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December 2009

Crisis in the Family Court

by Andrea S. Glenn, The Crime Report

12-28-09 -- Rising custody disputes and child care issues are overwhelming alread beleaguered family court judges in New York and other states. . . . Family courts nationwide are grappling with a caseload crisis that delays decisions on critical issues for parents and children involving abuse and neglect, custody and visitation.  Although especially problematic in major urban areas, the Empire State as a whole has been struggling with this precarious situation, leading the New York State Senate Judiciary Committee to recently recommend the addition of 21 new family court judges to the bench.  This would be the first significant increase in the state’s family court judgeships in over three decades. . . . Most experts believe this is long overdue. According to a report prepared by the New York State Senate Committee on the Judiciary, the 143 judges currently mandated  by state law handled over 2.1 million appearances statewide in 2008. The report, entitled “Kids and Families Can’t Wait-The Urgent Case for New Family Court Judgeships, ”  predicted a 26 percent increase in appearances, to a staggering 2.6 million. The burden of current  caseloads is already felt throughout the system.  In New York City, for example, an average of 3.5 minutes is spent on a family court appearance. . . .  The recommendation is currently moving through the state’s legislative process. The bill (A8957) is now currently before the state assembly, after passage by the State Senate in September.  Even if the bill becomes law, the committee made clear it won’t be enough.  It recommended that adding at least 18 more Family Court judgeships once the state’s budget crisis eases. . . .  New York State is far from alone in its family court crisis.  Most major urban and larger jurisdictions have problems with heavy family court caseloads and would benefit from more judges, said Peter Salem, Executive Director of the Association of Family and Conciliation Courts (AFCC) in Madison, Wis.  

Child Support Enforcement Laws Often Prevent Payment of Support

By Robert Franklin, Esq. , Mens News Daily

"...schism in the soul, schism in the body social, will not be resolved by any scheme of return to the good old days, or by programs guaranteed to render an ideal projected future...  Only birth can conquer death - the birth, not of the old thing again, but of something new."    - JOSEPH CAMPBELL 

12-26-09 -- In the United States, we treat child support debt like no other debt - as a criminal matter.  What that means is that we've established a wide array of criminal sanctions for failing to make payments of child support obligations. . . . Now, that fact alone is interesting.  Why would we treat child support debt differently from, say, mortgage debt or debt to Visa?  The standard, off-the-shelf answer is that we value children's welfare so much that we deem it appropriate to establish extraordinary methods of enforcement against child support obligors.  Children, so the argument goes, are not the same as banks and credit card companies, and debts to them aren't the same as the mortgage payment. . . . That would be fair enough if those extraordinary measures actually promoted compliance, but often enough, they don't; often enough, they prevent compliance altogether or make it harder.  We know that because of stories like this one (KOAT, 12/22/09). . . . As long as he had a job, Douglas Miller struggled successfully to make his child support payments, but then the company he worked for went out of business and he had no income.  So he quit making payments and the state suspended his driver's license.  For months he tried to find work and finally got an offer, but he needed his license in order to do the job.  The state's response?  "Nope."

NEW YORK  

Judge Rejects Paul Weiss Partner's Bid to Revisit His Divorce Pact After Madoff Loss

Noeleen G. Walder, New York Law Journal

12-24-09 -- A partner at Paul, Weiss, Rifkind, Wharton & Garrison who lost millions of dollars as a result of Bernard L. Madoff's massive Ponzi scheme cannot force his ex-wife to "shoulder her share" of the losses, a Manhattan judge has ruled. . . . After 30 years of marriage, Steven Simkin, the chair of Paul Weiss' real estate department, and Laura Blank spent nearly two years debating the value of their Scarsdale home, Simkin's law partnership and a Manhattan apartment. . . . But Simkin and his ex-wife agreed on one thing: that an account they opened during their marriage with Bernard L. Madoff Investment Securities LLC was worth $5.4 million. . . . As part of a 2006 equitable distribution agreement, Simkin claims he paid Blank some $2.7 million, which represented what he thought was his ex-wife's fair share of their Madoff investments, according to the decision, Simkin v. Blank, 101501/09.

Will Facebook Destroy Your Marriage?

Posted by Bruce Carton The BLT: The Blog of Legal Times

12-23-09 -- It turns out that one of the most significant impacts that the rapid spread of Facebook is having on society may be ... destroying marriages? . . . The Telegraph reports that by reconnecting old flames and enabling new ones, Facebook is tempting to people to cheat on their partners. One law firm that specializes in divorce asserts that almost one in five petitions they process cite Facebook as a reason, as spouses are finding evidence of flirting and even affairs on the site. . . . The 20 percent statistic may be high as it comes from a law firm that handles divorces online, but Mark Keenan, managing director of Divorce-Online, says that after hearing from his staff that Facebook was a recurring issue, he confirmed the 20 percent figure. "The most common reason seemed to be people having inappropriate sexual chats with people they were not supposed to," he says. . . . The article even mentions one 35-year-old woman who discovered her husband was divorcing her when he updated his Facebook status to read: "Neil Brady has ended his marriage to Emma Brady."

NEVADA  

Gibbons lawyer: Nevada first lady will use divorce trial to torpedo governor's re-election

By Martha Bellisle • Reno Gazette-Journal

12-23-09 -- Nevada first lady Dawn Gibbons plans to use next week's divorce trial as a forum to sabotage Republican Gov. Jim Gibbons' re-election bid next year, his lawyer contended in court documents. . . . "Ms. Gibbons' motives are simply to use this court and legal process to inflict pain on her husband because she mistakenly says (he) jilted her for another woman," Gary Silverman said in a statement filed Friday. . . . He also said that if the governor is not re-elected, any alimony the court orders should end when his term expires at midnight Dec. 31, 2010. . . . Dawn Gibbons' lawyer, Cal Dunlap, could not be reached for comment. He has not filed a trial statement but said last week that he expects the trial to go forward because the two sides are far apart on many issues.

NEW YORK  

Hedge Fund Founder's Ex-Wife Files Suit
Accusing Him of Insider Trading

Zach Lowe, The American Lawyer

12-17-09 -- The ex-wife of Wall Street magnate Steven Cohen, founder of the $13 billion hedge fund SAC Capital Advisors, has filed a civil racketeering suit against Cohen in which she accuses him of committing insider trading violations. . . . The suit, according to The New York Times, was filed Wednesday in federal district court in Manhattan under a civil version of RICO laws used mostly against organized crime figures. The suit accuses Cohen of understating his income during divorce proceedings and hiding money from his ex-wife, Patricia. She is seeking $300 million. Her attorney, Paul Batista, did not immediately return a call seeking comment. An attorney for Cohen could not immediately be located.

DISTRICT OF COLUMBIA

Nation's Capital Legalizes Gay Marriage

AFP,  Newsmax.com   

12-16-09 -- The U.S. capital took a first step towards joining a handful of states that recognize same-sex unions as the city council voted to legalize gay marriage. . . . The bill to allow same-sex couples to wed was passed by 11 votes in favor and two against, said an official at the council, who asked not to be named. . . . Former Washington mayor Marion Barry and councilwoman Yvette Alexander voted against the bill. . . . Mayor Adrian Fenty has promised to endorse the law, but because the US Congress has jurisdiction over governance in Washington, same-sex marriage will not become legal in the US capital until it survives a 30-day congressional review period. . . . The half-million-strong National Organization for Women (NOW) hailed the vote in favor of gay marriage, saying it was a sign that "discrimination against same-sex couples is coming to an end in this country." . . . NOW promised to monitor the congressional review of the law, and vowed to "activate its grassroots if an attempt to overrule the council gains any traction in Congress." . . . The Catholic church said that although it was opposed to the bill, which it sees as redefining marriage in a way that jars with the core teachings of the church, it would seek a way to continue to provide aid services to the needy in Washington.

Kevin Jennings and “FistGate” Should Make Parents Furious

by Doug Giles, Townhall.com    

12-12-09 -- Man, am I about to sound like an uncool, homophobic, bigoted zealot who should be on a terror watch list (according to the paranormal progressives). Why is that, you ask? Well, I think Obama’s G-boy, Kevin Jennings, should not be the Safe Schools Czar for many egregious reasons. Here are just a few. . . . I believe anyone who thinks it’s okay to teach 14-year-old boys how they can jam their fist up another 14-year-old boy’s tailpipe, or provides “fisting” kits for the kiddos, or thinks it’s neat-o to urinate on one another during teen sex, or passes out literature to your young ones on how they can find old pedophiles to hook up with at “gay leather bars,” or talks to your teen about the tricky pros and cons of spitting versus swallowing should not be the Safe Schools Czar.

CALIFORNIA  

Judge: Parents bigots for opposing 'gay' lessons

Families grilled about religious beliefs, church sermons against homosexuality

By Chelsea Schilling, © 2009 WorldNetDaily

12-4-09 -- A judge has attacked parents, suggesting they are bigots for seeking to opt-out their elementary-age children from a mandatory controversial pro-homosexual curriculum, according to a non-profit law firm. . . . The parents were represented in California's Alameda Superior Court by Pacific Justice Institute. On Dec. 1, Judge Frank Roesch denied a motion to allow them to have their children excused from the lessons. . . . According to the group, Roesch blasted the parents for seeking enforcement of a provision of the California Education Code that gives parents a right to opt their kids out of health education. . . . Education Code Section 51240 allows a parent to have a student excused from instruction, "If any part of a school's instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil." . . . However, Pacific Justice Institute said Roesch repeatedly insinuated that the parents are bigots and insisted there can be no homosexual indoctrination because, he purportedly argued, people are born that way.

PENNSYLVANIA

Lawyer accused of assault on DHS worker

By Julie Shaw, Philadelphia Daily News

12-4-09 -- A lawyer was hauled out of a Family Court building in handcuffs earlier this week after a social worker accused him of elbowing her in the ribs after he sat down next to her. . . . Peter Quinn, 53, was charged with aggravated assault and related offenses in the incident, which occurred Tuesday while the two were waiting for a case to be heard in Courtroom K at 1801 Vine St. . . . After being led out of the building, he was held in a police holding cell for about 15 hours before being released, he said. . . . Department of Human Services social worker Tamika Cintron, 36, contended that Quinn elbowed her and called her offensive names, according to a police report and DHS Commissioner Anne Marie Ambrose. Ambrose said that Cintron did not know why Quinn elbowed her. . . . Quinn, in a phone interview yesterday, denied the allegations.

NEW JERSEY

Gay Marriage Bill up for Vote in N.J. Next Week

Newsmax.com

12-3-09 -- A bill to legalize gay marriage in New Jersey will be posted for a vote next week. . . . Sen. Ray Lesniak, a member of the Senate Judiciary Committee, says the bill is scheduled to go before that committee on Monday and will be voted on by the full Senate next Thursday. . . . Garden State lawmakers who support the idea have been reluctant to post the bill for a vote unless they were fairly certain it would pass. Both houses of the Legislature must pass it before it goes to the governor.

NEW YORK

N.Y. gay marriage measure defeated

Governor says vote lacked fortitude

By Jeremy W. Peters, New York Times, Boston Globe

12-3-09 -- The New York state Senate decisively rejected a bill yesterday that would have allowed gay couples to wed, providing a major victory for those who oppose same-sex marriage and underscoring the deep and emotional divisions surrounding the issue. . . . The 38-24 margin startled proponents of the bill, and signaled that political momentum, at least right now, has shifted against same-sex marriage, even in heavily Democratic New York. The vote followed more than a year of lobbying by gay rights organizations, who have poured close to $1 million into New York legislative races to boost support for the measure. . . . Senator Thomas W. Libous, the deputy Republican leader, said the public is gripped by economic anxiety and remains uneasy about changing the state’s definition of marriage. . . . “Certainly this is an emotional issue and an important issue for many New Yorkers,’’ said Libous, who represents Binghamton. “I just don’t think the majority care too much about it at this time because they’re out of work, they want to see the state reduce spending, and they are having a hard time making ends meet. And I don’t mean to sound callous, but that’s true.’’

Gay-Marriage Opponents Welcome N.Y. Bill's Defeat

Newsmax.com   

12-3-09 -- A bill that would have allowed same-sex marriage was rejected by New York lawmakers, a stunning outcome for advocates in a state that was the site of one of the gay rights movement's defining moments four decades ago, and a huge victory for opponents who said it could influence votes elsewhere. . . . "It's just a huge win," said Maggie Gallagher, president of the National Organization for Marriage, a nonprofit organization whose stated mission is to protect marriage. "It's going to help cement defeat for gay marriage in New Jersey, and I think it's going to get a whole bunch of politicians in New Hampshire who voted for gay marriage this year pretty nervous when they come up for re-election."

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NEW YORK  

Enthusiastic New Administrator Strives to Fix Family Court

By Jeff Storey | New York Law Journal | New York Lawyer

12-1-09 -- Growing up, Judge Edwina G. Richardson-Mendelson wanted to be a doctor. . . . When she was 7, however, she witnessed an older sister throwing up. Horrified, she asked her mother if doctors often had to look at "such awful things." Doctors had to absorb even worse sights, her mother replied. . . . "Well then, I want to be a lawyer," she said. . . . The little girl from the Bronx who wanted to "help people" became a lawyer who specialized in tending to the social and legal ills of children and families and then a judge in the court that hears their cases. These days, her patient is a highly stressed institution—the New York City Family Court. . . . Judge Richardson-Mendelson, 44, was appointed administrative judge of the court six months ago with a mandate from court administrators to make Family Court more efficient, a determination on their part that was further underlined with the replacement of two of the court's four supervisory judges.

November 2009

GENERAL

Benefits for same-sex partners are expanding

By Ashley Surdin, Washington Post Staff Writer

11-27-09 -- With public attention focused largely on battles over whether gay couples should be able to marry, a less-noticed movement to grant health and other benefits to same-sex partners is gaining significant ground across the country in courtrooms, in legislatures and at the ballot box. . . . In New York last week, the state's highest court upheld policies granting spousal benefits to some gay public employees who were married in another state or country. . . . In Washington state, voters recently endorsed an "everything but marriage" bill that expands domestic partnership rights to lesbians, gays and unmarried elderly couples. . . . In California last week, two federal judges ruled in separate cases in favor of awarding individual same-sex couples benefits for their spouses that previously had been denied. . . . And in Congress last week, a House committee approved legislation that would provide benefits, including health insurance, retirement and disability, to same-sex partners of federal employees.

NEVADA  

Judge’s divorce filing follows arrest of her husband, a lawyer

By Jeff German, Las Vegas Sun   

11-26-09 -- District Judge Stefany Miley is suing attorney Edward Miley for divorce. . . . According to a copy of her Nov. 13 complaint, the judge says she and her husband of 12 years “have become incompatible to the degree that it is impossible for them to continue to live together in a harmonious marital relationship.” . . . The marriage fell apart Oct. 1 in what authorities and the judge alleged was a violent confrontation in front of their two young sons that led to Edward Miley’s arrest. . . . Several days later the district attorney’s office filed a criminal complaint against the lawyer, charging him with felony child abuse and neglect, misdemeanor domestic violence and misdemeanor cruelty to animals. The family’s cocker spaniel was injured during the confrontation, which Stefany Miley alleged was fueled by her husband’s heavy drinking. . . . Edward Miley has since spent time at a rehab center and is set to be arraigned on the criminal charges in Las Vegas Justice Court on Tuesday. . . . Although the marriage is headed for divorce, cooler heads appear to be prevailing in the rocky relationship.

FEDERAL COURTS

How a California Judge Is Challenging Obama on Gay Rights

By Michael A. Lindenberger, TIME 

11-25-09 -- Obama Administration lawyers are likely still scratching their heads over how to respond to an extraordinary ruling in San Francisco. Last week, the chief judge of one of America's most prominent federal courts ordered an Executive Branch agency to stop interfering with a court employee's efforts to secure health insurance coverage for her wife. . . . "The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," wrote Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals. He gave the Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. "Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."

NEW YORK  

Judge Refuses to Levy Attorney Fees on Ex-Wife for Divorce Tactics

Noeleen G. Walder, New York Law Journal

11-25-09 -- The vice president at an investment banking firm cannot recover attorney fees from his ex-wife whom he accused of using underhanded tactics to drag out a bitterly fought divorce proceeding. . . . Jeffrey T. Molinari claimed that Paula E. Molinari's "stonewalling" and "manipulation" during the litigation caused him to incur hundreds of thousands of dollars in unnecessary legal fees. . . . However, while Ms. Molinari, the so-called non-monied spouse who stayed at home to raise children, may have engaged in some "troubling" tactics, New York Supreme Court Justice Robert A. Ross of Nassau County concluded that the trial record militated against making her pay a portion of her ex-husband's legal bills. . . . Given that the parties ultimately arrived at a fair settlement and that some of the perceived delay resulted from Ms. Molinari contesting the divorce grounds, granting Mr. Molinari's bid to recover one-half of his $832,000 in attorney fees would penalize a "non-monied spouse for pursuing appropriate settlement terms, or litigating grounds, which is entirely permissible in New York State," Ross wrote in Molinari v. Molinari, 201728/05.

FEDERAL COURTS

Gay Marriage Gets Boost From 9th Circuit

Dan Levine, The Recorder

11-23-09 -- Not one to be left out of a constitutional thicket, 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski granted health benefits Thursday to the same-sex partners of court employees. . . . Kozinski's order comes a day after his colleague, Judge Stephen Reinhardt, issued his own published directive that a federal public defender be awarded back pay because his same-sex partner's benefits had been denied. . . . Reinhardt found that the federal Defense of Marriage Act -- which specifies marriage as a heterosexual union -- violates constitutional due process protections. Kozinski sidestepped that issue; instead he excoriated Obama administration officials for countermanding Kozinski's earlier order granting benefits to the spouse of court staff attorney Karen Golinski. Earlier this year, the Office of Personnel Management told Blue Cross -- the court's carrier -- to ignore Kozinski's order. That executive branch action violated the separation of powers doctrine, Kozinski wrote Thursday.

