Wednesday, March 15, 2006
Just ten days after the Ohio Supreme Court ruled that parents of children with birth defects can sue phyisicians who fail to identify abnormalities, the Ohio House has passed a bill banning such actions. The bill has been sent to Governor Bob Taft, who is expected to sign it. Source: Jim Siegel, The Columbus Dispatch, columbusdispatch.com. For the complete story, please click here (last visited March 15, 2006, reo).
Tuesday, March 14, 2006
Here's another fine case to work with for a classroom problem or final exam question. The Arkansas Supreme Court covered all the issues of characterization, valuation and division in this dispute over Wife's controlling stock interest in a small holding company. Wife had purchased the stock before the marriage, borrowing $25,000 from her grandparents. Husband argued that, under the source of funds rule, the stock was marital property because the loan was repaid with marital funds. The court held that, because Wife purchased the stock before the marriage it was clearly separate property and did not become marital merely because marital funds were used to pay off the debt incurred in order to purchase the property. The court distinguished this case from its prior source of funds cases in which the court traced property acquired during the marriage back to separate property through sales or exchanges of that separate property.
The court found that an "active appreciation' analysis applied and that the value of the stock was due to marital efforts and therefore, that appreciation was marital property. Drawing from the caselaw of other equitable distribution states, the court clarified the burden of proof on this issue, holding that "A spouse seeking to have an increase in value of non-marital property declared marital has the burden of proving marital contributions and an increase in value. However, once this burden is met, the owning spouse is required to prove that the marital contributions did not cause the increase in value." Wife had argued that much of the appreciation in the stock's value was due to the efforts of her partners, but the trial court found that the entire value of the increase was marital. Noting the conflicting testimony on the issue, the supreme court deferred to the trial court's findings on that issue.
Farrell v. Farrell, 2006 Ark. LEXIS 171 (March 9, 2006)bgf
The Georgia Supreme Court found no error in a trial court's ruling that a portion of Husband's undivided interest in the estates of his late parents may be awarded as alimony. However, the court did reverse the trial court's joinder of Husband's two brothers (the co-executors of the estate) in the divorce action, finding that "the absence of the Co-executors from this litigation would not render the relief afforded the wife partial or hollow because she would obtain an interest as full and complete as that presently held by Husband."
Searcy v. Searcy, 2006 Ga. LEXIS 170 (March 13, 2006)
Opinion on the web (last visited march 14, 2006 bgf)
Rotating family law cases through judges and court dockets has many downsides. Recognizing this, the California Court of Appeals has held that a judge's impatience to finish up divorce trials the judge moves on to another courtroom is not a basis for declaring a mistrial when the parties are unable to conclude the trial in less than two days. In reversing the judge's declaration of mistrial, the court noted that there was only one witness left to call and only a few more hours left to go in the trial. The court determined that the judge's dissatisfaction with the amount of time the trial was taking in relationship to the amount at issue in the case could not by itself justify a mistrial and emphasized the importance in family law that one judge hear a case through to its conclusion. The court noted that the trial judge could take the case with her to her new courtroom assignment, which was only one courtroom away in the same courthouse and was still a family law assignment.
Blumenthal v. Superior Court, 2006 Cal. App. LEXIS 330 (March 10, 2006) BGF
Monday, March 13, 2006
"Gallup's annual Lifestyle poll asked Americans, without prompting, to name their favorite way to spend an evening. Nearly one in three Americans say their ideal evening is spent at home with family, making that activity the most popular, followed by watching television. These two activities have traditionally ranked as Americans' favorite ways to spend the evening. Family and friends rank first with younger adults, while watching television ranks first among older adults. Employed adults also prefer time with the family, while those who are not employed prefer to watch television. The poll, conducted Dec. 5-8, 2005, finds that 32% of Americans say staying at home with the family is their favorite way to spend an evening, while 22% mention watching television, and 11% say reading. Other favored ways to spend the evening include resting or relaxing (8%), dining out (6%), entertaining or visiting friends (4%), or going to the movies or theater (4%)." By Joseph Carroll, Gallup News Service Link to Article (last visted 3-12-06 NVS)
"HBO programmers, geniuses with taste that rarely falters, have gone way out on a limb this time, throwing in with a bunch of polygamists. But it's a sturdy limb. In many ways, Big Love is an obvious choice for the network whose examinations of families on the fringe - funeral directors, mobsters - have nourished such a strong subscriber base. . . . It starts with mundane domesticity, star Bill Paxton uncomfortably familiar as he climbs out of bed in his tighty-whities. Big Love is about a guy who leads three wives; fortunately, it soon turns to look more carefully at the consequences of the domestic arrangement, rather than the sexual mechanics." The Philadephia Inquirer Link to Article (last visited 3-12-06 NVS)
