Saturday, April 22, 2006

Case Law Development: Federal Ninth Circuit Says School May Ban “Homosexuality is Shameful” T-Shirt

The United States Ninth Circuit Federal Court of Appeals ruled on Thursday that a  a t-shirt with the words, “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful” on the back can be banned from public schools.  The majority in the 2-1 decision said that the t-shirt can be banned because it is “denigrating” to homosexuals and their lifestyleand interfered with their right to learn. The parties in support of allowing students to wear the t-shirts had argued they were protected by the lst Amendment to the United States Constitution that guarantees freedom of speech. A copy of the majority_slip opinion may be obtained by clicking here.pdf  A copy of the dissenting slip opinion may be obtained by clicking here.pdf

April 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Federal Eighth Circuit Court of Appeals Hears Challenge to South Dakota Abortion Notification Requirement

The Federal Eighth Circuit Court of Appeals heard arguments on Thursday about a South Dakota law that requires abortion doctors to inform patients that abortions end human lives and cause serious psychological problems. Opponents of the abortion law say that it forces physicians to give inaccurate information and infringes on their free-speech rights. The court is not expected to render an opinion for several weeks.  Source.  Jeff Douglas, AP, washingtonpost.com. The complete story may be found here (last visited April 22, 2006, reo).

April 22, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Michigan Attorney General Files Reply Brief in Case Challenging Ruling on Partial Birth Abortion Ban

The Michigan Attorney General announced Friday that he has filed an appellate reply brief with the United States 6th Circuit Court of Appeals challenging the decision issued in September by a lower court federal judge that declared Michigan's statute prohibiting partial birth abortion unconstitutional. Source. PRNewswire, biz.yahoo.com. The complete story may be found here (last visited April 22, 2006, reo).

April 22, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Poll Says Spain Continues to Support Gay Marriage

In a poll taken of Spanish citizens on March 30 by Instituto Opina, 61 per cent of respondents agree with marriage equality.  Only 32 percent said that they disapproved of the gay marriage law.  In 2005 Spain became the third country in the world to legalize same-sex marriage. Source. Malcolm Thornberry, 365Gay.com European Bureau Chief. For the complete discussion regarding the poll, please click here (last visited April 22, 2006, reo).

April 22, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Commentary: Proposed Change in Israel’s Marriage Law Is Contentious

A provision in Israel's new draft constitution considering the question of changing existing marriage law appears to be one of the most contentious issues in the proposal.  Under present law, the Orthodox rabbinate has authority over fundamental life events of Israeli Jews: marriage, divorce and burial. Therefore, orthodox Jewish couples are forced to submit to an Orthodox marriage ceremony with an Orthodox rabbi, are compelled to attend classes on family purity, and may not marry outside their faith community. One of the problems with this law is that thousands of Israeli citizens from the former Soviet Union who are not Jewish or whose Jewish ancestry is in doubt are unable to marry at all inside Israel. Another problem is that women seeking a divorce are unable to obtain a “get” as required by Jewish law. Blog readers may be interested in the detailed analysis of this issue written by Political Science Professor Seven V. Mazie, of Bard High School Early  College in Manhatten. Source.  Steven V. Mazie, The Jewish Week, thejewishweek.com.  To read Professor Mazie’s Commentary, please click here (last visited April 22, 2006, reo).

April 22, 2006 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

South Carolina Finds Man Owning $181,000 in Child Support After 13-Year Search

A man who remarried and changed his name has been arrested by South Carolina authorities after 13 years on a criminal bench warrant saying he owes $181,000 in child support payments.  According to press reports, the obligor was ordered to make child support payments in 1992 but failed to do so. Later, he left South Carolina and changed his name. He was eventually located living in Alabama. Source. The State.com. The complete story may be found here (last visited April 22, 2006, reo).

April 22, 2006 in Child Support Enforcement | Permalink | Comments (0) | TrackBack (0)

Friday, April 21, 2006

Case Law Development: Police Liability for Failure to Respond to Domestic Violence Calls

The Illinois Supreme Court held that local police agencies' immunity from lawsuits does not apply when they fail to intervene in domestic violence cases.  Justices decreed that the estate of a Chicago woman may sue police for allegedly ignoring her April 2002 call for help when her estranged husband entered her home with a gun. Witnesses saw two police officers outside the residence in their car, but they drove away without going inside. Ronyale White was shot to death minutes later.

In a separate opinion, however, the court upheld the decades-old tort immunity law, which bars lawsuits against local governments to prevent a flood of litigation that would overburden taxpayers. The court ruled that the estate of Doris Hays may not sue authorities in Rock Island and Henry counties after a witness reported Hays drove off a highway into a ditch but no one investigated. Hays' body was found three days later near her car at the accident scene.

by John O'Connor, Belleview News Democrat (last visited April 21, 2006 bgf)

The cases are Moore v. Green, 2006 Ill. LEXIS 613 (April 20, 2006) and DeSmet v. Rock Island 2006 Ill. LEXIS 617 (April 20, 2006).

