Saturday, November 19, 2005
A recent survey in China indicates that young people are more broad-minded about homosexuals as a group, with 75 percent of those polled accepting homosexual acquaintances, 37 percent among their friends and 21 percent among their relatives. However, few people agree with allowing homosexual couples to adopt children. Cen Guozhen, a professor of psychology at Shanghai Normal University, released the results earlier this week at a psychology seminar in Shanghai. Cen said that of those polled, 43 percent said they shouldn't be able to adopt, 34 percent said they were not certain about it, and only 23 percent said they should. The random sampling was conducted among 324 students in the colleges and graduate schools of three Shanghai universities. Source. Shanghai Daily, chinadaily.com. For more information, please click here (last visited November 19, 2005, reo).
A new Missouri law that limits abortions is constitutional, a county judge ruled Thursday. Circuit Judge Charles Atwell also ordered an injunction that prohibits enforcement of the law pending a ruling by the Missouri Supreme Court. The law would expose people to civil lawsuits if they “intentionally cause, aid or assist” girls under 18 to get an abortion without parental consent or without a court order waiving consent. Offenders also could be charged criminally with a misdemeanor for violating a separate Missouri consent law. Source. Joe Lambe, The Kansas City Star, kansascity.com. For more information, please click here (last visited November 19, 2005, reo).
An advocacy group asked the United States Supreme Court on Friday to let stand a ruling by a Nebraska judge that the federal Partial-Birth Abortion Ban Act is unconstitutional. The New York based Center for Reproductive Rights, which filed the Nebraska challenge to the ban, asked the high court to reject a request by the Bush administration to take up the case. U.S. District Judge Richard Kopf of Lincoln ruled last year that the ban, while containing an exception to save the life of the mother, is unconstitutional because it makes no such exception for the health of the woman. That ruling was upheld by 8th U.S. Circuit Court of Appeals. Source. Sioux City Journal, Online Edition, siouxcityjournal.com. For more information, please click here (last visited November 19, 2005).
The New York Commission on Judicial Conduct publicly admonished Family Court judge Richard S. Lawrence for holding a litigant in contempt for sighing, fidgeting and turning his back in his Nassau County Family Courtroom. The commission said that Lawrence had found the litigant in contempt for alleged disruptive behavior without issuing a warning and giving him an opportunity to desist. After sentencing the litigant to jail for five days in jail for his behavior, the judge increased the sentence to 10 days and then to 12 days when the litigant and his attorney objected. Source. North Country Gazette, northcountrygazette.org. For more information, please click here (last visited November 19, 2005,reo).
House Republican leaders secured a hard-fought victory early Thursday when they eked out passage of a $50 billion budget-cutting bill, but the broad measure must now be reconciled with a far more modest Senate version that largely steers clear of reducing programs for the poor. The blueprint would impose new fees on Medicaid recipients, squeeze student loan programs, cut child support enforcement and push tens of thousands of low-income families off food stamps. GOP leaders hailed the tough-minded measure as proof that the party is ready to make the difficult decisions necessary to confront stubborn budget deficits. Source. Washingtonpost.com. For more information, please click here (last visited November 19, 2005, reo).
A survey done for the National Fatherhood Initiative, which supports marriage and family values, says marrying late does not make for a happy union. The survey says while Americans are waiting longer to get married, the odds for a happy marriage favor those who tie the knot between the ages of 23 and 27, reports USA Today. It says the average age of first marriage in the country has risen to 26 for women and 27 for men. The survey was designed and analyzed by University of Texas sociology Professor Norval Glenn for the National Fatherhood Initiative, the report said. Glenn says the findings should not create panic among those approaching 30. "Those marriages turned out better but maybe not because of the age. Some people may be just too picky or too choosy or not extremely desirable," he says. The survey was based on a 15-minute national telephone survey of 1,503 men and women ages 18 and older in late 2003 and early 2004, the report said. Source: Upi.com. For more information, please click here (last visited November 19, 2005, reo).
A 67-year-old North Carolina immigrant who stabbed his wife to death with a screwdriver after she threatened divorce was executed by injection Friday after the governor rejected his children's' plea for clemency. Elias Syriani was pronounced dead at 2:12 a.m. at Central Prison, where he had visited and hugged his children before the execution. Source. Estes Thompson, Associated Press, WVEC.com.For more information, please click here (last visited November 19, 2005, reo).