NEW HAMPSHIRE  

Time for a change in Family Court

Opinion of David Johnson, Derry / Nashua Telegraph

11-23-09 -- There were many letters in response to the news about the Bills Of Address to Remove Judge Lucinda Sadler and Marital Master Philip Cross. . . . The bills resulted from many Petitions For Redress Of Grievance brought by citizens who felt totally violated by their experience in Family Court. . . . This is very important for the voters in Nashua. When the citizens right to file petitions went before the House Judiciary Committee, Rep. David Cote, D-Nashua, and Rep. Betty Lasky, D-Nashua, now a state senator, voted to kill the bill. . . . Democrats and Republicans are harmed by the corrupt courts. I don’t understand why the Democratic House leadership wishes to back the corruption which harms all people from both parties. . . . To add insult to injury, after the Bill of Address to Remove Master Cross was introduced, the Chief Justice of the Supreme Court, Judge John Broderick, created a new Judicial Ethics Council and placed Cross on it. . . . Not only is the leadership of our judicial branch aware of the corruption, he’s part of the problem. . . . As a result of 22 surveys at 11 locations by the Citizens Commission to study the problems with the courts, there were more than three times as many complaints about the Family Division than all other courts combined. The nature of the complaints prove absolute incompetence by the leadership.

NEW YORK  

Abandonment Must Be Sexual, Not Social, to Divorce,
N.Y. Panel Says

Mark Fass, New York Law Journal

11-23-09 -- Despite its recognition of the "frustration" among matrimonial attorneys regarding New York's continued status as the only state in the country without no-fault divorce, a Brooklyn appellate panel has declined to broaden the grounds for divorce by recognizing a "social abandonment" cause of action. . . . Plaintiff Novel Davis argued that her husband Shepherd Davis' refusal to eat meals with her, celebrate holidays together or attend family functions should be recognized as a form of abandonment, one of the four grounds for divorce in contested New York proceedings. . . . In a 10-page decision written by Justice Mark C. Dillon (See Profile), a unanimous Appellate Division, Second Department, panel expressed sympathy for proponents of more flexible grounds for divorce, but set forth a host of reasons for affirming the dismissal of Ms. Davis' social-abandonment cause of action, including that the claim is merely one for no-fault divorce dressed up as an abandonment cause of action. . . . "The plaintiff's allegations of social abandonment may appropriately be viewed as merely another way of claiming 'irreconcilable differences' between spouses, that do not constitute a cognizable ground for a divorce," Justice Dillon wrote in Davis v. Davis, 203111/07.

florida

DCF lawyer: Put gay man's kids back up for adoption

By Dara Kam, Palm Beach Post Staff Writer

11-21-09 -- All along, everyone involved in Martin Gill's adoption of two foster boys agreed that the best possible home for the children was with Gill and his partner. . . . Everyone, that is, except the lawyers hired by the Department of Children and Families who asked an appeals court to reverse the adoption and "make the children available" for adoption to someone else. . . . "There was an audible gasp in the packed courtroom when the attorney general's lawyer said that," said ACLU Florida spokesman Brandon Hensler, one of the dozens of attendees during oral arguments before the 3rd District Court of Appeal in Miami in August. . . . "My recollection was that he seemed uncomfortable saying it, but felt compelled to and the words flowed painfully and quietly from his mouth," Hensler said. . . . A year ago, Miami-Dade Circuit Judge Cindy Lederman set the ball in motion when she ruled that the state law banning gay adoption was unconstitutional and granted the adoption to Gill.

NEW YORK  

N.Y. Judges Stake Out Narrow Grounds in Upholding Same-Sex Benefits

Joel Stashenko, New York Law Journal

11-20-09 -- The New York Court of Appeals on Thursday affirmed the recognition of same-sex marriages by a county executive and a state agency, but by a bare 4-3 margin declined to extend full New York recognition to such marriages contracted in other states and countries where they are legal. . . . Rather, the four-judge majority importuned the Legislature to decide the question, as it did in 2006 when the court decided that same-sex couples have no constitutional right to wed within the state but left open the status of same-sex marriages contracted outside the state. . . . "We end, by repeating what we said in Hernandez v. Robles (7 NY3d 338 (2006)), expressing our hope that the Legislature will address this controversy; that it 'will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made,'" Judge Eugene F. Pigott Jr. wrote.

CALIFORNIA  

Judge rules same-sex couple must be repaid after denial of benefits

By Denny Walsh, sacbee.com  

11-19-09 -- A judge ruled Wednesday an assistant federal public defender's spouse must be compensated for health care benefits withheld since July 2008 because the couple are gay. . . . Stephen Reinhardt, a member of the 9th U.S. Circuit Court of Appeals, also reminded the bureaucracy that he decreed nine months ago in the same case that withholding benefits based on sexual orientation violates the U.S. Constitution's due process guarantee and the circuit's employment dispute resolution plan for federal public defenders and their staffs. . . . In that Feb. 2 order, Reinhardt directed the Administrative Office of the U.S. Courts to process Assistant Federal Defender Brad Levenson's request to include his husband, Tony Sears, on his medical, dental and vision coverage.

TEXAS  

Are All Texas Marriages Void?
Poorly Worded Amendment Raises the Question

By Debra Cassens Weiss, ABA Journal

11-19-09 -- A candidate for Texas attorney general says a state constitutional amendment is so poorly worded that it calls into question the legal status of all marriages in the state. . . . The Democratic candidate, Houston lawyer Barbara Ann Radnofsky, calls the amendment a “massive mistake,” the Fort Worth Star-Telegram reports. Designed to ban gay marriages, the 2005 amendment was approved by the legislature and ratified by voters. . . . Part of the amendment reads, “Marriage in this state shall consist only of the union of one man and one woman.” But there is this more troubling phrase, designed to bar civil unions and domestic partnerships: "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

CONNECTICUT  

Government May Get Billions Under Forbes' Divorce Decree

The Associated Press

11-18-09 -- The federal government might get to collect billions of dollars in court-ordered restitution under a new divorce decree between imprisoned former Cendant Corp. chairman Walter Forbes and his wife of 27 years. . . . Bridgeport Superior Court Judge Howard Owens issued a ruling Thursday that orders Forbes' ex-wife, Caren, to transfer ownership of homes in Connecticut and Wisconsin back to him, plus half of the couple's jewelry and art collections. . . . The ruling allows the federal government and Cendant to attach liens to recover almost $3.3 billion to which the court says they are entitled. . . . Forbes, 65, was sentenced in 2007 to nearly 12 1/2 years in prison for what is considered the largest accounting fraud of the 1990s. He was also ordered to pay restitution for his role in a fraud scheme that cost the travel and real estate company and its investors more than $3 billion.

PENNSYLVANIA  

Experts question judicial tradition of putting new judges in family court

By Bobby Kerlik, Tribune-Review 

11-16-09 -- With five lawyers taking seats on the Allegheny County bench in January, most are expected to begin in family court, the traditional starting place for new judges. . . . But judges and advocates worry that tradition robs the division of experience when the caseload of juvenile matters, divorces, adoptions and custody disputes increases. . . . "In a way, it sends a message that family court isn't as important," said Lynn Marks, executive director of Pennsylvanians for Modern Courts, a court reform organization. "It's a national trend to put newer judges in family court. A lot of judges after they've been there don't want to stay." . . . Of the current 43 Common Pleas judges, family division ranks last in judicial experience. Among family court judges, the average length of time on the bench is 5.6 years. That's less than half the experience in criminal division — 11.9 years — the next closest.

RHODE ISLAND  

Retired R.I. chief justice Williams describes role in family of his former driver

By Tom Mooney and W. Zachary Malinowski, Journal Staff Writers

11-13-09 -- Frank J. Williams, the retired chief justice of the state Supreme Court, launched a media blitz Thursday to squash rumors of impropriety with his former driver and explain in his words his role in the driver’s family and how he became her daughter’s godfather. . . . Williams, who stepped down from the most powerful position in the state court system last year, started the day answering personal questions on WPRO-AM radio from an old friend, Buddy Cianci. They grew up in the same neighborhood, and their friendship endured as one rose to the top of the state’s judicial system, while the other became Providence’s mayor, went to federal prison for racketeering conspiracy, then rebounded as a popular talk-show host. . . . Asked directly by Cianci if he had ever had an affair with Pamela DosReis, Williams said: “It’s a disgusting rumor and outrageous. Of course not.” . . . He added: “Nor is [DosReis] my daughter or the child my granddaughter.”

CALIFORNIA  

Baseball Season Over? Not in Divorce Court

Posted by Robert J. Ambrogi, Law.com Legal Blog Watch 

11-12-09 -- One World Series ended last week but another is just getting started. Yes, the New York Yankees triumphed over the Philadelphia Phillies. But in the Family Division of the Superior Court in Los Angeles, what may prove to be the World Series of divorce cases is only in its opening innings. And one diehard baseball fan and self-described law nerd has launched a blog to help us keep score. . . . The divorce at issue is that of Frank and Jamie McCourt. Frank is the owner of the Los Angeles Dodgers, which he bought in 2004 for $430 million. Jamie is a lawyer who was chief executive officer of the Dodgers until Frank fired her last month. A few days later, on Oct. 27, Jamie filed for divorce. The next day, Oct. 28, Joshua Fisher launched his blog, Dodger Divorce.

Text Messages Can Spell Divorce

By Tresa Baldas, The National Law Journal

11-11-09 -- Divorce lawyers have found a new smoking gun to wave around in court: text messages. . . . Infidelity, bad parenting or threats -- you name the issue in marital disputes, family law attorneys say, and the evidence can be found in text messages sent over hand-held gadgets. . . . The unfaithful, in particular, are paying a high price for their salacious messages. "In the sixties, we had private investigators bursting into hotel rooms to catch cheating spouses," said Paul Talbert of New York's Chemtob Moss Forman & Talbert. "Now it's simply as easy as taking a BlackBerry or phone off the dresser." . . . Talbert is both relying on texts to prove marital troubles and defending those who get busted over their careless words. For example, he recently represented a woman whose suspicious husband picked up her BlackBerry while she was in the shower and discovered messages that showed that she was having an affair with a co-worker.

CALIFORNIA  

Expect Calif. Same-Sex Marriage Case to Stay Two-Party Affair

Dan Levine, The Recorder

11-5-09 -- Try as they might, lawyers from one anti-gay rights organization just can't get any love from judges in California. . . . After being barred from intervening in the federal challenge to Proposition 8, the Campaign for California Families tried their luck Wednesday with the 9th U.S. Circuit Court of Appeals. But a conservative panel sitting at Stanford Law School didn't appear any more likely to let them into the case. . . . Matthew Staver, whose advocacy group Liberty Counsel represents the campaign, repeated arguments previously made to Northern District of California Chief Judge Vaughn Walker: that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts.

NEW YORK  

Client Who Tried to Have Wife Murdered Can't Sue NY Lawyer Over Lousy Results in Divorce

By Mark Fass | New York Law Journal | New York Lawyer

11-4-09 -- A Brooklyn judge has dismissed a legal malpractice action against a Court Street lawyer and his firm stemming from their representation of a husband in what, even by New York standards, was an extraordinarily contentious and potentially violent divorce. . . . In December 2003, just nine months after he was charged with soliciting his wife's murder, plaintiff Joseph Pascarella agreed to pay her $400,000 to settle their divorce. . . . Two-and-a-half years later, Mr. Pascarella filed suit against the counsel who represented him in the divorce proceedings, Richard S. Goldberg and his firm Goldberg, Cohn & Richter.

KENTUCKY

Judge suspended for 45 days without pay

Gormley faulted in two cases

By Shawntaye Hopkins, herald-leader.com

11-3-09 -- A Central Kentucky family court judge accused of judicial misconduct has been suspended for 45 days without pay and publicly reprimanded. . . . . The Judicial Conduct Commission, the state's judicial oversight body, ruled that Judge Tamra Gormley, whose district covers Scott, Woodford and Bourbon counties, inappropriately handled two cases: a domestic violence hearing in Scott County and a child custody hearing in Woodford County. . . . . A third count against Gormley, which stemmed from a child custody case in Scott County, was dismissed because the commission said the charge was not proven by clear and convincing evidence. . . . . Gormley's attorney, William Hoskins of Lexington, said he reviewed the order Monday and discussed it with Gormley. Hoskins said they appreciate the commission for dismissing one charge but respectfully disagree with the findings on the other charges. . . . . Hoskins said they are contemplating an appeal. . . . . The commission released its ruling Friday — nearly a month after Gormley's hearing. The commission, the only entity authorized to discipline a sitting Kentucky judge, had until Feb. 19 to render a decision. . . . . The ruling says Gormley violated a man's due process rights in a Scott County case. The commission said she held a man in contempt without advance notice and without his attorney present. Gormley did not witness the actions outside the courtroom that led to the contempt charge.

NEW YORK  

This transgender custody battle is odd, even for New York

By Scott Shifrel, Daily News Staff Writer

11-2-09 -- In an unusually tangled custody battle, a Brooklyn mom is fighting her ex - a woman who lives as a man - for custody of her 7-year-old son. . . . The Brooklyn judge who annulled their 1998 marriage because it was a legal fiction - they put the partner down as "male" on the license - has ruled that the boy's "father" may seek permanent custody, despite having no biological or legal ties to the child. . . . "When the judge gave him standing to sue for custody, I thought, 'What's happening? She voided the marriage, she knows he is a woman.' It's ludicrous," the boy's mother told the Daily News. . . . The convoluted case - which includes accusations of abuse - is complex even for New York State. . . . "The lack of a [same-sex marriage] law leads to confusion for many couples," said Cathy Marino-Thomas of Marriage Equity New York. "There's no doubt this case, no matter which side ultimately wins, will be appealed."

NEW JERSEY

New Jersey Judiciary

Child Support Hearing Officer Program Operations Manual

11-1-09 -- This Manual is intended to provide procedural and operational guidance for New Jersey Judiciary staff in the processing and management of cases within their area of responsibility. The Manual was prepared under the supervision of the Conference of Family Presiding Judges and the Chief Probation Officers along with the Conference of Family Division Managers, the Committee of Child Support Managers and the Family Practice Division of the Administrative Office of the Courts (AOC). This Manual is intended to embody the policies adopted by the New Jersey Supreme Court, the Judicial Council and the Administrative Director of the Courts, but does not itself establish case management policy. It has been approved by the Judicial Council, on the recommendation of the Management and Operations Committee, in order to promote uniform case management statewide and, as such, court staff is required to adhere to its provisions.

NORTH CAROLINA

Father wins a family by fighting his firing

By Yonat Shimron - Staff Writer The News & Observer

11-1-09 -- Jim Dotson spent the past six years seeking the truth, not only from his employer who he charged wrongly fired him, but for himself and his family. . . . In October, the U.S. Supreme Court declined to hear his former employer's appeal, handing Dotson a victory even as it cost him his career, his home and most of his life savings. . . . Once a fast-rising division salesman for Pfizer, a pharmaceutical company based in New York, Dotson was fired in 2003. The firing came just days after he and his wife, Ann, returned to Raleigh from Russia with a 13-month-old adopted baby girl with chronic upper respiratory infections. . . . Pfizer claimed he was terminated because Dotson gave the Russian orphanage 24rounds of pediatric Zithromax, an anti biotic used to clear up ear and respiratory infections. The exchange, Pfizer argued, put the company at risk by giving the appearance of "quid pro quo," essentially a bribe for the baby. . . . Stunned by the charges, Dotson sued the drug maker under the federal Family and Medical Leave Act. . . . "This is a guy who rose through the ranks, moved for the company eight times, won every sales award there was, was a flag-waving, true blue Pfizer company man," said Dotson's attorney Bill Barrett of Williams Mullen in Raleigh. "He couldn't believe the injustice of this."

October 2009

NEW YORK  

Lawyer Indicted on 69 Counts in Alleged Adoption Scheme

Vesselin Mitev, New York Law Journal

10-29-09 -- A Roslyn, N.Y., lawyer who claims that his experience as an adopted child inspired him to help would-be parents has been indicted in Nassau County, N.Y., on charges that he stole more than $300,000 from couples looking to adopt by promising them children who "did not exist." Kevin Cohen, 41, was indicted Monday on 69 counts, including one of second-degree grand larceny, 11 of third-degree grand larceny, and 10 of third-degree forgery. . . . He faces up to 15 years in prison if convicted of the top count. . . . According to the indictment, which was unsealed Wednesday, Cohen had lied about "prospective adoptions which the defendant knew did not exist" and showed clients false documents, including fake sonograms.

Divorce Filings Have Dropped in the Recession Reveals Survey of Top Matrimonial Lawyers

PRNewswire

10-28-09 -- The economy appears to be downsizing the frequency of divorce cases, along with jobs and salaries.  More than half of the respondents to the latest survey of the American Academy of Matrimonial Lawyers (AAML) are citing a drop in filings during the current recession.  In all, 57% of the attorneys have noted fewer divorce filings since the last quarter of 2008. . . . "The current economic climate is proving to be far more unforgiving than estranged couples seeking a divorce," said Gary Nickelson, president of the AAML.  "Forced to weigh damaged marriages against tight budgets and uncertain financial outlooks, many spouses seem more willing to try and wait out the recessionary storm." 

