PIN NUMBER: ___________________

Family Law
FINAL EXAMINATION
Prof. Mayo

December 15, 2000

Three hours

1. Be sure to place your exam number/PIN number on all blue books and on this exam booklet.
2. This is a three-hour, open-book examination. You may consult only the assigned texts (casebook, supplement, Texas Family Code pamphlet), class handouts, your class notes, and your own outline (including an outline that you prepared with your study group, if any).
3. The exam consists of four parts, all essay questions, with a suggested time of 60, 45, 45 and 30 minutes, respectively. All parts should be answered in a bluebook.
4. If you believe that insufficient facts are provided in order to resolve an issue, identify explicitly those additional facts that would be necessary for your analysis.
5. Unless otherwise indicated, assume that all relevant jurisdictions have enacted the Uniform Interstate Family Support Act, Uniform Child Custody Jurisdiction and Enforcement Act, and the Uniform Parentage Act. As to all other matters, assume that the relevant state’s law is the same as Texas, unless otherwise stated in the problem.
6. If you are going to graduate in December 2000, please indicate that on the cover of your first blue book.
7. At the end of the exam, please be sure: 
   • to turn in all blue books that contain your answers;
   • to turn in this exam pamphlet; and
   • to sign the sign-out sheet at the front of the room.

Horace and Winifred Sturm were married and infertile. They badly wanted to have a child that was genetically related to both of them, so they moved to Oklabama, where surrogacy contracts actually work to cut off the surrogate's parental rights under an interesting decision of the state Supreme Court.

The question in that case, styled A.B. v. C.D., was the parental rights of the husband, wife, and surrogate after an in vitro surrogacy. The child was genetically related to the husband and wife; the surrogate was not genetically related to the child but did gestate it and give it birth. Then the surrogate refused to surrender the child to the husband and wife. The court held that the surrogate was not a parent and that the husband and wife were both parents, and remanded with instructions to grant full legal and physical custody to the husband and wife. To reach this decision the court depended entirely on state statutes and the surrogacy contract. It construed the following language in the Oklabama Parentage Act to require a holding that child could have only one legally recognized mother:

The parent and child relationship is the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.

The court then held that both the surrogate and the wife had presented legally adequate evidence of maternity, and then held that the intentions of the parties as manifested in the surrogacy agreement governed which of the women should be recognized as the exclusive legal mother. The court did not hold that the husband and wife were entitled to enforcement of the agreement, but that the law recognized only the husband and the wife as the child's parents. No subsequent case has disturbed this holding, but within two weeks after A.B. v. C.D. was handed down the governor and the legislature amended the Parentage Act, adding the following:

Provided, however, that surrogacy contracts that violate public policy are void, Oklabama also maintains an Access to Abortion Act which declares in its first section: It is the policy of this state to promote live birth and to discourage abortion.

Horace and Winifred entered into a surrogacy contract with Sigourney King. It included the usual terms: Sigourney would undergo a pregnancy, at the end of which she would surrender the child to the Sturms and take all legal steps to terminate her parental rights; upon her completion of those services, the Sturms would pay her $10,000. The contract provided that Sigourney would abort the pregnancy if both Horace and Winifred agreed on that course of action for any reason after an amniocentesis test in the fifth month of the pregnancy.

Pursuant to the contract, Horace donated sperm, Winifred donated eggs, and the Family Value-Added In Vitro Fertilization Center implanted the resulting zygote in Sigourney's uterus for gestation.

Also under the contract, Horace, Winifred and Sigourney moved in together. (Horace and Winifred insisted on this term because they wanted to be sure that Sigourney had good prenatal care and obeyed her doctor's instructions, and Sigourney agreed because it provided her with housing.) Unfortunately, they selected the beach town of Galvedestin as their abode. Galvedestin has a zoning ordinance that provides:

Provided that no more than ten individuals live in a single dwelling unit, any number of individuals related by blood may live together in a single dwelling unit, and any number of unrelated individuals may live together in a single dwelling unit. No married person may live with his or her spouse in any single dwelling unit.

The legislative history of this unusual ordinance indicates that its purpose is to discourage marriage and to ensure that the town has a population and a culture favoring diversity in family structure.