Friday, November 18, 2005
Case Law Development: Credits Against Child Support for Disability Benefits Paid to Children on Behalf of Disabled Obligor Parent
Father was ordered to pay child support. He applied for disability and, eventually, the social security administration processed his claim and determined that he had become disabled and that he and his dependents were entitled to disability benefits. Both daughters received sizable lump sum payments (to account for the delay in processing the claim from the time the disability began to the time the service actually began to make payments).
Father argued that he was entitled to a credit or offset for the benefits paid to his children as a result of his disability. The Texas Court of Appeals agreed that section 154.132 of the Texas Family Code provides that, when establishing or modifying child support, the court should credit benefits paid to children on account of the parent's disability. However, the court rejected Father's argument for credits against past due child support. Regarding father's argument that he be given a credit against a past judgment of arrearages, the court held that the doctrine of res judicata bars any retroactive credit. As to those arrearages that had not yet been reduced to a judgment, the court also concluded that no credit should be given. The court found no language in the statutory provision allowing for a retroactive credit and concluded the issue was better left to the legislature. "The policy issues implicated in applying a lump-sum disability payment to unpaid, unconfirmed child support are more complicated than a credit for future benefits to be paid. Given the competing policies and equities, ... whether an obligor is entitled to an offset against past unconfirmed child support arrearages is an issue for the Legislature to decide."
In the Interest of G.L.S., 2005 Tex. App. LEXIS 9547 (November 16, 2005)
Opinion on the web at http://www.4thcoa.courts.state.tx.us/opinions/case.asp?FilingID=19007 (last visited November 17, 2005)
The California Court of Appeals agreed with a 61-year-old wife's argument that "the trial court manifestly abused its discretion by pulling the plug on her spousal support after 14 years had gone by without any indication from [Husband] or the court she was expected to become self-supporting through employment and giving her only three weeks to find a job." Wife had been granted $5,800 a month spousal support from her ex-husband in 1989. The decree did not contain a "Richmond order" terminating spousal support jurisdiction as of a specific date (In re Marriage of Richmond, 105 Cal. App. 3d 352 (1980)) nor a "Gavron warning" advising Judy she needed to become self-sufficient or face legal and financial consequences (In re Marriage of Gavron, 203 Cal. App. 3d 705 (1988)).
Husband brought an action to terminate the support because wife was able to earn income with her social work license, her medical expenses had substantially decreased, and she had attained an age at which she could draw upon her IRA without penalty. The court of appeals found that there was substantial evidence to justify terminating Wife's spousal support but the trial court abused its discretion in doing it so abruptly as to deny Judy reasonable notice and an opportunity to find a job.
As a remedy, the court of appeals directed that Wife's spousal support be returned to the original amount and continue until Wife "obtains employment at the rate of at least $ 2,500 per month or ceases to make a good faith effort to obtain such employment, or attains the age of 65 years, whichever occurs first."
In re Marriage of Schmir, 2005 Cal. App. LEXIS 1792 (November 16, 2005)
Opinion on the web at http://www.courtinfo.ca.gov/opinions/documents/B175397.PDF (last visited November 17, 2005 bgf)
In a case involving the dissolution of a 13-year marriage between a physician and a stay-at-home mom, the Indiana Court of Appeals affirmed an order requiring Father to pay all of the college expenses for the couple's three children's (ages 13, 10 and 9) once their college investment funds were exhausted. Distinguishing cases in which the court had reversed orders for one parent to pay all college tuition as situations in which the parents had roughly equal resources, the court found this award was justified by the significant disparity in income between the parents. (Father earned an average of $330,000 annually; the court had imputed an income of $20,800 to Mother).
A dissent took issue with the order to pay "an unfettered amount of the children's college expenses" noting "putting three children through four years of education at Harvard would cost Husband $ 561,000" and that "it is entirely possible that he ... could be plunged into poverty." The majority found the dissent's fears unreasonable, noting that even in the remote event that all three children went ot Harvard, most students there receive financial aid and that state college tuition is far less. Moreover, the court noted, Father could move to modify the award should it become unreasonable.
