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Vulgar Emails Not ‘Obscene’
By Deborah Elkins
Published: June 13, 2012
Tags: Criminal Defense
A husband’s emails to his estranged wife accusing her of soliciting sex on Craigslist and calling her a “coke whore baby killing prostitute” were not “obscene” under the definition of obscenity approved by the General Assembly, and the Supreme Court of Virginia vacates the husband’s conviction for harassment by computer in violation of Va. Code § 18.2-152.7:1.
The statute at issue, Va. Code § 18.2-152.7:1, does not merely proscribe harassment by computer; rather it enumerates specific elements of the offense that must be proved. In the context of this case, the commonwealth must prove: 1) the accused used a computer or computer network; 2) to communicate obscene language; 3) with the intent to coerce, intimidate or harass.
Significantly, defendant does not argue on appeal that the evidence was insufficient to establish that he intended to coerce, intimidate or harass his wife. There is no dispute about satisfaction of the requirement elements for the use of a computer or the intent to harass. This case is about the statutory elements of the offense as specified by the General Assembly that require the speech at issue be “obscene.” The dispositive question is what definition of “obscene” should apply – the statutory definition of “obscene” found in Code § 18.2-372 or the dictionary definition used by the Court of Appeals.
The General Assembly provided a definition of “obscene” in Code § 18.2-372 to comport with the constitutional requirements articulated in Miller v. California, 413 U.S. 15 (1973). There is no suggestion this definition is constitutionally infirm. The Court of Appeals has for the last eight years used this definition outside of Article 5, Chapter 8 of Title 18.2. The legislature is presumed to be aware of this usage. Its acquiescence is deemed to be approval.
The definition of “obscene” provided in Code § 18.2-372 and previously adopted by the Court of Appeals controls this case. The Court of Appeals erred in substituting a dictionary definition for that provided by the General Assembly.
Also, upon review of the record we hold that defendant’s emails to his wife, as offensive, vulgar and disgusting as their language may have been, did not meet the standard of obscenity provided by Code § 18.2-372. We reverse the Court of Appeals’ judgment and enter final judgment vacating defendant’s conviction.
Reversed and final judgment.
Concurrence
Russell, S.J., joined by Goodwyn & Millette, JJ.: We join in the majority opinion and concur in the result but write separately to emphasize two matters. We do not consider the Miller test to be constitutionally mandated when applied to statutes regulating harassing conduct, rather than speech protected by the First Amendment. We agree, however, with the majority’s reasoning that the General Assembly has tacitly approved the holding in Allman v. Commonwealth, 43 Va. App. 104 (2004), by leaving the relevant statutes unamended for the eight years that have passed since Allman was decided.
The commonwealth contends the decision in Allman was not binding precedent, citing our observation in Armstrong v. Commonwealth, 263 Va. 573 (2002), that while published panel decisions of the Court of Appeals are precedent binding on other panels of that court, the precedent remains subject to review by the Court of Appeals sitting en banc and by the Supreme Court. We do not agree with the commonwealth. Nothing we said in Armstrong supports a conclusion that panel decisions, after the times for review en banc and for appeal have expired without any modification by either appellate court, are anything less than binding legal precedent.
Barson v. Commonwealth (Lemons) No. 111406, June 7, 2012; Va.Ct.App.; Samuel R. Brown II for appellant; John W. Blanton, AAG; Kenneth T. Cuccinelli II, AG, for appellee. VLW 012-6-101, 17 pp.
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Showing posts with label Charlottesville. Show all posts
Showing posts with label Charlottesville. Show all posts
Wednesday, June 13, 2012
Wednesday, June 06, 2012
Drug dog's reliability questioned
Charlottesville Criminal Defense Attorney
Drug-sniffing dog's accuracy questioned
The dog's 26 percent accuracy rate is too low to warrant a car search, a lawyer is arguing.
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| Google Image Photo |
Bono is a police dog with a nose for narcotics.
But how reliable is that nose? That was the question raised Tuesday in federal court during a hearing for Herbert Green, who was arrested last year after Bono indicated that he smelled cocaine inside his sport utility vehicle.
Green's lawyer is arguing that Bono has such a bad record — drugs were found just 22 times out of 85 "alerts" by the dog — that police had no probable cause to search the vehicle during a traffic stop on Interstate 81 in Wythe County.
"We should demand a better accuracy rate," assistant federal public defender Randy Cargill said in asking that the kilogram and a half of cocaine found in the back of Green's Lincoln Navigator be suppressed.
After hearing testimony and arguments in U.S. District Court in Roanoke, Judge Glen Conrad said he will issue a ruling later in writing.
In other cases that have challenged the reliability of drug-sniffing dogs, courts have not settled on a precise number at which a pooch's performance fails the smell test.
But with a success rate of just 26 percent, Bono fares much worse than his police dog peers cited in other court decisions.
Still, Assistant U.S. Attorney Ashley Neese defended the German shepherd's performance, noting that police dogs are trained to detect the odor of drugs — not their actual presence.
In some cases, she argued, the scent of cocaine or marijuana might linger in a vehicle after it has been removed, leading to a positive alert by the dog.
Prosecutors are urging Conrad to consider other factors, including Bono's high marks in training and certification programs run by the Virginia State Police, the agency that uses the dog.