SOURCE  American Academy of Matrimonial Lawyers (AAML)

LOUISIANA   

Judge Defends Denied Interracial Marriage

La. Justice of the Peace Who Wouldn't Marry Interracial Couple Says He Doesn't See What's Wrong, Now that They're Married

CBS News

10-19-09 -- The Louisiana Justice of the Peace who refused to marry an interracial couple said on "The Early Show" he doesn't see what the problem is with what he did now, because the couple is already married. . . . "I'm sorry, you know, that I offended the couple, but I did help them and tell them who to go to and to get married," he said. "And they went and got married, and they should be happily married, and I don't see what the problem is now." . . . Keith Bardwell, a white justice of the peace in Tangipahoa Parish in southeastern Louisiana, wouldn't issue a license to or preside over the nuptials for Beth Humphrey, who is white, and Terence McKay, of Hammond, La., who is black. . . . The two were later married by another area justice of the peace. . . . Bardwell, who's held his post more than 30 years, said he refused to perform the ceremony because of his concern for the future of the couple's children.

CALIFORNIA

California gives the poor a new legal right

Under a new law, the state will provide lawyers in key civil cases, such as those dealing with eviction and domestic abuse. Advocates say underprivileged litigants will get a better shot at justice.

By Carol J. Williams, The Los Angeles Times

10-17-09 -- California is embarking on an unprecedented civil court experiment to pay for attorneys to represent poor litigants who find themselves battling powerful adversaries in vital matters affecting their livelihoods and families. . . . The program is the first in the nation to recognize a right to representation in key civil cases and provide it for people fighting eviction, loss of child custody, domestic abuse or neglect of the elderly or disabled. . . . Advocates for the poor say the law, which Gov. Arnold Schwarzenegger signed this week, levels the legal playing field and gives underprivileged litigants a better shot at attaining justice against unscrupulous landlords, abusive spouses, predatory lenders and other foes.

LOUISIANA   

Interracial couple sues Louisiana Judge Bardwell, who refused to marry them

San Francisco Chronicle

10-21-09 -- According to the Associated Press and the news website NOLA.com, Beth Humphrey and Terence McKay have filed a federal civil rights lawsuit against Louisiana Justice of the Peace Keith Bardwell of Tangipahoa Parish, which is 50 miles from New Orleans (and within the NFL's one-hour-from-stadium influence radius for the 2013 Super Bowl). . . . The lawsuit focuses on the emotional and financial damage Humphrey and McKay suffered from Judge Bardwell's actions. Bardwell has openly communicated his dislike for interracial marriage, although I really think he just doesn't like marriage between blacks and whites, and refused to resign, and has said on television he will not resign..

LOUISIANA   

Interracial couple in Louisiana denied marriage license

CNN

10-16-09 -- Civil rights advocates in eastern Louisiana are calling for a justice of the peace of Tangipahoa Parish to resign after he refused to issue a marriage license to an interracial couple. . . . "He's an elected public official and one of his duties is to marry people. He doesn't have the right to say he doesn't believe in it," Patricia Morris, president of the NAACP branch of Tangipahoa Parish, located near the Mississippi line, said Thursday. . . . "If he doesn't do what his position calls for him to do, he should resign from that position." . . . The demands for Keith Bardwell, justice of the peace for Tangipahoa Parish's 8th Ward, to step down came after he wouldn't issue a marriage license to Beth Humphrey, 30, and her boyfriend, Terence McKay, 32, both of Hammond. . . . "I was just really shocked, because he's an elected official," Humphrey said.

CALIFORNIA  

Calif. Federal Judge's Ruling Helps Same-Sex Marriage Advocates in Latest Challenge to Prop 8

Dan Levine, The Recorder

10-15-09 -- Ever since the federal challenge to Proposition 8 was filed, Northern District of California Chief Judge Vaughn Walker has been leading the parties toward an early trial. On Wednesday, he didn't loosen the leash a bit. . . . Walker swept aside attempts by Prop 8 supporters to knock out the case on summary judgment. His ruling, delivered from the bench, came just an hour after argument on the motion had concluded. Walker and two U.S. Supreme Court-hardened lawyers sparred on key issues expected to affect the outcome of the case, and on each of them, his ruling helps same-sex marriage advocates more than it hurts them. . . . He made quick work of the summary judgment motion, finding that U.S. Supreme Court precedent does not preclude a fundamental right to marriage under the due process clause. And Baker v. Nelson -- a 1972 decision in which the high court, without comment, upheld an opposite-sex marriage statute in Minnesota -- isn't on point, he said.

RHODE ISLAND  

Former chief justice hired godchild’s grandmother

By W. Zachary Malinowski and Tracy Breton, Journal Staff Writers

10-15-09 -- Frank J. Williams, former chief judge of the Rhode Island Supreme Court, acknowledged yesterday that he hired the grandmother of his 6-year-old godchild as a cleaning lady at the courthouse two years ago. . . . The woman, Patricia Calise, 68, of Johnston, is the mother of Pamela DosReis, a deputy sheriff and former driver for Williams. She is in the midst of a messy divorce from her estranged husband, Frank J. DosReis, a veteran corrections officer. He has testified in court that Williams became a constant presence in his family’s life. . . . Williams also bought the family gifts — truck tires and a $1,000 television set — and he paid his goddaughter’s $6,500 tuition at St. Mary-Bay View Academy in East Providence. Frank DosReis testified last week that Williams, who he said stopped by the house at least five times a week and had his own bedroom there, is largely responsible for the dissolution of his marriage.

RHODE ISLAND  

Williams barred from visiting former driver’s family

By W. Zachary Malinowski, Journal Staff Writer

10-14-09 -- Frank J. Williams, the former chief justice of the Rhode Island Supreme Court, was barred on Tuesday from visiting or having any other contact with his 6-year-old goddaughter who is part of a messy divorce case. . . . Chief Family Court Judge Jeremiah S. Jeremiah Jr. issued the order that stopped short of naming Williams, but there is no doubt that he was referring to the man who ran the state court system for eight years. . . . The order reads, in part, “that there shall be no unrelated adult third parties of the opposite sex present at any time when either party has visitation/interaction/or is in the presence of the minor child. Godmothers and Godfathers are specifically considered to be unrelated.”

CALIFORNIA  

California Gov. Validates Same-Sex Marriages

Cheryl Miller, The Recorder

10-13-09 -- California Gov. Arnold Schwarzenegger signed legislation Sunday declaring that same-sex marriages performed outside of California prior to the passage of Proposition 8 are legally valid in the Golden State. . . . The new law also clarifies that same-sex couples who married in another state after Nov. 5, 2008, must be given the same rights and benefits as opposite-sex spouses, although their unions will not be called marriages. . . . Schwarzenegger's signature on SB 54 marks a big win for gay rights groups, which had sought to clarify the state Supreme Court's May ruling in Strauss v. Horton, S168047, and two other petitions. The decision validated the estimated 18,000 same-sex marriages performed in California prior to Nov. 5, 2008, but left unclear the status of out-of-state couples.

MONTANA  

Montana judges smack down parental rights

Charlie Butts - OneNewsNow

10-13-09 -- The Montana Supreme Court has granted parental rights to a non-parent. . . . For ten years, two women lived together in a lesbian relationship, during which one of them -- Barbara Maniaci -- solely adopted two children. But in 2006, Maniaci left her roommate and the homosexual lifestyle, and later married a man. Following the break-up, the former roommate sued for -- and now has won -- parental rights. . . . Austin Nimocks, senior legal counsel with the Alliance Defense Fund, tells OneNewsNow that Montana's highest court decided to uphold the demands of a legal stranger. . . . "What the Montana Supreme Court did was give a third party -- the parent's former roommate and girlfriend -- parental rights...," says the attorney. "And it runs contrary to clear precedent dating back several years in Montana and the United States Supreme Court. [It's] a very, very disturbing decision."

NEW JERSEY  

New Jersey Judge Under Fire for Alleged Corruption

PRNewswire

10-13-09 -- A New Jersey Superior Court judge is coming under fire from a wide array of victims and their families, some of whom have filed lawsuits alleging violations of their civil rights, racketeering, elder abuse and severe unethical behavior, among other crimes. . . . In one of the more recent cases, Judge Mary Margaret McVeigh is accused of sentencing 96-year-old Blanche Zwerdling to live in nursing home - against her wishes and those of her family - to ostensibly gain control of her trust fund and bank accounts. Full details can not yet be disclosed because the case and a potential investigation are ongoing, but further reports will follow. . . . According to a family member and court documents, the judge appointed three $300 per hour lawyers for Zwerdling - one as a guardian - while she was placed involuntarily in an assisted-living facility in New Jersey. In addition, her money is being wasted by the court while her health deteriorates, the family member said. . . . "My mother in law was so happy and comfortable in Florida," said her son-in-law. "Is this how you protect her? Spend her money without discretion, and say in open court: 'she has it so we can spend it.'" . . . Her grandson, who was the lawful trustee of the trust, was illegally removed without explanation, according to the son-in-law. The court-appointed guardian was subsequently put in charge. The granddaughter, who had lived with and cared for the woman for seven years, was thrown out on the street while the judge slapped her with a restraining order. No family members are allowed to speak with the elderly woman about her situation. And over $200,000 has been drained from her bank account by the court and the three lawyers so far, while many of her belongings were discarded at the whim of her "guardian."

COLORADO

Pilot program helps with legal tangles

Low-income people can get low-cost or no-cost counsel.

By Jeff Tucker, The Pueblo Chieftain  

10-12-09 -- While people accused of crimes are entitled to legal representation even if they can't afford a lawyer, in every other facet of the justice system folks are on their own. . . . Colorado Legal Services tries to provide assistance to low-income people working through the civil system who can't afford an attorney, and a new program is underway to help people through divorce and child-custody proceedings. . . . "Many people can agree to amicably separate, but then as the case progresses things deteriorate and can lead to more severe issues, such as domestic violence," said Gail Rodosevich, pro bono coordinator for the Pueblo office. . . . Rodosevich said that as she took on her new position with Colorado Legal Services, she was looking for programs in other jurisdictions that could get started quickly, that Pueblo could make its own and that would fill a need in the community.

NEW YORK

Protests prompted firing of Onondaga County Family Court referee

By John O'Brien / The Post-Standard

10-9-09 -- Lawyer Rosemary Bucci had worked out a child custody dispute with the opposing lawyer last year. The attorneys appeared before Onondaga County Family Court referee George Raus to let him know there was no longer a need for a hearing. . . . Raus astounded her with his response, Bucci said. . . . “He just blew up and said, ‘I’m not going to sign any order!’” Bucci said. “‘You either put your first witness on or you withdraw the petition!’” . . . Bucci told him she needed to inform her client, who was hoping to get more visitation with her child, she said. Raus responded, “Well, you can’t,” according to Bucci. She went outside the courtroom and spoke to the client anyway, she said. . . . When she returned, Raus muttered, “Well, somebody here just might go to jail,” according to Bucci. . . . Bucci’s complaint over that case to the state court system was among more than a dozen from lawyers who appeared before him. The agency investigated and announced last week that it had fired Raus from the job that paid $111,964 a year. . . . As a court attorney referee since July 2005, Raus heard strictly child custody cases. His position was created to relieve the caseload of Family Court judges.

CALIFORNIA  

A Conservative Choice for Supporters of Calif. Ban on Gay Marriages

Dan Levine, The Recorder

It was a sunny summer morning, but inside a San Francisco federal courtroom the outlook for Rena Lindevaldsen of Liberty Counsel was cloudy. . . . Charles Cooper, representing the official anti-gay marriage forces in a federal court challenge to Proposition 8, wasn't fighting hard enough, she insisted. He wouldn't try to prove, for instance, that homosexuality is an "illness or disorder." . . . "Individuals should be entitled to treatment to change your sexual orientation," Lindevaldsen argued. . . . Cooper's team quickly deflected Liberty Counsel's attempt to intervene, saying it just wanted to fight battles that "can't be won." That left Cooper -- a consummate Beltway insider who avoids the kind of language favored by Lindevaldsen -- and his firm the sole legal representatives for 7 million Californians that supported Prop 8.

NEW YORK  

Advocates to Argue for N.Y. State Recognition of Legal Same-Sex Marriages

Joel Stashenko, New York Law Journal

10-9-09 -- New York's highest court, which three years ago ruled that same-sex couples do not have a constitutional right to marry in the state, will get an opportunity to approach the issue from a different angle next week: Whether state and local governments can recognize same-sex marriages solemnized in jurisdictions where such unions are legal. . . . Two cases challenging the recognition of same-sex marriages will be heard together as the Court of Appeals begins its next session on Tuesday. . . . The Court also will hear cases next week and the week after challenging the use of eminent domain in one of the largest private developments in recent New York history, the Atlantic Yards project in Brooklyn, and whether New York City can be held liable for injuries suffered by an elementary school teacher hurt when she stepped in to break up a fight between fourth-graders.

MONTANA  

Montana Supreme Court Upholds Parental Rights in Same-Sex Case

By Amy Beth Hanson, Associated Press, Flathead Beacon

10-7-09 -- The Montana Supreme Court has upheld a woman's custody rights to the two children her same-sex partner adopted during their relationship. . . . The Supreme Court on Tuesday backed District Judge Ed McLean's ruling last year that granted Michelle Kulstad joint custody of the two children — a 9-year-old boy and a 6-year-old girl. . . . The children were adopted by Kulstad's former partner, Barbara Maniaci, in 2001 and 2004. State law does not allow both members of a same-sex partnership to adopt.

RHODE ISLAND  

Former R.I. chief justice Williams cited in divorce case involving his ex-driver

By W. Zachary Malinowski, Journal staff writer

10-6-09 -- Frank J. Williams, the former chief justice of the Rhode Island Supreme Court, is named in court papers filed in connection with a divorce petition by the deputy state sheriff who was a driver for him. . . . Deputy Sheriff Pamela J. DosReis is seeking a divorce from her husband, Frank J DosReis, a state corrections officer. . . . She was granted a restraining order in September preventing her husband from entering the couple’s Johnston house as well as custody of the couple’s 6-year-old daughter. Her husband is contesting the order and custody in a hearing that began Monday in Family Court. . . . In court papers filed in connection with his wife’s divorce petition, Frank DosReis said that Williams is the godfather of the couple’s daughter. Williams paid $6,500 in tuition last year for the girl to attend St. Mary Academy-Bay View in East Providence, and he has deposited about $6,000 in a trust account for the child, according to the court filing. . . . The newspaper has posted online two related court filings here and here.

LOUISIANA   

A.D.A. Sentell arrested

Written by Jana Ryan, Bossier Press-Tribune

10-5-09 -- At 8 a.m. today, Webster-Bossier District Attorney Schuyler Marvin was enroute to the Horseshoe Casino in Bossier City to view videotapes of an event that landed Chief Assistant District Attorney Sherb Sentell, III in jail. . . . Sentell, 43, of Minden, was arrested and charged with one count each of domestic abuse battery and public intimidation-bribery. . . . According to police reports, Sentell allegedly grabbed his wife’s arm to prevent her from walking away following a “jealousy-type incident” involving the Sentells and another person. Authorities say he later used his position to try to get out of the charges.

NEW YORK  

Alleged Adoption Ponzi Scam Broke the Hearts of Couples Desperate to Adopt

The $60K Adoption Heartbreak: Babies Who Didn't Exist

By Alice Gomstyn, ABC News Business Unit

10-5-09 -- Deborah Josephs cried all the way to central Pennsylvania. It was a long, difficult drive from Port Washington, N.Y., where her husband, Milton, had been hospitalized with a serious skin infection. . . . She didn't want to leave him, Josephs said, but she was also excited about where she was going. . . . "I left him there because I thought I would be picking up a baby," she said. "I didn't want to miss an opportunity of a lifetime for our family." . . . "Now," she said, "I feel like an idiot." . . . The Josephs are one of at least 16 couples who say they were duped into paying thousands of dollars into an alleged adoption scam run by Roslyn, N.Y., lawyer Kevin Cohen, the founder of the Adoption Annex, a now-defunct, nonprofit adoption services organization.

NEVADA  

Judge’s lawyer husband accused of domestic battery

By Jeff German, Las Vegas Sun

10-2-09 -- The husband of District Judge Stefany Miley was arrested late Thursday on a domestic battery charge following a disturbance at the couple's home. . . . Edward R. Miley, a lawyer who represented one of the defendants in the O.J. Simpson robbery case, was taken into custody sometime after Metro Police arrived at the scene about 9 p.m., according to a police report obtained by the Sun. He was then taken to the Clark County Detention Center to be booked into the jail. . . . Judge Miley — a former Family Court judge who was elected last year to the District Court seat vacated by Elizabeth Halverson — called police from a neighbor’s house about 8:30 p.m. to report a domestic violence incident involving her husband, the report said. Miley told police at the neighbor’s house that her husband was “drinking heavily” and choking their dog, which had bitten him.

NEW YORK  

N.Y. Attorney Accused of Ponzi-Like Adoption Scam

Frank Eltman, The Associated Press, Law.com

10-2-09 -- An attorney who claimed his own experience as an adopted child motivated him to help people seeking to start families is suspected of running a Ponzi-like scheme that ripped off couples from New York to Texas, promising children that didn't exist. . . . Kevin Cohen, 41, pleaded not guilty on Sept. 25 to grand larceny and other charges after one Long Island couple told prosecutors they paid him $60,000 in fees for a promised baby that he never delivered. Since then, 15 other couples from New York, Georgia, Ohio and Texas have contacted a prosecutor in New York's Nassau County, telling similar stories. . . . Cohen's attorney, Matin Emouna, said the disputes are civil matters and not something requiring criminal prosecution. Cohen, of Roslyn, N.Y., once ran an adoption agency called the Adoption Annex and has had many satisfied clients, he said.

