Family Law
Professor Rhonda Wasserman
Exam (Spring 2002)
FAMILY LAW
Take home examination
(Spring 2002)
INSTRUCTIONS
The exam must be completed by Friday, May 3, at 5:00 PM. You may pick the exam up from the Registrar's office any time between 8:30 AM and 5:00 PM on Monday, April 29, Tuesday, April 30, or Wednesday, May 1, and turn your answer in 48 hours later, OR you may pick the exam up between 4:00 and 5:00 PM on Friday, April 26 and turn your answer in by 10:00 AM on Monday, April 29, 2002.
The exam answer must be typed. Please use 8½ by 11 inch paper; 12 point type; and one inch margins. Please double-space the answer and number the pages of the answer. The typed copy should not exceed 20 pages. Please put your exam number in the upper right hand corner of every page of your answer. Do not put your name on any page.
This is an open-book exam. You may consult the casebook, your class notes, outlines, hornbooks, and other study guides. You are bound by the normal in-class exam rules to the extent that they make sense for a take-home exam. For example, you must work alone without the assistance of any other person.
This exam has five pages; if you do not have all five pages, please inform the Registrar immediately. The exam consists of four questions, two of which have sub-parts. The number of points available is indicated at the beginning of each question and sub-part. Raise, discuss, and decide all issues presented, whether or not they are dispositive, and whether or not your resolution of one issue makes discussion of other issues technically unnecessary. Unless the question indicates otherwise, you should discuss all sides of each issue. If you need to assume additional facts, please state what those facts are and how they affect your analysis.
If a constitutional provision, statute, rule or section of a Uniform Law is relevant, you should refer to it specifically. You are encouraged to refer to other relevant authority, including cases. You should explain fully the relevance of all authority cited.
Best of luck and enjoy the summer!
Rhonda Wasserman
QUESTION
ONE
(30 points divided unequally between two sub-parts)
Bill and Melinda met when they were in junior high school in Seattle, Washington. It was love at first sight. Upon graduation from high school in 1976, they both attended Harvard University, where Bill studied computer science and Melinda studied both fine arts and secondary education. During the first year of college, they lived in separate dormitories. On more than one occasion that year, Bill professed to Melinda that he loved her "like a wife" and viewed himself as married to her. Melinda responded with similar professions of love and commitment. Bill also promised Melinda that he would always take care of her and that she "would never want for anything." Bill introduced Melinda to all his college friends as his wife and Melinda introduced Bill to her friends as her husband. Their freshman year, they bought a 1967 Mustang together, with the car jointly titled in the names of Bill and Melinda Gaites. Over the summer following their freshman year, they rented an apartment as "Mr. and Mrs. Bill Gaites" and moved in together. They applied for a joint credit card, and deposited all the money that their parents gave them for living expenses into a joint checking account. They filed joint tax returns. Neither ever mentioned to their parents or relatives that they had "married."
Both Bill and Melinda excelled at Harvard. They continued to live together in the same apartment until they graduated. As graduation approached in the spring of 1980, they contemplated their future careers. Melinda really wanted to spend her time painting. Her fine arts professors all effused about her enormous talent, and Melinda sold several paintings at her first "solo" art gallery show. She encouraged Bill to take a job with IBM so she could pursue her painting full-time. But Bill had other plans. He had read an article in Popular Electronics magazine about a new "personal computer" that ran off of a tiny microprocessor. Unlike the huge mainframe computers in use at the time (which occupied entire rooms and needed to be kept in special air-conditioned surroundings), this small "personal computer" could fit on a person’s desk! While much smaller and less expensive than mainframe computers, this "personal computer" was of no use because no one had developed software to make it perform useful tasks. Bill wanted to try to develop software to run on this new pc. After much negotiation, Melinda agreed that she would work as a school teacher while Bill gave this crazy computer idea of his a go.
Both Melinda and Bill were awarded Bachelor of Arts degrees, magna cum laude, from Harvard University in 1980. Upon graduation, Melinda accepted a position as a kindergarten teacher in the Seattle public school system. Bill returned with her to Seattle (their home town), where he formed a small corporation. Bill was the sole shareholder in the company, Minisoft, through which he intended to develop and market software for the new pc. Upon returning to Seattle, Bill and Melinda moved in with their respective parents, although they spent a lot of time together and shared the use of their car. This arrangement was unwieldy, however, so shortly after launching Minisoft, Bill and Melinda decided it was time to "make it official." They announced their engagement to their parents, who planned a huge party to celebrate the nuptials. The wedding date was set for the first Sunday in September of 1981.
In January of 1981, Bill developed a software product that revolutionized the computer industry. Sales skyrocketed, and Bill finally began to draw a salary. IBM offered to buy his company, Minisoft, in May of 1981 for $500 million dollars, but Bill declined. At the end of the 1980-81 academic year, Melinda resigned her position and has not worked outside the home (except to paint in an art studio) since that time. Shortly after Melinda resigned, Bill and Melinda applied for a marriage license in Washington state. They were married, as planned, on September 6, 1981 by a justice of the peace before 250 of their closest friends and family members.