In testimony Tuesday, Bono's handler, state Trooper Brian Dillon, did not dispute Cargill's calculations that drugs were seized just 26percent of the time that Bono alerted.
But he testified that variables such as wind and the possibility of well-hidden drugs in a car would affect the numbers cited by the defense.
"It's just a big game of hide-and-seek with the canine," Dillon said.
In the case at hand, Bono was summoned March17, 2011, after Green, 45, was stopped on suspicion of having illegally tinted windows and an obscured license plate while driving through Wythe County on the interstate.
As Bono circled the SUV, he "alerted" near the vehicle's rear passenger panel. When he smells drugs, "Bono gets excited, his tail starts wagging, his whole demeanor changes," Dillon testified.
After the dog let out a snort and pawed at the vehicle, state troopers began a search despite Green's objections. (Police are not required to obtain warrants to search cars, given their mobility and reduced expectation of privacy. They must, however, have probable cause.)
In a duffel bag, police found about 1.5kilograms of cocaine.
However, there would be little additional evidence against Green should the drugs be thrown out on the basis of Bono's track record.
In arguing that the evidence should be suppressed, Cargill pointed out that 74percent of the people who had their cars searched by the dog were never arrested.
"The whole purpose of this is to protect against unreasonable searches," he said.
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But how reliable is that nose? That was the question raised Tuesday in federal court during a hearing for Herbert Green, who was arrested last year after Bono indicated that he smelled cocaine inside his sport utility vehicle.
Green's lawyer is arguing that Bono has such a bad record — drugs were found just 22 times out of 85 "alerts" by the dog — that police had no probable cause to search the vehicle during a traffic stop on Interstate 81 in Wythe County.
"We should demand a better accuracy rate," assistant federal public defender Randy Cargill said in asking that the kilogram and a half of cocaine found in the back of Green's Lincoln Navigator be suppressed.
After hearing testimony and arguments in U.S. District Court in Roanoke, Judge Glen Conrad said he will issue a ruling later in writing.
In other cases that have challenged the reliability of drug-sniffing dogs, courts have not settled on a precise number at which a pooch's performance fails the smell test.
But with a success rate of just 26 percent, Bono fares much worse than his police dog peers cited in other court decisions.
Still, Assistant U.S. Attorney Ashley Neese defended the German shepherd's performance, noting that police dogs are trained to detect the odor of drugs — not their actual presence.
In some cases, she argued, the scent of cocaine or marijuana might linger in a vehicle after it has been removed, leading to a positive alert by the dog.
Prosecutors are urging Conrad to consider other factors, including Bono's high marks in training and certification programs run by the Virginia State Police, the agency that uses the dog.
In testimony Tuesday, Bono's handler, state Trooper Brian Dillon, did not dispute Cargill's calculations that drugs were seized just 26percent of the time that Bono alerted.
But he testified that variables such as wind and the possibility of well-hidden drugs in a car would affect the numbers cited by the defense.
"It's just a big game of hide-and-seek with the canine," Dillon said.
In the case at hand, Bono was summoned March17, 2011, after Green, 45, was stopped on suspicion of having illegally tinted windows and an obscured license plate while driving through Wythe County on the interstate.
As Bono circled the SUV, he "alerted" near the vehicle's rear passenger panel. When he smells drugs, "Bono gets excited, his tail starts wagging, his whole demeanor changes," Dillon testified.
After the dog let out a snort and pawed at the vehicle, state troopers began a search despite Green's objections. (Police are not required to obtain warrants to search cars, given their mobility and reduced expectation of privacy. They must, however, have probable cause.)
In a duffel bag, police found about 1.5kilograms of cocaine.
However, there would be little additional evidence against Green should the drugs be thrown out on the basis of Bono's track record.
In arguing that the evidence should be suppressed, Cargill pointed out that 74percent of the people who had their cars searched by the dog were never arrested.
"The whole purpose of this is to protect against unreasonable searches," he said.
Interesting article. Please contact us if you need legal advice.
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Tuesday, June 05, 2012
Austistic law student's loans discharged
Charlottesville Attorney
By Dolan Media Newswires
Published: June 4, 2012
Tags: Bankruptcy, Federal Courts, Law Schools
A former Regent University doctoral student with Asperger syndrome will not have to pay almost $340,000 in student loans she accumulated during her almost 20-year pursuit of higher education, including a stint at law school, a Maryland federal bankruptcy judge has ruled.
Asperger, a disorder considered on the high-functioning end of the autism spectrum, makes it impossible for Carol Todd to hold a job and therefore pay back her loans, Judge Robert A. Gordon found in a May 17 decision.
“It quickly became evident, from the vantage point of the bench, that Ms. Todd’s reality is very different from the norm,” Gordon wrote. “Autism tunnels her perception to a very fine point and that is reflected by her eerie disconnectedness from a comprehensive life experience.”
Todd and her attorney, Frank E. Turney, of Catonsville, Md., filed a petition November 2009 to discharge student loans of $339,361 owed to several lenders. Turney did not return calls for comment from the Baltimore Daily Record.
Todd, 63 at the time of the trial in November 2010, did not attend school while growing up, according to court documents. She received her GED at age 39 and, starting in 1989, pursued higher education as part of a rehabilitation program.