TEXAS  

In Divorce Case, Judge Finds Texas Ban on Gay Marriage Unconstitutional

Mary Alice Robbins, Texas Lawyer

10-2-09 -- A judge in Dallas has held that Texas' constitutional ban on gay marriage violates the 14th Amendment. . . . In an order signed Thursday in In the Matter of the Marriage of J.B. and H.B., 302nd District Judge Tena Callahan held that Texas Constitution Article 1, §32(a), which provides that "marriage in this state consists only of the union of one man and one woman," violates the 14th Amendment to the U.S. Constitution. Callahan further held that Texas Family Code §6.204, which addresses testimony of a man and wife in a suit for dissolution of a marriage, violates the 14th Amendment. . . . She prefaced those findings by writing that she was ruling "[o]n the limited issue of whether the Court has jurisdiction to divorce parties who have legally married in another jurisdiction and who otherwise meet the residency and other prerequisites required to file for a divorce in Dallas County, Texas." Callahan found that she has jurisdiction to hear a suit for divorce of two men legally married in another jurisdiction and struck the plea to the jurisdiction filed by the Texas Office of the Attorney General.

September 2009

ARIZONA  

New abortion laws halted

Judge: Rules can't take effect until suits decided

Casey Newton,  The Arizona Republic

9-30-09 -- A Maricopa County Superior Court judge issued a preliminary injunction Tuesday against new abortion restrictions passed by the Legislature, preventing two laws from going into effect today as planned. . . . Judge Donald Daughton ruled that plaintiffs in a lawsuit brought by Planned Parenthood established "a strong likelihood of prevailing on the merits" of the case should it go to trial, and women faced "the possibility of irreparable injury" should he not issue the injunction. . . . Daughton's order blocked several key provisions of House Bill 2564 and Senate Bill 1175, which were to take effect at 12:01 a.m. today.

KENTUCKY  

Proceedings against family court judge begin

Gormley Accused Of Judicial Misconduct

By Shawntaye Hopkins, Kentucky.com  

9-30-09 -- A panel of judges from across the state perused transcripts Tuesday and watched hours of video recordings from the courtroom of a Central Kentucky family court judge facing charges of misconduct. . . . Family Court Judge Tamra Gormley, who was appointed in 2007 to a district that covers Scott, Woodford and Bourbon counties, is on trial before the state's Judicial Conduct Commission, which investigates and reviews complaints against judges. . . . Gormley faces seven counts of misconduct, but the trial covers only three charges filed early this year. The other misconduct charges were filed earlier this month.

MICHIGAN  

Lack of legal help keeping many parents, kids apart

By Robin Erb, Detroit Free Press Education Writer 

9-30-09 -- Sometimes it's because of sheer neglect or abuse. But often, not having attorneys to represent them keeps Michigan moms and dads away from their children. . . . That's the conclusion of a report by the American Bar Association's Center on Children and the Law for the Michigan State Court Administrative Office. . . . In some ways, the 158-page report confirms what those in the child welfare system have known for years: Parents -- often good parents -- who are overwhelmed by poverty and crises can get lost in the bureaucracy. . . . "These people are in trouble because they don't know how to reach out and get help for themselves," said Jenifer Pettibone, management analyst for the court office. . . . Janice Mabry, a 43-year-old Detroit mother, knows the frustration well. She turned to the new Detroit Center for Family Advocacy on West Grand Boulevard for help.

NEW JERSEY  

Former Local Judge Pleads Guilty to Assaulting His Wife

By The Associated Press | New York Lawyer

9-30-09 -- A former municipal judge in New Jersey has pleaded guilty to assaulting his wife, who is a New York City radio personality. . . . Under a plea deal, John Paragano is to receive probation and provide free legal services.

NEW YORK  

Prosecutors: Adoption scam's list of victims grows

By Ann Givens, newsday.com

9-29-09 -- Prosecutors say they are still fielding several calls a day from would-be parents who say they were scammed by adoption lawyer Kevin Cohen, and they now have potential cases as far-flung as Georgia and Ohio. . . . They say they are now investigating claims from 16 couples in four states, all of whom say Cohen, 41, of Roslyn, took their money while feeding them phony stories about the babies they hoped they would adopt - babies who, prosecutors say, never existed. . . . As calls continue to come in, prosecutors say they will look at whether the new complaints support additional charges against Cohen. However, they say they will not make a final decision on that matter until the rush of calls peters out. . . . Six of the complaining couples are from Long Island, two from Queens, four from Manhattan, one from Scarsdale, and one each from Georgia, Ohio and Texas, prosecutors said.

CALIFORNIA  

Discovery Fight in Suit Challenging Calif. Ban on Gay Marriages

Dan Levine, The Recorder

9-28-09 -- Even the discovery fights in a federal challenge to Proposition 8 are weighty. . . . Gay marriage opponents trooped into Northern District of California Chief Judge Vaughn Walker's courtroom Friday to quash requests for internal campaign e-mails and other documents from last year's "Yes on 8" effort. Marriage supporters, meanwhile, argued that the motivations of those behind the ballot initiative are highly relevant because discriminatory intent would undermine opponents' claims of a rational state interest in the ban. . . . First Amendment protections on political speech and free association should shield much of the evidence sought by gay marriage supporters, argued Yes on 8 attorney Charles Cooper of Cooper & Kirk.

FLORIDA  

In Tampa courtroom, missing spouse won't stop divorce

By Jessica Vander Velde, Times Staff Writer

9-28-09 -- Juliana Cooper went to Judge Scott Stephens' courtroom seeking a divorce, a new last name and a fresh start. But she had no idea where her husband was. She hadn't seen him in a decade. . . . "I'm assuming he's still alive," she said. . . . People like Cooper aren't unusual in Stephens' Tampa courtroom, and this scene replays throughout Florida. . . . Larry Glinzman, spokesman for Community Legal Services of Mid-Florida, said the situation even has a name: disappearing spouse syndrome. . . . It's a phenomenon that happens around the Tampa Bay area. . . . "I see these people come in, and they've been separated a long time — "he went back to Jamaica" or "she went up to Alabama," said Pinellas-Pasco Circuit Judge Peter Ramsberger, who handles family law cases.

CALIFORNIA  

Carlos Moreno, California high court justice, is raising his profile

The justice's opposition to Proposition 8, a bold move for someone being considered for a seat on the U.S. Supreme Court, may signal a departure from the middle of the road.

By Maura Dolan,  The Los Angeles Times

9-26-09 -- Reporting from San Francisco - For most of his eight years on the California Supreme Court, the low-key and affable Carlos R. Moreno largely blended in with the six other justices, building a reliably middle-of-the-road record. . . . Then came Proposition 8, the initiative that reinstated a ban on same-sex-marriage. In May, Moreno cast the court's only vote to overturn it. . . . Now, with the court's term concluding last month, the jurist chosen because of his moderate views is getting a second appraisal from legal analysts, who say his unexpected boldness may signal a growing independence. His lonely stance has raised his profile and encouraged speculation that he may be stepping into a more visible role.

TEXAS  

Stanford’s Wife Sues Her Ex-Divorce Lawyer for $200 Million

By Laurel Brubaker Calkins, Bloomberg

9-25-09 -- Susan Stanford, the estranged wife of accused Ponzi scheme mastermind R. Allen Stanford, is suing her former divorce lawyer for failing to tell her of a verbal offer to settle her divorce for $200 million last year. . . . Susan Stanford wants lawyer Nancy Rommelmann to pay her that amount now for alleged negligence and breach of fiduciary duty for not passing along the offer at a January 2008 hearing. Stanford is asking for “$200 million plus’’ in damages, interest and attorneys fees in a complaint filed yesterday in state court in Houston, according to the court’s Web site. . . . “If the plaintiff had been made aware of the substantial sum offered as settlement in her divorce proceedings, she would have readily accepted,’’ Susan Stanford’s current attorney, Michael P. Mallia, said in the complaint. By the time his client learned of the offer, “the substantial community property assets at issue in her divorce proceedings” had been seized or frozen,’’ he said.

FEDERAL COURTS

3rd Circuit Ruling Broadens Protection of FMLA

Employer may face liability if worker is fired after asking for time off

Shannon P. Duffy, The Legal Intelligencer

9-24-09 -- In a ruling that broadens the scope of the Family and Medical Leave Act, the 3rd U.S. Circuit Court of Appeals has ruled that the statute's retaliation provisions may be invoked by workers who claim they were fired for merely asking permission to take a leave and cannot be limited to those who actually exercised the right.

"It would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins," U.S. Circuit Judge Thomas Hardiman wrote in Erdman v. Nationwide Insurance Co. . . . Lawyers for Nationwide argued that the 3rd Circuit had already decided the issue in its 2004 ruling in Conoshenti v. Public Service Electric & Gas Co., which held that the first requirement of a retaliation claim is that the worker "took an FMLA leave."

NEW JERSEY  

Splitting Couple Awarded Joint Possession of Pet Pug

Mary Pat Gallagher, New Jersey Law Journal

9-24-09 -- A New Jersey judge held Monday that a former couple must share possession of a six-year-old, pedigreed pug they bought for $1,500 when they were engaged and living together. . . . The ruling, which allows Doreen Houseman and Eric Dare to spend alternating, five-week stretches with the dog, is the aftermath of a groundbreaking appellate decision last March that pets have a subjective value that transcends their monetary costs. . . . In Houseman v. Dare, FM, 08-667-07, Gloucester County Superior Court Judge John Tomasello had denied Houseman's request for possession on the ground that pets, like furniture or cars, lack the unique value -- such as for heirlooms or works of art -- that is essential to specific performance.

KENTUCKY  

Family court judge gets 4 new charges

Sept. 29 Hearing Set For Gormley

By Shawntaye Hopkins, Kentucky.com 

9-22-09 -- The state's judicial conduct commission filed four new charges of misconduct this week against a Central Kentucky family court judge who had been charged earlier this year with misconduct in relation to three incidents in Scott and Woodford counties. . . . The commission initially charged Family Court Judge Tamra Gormley, who was appointed in 2007 to a district that covers Scott, Woodford and Bourbon counties, with three counts of misconduct in February. The new charges stem from four incidents this year in which the commission says Gormley acted inappropriately.

NEW YORK  

Lawyer's Bid to Foreclose on Girlfriend's Condo Rejected

Joel Stashenko, New York Law Journal

9-21-09 -- The New York Court of Appeals Thursday affirmed an Appellate Division, 1st Department, holding that a lawyer should not be allowed to foreclose on a condo he said he bought for his girlfriend/future wife before she discovered he was married to another woman. . . . In an unsigned memorandum ruling, the court unanimously also said Radiah K. Givens had stated a prima facie case of fraudulent inducement to marriage against Joseph I. Rosenzweig. . . . The appeals panel had ruled against granting Rosenzweig summary judgment before discovery was conducted. . . . The 3-1 majority noted the "highly unusual circumstances of this case" and the outstanding questions over whether the $285,300 used to buy the condo was a loan or a gift.

CALIFORNIA  

Medical Suite Allegedly the Scene of Another Botched In Vitro Procedure

Amanda Bronstad, The National Law Journal

9-15-09 -- The lawyer who obtained a $1 million settlement for a woman who was accidentally implanted with another couple's embryos has filed another suit on behalf of a couple against a fertility clinic housed in the same San Francisco medical building suite. . . . Nancy Hersh, founding partner at San Francisco's Hersh & Hersh, filed the suit on Monday, claiming that doctors at the Laurel Fertility Clinic used the wrong man's sperm to fertilize Katharine Aschero's eggs earlier this year. Aschero and her husband, Rob Aschero, had been trying to get pregnant through in vitro fertilization. . . . Once the error was discovered, the clinic destroyed the viable embryos without the consent of the Aschero couple.

CALIFORNIA  

When judges do wrong

Laura Lynn, LA Family Courts Examiner

9-11-09 -- Tony award winning actress, Tonya Pinkins (24, Army Wives) knows firsthand, that when judges do wrong, no one will defend you against them. Pinkins says, “I’ve had some amazing attorneys. But they’re extremely costly. When I’ve discovered judges stepping outside the bounds of law, no attorneys would touch that.” And with good reason; attorneys have to consider a career in front of a judge. One case can make a career and challenging a judge can end one. Naturally, self preservation prevails. . . . So Pinkins has taken on judges as a pro se or in pro per. “The court’s hate pro ses not just because we don’t know the rules but because this is our life and we have nothing to lose so we can’t be controlled the way attorneys can.” Pinkins has found the system to be resistant to siding with self represented persons over judges. . . . “I once had a judge refuse service. The processor hands him the document and he says 'I refuse it'. So I’m in the appellate court library and the calls have been made and they are expecting to the throw me out for lack of service. But I have the Judge served on the bench that morning. Well all hell breaks loose and the Appellate Judge denies my request anyway with no citation of law except a mere ‘It’s in one of those black books’." . . . But that didn’t stop Pinkins, who with the assistance of Monica Getz and The Coalition for Family Justice, urged that Judge Lewis R. Friedman be transferred from the Manhattan matrimonial part down to housing court. Oprah dubbed Pinkins one of the ten women in America who take your breath away for her work on behalf of pro se litigants. And she is at it again. This time she’s seeking the recusal of Los Angeles Superior Court Justice Donna Fields-Goldstein.

Foes of Gay Marriage Draw Battle Lines

Dan Levine, The Recorder

9-11-09 --Gay marriage foes have launched an attempt to mold the federal challenge to Proposition 8 in their favor -- or if they're very successful, to win the lawsuit without a trial. . . . And if they're very unsuccessful, they won't even be allowed to file their motion. . . . Prop 8 proponents, represented by Charles Cooper of Washington, D.C.'s Cooper & Kirk, sought permission to file a 98-page summary judgment motion late Wednesday, even though the court's normal limit is 25 pages. This raised the ire of Gibson, Dunn & Crutcher partner Theodore Olson. . . . Northern District rules only allow for such requests before the filing deadline, not on the day of, Olson wrote in papers filed Thursday. . . . "Principal briefs filed before the United States Supreme Court on significant constitutional questions are limited to well under half the length requested here," he wrote, adding that it isn't fair for the plaintiffs to have to oppose such a lengthy motion in 14 days. . . . Cooper argues in papers that the fat briefs are warranted, "in light of the profound importance of the institution of marriage and the complexity of the issues involved."

MISSOURI  

Bryan Cave Sued Over Pricey Alleged Error in Prenuptial Agreement

Karen Sloan, The National Law Journal

9-10-09 -- A prominent St. Louis businessman has filed a legal malpractice suit against Bryan Cave, alleging that the firm botched his prenuptial agreement, causing him $10 million in losses tied in part to the appreciation of his high-profile modern art collection, which includes works by Jackson Pollack and Jasper Johns. . . . Donald Bryant claimed that Bryan Cave partner Lawrence Brody failed to factor in the capital gains tax on the marital estate that Bryant shared with his former wife, Barbara. . . . "What Bryan Cave failed to do is properly account for the appreciation of the marital estate, and a large part of that is the artwork," said Matt Donohue, an attorney at Markowitz, Herbold, Glade & Mehlhaf in Portland, Ore. "They failed to write clearly in the agreement whether [Barbara Bryant's settlement payment] was based on the gross value or the net. They kind of blew it on the taxes."

NEW YORK  

Impoverished Woman Loses Bid to Increase $100 a Week Alimony

Mark Fass, New York Law Journal

9-2-09 -- Their marriage was as short as it was spontaneous. Jan and Leonard S., as they are known in their divorce proceedings, married in August 1966 during a three-day stopover in Acapulco. They were told the marriage would make it easier for Jan to obtain a visa for Australia, where Leonard was headed on a Fulbright scholarship. . . . Jan obtained her visa, and the couple returned to the United States 13 months later, at which time they immediately and permanently separated -- Leonard headed to New York, Jan to Maryland. . . . The couple's fortunes also diverged. Leonard made a substantial fortune as a businessman and financier; Jan became homeless, and mentally and physically ill. . . . Now, nearly 40 years after she first filed for divorce and 35 years after she agreed to $100 per week for life in alimony -- as spousal support was still known when the couple divorced in 1974 -- Jan has sought an upward modification, citing a substantial change of circumstances and the danger of her becoming a "public charge."

August 2009

MASSACHUSETTS   

Mass. Case May Be Key in Taking Gay Marriage Fight to Supreme Court

Marcia Coyle, The National Law Journal

8-31-09 -- While the high-profile, Ted Olson- and David Boies-managed legal fight against California's Proposition 8 captures headlines, a carefully planned case quietly under way in Massachusetts federal court could be the gay marriage test with the greatest national impact. . . . The challenge, Gill v. Office of Personnel Management, is one of four lawsuits in different parts of the country that ask federal courts to strike down all or parts of the 1996 federal Defense of Marriage Act (DOMA). The suits, and the Gill case in particular, according to advocates and scholars closely watching their progress, are just the opening shots in a struggle destined for the U.S. Supreme Court. . . . "If you're looking to effect legal change, you're looking for plaintiffs who have been harmed, a lawsuit reasonably well-funded, and the legal expertise to take it up [to] the appellate process," said Arthur Leonard of New York Law School, an expert on gay and lesbian legal issues. The Gill case meets that description, he and others believe.

Divorce-court smears meet unwilling victim

Celebrity target battles system after seeing reputation trashed

By Bob Unruh, © 2009 WorldNetDaily

Craig Schelske

8-28-09 -- Divorce cases, especially celebrity splits, can get nasty, with bitterness-inspired accusations flying, sometimes with little regard for the truth. But when it's final, how does a celebrity target of those reputation-damaging claims – in the age of the Internet spread instantly around the globe – regain the esteem of those who read and perhaps believe the mud? . . . Craig Schelske is finding out. . . . He's the former husband of country music star Sara Evans. Their divorce was final some time ago and both have moved on with their lives. But Schelske described the smear-attacks he endured and its impact on his life. . . . Those allegations included claims of photographic evidence of sexual misbehavior on Schelske's part, including statements that he posted explicit images in the digital world – allegations he has denied throughout the process. . . . Now Schelske is working with a newly formed organization called FamiliesUnite.org that seeks to protect parents who are targeted in those divorce fights. . . . "We have found an honest, Christian, conservative parent that has been totally destroyed by the system and a news media that just accepted that all the facts put out were true," Families Unite spokesman William Fain told WND.

