| January/February 2012 Newsletter |
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MELANEY'S CORNER
The past several newsletters have included articles written by Melaney Hodge, who has been an intern with our office during summer of 2010, 2011, and the fall semester 2011. Melaney will be graduating from New England Law in May 2012. She is ranked fifth in her class, and is on Law Review. We are pleased to announce that Melaney is scheduled to become part of the Army JAG corps, and will be practicing military law.
Melaney has been an important member of our "team", and many of our clients got to know her quite well, through her newsletter articles, court appearances, and/or visits to the office. We will miss her, but wish her well on this exciting new venture!
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| RECENT DECISIONS OF INTEREST Have you ever been selected for jury duty? Be sure to be attentive, as nodding off could have serious implications. SLEEPING JUROR The defendant appealed from his conviction of larceny under $250, arguing, inter alia, that the trial judge erred by failing to conduct a voir dire hearing after she was informed that a juror may have been sleeping during the trial. During the charge conference, prior to closing arguments, the prosecutor alerted the judge that a juror appeared to have been sleeping. In the course of an ensuing discussion with counsel, the judge stated (among other remarks), "I personally, I didn't observe him actually sleeping. So I'm not going to do anything." The Appeals Court began its analysis by noting that inherent in the right to an impartial jury "is the requirement that an impartial juror must also be attentive." Accordingly, the Court reasoned, if the judge sees that a juror is sleeping, or if reliable information to that effect is brought to the judge's attention, then the judge is required to take action to preserve the defendant's and the public's right to an impartial, attentive juror. "If, however, there is a question whether the juror was indeed asleep, i.e., that the juror's inattention was more than a momentary nodding off, then the trial judge has an obligation to conduct a voir dire in order to determine whether the juror is capable of rendering his or her verdict based upon all the evidence." In this case, the Appeals Court found that there was an "ample basis for believing that one of the jurors was asleep during the trial." (The prosecutor noted that the juror "has been sleeping quite a bit.") As a result of that representation, and because there was no voir dire hearing (with findings establishing that the juror had been attentive), the Appeals Court held that the defendant is entitled to the benefit of the doubt as to the juror's attentiveness and is therefore entitled to a new trial. (The Court further noted that the trial judge's statement that she did not personally observe the juror sleeping and that therefore she would take no action was an insufficient basis for resolving the issue.) Commonwealth v. Dyous, 79 Mass. App. Ct. 508 (2011). 209A RESTRAINING ORDER - CALLING THE DEFENDANT AS WITNESS There is a new case particularly important to any plaintiff who requests an evidentiary hearing related to a 209A restraining order. In S.T. v. E.M., 80 Mass. App. Ct. 423 (2011), the Court determined that a plaintiff in an abuse prevention proceeding under G.L. c. 209A had a right to call the defendant as a witness at a hearing to vacate the order, even though the defendant would have had a right to claim his privilege not to incriminate himself. The court could then have drawn an adverse inference against him in this civil proceeding. PROPERTY DIVISION - MILITARY PENSION In Casey v. Casey, 79 Mass.App.Ct. 623 (June 7, 2011), the contested issue was the proper treatment of the husband's military pension, was it an asset or a stream of income? In this long-term marriage the wife, age 41, had an income of $868 per week. Husband, age 55, had an income of $2,497 per week, which included his military pension of $867 per week. The parties had one child, and the trial judge, applying the current child support guidelines, ordered the husband to pay weekly child support in the amount of $589, resulting in wife having a weekly income of $1,457, while husband's weekly income decreased to $1,907.07. There was no alimony order. Wife's position was that the husband's military pension was an asset, and therefore, should be subject to an equitable division. The trial judge agreed with husband's position that it was a stream of income. The Appeals Court held that the USFSPA (Uniform Services Former Spouses' Protection Act of 1982) "unambiguously leaves to the state court the choice of whether to treat disposable retired pay earned for service during the marriage as divisible property." The Court also noted that veteran's benefits, including "pensions," may be considered income under the current child support guidelines. As a result, the Court stated that using the husband's pension as only an income stream left the parties in "significantly disparate circumstances," with husband guaranteed a comfortable lifestyle, while wife has no such guarantee. The Court declined to attach any significance to the fact that at the time of trial, husband's pension was in "pay" status. The case was remanded for a redetermination of issues related to husband's military pension asset and child support. |
| War of the Roses, Crimes of the Heart, or Can Divorce Be Civil? At this time of year, cupid, valentines, candy, and thoughts of love seem to be everywhere. For those contemplating divorce or separation, or who are in the midst of a contentious divorce, it is revenge and retribution, not thoughts of love that take center stage. This is particularly true when the parties own businesses, or other joint ventures. Control in the marriage and the boardroom take a back seat to anything else. Who can forget the well-publicized divorce between Frank and Jamie McCourt who owned the Los Angeles Dodgers? After thirty years of marriage, Jamie McCourt, the self-proclaimed "First Female CEO of a Baseball Team," filed for divorce in 2009. Two years later, in 2011, a settlement was reached, in what many term as the costliest divorce in California history. While Jamie finally relinquished her interest in the Dodgers for a reported $130 million dollars, Frank's interest in the Dodgers was challenged by Baseball Commissioner, Bud Selig, as the ownership interest in the team became a central focus of the divorce. Divorce cases involving considerable assets such as the McCourts had, are certainly not the norm. Most cases have some equity in the marital home, some retirement accounts, some debt, and in general, not enough money to maintain two households. This is particularly true when there are child support and/or alimony orders. The parties may have drifted apart over the years, undergone physical, emotional, or mental illness, loss of job(s), or any other situation that had a detrimental effect on the marriage. However, the lack of assets, and/or considerable debt, do not automatically insure that a fair and/or equitable resolution of all issues will be obtained without considerable time, effort, and attorney's fees. In cases where either one or both parties started a business, and/or both parties have devoted time and sweat equity to the business, future ownership interests and control seem to overshadow any concerns about the possibility of current hidden assets. In other cases, it may be treasured family heirloom that both Parties feel is his/ hers to keep. Often it is the items the Parties accumulated during the marriage, often referred to as "pots and pans," that prevent a resolution. It doesn't matter that one or both hated the item, it just becomes an obsession, part of the "war," with little thought of the cost of the litigation over an item that can easily be replaced for very little money. So, unless your assets are considerable like the McCourts, or have tremendous sentimental value such as grandmother's antique silver teapot, it might be wise to consider what exactly you are fighting over, what it is worth, and how much money you may spend in legal fees without a guarantee of getting that item. The old adage "you may win the battle but lose the war" bears consideration. Think long and hard about what is at stake, and what the real obstacles are. |
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If anyone has a topic that would be of general interest, please do not hesitate to contact the office and let us know what items would be of general interest to the readers of this newsletter.
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