Todd obtained an Associate of Arts degree from Villa Julie College, now Stevenson University, in 1992. She received a full scholarship to the University of Baltimore School of Law that year but did not complete the program. She got her bachelor’s degree in philosophy from the College of Notre Dame in Baltimore in 1996, then went to Towson University and received two master’s degrees in 1999.
She was in a doctoral program at Regent University in Virginia from 2001 to 2007, but never received that degree. She did receive a doctoral degree from an unaccredited online university in 2007.
Student debt has climbed in recent years. The American Bar Association reported that in 2010, 85 percent of law graduates from ABA-accredited schools had an average debt load of $98,000. Many students do not realize how difficult it is to discharge student loan debt in a consumer bankruptcy proceeding.
The law provides that student loan debt can be waived only if the debtor can prove undue hardship – a standard that Gordon said is established if the debtor cannot maintain a minimal standard of living if forced to repay loans, additional circumstances exist that indicate this will persist while the loans are paid off and the debtor made good faith efforts to repay loans. The judge found Todd met all these requirements.
“As Ms. Todd explained it, she continued her academic odyssey, and the government-sponsored rehabilitation program, for almost twenty years in part because each time she obtained a degree she found herself still unable to obtain employment that would allow her to earn a living, support herself and, moreover, repay the student loan debt,” Gordon wrote.
Todd’s education was funded through student loans and disability payments. Todd testified that she made payments while attending school, but that could not be verified, Gordon wrote.
The only job she has ever held was as an adjunct professor for three public universities in West Virginia from 1999 to 2003. She taught one two-credit course per semester, was paid $1,200 per semester and was allowed to live in university-subsidized housing. Todd moved back to Baltimore in 2007.
“While Ms. Todd can focus with intensity academically, Autism will not allow her to function in a normal job setting and generate meaningful income,” Gordon wrote, citing deposition testimony from Todd’s doctor, Ramana Gopalan.
Sandy D’Erasmo, who founded the Anne Arundel County Asperger Support Group, said it is often difficult for people with Asperger syndrome to hold jobs because they struggle with social cues, sometimes talk too much, give too much information or can’t follow step-by-step directions.
Gordon noted that “there were several times during her testimony when Ms. Todd became overwhelmed in the face of seemingly innocuous questions and for no apparent reason folded into a fearful shell. None of this was contrived; instead it all found its source in Ms. Todd’s incurable ailment.”
The U.S. Attorney’s Office, which is representing the U.S. Department of Education, and Rand L. Gelber, attorney for Educational Credit Management Corp., declined to comment. The attorney for Access Group Inc., Marc E. Shach with Weinstock, Friedman & Friedman P.A., declined to comment and said he and his client were still deciding on whether they would appeal the decision.
- By Kristi Tousignant
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Autistic law student’s loans discharged
Published: June 4, 2012
A former Regent University doctoral student with Asperger syndrome will not have to pay almost $340,000 in student loans she accumulated during her almost 20-year pursuit of higher education, including a stint at law school, a Maryland federal bankruptcy judge has ruled.
Asperger, a disorder considered on the high-functioning end of the autism spectrum, makes it impossible for Carol Todd to hold a job and therefore pay back her loans, Judge Robert A. Gordon found in a May 17 decision.
“It quickly became evident, from the vantage point of the bench, that Ms. Todd’s reality is very different from the norm,” Gordon wrote. “Autism tunnels her perception to a very fine point and that is reflected by her eerie disconnectedness from a comprehensive life experience.”
Todd and her attorney, Frank E. Turney, of Catonsville, Md., filed a petition November 2009 to discharge student loans of $339,361 owed to several lenders. Turney did not return calls for comment from the Baltimore Daily Record.
Todd, 63 at the time of the trial in November 2010, did not attend school while growing up, according to court documents. She received her GED at age 39 and, starting in 1989, pursued higher education as part of a rehabilitation program.
Todd obtained an Associate of Arts degree from Villa Julie College, now Stevenson University, in 1992. She received a full scholarship to the University of Baltimore School of Law that year but did not complete the program. She got her bachelor’s degree in philosophy from the College of Notre Dame in Baltimore in 1996, then went to Towson University and received two master’s degrees in 1999.
She was in a doctoral program at Regent University in Virginia from 2001 to 2007, but never received that degree. She did receive a doctoral degree from an unaccredited online university in 2007.
Student debt has climbed in recent years. The American Bar Association reported that in 2010, 85 percent of law graduates from ABA-accredited schools had an average debt load of $98,000. Many students do not realize how difficult it is to discharge student loan debt in a consumer bankruptcy proceeding.
The law provides that student loan debt can be waived only if the debtor can prove undue hardship – a standard that Gordon said is established if the debtor cannot maintain a minimal standard of living if forced to repay loans, additional circumstances exist that indicate this will persist while the loans are paid off and the debtor made good faith efforts to repay loans. The judge found Todd met all these requirements.
“As Ms. Todd explained it, she continued her academic odyssey, and the government-sponsored rehabilitation program, for almost twenty years in part because each time she obtained a degree she found herself still unable to obtain employment that would allow her to earn a living, support herself and, moreover, repay the student loan debt,” Gordon wrote.
Todd’s education was funded through student loans and disability payments. Todd testified that she made payments while attending school, but that could not be verified, Gordon wrote.