MASSACHUSETTS   

GC Didn't Split Stock Options With Ex-Wife, but That Wasn't Contempt

Leigh Jones, The National Law Journal

8-21-09 -- The general counsel of LoJack Corp. has beaten a contempt judgment, but he still must kick in additional alimony to his ex-wife for money he made in company stock. . . . The Appeals Court of Massachusetts found on Tuesday that Thomas A. Wooters, executive vice president and top in-house counsel for the anti-auto theft company, ran afoul of a divorce judgment when he failed to pay his ex-wife's portion of the $1.2 million he earned in 2006. . . . Wooters, formerly of counsel at Sullivan & Worcester and partner at the law firm now known as Nixon Peabody, had asserted that a chunk of his 2006 earnings came from exercising some of his LoJack stock options, which were not part of the divorce agreement. . . . The three-judge intermediate appeals panel held, as a matter of first impression, that the money he made from exercising his stock options was part of his "gross annual employment income" for purposes of alimony. At the same time, the appeals court reversed the lower court and found that his failure to pay Janet S. Wooters additional alimony did not amount to "clear and undoubted disobedience of a clear and unequivocal demand" within the divorce agreement.

GENERAL

Divorce attorneys: Mom and dad roles are different

One came in shorts, headed to a kid's ballgame. One has been practicing law for just a few years, while another has been at it for several decades.

Barb Ickes, Quad City Times 

(Editor's Note: This is part of a Quad-City Times series called "State of Marriage". Read the rest of the series at stateofmarriage.com.) . . . Two of the five divorce attorneys at a Quad-City Times roundtable were women. One began her practice right out of law school while the other waited until later in life to enroll.

8-19-09 -- In other words, five different perspectives. . . . Even so, the attorneys agreed on a handful of major changes that occur in divorces today. . . . Dave Millage, the most experienced lawyer on the panel, said he rarely saw a father granted - or even pursue - primary custody of children in the early years of his career. . . . Asked whether women were presumed to be the better parent, he said, "In 1978, that was the presumption." . . . Even in 1990, when Janice Roemer started her practice, "judges didn't consider men."

KANSAS  

DIY divorce cases get limited legal aid

By George Diepenbrock

8-17-09 -- Douglas County District Judge Jean Shepherd has seen people try to represent themselves in divorce cases. . . . And that, many times, creates difficulties. . . . Some people download legal forms they think they need from the Internet. However, the forms are typically from other states. . . . “They make no sense, and people really don’t know how to fill the forms out,” Shepherd said. “Judges cannot treat pro se litigants different than we treat the other litigants. As frustrating as it is, we can’t give them legal advice.” . . . And normally, attorneys must take on a client fully or not at all. . . . But help now is available. . . . People in Douglas County who want to represent themselves in divorce court — known as pro se litigants — can get aid from attorneys through a “limited representation” pilot program. Those attorneys might prepare documents or assist in part of the case. ********* The state committee studying the issue in 2010 will report back to the Kansas Supreme Court about how the pilot project worked. . . . In Douglas County, litigants in court can get a list of attorneys who are trained for limited representation and information about the pilot project. . . . “People can then come into court without an attorney, but at least they will have service on the other side,” Shepherd said. . . . The list is also available through the Clerk of the District Court’s Web site, at:

www.douglas-county.com/district_court/dc_limitedscope.aspx

FEDERAL COURTS

Appeals Court: Abortionists Must Follow FDA Regs

Josh Montez, Citizen Link

8-14-09 -- The 6th U.S. Circuit Court of Appeals has ruled that abortionists must follow FDA regulations when dispensing the abortion pill known as RU-486. . . . The long-running court case involves a Planned Parenthood challenge to an Ohio law. At least six U.S. women have died after taking RU-486. . . . Dr. Donna Harrison, president of the American Association of Pro-Life Obstetricians & Gynecologists, said the rules help protect the women who take the drug. . . . "The FDA rules should have gone much further than they did," she said, "but they were the minimum that would allow for the drug to be used under less dangerous circumstances."

NEW YORK  

Housing Bust Ruled No Cause to Upset Child Support Pact

Mark Fass, New York Law Journal

8-14-09 -- A woman who accepted title to the family home as prepayment for 15 years of child support cannot seek arrears simply because the house sold for only two-thirds of the value estimated at the time of the divorce, a Long Island judge has held. . . . "The law is clear that both [the Domestic Relations Law] and the public policy in favor of finality require the enforcement of property distribution agreements pursuant to their terms, absent fraud, regardless of post-agreement changes in the values of the assets," Supreme Court Justice Anthony J. Falanga of Nassau County wrote in Deabreu v. Deabreu, 04-203424. . . . "The law views the equitable distribution of marital assets as a snapshot, not a movie," he said. "If an agreement distributing marital assets is not subject to vacatur, on the date of its execution, on grounds sufficient to vitiate a contract, it may not be modified or set aside on the ground that future events have rendered the division of assets inequitable."

NEW YORK  

Malpractice Claim Goes Forward Against Divorce Attorney, Firm

Noeleen G. Walder, New York Law Journal

8-12-09 -- A doctor who claims he had to take on a huge tax burden to pay his ex-wife $1.2 million pursuant to a divorce settlement can bring a malpractice claim against the matrimonial lawyer who advised him to sign the allegedly "unrealistic" stipulation, a state appeals court has ruled. . . . Seth Fielding claims he incurred heavy taxes when he dipped into a retirement account to satisfy the stipulation, which provided that the payment was to be made from "immediately available" funds. . . . He accused Stephanie Kupferman of Kupferman & Kupferman of refusing to renegotiate the settlement after Dr. Fielding realized he could not obtain a mortgage or home equity line of credit on his Upper West Side apartment before finalizing his divorce. He also said she failed to inform him that splitting the retirement account would result in adverse tax consequences. 

CALIFORNIA  

Another complaint to the CJP regarding Presiding Family Law Judge Marjorie Steinberg

Laura Lynn, Examiner.com

8-8-09 -- The following letter is written by the mother who will probably be jailed for sending emails to her son after seeing his disturbing facebook. (See the story .) Any opinions expressed are solely the opinion of the author and this reporter has not verified any of the information presented as fact. Her story is consistent with so many others that I hear coming out of the Los Angeles Superior Family Law Court.

August 8, 2009

State of California
Commission on Judicial Performance
455 Golden Gate Avenue, Suite 14400
San Francisco, CA 94102-3660

Dear Counsel:

On September 28, 2007, I wrote a complaint letter to you concerning the performance of Commissioner Scott M. Gordon of the Los Angeles Superior Court. You returned my letter and supporting documentation to me and advised me to direct the complaints to Judge Stephen Czuleger. . . . On October 24, 2007, I began directing my complaint letters to the presiding Judge Stephen Czuleger pursuant to your instruction. The Honorable Charles W. McCoy, Jr. Assistant Presiding Judge replied to me and indicated that the complaints were concerning a Family Law matter and that they would be reviewed and responded to by Supervising Judge, Family Courts.

NEW YORK  

Judge Reduces Partner Interest in Law Firm Sought by Wife

Noeleen G. Walder, New York Law Journal

8-4-09 -- An attorney who rose to partner by virtue of his own "tenacity" and "perseverance," has to hand over only 25 percent of the value of his partnership interest to his estranged spouse, a judge in Westchester, N.Y., has ruled. . . . During most of his nearly 30-year marriage, Stuart Fleischmann, a partner in Shearman & Sterling's capital markets group, was the sole breadwinner, while his wife, Toni, stayed at home with the couple's three children, attended firm functions and hosted clients at their home. . . . For the most part, the judge said that her activities represented her overall contributions to the marriage, as opposed to her specific contributions to Fleischmann's appointment as a Shearman & Sterling partner, Supreme Court Justice Lewis Jay Lubell (See Profile) held in Fleischmann v. Fleischmann, 1208-06. . . . In September 1979, Fleischmann enrolled at Villanova Law School, where he finished half of the curriculum before marrying Toni on Dec. 27, 1980.

July 2009

NEW YORK

2nd Circuit: Estranged Wife With Shared Property Title Lawfully Arrested for Trespassing

Noeleen G. Walder, New York Law Journal

7-30-09 -- A woman who was arrested after she returned to the house she had shared with her estranged husband to retrieve personal belongings cannot sue for false arrest even though she shared title to the former marital residence, a federal appellate court has ruled. . . . Vacating a lower court ruling, the 2nd U.S. Circuit Court of Appeals concluded in Finigan v. Marshall, 07-0964, that Saratoga County Deputy Sheriff William E. Marshall had probable cause to arrest Geneva Finigan for trespass when he responded to a report of a burglary at the upstate home occupied by her husband Robert, who was away on vacation. . . . Commenting that a finding of probable cause immunizes a defendant from a suit for false arrest, the court remanded the case for further proceedings. . . . While title might have allowed Ms. Finigan to secure a court-order allowing her to enter the property with supervision, "her resort to self-help stands on a different footing," the circuit wrote. . . . And it noted that under New York law a nonresident spouse who is a titled owner of a house can be charged with burglary if she enters without the permission of the resident spouse.

FEDERAL COURTS

Bayer Sued Over Safety of Popular Birth Control Pills

Tresa Baldas, The National Law Journal

7-14-09 --First came the warning letter from the U.S. Food and Drug Administration; now it's lawsuits. . . . Bayer HealthCare Pharmaceuticals has been hit with four individual federal lawsuits -- three in Ohio, one in Wisconsin -- involving the safety of its popular birth control pills Yaz and Yasmin. And plaintiffs lawyers vow that plenty more are in the pipeline. . . . The back-to-back lawsuits -- which were filed on July 7, 9 and 10 -- come after Bayer reached an agreement with the Food and Drug Administration in 2008 to run a $20 million corrective ad campaign for overstating the benefits of Yaz and downplaying its risks. The FDA had issued Bayer a warning letter about the ads, noting that Yaz actually has additional risks compared to other birth control pills because it contains the progestin drospirenone, which can increase potassium levels. . . . Plaintiffs lawyers say the FDA letter will serve as handy evidence in their lawsuits, which allege that Bayer failed to warn women and their doctors of the pills' increased risk of injury -- most notably blood clots -- while overpromoting the benefits of the drugs.

ILLINOIS  

Appeals Court Upholds Parental-Notice Abortion Law

By Andrew M. Harris, Bloomberg

7-14-09 --An Illinois law requiring doctors to give a parent or adult family member at least 48 hours’ advance notice of when a girl under age 18 will abort a pregnancy is constitutional, a U.S. Appeals Court ruled. . . . A three-judge panel of the Chicago-based court today said that state Supreme Court rules setting up judicial procedures for an expedited bypass hearing satisfy minors’ constitutional rights to the procedure. . . . “The law provides an exception to notice for such minors, if they establish that they are mature enough to make the decision on their own or that notice is not in their best interests,” U.S. Circuit Judge Richard Cudahy wrote for the court. . . . In its ruling, the court dissolved an injunction barring application of the statute formally known as the Illinois Parental Notice of Abortion Act of 1995, which had been stayed while the state’s high court created the bypass procedure. . . . Legislation first creating a parental notice provision was passed by the state legislature in 1983 and never enacted, the court said. It was superseded by the 1995 measure, which has since been the subject of litigation.

VIRGINIA  

Va. lawyer convicted in NH child support case

Associated Press, WCAX

7-11-09 -- A Virginia lawyer has been convicted of failing to pay about a half million dollars in child support in New Hampshire over the last seven years. . . . Fifty-7-year-old Peter Mitrano of Fairfax, Va., was charged with not paying support that was ordered in 2002 by a judge in Lebanon.

DISTRICT OF COLUMBIA

Gay Marriage Recognized in Nation's Capital

Jeff Jeffrey, The National Law Journal

7-8-09 -- Beginning at 12:01 a.m. Tuesday, same-sex couples married in jurisdictions outside D.C. had their unions recognized by the District, and work is underway to allow gay and lesbian couples to get married in Washington as well. . . . That's good news for the gay and lesbian community, says D.C. Councilmember David Catania, adding that he has been pleased with the reaction to "this historic legislation" from Washington's residents. . . . "The opposition has been less than tepid. More like weak tea. There's only been one really active person opposing the measure, and he isn't even from D.C.," Catania says, referring to Bishop Harry Jackson, of Hope Christian Church in Beltsville, Maryland. . . . Jackson emerged as a leader of the effort to oppose expanding marriage rights for the gay community. After the D.C. Council passed the bill that allowed same-sex marriages to be recognized in the District, Jackson spearheaded the effort to overturn it by referendum. The D.C. elections board rejected the proposed referendum on the bill, saying that it would have violated the D.C. Human Rights Act, which bars discrimination based on sexual orientation.

MASSACHUSETTS   

Mass. challenges federal Defense of Marriage Act

By Martin Finucane, Globe Staff

7-8-09 -- Massachusetts, the first state in the nation to legalize gay marriage, has become the first to challenge the constitutionality of a federal law that defines marriage as the union of a man and a woman, saying Congress intruded into a matter that should be left to individual states. . . . "Our familes, our communities, and even our economy have seen the many important benefits that have come from recognizing equal marriage rights and, frankly, no downside," Attorney General Martha Coakley said this afternoon at a news conference announcing the lawsuit. "However, we have also seen how many of our married residents and their families are being hurt by a discriminatory, unprecedented, and, we believe, unconstitutional law."

NEW YORK  

Widow Lacks Standing to Sue Husband's Lawyers Over Mishandled Will, Judge Finds

Mark Fass, New York Law Journal

7-10-09 -- A widow who claims that the mishandling of her husband's will by his attorneys will cost her $9 million may not pursue a malpractice claim against them, a Manhattan judge has ruled. . . . Supreme Court Justice Marilyn Shafer ruled that there was neither privity nor even "near privity" between the widow, Jeanne Sorenson Leff, and the attorneys, William Bush and Richard J. Cunningham of Fulbright & Jaworski. . . . Shafer discounted Leff's argument that her occasional interactions with the attorneys, including their preparation of her own will, created an attorney-client relationship regarding her husband's estate planning. . . . "[T]he mere fact that plaintiff might have had a 'subjective belief as to the existence of an attorney-client relationship' is not enough to create [one]," Shafer wrote in Leff v. Fulbright, 117424/06. . . . The decision raises the question of who, if anyone, may sue in New York for malpractice when attorneys make mistakes in planning estates. . . . "That's a very good question," said Sanford J. Schlesinger, the chair of the wills and estates department at Schlesinger Gannon & Lazetera. "In New York, we're one of the few states left with the privity doctrine. When the decedent died, he was the only one who had privity and he was the only one who could sue."

CALIFORNIA

Calif. Bill Would OK Out-of-State Gay Marriages

Mike McKee, The Recorder

7-9-09 -- The California Legislature is getting back into the Proposition 8 fight with a bill that would recognize possibly thousands of same-sex marriages performed outside of California before the measure was passed. . . . SB 54 , introduced late last week by Sen. Mark Leno, D-San Francisco, also would ensure that gay and lesbian couples who have married in other states or countries since Nov. 5 -- when Prop 8 became official -- receive all the rights and obligations opposite-sex California couples enjoy, with the exception of the designation of "marriage." . . . The bill faces its first test today in the Assembly Judiciary Committee, which is dominated by Democrats. It already has generated opposition from two conservative groups, the California Catholic Conference and the Capitol Resource Institute.

MINNESOTA   

Attorney in domestic assault case is accused of witness tampering

Charges of making terroristic threats surround a Woodbury lawyer said to have become her client's lover.

By Anthony Lonetree, Minneapolis Star Tribune

7-9-09 -- At first, Kristi McNeilly was the defense attorney, and Trinis Derrelle Edwards her client in a domestic assault case involving Edwards' wife, Lori Edwards. . . . Now, five months later, attorney and client are lovers, according to court documents, and McNeilly faces charges of tampering with witnesses in the assault case and of paying Lori Edwards to either not testify against her husband or to lie on the stand. . . . And the witnesses whom the attorney either allegedly threatened or assaulted? Her brother, Judah McNeilly, and her father, Stephen McNeilly. . . . That's according to a criminal complaint filed this week against Kristi McNeilly in Ramsey County District Court.

GENERAL

Study Finds Gaps in Aid for Non-English Speakers in State Civil Courts

By John Schwartz, New York Times

7-3-09 -- When Maythe Ramirez went to Superior Court in Contra Costa, Calif., for a child custody hearing in 2006, she wanted to tell the judge that her husband beat her and should not be allowed broad visitation rights. The court did not provide an interpreter for her, however, and Ms. Ramirez, who speaks almost no English, could not follow the arcane proceeding, much less participate. . . . “It is really as if you are doing nothing in court,” she said in Spanish through an interpreter, “standing still and not being able to explain what’s really happening.” . . . Ms. Ramirez, who came to the United States from Mexico, later divorced her husband and had the visitation rules modified with the help of a lawyer from Bay Area Legal Aid, who got her interpreters for other hearings. . . . The court system can be a bewildering place for anyone, but it can be terrifying for those who do not understand English. Federal law requires civil and criminal courts that receive federal financing to provide free interpreters for those with limited proficiency in English. But while interpreters are commonly offered in criminal cases, many states do not require the services in all civil cases. The state of California, where Ms. Ramirez’s case was heard, provides interpreters in some civil cases and not others.

