THE IDEA’S “CHILD FIND” PROVISION: JUST HOW HARD DOES A SCHOOL DISTRICT HAVE TO LOOK?

            Parents, school administrators, and education attorneys are waiting to see if the United States Supreme Court will review the decision of the United States Court of Appeals for the Ninth Circuit in Compton Unified Sch. Dist. v. Addison, 598 F.3d 1181 (9^th Cir. 2010).  That decision significantly increased a School District’s obligation to identify students eligible for special education, and greatly expanded parents’ rights to a due process hearing to determine if the District had failed to discharge its duty.  Although handicapping the Supreme Court is crystal ball gazing, at best, the Court may well not only hear the case, but also reverse the Court of Appeals.  Until the appellate dust settles, this article will give you the new legal landscape and inform students and parents of their expanded rights.

            The Individuals with Disabilities Education Act (“IDEA”) conditions federal funding to states on their adopting policies and procedures ensuring that “all children with disabilities . . . who are in need of special education services[] are identified, located, and evaluated.”  This provision is known as the “child find” requirement.  The IDEA further requires School Districts to provide written notice to a child’s parents whenever it “proposes to initiate or change” or ”refuses to initiate or change the identification, evaluation, or educational placement of the child . . . .”

            The student involved in the case, Starvenia Addison, received horrific and indefensible treatment at the hands of the Compton, California School District.  Her school counselor did not consider it atypical for Addison, a ninth-grader, to perform at a fourth-grade level.  In the fall of her tenth-grade year, Addison failed every academic subject.  The counselor considered these grades to be a “major red flag.”  Teachers reported Addison’s work as “gibberish and incomprehensible.”  A third-party mental health counselor recommended that the District assess Addison for learning disabilities.  Despite the recommendation, the District did not refer Addison for an educational assessment and instead promoted her to eleventh grade.

            Addison brought an administrative claim under IDEA seeking compensatory educational services for the District’s failure to identify her needs and provide a free appropriate public education.  An administrative law judge found for Addison and the U.S. District Court subsequently agreed.  An appeal followed to the Court of Appeals.  The Ninth Circuit, obviously (and understandably) deeply offended by the District’s actions, phrased the District’s arguments in such pejorative terms that it was obvious that it, too, was going to find in Addison’s favor.  For example, the Court said: “the School District seeks to cast its deliberate indifference as something other than a ‘refusal.’”  Two Judges of the three-judge panel affirmed the District Court in perfunctory fashion with only casual references to broad legal generalizations.

            The remaining Appellate Judge, however, filed a dissenting opinion that dwarfs the majority opinion in terms of depth, breadth, and legal analysis.  He, too, was troubled by the distressing facts, but essentially found that under the IDEA and state law, a due process hearing may be held only where the District purposefully acts, or refuses to act, as opposed to where the complained-of conduct is best described as negligent.  Actually, the complained-of conduct could also be fairly described as gross negligence or reckless indifference but the dissenting Judge chose not to go there, perhaps fearing that it would lead him to a different result.  The otherwise thorough and well-reasoned dissent offers the Supreme Court a road map to overturning the decision of the Court of Appeals.

            For the time being, however, the decision of the Ninth Circuit in Addison is binding on the Federal Courts in the nine most western states of the United States, and may be considered persuasive, and therefore followed, by other Courts throughout the nation.  In petitioning the Supreme Court to take up the case, the District cites liberally to the dissenting opinion and laments the majority’s creation of a claim for educational malpractice where none has previously existed.  Finally, because there are 2200 school districts and over one million special education students served within the geographical boundaries of the Ninth Circuit, the Supreme Court may consider the Addison case sufficiently impactful to warrant review.

            Until  Addison is affirmed, reversed, or otherwise clarified, special needs students and their parents have additional ammunition with which to press their School District for an educational evaluation, an IEP, a due process hearing, and potentially the bringing of an action in U.S. District Court.

            If you have any questions concerning the above, or require information on the IDEA or special education law, please call Bob Keepnews at Maya Murphy, P.C. (203) 221-3100, or e-mail him at rkeepnews@mayalaw.com.

Earning Capacity: Alimony and the Invisible Paycheck

Things change.  Incomes rise and fall, jobs come and go, marriages last…and some of them do not.  In an economy where the only constant is unpredictability, a theme of increasing frequency in divorce litigation is the difficulty in calculating appropriate alimony or child support figures.  When a breadwinner has fallen on hard times – late in a marriage, during a divorce, or immediately thereafter – and is constrained to take a cut in income, should support figures be based on what he or she now earns, or should they instead be based upon what could be earned given that person’s experience, education, credentials, and marketability?

Trial courts in Connecticut often utilize the concept of “earning capacity,” which is “meant to be a flexible concept, particularly suited to cases where the designation of a precise monetary value of earned income is inappropriate.”  Weinstein v. Weinstein, 87 Conn. App. 699, 710 (2005).  The Connecticut Supreme Court has defined earning capacity as “not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”    Weinstein, 280 Conn. 764 (2007).  The Appellate Court has noted that “it is particularly appropriate to base a financial award on earning capacity where there is evidence that the payor has voluntarily quit or avoided obtaining employment in his field.”  Hart v. Hart, 19 Conn. App. 91, 95 (1989).