The only job she has ever held was as an adjunct professor for three public universities in West Virginia from 1999 to 2003. She taught one two-credit course per semester, was paid $1,200 per semester and was allowed to live in university-subsidized housing. Todd moved back to Baltimore in 2007.
“While Ms. Todd can focus with intensity academically, Autism will not allow her to function in a normal job setting and generate meaningful income,” Gordon wrote, citing deposition testimony from Todd’s doctor, Ramana Gopalan.
Sandy D’Erasmo, who founded the Anne Arundel County Asperger Support Group, said it is often difficult for people with Asperger syndrome to hold jobs because they struggle with social cues, sometimes talk too much, give too much information or can’t follow step-by-step directions.
Gordon noted that “there were several times during her testimony when Ms. Todd became overwhelmed in the face of seemingly innocuous questions and for no apparent reason folded into a fearful shell. None of this was contrived; instead it all found its source in Ms. Todd’s incurable ailment.”
The U.S. Attorney’s Office, which is representing the U.S. Department of Education, and Rand L. Gelber, attorney for Educational Credit Management Corp., declined to comment. The attorney for Access Group Inc., Marc E. Shach with Weinstock, Friedman & Friedman P.A., declined to comment and said he and his client were still deciding on whether they would appeal the decision.
- By Kristi Tousignant
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Tucker Griffin Barnes
Charlotteville, VA (434-973-7474)
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Monday, June 04, 2012
Dad can sue for unauthorized adoption
Charlotesville Family Law Attorneys
Dad can sue for unauthorized adoption
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| Google Stock Image |
April 23rd, 2012 · No Comments · Supreme Court of Virginia, Uncategorized
A Virginia father can seek damages from adoption lawyers and a
Utah couple who adopted his child without his permission, a divided
Supreme Court of Virginia said on April 20. A tort claim for “tortious
interference with parental rights” is part of Virginia common law, the
court said.
According to the father’s complaint, the mother misled him into thinking they would rear the child together, while she continued talking to lawyers about adoption, at the urging of her parents. The mother did not inform plaintiff when she went into labor early and when she delivered the child on Feb. 10, 2009. Although plaintiff John Wyatt III sued for custody in Virginia, Utah courts have awarded custody to the adoptive couple. Wyatt sued in a Virginia federal court, which certified questions to the Virginia high court.
The Virginia Supreme Court authorized Wyatt’s suit against Virginia lawyer Mark McDermott, Utah lawyer Larry Jenkins and the Act of Love agency and adoptive parents Thomas and Chandra Zarembinski.
“It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law,” wrote Justice LeRoy F. Millette Jr. for the court majority.
Justices William C. Mims, S. Bernard Goodwyn and Elizabeth McClanahan found no such common law right and dissented from the decision “legislating public policy in Virginia through judicial pronouncement,” in McClanahan’s words.
The opinion in Wyatt v. McDermott is VLW 012-6-078.
Other cases released April 20 are highlighted in the VLW SCoVA Blog.
– Deborah Elkins
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According to the father’s complaint, the mother misled him into thinking they would rear the child together, while she continued talking to lawyers about adoption, at the urging of her parents. The mother did not inform plaintiff when she went into labor early and when she delivered the child on Feb. 10, 2009. Although plaintiff John Wyatt III sued for custody in Virginia, Utah courts have awarded custody to the adoptive couple. Wyatt sued in a Virginia federal court, which certified questions to the Virginia high court.
The Virginia Supreme Court authorized Wyatt’s suit against Virginia lawyer Mark McDermott, Utah lawyer Larry Jenkins and the Act of Love agency and adoptive parents Thomas and Chandra Zarembinski.
“It is both astonishing and profoundly disturbing that in this case, a biological mother and her parents, with the aid of two licensed attorneys and an adoption agency, could intentionally act to prevent a biological father — who is in no way alleged to be an unfit parent — from legally establishing his parental rights and gaining custody of a child whom the mother did not want to keep, and that this father would have no recourse in the law,” wrote Justice LeRoy F. Millette Jr. for the court majority.
Justices William C. Mims, S. Bernard Goodwyn and Elizabeth McClanahan found no such common law right and dissented from the decision “legislating public policy in Virginia through judicial pronouncement,” in McClanahan’s words.
The opinion in Wyatt v. McDermott is VLW 012-6-078.
Other cases released April 20 are highlighted in the VLW SCoVA Blog.
– Deborah Elkins
Interesting article. Please contact us if you need legal advice.
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)
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Tuesday, January 17, 2012
Divorce - Courts struggle with which parent should pay for private school in divorce
Courts struggle with which parent should pay for private school in divorce
By Peter Vieth
Published: January 16, 2012
Tags: Divorce Lawyer, Domestic Relations, Judge Dennis Lee Hupp, Virginia Court of Appeals NewsPublished: January 16, 2012
The Virginia Court of Appeals offered guidelines 16 years ago for judges on when a spouse can be forced to pay for a child to attend private school.
But battles over tuition bills have continued in Virginia divorce courts.
When a parent questions the obligation to pay the extra money for private school, judges often have to parse vaguely worded domestic settlement agreements and probe family needs and traditions to make a ruling.
