Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | The Investors’ Control of Their Investment Advisers. Who Has the Final Word? | TAMAR FRANKEL | | BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions. | Read More |
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Family Law Opinions | George v. Shams-Shirazi | Court: California Courts of Appeal Docket: A155158(First Appellate District) Opinion Date: February 11, 2020 Judge: Sanchez Areas of Law: Civil Procedure, Family Law, Legal Ethics | Following a child custody hearing in January 2017, the trial court entered an order giving Mother sole custody. In June 2017, Father filed an unsuccessful request to set aside that order. Weeks later, he filed a second unsuccessful request to modify the order. The trial court denied Mother’s request for section 271 sanctions. Months later, she again sought sanctions relating to the June 2017 motion. Father filed an objection but did not challenge the motion on the basis of timeliness. The court ordered Father to pay $10,000 in section 271 sanctions. Father sought reconsideration, arguing for the first time that the sanction request was untimely under California Rules of Court, rule 3.1702(b). The trial court denied the motion and awarded Mother $3,000 in attorney fee sanctions for having to defend the ex parte motion for reconsideration. The court of appeal affirmed. Rule 3.1702(b) states: “A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court—including attorney’s fees on an appeal before the rendition of judgment in the trial court—must be served and filed within the time for filing a notice of appeal.” The timing of a notice of appeal is based on the entry of judgment. The sanctions at issue were awarded for attorney fees incurred after entry of the January 2017 judgment; rule 3.1702 does not apply. | | Marriage of Deluca | Court: California Courts of Appeal Docket: D071379A(Fourth Appellate District) Opinion Date: February 13, 2020 Judge: Dato Areas of Law: Family Law | Parties Rosalinda and George Deluca appealed a trial court’s division of martial property and other matters, including spousal support. During the marriage, George's sister transferred to him title to an apartment complex referred to in this case as the "Florida Street property." Rosalinda contended the trial court erred in ruling the Florida Street property was George's separate property rather than community property. George had custody of the parties' two children and contended the court erred by awarding Rosalinda spousal support in an amount greater than his total net income available to support the children. Specifically, he argued the court erred by including the amount of monthly loan principal payments he is required to make on his income-producing properties as income available for spousal support. In the unpublished portion of its opinion, the Court of Appeal reversed the trial court with respect to Florida Street as George’s separate property, and remanded with directions to determine the amount of reimbursement credit to which George is entitled for Florida Street, as well as to consider George's new contention that he should be awarded a fractional separate property interest in the property. In the published portion of its opinion, the Court also reversed the spousal support award and directed the trial court to reconsider the amount of support after determining the extent to which George's loan principal payments reasonably and legitimately reduced his income for purposes of support. | | Colorado in Interest of A.R. | Court: Colorado Supreme Court Citation: 2020 CO 10 Opinion Date: February 10, 2020 Judge: Gabriel Areas of Law: Constitutional Law, Family Law, Legal Ethics | The issue this case presented for the Colorado Supreme Court’s review centered on the contention of ineffective assistance of counsel in the context of a dependency and neglect proceeding. In 2016, petitioner A.R.’s (the “child’s”) paternal step-grandmother took him to the emergency room to receive treatment for scabies. A physician who treated the then-six-month-old child determined that the degree of scabies on the child evinced a case of neglect, and, later that night, another doctor confirmed that the child also had a skull fracture. The Department of Human Services subsequently initiated this dependency and neglect proceeding, and the juvenile court granted the Department continued custody of the child. Later, the juvenile court held an adjudicatory hearing with respect to both parents. When mother did not appear, her counsel told the court that he had made arrangements with mother to attend the hearing, but did not know why she did not appear. Apparently in an effort to move the case forward, and after speaking with counsel for both mother and the child’s father (who also did not appear), the