re Marriage of Metzger

July 7, 2014, by

If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant's right to an attorney, and, of course, the person's right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California's Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute among parents.

my-shadow-937478-m.jpgHusband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.

Over Husband's opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney's retainer, an amount the trial judge said should ultimately be reimbursed from the spouses' community property. The trial court said the move was justified by Wife's concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and "needs someone to speak for her."

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Jersey Boy Awarded Half of His Own Life Insurance Policy by California Supreme Court - In re Marriage of Valli

July 2, 2014, by

Celebrities: they're just like us, well sort of anyway. Among other things, that means that they often encounter the same types of issues as regular folks in divorce cases.

microphone-1382165-m.jpgCalifornia is a community property state, in which property acquired by a spouse during the marriage, except for gifts or inheritance, is shared equally between the spouses in the event of divorce. That might seem like a pretty clear-cut rule, but divorcing spouses often resort to the courts to decide disputes over how certain property should be characterized or divided. The California Supreme Court recently took on the issue as it applies to a life insurance policy taken out by one spouse - legendary singer Frankie Valli - for the benefits of the other.

Husband and Wife separated in September 2004 after 20 years of marriage. More than a year before, Husband used money from a joint bank account to purchase a $3.75 million life insurance policy. He named Wife as the sole owner and beneficiary of the policy and paid premiums with funds from the joint bank account.

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Untangling Shared Business Interests in California Divorce Cases - In re Marriage of Greaux and Mermin

June 24, 2014, by

Anyone who has been through a divorce probably already knows that it can be a stressful, complicated, and emotionally and financially draining experience. The legal issues involved may be even more complex in situations where the couple work together running a business. In In re Marriage of Greaux and Mermin, California's First District Court of Appeals explains that the spouse who is ultimately awarded the business has the right to protect it from being devalued by the other spouse. In some cases, that may include seeking a court order to stop the spouse from starting a competing business.

stapling-machine-1440644-m.jpgIn this case Wife filed for divorce in 2009. During the six-day trial that occurred two years later, one of the few remaining disputed and unresolved issues was what to do with the beverage company they owned and jointly operated during the marriage. The company distributed and sold a type of rum.

The business was community property and the judge determined that both spouses brought "unique talents to it." Husband had little education, training, or experience running a business, but the judge said his considerable effort and determination were "crucial" to the business' success. Husband also developed relationships with others in the industry whose experience and personal relationships were very helpful to the business. Wife, on the other hand, had marketing and sales skills also crucial to the business, and her family history in the Caribbean served as the "brand story." The trial judge also noted that Wife had a deep understanding of the rum, its ingredients, and the process for making it, and had qualified as an official industry "taster." She was designated in company investment materials as the "face of the brand."

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Sanctions, Fees Ordered for Spouse who Concealed Income in Divorce Case - In re Marriage of Vazquez

May 12, 2014, by

Trust is the cornerstone of any marriage, and the lack of it permeates a great many divorces. In In re Marriage of Vazquez, California's Fourth District Court of Appeal explains that lying about income and other information in a divorce proceeding can be very costly.

the-truth-shall-make-you-free-1437041-m.jpgHusband and Wife divorced in 2008 and the court ordered Husband to pay Wife an unidentified amount of monthly child support. Wife returned to court four years later, however, arguing that Husband committed perjury by purposely misstating his monthly income.

During the 2008 proceedings, Husband asserted that he earned about $9,550 a month. Three years later, however, Wife obtained his 2008 income tax return while seeking an order to force him to contribute to their child's orthodontic expenses. The trial court granted Wife's motion to compel Husband to respond to a demand for inspection of documents relating to his finances, including the tax returns, which showed that Husband made nearly $21,000 a month in income during the time of the divorce. The trial court set aside its previous child support order and entered a new order requiring Husband to pay more in current child support as well as $25,000 in sanctions and more than $36,000 in attorney fees.

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Divorce Lawyer Karma

April 21, 2014, by

San Ramon family law attorney, Mary Nolan, was recently sentenced to two years in federal prison for unlawful interception of telephone communications and tax evasion. Ms. Nolan illegally intercepted telephone conversations by accessing a listening device that now-imprisoned private investigator Christopher Butler had installed in a victim's vehicle. Butler hired women to approach men at bars, drink with them and set them up for drunken-driving arrests that their wives could use against them in divorce cases. Two of the men whose wives were represented by Nolan have sued her, Butler and others for damages. Nolan also hid $1.8 million in income from the Internal Revenue Service to avoid paying $400,000 in taxes between 2005 and 2009, and admitted to obstructing justice by submitting false contracts to the IRS during an audit.