A new opinion from Warren County is the latest case to address the issue. The judge there gave a brief endorsement of public schools, a position in harmony with the standards set out by the appeals court in 1996.
In Sullivan v. Sullivan (VLW 011-8-228), Circuit Judge Dennis L. Hupp was faced with a mother who objected to sharing the cost of sending her 16-year-old daughter to Randolph Macon Academy.
The girl’s attendance at a private school was a point of conflict between the parties. Hupp was sympathetic to the mother’s plea. “The husband insisted on enrolling [the daughter] there over the wife’s objection at a time when the parties were experiencing serious financial difficulties. The public schools were apparently not considered as an option even though they serve the needs of thousands of young people quite well,” Hupp wrote.
The judge ordered only a minimal contribution by the mother to the girl’s education expenses. “A private school education was not a necessity. It was a choice the husband made for his daughter, and he must bear the cost of it for the most part,” Hupp wrote.
The Sullivan opinion is consistent with the direction of Solomond v. Ball, the seminal appeals court case from 1996. In Solomond, the Court of Appeals offered a list of factors for deciding whether a noncustodial parent should be required to contribute for a child’s private school expenses. The factors include the availability of satisfactory public schools, the child’s prior attendance at private school, the child’s special emotional or physical needs, religious training and family tradition.
The mother in Solomond sought to move the couple’s two sons from one private school to a more expensive academy. Even though the mother herself had attended the proposed new school and testified it was “the preferred institution,” the court found no need for the transfer. The Court of Appeals directed the trial court to roll back the father’s support obligation.
While many of the reported decisions involving private school tuition come from the populous areas of Eastern Virginia, one practitioner says it’s also a “big deal” in the Lynchburg area because of the popularity of a private school founded by the late Rev. Jerry Falwell.
Betsy H. Phillips of Rustburg said many parents enroll children at Lynchburg’s Liberty Christian Academy because the school promotes scholarships at Liberty University for those who achieve a certain grade level.
“It’s a gigantic deviation factor in child support,” Phillips said. “Judges are very reluctant to force a child to change school if they’re already enrolled and doing well,” she said.
Guided by the wisdom of Solomond, Virginia judges have sought to balance parental values and stability for children with financial realities faced by divorced parents. Here is a quick catalogue of how they have ruled:
- Where a mother had authority under a prior order to make decisions about the children’s schooling, father did not oppose the choice of a parochial school, and father presented no evidence that the school was not in the child’s best interests, the trial court did not err in adding private tuition to the father’s child support obligation, the Court of Appeals held in 1997. Newland v. Newland, VLW 097-7-267.
- Where the parties’ contract clearly required the father to pay only for a private institution deemed suitable and approved by both parents, the father could not be required to pay for his daughter’s tuition at Rice University, even though he agreed Rice was an appropriate school, the Court of Appeals said in 1997. Eissler v. Stange, VLW 097-7-160.
- In another 1997 opinion, the Court of Appeals decided a father’s contention that he could no longer afford to send his children to private school, without more, failed to relieve him of his obligation to cover half of the school bills. The children had attended private schools throughout the parents’ marriage and were in the middle of the school year when the father sought a transfer to public schools. Even though the trial court had come to the same conclusion, however, the appeals court remanded the case with instructions that the trial judge provide written findings to support his order. Wheaton v. Wheaton, VLW 097-7-275.
- Where the couple’s high school-age children had attended a private Christian school almost all of their academic careers, there was a demonstrated need for them to remain in that school, and where the parents had the ability to pay the bills, a circuit court judge refused to order the children removed from the school at the father’s request. The decision came in 1999 in a Caroline County case. Ratcliffe v. Ratcliffe, VLW 099-8-179.
- A trial court rejected a mother’s bid for child support payments in excess of the statutory guidelines in light of the 13-year-old daughter’s enrollment in private school, finding the mother’s contributions to the marriage were an integral part of the couple’s lifestyle, which included private school for their offspring. The 2000 ruling came from Richmond Circuit Court in Hargrave v. Wienckowski, VLW 001-8-017.
- Where a couple’s son was having troubles in public school that were evidently resolved with enrollment at a private military school, and the trial judge weighed the Solomond factors to decide the father should pay extra for the private education, the Court of Appeals affirmed the decision in 2001. Not only were the father’s appeal arguments procedurally barred, the record reflected no reason to invoke the good cause or ends-of-justice exceptions, the court found in Dick v. Dick, VLW 001-7-569.
- The Court of Appeals made it clear in 2002 that private school tuition is not considered a child care expense under the statutory guidelines in a case where the mother unilaterally enrolled the couple’s two children in Alexandria’s Bishop Ireton High School. Before their split, the couple had not sent either of their children to a private school, and the mother enrolled the children at Bishop Ireton without the father’s consent. The court remanded the case for recalculation of the father’s support obligation in Newland v. Newland, VLW 002-7-129.
- Where a settlement agreement required the father to pay if the mother chose to send their child to a private school “subject to husband’s approval of such school which approval shall not be unreasonably withheld,” a Fairfax County circuit judge held the father was on the hook for secondary school and college tuition payments. That language did not give father a “veto” power, the judge found in Rosen v. Smith, VLW 002-8-250.