Department asked the court for leave to amend the Department’s dependency and neglect petition to include an allegation that the child was dependent or neglected through no fault of the child’s parents and to allow the Department to rest on the Report of Investigation filed with the petition. The child’s guardian ad litem (“GAL”) agreed with this procedure, stating that it was in the child’s best interests to “move forward,” and the court therefore entered a no-fault adjudication and approved the proposed treatment plan. Mother did not appeal this adjudication. The mother challenged the ultimate termination of her rights to A.R. The Supreme Court was asked to decide: (1) whether, in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing; (2) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance; and (3) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. The Supreme Court held an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected, and outlined the standard for determining ineffective performance in a dependency and neglect context. Applying these determinations to the facts and claims presented, the Court affirmed the judgment below (on different grounds), and remanded for further proceedings. | | M.A.W. v. The People in Interest of A.L.W. | Court: Colorado Supreme Court Citation: 2020 CO 11 Opinion Date: February 10, 2020 Judge: Gabriel Areas of Law: Constitutional Law, Family Law, Legal Ethics | In June 2016, shortly after the child’s birth, the Boulder County Department of Housing and Human Services initiated this case based on evidence that the child’s mother was using drugs and that both father and the child’s mother were missing the child’s cues, were homeless, and had previously been involved in child welfare cases. The child was placed with maternal relatives. As pertinent here, the juvenile court adjudicated the child dependent and neglected as to father based on father’s admission that he needed support and services and that the child’s environment was injurious to her welfare. At the first hearing in the juvenile court, father appeared in custody following a recent arrest. The court appointed counsel for him and approved an initial treatment plan. Two months later, the court conducted another hearing, and father again appeared in custody, this time based on new drug possession charges. The Department filed a motion to terminate father’s parental rights. In this petition, the Department alleged that (1) father did not comply with his treatment plan, and the treatment plan failed; (2) no additional period of time would allow for the successful completion of the treatment plan; (3) father was an unfit parent; (4) father’s conduct or condition was unlikely to change within a reasonable period of time; and (5) there were no less drastic alternatives to termination, which would be in the child’s best interests. The matter then proceeded to a termination hearing; father was incarcerated. When father did not appear for the hearing, father’s counsel told the court that father was “on a writ at Arapahoe County and he refused the writ so he did not want to appear today.” Father’s counsel did not seek a continuance to ensure father’s presence, and the court found that father had voluntarily absented himself from the court. Mother was denied her request for a continuance. The issue this case presented for the Colorado Supreme Court’s review was similar to that decided in its companion, Colorado in Interest of A.R., 2020 CO 10, __ P.3d __. Here, as in A.R., the Supreme Court was asked to decide (1) the correct standard for determining whether a parent in a dependency and neglect proceeding was prejudiced by counsel’s ineffective performance and (2) whether an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding the case for further evidentiary development. Applying those principles here, the Court concluded the juvenile court correctly applied Strickland’s prejudice prong to father’s ineffective assistance of counsel claims and that the court did not abuse its discretion in rejecting those claims. | | In re Adoption of N.P.M. | Court: Montana Supreme Court Citation: 2020 MT 33 Opinion Date: February 11, 2020 Judge: Laurie McKinnon Areas of Law: Family Law | The Supreme Court affirmed the judgment of the district court denying Stepmother's petition for stepparent adoption of the minor child, N.P.M., holding that Step-grandmother had standing to object to Stepmother's petition and that the district court correctly applied Mont. Code Ann. 42-2-301 to require that all applicable consents be obtained prior to addressing the merits of Stepmother's petition. The petition in this case included Mother's consent to adoption and waiver of parental rights and Father's consent to adoption. Step-grandmother, who was the primary physical custodian