Mary Nolan was my opposing counsel, my client's wife's attorney, in my first divorce litigation. At the time I had no idea about her ethical challenges but I did know that she was not very nice. (That is very polite understatement.) So not surprisingly, given her apparent challenges with ethical behavior, the matter was a nightmare for my client and me. Rather than trying to help the clients work out reasonable solutions for a negotiated settlement, she engaged in abusive discovery and trumped up domestic violence allegations in order to reduce my client's time with his children and more child support for her client. Essentially, she did everything she could to destroy, rather than helping to restructure the family. After several months of this nightmare I told my client that if he was going to survive with this ogre on the other side he needed to fire me and retain a seasoned and aggressive litigator. And I told myself that if I was going to survive in this business that I needed to find another way to practice law.

And that is exactly what I did. I found Collaborative law and mediation and learned that there is another way, a far superior way, and never looked back. Now I offer divorcing couples alternatives to the court system, Collaborative Law and Mediation, to help them create positive, mutual agreements and divorce without the emotional and financial costs of litigation.

It is nowhere near as lucrative as Ms. Nolan's nefarious law practice, but it feels good to help people solve their problems, rather than helping to destroy their families.

Divorce, Spousal Support and Cohabitation - In re Marriage of Woillard

March 30, 2014, by

In most divorce cases, the terms of any spousal or child support obligation are set forth in either a court order or an agreement between the parties. Often, that includes a stipulation that spousal support payments will stop when the person receiving them remarries or otherwise "cohabitates" with another person. In In re Marriage of Woillard, California's Second District Court of Appeals makes clear that the term "cohabitation" is interpreted fairly broadly.

holding-hands-207150-m.jpgHusband and Wife divorced in 1990 after what the Court called a "lengthy" marriage. Under the terms of the divorce judgment, Husband was required to pay wife $4,000 a month in spousal support until Husband or Wife died or until she was remarried or began cohabitating with an "unrelated male." In 2011, Husband filed an action seeking to terminate the spousal support payment, arguing that Wife had been cohabitating with her boyfriend, Keith, for the last six years. A trial court agreed, concluding that the spousal support agreement expired in 2005 and ordering Wife to pay Husband back $256,000 in support payments that she shouldn't have received.

The Court noted that Wife and Keith were engaged in 2004, vacationed and attended family events together and "shared significant resources" through the course of their relationship, which began three years earlier. Wife loaned Keith $30,000 - an amount he later paid back - and he often stayed at her home, where he kept clothes and other personal belongings and received his mail. The couple kept a joint checking account related to expenses and rental income for two condominiums that Wife owned. They also jointly purchased a boat in 2005, securing a loan for it by using Wife's home as collateral. Keith slept on the boat when he didn't stay at Wife's house.

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The Role of Retirement Benefits in California Divorce Cases - In re Marriage of Green

March 6, 2014, by

Retirement benefits are an important piece of the puzzle in transitioning comfortably to life after work. And often, they are the subject of intense debate in divorce proceedings. In In re Marriage of Green, California's Supreme Court considered what to do with retirement benefit credits made available based on service before the marriage, but paid for with community money.

fire-extinguisher-483491-m.jpgMr. Green began working as a firefighter in 1989 and married his wife, Ms. Green, roughly two years later. He continued to work for the Alameda County Fire Department over the course of the marriage and earned retirement benefits through the California Public Employees' Retirement System (CalPERS). Mr. Green also exercised his option to purchase four additional years of service credit for retirement purposes based on his stint in the U.S. Air Force before joining the Department. Under this option, Mr. Green agreed to pay bi-monthly installments of $92 for 15 years.

The Greens separated in October 2007. At that point, Mr. Green had paid more than $11,400 in payroll deductions toward the additional retirement credit. The payments were scheduled to be completed in July 2017.

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Follow Procedural Rules in California Divorce Cases, Or It Might Cost You Your Case - In re Marriage of Kosharek

February 25, 2014, by

I've long believed that Californians thinking about divorce and grappling with related issues like child custody and support consider avoiding the time, cost and stress associated with the traditional judicial system by exploring alternatives like mediation and collaborative divorce. But sometimes, well actually very rarely, that's just not possible. When proceeding in court, it's vital to remember that there are a wide range of procedural rules that you must follow closely or otherwise risk losing your case. The First District Court of Appeals' recent ruling in In re Marriage of Kosharek is just one example of that risk.

please-stay-on-path-578462-m.jpgMs. Kosharek sought to modify her former husband's child support obligation in November 2011. She argued that Mr. Egorov didn't spend as much time with their two children as had been anticipated in the original custody and support order issued at the time of their divorce. The order had assumed a roughly 50-50 split of time between the parents and crafted the support award accordingly. Egorov opposed the modification.