Eppler v. Eppler, 2005 Ind. App. LEXIS 2132 (November 14, 2005)
Opinion on the web at http://www.in.gov/judiciary/opinions/pdf/11140503pdm.pdf (last visited November 16, 2005 bgf)
Case Law Development: Dividing Social Security Benefits as Property in Divorce -- Not Even if the Spouses Agree
The South Carolina Court of Appeals reversed a trial court divorce decree that incorporated a settlement agreement providing that if Husband received social security benefits, he would pay 1/3rd of each payment to Wife. Because 42 U.S.C. sec. 407(a) (1998) provides that Social Security benefits "shall not be transferable or assignable" the court held that the family court lacked subject matter jurisdiction to divide these benefits, even if the division was the product of the parties settlement agreement.
Simmons v. Simmons, 2005 S.C. App. LEXIS 244 (November 14, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=4043 (last visited November 17, 2005 bgf)
Thursday, November 17, 2005
"Gov. Rod R. Blagojevich signed a measure on Tuesday intended to allow all children in Illinois, including those in working-class and middle-class families, to obtain health insurance. National experts on health care said the new law, which will offer discounts on premiums for those who qualify, was the broadest plan to insure children by any state. Political leaders in other states, the experts said, are certain to be watching whether Illinois succeeds in expanding coverage to its 250,000 children who are now uninsured, about half of whom are not from the poorest families but from families earning more than $40,000 a year. Mr. Blagojevich, a Democrat, said he hoped that the move would lead the way for a nation that needs to face a growing problem of middle-income families who cannot afford insurance premiums.
"It's about time that the middle class get some help and the working class get some help," he said in an interview. "Our kids come first, and what's the most important thing for kids? That they're safe and healthy."
Within hours of the signing on the Southwest Side of Chicago, residents submitted contact information to enroll online, though the benefits do not begin until July. By the end of the day, hundreds of people had written in, Mr. Blagojevich's office said. Although few people here wanted to be viewed as opposing children's having insurance, a concept that one skeptical legislator compared to siding against motherhood or apple pie, Mr. Blagojevich has his doubters. Critics of the program, which the governor says will cost $45 million in its first year, said they feared that such a sweeping offer could end up costing far more at a time when the state's budget is strained and that it might turn Illinois into a refuge for families from other states desperate to insure their children." By Monica Davey, NYTimes.com Link to Article (last visited 11-16-05 NVS).
"The nation's courts are getting hit with a growing number of requests to seal divorce records, but not by squabbling couples. Divorce lawyers say corporations -- along with the rich and powerful -- are increasingly asking judges to seal the divorce records of top executives to protect trade secrets or crucial financial information from leaking out, or simply to avoid embarrassment.
Attorneys note that while the courts have long protected children in divorce cases by sealing records, they are now doing the same for companies, treating trade secrets, assets, stock values and executive salaries as valuable, sensitive information that needs special protection. And with state court records now available on the Internet in 30 states, fears of data theft or data leaks are at an all-time high among businesses.
"This has become an increasingly prevalent issue," said attorney James Feldman, head of the family law practice at Chicago's Jenner & Block, who in recent years has seen a notable increase in companies intervening in divorce cases. "This year alone I've represented several key executives in divorce cases where a protective order or a confidentiality agreement had to be obtained in order to prevent information from getting out." By Tresa Baldas, The National Law Journal Link to Article (last visited 11-16-05 NVS)
Wednesday, November 16, 2005
Six American Navy crew members looking for quick and profitable marriages to illegal aliens face federal charges after being among 10 people caught in an FBI sting operation targeting the sham unions, prosecutors said. The six, assigned to the U.S.S. Eisenhower in Norfolk, Virginia, were nabbed after the FBI learned that a Baltimore man, Kenneth Adam Howard, 26, was recruiting men and women to enter sham marriages in New York, according to a complaint in U.S. District Court in Manhattan. Howard, who was among those charged with conspiracy, offered to provide people to marry illegal aliens at a cost of $3,000 to $4,000 per marriage, the complaint said. Source: Larry Neumeister, Associated Press Writer, seattlepi.nwsource.com. Please click here for the complete story (last visited November 16, 2005, reo).
Ontario families may no longer be able to turn to a religious tribunal to settle disputes such as divorce and child custody cases if new legislation introduced Tuesday by Attorney General Michael Bryant becomes law. “When it comes to family law arbitrations in this province, there is only one law for Ontario- Canadian law," Bryant told the legislature to cheers from his Liberal colleagues. People still would be free to seek a resolution of family disputes from religious leaders, but Bryant said it would amount to "advice only" and would not be enforceable by the courts. The legislation is the first time the government has officially acknowledged Premier Dalton McGuinty's surprise statement to The Canadian Press last September that he would stop all religious arbitrations from having the force of law in Ontario . Some Jewish and Muslim groups have vowed to fight to keep the faith-based tribunals, and complained they had no input before McGuinty's surprise announcement last September. Source. Keith Leslie, The Canadian Press, news.yahoo.com. For the complete story, please click here (last visited November 16, 2005, reo).