When it came to the Town's attention that Horace and Winifred were living together in a single dwelling unit, it moved in state court for an injunction evicting one of them. Horace and Winifred defended the action on federal constitutional grounds.

The stress of the eviction case and of living in Galvedestin, where all their family values were held in open contempt, began to strain their relationship, however, and they decided to that it was a bad idea for them to have a child right now. They waited until Sigourney had her amniocentesis test (which indicated no genetic problems in the pregnancy) and then informed her that they wanted her to have an abortion. Sigourney refused. Horace and Winifred sued in state court for a declaration that they were the legal parents of the fetus; a declaration that they had the right, under the federal constitution, to abort it; and an injunction requiring Sigourney to undergo the procedure. Sigourney counterclaimed seeking a holding that any court order giving effect to the contract term requiring her to have an abortion would violate her rights under the federal constitution and a declaration that, when the child was born, she would be its parent.

By the time Horace and Winifred filed their complaint, the fetus was viable. The court consolidated the zoning case and the surrogacy case.

Sigourney moved to Mesquito (a city in Oklabama dedicated to traditional family values) and, while the court dithered about setting a date for trial of the two cases, she gave birth to a son, Nosmo. Because she drank so heavily during last weeks of her pregnancy, Nosmo was born with badly compromised physical health and a prognosis that his mental development would be severely affected. But she coped, caring for Nosmo to the best of her ability.

Horace and Winifred tracked down Sigourney's address, however, and paid her an angry visit. While Horace distracted Sigourney, Winifred grabbed Nosmo and escaped with him. Horace and Winifred returned to Galvedestin with Nosmo, where they set out to raise him in a traditional family unit. But they were soon overwhelmed by Nosmo's health and developmental problems, and had him committed in Grimville, a state hospital for physically and mentally disabled infants. Under the Infant Health Statute, which governs the admission of infants to Grimville, all that is required is that a "parent" request hospitalization of the child and, as part of the application, submit his or her own psychotherapist's written opinion that acute physical or developmental problems of the child have rendered the parent temporarily unable to care for it. Both Horace and Winifred fulfilled these requirements, so Nosmo was committed for one year.

Sigourney amended her complaint in her contract action counterclaim, alleging the facts just recited and adding a new claim, asserted against Grimville's director, that the state Infant Health Statute violated Nosmo's federal constitutional rights. The court swiftly held that Sigourney lacked standing to assert Nosmo's rights, and appointed a guardian ad litem for the child, instructing the guardian to make the strongest possible constitutional attack on the Infant Health Statute.

Horace and Winifred amended their complaint in the contract action; now they sought to be declared Nosmo's parents and to obtain full legal custody of him. They also sought a holding that the contract term relating to an abortion was enforceable, and that the remedy for its breach should be contract damages. They prayed for $10,000, a sum equal to what they would have paid Sigourney under the contract if there had been no abortion demand and no refusal to obtain an abortion, and if otherwise all parties had fully performed the promises they made in the contract.

Judge Solomon is the trial judge in this matter. At a scheduling conference she ruled that she would not allow briefing or a hearing on the best interests of the child until all the legal questions in the two cases were decided.

You are clerking for Judge Solomon. She says to you, "I really want to hold that zoning ordinance constitutional because I believe in local control over cultural matters. So give me the strongest argument you can on that side, and then evaluate its adequacy frankly. On the surrogacy claims, I want you to assume that it would be state action for a court to enforce the contract's abortion clause either by an injunctive or a damages remedy. On that assumption, identify all the issues in the surrogacy part of the case and evaluate the arguments on either side. You'll find all the cases you need in Professor Mayo’s Family Law course materials."

Part II (45 minutes)

In 1992, Alan and Betsy met in Houston, Texas, and began dating. Betsy became pregnant. Alan was then transferred by his employer to Decatur, Illinois, and Betsy followed him there. They were married in Decatur, and a few months later Betsy gave birth to a child, Charlie.

Alan and Betsy continued to live in Decatur. Each year during the holiday season, they would return with Charlie to Houston and spend two weeks visiting their friends and family.

In 1996, Alan and Betsy divorced in an action brought in court in Decatur. In the divorce, Betsy was awarded primary custody of Charlie, and Alan was awarded visitation rights and required to pay child support. Betsy and Charlie immediately moved back to Houston; Alan continued to live in Decatur. Each year after the divorce, Alan returned to Houston at Christmas and again during the summer to take Charlie back to Decatur for the visitation periods granted in the divorce decree.