The United Nations' Threat Against Parental Rights

by Bridget Geegan Blanton, NWS Columnist

...a total disregard for the traditional American relationship between parent and child inherent ...[Ed Note: On May 14, 2009 - the Parental Rights Amendment to the Constitution ...] . . . On February 16, 1995, Secretary of State Madeline Albright informed the world of a total disregard for the traditional American relationship between parent and child inherent throughout the Clinton administration, by signing the United Nations Convention on the Rights of a Child (UNCRC).  With the stroke of a pen, Albright pushed the United States towards ratification of this treaty; which would make the UNCRC, as stated in Article VI of the U.S. Constitution, the law of the land. . . . The provision in Article VI of the Constitution regards the ratification of a treaty as legal and binding and as an irrefutable component of the “highest law of the land.”  This legal status granted to a U.N. treaty would supersede state statutes and would strengthen the present tendency of the Supreme Court to decide cases based on international law and not the Constitution.  Never more clearly have the stark differences between conservatives and radical leftists been demonstrated than within this single, subversive act by Albright. . . . Whereas the conservative believes strongly in securing the liberty of an individual against the abuse of power by government, the leftist races towards the actual destruction of freedom in order to usher in a coercive form of government.  Never in the Founders’ wildest thinking did they perceive that one day these United States would be fighting against the ratification of a treaty that would annihilate parental rights, as well as national sovereignty in deference to  mandates authored by powerful, foreign entities whose ultimate goal is a world government.

NEW JERSEY

Parental autonomy includes the freedom to decide wrongly

Paul G. Kostro, Esq., NJ Family Law Issues

7-2-09 -- Law Lessons from Fawzy v. Fawzy, Sup. Ct. (Long, J.) (A-38/39-08; Decided July 1, 2009): . . . The right to rear one’s children is so deeply embedded in our history and culture that it has been identified as a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 1541-42, 32 L. Ed. 2d 15, 35 (1972) (explaining “primary role” of parents in raising their children as “an enduring American tradition” and the Court’s historical recognition of that right as fundamental). Although often expressed as a liberty interest, childrearing autonomy is rooted in the right to privacy. See Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944) (observing existence of “private realm of family life which the state cannot enter”); V.C. v. M.J.B., 163 N.J. 200, 218 (2000) (remarking that “the right of a legal parent to the care and custody of his or her child derives from the notion of privacy”), cert. denied, M.J.B. v. V.C., 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). Eighty years ago in Meyer v. Nebraska, the United States Supreme Court characterized the right of parents to bring up their children “as essential to the orderly pursuit of happiness by free men.” 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042, 1045 (1923).

June 2009

NEW YORK  

Bill to Allow Gay Marriage in NY Pulled From Senate Agenda

By Joel Stashenko | New York Law Journal | New York Lawyer

6-29-09 -- A bill legalizing same-sex marriage in New York dropped off Governor David A. Paterson's agendas for special state Senate sessions last week at the behest of sponsors and advocates, who argued that doubts over the legality of proceedings in the stalemated Senate should not extend to questions about the validity of a same-sex marriage measure, should one pass. . . . Empire State Pride Agenda Executive Director Alan Van Capelle said the Senate must vote on the same-sex marriage bill (A7732/S4401) before concluding its regular 2009 session at the end of the year, but not until the leadership dispute is worked out or set aside and "we are certain that any such vote taken by the Senate is valid and not subject to legal challenge."

NY Lawyer, Firm Can Represent Wife in Divorce Though Husband Consulted Them First

By Vesselin Mitev | New York Law Journal | New York Lawyer

6-29-09 -- A consultation with a law firm to "possibly" represent a husband in a divorce does not automatically bar the firm from representing the wife in the same case, a Long Island judge has ruled, especially if the consultation was solely an attempt to disqualify the firm. . . . "The blanket assertion that a consultation between a matrimonial attorney and a prospective client should result in a per se disqualification, is inaccurate," Supreme Court Justice Robert A. Ross of Nassau County held in Limprevil v. Limprevil, 200242-09, in ordering a hearing to determine the extent of the consultation. . . . Fred Limprevil, a substitute teacher, sued for divorce from his wife, Claude, who is a nurse, in May 2009. But approximately a year ago, he consulted with David Vallone of Gervase & Vallone, the Garden City law firm now representing his wife, to inquire whether they would represent him, according to the decision. . . . According to Mr. Limprevil, "there is clearly a conflict of interest and the only way to resolve same would be for [the firm] to be disqualified as my wife's attorney."

FEDERAL COURTS

Virginia Abortion Restriction Is Upheld

U.S. Appeals Court Votes 6-5 to Back 'Partial Birth' Ban

By Josh White, Washington Post Staff Writer 

6-25-09 -- A sharply divided federal appeals court ruled constitutional yesterday a Virginia law banning "partial birth" abortion that was overturned four years ago, bringing the state in line with a federal ban on the controversial procedure. . . . A three-judge panel of the U.S. Court of Appeals for the 4th Circuit overturned the Virginia law in 2005 by a 2 to 1 vote, finding that it did not allow for exceptions to safeguard a woman's health. The Supreme Court ordered the appeals judges to revisit the issue when it upheld the Partial Birth Abortion Ban Act two years ago, a law passed by Congress in 2003 that is similar to Virginia's ban. . . . Although the Virginia law permits women to choose various abortion procedures, it specifically makes it a crime for doctors to perform a rare midterm abortion that involves partially delivering the fetus before crushing its skull to ease removal. . . . William G. Fitzhugh, a Richmond doctor who challenged the law, argued that the procedure can be necessary to protect the life of a patient and that banning it could prevent doctors from performing legal procedures out of a fear of prosecution. Opponents of the procedure liken it to infanticide.

NEW YORK  

N.Y. State Bar 'Refines' Position on Same-Sex Couples, Says Marriage Is the Only Possible Path to Equality

Jeff Storey, New York Law Journal

6-24-09 -- Legalizing same-sex marriage is the only way to achieve full equality for gay and lesbian couples, the New York State Bar Association's policy-making body has concluded, abandoning a menu of legislative options it offered only four years ago. . . . The bar group's House of Delegates, meeting in Cooperstown on Saturday, overwhelmingly endorsed an amendment to the Domestic Relations Law "to allow same-sex couples to marry and to recognize their marriages if contracted elsewhere." The LGBT Committee's report is posted at nylj.com. . . . Read the State Bar's proposed resolution. . . . The action rescinded a resolution passed in April 2005 that supported legislation "that will afford same-sex couples the ability to obtain the comprehensive set of rights and responsibilities now afforded opposite-sex couples" in the form of a domestic partnership registry, a civil union statute, or an amendment to the statutory definition of marriage to include same-sex couples.

NY Lawyer Charged With Ripping Off Clients

By Vesselin Mitev | New York Law Journal | New York Lawyer

6-24-09 -- A Long Island attorney is facing grand larceny charges after three clients accused him of stealing more than $100,000, according to Nassau County District Attorney Kathleen M. Rice. . . . In June 2007, Garden City attorney Craig Heller, 49, allegedly pocketed $20,000 from a divorcing couple who hired him to manage their debt consolidation, Ms. Rice said in a statement.

CONNECTICUT  

Skin Care Guru's Ex-Wife Signed Away Right to Discuss Divorce, Conn. Supreme Court Rules

Justices say confidentiality agreement an acceptable prior restraint on free speech

Thomas B. Scheffey, The Connecticut Law Tribune, Law.com

6-24-09 -- Establishing a new point of Connecticut case law, the state Supreme Court concluded that private waivers of First Amendment free speech rights are "presumptively enforceable." . . . Decisions on the validity of such waivers should be made on a case-by-case basis, taking into account the background and abilities of the person waiving the rights, the Supreme Court ruled. . . . The decision, written by Chief Justice Chase T. Rogers, came in a case involving a multimillionaire skin doctor and his ex-wife, who wanted to talk about their divorce on a television news magazine show. . . . But Rogers wrote that a confidentiality agreement in which Madeleine Perricone agreed not to talk about her divorce was an acceptable prior restraint on free speech. Even if such waivers don't specifically mention First Amendment rights, they are valid "as long as the waiver was intelligent and voluntary," Rogers wrote. . . . In November 2005, the New York Post carried a sensational story about the divorce battles of Meriden "cosmeceuticals" magnate Nicholas V. Perricone and his wife.

CONNECTICUT  

Former Cendant Chairman's Divorce a Ploy to Dodge $3.2 Billion Payout, Say Prosecutors

John Christoffersen, The Associated Press, Law.com

6-19-09 -- The wife of the man responsible for the largest accounting fraud of the 1990s has filed for divorce -- but federal prosecutors say the timing suggests that they're trying to avoid paying billions of dollars in penalties, not that their marriage is on the rocks. . . . Prosecutors note that former Cendant Corp. chairman Walter Forbes sold the family's nearly $6 million, 11,000-square-foot, seven-bedroom Colonial mansion to his wife, Caren, for $10 in 1999. . . . Caren Forbes, who filed for divorce in Bridgeport Superior Court in January and says their marriage of 27 years is "irretrievably" broken, wants the court to transfer the property, which is subject to liquidation, into her name, prosecutors said. . . . Forbes was sentenced in 2007 to more than 12 years in prison and ordered to pay restitution for his role in a fraud scheme that cost the travel and real estate company and its investors more than $3 billion. . . . Prosecutors, who have accused Forbes of hiding some assets to avoid paying the $3.275 billion penalty, say the divorce filing is a ploy and have asked to intervene.

DISTRICT OF COLUMBIA  

Gay-Marriage Opponents Ask Judge to Stop the Clock

Posted by Mike DeBonis, Washington City Paper

6-18-09 -- Big showdown in D.C. Superior Court over gay marriage this afternoon! . . . Here’s what’s going on: Opponents of the gay-marriage-recognition law passed this spring by the D.C. Council are asking Judge Judith Retchin to step in and stop the law from taking effect. That’d be a bare assertion of power by the judge—and Retchin acknowledged as much: “I question whether the court has the authority to stay the effective date.” . . . That date is July 6, marking the end of the  30-day period during which the U.S. Congress reviews the marriage-recognition measure. It’s a quirk of D.C.’s serfdom that Congress gets this approval window, and it’s a quirk that’s being exploited by the anti-gay marriage lobby.

NEW YORK  

Failure to Supervise Pro Bono Attorney Dooms Divorce Pact

Judge finds ex-Skadden staff attorney did not have the 'appropriate training and supervision' to know whether her 'inaccurate and confusing' statements were false

Noeleen G. Walder, New York Law Journal

6-18-09 -- In granting a woman's bid to void a settlement stipulation because her pro bono divorce attorney made serious errors and was inadequately supervised, a New York state judge has cautioned law firms and volunteer groups that in taking on pro bono cases, they should ensure that counsel "receive appropriate support and supervision, so that they can provide pro bono clients with the same careful legal representation that they provide to paying clients." . . . The ruling comes at a time when law firms facing a decline in legal business and a surplus of attorneys are working with pro bono organizations to increase the number of cases they already handle on a volunteer basis. . . . The case before Acting Supreme Court Justice Ellen Gesmer, MC v. GC, 76148/07, involved a former Skadden, Arps, Slate, Meagher & Flom staff attorney, Lisa M. Poursine, referred to in the ruling as "Ms. Smith," who provided free legal representation to Michele A. Crespo for inMotion, a non-profit legal group that assists low-income women in matrimonial, family and immigration law cases.

Obama Undermines Marriage With Same-Sex Benefits Memo

President ‘thumbed his nose at the rule of law’ to placate gay critics, family advocates say.

by Gary Schneeberger, editor CitizenLink.com

6-17-09 -- President Barack Obama signed a presidential memorandum today that extends many benefits now received by spouses of federal employees to same-sex partners of federal employees. . . . Family advocates say Obama’s action is a direct violation of the Defense of Marriage Act (DOMA) and a big step toward redefining marriage. . . . “The president thumbed his nose at the rule of law and continues to undermine marriage as society’s most pro-child institution,” said Tom Minnery, senior vice president of government and public policy for Focus on the Family Action. . . . “It’s a settled principle of moral tradition and social science that says children do best with both a mom and a dad who are married to each other. Congress already defined marriage for purposes of federal law in 1996 with the passage of the Defense of Marriage Act.  . . . “Treating same-sex partners as the equivalent of spouses is therefore a direct violation of DOMA and merely Obama's contribution to the clearly-stated, gay-activist agenda of redefining marriage and family.”

GENERAL

Recession Keeps Family Lawyers Busy

Wealthy couples buck the trend, getting divorced in greater numbers

Tresa Baldas, The National Law Journal

6-16-09 -- The economy has family law attorneys working double-time as hard financial times are wreaking havoc on America's broken families. . . . Lawyers who specialize in divorce and custody disputes say they have witnessed a flood of activity in family courts in recent months: . . . • A rising number of spouses are requesting that their child support and alimony obligations be modified, citing hard times. . . . • More feuding couples are struggling to reach divorce settlements because all the assets are worth less. . . . • Many couples are putting divorce off altogether because they can't afford it, while some wealthier ones are actually seizing on the economy and getting divorced, knowing that they'll have less to hand over to the other spouse. . . . "We are jammed, jammed. I think it's because we have the higher-end clients ... and the clients are pouring in," said Lynne Gold-Bikin, who heads the family law practice at Philadelphia's Weber Gallagher Simpson Stapleton Fires & Newby. "This is a great time for wealthy people to get divorced because their assets are down. So if you want to keep the house, perfect time. If you want to keep the 401(k), perfect time."

NEW YORK  

Judge Clarifies Abandonment Standard Over Denial of Sex

Vesselin Mitev, New York Law Journal

6-16-09 -- A husband's refusal to have sex with his wife three times within a year was enough to persuade a Long Island judge to grant the wife's petition for a divorce on the ground of constructive abandonment. . . . While noting the lack of a "definitive holding" as to how many requests were needed to satisfy the abandonment standard requiring "repeated" denial of such requests, Supreme Court Justice Arthur M. Diamond of Nassau County, N.Y. (See Profile), ruled in B.M. v. M.M., 203242/08, that three was adequate, given the facts of the case. . . . B.M., a nurse, testified at a divorce trial in April that she would have done "anything" to save her 28-year marriage to M.M., a lawyer. The parties were married in August 1981 and have two grown children. Ms. M. sued for divorce in 2008 on the grounds of constructive abandonment, a claim Mr. M. denied. . . . She recalled that her husband, who now contested the divorce, told her in July 2003 that he wanted to end the marriage. In response, she said she attempted to salvage their union by spicing up their sex life, which "had been an issue."

OHIO

Child support law enforced equally, area officials say
By Ryan Carter, Herald Record Staff Writer

6-15-09 -- "Why don't women who owe child support go to jail?" . . . Two local men who pay child support recently made claims that the mothers of their children (who both have been ordered to pay child support) are treated with more leniency when they fail to make their child support payments. . . . "My ex-wife is supposed to be paying child support on three of my kids," said a Fayette County man who requested anonymity. "I've been paying child support to her mother who has custody of the kids. I've already been locked up a couple of times for not paying." . . . The man also claims that his ex-wife hasn't paid any child support since 2003. . . . "She lives in (another state) and when I ask the child support agency why she can't be arrested, they tell me it's hard to enforce it when she's out of state," he said. "I just don't think it's right that they don't arrest her. I'm taking care of my business now and she isn't. It's not right." . . . Another local man who has custody of his youngest child said his ex-girlfriend is also chronically late on child support payments, yet nothing has been done. "I'm perfectly fine taking care of my child and I like this setup," he said. "But if the shoe was on the other foot, I would most likely be in trouble. If you have a court order to do something, and in this case it's to pay child support, you should have to do it or pay the consequences." . . . However, a look at the records in Fayette County Common Pleas Court shows that women who are charged with felonies for non-support are punished with the same severity as men. Just last week, Judge Steven Beathard sent a Fayette County woman, Tina Snyder, to prison for six months for non-support after she violated her community control. . . . A comparison of men and women who have the same amount of non-support violations showed that they were treated by the courts nearly identically.

FEDERAL COURTS

U.S. Moves to Dismiss First Federal Gay Marriage Case

Linda Deutsch, The Associated Press, Law.com

6-12-09 -- The U.S. Justice Department has moved to dismiss the first gay marriage case filed in federal court, saying it is not the right venue to tackle legal questions raised by a couple already married in California. . . . The Justice Department motion, filed late Thursday, argued that the case of Arthur Smelt and Christopher Hammer does not address the right of gay couples to marry but rather questions whether their marriage must be recognized nationwide by states that have not approved gay marriage. . . . "This case does not call upon the Court to pass judgment ... on the legal or moral right of same-sex couples, such as plaintiffs here, to be married," the motion states. "Plaintiffs are married, and their challenge to the federal Defense of Marriage Act ("DOMA") poses a different set of questions."

NEW YORK

Man Need Not Tap IRA Funds to Pay Legal Fees, Appeals Court Rules

Noeleen G. Walder, New York Law Journal

6-11-09 -- A man whose matrimonial settlement left him with no liquid assets to satisfy a $70,000 charging lien held by his former attorneys does not have to use money from his $213,000 IRA account to pay his legal bill, a New York state appeals court ruled Monday. . . . However, in the unsigned decision, an Appellate Division, 1st Department, panel held that funds transferred to Antonio A. Memmo from his ex-wife's IRA could be used to settle Mayerson Stutman Abramowitz Royer's lien. . . . Last year, Memmo retained Harold A. Mayerson to represent him in a divorce proceeding from Elsa I. Perez. When Mayerson Stutman and Memmo had a falling out, the firm sought to be relieved as counsel. Shortly thereafter, Memmo, who allegedly owed roughly $100,000 in legal fees, agreed that Mayerson Stutman would have a $70,000 charging lien against Memmo and his share of the equitable distribution.

NORTH CAROLINA  

Lawyer issued reprimand after fee dispute

By Ryan Jones, The Dispatch

6-10-09 -- A Lexington lawyer was reprimanded by the Grievance Committee of the N.C. State Bar for charging excessive and unnecessary fees while representing a client in a divorce and equitable distribution case. . . . According to the reprimand issued Feb. 12 and published in the most recent issue of the N.C. State Bar Journal, J. Calvin Cunningham, whose law office is at 18 S. Main St., and his client agreed to a 40 percent contingency fee on the equitable distribution matter and an hourly rate for the divorce matter, with the understanding that the client would not be able to pay her bill until she received a distribution. . . . The grievance committee found that throughout the representation Cunningham sent bills to his client for the divorce action that included a $50 charge for each time he reviewed the bill and another $50 charge for each time he sent a form letter to his client enclosing the bill. . . . Such excessive charges constitute dishonest task padding, the reprimand said, because reviewing the bill is an “obligation every lawyer owes to a client and is an overhead expense incidental to the practice of law.”

