Thursday, August 30, 2007

Case Law Development: Maine Supreme Court rules Lesbian Couple may Adopt

The Maine Supreme Judicial Court ruled unanimously today that state law does not preclude unmarried couples from jointly petitioning to adopt a child.  The case involved a lesbian couple who had petitioned to adopt a 10-year-old girl and her 6-year-old brother, for whom the couple had been foster parents since 2001.

The court decided the case solely as a matter of statutory construction, reasoning that if it read the statute to prohibit joint petitions by unmarried persons, the statute would still clearly allow successive petitions by unmarried persons, leading to the same end result.  "With this in mind, construing section 9-301 as prohibiting a joint petition by unmarried persons elevates form over substance to an illogical degree."  In terms of reading the statute to effectuate the purposes of adoption law, the court noted that joint petitions serve the best interests of children in a variety of ways, by insuring continuity of care should one parent die, by enabling access to  broader range of benefits from two parents rather than one, and "Most importantly, a joint adoption affords the adopted children the love, nurturing, and support of not one, but two parents."

Adoption of MA  (Maine Supreme Court August 30, 2007)
Opinion online (last visited August 30, 2007 bgf)

In related news, see the Rocky Mountain News story on the first same-sex Colorado couple to adopt after the passage of legislation permitting unmarried couples to adopt.

August 30, 2007 in Adoption | Permalink | Comments (0) | TrackBack (0)

Iowa district court declares same-sex marriage ban legislation unconstitutional

Just as many of us are getting to impediments to marriage in our syllabus this semester (and many a candidate is getting to Iowa for votes), a Polk county Iowa district court judge has ruled that Iowa's statute prohibiting same-sex marriage violates due process and equal protection, having no rational relationship to a legitimate government objective.  The 62-page decision on a motion for summary judgment has many advantages as a pedagogical tool for examining the subject of same-sex marriage. First, the court addresses the admissibility of testimony of many experts, demonstrating the underlying empirical assertions that are advanced in the argument.  Second, the trial court format of separately numbered findings of fact and conclusions of law makes it easy to pinpoint specific issues for discussion. 

Alexander Rhoads, of Babich, Goldman, Cashatt & Renzo, P.C., who edits the Iowa Family Law Blog and alerted us to the story notes that "An appeal is expected.  Under Iowa's appellate rules, the defendant, the Polk County Recorder (who issues marriage licenses under Iowa law) has a right of direct appeal to the Iowa Supreme Court, which may retain the case or refer it to Iowa's only other appellate court, the Iowa Court of Appeals."  According to the Chicago Tribune, the county immediately filed a motion for a stay from the trial judge, which is likely to be heard next week.
Varnum v. Brien (August 30, 2007)
Decision available online (last visited August 30, 2007 bgf)

August 30, 2007 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2007

Custody Arguments

"A judge hearing arguments in a custody case over a 4-year-old Cuban girl criticized state officials Monday for saying she would be irreparably damaged simply by being taken from her foster family and returned to her father in her communist home country.

Cuban farmer Rafael Izquierdo is fighting his daughter's wealthy foster parents for custody. He allowed the girl's mother to take her to the U.S., but the woman later attempted suicide and allowed the state to take custody of the child.

Rebecca Kapusta, an attorney for Florida's Department of Children & Families, argued that the girl should be allowed to remain with former baseball agent Joe Cubas and his wife, and that the Cuban-American couple be allowed to begin adoption proceedings.

''Our experts have told the father to remove this young girl at this young age would result in permanent injury and she would never recover,'' Kapusta told Miami-Dade Circuit Judge Jeri B. Cohen.

Cohen responded, ''What you're trying to do is say that if a father wants to remove his child from placement ... that if a father does that or a mother, that constitutes prospective abuse? I have never seen anything like this in all of my years of doing dependency.''"

AP N.Y. Times Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Who is Family?

"Inside the sprawling Rochester Athletic Club on the fringe of the city is a unique community gathering place called "The Neighborhood."
It features an ersatz town square with a miniature golf course, an artificial ice rink, a gym and a "cafe in the park." Building facades are painted on the walls to make the giant room look like an idyllic small town village. The slogan is: "Where families grow together."