In a recent decision, our Appellate Court reaffirmed the assignment of an earning capacity to a payor of alimony (who sought to reduce his obligation after claiming to receive decreased taxable earnings at his new job), and further underscored the weight an earning capacity determination can have on the primary wage earner of a marriage.  In upholding the decision of the trial court which denied a modification of alimony, the Appellate Court pointed out that the plaintiff husband had “failed to provide us with any statute, case law, or rule of practice that requires the trial court to specify an exact earning capacity when calculating an alimony and child support award.”  Tanzman v. Meurer, AC 30723, 128 Conn. App. 405 (released May 23, 2011).  In other words, under current case law in our state, a judge in a divorce proceeding may assign one party with an earning capacity – and award alimony and/or child support based on that notion of the payor’s expectation of earnings – but there is no requirement whatsoever that requires the Court to precisely specify the monetary value it assigned based on the evidence presented at trial.

This soft spot in our jurisprudence can and does cause additional complications in post-judgment motions to modify support orders, when one party seeks to demonstrate a “substantial change in circumstances” as required by Connecticut General Statutes § 46b-86 et seq.   Indeed, when an original alimony award was predicated on earning capacity and not on actual income, and the earning capacity was further left undefined by a trial court, a litigant faces the daunting task of demonstrating a “substantial change” to a non-quantified number.  Instead, a moving party is charged with relying upon extrinsic and collateral evidence to demonstrate that his or her earning capacity – however slippery and undefined – has substantially changed within the meaning of the statute and applicable case law.

As a potential payor of alimony in a divorce proceeding, one should be aware that a judge might not simply glance at a tax return or even at a paystub, but may instead base his or her decision on a comprehensive history of the parties’ earnings, education, employability, and economic resilience.  Moreover, even after that award is determined, any litigant would be best served to seek the counsel of an experienced family law attorney before attempting to modify the award based on decreased income or a change in employment.

Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Family Law Update: Postnuptial Agreements Now Valid and Enforceable in Connecticut

Upon beginning an action for a divorce, many people will disclose to their lawyers that the parties had already contemplated the end of their marriage, sometimes many years before.  More often than one would guess, the parties had even mapped out this projected end to their relationship with an agreement written during the marriage itself – maybe hammered out on the family computer, or perhaps scribbled on a restaurant napkin – which was intended by the parties to govern the terms of any divorce that would loom in the future.

With a waiver of alimony, a promise to exclude inheritance proceeds, or a pledge to leave the marital home – an intended postnuptial agreement could be as flexible and varied as the complex circumstances of the marriage itself.  However, unlike their premarital cousins (agreements executed before marriage are governed both Connecticut General Statutes Section 46b-36b et seq. and controlling precedent), postnuptial agreements had not been officially recognized by the Connecticut Supreme Court and the prospects of their enforceability at trial was nebulous at best.

In the recent decision of Bedrick v. Bedrick (SC 18568, 200 Conn. 691, decided April 26, 2011), the Connecticut Supreme Court has for the first time set forth parameters to test the enforceability of postnuptial agreements, noting that “we must now consider what standards govern their enforcement.  Neither the legislature nor this court has addressed this question.”  Bedrick, at 699.

Addressing first the question of whether postnuptial agreements are contrary to public policy, the Supreme Court concluded in the negative.  While historically, the Court had determined that prenuptial agreements (as an example) were generally held to violate public policy if they promoted, facilitated, or provided an incentive for separation or divorce” (citing McHugh v. McHugh, 181 Conn. 482, 488-89 (1980)), it has been more recently decided that “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine” (see Billington v. Billington, 220 Conn. 212, 221 (1991)).  The Bedrick court now opined that “postnuptial agreements may also encourage the private resolution of family issues.  In particular, they may allow couples to eliminate a source of emotional turmoil – usually, financial uncertainty – and focus instead on resolving other aspects of the marriage that may be problematic.”  Bedrick, at 698.

In this case of first impression, the Supreme Court expressly acknowledged the heightened scrutiny that must be applied to a trial judge’s review of a contract between already married persons, noting that “spouses do not contract under the same conditions as either prospective spouses or spouses who have determined to dissolve their marriage.”  In its analysis, the Court points out that already married spouses are “less cautious” in a contractual relationship with one another than they would be as prospective spouses, and similarly, are “certainly less cautious” with one another than they would be with an ordinary contracting party.  “With lessened caution comes greater potential for one spouse to take advantage of the other.”  Id, at 703.

As such, the law now requires trial courts to enforce a postnuptial agreement only if it complies with applicable contract principles (including the element of consideration, or in layman’s terms, the “give and take” in any contractual arrangement), and if the terms of the agreement are both fair and equitable at the time of execution and if those terms are not unconscionable at the time of dissolution of the marriage.  To determine whether terms are “fair and equitable” at the time of execution, a court will look to whether the agreement was made voluntarily, without any undue influence, fraud, coercion, or duress.  In addition, as with prenuptial agreements, there must be a factual finding that each spouse was given full, fair, and reasonable disclosure of all property, assets, financial obligations, and income of the other spouse when entering into the contract.

Importantly also, the Court further held that “unfairness or inequity alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution.”  Id, at 706.  Trial courts are charged with applying a “totality of the circumstances” approach to determining the fairness and equity of enforcing a postnuptial agreement.

With this significant legal decision now available as a roadmap for divorce litigants and their counsel, it is critical now as always that you consult with a knowledgeable and experienced family law attorney in determining your rights relating to an impending divorce. Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at  hdmurphy@mayalaw.com.