- Even though the daughter had attended private school from kindergarten to grade three, a Chesterfield County circuit judge refused to break from the guidelines to order the father to help pay the private tuition. The judge found no family tradition for private schools, no special needs of the child, and no lack of satisfactory public schools in the 2003 case of Woodward v. Woodward, VLW 003-8-174.
- A father could not escape his tuition obligation where he signed an agreement to pay half of the “educational costs” of his minor children, where he was aware the children were in private school at the time of the divorce and afterwards and where he failed to show inability to pay. The 2003 decision in Chesterfield County Circuit Court came in Brewerton v. O’Meara, VLW 003-7-464.
- The Court of Appeals affirmed an order for a father to pay private school tuition in 2004 where the parties had agreed before their split that their daughter would attend private school and where the daughter had begun class for a new school year when the father signed an agreement to cover tuition. Owata v. Owata, VLW 004-7-193.
- Even though the mother contended transferring to public school would disrupt the children’s education, the Court of Appeals found no support for that claim. The wife also failed to muster evidence to show a need – educational, emotional or developmental – to continue private education. The trial court’s refusal to deviate from the support guidelines to include the cost of private school was affirmed in the 2006 case of Lesesne v. Zablocki, VLW 006-7-002.
- Lack of progress at a private school was a motivating factor for a Richmond circuit judge in a 2006. Where the mother and father clashed over whether a private Richmond school or public school programs in Tennessee would be best for a struggling 10-year-old, the judge looked to both the “unremarkable” progress the boy was making in the private school and at the couple’s tight finances. The decision awarded physical custody of the boy to the father in Tennessee in Beaty v. Beaty, VLW 007-8-025.
- Finances were not an issue in a 2007 Loudoun County case, but the parents disagreed on a private daycare program. The father wanted to withdraw his son from Willow Montessori School because of a dispute over summer tuition, lack of transportation, and disapproval of the current program. The judge found the son was “doing very well” at Willow and the mother’s schedule allowed her to provide transportation. The judge found a “demonstrated need” for the child to continue at Willow in Stevens v. Stevens, VLW 007-8-113.
- Where a settlement agreement referenced only a Montessori school without any other agreement for private school expenses, the Court of Appeals in August affirmed a trial court’s refusal to order tuition payments for other private schools. With only a written statement of facts, and no transcript, the record was deemed insufficient to consider the mother’s claim that it was in the child’s best interest to change schools. Lewis v. Bailey, VLW 011-7-260.
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Friday, September 17, 2010
Dismissal Ordered in Defamation Suit
The following article is an interesting reprint from the Virginia Lawyer Weekly:
HARRISONBURG -- A U.S. District Court judge has awarded a Strasburg veterinarian a default judgment in his defamation suit against his ex-wife.
Judge Samuel G. Wilson issued a dismissal order in Richard Lee Hammett's lawsuit against Andrea Sieg on Sept. 7, according to online court records.
Hammett had originally filed the case against Sieg, who is also a veterinarian, in Shenandoah County Circuit Court, but it was transferred to U.S. District Court in Harrisonburg in April 2009, according to court records.
Hammett, who runs Animal Care Center of Strasburg, filed the $100,000 lawsuit after Sieg reported to the Virginia Department of Health Professions in July 2008 that he was mentally ill and abusive to animals. His motion for default judgment says she did so in "bad faith, maliciously, or with reckless disregard for the truth."
The suit says that before filing the complaint, Sieg threatened Hammett with defamation and wrote his brother. She also repeated the allegations to people within Hammett's practice area, the suit claims.
The allegations made against Hammett were investigated by the Department of Health Professions and submitted to the Virginia Board of Veterinary Medicine and dismissed, the lawsuit says.
In Hammett's motion for default judgment, he says that Sieg has withheld court-related material and evidence, and hasn't attended court-ordered meetings.
Hammett is listed as one of Sieg's creditors in her Chapter 13 bankruptcy filing in U.S. Bankruptcy Court in South Carolina, according to online court records. Wilson's order says that they have agreed to a payment plan in that case.
Wilson also denied a motion for dismissal filed by Sieg, who lives in Jackson, S.C., last October. In it, she says that Hammett wanted her to be deposed for six to eight hours, and says she lives 500 miles from Hammett, and hasn't spoken to any of his clients or friends since about 2006.
"This whole procedure is just harassment and torture for my person and my family and I cannot accept this procedure any further!" the motion says.
Wilson's order adopted a November report by U.S. Magistrate Judge James G. Welsh.
"This case confirms once again that a decree of divorce may end the parties' matrimony, but it all too often fails to end their acrimony," Welsh's report says.
It says that Sieg was "embittered" that she didn't get a particular horse following the couple's divorce -- they separated in 2005 -- and "filed a false, malicious, defamatory and unfounded complaint with the VDHP."
Welsh's report says because Sieg didn't respond to information filed by Hammett, she couldn't later deny several facts, including that during the couple's divorce proceeding, Sieg committed perjury, was in contempt, and made up and hid evidence. In the federal civil court matter, she also hasn't cooperated with court orders, it says.
There is no evidence that Hammett's personal or professional reputation were damaged, Welsh's report concludes.
Hammett declined comment Thursday.