But there's trouble in the neighborhood, and it's over what constitutes a "family," and who gets to decide.

A district judge in Olmsted County is now considering whether a precedent-setting discrimination lawsuit against the club and owner John Remick will proceed or be dismissed.

If allowed to continue, the suit will determine whether the club must give a lesbian couple and their 11-year-old child a family membership.

The family membership would save them about $500 per year."

By Jon Tevlin, Star Tribune Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)

End of Summer Divorce?

"As summer draws to a close, it's time for the last few days of vacation, time for the kids to head back to school — and for many couples, time for a divorce.

Though no official statistics are available, divorce lawyers who spoke with ABC News said more people decide to split up at the end of the summer or after the Christmas holidays than during other times of the year."

By Scott Michels, ABC News Link to Article (last visited 8-28-07 NVS)

August 28, 2007 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 25, 2007

AFCC eNews

"The August 2007 issue of the AFCC eNEWS is now available online. AFCC eNEWS is a bi-monthly e-newsletter published by the Association of Family and Conciliation Courts (AFCC). This issue of the AFCC eNEWS features a research update "Adults Are Not Good at Determining When Children Lie." Additional topics include, the Task Force on Focused Evaluations Survey, the Call for Presenters for AFCC's 45th Annual Conference, Fitting the Forum to the Family: Emerging Challenges for Family Courts, May 28-31, 2008 in Vancouver BC, Canada and an article on parenting coordination by Hon. Sandy Karlan and Linda Fieldstone, M.Ed., 11th Judicial Circuit, Miami-Dade County, Florida."

By AFCC Link to Newsletter (last visited 8-25-07 NVS)

August 25, 2007 | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Foster Care Funding Need Not Provide Auto Liability for Teenagers

It's official law now -- teenagers do not NEED to have a car.  The case, in addition to presenting a catchy policy issue to discuss, provides an excellent demonstration of statutory interpretation. 

A young woman in foster care sued the county to compel payments for automobile liability insurance so that she could lawfully drive a car.  The juvenile court denied her motion and the California Court of Appeals affirmed.  The petitioner argued that federal and state statutes required the payments to her foster parents for auto insurance and provided a set of arguments regarding statutory interpretation that would make a fine example of the skill for new law students.  She argued that federal and state statutes regarding payments to foster parents were designed to “secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.” Moreover, those statutes included requirements that payments be made for “liability insurance with respect to a child” which she argued included auto liablity insurance. (42 U.S.C. § 675(4)(a); § 11460)

The court disagreed, interpreting the statutes to exclude auto liability insurance and concluding that "The care of a minor does not require payment for car insurance (as opposed to necessities such as food, clothing, and shelter)."

In re Corrine W., (Cal. App. August 22, 2007)
Opinion online (last visited August 24, 2007 bgf)

August 25, 2007 in Child Support (establishing) | Permalink | Comments (2) | TrackBack (0)

Friday, August 24, 2007

Case Law Development: QDRO Sole Route to Waiver of Pension Rights

The Fifth Circuit Court of Appeals holds that a QDRO is the only route to waiver of pension rights upon divorce.  This case involved Decedent-Husband, who was a DuPont employee and participant in its savings and investment plan (SIP). Decedent had signed a beneficiary-designation form in 1974, identifying Wife as the SIP’s sole beneficiary. Decedent and Wife were divorced in 1994. In the divorce decree, Wife agreed to be divested of “all right, title, interest, and claim in and to … the proceeds therefrom, and any other rights related to any … retirement plan, pension plan, or like benefit program existing by reason of [decedent’s] employment.” However, no QDRO was ever submitted to DuPont.  Decedent never changed or removed the Wife as the SIP beneficiary. 

Decedent’s estate demanded DuPont distribute SIP funds to the estate, claiming that Wife’s beneficiary designation was invalid under the Texas Family Code, which provides that spousal beneficiary designations are rendered invalid by a divorce.  While the district court held that federal law preempted state law, it found that a federal common law approach applied, allowing waiver of the benefits.

