Where a prenuptial agreement spells out what spousal support a wife is to receive upon divorce, is temporary spousal support included in that amount? No, says our court in Cangemi v. Cangemi. The parties married in 1996, at which time the husband had a net worth of just north of $8 million, compared to the wife’s $33,000. The prenup provided the wife was to receive $5,000 a month for one year in spousal support upon the journalization of a divorce decree. She filed for divorce three years later, and the court ordered temporary support of $6,000 a month. It took six years until the final decree, and in the interim hubby coughed up enough in temporary support to fund a small South American republic. His argument that the temporary support should have counted toward his final tab fell on deaf ears, and for good measure, he had to pay $15,000 toward his ex-wife’s attorney fees. Ain’t love grand?

That’s a bit too flippant, actually. (Flippant? Moi?) Judge Cooney’s opinion – joined in by Judges Karpinski and McMonagle – was meticulously thorough, and there’s no real basis for quibbling with the result: the decision with regard to temporary alimony is supported by the case law, and most of the specific determinations, some of which went against the wife, were essentially dictated by the language of the agreement.

Somewhat interesting, though, is the opinion’s assertion that “a strict application of the law of contracts is not appropriate, rather, the terms of the agreement and the intent of the parties at the time of execution of the agreement is of prime importance.” It’s not entirely clear what that phrase means; obviously, “the terms of the agreement” and “the intent of the parties” are part of the law of contracts. There’s language in other decisions, such as the Supreme Court case of Fletcher v. Fletcher that prenups are “contracts and generally the law of contracts applies to their interpretation and application.”

To be sure, they’re not treated the same as the ordinary business contract, because of the fiduciary relationship of the parties, and there’s no question that the alimony provisions, at least, can receive heightened scrutiny for unconscionability. That’s one reason that spouses who rely on such agreements often find that they don’t offer nearly the protection originally envisioned. It’s possible that some creative lawyers might seize on the remark in Cangemi to argue that the divorce court’s equitable powers give it even greater ability to fashion a remedy not entirely, or even closely, consistent with the provisions of the prenuptial agreement.

A somewhat unusual result the other day from the 8th District in State v. Person. The police had been using a confidential reliable informant to conduct a “buy-bust” operation: the CRI, with a marked bill, would approach the target and make a buy, at which point the police would swoop down and arrest the dealer. One of the buys was with someone on a bike; the bicyclist then took off, but shortly thereafter, the police found the defendant sitting on a bike, and arrested him. They found neither drugs nor the marked money on him.

At trial, the detective testified that he could identify the defendant as the man who’d sold the drugs to the CRI, although there was some discrepancy in that testimony: at one point he stated he’d been 400 feet from the transaction, and later testified that the distance was 1/10th that.The CRI, of course, was nowhere to be found: the state had refused to disclose his identity, and he was not called as a witness. One detective testified that the CRI had in fact identified the defendant, and the objection to that was sustained. Despite that, the prosecutor asked the second detective whether the CRI had identified the defendant. Although that objection was also sustained, the jury apparently experienced some confusion over it: during deliberations, they sent a question asking “Was it officer Hall who made the ID, or both Officer Hall and the CRI?”

The prosecutor also asked the detective whether the defendant had been given his Miranda rights and, for no apparent purpose, asked if the defendant had made a statement. He had not.  Judge McMonagle, with Judge Karpinski concurring, felt that this was sufficient evidence of error and prosecutorial misconduct to warrant reversal. Judge Kilbane dissented.

I say “unusual result” because a reversal for prosecutorial misconduct of this nature – of any nature, really – is as rare as an insightful comment from Jessica Simpson. Even the majority conceded that a reversal for an “isolated incident” of a Doyle v. Ohio violation – eliciting that defendant had exercised his Miranda rights – is rare.  In fact, one of the more helpful things, from the defense attorney’s viepoint, is the court’s handling of State v. Ervin, one of the first to enunciate the “isolated incident” view.  The Person court notes that in Ervin and its progeny, the evidence of guilt was overwhelming, unlike the case before it.  It noted further that “Ervin should not be read or understood to stand for the proposition that the State gets one free constitutional violation of a defendant’s Fifth Amendment right not to be compelled to be a witness against himself.”