After hearings in August and November 2012, a trial judge issued a ruling finding that the children spent only about 22 percent of the time between March and August of that year with their father and ordered that he pay additional child support for this time as a result. The judge further found that the children spent equal time with their parents going forward from September 2012 and re-adjusted the child support obligation accordingly.

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Court: Client List, Bonus Money is Community Property - In re Marriage of Finby

February 20, 2014, by

Bonuses are a common and often significant form of compensation for a number of people who live and work in California, particularly those in certain professional fields. In In re Marriage of Finby, the state's Fourth District Court of Appeals explains that all or some of the money is likely to be deemed community property to be divided among spouses in the event of divorce.

untitled-1237498-m.jpgHusband and Wife married in 1985 and separated 15 years later in February 2010. Wife worked as a financial advisor during the course of the marriage and was employed by UBS before signing a contract with Wachovia in 2009. The company was later purchased by Wells Fargo.

Wife's contract with Wells Fargo provided for a variety of bonuses, including a "transitional bonus" of more than $2.8 million. The bonus was premised on the fact that she had developed a list of clients - referred to as her "book of business" - whose investments were worth more than $192 million at the time and whose accounts were expected to go with her to the new job. Under the terms of the contract, the bonus was conditioned on Wife's staying at Wells Fargo for more than 9 years and maintaining a gross production level of over $1.12 million, as determined on an annual basis. Wife opted to obtain the complete amount of the bonus immediately, however, and signed a loan agreement with her employer under which it agreed to forgive $27,700 each month over the course of 112 months. If Wife stopped working at any time during the period, the company had the right to demand the entire amount remaining on the bonus/loan.

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Spouses in Two States: Which One Should Hear Their Divorce Case? In re Marriage of Malcolm

January 31, 2014, by

We live in a highly mobile society. That means it's no longer out of the ordinary for spouses who are married in one state to be living in another when they later separate and divorce. Nor is it unlikely for spouses to be living in two separate states when one or both files for divorce.

usamap-jpg-1417432-m.jpgForum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is substantially better suited to hear the case. In In re Marriage of Malcolm, the state's Sixth District Court of Appeals explains how the legal doctrine applies in California divorce cases in which the spouses are located in different states.

Mr. and Ms. Malcolm married in Carmel, California in 1999. They later had three children, with whom they primarily resided in Aspen, Colorado. They paid state income taxes in Colorado, held driver's licenses issued by the state and were also registered to vote there. They also kept ties in California, however. The Malcolms founded a company in Sunnyvale, where Mr. Malcolm worked five days a week. Ms. Malcolm served as the company's general counsel, but worked primarily from Aspen. The family also owned two homes in California, in Los Altos and Carmel. Mr. Malcolm, a licensed pilot, maintained a hangar and apartment at the Monterey Airport, where the couple kept their four planes.

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Want To Save on Attorney's Fees? Try Unbundled Legal Services

January 28, 2014, by


For those who must litigate and who cannot afford to hire an attorney to represent them or who want to be in control of their own case, unbundled services can be a great solution.
Unbundled legal services, also known as limited-scope services, are legal services that are broken down and offered as individualized legal services, instead of "bundled" legal services--which generally means full legal representation. An attorney offering unbundled legal services makes it possible (and financially feasible) for someone to receive vital legal assistance without incurring great financial detriment.

In limited scope or unbundled representation, an attorney and client agree to limit the scope of the attorney's involvement in a lawsuit or other legal action to specific items, leaving responsibility for other aspects of the case to the client in order to save the client money.
There are pros and cons to this approach. The pros for the client are saving money on attorney's fees and possibly getting the case/issue resolved at a faster pace. The cons are that there are oflten pitfalls for those untrained in the law, so if a matter is complicated or if you feel it is too complicated for you, then perhaps full representation is warranted.
TYPES OF UNBUNDLED LEGAL SERVICES
• Consultations
• Legal and Court Coaching
• Document Review
• Preparation of Documents

For example, if you are getting a divorce and you only want an attorney to help prepare the documents that you will need to file, the document preparation is an unbundled service.

Quite often, folks do their own divorce but find that the paperwork, particularly at the end of the process, is more burdensome than they had anticipated and find unbundled services to complete the process to be very helpful.

In another situation, one may derive great benefit from having an attorney draft a declaration as part of a Request for an Order or a Response to a Request for an Order. It is very important that these declarations be as clear and concise and as well written as possible while also conveying the relevant information that is important for the judge's decision. Relevance is key, the only information a judge wants to see is information that is relevant to the issue to be decided and it is common for non-lawyers to add information that may be very important to them, but is not relevant in terms of the legal issue to be decided. Judge's have volumes of material to read before hearing a matter and don't like to have to read material that is not relevant and/or not well written. It is to a litigant's benefit to provide written material that will not irritate the judge.