The court of appeals reversed, finding that the anti-alienation provision of ERISA applied to this plan because it was a pension plan, distinguishing the district court’s common-law waiver approach as having been applied only to life insurance plans, to which the anti-alienation provision does not apply.Moreover, the court rejected the estate’s argument that a “waiver” is not an “alienation” and thus does not run afoul of the anti-alienation provision.  Rather the court concluded that:

In the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision, they exempt a state domestic-relations order determined to be a QDRO, under the standards set forth in ERISA… When, as here, ERISA provides a specific mechanism – the QDRO – for addressing the elimination of a souse’s interest in plan benefits, but that mechanism is not invoked, there is no basis to formulate a federal-common-law rule. Requiring DuPont to recognize the waiver in this situation would conflict with ERISA by purporting to determine rights to pension-plan benefits in a manner not authorized by the QDRO provisions, 29 U.S.C. § 1056(d)(3), and therefore, not permitted by the anti-alienation provision, 29 U.S.C. § 1056(d)(1).

Kennedy v. Plan Administrator for DuPont Saving and Investment Plan, U.S Court of Appeals for the Fifth Circuit, August 15, 2007
Opinion online (last visited August 24, 2007 bgf)

August 24, 2007 in Property Division | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2007

CBS Airs "Divorce Today" Series

CBS News' Early Show is running a series on divorce.  Articles and videos available on their website that professors may find useful in their teaching include:

Putting An End To Divorce Wars.  Reconcilable Differences: Some Couples Seek Mediation, Not Litigation, To Keep The Peace.  (article)

Divorce Among Senior Couples.  Deirdre Bair, author of "Calling It Quits: Late-Life Divorce And Starting Over," speaks with Harry Smith. (video)

How Divorce Wars Take A Toll On Kids. Children Are Often Caught In The Middle Between Feuding Parents (article)

last visited August 21, 2007 bgf

August 21, 2007 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Collateral Attack on Previous Divorce

The Tennessee Court of Appeals reviewed the standards for permissible collateral attacks on prior divorce decrees and reemphasized the very narrow range of situations in which these attacks can be successful.  The case involved a divorce action brought by Wife against her fourth Husband.  Husband counterclaimed with an action for annulment, claiming that Wife's prior divorce against second Husband, now deceased, was without jurisdiction and thus void, making the current marriage invalid as bigamous.  Husband argued that Wife's service of second husband by publication left that court without jurisdiction and denied second husband's due process rights.  The trial court agreed, granted the annulment and divided the couple's property according to title, rather than the equitable distribution statute. The court of appeals reversed, holding that, while lack of jurisdiction can be a basis for a collateral attack on a divorce, the lack of jurisdiction must appear on the face of the record, not from parol evidence. Here, the record of the prior divorce showed that Wife had made a diligent search for second husband's whereabouts and was unable to locate him.  Her deposition testimony in the current action could not be introduced to attack that finding.  Moreover, to the extent publication notice was insufficient as a matter of due process, that issue was not a grounds for an attack on the prior divorce by a stranger to that action.  Service of process is a personal right that can be waived (the court noted that second husband had never attacked the divorce and had, indeed, remarried himself). 

Hawkins v. Hawkins, Tennessee Court of Appeals (August 20, 2007)
Opinion online (last visited August 21, 2007 bgf)

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August 21, 2007 in Annulment | Permalink | Comments (1) | TrackBack (0)

The Feminist War on Crime

Faculty_gruyberaya Professor Aya Gruber's article "The Feminist War on Crime" appears in the most recent issue of the Iowa Law Review.  Professor Gruber, of Florida International University - College of Law, argues that domestic violence reform has become far removed from its progressive roots and now supports rather than supplants patriarchal ideology.

The Article traces the history of domestic violence reform and explains how it transformed from a grassroots populist movement to a politically powerful lobby deeply allied with law enforcement. One of the reasons for this transformation was the influence of the powerful victims' rights movement. This movement originated as a conservative counter to Warren Court civil liberties and employs essentialist discourse objectifying victims and characterizing defendants as purely autonomous agents to unmoor crime from its social roots. The Article argues that in recent times, victims' rights reformers and the government have appropriated the domestic violence issue, not to change the patriarchal institutions that support battering, but rather to further a pro-criminalization agenda. In addition, feminists, whose original program was to vindicate women's autonomy, have begun to adopt the essentialist discourse of objectifying battered women by characterizing abused women as helpless, scared, irrational, and sick. The Article suggests that feminists simply stop advocating criminal law reforms as the solution to the problem of domestic abuse and proposes some pedagogical methodologies for teaching domestic violence without characterizing abused women in an essentialist manner.

