May It Please The Court
Quote of the Day - American husbands are the best in the world; no other husbands are so generous to their wives, or can be so easily divorced.
DNA Divorce Vows: Test Me, Test You, Test The Children. What's Next?
In the second of an unplanned, two-part series on family law, MIPTC offers you "divorce vows."
That's right. If you're a Dad when you get divorced, you might want to consider this vow, recommended by the Florida Court of Appeals: "test now, or forever hold your peace," even if you think you are the father. It could end up costing you years of child support payments for a child you didn't father.
According to the Law.com article linked above, written by Carl Jones, Florida residents "Richard and Margaret Parker were married in June 1996, and Margaret gave birth to a child in June 1998. In December 2001, the couple agreed to a divorce settlement, obligating Richard to pay $1,200 per month in child support. Throughout the marriage, Margaret told Richard the child was his, and repeated that claim in front of the judge during the divorce proceedings.
Ouch. To add insult to injury, when Richard petitioned the Court to end his child support payments, the court denied his request as too late.
In fact, this vow appears to be of value not only in Florida, but also in Pennsylvania (subscription required). In that case, a father who waited eight years to seek a paternity test waited too long. The court there denied his request, too, in the case where the child is now nine.
Now when you get divorced, in addition to resolving issues over property, spousal support and bank accounts, you may want to consider including DNA tests for you and other family members.
How A Dissent Can Become A Majority Opinion
MIPTC doesn't normally cover divorces - a search for that word on this site will bring up only a few relevant posts. But this opinion is worth a look. It involves a deceased construction worker and two women. One, his second wife (and alleged soon-to-be-ex) and the other, his daughter. They brought a wrongful death suit, and hit for $1.1 million. Then the problems came.
They couldn't decide how to divide it up. The fur started to fly.
Daughter alleged that Dad was going to divorce his second wife (in that capacity for just eight months before he died) because stepmom was a prostitute, and when Dad found out, he was about to send her packing.
At trial, Orange County Superior Court Judge Randall Wilkinson ruled for a 90/10 split, with the winner's share going to daughter. Needless to say, stepmom appealed, and the Court of Appeal upheld the decision.
But then there was the matter of that blistering 37-page dissent by Presiding Justice David Sills, who said the majority committed "a serious miscarriage of justice" and had "pretty much ignored about 150 years of California case law dealing with wrongful death damages." Sills thought that it didn't matter whether Dad was going to leave his second wife - he was still married at the time of his death, and argued that the "lion's share" belonged to the second wife because to hold otherwise would restore "fault" to a no-fault divorce state. Sills' dissent was longer than the main opinion.
Yesterday, the California Supremes voted unanimously to hear the case, and it's likely Justice Sill's dissent will become their ruling. What's your prediction?
Senator Lott Sues State Farm Over Hurricane Damage; Convinces Senate To Pass Aid Package
Back in mid-September, MIPTC reported that Mississippi Attorney General Jim Hood sued a number of insurers over their failure to cover the devastation to homes in the coastal state caused by Hurricane Katrina. Plaintiffs' Lawyer Dickie Scruggs, known for taking on tobacco suits in the 90's also lost his beachfront home, and joined Hood's effort against a bevy of recalcitrant insurers.
The insurance companies claim that the storm surge from the Hurricane constitutes a flood, not covered by typical homeowners' policies. Hood and Scruggs claim otherwise: wind caused the surge, and wind is a covered peril under practically all policies.
The fight took a new twist today when Senator Trent Lott (R-Miss.) joined the fray. His Pascagoula beachfront home, like his brother-in-law Dickie Scruggs' home, was leveled by the Hurricane. According to this AP article, written by Holbrook Mohr, Lott said, "Today I have joined in a lawsuit against my longtime insurance company [State Farm] because it will not honor my policy, nor those of thousands of other south Mississippians, for coverage against wind damage due to Hurricane Katrina. There is no credible argument that there was no wind damage to my home in Pascagoula."
Apart from uttering multiple double negatives, Lott has also been seeking aid in the Senate for Mississippians devastated by the Hurricane. On the same day he filed suit, the Senate also passed his $6 billion aid package to his home state. Just goes to show you there's more than one way to skin a cat.
Coast to Coast Internet Radio Show Features Holiday LawTunes
Put your briefs and Blackberrys away and have a good-spirited laugh at the legal community. Coast to Coast, with my co-host Robert Ambrogi, brings listeners a special treat for the holidays. Lawrence Savell, Esq. (search for Savell in the link) from the New York firm of Chadbourne & Parke LLP, shares his musical scales of justice from Lawtunes (link has music) just in time for your holiday listening. Lawrence Savell has spent his entire legal career at his present firm. His musical and humorous take on the law world began in the 1980s when he performed at the University of Michigan’s Law School’s “Law Revue.” His performances escalated when he entertained his co-workers at a Manhattan law firm at holiday parties and functions.
You Don't Want To Cross Santa is one song you'll hear in our broadcast. It's music, it's humor and it will be one of the best half hours you'll spend between the holiday crush and the courthouses this season. Happy Holidays!
Want Some Clean Air With That Wine?
Collectively, while the Valley's 109 wineries produce nearly 340 million gallons of wine, they likewise produce just over 700 tons of air pollution. The air pollution happens - you guessed it - during fermentation. According to the District's studies, the fermentation process that turns grape sugars to alcohol releases ethanol, methanol and other organic compounds into the atmosphere, where they react with sunlight and heat to form ozone.
Now, E&J Gallo, Delicato and sixteen others of the District's largest winemakers, who produce some 70% of California's table wine, must reduce their emissions by 35% according to the new rules. Alternatively, they can buy air pollution credits from other companies that have reduced pollution, similar to the South Coast Air Management District's RECLAIM credit exchange program.
The wineries are pleased with the flexibility of the program, but Earth Justice isn't. They think that the rules are too easy on the wineries and the shifting of air pollution credits doesn't address the winery pollution.
You can vote your thoughts by deciding whether to raise your glass of box wine. Or not.
WARN Layoffs Not Triggered When Company Transfers Employment Contracts
When is a "mass layoff" not a "mass layoff" triggering the 60-day warning requirement of the California WARN Act? When a company sells its contracts to another company, and all the employees receive the same pay, benefits, title and other employment accoutrements as they had with the prior employer.
The City of Santa Rosa changed waste management providers, and the new WM company offered to buy the contacts between the old company and the City. The companies executed the sale, but the employees must not have liked the new uniforms, and sued, claiming that the new company violated the WARN Act. Actually, after the transfer, the new company had a company-wide layoff, which included 20 of the 41 employees from the old company. The transferred employees sued the old company, claiming a violation. The Court, however, concluded that the old company had no reason to know of the layoffs, and had no obligation to inform the employees that they would be laid off a month later.
If your company employs more than 75 employees, and you're going to lay some of them off, don't miss these requirements and the case linked above. There are some fairly complicated twists and turns.
Are You Ready For A Tsunami? The Government's Not.
Here's an early holiday present from the California Seismic Safety Commission: The Tsunami Threat To California Report. In three words, "We're not ready."
Right. A tsunami. "We're not in Banda Aceh," you say. The Report, however, points out there have been 80 tsunamis in the last 150 years, with two major tsunamis resulting in property damage and death. Just scroll down to page four of the Report to get an idea how eerily close we are to the situation in Banda Aceh, and then visit the Banda Aceh link, and be sure to click on "Before" and "After."
While the report doesn't come right out and say it, statistically speaking, we're due.
The Report makes seven main findings: (1) tsunamis are a real and significant threat to life and property along the coast; (2) risks to our major ports are most significant given the concentration of jobs, imports/exports and the potential to affect the nation; (3) we're not educated about what to do in the event of a tsunami; (4) the warning system is inadequate; (5) building codes in areas potentially affected by tsunamis are insufficient; (6) federal mapping resources are underutilized by planners to coordinate an evacuation; and, (7) the Governor's Office of Emergency Planning has stepped up since the June 14 tsunami and made efforts to get ready.
But more needs to be done. Sure, the risk from a tsunami is much less than an earthquake, but the consequences are the same. Plus, getting ready for a tsunami is an awful lot like getting ready for an earthquake, even if you live in Northern California.
The Report makes several recommendations, which largely fall into the areas of more funding, better education and more cross-jurisdictional cooperation among government entities.
What can you do? Visit the California Seismic Safety Commission site and learn how to get ready, but more important, contact your local, state and federal representatives and get them on the ball.
Sex With Minor Insufficient To Revoke State LicenseIt's amazing to realize the things that you can do and not lose your [real estate] license.