WASHINGTON

Drive to stop gay partnership law is dividing conservatives

Some worry that a failed referendum in Washington state would hurt their larger battle down the road.

By Kim Murphy The Los Angeles Times

6-8-09 -- Reporting from Seattle -- A campaign to roll back gay rights that kicked off in Washington state over the weekend has split the Christian conservative community, with some wondering whether it is the right time for a fight and others arguing that time may be running out. . . . On the heels of the recent California Supreme Court ruling that upheld Proposition 8's prohibition against same-sex marriage, conservative groups here began collecting signatures for a ballot referendum to block a new Washington state law that substantially expands rights for domestic partners. . . . The law that Democratic Gov. Chris Gregoire signed in May has been dubbed the "everything but marriage" bill. When it takes effect in July, it will expand previous domestic partnership laws to include issues like adoption, child support, pensions and other public-employee benefits.

NEW HAMPSHIRE

N.H. becomes sixth state where gays can marry

By Eric Moskowitz and Martin Finucane, Globe Staff

6-3-09 -- Traditionally conservative New Hampshire today became the sixth state in the nation -- and the fifth state in New England -- where same-sex couples will be allowed to marry. . . . "Today we're standing up for the liberties of same-sex couples by making clear they will receive the same rights, responsibilities, and respect under New Hampshire law," Governor John Lynch said before signing the legislation in a State House ceremony at about 5:20 p.m. . . . Lynch said it was a New Hampshire tradition "to come down on the side of individual liberties and protections, and that tradition continues today." The room, filled by scores of the bill's supporters, resounded with applause as he signed. . . . "We're thrilled to death," said Mo Baxley, executive director of the New Hampshire Freedom to Marry Coalition. "We're equal. Equal isn't nothing. Equal is everything." . . . Gay marriage is now legal in Vermont, Maine, New Hampshire, Connecticut, and Massachusetts -- all of the new England states, except for Rhode Island. Gay marriage is also legal in Iowa.

NEW JERSEY  

Lawyer Reprimanded for Alleged 'Cut You Up' Remark to Adversary's Client

Henry Gottlieb, New Jersey Law Journal

6-3-09 -- The New Jersey Supreme Court on Tuesday disciplined a lawyer who allegedly told an opposing party, "I'm going to cut you up into bits and pieces, put you into a box and send you to India and your parents won't recognize you." . . . In reprimanding Maplewood solo Joel Ziegler, a lawyer since 1966, the Court said he violated rules requiring courtesy to participants in the legal process and prohibiting conduct detrimental to the administration of justice. . . . The incident that got Ziegler in trouble occurred in the hallway of the Union County Courthouse on Sept. 25, 2001, while he was representing Himanshu Sharma in a domestic violence, custody and support case against Sharma's wife, Anu Upadhyay. . . . Ziegler became incensed over Upadhyay's testimony at a hearing before Superior Court Judge Joseph Donohue. "His face was red, flushed," Upadhyay testified later.

May 2009

NEW YORK  

N.Y. Family Court Denied Jurisdiction to Hear
Same-Sex Support Issue

Mark Fass, New York Law Journal

5-29-09 -- Family Court does not have jurisdiction to order a woman with no biological or legal ties to her former same-sex partner's son to pay child support, a New York state appeals panel has ruled. . . . The 3-2 ruling turned on the fact that the only New York proceedings for determining parentage are paternity proceedings, which resolve controversies regarding the fatherhood of a child. . . . No similar vehicle exists for determining a child's mother and, therefore, for the Family Court to order a woman with no other biological or legal connection to a child to pay for his or her support, according to an Appellate Division, 2nd Department, panel. . . . The "plain language of numerous provisions of Family Court Act article 5 [regarding paternity proceedings] clearly and unambiguously indicates that a proceeding thereunder will only involve a controversy concerning a male's fatherhood of a child," Justice Joseph Covello wrote for the majority in H.M. v. E.T., 2007-09323.

PENNSYLVANIA  

Perry County judge performs wedding during man's criminal trial

by The Associated Press, pennlive.com

5-29-09 -- A suburban Philadelphia man asked a judge to perform a wedding ceremony while the jury in the man's criminal trial was still deliberating the verdict. . . . Timothy Zalut, 20, of Doylestown, was on trial on assault charges this week in Bucks County Court. When it appeared that he might have to go to jail, Zalut decided to tie the knot with his fiancee, Hayley Dykstra. Senior Judge C. Joseph Rehkamp, of Perry County, was presiding over the trial. He agreed to perform the ceremony in chambers while the jury was still out. . . . Dkystra said, "We wanted to get married, and we were worried that we wouldn't get the chance." . . . A plea bargain finally brought the trial to a halt, and Rehkamp sentenced Zalut to five years of probation.

Former Agent Calls Sham Marriages 'Epidemic'

Written by Brian Maass, CBS4Denver

5-27-09 -- A former immigration enforcement agent says he is seeing an "epidemic" of fraudulent marriages where foreign women marry American men, then claim domestic violence to escape the marriage and legally remain in the U.S. . . . "What happens is they enter into a one-sided sham marriage to defraud an American citizen into believing they love him. And once they get in, they allege domestic violence to get themselves out of the sham marriage and to throw off suspicion this was a sham marriage to begin with," said John Sampson. . . . After 27 years as a U.S. Immigrations investigator, Sampson retired then started up a business in Aurora in January of this year to investigate suspected sham marriages. He says in less than six months, he has heard from 200 men in Colorado and across the country who are convinced they were used by foreign women then accused of being batterers. Under the federal Violence Against Women Act (VAWA), foreign women who file abuse claims against their American spouses can obtain permanent resident status. . . . "It's something completely different and pernicious and vile to seek out a U.S. citizen and run a scam by them and entice them into marrying them and not only abandoning and emotionally abusing them, but falsely accusing them of a heinous act. They allege the U.S. Citizen abused them somehow and file paperwork with (the U.S. government) … and they're here to stay," said Sampson. "They have an ace-high flush." . . . He claims the case of Roza Alexanyan, who now lives in the Denver metro area, as an example of this phenomenon. The 51-year-old woman is from Sochi, a city in Russia. She placed an Internet ad seeking a husband. It caught the attention of Chris Hoppel, a registered nurse from Erie, Pa. The two corresponded via e-mail for several years and Hoppel said he fell in love. He traveled to Russia and married Alexanyan, bringing her and her daughter back to the U.S.

Lawyer locked in nasty divorce feud on the run

Split Decision

By Laurel J. Sweet, Boston Herald

5-25-09 -- U.S. Marshals have launched an unlikely manhunt for a “prim and proper” Clinton attorney and civic do-gooder who, embroiled in a bitterly contested divorce, has not been seen or heard from in weeks. . . . Cynthia Dziurgot’s disappearance has her family frightened and friends questioning how well they really know the rose gardener, who may be a fugitive. . . . Dziurgot, 55, is the subject of two arrest warrants. A Worcester Probate and Family Court judge is demanding she pay her ex-husband John Farnsworth nearly a million dollars and her 21-room mansion is being sold out from under her. . . . “We have no idea what’s going on. We’ll just pray for the best,” said Dolores Karpeichik, 69, who last spoke with her sister at a family gathering in Connecticut on Easter Sunday, April 12.

NEW JERSEY  

Reprimand Imposed on Divorce Lawyer Who Made Retainers Nonrefundable

5-20-09 -- Use of nonrefundable retainer agreements in violation of a court rule has drawn a reprimand for well-known matrimonial lawyer Elliot Gourvitz. This is according to a decision just released, accepting the findings of an ethics special master that in two cases, Elliot Gourvitz Esq. violated the Rules of Court, barring nonrefundable retainers, and, in a third, flouted an ethics rule requiring return of unearned legal fees.  In The Matter of Elliot Gourvitz, New Jersey Supreme Court, May 13, 2009

No-Fault Divorce: America’s Divorce Mill
by Judy Parejko, Catholic Exchange

5-18-09 -- What is no-fault divorce? . . . When you ask most people, they will say it’s a mutual-consent process, or that it preserves privacy , or that it eliminates blame for the failure of the marriage. . . . Not many people will answer that it’s a lawsuit in which one party is suing the other party. And even fewer will know that it came from the Soviet Union. . . . Like previous divorce actions, no-fault divorce is still a lawsuit, which means that one party is invoking the state’s police powers against the other party. The main difference now is that the person filing for divorce no longer has to provide a reason for why they’re doing it. This type of lawsuit is unique; it’s the only type of legal action devoid of any ‘claim’ (complaint), and if the party being sued doesn’t know the complaint, then there’s no possibility of a defense. . . . As for the communist origins of no-fault divorce, a 1975 law review article by Donald M. Bolas entitled, “No Fault Divorce: Born in the Soviet Union?” explains how, after speaking with Russian lawyers, he stumbled upon how Soviet divorce law may have influenced our own laws. . . . Bolas explains that when the Bolsheviks took over in 1917, religious marriages were no longer recognized by the state. Marriage became a “state action” and divorce became merely an administrative process known as Russian Post Card Divorce. One spouse simply filled out the paperwork at city hall and the other party was then notified by mail that they were no longer married. Some people married twenty times. There was also a ‘free love’ bureau where people could sign up for partners.

MINNESOTA   

Courts see recession-driven surge in child-support filings

The economy is driving uncoupled parents back to court. One woman walked away with a house, then watched it lose 25 percent of its value. While the squeeze hits mothers and fathers, their kids also pay a price.

By Rochelle Olson, Star Tribune

5-13-09 -- When rising health care costs for Leah Moran's three children broke her budget this spring, the single working mom from Bloomington took their fathers back to court. The $340 she got per child just wasn't cutting it in the current economy, she said. Moran's situation represents one faced by a rising number of divorced or estranged parents statewide: Stressed out in a stalled economy, they're streaming to courthouses seeking adjustments to child support obligations. . . . Family court calendars are becoming backlogged, and family-law attorneys -- among the few in this economy with job security -- are seeing caseloads balloon. Meanwhile, family law experts worry about the emotional toll that the increased litigating over child support inevitably will take on the intended beneficiaries: the children.

NEW YORK  

Wife May Use Husband's E-Mails in Divorce Case

By Mark Fass, New York Law Journal

5-13-09 -- In an upcoming divorce trial, a Brooklyn woman may introduce e-mails surreptitiously culled from her estranged husband's e-mail account as evidence of his scheme to hide his true income, a Supreme Court judge has ruled. . . . Justice Jeffrey S. Sunshine said the woman's accessing of her husband's account did not constitute "eavesdropping" under New York's Penal Law and therefore does not render the e-mails inadmissible. . . . The decision turned on the fact that the wife looked at e-mails stored in her husband's account, rather than intercepting e-mails while they were "in transit" to him. . . . "It is this court's understanding from the reading of the statute, legislative history and case law that the purpose of Penal Law § 250.00 is to prohibit individuals from intercepting communication going from one person to another, and in this case an email from one person to another," Justice Sunshine wrote in Gurevich v. Gurevich, 42358/07. "In the case at bar the email was not 'in transit,' but stored in the email account."

MICHIGAN  

Van Buren County judge has his own mandate for adoptive parents

by Rosemary Parker | Kalamazoo Gazette

5-10-09 -- Gabe and Allison Shockley began to arrange the adoption of their second child early in the birth mother's pregnancy. They attended every prenatal doctor's appointment. They were present at the baby's birth in Indiana. . . . The couple thought they had covered every detail. . . . But the Shockleys, of Mattawan, didn't know about Van Buren County Probate Judge Frank Willis' "moral commitment." . . . Willis requires parents who adopt infants in his county to agree that one of them will be home with the baby during the first year and won't work full time during the baby's preschool years. Willis is perhaps the only justice in Michigan to require such a pledge, which he acknowledges is not legally binding and may be offensive and outdated to some. . . . For the Shockleys, cutting in half their combined $70,000 income wasn't an option. . . . "It wouldn't have been possible to pay our mortgage and bills with one income," Allison Shockley said.

NEW JERSEY  

Our divorce settlement: Till recession does it last

By Jennifer Golson, Star-Ledger Staff

5-3-09 -- Michelle Copland is 42 and relies on her ex-husband's child support to cover the growing needs of their two daughters, one a teenager, the other a preteen. . . . Scott Caridi is 46 and collecting unemployment as he tries to drum up business for a North Jersey construction company. "If they get work, I get work again." His own company went out of business. . . . The former couple from Bergen County was married for almost 10 years until divorcing in 2003. For most of the time since then, Caridi paid $700 a week in alimony and $500 in child support. When the alimony ended, the child support bumped to $700 a week. . . . Then, Copland said, the checks stopped showing up and Caridi fell $6,000 behind. . . . With no work and another family to support, Caridi did what a growing number of divorced men and women are doing: They are filing for reductions in alimony and child support obligations. . . . While the Administrative Office of the Courts does not maintain statistics on the issue, lawyers and judges across the state say the recession is fueling a dramatic increase in applications to change divorce settlements.

NEW YORK

Stories sought for parents' rights pamphlet

Oneonta Daily Star

5-2-09 -- Dilip Sengupta, formerly of Delhi, is inviting area residents to share their stories about parental alienation as part of a project of the Association for the protection of the Rights of Non-Custodial Parents. . . . Stories are being compiled in the forum section of the ARNCP's website, http://parental-rights.webs.com, where more information on the project is also available. . . . Sengupta, president and founding member of the ARNCP, said he plans to compile the stories into a pamphlet titled "Left Out in the Cold," copies of which will be sent to Vice President Joseph Biden and Congressman Ron Paul in an effort to raise awareness of issues faced by noncustodial parents.

April 2009

NEW YORK  

Former Attorney's 'Sporadic' Economic Support Results in Small Share of Marital Property

Vesselin Mitev, New York Law Journal

4-30-09 -- A disbarred attorney who provided "limited, sporadic, unreliable and inconsistent" support to the "economic partnership" of a 17-year marriage should receive only 35 percent of the couple's property, a New York judge has ruled. . . . "The Court finds that during the marriage ... the Wife provided a substantial share of the financial and day-to-day support in maintaining the household ... includ[ing] working full-time, being the primary caregiver for their son and ... providing for the consistent and reliable income flow the family enjoyed," Acting Supreme Court Justice Mark D. Cohen of Suffolk County wrote in Glassberg v. Glassberg, 24307/05. . . . Marc Glassberg, an English teacher who went to law school at night, married Dorene Glassberg, a special education teacher, in 1988, a second marriage for both. The parties have one child, born in 1989. Ms. Glassberg filed for divorce in October 2005.

FLORIDA

Broken Heart Could Cost Ex-Boyfriend in Court

Daily Business Review, Law.com

4-24-09 -- Kris Shubert is putting a price on heartbreak -- and it's more than $1 million. . . . She sued former boyfriend Kurt Wiksten in Palm Beach Circuit Court, claiming her decision to quit her job, sell her home and move to Texas to be with him was based on lies and left her with a personal financial mess. . . . The complaint filed this week contends Wiksten concealed financial and legal problems from Shubert, including tax liens and a bench warrant for failing to appear on a drunken driving charge. . . . "Wiksten had a duty to Shubert to disclose any negative aspects of his past to her before she enters into a personal relationship with him," the complaint said. . . . The two met in October 2003, and Shubert's lawsuit said she moved to Texas with a promise of marriage.

NEW YORK  

Judges Resist Bids to Upset Child Support in Face of Economic Upheaval

Vesselin Mitev, New York Law Journal

4-23-09 -- A pair of Nassau County Supreme Court rulings rejecting bids by parents to reduce child support obligations are indicative of judicial reluctance to disturb support agreements even in light of the faltering economy, attorneys said. . . . In one case, Justice Anthony J. Falanga found that a man who lost his six-figure job but received a severance package worth more than $150,000 cannot seek to reduce his child support obligations and called the man's application "unfathomable." . . . Meanwhile, Justice Timothy S. Driscoll declined to reduce the support payments of a man who lives in his girlfriend's $2.1 million home, which is equipped with a pool and tennis court. . . . In Cox v. Cox, 03-203416, Falanga denied a motion by John Cox to decrease his $19,800 annual child support payment, citing Cox's hefty $150,000 severance package.

OHIO  

Lawyer asks Ohio Supreme Court to remove Judge Leslie Ann Celebrezze from divorce case

Posted by Rachel Dissell and James F. McCarty / Plain Dealer Reporters

4-20-09 -- A husband embroiled in a protracted divorce case has accused a Cuyahoga County Domestic Relations Court judge of bias because her friend and campaign treasurer is working as the receiver in charge of assets in the case. . . . Marc Strauss, an attorney and wealthy real estate developer from Willoughby, asked the Ohio Supreme Court last week to remove Judge Leslie Ann Celebrezze from his case. He argues that the appointment of Mark Dottore as receiver was improper and prejudicial because of Dottore's close ties to Celebrezze and her family, including her father, whose judgeship she took over when he retired.

MICHIGAN  

Incredulous Judge Throws Dog Sperm Flap Out of Court

By The Associated Press | New York Lawyer

4-9-09 -- The judge wondered if she was an unwitting participant in an episode of "Candid Camera" or "Punk'd." . . . Oakland County Family Court Judge Cheryl Matthews wasn't. She just had a front-bench seat Wednesday for a feud between a divorced couple over who gets frozen sperm from bull mastiffs they bred in happier times. . . . When Anthony and Karen Scully split in 2002, they divvied up the six bull mastiffs they owned. He kept four; she took two. Now, they're fighting over who owns the semen from Cyrus, Regg and Romeo that's being stored at a center in Sterling Heights.