The Law & Mediation Office of Lorna Jaynes offers unbundled services to suit your needs and will help you evaluate whether using an unbundled service will work for you. Our compassionate services will provide you with the information you need to move on with your life, so contact us to learn more about these services.

Co-Parenting During the Holidays

December 2, 2013, by

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families - the potential for conflict is much greater. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around the holidays.

But for the sake of the kids you have to share it. And here are tips to
 help your holiday season be filled with merriment - not resentment.

Make a plan

 If you don't already have a holiday schedule, and do it now, the earlier the better. You don't want to create anxiety for the kids about what they're going to be doing at Christmas. Sit down with your ex and a calendar to determine how you will share time. The plan can be fluid and can change, but a basic structure reduces miscommunication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year - odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. It might also be worthwhile to review the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it's not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids

. As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: "What do you think they would really enjoy? What would work for them?"

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Penny Barton, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in San Jose with their dad while Barton took a job in Los Angeles. Penny did homework with them every night over the phone and flew back to San Jose for six to eight days every month. 

Because Christmas was so important to the girls the parents agreed that for two weeks every Christmas, Penny would camp out in her ex-husband's basement - once with her boyfriend in tow. "I sort of took over and did Christmas the same way we did when we were married," said Barton. It wasn't easy being a guest in her former home, and her need to impose her way of doing things on her ex's household created tension. "But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other didn't much matter," says Barton. "We didn't want them to experience the tension kids who are pulled between two households feel."



And although children's preferences should always be an important consideration, it is also important not to give them too much input into co-parenting decisions. The burden of choice is problematic for kids because they know their choices will make one of the parents unhappy. And for most children, that is not a good place to be. Kids will often tell each parent whatever they believe he or she wants to hear. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.



Create new traditions. 

Your holiday celebrations may change after divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don't make the kids feel bad that they missed out on something when they come home.

 And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 



Stay busy. 

If you're going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful. 

It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that's needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree on the holiday plan, consider a mediator. A mediator is like a referee or better yet, your kindergarden teacher: someone who will help you share and play nicely in the sandbox, or in this case the mediator's office.

As a mediator, it is important to practice what we preach and walk the talk. So, I invite my husband's ex-wife and her husband over for Christmas so that their kids can be with both of their parents. But sadly, this is not a viable solution with my own ex-husband, so we have to share the kids separately. Every family is different but with an open mind and an open heart and a willingness to try to understand each other, parents can create positive solutions.

For more information, visit us at www.lornajaynes.com

Covering Children's College Costs in California Divorce Proceedings - In re Marriage of Humphries

December 2, 2013, by

In California divorce cases, spouses often want to determine not only basic child support issues, but also how to cover future expenses related to their children's higher education. In In re Marriage of Humphries, the Fourth District Court of Appeals addresses a dispute about college expenses.

graduation-cap-993663-m.jpgThe Humphries married in 1990 and had three children before separating 16 years later. Ms. Humphries obtained an emergency protective order against her husband under the Domestic Violence Protection Act in 2006. The couple later entered into an agreement in which Ms. Humphries agreed to drop the protective order and provide Mr. Humphries with child visitation rights. In turn, Mr. Humphries agreed that his wife and children would remain in the family's residence and that he would pay various forms of support, as well as paying for the children's private school education. Mr. Humphries further agreed for each child to "pay for four years of undergraduate education at a certified university of the child's choice, at the rate of a school in the UC system in California" plus related expenses, provided that the child was a full-time student and maintained at least a 2.5 grade point average.

Ms. Humphries subsequently filed for divorce from her husband in 2008 and also sought an order requiring him to pay spousal and child support. The parties later entered a stipulated agreement providing that Mr. Humphries would "continue to support [Ms. Humphries] and the children." Following additional litigation, they entered another agreement, this one stating that Ms. Humphries would be named joint custodian on three separate bank accounts - one for each child - and that the funds would be used to cover the children's college tuition and expenses.

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Court OKs Custody for Mother Living with Nudist Grandparents - In re Marriage of Meyer

November 13, 2013, by

California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child's physical, mental and emotional security and development. Recently, the state's First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was "no."

888677_sexy_feet__1.jpgIn re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family's home in Castro Valley to her mother's apartment in Fairfield.

At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.

David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy's mother and her boyfriend were nudists and lived in "Section 8" public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.

The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls' current living arrangement was "anything but wholesome or presented any type of danger."

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