Tucker Griffin Barnes P.C. - Charlottesville Attorney
Charlottesville, VA
434-973-7474
www.TGBlaw.com
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Strasburg vet wins judgment
Dismissal ordered in defamation suit
By Sally Voth - svoth@nvdaily.comHARRISONBURG -- A U.S. District Court judge has awarded a Strasburg veterinarian a default judgment in his defamation suit against his ex-wife.
Judge Samuel G. Wilson issued a dismissal order in Richard Lee Hammett's lawsuit against Andrea Sieg on Sept. 7, according to online court records.
Hammett had originally filed the case against Sieg, who is also a veterinarian, in Shenandoah County Circuit Court, but it was transferred to U.S. District Court in Harrisonburg in April 2009, according to court records.
Hammett, who runs Animal Care Center of Strasburg, filed the $100,000 lawsuit after Sieg reported to the Virginia Department of Health Professions in July 2008 that he was mentally ill and abusive to animals. His motion for default judgment says she did so in "bad faith, maliciously, or with reckless disregard for the truth."
The suit says that before filing the complaint, Sieg threatened Hammett with defamation and wrote his brother. She also repeated the allegations to people within Hammett's practice area, the suit claims.
The allegations made against Hammett were investigated by the Department of Health Professions and submitted to the Virginia Board of Veterinary Medicine and dismissed, the lawsuit says.
In Hammett's motion for default judgment, he says that Sieg has withheld court-related material and evidence, and hasn't attended court-ordered meetings.
Hammett is listed as one of Sieg's creditors in her Chapter 13 bankruptcy filing in U.S. Bankruptcy Court in South Carolina, according to online court records. Wilson's order says that they have agreed to a payment plan in that case.
Wilson also denied a motion for dismissal filed by Sieg, who lives in Jackson, S.C., last October. In it, she says that Hammett wanted her to be deposed for six to eight hours, and says she lives 500 miles from Hammett, and hasn't spoken to any of his clients or friends since about 2006.
"This whole procedure is just harassment and torture for my person and my family and I cannot accept this procedure any further!" the motion says.
Wilson's order adopted a November report by U.S. Magistrate Judge James G. Welsh.
"This case confirms once again that a decree of divorce may end the parties' matrimony, but it all too often fails to end their acrimony," Welsh's report says.
It says that Sieg was "embittered" that she didn't get a particular horse following the couple's divorce -- they separated in 2005 -- and "filed a false, malicious, defamatory and unfounded complaint with the VDHP."
Welsh's report says because Sieg didn't respond to information filed by Hammett, she couldn't later deny several facts, including that during the couple's divorce proceeding, Sieg committed perjury, was in contempt, and made up and hid evidence. In the federal civil court matter, she also hasn't cooperated with court orders, it says.
There is no evidence that Hammett's personal or professional reputation were damaged, Welsh's report concludes.
Hammett declined comment Thursday.
Tucker Griffin Barnes P.C. - Charlottesville Attorney
Charlottesville, VA
434-973-7474
www.TGBlaw.com
Want to know more about us? Firm Video
Wednesday, June 30, 2010
Short Sale Service Announcement
Now Offering New Solution to Major “Short Sale” Hurdle – Obtaining Lender Approval for the Realtor and Seller
The “Short Sale” of a property is overwhelming for everyone involved, especially when working with the lenders. Our firm has created a new process to assist Realtors and Sellers in obtaining short sale lender approval. By bringing us on board early, we can answer the legal questions up front, prepare and submit the short sale application and negotiate directly with the short sale lenders – less stress, faster results.
Realtors do their best by listing, marketing, and selling the property. We do our best by repeatedly negotiating with short sale lenders. With all of us doing what we do best, the short sale can be completed as smoothly and quickly as possible for the seller and buyer. Happier clients mean better word of mouth, and this leads to more referrals for everyone!
Why bring us on board now:
• We have the experience and knowledge of numerous successful short sale transactions.
• We offer legal advice as needed from the listing to the sale.
• We will prepare and submit the short sale package under our legal letterhead.
• We order a title search to disclose any unknown liens, judgments, or debt. If there is a problem, we can address it right away!
• We work directly with the lender in negotiating the short sale approval.
• We understand and research the ever changing Home Affordable Foreclosure Alternative (“HAFA”) laws.
• We prepare the legal documents for closing.
• We have two full time paralegals available to answer all of your short sale questions.
• Last but not least, we try to make the short sale process as easy as possible, and provide peace of mind to you and your clients in these trying times.
The cost to clients:
TGB will provide these services for a legal fee which will be approved and paid by the short sale lender. The Seller only pays a $300 up-front administrative fee to cover expenses (title search, etc). The Seller is not required to pay any additional legal fees.
Please contact us today to find out more:
Ingrid Strydom: 434-951-0849 IStrydom@TGBlaw.com
Julie Hutchins: 434-951-0861 JHutchins@TGBlaw.com
Tucker Griffin Barnes P.C.
Charlottesville, VA
434-973-7474
Tucker@TGBlaw.com
http://www.tgblaw.com/
http://www.tgblaw.blogspot.com/
The “Short Sale” of a property is overwhelming for everyone involved, especially when working with the lenders. Our firm has created a new process to assist Realtors and Sellers in obtaining short sale lender approval. By bringing us on board early, we can answer the legal questions up front, prepare and submit the short sale application and negotiate directly with the short sale lenders – less stress, faster results.