Parental rights: The new wedge issue

By Andie Coller, Politico

4-8-09 -- If there were a recipe for creating a new conservative culture-wars issue, it might look something like this: Start with the United Nations, fold in the prospect of an expanded role for government in children’s lives, add some unfortunate court decisions, then toss in Barbara Boxer and Hillary Clinton. . . . And indeed, when House Republicans recently found themselves with all these ingredients at hand, Rep. Pete Hoekstra (R-Mich.) started pre-heating the oven. . . . Hoekstra last week introduced a bill in the House to amend the U.S. Constitution to permanently “enshrine” in American society an inviolable set of parents’ rights. The bill had 70 co-sponsors, all Republicans, including Minority Whip Eric Cantor and Minority Leader John A. Boehner. . . . The bill, said Hoekstra, is intended to stem the “slow erosion” of parents’ rights and to circumvent the effects of a United Nations treaty he believes “clearly undermines parental rights in the United States.” . . . The treaty to which he refers is the U.N. Convention on the Rights of the Child, a 20-year-old document signed by President Bill Clinton in 1995 but never ratified. The treaty sets international standards for government obligations to children in areas that range from protection from abuse and exploitation to ensuring a child’s right to free expression.

TEXAS  

Texas Judge Allows Collection of Dead Son's Sperm

The Associated Press, Law.com

4-8-09 -- A judge has granted a mother's request to have someone harvest sperm from her dead son's body, so she can have the option of carrying out his wish to have children. . . . Nikolas Colton Evans, 21, died Sunday at a Brackenridge hospital after being punched and falling outside a bar in Austin, Texas, on March 27. . . . His mother, Marissa Evans, told the Austin American-Statesman newspaper that he wanted to have three sons someday and had even picked out their names: Hunter, Tod and Van. . . . "I want him to live on. I want to keep a piece of him," she told the newspaper. . . . Travis County Probate Judge Guy Herman ruled Monday in an emergency hearing requested by the mother, because of the urgency of collecting the sperm intact. . . . Court documents said the sperm had to be collected within 24 hours of Nikolas Evans being removed from life support unless the body was cooled to no more than 39.2 degrees.

March 2009

CALIFORNIA  

Parents' contempt jailings struck down

Juvenile courts lose compliance mechanism

By Greg Moran, Union-Tribune Staff Writer

3-31-09 --San Diego judges who preside over child welfare cases will no longer be able to send parents to jail for contempt of court because they failed in substance abuse recovery programs, the California Supreme Court ruled yesterday. . . . The 6-1 decision struck down a practice that has been in place in San Diego juvenile court since 1998 and sends scores of parents to county jails each year. . . . Associate Justice Carol Corrigan wrote that the county had to stop the practice because it was not authorized by state laws governing child welfare cases, which are heard in juvenile dependency courts. . . . Those courts hear cases in which children have been removed from their parents by the state because of abuse or neglect. Parents can get their children back if they fulfill the terms of a court-ordered reunification plan.

NEW YORK

State Court of Appeals to Hear Two Same-Sex Marriage Cases

By Jeremy W. Peters, New York Times

3-31-09 --The state’s highest court agreed on Tuesday to hear arguments in two cases that challenge New York’s recognition of same-sex marriages legally performed elsewhere. . . . Lower courts have already sided with two government entities that revised their policies to honor the marriages, but those decisions were appealed by the Alliance Defense Fund, a Christian group that is waging multiple legal battles in New York to stop state and local entities from recognizing marriages of same-sex couples who were wed in places, like Massachusetts and Canada, where the ceremony is legal. . . . Neither case involved Gov. David A. Paterson’s directive last May that ordered state agencies to recognize legal same-sex marriages performed outside New York State. . . . One case, Godfrey v. Spano, stems from the Westchester County executive’s 2006 decision to begin officially honoring out-of-state marriage licenses for gay couples the same way it did for heterosexual couples.

Who will raise kids: Mom, Dad or state?

Parental rights: 67 in Congress pushing to amend Constitution

Posted: March 29, 2009

By Drew Zahn, © 2009 WorldNetDaily

3-29-09 -- Though efforts to pass a constitutional amendment protecting parental rights have failed in the past, two U.S. legislators are preparing to reintroduce the idea this week; and this time, they say, the effort is backed by more than 60 congressional members. . . . Rep. Peter Hoekstra, R-Mich., who introduced a parental rights amendment by himself last year, told the Agence France-Presse that he will be joined by Sen. Jim DeMint, R-S.C., on Tuesday as they renew the fight. . . . According to a statement released to AFP by Hoekstra's office, the amendment "would clearly outline in the U.S. Constitution that parents, not government or any other organization, have a fundamental right to raise their children as they see fit." . . .  "At a time when government at every level seems to encroach upon the ability of parents to choose the best for their children," Hoekstra writes on his website, "it is important to preserve parental rights into the Constitution." . . . Last summer Hoekstra introduced H.J.R. 97, proposing a constitutional amendment stating that the liberty of parents to direct the upbringing and education of their children is a fundamental right that cannot be infringed upon by federal, state, or international treaty law without demonstrating government interest "of the highest order." Hoekstra asserts that legitimate cases of abuse and neglect fall under the "demonstrated government interest" clause.

NEW YORK  

Straying Wife's Fault Not 'Egregious' Enough for Penalty, N.Y. Court Finds

Finding of 'egregious fault' ultimately would have reduced the wife's share of the couple's property

Noeleen G. Walder, New York Law Journal

3-19-09 -- An attorney embroiled in a divorce proceeding cannot penalize his wife for allegedly duping him into thinking that his youngest son, the product of an affair, was his biological child, a New York state appeals court has ruled. . . . Howard S. sought "liberal discovery" to prove that his estranged spouse was guilty of "egregious fault," which ultimately would have reduced her share of the couple's property. Additionally, he sought damages he claimed stemmed from Lillian S.'s alleged fraud. . . . However, in a 4-1 ruling written by Justice Helen E. Freedman, the Appellate Division, 1st Department, held in Howard S. v. Lillian S., 4563, that "while defendant's alleged misconduct cannot be condoned and is clearly violative of the marital relationship, it does not rise to the level of egregious fault, since defendant neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them."

US Congressman Pete Hoekstra and Phyllis Schlafly of Eagle Forum Discuss Parental Rights on Get Your Justice Live

Congressman Pete Hoekstra (R-MI) discusses his upcoming reintroduction of the former Parental Rights Amendment from 2008 into the 111th Congress. The Congressman confirmed that efforts from citizens are working with an increase from 24 co-sponsors to 54 co-sponsors to the proposed Parental Rights Amendment.  Wendy Wright, President of Concerned Women for America, will be on an upcoming episode. We were also joined by Phyllis Schlafly of Eagle Form. Congressman Hoekstra stated very clearly that “I don’t want anybody coming between the parents and the kids, and creating a barrier.” . . . The language is simple:  “The liberty of parents to direct the upbringing and education of their children is a fundamental right.“  The Congressman demonstrated clear examples of where parents make a better caregiver than the government. Congressman Hoekstra further said that one of the causes of the erosion of our parental rights is government growth, “Men of zeal who lack understanding,” people that basically mean well but who lack understanding. It is imperative that we protect our parental rights from both domestic and international government intrusions, but that means discussing our concerns consistently with our government officials. . . . Phyllis Schlafly discussed the erosion of parental rights, the rogue judiciary that are taking away parental rights, and the role of the multi-issue lobbying organization model. Phyllis also discussed the issue of bad welfare policy destroying fatherhood. I offered the statement again as I do with every single organization which is “Parental Rights should be respected and protected by all,” which strikes the proper cord. This is an issue about children needing their decisions to be made by those that know them best, their parents. . . . This is just one of a series of broadcasts about the importance of parental rights in America. The god-given right of children being led by their parents and not the government. We are leading a major fight to reject government usurpation of our parental rights.

CONNECTICUT  

Postnup’s $43M Divorce Settlement Isn’t Enough, Executive’s Wife Says

By Martha Neil, ABA Journal

3-18-09 -- Married since 2002 to George David, who is now chairman of the board of United Technologies Corp., Swedish countess Marie Douglas-David is entitled to a $43 million divorce settlement under a 2005 postnuptial agreement between the now-warring spouses. . . . But that's not enough, she contends, for one who needs $53,000 a week to cover ordinary living expenses, according to the Hartford Courant and an earlier Connecticut Law Tribune article. . . . In a high-profile Connecticut trial that begins today and is expected to set a new record high for a divorce judgment in the state, she is likely to argue that the postnup is unenforceable.

NEW YORK  

Discovery Denied in N.Y. Lawyer’s Fraud Claim Concerning Claimed Affair

By Martha Neil, ABA Journal

3-18-09 -- Seeking to reduce his divorce settlement in a state that still attributes fault between spouses in divorces, a New York lawyer tried to get "liberal discovery" concerning his claim that DNA evidence proves his youngest child was the product of an affair between his wife and a building contractor. . . . But a divided panel of the Appellate Division, First Department, shot down the fraud claim asserted by Howard S., saying that it did not amount to "egregious fraud," reports the New York Law Journal in an article reprinted by New York Lawyer (reg. req.). The issue was decided in an interlocutory appeal of the case, after a trial judge also denied the lawyer's discovery request. . . . "[W]hile defendant's alleged misconduct cannot be condoned and is clearly violative of the marital relationship, it does not rise to the level of egregious fault, since defendant neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them," the appellate majority writes in its 4-1 opinion.

Lawyer May Collect Fee Despite Billing Slip-Up

Vesselin Mitev, New York Law Journal

3-18-09 -- A divorce attorney who failed to bill his client at statutory 60-day intervals can still collect a fee for his services, a New York state judge has ruled. . . . "Although an attorney's failure to provide itemized bills at least every 60 days will preclude collection of a fee for services rendered ... where there has been 'substantial compliance' with the rules, recovery of fees has been allowed," Brooklyn Supreme Court Justice Mark I. Partnow held in Edelstein v. Greisman, 18848/08. . . . Saul Edelstein, a partner in The Edelsteins, Faegenburg & Brown in Manhattan, was retained by Abraham Greisman in June 2004 and discharged two years later.

MINNESOTA   

State ethics panel calls for judge's suspension

The rare recommendation is for Judge Timothy Blakely, who sent business to a divorce lawyer and got a $63,503 discount.

By Rochelle Olson, Star Tribune

3-12-09 -- A Minnesota judge who steered business to a divorce lawyer who gave him a large discount should face the rare sanction of being suspended six months without pay, a judicial ethics panel recommended Wednesday. . . . The three-member panel of the state Board on Judicial Standards recommended censure and time off the bench and payroll for District Judge Timothy Blakely, who sits in Goodhue and Dakota counties. . . . Led by former Supreme Court Justice Edward Stringer, the panel found "clear and convincing evidence" that Blakely violated judicial rules and codes by accepting a $63,503 markdown on his $108,876 divorce after appointing his attorney many times as a mediator in cases he oversaw. . . . A Supreme Court ruling is months away, but Blakely could become the first judge suspended since 1993. Only four judges have been suspended in the 35-year history of the board, according to executive secretary David Paull.

NEW JERSEY  

New Business for Courts: Pet Custody

Judges may invoke specific performance remedy, N.J. appeals panel says

Mary Pat Gallagher, New Jersey Law Journal

3-12-09 -- When couples break up, judges can decide who gets custody of pets based on their unique sentimental value, a New Jersey appeals court ruled Tuesday, setting a precedent in the state. . . . The published opinion in Houseman v. Dare (pdf), A-2415-07, reverses a trial court's finding that pets differ from personal property like heirlooms, family treasures and works of art and therefore that the equitable remedy of specific performance is not available. . . . Appellate Division Judges Jane Grall, Stephen Skillman and Ronald Graves found that determination erroneous as a matter of law and remanded for further proceedings. . . . "There is no reason for a court of equity to be more wary in resolving competing claims for possession of a pet, based on one party's sincere affection for and attachment to it than in resolving competing claims based on one party's sincere sentiment for an inanimate object based on a relationship with the donor," Grall wrote.

NEW YORK  

First Prenuptial Pact by Hermes Heir Is Valid One, N.Y. Judge Finds

Mark Fass, New York Law Journal

3-13-09 -- A New York premarital agreement signed by an heir to the Hermes fortune is valid, even though a subsequent French agreement the couple signed may have failed to include exclusions anticipated by the initial agreement, a Manhattan judge has held. . . . Mathias Guerrand-Hermes argued that the court should throw out the New York prenuptial on the grounds of "mutual mistake." Both parties believed the French agreement, which they signed two days later, would include substantial waivers of property rights by the wife. The French waivers, it turns out, may not have been as strong as one or both parties originally believed. . . . Manhattan Supreme Court Justice Harold Beeler rejected Mr. Guerrand-Hermes' motion on several grounds, including that any potential mistake occurred after the first agreement was ratified, and therefore had no bearing on its validity.

MISSISSIPPI  

How to Win a New Trial: Claim the Lower Court Judge Badgered You

Leigh Jones, The National Law Journal

3-11-09 -- A Mississippi woman embroiled in a custody battle has won a new trial from the state's Supreme Court, which found that the she was badgered by a lower court judge who accused her of having "diarrhea of the mouth." . . . The Mississippi Supreme Court found that Glenn Alderson, a chancery court judge in Oxford, Miss., violated the state's Code of Judicial Conduct when he told the plaintiff that she "schemed" to keep her child away from her ex-husband, and when he called her expert witness, a psychologist, a "yo-yo-head." . . . The Supreme Court's decision reverses an appeals court ruling, which found that although Alderson's conduct was improper, it was harmless error and did not warrant a new trial. . . . The judge's remarks in Schmidt v. Bermudez, No. 2006-CT-00765-SCT, stemmed from repeated questions he asked the plaintiff, Amanda Bermudez Schmidt, as to why she had signed a separation agreement and a joint child custody and visitation agreement but later sought full custody of her child. "You wanted out of a marriage to marry your sweetie and get out of Dodge, that's what it boiled down to," the judge said at one point, according to the decision.

NORTH CAROLINA  

Judge orders homeschoolers into public district classrooms

Decides children need more 'focus' despite testing above grade levels

By Bob Unruh, © 2009 WorldNetDaily

3-11-09 -- A North Carolina judge has ordered three children to attend public schools this fall because the homeschooling their mother has provided over the last four years needs to be "challenged." . . . The children, however, have tested above their grade levels – by as much as two years. . . . The decision is raising eyebrows among homeschooling families, and one friend of the mother has launched a website to publicize the issue. . . . The ruling was made by Judge Ned Mangum of Wake County, who was handling a divorce proceeding for Thomas and Venessa Mills. . . . A statement released by a publicist working for the mother, whose children now are 10, 11 and 12, said Mangum stripped her of her right to decide what is best for her children's education. . . . The judge, when contacted by WND, explained his goal in ordering the children to register and attend a public school was to make sure they have a "more well-rounded education." . . . "I thought Ms. Mills had done a good job [in homeschooling]," he said. "It was great for them to have that access, and [I had] no problems with homeschooling. I said public schooling would be a good complement."

CALIFORNIA  

Calif. Justices Appear Likely to Uphold Ban on Gay Marriage

Mike McKee, The Recorder

3-6-09 -- Same-sex marriage is history in California. . . . That was quickly apparent Thursday when two justices who backed marriage for gays and lesbians last year signaled they intend to uphold the measure that took that right away. . . . Chief Justice Ronald George and Justice Joyce Kennard, who helped form the 4-3 majority that let same-sex couples wed for six months last year, gave all indications that Proposition 8 -- as unpalatable as it might be to them -- must be accepted as the will of the people. . . . "Our task is quite limited," Kennard told anti-Prop 8 lawyers during oral arguments in San Francisco. "The people are those who have created the Constitution and what you are overlooking is the people's broad power to amend the Constitution."

NEW YORK  

Parents Denied Right to Dead Son's Sperm

Noeleen G. Walder, New York Law Journal

3-4-09 -- More than a decade after a fatally ill man deposited his sperm at a tissue bank, a New York appeals court has rebuffed the plea of his parents to use the sperm for conception of a grandchild, clearing the way for the destruction of the sample. . . . In a unanimous ruling, the Appellate Division, 1st Department, held that Mark Speranza's parents' proposal to use their dead son's semen to artificially impregnate a surrogate would "fundamentally violate" 10 NYCRR 52-8.6(g), which requires sperm donors to be screened before their specimens are donated to the public. . . . "Since the purpose of this statute is to protect the surrogate mother, and thereby the general public, from disease, we cannot countenance avoidance of the regulations' dictates, even though we recognize the joy that ignoring the regulations could bring to plaintiffs," Justice David B. Saxe wrote for the panel in Speranza v. Repro Lab Inc., 5121N.

NY Lawyer Can Evict His Attorney-Soon-to-Be-Ex-Daughter-in-Law Out of His House

By Vesselin Mitev, New York Lawyer

Attorney Granted Right to Evict Daughter-in-Law Found to Be Licensee

3-4-09 -- A Long Island attorney can evict his daughter-in-law from the beach cottage she shared with his son prior to their estrangement, a state judge has ruled in what the judge called an apparent case of first impression. . . . Dawn Fasano, also an attorney, claimed she could not be forced to leave the Oyster Bay home, as she became a family member of Lawrence M. Lally when she married his son in 2001. . . . But District Court Judge Scott Fairgrieve of Nassau County rejected that argument. . . . "As the relationship between a father-in-law and daughter-in-law would not ordinarily be recognized as part of the traditional nuclear family, this court acknowledges that it would be necessary to evaluate the relationship in the context of the 'reality of family life,'" Judge Fairgrieve wrote in Lally v. Fasano, 6202/08.