In December 1999, Alan lost his job. He moved from Decatur to Oshkosh, Wisconsin, where he now resides and where, in January 2000, he obtained a new job at a lower salary than he was earning in Decatur. He has not made any child-support payments since December 1999. He still intends, however, to exercise his rights to take possession of Charlie during the periods set out in the Illinois divorce decree.

In July 2000, Betsy obtained a new job in Redwood, California, and moved there with Charlie.

It is now December 2000, and Betsy has come to you for help. Assume for purposes of this question that all four states – Illinois, Texas, Wisconsin, and California – have adopted the Uniform Interstate Family Support Act and the Uniform Child Custody Jurisdiction and Enforcement Act.

A.

What procedures are available to Betsy to enforce future payments under the child support order? Explain fully.

B.

The courts of which state(s) have jurisdiction to collect the arrearages sought by Betsy? Explain fully.

C.

In which jurisdiction(s) can Alan petition to have the support order modified? What will Betsy's best arguments be against his jurisdictional choices? Explain fully.

D.

In which jurisdiction(s) can Betsy petition to have the custody order modified? What will be the consequence of each choice? Explain fully.

Harry and Sally have been married for eleven years and have resided in Texas throughout their entire marriage. Harry is a 35-year-old high school graduate working for a residential landscape maintenance firm as an independent contractor. He earns $42,000 a year and has no fringe benefits.

Sally is 34 years old. She did not graduate from high school and, except for a brief period of employment in a clerical job before the birth of her first child 16 years ago, she has never been employed. She possesses no particular skills that would make her employable except in minimum- wage jobs.

Harry and Sally have one child of their marriage, aged 8. Sally is the managing conservator of her two children, aged 12 and 16, from a prior marriage. She receives $1,000 per month in child support from her ex-husband. Harry and Sally agreed at the time they married that Sally would stay home, keep house, and care for her children.

Harry and Sally rent their home. Their property consists of the following: two automobiles encumbered by outstanding loans, the balances of which are roughly equal to the values of the vehicles; household furnishings; $4,500 in savings, accumulated from Harry’s employment during their marriage; and $500 in a checking account. They owe about $5,000 in credit card debt.

Six months ago, Harry began having an extra-marital affair with another woman and moved out of the marital home to live with the other woman. Since Harry moved out, Sally has made no effort to get a job but, to enhance her employability, she has entered an adult education program aimed at obtaining a high school diploma.

Sally has filed (in Texas) for divorce and is seeking, among other things, an award of alimony. For purposes of the following questions, assume that the marital property (including assets and liabilities) will be divided equally.

A.

(1) Is Sally eligible for alimony? Explain fully.

(2) How would your answer be different if non-Texas law applied?

B.

(1) Assuming that Sally is entitled to alimony, what factors should the court consider in determining the amount and duration of an award of alimony?

(2) How would your answer be different if non-Texas law applied?

C.

(1) What events or circumstances would cause an award of alimony to be diminished, increased, or terminated?

(2) Explain fully. How would your answer be different if non-Texas law applied?

Abby and Ben have been married five years. Their assets consist of savings accounts that each of them opened more than five years ago and to which they have made deposits regularly since then, primarily from their salaries. At the time of their wedding, each account had a balance of $1,000. Since then, the accounts have accrued interest income of $1,000 and Abby and Ben have deposited $8,000; thus, each account currently has a balance of $10,000. They purchased their home three years ago, and it has $10,000 in equity. Home furnishings have all been purchased since then and have a current net value of $5,000, not including a Jackson Pollack pencil sketch given to the couple by Abby's grandmother two years ago and valued at $2,500, and a silver tea service inherited by Ben from his grandmother last year and valued at $1,500. Abby and Ben drive cars they purchased and paid for before they were married; Abby's Alfa is worth $4,000, and Ben's Bimmer is worth $10,000. Ben also has a gambling problem and desperately needs to get his hands on $45,000, because two guys named Rico will be paying him a visit in three days and they don't like to be disappointed.

Which of the assets will Ben be able to use to pull together the cash he needs? What can Abby do to stop him? If she finds out about his actions after the fact, what remedies does she have?