April 21, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Substantial Change in Circumstances Standard for Custody Modification is Just Right

The Florida Court of Appeals reiterates the substantial change in circumstances test as the relevant test for petitions to modify child custody arrangements.  In doing so, it reversed a trial court’s denial of a petition to modify custody as the trial court had relied on outdated precedent. The trial court had relied on precedent that required showing that a co-parenting split parenting plan would not be modified unless “unworkable and doomed to failure."  The court of appeals noted that the Supreme Court of Florida had disapproved this test and had also rejected a "detriment" standard for custody modifications – the first test making it “too easy to modify rotating custody agreements by permitting modification without a substantial change in circumstances” while the second test “made it too difficult by requiring a showing of detriment.”

Briscoe v. Briscoe, 2006 Fla. App. LEXIS 5614 (2d district April 19, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

April 21, 2006 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Division of Pension Gives Entitlement to Share of Deferred Retirement Option Program

An en banc decision by the Florida Court of Appeals aligns Florida with California and Louisiana courts in holding that a dissolution judgment distributing an employee-spouse’s retirement or pension benefits entitles the non-employee spouse to a portion of the former spouse's later participation in a Deferred Retirement Option Program (DROP) account.  Here, Husband and Wife had divorced and Wife was awarded a portion of Husband’s pension.  Husband later elected to participate in a DROP program, in which in lieu of retirement, he would continue to work and the retirement funds that would ordinarily be paid out would be deposited to a DROP account, with interest and cost-of-living adjustments.  Wife argued that she should be entitled to a portion of the DROP account funds, including interest and COLA adjustments, because a portion of the funds deposited represented pension funds that she had been awarded in the dissolution.  The Court of Appeals agreed, concluding that “the former wife received an undivided individual property right in the former husband's retirement account that, under the dissolution judgment, entitles her to a pro-rata share of his DROP fund (that portion of the DROP fund the former wife would have received but for the former husband's deferring retirement benefits to the DROP fund).”  A dissenting judge found this to constitute an improper post-judgment modification of a property division.

Pullo v. Pullo, 2006 Fla. App. LEXIS 5407 (1st Dist. April 18, 2006) bgf

April 21, 2006 in Property Division | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Status Exception to Personal Jurisdiction Does Not Violate Due Process

Here's another nicely-written scholarly opinion from the Maine Supreme Court, this one to pass down the hall to our civil procedure colleagues to remind them to be sure to cover the status exception to personal jurisdiction in their syllabus.  The court reviews the history and current validity of the status exception, reviewing decisions of the US Supreme Court and state courts.  The court concludes that, while a judgment dissolving a marriage is not a property or in rem, judgment, it is unique enough that the courts can exercise jurisdiction for purposes of granting a divorce judgment only where the petitioner is domiciled in the state, even if the respondent has no contacts whatsoever with Maine. “By observing the necessity for basic due process rights of notice and an opportunity to be heard, and by carefully considering the convenience of Maine as a forum, the courts of Maine will continue to safeguard the rights of nonresident defendants while effectuating Maine's strong interest in protecting the rights of Maine residents to obtain judgments dissolving marriages in which they no longer wish to remain.”
Von Schack v. Von Schack, 2006 ME 30; 2006 Me. LEXIS 32 (March 30, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

April 21, 2006 in Jurisdiction | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Social Security Benefits as a Factor in Property Division

The Supreme Court of Maine reviews the role of social security benefits in divorce proceedings in a clear and thorough opinion.  The court reversed a trial court’s award of marital property to Wife to offset a portion of an accountant's estimate of the present value of Husband's expected Social Security benefits. The court outlined the basis for the federal statutory prohibitions on treating social security benefits as marital property.  It concluded that under those principles and US Supreme Court precedent in Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) marital property may not be used as an offset to compensate one spouse for the anticipated social security benefits to be received by the other spouse.  The court then reviewed the split among the states regarding whether social security benefits may be considered as a factor in the equitable division of marital property. The court agreed with the majority of states that allow consideration of a party's anticipated Social Security benefits as a factor among others, when dividing marital property.  A dissent would have rejected this use of social security benefits as well.

Depot v. Depot, 2006 ME 25; 2006 Me. LEXIS 33 (March 29, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

April 21, 2006 in Property Division | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Overwhelmed Family Law Attorney Suspended Indefinitely

Family law practice is a high burn-out field and our students should be repeatedly cautioned to take care of themselves and get help before they become overwhelmed, lest they find themselves harming clients and out of the profession entirely.  Case in point: The Ohio Supreme Court indefinitely suspended an attorney for a series of representations in divorce actions in which she accepted retainers and then failed to carry through on the representation. Attorney cited her depression as a mitigating circumstance but the court noted in this regard her failure to comply with a previous lawyer’s assistance program contract.
 
Columbus Bar Association v. Harris, 108 Ohio St. 3d 543; 2006 Ohio 1715; 2006 Ohio LEXIS 974 (April 19, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

April 21, 2006 in Attorneys | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Evidence of Continual Pressure for More Time with Children Sufficient Evidence for Protective Order

The Washington Court of Appeals upholds a trial court’s issuance of a protective order against Husband, concluding that although a “close question” Husband’s “knowing and willful conduct, typified by his frequent phone calls outside the parenting plan's designated times and his constantly pressuring her for additional time with the children, annoyed and harassed [Wife] such that it qualified as "unlawful harassment." Wife’s testimony and that of her co-workers regarding her fear that Husband intended to injure her, while “not overwhelming… is enough to support the trial court's finding that [Wife] had a fear of injury that a reasonable person would experience under the same circumstances.”