of the child, objected to the petition, arguing that she had a parental interest and that her consent to the adoption was required under section 42-2-301. The district court concluded that the plain language of section 42-2-301 required Step-grandmother's consent. The Supreme Court affirmed, holding (1) a person with a parental interest established by a court has standing to object to the child's adoption by a stepparent; (2) the district court correctly interpreted section 42-2-301 to require consent to adopt from a person whose parental rights have been established by a court; and (3) the district court did not err in its application of section 42-2-301. | | In re Guardianship of Eliza W. | Court: Nebraska Supreme Court Citation: 304 Neb. 995 Opinion Date: February 7, 2020 Judge: Papik Areas of Law: Family Law, Native American Law | The Supreme Court reversed the order of the county court establishing a guardianship for an Indian child, holding that the guardianship proceeding was governed by the federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) and that the required showing under ICWA and NICWA was not made in this case. Grandmother sought to establish a guardianship for a Native American child over the objection of Mother. At the conclusion of the evidence at trial, the county court stated that it had found a sufficient basis for the appointment of Grandmother as the child's guardian. The court did not mention ICWA or NICWA in its written order appointing Grandmother as guardian for the child. The Supreme Court reversed and remanded the cause with directions to vacate the guardianship, holding (1) ICWA and NICWA applied to the guardianship proceeding; and (2) the guardianship proceeding failed to comply with ICWA and NICWA. | | In Re D.O. | Court: New Hampshire Supreme Court Docket: 2019-0369 Opinion Date: February 13, 2020 Judge: Anna Barbara Hantz Marconi Areas of Law: Civil Procedure, Family Law | Respondent, the father of the juvenile (Father), appealed a superior court order denying his motion for permission to file a late appeal of an adverse ruling issued by the Circuit Court on an abuse and neglect petition brought by petitioner, the New Hampshire Division for Children, Youth and Families (DCYF). The superior court found that Father failed to demonstrate “good cause” for filing a late appeal. After review, the New Hampshire Supreme Court held as a matter of law, that it was “reasonable and just” to grant Father’s motion to file his appeal late. Father filed his partially-assented-to motion to file a late appeal on April 17, 2019, before the parties had ever appeared in the superior court. Father did not file his appeal earlier because his attorney was on maternity leave when the dispositional order was entered, and “[t]here was a misunderstanding between father and [his] counsel’s office regarding the filing of the appeal.” The attorney for the child and the attorney for Mother assented to Father’s motion. According to the superior court, the parties preferred that Father’s and Mother’s cases “be tried together.” Under these circumstances, the Court concluded there was good cause, as a matter of law, to grant Father’s motion to file a late appeal. Judgment was reversed and the matter remanded for further proceedings. | | In the Matter of Braunstein | Court: New Hampshire Supreme Court Docket: 2019-0065 Opinion Date: February 13, 2020 Judge: Gary E. Hicks Areas of Law: Family Law | Petitioner Sean Braunstein (Husband), appealed the final decree and associated orders entered by the Circuit Court in his divorce from respondent Jericka Braunstein (Wife). He argued, among other things, that the trial court erred by including his monthly federal veterans’ disability benefits as income for child support purposes. Finding no reversible error, the New Hampshire Supreme Court affirmed. | | Carlson v. Carlson | Court: North Dakota Supreme Court Citation: 2020 ND 36 Opinion Date: February 12, 2020 Judge: Gerald W. VandeWalle Areas of Law: Family Law | Jill Carlson appealed a district court judgment awarding Royce Carlson primary residential responsibility and decision-making authority over daycare/afterschool provider decisions and non-emergency medical decisions of the parties’ minor children. Jill argue the district court’s findings on best interest factors a, b, d, e, f, h, j, k, and l under N.D.C.C. 14-09-06.2 were clearly erroneous. The North Dakota Supreme Court found the record in this case included evidence implicating the presence of domestic violence: "[t]he incident in which Royce shot a gun into the air during the squabble between Jill and J.R.C. and the testimony that Royce repeatedly used corporal punishment as a form of discipline is evidence that domestic violence may exist. The use of corporal punishment, however, does not alone