"Like most American women who give birth to a severely handicapped child, Donna Branca became pregnant with A.J. well before the age of 35. Had she been older, her doctors would almost certainly have recommended amniocentesis to screen for genetic disorders. But she was 31, so they did not, despite the fact that she had an unusual pregnancy. Branca bled during her first trimester, a possible indication of birth defects, and at her midterm sonogram, when she was 20 weeks pregnant, her fetus looked smaller than it should have based on when her doctors originally presumed she conceived. Branca had not gained much weight, either, but her doctors — whom she is barred from identifying, by a legal settlement — saw no cause for alarm. . . . At present, courts in about half the states recognize wrongful birth as a subset of medical negligence or allow lawsuits under the more general malpractice umbrella if a doctor's poor care leads to the delivery of a child the parents claim they would have chosen to terminate in utero had they known in time of its impaired health. In some of these states, like New York, where the Brancas' case was tried, emotional damages — compensation for the distress incurred by having an impaired child — cannot be recovered." By Elizabeth Weil, New York Times Magazine Link to Article (last visited 3-12-06 NVS)
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Sunday, March 12, 2006
Case Law Development: U.S. Ninth Circuit 2-1 Rules that 1979 Pregnancy Bias Law Does Not Apply to Phone workers Who Took Leave Prior to that Year
The United States Circuit Court of Appeals for the Ninth Circuit ruled 2-1 Thursday that employees who took pregnancy leave before 1979, when federal law first banned pregnancy-related discrimination, are not entitled to the same retirement benefits as workers who took disability leave in the same period. In its ruling, the court said that AT&T did not discriminate against women in violation of Title VII, who took pregnancy-related leaves before 1979, the year an amendment to Title VII became effective. The majority on the three-judge panel said it could find nothing in the text of the Pregnancy Discrimination Act to indicate a clear congressional intent that the provisions of the statute are to be applied retroactively. The court also said that “Deserving as these plaintiffs would seem to be of some accommodation in determining their current benefits, the question before us is not whether the employer owes these plaintiffs an accommodation, but whether the law compels it. Because the PDA cannot be applied retroactively either to invalidate the original accounting scheme for pregnancy leaves or to create a current violation of Title VII by this defendant . . . suit under Title VII [must] be dismissed for failure to state a claim on which relief can be granted.
Judge Rymer, in dissent, rested his analysis on the Circuit’s opinion in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), saying it was controlling. He observed that Pallas was premised on a discrete act — the decision to deny a retirement benefit — that gave rise to a current violation of the PDA. Given Pallas’s finding of a current violation, the Act operated prospectively on that decision.
It should be noted that the 7th Circuit in Pallas in Ameritech Benefit Plan Comm. v. Communications Workers of Am., 220 F.3d 814 (7th Cir. 2000) rejected application of the Ninth Circuit’s analysis in Pallas. Hulteen, et. al. v. AT&T, filed March 8, 2006, reo. You may download a copy here of this ruling.pdf
Our readers may find a column in the Los Angeles Times authored by Professor Samuel Buell on the implications of South Dakota’s new abortion law of interest. It is entitled, “Abortion law's criminal loophole.” Samuel W. Buell is a visiting professor at the University of Texas School of Law. Source: Samuel W. Buell, latimes.com. Please click here to read Professor Buell’s column (last visited March 12, 2006, reo).
A Maryland State House legislative committee voted 20-3 late Thursday to reject an impeachment proposal based on claims that Baltimore Circuit Court Judge M. Brooke Murdock should be removed for “incompetence and other things.” Judge Murdock had ruled in January that Maryland’s statute baring same-sex marriages violated the state constitution. Source: WJZ13-TV, wjv.com. Please click here for the complete story (last visited March 12, 2006, reo).
A measure that would permit judges to award alimony if adultery occurs at least one year after legal separation and does not contribute to the breakup of the marriage passed the South Carolina Senate on Friday and has been forwarded to the House of Representatives for consideration. Under current law, adultery by a marriage partner prior to a divorce settlement or division of property voids alimony requirements in nearly all cases. Under the newest proposal, Judges would have more discretion in awarding alimony in cases involving adultery under a bill sent to the House.
The proposed new language reads as follows: “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement, or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. However, if the adultery does not occur until after one year from the date of the filing of an action for divorce or separate maintenance and support, the court may award alimony or separate maintenance and support if it finds that the adultery did not materially affect the economic circumstances of the parties or did not materially contribute to the breakup of the marriage.” A copy of the bill as it passed the South Carolina Senate can be found here (last visited March 12, 2006, reo).
A men's rights advocacy group, The National Center for Men, filed a lawsuit on Thursday in the United States Federal District Court in Detroit alleging that Michigan’s child-support law is unconstitutional because it violates reproductive rights established in Roe v. Wade. The suit claims that a lack of reproductive rights for men violates the equal protection clause of the Constitution. Source: Kaisernetwork.org. Please click here for the complete story (last visited March 12, 2006, reo).