Phasavath v. Haggerty, 2006 Wash. App. LEXIS 701 (April 17, 2006)
Opinion on the web (last visited April 20, 2006 bgf)

April 21, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Thursday, April 20, 2006

Pets in Orders for Protection

"Spurred by growing evidence of a link between domestic violence and animal abuse, Maine has enacted a first-in-the-nation law that allows judges to include pets in protection orders for spouses and partners leaving abusive relationships. In helping pets, advocates hope to help battered women and others who aren't willing to abandon their animals to get out of a bad relationship."This is a very innovative, new approach, and it makes perfect sense because the protection order is a critical stage for women and others seeking protection," said Nancy Perry of the Washington, D.C.-based Humane Society of the United States." CNN.com Link to Article (last visited 4-19-06 NVS)

April 20, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Domestic Violence and Pets

"Dr. Kate Knutson is a vet. She naturally adores animals. Her vet clinic Web site boasts that she has "several four-legged children." Yet, she doesn't need a primer on two-legged domestic violence. Growing up in a rural, desolate and isolated patch of South Dakota, Knutson knows firsthand the abusive and violent relationships that played out among extended family members. But even she was unprepared for the surprise lesson that came with the mutilated cat brought to her as a fourth-year student at the University of Minnesota College of Veterinary Medicine.

A 12-year-old boy sadistically wrapped rubber bands so tight around the family cat's front legs that there was no other recourse but to amputate in order to save the animal's life."I learned that the child's mother was in an abusive relationship," recalled Knutson, founder and co-partner of Pet Crossing, an animal clinic in Bloomington. "I realized that what was happening inside that home had an impact on the child, who in turn had a violent impact on the family pet."" By Ruben Rosario,CentreDaily.com Link to Article (last visited 4-19-06 NVS)

April 20, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Equality and Sexual Satisfaction

"Sex is more satisfying in countries where women and men are considered equal, according to an international study of people between the ages of 40 and 80 by researchers at the University of Chicago. Austria topped the list of 29 nations studied, with 71 percent of those surveyed reported being satisfied with their sex lives. Spain, Canada, Belgium and the United States also reported high rates of satisfaction. The lowest satisfaction rate — 25.7 percent — was reported in Japan." CBS News Link to Article (last visited 4-19-06 NVS)

April 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 19, 2006

Kansas Federal Judge Rules Abortion Clinic Doctors Not Required to Report Underage Sex between Consenting Youths

A Federal District Court Judge ruled Tuesday that abortion clinic doctors and other professionals are not required under Kansas law to report underage sex between consenting youths. In making its ruling, the court rejected the argument by the Kansas Attorney General that a 1982 Kansas law requiring doctors, teachers and others to alert the state and law enforcement about potential child abuse covers consensual sex between minors and applies to abortion clinics, and other health professionals and teachers. It is not certain whether the ruling will be appealed.  Source. Roxana Hegeman, AP, chron.com. For the complete story, please click here (last visited April 19, 2006, reo).

April 19, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

Northern Kentucky University Professor Placed on Leave After Admitting Involvement in Destruction of Anti-Abortion Display

A Northern Kentucky College professor was put on leave and will retire at the end of the semester after apparently admitting that she told students to destroy an anti-abortion display on the college campus. The professor reportedly acknowledged leading graduate students to an area where crosses had been temporarily erected a week earlier by an anti-abortion group, although it is unclear what part the professor took in dismantling the display.  Please note that additional background information on this incident can be found in our Blog of April 16. Source.  AP, Washingtonpost.com. For the complete story, please click here (last visited April 19, 2006, reo).

April 19, 2006 in Abortion | Permalink | Comments (0) | TrackBack (0)

New Wisconsin Domestic Violence Law Requires Arrest – Not Ticket

Under Wisconsin's new Domestic Violence Law, police must arrest one of the parties to the violence and take that person to jail.  Under previous practices, police officers gave the alleged perpetrator a municipal ticket, which allowed the individual to be quickly released.  It is hoped that the changes in the law will bring greater protection to victims of domestic abuse and result in more uniform application of domestic violence law throughout the state. Source. Jacqueline Seibel, Milwaukee Journal Sentinel, jsonline.com. For the complete story, please click here (last visited April 19, 2006, reo).

April 19, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)

Utah Reports Domestic Violence Related Deaths Rose 33 Percent from 2004

The number of domestic violence related deaths in Utah is up 33 percent in 2005 from 2004. In 2005, 33 people died at the hands of someone they knew while in 2004, that number was 23. Experts cannot explain the increase.  Source.  Abc4,com.  For the complete story, please click here (last visited April 19, 2006, reo).

April 19, 2006 in Domestic Violence | Permalink | Comments (0) | TrackBack (0)