establish evidence of domestic violence, but may be considered as evidence of domestic violence if excessive or unreasonable, or if it gives rise to the presumption under factor j." The Supreme Court remanded the case for further findings on whether a presumption of domestic violence applied. If not, the Court mandated an explanation of why evidence of domestic violence did not change its award of primary residential responsibility. In light of the Supreme Court's opinion, the district court also had to determine on remand whether its findings on factor j affected its findings on the other best interest factors and its decision awarding Royce primary residential responsibility and decisionmaking authority. Because the case was remanded for further findings, Jill's remaining arguments were not considered. | | Stevenson v. Biffert | Court: North Dakota Supreme Court Citation: 2020 ND 42 Opinion Date: February 12, 2020 Judge: Jerod E. Tufte Areas of Law: Family Law | Jason Stevenson appeals a district court judgment awarding Rhonda Biffert primary residential responsibility of the parties’ minor child. The judgment also ordered a sale of the parties’ house and ordered Stevenson to pay Biffert $13,000 for a loan and a vehicle. The North Dakota Supreme Court concluded the court’s award of primary residential responsibility to Biffert was not clearly erroneous. The Court determined the trial court’s findings had support in the record, and it was "not left with a definite and firm conviction a mistake has been made." | | Vetter v. Vetter | Court: North Dakota Supreme Court Citation: 2020 ND 40 Opinion Date: February 12, 2020 Judge: Gerald W. VandeWalle Areas of Law: Family Law | Kyle Vetter appealed from a district court judgment awarding primary residential responsibility of the parties’ minor daughter, B.L.V., to Michelle Vetter and dividing the parties’ assets and debts. On appeal, Kyle argued the district court erred in awarding primary residential responsibility to Michelle Vetter because its findings on factors c, d, and e under N.D.C.C. 14-09-06.2(1) were clearly erroneous and because the court’s findings on factor j should have been afforded greater weight. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's judgment. | | JEG v. BCB | Court: Wyoming Supreme Court Citation: 2020 WY 17 Opinion Date: February 11, 2020 Judge: Kate M. Fox Areas of Law: Family Law | The Supreme Court affirmed the decision of the district court denying the petition filed by Mother and Stepfather to adopt the minor child, ZEM, over the objection of the child's father, holding that the district court did not abuse its discretion when it denied the petition for adoption on best interests grounds. In their verified petition for adoption Mother and Stepfather claimed that Father failed financially to support ZEM and that it was ZEM's best interest to terminate Father's parental rights and allow Stepfather to adopt her. The district court concluded that adoption did not serve ZEM's best interests and denied the petition to adopt. The Supreme Court affirmed, holding that where the district court carefully weighed conflicting evidence, determined credibility, and came to a reasonable conclusion, the court did not abuse its discretion in denying the adoption. | | Johnson v. Johnson | Court: Wyoming Supreme Court Citation: 2020 WY 18 Opinion Date: February 12, 2020 Judge: Boomgaarden Areas of Law: Family Law | The Supreme Court affirmed in part and reversed in part the district court's decree of divorce and order awarding custody and dividing property and debts between Father and Mother, holding that the district court did not abuse its discretion in ordering supervised visitation and dividing the marital property but abused its discretion in calculating Father's child support amount. Father argued that the district court abused its discretion in restricting Father's visitation with his four children to two hours of supervised visitation every other week until Father addressed the court's concerns regarding his anger. Father further argued that the court abused its discretion when it divided the marital property and when it found him voluntarily underemployed for not working overtime. The Supreme Court affirmed, holding that the district court (1) did not abuse its discretion when it imposed supervised visitation, finding Father had abused the children, and conditioning visitation on counseling for both Father and the children; (2) did not abuse its discretion in dividing the marital property; but (3) abused its discretion when it circumvented the express statutory limitation set forth in Wyo. Stat. Ann. 20-2-303(a)(ii) prohibiting courts from including in child support calculations any earnings derived from overtime work. | |
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