Read the article at SSRN  (Last visited August 21, 2007 bgf)

August 21, 2007 in Domestic Violence | Permalink | Comments (2) | TrackBack (0)

Saturday, August 18, 2007

Oklahoma Will Not Appeal 10th Circuit Same-Sex Adoption Decision

The Oklahoma State Department of Health will not appeal further the decision of the United States 10th Circuit Court of Appeals triking down a 2004 law aimed at same-sex adoptive parents.  (See Family Law Prof post on the decision) Tom Cross, the state Health Department's deputy general counsel, said the agency could not meet the requirements to have the 10th Circuit reconsider its opinion. The agency does not believe that the U.S. Supreme Court would take up the case, he said.

Read the Tulsa World article (last visited August 18, 2007 bgf)

August 18, 2007 in Adoption | Permalink | Comments (1) | TrackBack (0)

Case Law Development: Modifying Alimony in the Golden Years

After an 18 year marriage dissolved, Husband was ordered to pay alimony to Wife.  Twenty-six years later, Husband (now 67 years old and in poor health) retires and sells his entire interest in his business, leaving him with social security benefits as his sole income.  In response to Husband's motion to modify alimony, the trial court ordered that his alimony be reduced from $ 78,000 to $ 1 per year.

The Supreme Court of Connecticut, noting that it is a rare case in which it will reverse a trial court's decision to modify alimony, found that the trial court's focus on Husband's poor health and reduced income was too narrow.

We conclude that, in reducing the defendant's alimony obligation from $ 78,000 to $ 1 per year, the trial court improperly focused on the fact that the defendant's monthly income had been reduced from $ 14,880.14 to $ 1640, and failed to give proper consideration to the defendant's other financial resources. In addition, although the trial court properly considered the fact that the defendant had retired and was in poor health, it failed to give due weight to the plaintiff's health and financial situation. Accordingly, we conclude that, although the trial court properly determined that there had been a substantial change in circumstances justifying a modification of the defendant's alimony obligation, the trial court abused its discretion in determining the amount of that modification. We recognize that a finding of abuse of discretion in making financial awards in marital dissolution cases is very rare..... Nevertheless, in light of the extreme nature  of the modification order and the trial court's misconception and misapplication of the statutory criteria, we are compelled to conclude that this is one of those rare cases.

Simms v. Simms, 2007 Conn. LEXIS 321  (August 14, 2007)
Opinion online (Last visited August 18, 2007 bgf)

August 18, 2007 in Maintenance (alimony) | Permalink | Comments (2) | TrackBack (0)

Case Law Development: No Separate Cause of Action Available to Request Extended Visitation Under Texas Family Code

The Texas Court of Appeals, in a matter of first impression, holds that a custodial parent ("a possessory conservator" under the language of the Texas statutes) may not bring an independent cause of action seeking extended visitation. Such a request must, the court holds, be made before or at the time of an original custody order or a subsequent modification order. 

If a possessory conservator fails to ask for extended visitation under section 153.317 until after the modification order is issued, then the request is untimely by virtue of the statute itself. Generally, a possessory conservator may seek a modification of a possession order under section 156.101 only when modification is otherwise justified under one of the three enumerated grounds: (1) the circumstances of the child or other party affected by the order have materially and substantially changed; (2) the child is at least twelve years old and wishes to change his or her primary residence; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary  care and possession of the child to another person for at least six months....Thus, we conclude and hold that a request for extended visitation must be requested before or at a hearing on a modification request that meets these statutory prerequisites as well.

The court noted that, while the extended visitation statute does not expressly dictate decision based on a best interests standard, the general policy of the family code declare the best interests standard to govern in all child custody decisions.  Moreover, because original custody decisions and modification decisions are governed by the best interests standard, requests for extended visitation, which necessarily must be heard at the same time, are also governed by that standard.