A pregnant 37-year-old Georgia woman who eloped with a 15-year-old boy was in jail on charges of child molestation, authorities said on Tuesday. Lisa Lynnette Clark was arrested last week in Hall County, Georgia a day after a judge married her and the unidentified teenager. Clark was being jailed in Gainesville, about 50 miles northeast of Atlanta. Clark and the teen had a sexual relationship, perhaps for as long as two years, according to the Hall County Sheriff's Department, which is investigating the case. Clark's marriage to the boy does not protect her from prosecution, police said. Under Georgia law, teenagers may marry as long as they are at least 16 and have the permission of a parent or guardian. Those restrictions are waived, however, when a female applicant is pregnant. Sources. Reuters, today.reuters.com; gainesvilletimes.com. Please click here for the complete story (last visited November 16, 2005, reo). Additional information, please click here (last visited November 16, 2005, reo).
France’s employment minister on Tuesday fingered polygamy as one reason for the rioting in the country. Gérard Larcher said multiple marriages among immigrants was one reason for the racial discrimination which ethnic minorities faced in the job market. Overly large polygamous families sometimes led to anti-social behaviour among youths who lacked a father figure, making employers wary of hiring ethnic minorities, he explained. Source. Martin Arnold, news.ft.com. Please click here for the complete story (last visited November 16, 2005, reo).
A Lexington County, South Carolina man must continue paying child support for his 40-year-old mentally disabled daughter, the State Supreme Court has ruled. The court heard arguments last month from a man who said a family court judge should have dismissed the case against him because the legal deadline to bring a paternity action had expired. He also said he shouldn’t have to pay $91 per week in child support, as ordered by the family court, because his daughter earns enough money under court guidelines with her part-time job and federal disability payments. The daughter receives $275 in Social Security benefits a month. She also receives between $250 and $350 a week from her job. The woman’s mother filed a lawsuit in 1999 seeking child support for the first time for her then-34-year-old daughter, who lives with her in Lexington County. Source. TheState.com. For the complete story, please click here (last visited November 16, 2005, reo).
Smith v. Doe, 2005 S.C. LEXIS 335 (November 14, 2005)
Opinion on the web at http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26063 (last visited November 17, 2005 bgf)
An appeals court in Argentina has ruled that DNA be extracted from the corpse of former president Juan Peron to investigate a woman's claim that he is her biological father, a court official said. The order came in the 12-year-old case of Martha Holgado, 71, who in 1993 claimed that her mother, Cecilia Demarchi, had a secret relationship with the three-time president while he was married to his first wife, Aurelia Tizon. The appeals court rejected a move by Peron's third wife, Maria Estela 'Isabel' Martinez, to block a lower court's order that a DNA sample be obtained for analysis. Peron was president from 1946 to 1955 and then from 1973 to his death in 1974. Peron is believed to have left behind a multi-million-dollar fortune. Source. (AFP) Yahoo.com. For the complete story, please click here (last visited November 16, 2005, reo).
Tuesday, November 15, 2005
Case Law Development: U.S. Supreme Court Holds that Parents have Burden of Proof in Challenging IEPs
In a 6-2 decision today, the United States Supreme Court determined who has the burden of proof in administrative actions challenging their child's individualized education plan (IEP) under the Individuals with Disabilities Education Act. The majority held that, "The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ." Parents had argued that school districts should always have the burden of proving that their IEP plans are valid and that fairness requires that districts have the burden of proof because they have access to the facts necessary to the review of the IEPs. The majority of the court rejected both arguments, preferring the default position without stronger evidence of Congressional intent. Justice Sandra Day O'Connor wrote the decision and was joined by Stevens, Scalia, Kennedy, Souter, and Thomas. Justices Ginsberg and Breyer filed dissenting opinions. Chief Justice Roberts recused himself and did not take part in the case.
Shaffer v. Weast, 2005
Opinion on the web at http://www.supremecourtus.gov/opinions/05pdf/04-698.pdf (last visited November 14, 2005 bgf)