In the years following the wedding, Bill (and the employees he had hired) continued to develop new software products to operate on personal computers. Minisoft grew rapidly, and in fact dominated the market. In 1987, Minisoft "went public" (i.e., its shares were sold to the public), and Bill was an instant billionnaire!
In 1989, after "hitting it big," Bill and Melinda purchased a mansion (as tenants by the entireties) for $30 million, using proceeds from the sale of a small portion of Bill’s Minisoft stock. They also used stock proceeds to purchase 5 fancy cars (titled in both their names), jewelry for Melinda (valued at $350,000), and furnishings for the home (valued at $200,000). In 1992, Melinda’s father died, and she inherited $3,000,000 from him.
In 1998, Bill informed Melinda that he wanted a divorce. At the time of their separation, his remaining Minisoft stock was worth $50 billion.
For purposes of Question One, you should assume that both Washington and Massachusetts have marriage and divorce laws identical to the Pennsylvania laws reprinted in the Wasserman Supp. If you need to make further assumptions about the content of Washington and/or Massachusetts law for purposes of Sub-part B of Question One, please state your assumptions.
SUB-PART A
(20 points)
If you were representing Melinda, what property would you argue is marital property and what property would you argue is separate property? On what legal theories would you rely? What arguments would you expect Bill’s attorney to make in response? Which of the parties would you expect to prevail on this characterization issue? Why? Please explain your answer fully.
SUB-PART B
(10 points)
If you were representing Melinda, what theory or theories of recovery, other than divorce law, would you rely upon and what would you hope to recover? Please explain your answer fully.
QUESTION
TWO
(20 points)
Under Pennsylvania law, both fault and no-fault grounds for divorce are recognized. 23 Pa. Cons. Stat. § 3301, Wass. Supp. p. 70. In a divorce proceeding, marital property is equitably divided between the spouses "without regard to marital misconduct." 23 Pa. Cons. Stat. § 3502(a), Wass. Supp. p. 75. In determining whether or not to award alimony and in what amount, the court shall consider "[t]he marital misconduct of either of the parties during the marriage." 23 Pa. Cons. Stat. § 3701(b)(14), Wass. Supp. p. 78. Fault is not mentioned in the Pennsylvania Child Support Guidelines.
Is the Pennsylvania legislature hopelessly confused or are there sound policy reasons for the differing treatment of fault in these contexts? Please explain your answer fully.
QUESTION
THREE
(20 points)
For purposes of Question Three only, assume that a legislative committee of the Pennsylvania Legislature is considering an amendment to the Domestic Relations Code to discourage both adultery and divorce. In particular, the committee is considering an amendment to 23 Pa. Cons. Stat. § 3301, which authorizes a court to grant a divorce if one of the spouses has committed adultery. The proposed additional language would read: "A spouse who is found to have committed adultery shall not marry the person with whom said conduct was committed during the life of the former spouse." In other words, the law would bar a person found to have committed adultery from marrying his or her paramour for as long as his or her ex-spouse were living. The legislative committee has asked you for a legal opinion regarding the constitutionality of the proposed amendment. Please draft the opinion.
QUESTION
FOUR
(30 points divided equally among four sub-parts)
Ozzie and Harriett have two sons, David and Ricky. David is sixteen years old now and Ricky is fourteen years old. Ozzie and Harriett divorced after Harriett learned that Ozzie had a child with another woman, June, born during the course of his marriage to Harriett. Following the divorce, Ozzie moved in with June and their child, referred to affectionately as Beaver. Beaver is twelve years old now. June is an attorney. Her net annual income is $120,000. Ozzie is a public school teacher. His net annual income is $60,000. He is thinking about retiring although he is only fifty years old. If he retires, he will receive a pension in the net amount of $24,000 per year. Following the divorce, Harriett moved in with Ellen, a successful entertainer, whose net annual income is $240,000. Harriett has sole physical custody of David and Ricky, and they live with her in Ellen’s home. Harriett has not worked outside the home since David was born. Before then, she worked as a dental hygienist. Harriett has sued Ozzie for child support.
In answering the questions raised in each of the four sub-parts that follow, please
(a) explain how the issue would be decided under the Pennsylvania Child Support Guidelines;
(b) offer a reasonable alternate resolution of the issue [i.e., how another state might resolve the issue]; and
(c) discuss which of the two resolutions should be preferred and why.
SUB-PART A
(7.5 points)
In determining the amount of support that Ozzie owes Harriett for David and Ricky, how (if at all) should Ozzie’s obligation to support Beaver affect the calculation?
SUB-PART B
(7.5 points)
In determining the amount of support that Ozzie owes Harriett for David and Ricky, how (if at all) should Ellen’s income affect the calculation?
SUB-PART C
(7.5 points)
In determining the amount of support that Ozzie owes Harriett for David and Ricky, what income, if any, should be imputed to Harriett?
SUB-PART D
(7.5 points)
In determining the amount of support that Ozzie owes Harriett for David and Ricky, how (if at all) should Ozzie’s decision to retire from his teaching position affect the calculation?