In the Interest of C.A.P., Jr. and M.M.P., 2007 Tex. App. LEXIS 6616 (August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)

August 18, 2007 in Visitation | Permalink | Comments (1) | TrackBack (0)

Case Law Development: No Private Cause of Action under Child Abuse Reporting Statutes

The Minnesota Supreme Court has held that the state's Child Abuse Reporting Act does not create a private cause of action against mandatory reporters for failure to report suspected child abuse to authorities.  The court thus affirmed the district court's dismissal of this count of the plaintiff's claim.  However, the plaintiffs had also pled a common law negligence claim.   While the district court did not strike that claim, it did exclude all evidence related to the hospital's responsibility to report suspected child abuse to outside authorities.  The supreme court held that this was error because the plaintiffs presented a prima facie case that the ordinary skill and care expected in the medical profession required the hospital to report a child with suspicious injuries as a victim of suspected child abuse.  Two dissenting judges would have affirmed the district court's exclusion of
evidence as well, reasoning that the plaintiffs had failed to make a sufficient offer of proof.

Becker v. Mayo Found., 2007 Minn. LEXIS 455  (Minnesota Supreme Court August 16, 2007)
Opinion online (last visited August 18, 2007 bgf)

August 18, 2007 in Child Abuse | Permalink | Comments (0) | TrackBack (0)

Case Law Development: Contempt Appropriate Remedy for Failure to Abide by Divorce Decree's Hold Harmless Provision

In a divorce decree, Husband was ordered to make certain credit card and mortgage payments and to hold Wife harmless with regard to the debts. Husband failed to do so and Wife requested that he be held in contempt.  The trial court ruled that it could not use contempt as a remedy for failure to abide by hold-harmless agreements.  The Indiana Court of Appeals reversed, holdindg that while contempt could not be used to remedy noncompliance with a money judgment, Ind. Code § 31-15-7-10(1) made contempt an available remedy for other noncompliance with a dissolution decree.  Because the noncompliance in this case did not involve a money judgment, the trial court could properly use its contempt powers to enforce the order.

Mitchell v. Mitchell, 2007 Ind. App. LEXIS 1805 (August 8, 2007)
Opinion online (last visited August 18, 2007 bgf)

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August 18, 2007 in Property Division | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 15, 2007

Case Law Development: Divorce Courts may not Prohibit Oral Testimony

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual
circumstances.”  The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules. 

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes."  Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources.  However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.” 

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

Elkins v. Superior Court (California Supreme Court August 6, 2007)

Opinion online  (last visited August 13, 2007 bgf)

August 15, 2007 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Passport Denials as Effective Tool in Collecting Delinquent Child Support

The Associated Press reports that new passport requirements that have complicated travel this summer also have uncovered untold numbers of child support scofflaws and forced them to pay millions.  The State Department denies passports to noncustodial parents who owe more than $2,500 in child support. Once the parents make good on their debts, they can reapply for passports.

Read the New York Times article (last visited August 15, 2007 bgf)

August 15, 2007 in Child Support Enforcement | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2007

Case Law Development: Tenth Circuit Holds that Oklahoma Must Recognize Same Sex Adoptions of Other States

The United States Court of Appeals for the Tenth Circuit has upheld a district court judgment that a state law barring recognition of adoptions by same-sex couples already finalized in another state is unconstitutional. The case involved three same-sex couples who had adopted children in other states.  These three families brought suit against the state of Oklahoma seeking to enjoin enforcement of the adoption amendment, naming the governor, attorney general and commissioner of health in their official capacities.  The court held that "final adoption orders by a state court of competent jurisdiction are judgments that must be given full faith and credit under the Constitution by every other state in the nation. Because the Oklahoma statute at issue categorically rejects a class of out-of-state adoption decrees, it violates the Full Faith and Credit Clause."

Finstuen v. Crutcher (US App 10th Cir. August 3, 2007)
Opinion online  (last visited August 10, 2007 bgf)

August 9, 2007 in Adoption | Permalink | Comments (0) | TrackBack (0)

Case Law Development: South Dakota Supreme Court Holds that Child Should Keep Stepfather's Last Name

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father.  The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate.  The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister.  "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority.  "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge.  The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years.  "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote.  Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.

In the Matter of the Change of Name of L.M.G., (South Dakota August 8, 2007)
Opinion online (last visited August 10, 2007 bgf)

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August 9, 2007 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)