Realtors do their best by listing, marketing, and selling the property. We do our best by repeatedly negotiating with short sale lenders. With all of us doing what we do best, the short sale can be completed as smoothly and quickly as possible for the seller and buyer. Happier clients mean better word of mouth, and this leads to more referrals for everyone!
Why bring us on board now:
• We have the experience and knowledge of numerous successful short sale transactions.
• We offer legal advice as needed from the listing to the sale.
• We will prepare and submit the short sale package under our legal letterhead.
• We order a title search to disclose any unknown liens, judgments, or debt. If there is a problem, we can address it right away!
• We work directly with the lender in negotiating the short sale approval.
• We understand and research the ever changing Home Affordable Foreclosure Alternative (“HAFA”) laws.
• We prepare the legal documents for closing.
• We have two full time paralegals available to answer all of your short sale questions.
• Last but not least, we try to make the short sale process as easy as possible, and provide peace of mind to you and your clients in these trying times.
The cost to clients:
TGB will provide these services for a legal fee which will be approved and paid by the short sale lender. The Seller only pays a $300 up-front administrative fee to cover expenses (title search, etc). The Seller is not required to pay any additional legal fees.
Please contact us today to find out more:
Ingrid Strydom: 434-951-0849 IStrydom@TGBlaw.com
Julie Hutchins: 434-951-0861 JHutchins@TGBlaw.com
Tucker Griffin Barnes P.C.
Charlottesville, VA
434-973-7474
Tucker@TGBlaw.com
http://www.tgblaw.com/
http://www.tgblaw.blogspot.com/
Tuesday, October 27, 2009
Lynn Bradley Joins Senior Center Board of Directors
Lynn A. Bradley, firm partner, recently joined the Senior Center Board of Directors. The Senior Center involves, enriches, and empowers seniors in our community. Lynn will bring a wealth of experience and energy to her new position on the board.
Tucker Griffin Barnes P.C.
Charlottesville, Virginia
434-973-7474
LBradley@TGBalw.com
http://www.tgblaw.com/
http://www.tgblaw.blogspot.com/
Friday, June 26, 2009
Firm Partner Supports AIDS/HIV Services Group
Mary Ann Barnes (firm partner) was recognized for supporting the AIDS/HIV Services Group event "Project Charlottesville & Creative Charlottesville Auction" held on May 2, 2009. Mary Ann was able to use her extensive experience in Estate Planning to provide a significant contribution to the auction.The AIDS/HIV Services Group is located at 963 2nd Street SE, Charlottesville, VA. They can be contacted at 434-979-7714 or http://www.aidsservices.org/.
Tucker Griffin Barnes P.C.
Thursday, May 28, 2009
Paralegal Recognized for Outstanding Effort
Tucker Griffin Barnes is pleased to recognize Paralegal Ingrid Strydom for her outstanding assistance with creating a very complicated family subdivision. This was a long and difficult project with many hurdles to overcome. Ingrid not only performed her work with professionalism, she also provided the continuity when this case was transferred to another attorney after the original attorney departed the firm. We couldn't agree more with the clients when they told Ingrid and her attorney, "You guys are the greatest".
Ingrid is originally from South Africa. She earned a law degree from the University of Pretoria, South Africa, and a LL.M - International Business Law - from Washington College of Law, Washington D.C.
Tucker Griffin Barnes P.C.
Attorneys at Law
Charlottesville, Virginia
434-973-7474
Charlottesville Lawyers
Inquire@TGBlaw.com
http://www.tgblaw.blogspot.com/
Ingrid is originally from South Africa. She earned a law degree from the University of Pretoria, South Africa, and a LL.M - International Business Law - from Washington College of Law, Washington D.C.
Tucker Griffin Barnes P.C.
Attorneys at Law
Charlottesville, Virginia
434-973-7474
Charlottesville Lawyers
Inquire@TGBlaw.com
http://www.tgblaw.blogspot.com/
Thursday, May 21, 2009
New ACLU Board Member
Tucker Griffin Barnes is pleased to announce Andre A. Hakes (firm partner) has become one of the newest board members of the ACLU of Virginia. The ACLU of Virginia is a private, non-profit organization that uses lobbying, litigation and public education to promote civil liberties and civil rights in the state. They are an affiliate of the national ACLU, with whom they share resources and expertise.
The principal mission of the ACLU of Virginia is to protect the constitutionally mandated freedoms that government tends to erode, and to advance rights clearly intended by our Constitution, but never fully implemented in our society.
The ACLU has filed more than 300 lawsuits in Virginia over the last 40 years, and with each successful case they have advanced the cause for freedom and equality. Because these cases required financial resources and legal expertise not available to the average citizen, it is safe to say that only a handful would have made it to the courtroom without the ACLU's assistance. In addition, hundreds of other threats to civil liberties have been resolved with the mere threat of litigation by the ACLU or through our public education efforts.
There are over 500,000 ACLU members nationwide with 9,000 of them living in Virginia.
Tucker Griffin Barnes P.C.
Attorneys at Law
Charlottesville, Virginia
434-973-7474
AHakes@TGBlaw.com
Charlottesville Criminal Defense Attorney
Charlottesville, Virginia
434-973-7474
AHakes@TGBlaw.com
Charlottesville Criminal Defense Attorney
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