One shouldn’t make too much of Person; obviously, the court was influenced by the closeness of the case, and the prosecution’s attempt to get into evidence the CRI’s identification, as well as the jury’s obvious reaction to that evidence.  The result is a welcome one, though.  After all, the prosecutor’s inquiry into the defendant’s exercise of his Miranda rights was a constitutional violation, and in a case like this, it’s hard to see how any error would be harmless beyond a reasonable doubt.

At any rate, if you’ve got an appeal with a Doyle issue, this is a good case to have.

On Wednesday, I had a post about the 8th District’s decision in in re J.C., discussing the portion of the decision concerning access to agency records of child abuse in a custody proceeding.  The court rejected the father’s attempts to obtain the records, finding that his allegations were “of a kind that is, sadly, all too common in custody cases.”

That wasn’t the only thing sad or common about the case.  The father had filed a motion seeking custody because of alleged visitation violations, the mother had then filed a motion to relocate her and the children to California, and then had done so before the court could rule on it.  The trial court granted temporary custody to the father, then ultimately reversed itself and gave the children back to the mother in California. 

To its credit, the 8th District reversed, finding that the lower court had given insufficient consideration to the devastating effect that relocation would have on the father’s parenting rights, and remanded the case for that purpose.  Judge Calabrese, concurring and dissenting, would have gone further:  he would have awarded the father custody.  As he put it,

The crux of this case is the best interest of the children and whether the harm outweighs the advantages of the change in environment. In my opinion, what is in the best interest of any child is to have a relationship with both parents.

The mother in this case blatantly interfered with the children’s  relationship with their father by moving them across the country, making shared parenting impossible. I find it hard to believe that she had the best interest of her children in mind when she violated the terms of the custody agreement. Her self-absorbed and spiteful actions amount to “harm” that outweighs any sunshine California may have to offer these children. They need their mother and their father. If the mother chooses to relocate herself to California and leave her children behind in Ohio to be raised by their father, so be it. She is free to move wherever she likes, but she is not free to violate a shared parenting plan by taking the children away from their father without the court first considering what is in the best interest of these children.

As far as I’m concerned, that’s right on the money.

Happy Father’s Day.

I want to spend a beautiful day like this writing this stuff about as much as you want to spend it reading it, so let’s get to the Weekly Roundup so we can all get outdoors and enjoy the sunshine.

RC 3119.79(A) provides that if a party asking for a modification of child support shows that the obligation would increase or decrease by 10% from the previous order, it constitutes a change of circumstances allowing a change in the order. The 10th District holds that this isn’t a prerequisite: the court can modify support even if the 10% rule isn’t met… 10th District also upholds trial court’s grant of default judgment and dismissal of defendant’s counterclaim as sanction for defendant’s consistent failure to attend deposition… 9th District finds that trial court doesn’t abuse discretion by granting lifetime alimony in a marriage of “long duration,” 26 years in this case… 8th District holds hearsay rules aren’t applicable in small claims proceeding. Case involved veterinary malpractice, and could serve as a manual for how magistrates shouldn’t conduct a hearing…

3rd District determines that trial court didn’t do sufficient job of determining that defendant should be allowed to represent himself; good discussion of steps court should take in accepting waiver…12th District says that theft by deception and receiving stolen property are allied offenses, when it’s the same property; case involved a money order which defendant claimed he received “after he responded to an email soliciting his help in claiming money from a Nigerian bank”… 3rd District holds that even if sobriety tests are not properly given, arrest is valid if the “totality of the circumstances” shows probable cause… 9th District holds that the amendment of the DWI statute to provide a 20-year “lookback” period isn’t unconstitutional as an ex post facto law.

And if you think that Cuyahoga County is the only place where the “name game” gets played in judicial elections, check out the result of this race in Los Angeles: