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Update on October 2014 Continuing Education Post

by merlin on June 29th, 2015
  • Sumo

Today, I had the opportunity to watch a video of a Continuing Legal Education seminar that I attended live in October of last year, but was forced to leave approximately two hours before the ending.  I corrected that error today, and the notes I have made are more thorough than those I took before, as well.

Nuts and Bolts of Family Law (video rebroadcast)

State Bar of GA HQ – 6/29/15

 Judges’ Panel (Superior Court of Fulton County)

Top Mistakes Domestic Attorneys Make in Cases:

  1. Set the terms of the agreement very clearly (so that you don’t wind up having to do free work);
  2. Be CAREFUL ABOUT asking for a GAL – is it NECESSARY to ask for one?
  3. Brief the law before (outside of Fulton County, judges are GENERAL JURISDICTION, so brief it and highlight the issues that need to be adjudicated); STATUS CONFERENCE

Make sure that you give your client the truth that they do NOT want to hear:

Ex. joint custody, realities of child support, etc.

  • ALWAYS TELL THE CLIENT – Do NOT text; do not e-mail; do not PUT IT IN WRITING!!!!!
  • Attorney’s Fees:
    • Client conduct versus Attorney conduct:

TEMPORARY grants are only about equalizing the playing field, but PERMANENT will wind up unofficially taking into account how much of a jerk a person has been

Section 19-6-2 Attorney’s fees

  • The grant of attorney’s fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property division, child custody, and child visitation rights, shall be:
  • (1) Within the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party; and
  • (2) A final judgment as to the amount granted, whether the grant is in full or on account, which may be enforced by attachment for contempt of court or by writ of fieri facias, whether the parties subsequently reconcile or not.
  • (b) Nothing contained in this Code section shall be construed to mean that attorney’s fees shall not be awarded at both the temporary hearing and the final hearing.

(c) An attorney may bring an action in his own name to enforce a grant of attorney’s fees made to him pursuant to this Code section.

  • MUST weigh the financial circumstances of the parties (it’s about LEVELLING THE PLAYING FIELD); AND
  • This is NOT a “prevailing party” statute; even with BLATANT CONTEMPT, possible that it has not met the standard
  • PRESENT A COPY OF THE STATUTE TO THE COURT!!!!
  • 19-6-19
  • Modification; this IS a “prevailing party” statute

Need to SEGREGATE YOUR EXPENSES if you have a hybrid case; award attorney’s fees under the different applicable statutes, and BRIEF EACH ONE!

  • Line up the individual breakdown of anticipated costs beforehand (ex. what the forensic experts cost, etc. – remember that you CAN be cross-examined on the fees)

Make sure your bill is REASONABLE AND ACCURATE!!!!!

Joint Physical Custody Arrangements:

  • Need to give the DEFINITE JUSTIFICATION/EXPLANATION for this arrangement
  • Need to definitely show how it is in BEST INTERESTS OF CHILD (NOT best interests of PARENT; even if parent just wants to be with their child you have to look at what the CHILD wants/needs); come in with a proposed parenting plan!!!
  • What about the value for face-time between the child and the parent for that commute? What is the difference as far as the time the child gets up at each house?  Is it more of a convenience for the parent versus a benefit to the child?

NO SELF-EFFECTUATING PROVISIONS (every new change requires a new determination of the best interests of the child at that time)

Representing Immigrant Clients

Presenter: Adrianna de la Torriente

  • Going to ABSOLUTELY verify that client UNDERSTOOD IDEAS given (ex. “premarital property”)
  • Are they REALLY married?
  • Need to address when property is owned in common in client’s home country; obtain third-party help THERE to dispose of it!
  • Be sure you spend the extra time in the initial consultation!!!

Cross-Examining the Psychological Expert

Carine P. Burney and Dr. Marilyn Israelian

 

  • Need to actually understand the issues so a good challenge can be made or a favorable evaluation defended (in CUSTODY EVALUATIONS, for instance)
  • Remember – JUST A FACTOR (and NOT a rubber stamp)
  • Obtain Discovery from the psychological evaluator
    • If you don’t have that info, it is tough to successfully cross
    • Remember – NO LITERATURE to show how the psychological evaluation compares to parenting ability

In your consent order, SPECIFICALLY STATE THAT YOU ARE ENTITLED TO ALL DISCOVERY (how to get access to a privileged child psychology evaluation)

  • Did the evaluator correctly represent the conversation that occurred (evaluator’s bias may have influenced their recounting of the conversation)
  • Who did they speak to?
  • Was there more conversation with one side than the other???
  • When did the conversations take place (ex. time for follow-up prior to trial)?
  • VERIFY ONE LAST TIME THAT YOU RECEIVED ALL OF THE FILE.

Make sure the evaluator is somebody who is properly vetted (if you are unfamiliar with them).

  • Are the tests PROJECTIVE (ex. Rorschach, etc.) or OBJECTIVE (ex. MMPI, etc.)?
  • Ask about validity, reliability, is it peer reviewed, etc.?

Find out if any custody evaluations have been done, or EVEN IF THERE HAVE BEEN PSYCHOLOGICAL EVALUATIONS AT THE SCHOOL!!!!!

Federal agencies’ implementation of Windsor and Same-Sex Benefits

William John Camp

Don’t forget that Loving versus Virginia struck down the interracial bans on marriage; now Obergefell has done the same with same-sex.

  • The issues, therefore, are the same!

Jurisdiction and Venue in Divorce Cases

Andrea M. Knight

 

Venue:           OKAY under the State Constitution if Defendant lived in the County for the 6 months prior to action AND the marital residence was in that County when the parties separated!!!

  • You CAN waive venue in Georgia NOW.
  • Remember: Child custody modification actions have to be filed in county where CUSTODIAL PARENT RESIDES.

Remember:   Georgia has LOW ALIMONY AWARDS, typically.

Need to address where party RESIDES, which word is important (for venue purposes, realize that this word applies as a term of art).

If UCCJEA jurisdiction is lost:

  • CANNOT obtain by CONSENT.

Use of Lab Tests in Family Law Cases (what can be tested for)

Kelly Martinez, The Artimes Group, LLC (Marietta)

 

Court-Ordered random drug testing:

  • Alcohol: Testing breath alcohol; 80-hour urine tests; PEth test (which determines how many drinks they had over a 3-week period – shows binging, etc.); hair follicle test is 3 MONTHS.
  • Drugs: residue test in home for ambient smoked substances; these tests CANNOT BE ADULTERATED (they take BODY HAIR)!!!!
  • Drug metabolites are produced in the body only if the drugs are INGESTED, but metabolites are there if they are exposed in their environment (three months).
  • Can go back as far as 12 MONTHS on a drug test.

 QDROs

Matt Lundy

 

Private Sector retirement plans (ERISA-compliant):          $6.2 trillion!!!

 

Sanmaru:

  • If you don’t know specifically what you are dividing and how to divide it, then DON’T.
  • Remember – Plan has to act in its OWN benefit, and not for possible QDRO (Plan must have certainty as to the benefits it pays out)
    • They establish their own rules!!!!
    • Remember – this is a CONTRACT.
  • QDROs came from EMPLOYMENT LAW, not necessarily from Family Law (remember this in your approach to them)

 Child Support Guidelines (Revisited)

Laurie Dyke, CPA/CFF, CFE, CFC

New law – LC 39 6200:

  • allows LIABILITY FOR IMPROPER RECEIPT (if a party retains overpaid child support)
  • Must do multiple worksheets for multiple children
  • Courts can remove work-related child care expenses and allocate the expenses PRO RATA

On the CS Worksheets – remember that the right-click button allows you to HIDE the tabs you aren’t using (ex. self-employment calculator when it isn’t applicable)

  • MUST complete the FINDINGS OF FACT on the Order itself. Black, 740 S.E.2d 613
  • Expenses not listed on the CSW cannot be included, and they MUST BE listed on it. Turner, 684 S.E.2d 596
  • SERIOUSLY – read the Friday case (No. S13A1625) on voluntary underemployment; CHILD SUPPORT CAN BE PAID TO THE NONCUSTODIAL PARENT

Remember – put deviation amount in NONCUSTODIAL PARENT CSW.

When decision-maker picks something to be done, expense MUST BE MATCHED by the other parent, too (Hardman, No, S14A1187).

  • Upward parenting time deviation – can put it in on Line 10 of Schedule E.

Judges’ Panel

“Top 3 Attorney mistakes”:

  • Have your child support worksheet done before
    • THE JUDES WON’T DO IT FOR YOU!!!!
  • Settle the case before you come to Court!
  • Lay out what your goals are at the start of the hearing; lay out the STANDARD for decision; PRE-MARK YOUR EXHIBITS

You make sure that you:

  1. List the relief you’re seeking;
  2. List the legal standards for the relief;
  3. Prepare (including pre-marking exhibits and writing an exhibit list for the stuff you enter)

Do UPDATED CSWs!!!!!

Using an expert (well) will ABSOLUTELY help with child placement – but less so using a child psychologist (A GAL IS A BETTER ASSET – WANT TO KNOW WHICH PARENT SPENT MORE TIME WITH THE CHILD, AND THE GAL WILL THEORETICALLY BE ABLE TO TESTIFY ABOUT THAT).  ESPECIALLY USEFUL – business valuation

It is a VERY GOOD IDEA to ask for a hearing up-front on the administrative issues of the case (such as need for a GAL, the individual issues for temp. alimony, etc.)

As far as the parenting time deviation goes – HOW MUCH TIME DID THE PARENT SPEND WITH THE CHILD BEFORE THE DIVORCE???

As regards businesses – giving a portion (ex. 50%) of a loosely-held business may kill the person’s desire to continue doing their work, and THIS MAY BE WORSE THAN ANYTHING ELSE!!!!

Attorney’s Fees:

  • Agree on them UP FRONT
  • Make it clear that the JUDGE, not the parties, is controlling the litigation.
  • Remember: They are viewed as a species of alimony, so that issue controls this issue (in many cases).

Jurisdictional Defenses

Caroline Kresky and Malone W. Allen (Ichter Thomas, LLC)

  • 50-2-12: “Sojourner Rule” – jurisdiction of this State and its laws extend to all persons while within its limits, whether it is persons or sojourners!

ASSERT IN THE ANSWER/COUNTERCLAIM ITSELF:

  • 9-11-12(b) require Defendant to ASSERT these defenses in the pleading itself.

Section 9-11-12 When answer presented; defenses and objections

  • When answer presented.A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute. A cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied.

    (b) How defenses and objections presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion in writing:

    (1) Lack of jurisdiction over the subject matter;

    (2) Lack of jurisdiction over the person;

    (3) Improper venue;

    (4) Insufficiency of process;

    (5) Insufficiency of service of process;

    (6) Failure to state a claim upon which relief can be granted;

    (7) Failure to join a party under Code Section 9-11-19.

    A motion making any of these defenses shall be made before or at the time of pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

    (c) Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

    (d) Preliminary hearings. The defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.

    (e) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a proper responsive pleading, he shall nevertheless answer or respond to the best of his ability, and he may move for a more definite statement. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 15 days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

    (f) Motion to strike. Upon motion made by a party within 30 days after the service of the pleading upon him, or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

    (g) Consolidation of defenses in motion. A party who makes a motion under this Code section may join with it any other motions provided for in this Code section and then available to him. If a party makes a motion under this Code section but omits therefrom any defense or objection then available to him which this Code section permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph (2) of subsection (h) of this Code section on any of the grounds there stated.

    (h) Waiver or preservation of certain defenses.

    (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived:

    (A) If omitted from a motion in the circumstances described in subsection (g) of this Code section; or

    (B) If it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed.

    (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Code Section 9-11-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.

    (3) Whenever it appears, by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

    (i) Officer’s defense of service. The officer making service of process and the principal officer in charge of service made by a deputy need not be made a party to any action or motion where the defense or defenses under paragraph (2), (4), or (5) of subsection (b) of this Code section are asserted by motion or by answer. Any party to the action may give notice of the objection to the service, made pursuant to such paragraphs, to the officer making the service and to the principal officer in case of service made by a deputy, and the court shall afford the officer or officers opportunity to defend the service, in which case the decision on the question of service shall be conclusive on the officer and on his principal in case of service by a deputy.

    (j) Stay of discovery.

    (1) If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.

    (2) The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection.

    (3) The court may upon its own motion or upon motion of a party terminate or modify the stay imposed by this subsection but shall not extend such stay.

    (4) If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section or if any party needs discovery in order to identify persons who may be joined as parties, limited discovery needed to respond to such defenses or identify such persons shall be permitted until the court rules on such motion.

    (5) The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery.

    Acknowledgment MUST BE SIGNED by the litigant themselves, and date to file Answer runs 30 days from date it is SIGNED, not date it is filed.

  • 9-11-12(b) REQUIRES that jurisdictional defenses be asserted (lawyer MUST assert them) in written response. No choice!!!! Under subsection (g) have to CONSOLIDATE THEM (if raised by Motion).
  • Remember: If you omit them, you have LOST THEM (other than lack of subject-matter jurisdiction)
  • Make APPLICATION to have them heard BEFORE TRIAL!!!! Duty to request hearing even if you didn’t raise the defense (it’s your DUTY).

If a jurisdictional defense is VALID, then file a Motion to Dismiss, and NOT a Motion for Summary Judgment (goes to the merits of the case).

Business Valuations – Tips and Pointers for Family Law Attorneys

From the White Elm Group, LLC, in Atlanta

Mark L. Effron, CPA/CFF, JD, CVA

Kevin P. Coillard, ASA, CFA

 

Determining “fair market value” – price at which property would change hands in a fair market by a willing buyer and a willing seller

 

Value – present worth of all future benefits of company

 

3 Broad Approaches to value:

  1. Income approach (looking at current or expected income)
  2. Market approach (looking at COMPARISONS)
  3. Cost approach (looking at a balance sheet; add up all the assets on the balance sheet, as components, plus the INTANGIBLES)
  • holding companies

Difference between values determined by different methods is the DEBT.

Value is on a CONTINUUM:

  • Remember that it is a RANGE (also, that there is difference between value methods used, such as difference in investment value or market value versus the value of the assets alone)
  • Is company managed for PROFIT versus as one component in a larger financial scheme?
  • Value is based on A SPECIFIC POINT IN TIME (ex. date of divorce, versus other key points)

Financial Theory:

  • There IS an exemption in the reporting standards when litigation is in process, that can ALTER the number that results

 

PROFITABILITY

Not a gradual, uniform trend upward; multiyear projections from clients show the process over time.

  • 19% of US Public Companies had no profitability during last year, but traded at high values (may have intangible high value)
  • Discount rate: Convert some level of economic benefit to value rate
    • Intended to project the RISK in achieving the cash flows
    • If assumption is that company is expected to do better in the future, then HIGHER discount rate (to reflect higher risk).
  • Capitalization rate: ???
  • Growth Rate
    • Can vary over time
    • Should be reasonable relative to the industry, history of the company, and the general economy
  • A SMALL change can significantly impact value

Case Law Update

Sarah McCormack and Jonathan V. Dunn

  • Sapp, case needs to be FINAL to not be interlocutory appeal
  • Murphy, DO NOT PUT PERSONAL REMARKS IN YOUR BRIEF (you’ll get sanctioned)
  • Reed, must file a formal objection to dismissal of divorce complaint, and NOT JUST A COUNTERCLAIM

CHILD CUSTODY:

  • Williams: Must be MORE THAN MERE SPECULATION to justify prohibition on driving from alleged drug use
  • to get the CHILD PREFERENCES IN (for visitation/custody purposes) – USE A GUARDIAN AD LITEM!!!!Blue v. Hemmans, 759 S.E.2d 72 (2014)

Administrative Legitimation:

  • Estate of James Andrew Hawkins, 2014 WL 35357324
    • Woman was trying to claim that deceased was the father, but only had a notarized statement from him; failed to render him the father under OCGA § 53-2-3

Williamson v. Williamson, 293 Ga. 721 (Ga. 2013)

  • Custodial parent CAN have to pay CS to noncustodial parent
  • CS Guidelines give discretion to Court to determine which parent is which when equal parenting time.

Proper procedural vehicle for misapplication of guidelines is MOTION FOR NEW TRIAL, and not Motion to Set Aside.

Attorney’s fee provision for frivolous – REMEMBER § 9-15-14!!!!!!

Also, remember: Rose v. Rose, 294 Ga. 719 (2014) regarding evidence of father’s better care for child as justifying primary custody via record; ALSO NOTE ISSUE OF VOLUNTARY UNDEREMPLOYMENT!!!!

 

REMEMBER TO FILL OUT SCHEDULE E OF CSW FULLY (remember – FINDINGS OF FACT)

 

Attorney’s fees – BOTH A LEGAL AND A FACTUAL BASIS

 

Remember the redacted information statute!

  • Be mindful not JUST of your own pleadings, but ALSO the attachments!!!!

 

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