Ford Family Law Blog - Timely information and commentary on California family law issues, cases, and legislative developments.
Usually, a person who has been ordered to pay spousal support does not run to court seeking a reduction in support after she or he has just received a large raise — the risk being the court could order an increase in support because of the increase in the payor’s income. But in the recent case of T.C. V. D.C. a wife who was paying support to her former husband sought a court ordered reduction in spousal support after she landed a new job with much greater earnings.
Wife’s Salary Skyrockets and She Wants the Court to Reduce the Amount of Support She Must Pay?
Why would the high earning wife take this risk? Wife took this risk because she was paying her ex-husband a base support payment every month tied to her base salary, plus she was paying her ex-husband a percentage of all income that exceeded her base income — and, unfortunately for Wife, the parties’ Marital Settlement Agreement had no cap on the amount of bonus support that she paid to Husband. Think about it: Originally, Wife was paying base support to Husband of less than $1,000 plus she was paying him 10% of her excess/bonus income. At the time of the Marital Settlement Agreement, Wife’s projected “excess” annual earnings (i.e. her annual bonuses) totaled $9,900, meaning Husband would receive an additional $990 annually as an additional “bonus support” payment. Wife agreed to pay this bonus amount even though Husband acknowledged in the Marital Settlement Agreement that the BASE amount of support met his needs and his expenses at the time of the divorce were reflective of the parties’ marital standard of living. Therefore, the bonus payment was gravy as it exceeded his needs as well as the marital standard of living.
Fast forwarded a couple of years later, Wife found a great new job and her “excess earnings” were dramatically higher — $250,000 higher than before! Translation: Per the terms of the Marital Settlement Agreement, Wife’s annual bonus support payment went from $990 to $25,000!
When the Wife filed her request to reduce her support payment, Husband argued that per the terms of their Marital Settlement Agreement wife could not escape the 10% bonus payment no matter how high Wife’s excess earnings were. In layperson’s terms, Husband argued “a deal is a deal.” In legal terms, Husband argued, that there was “no change in circumstance” because at the time the parties reached their original support agreement there was an expectation that Wife’s earnings would increase.
At trial, the court found in favor of Wife. The trial court found that there was a change in circumstance and the trial court then capped the bonus payment to $990/year as that was the bonus amount Wife paid at the time of the Marital Settlement Agreement.
Husband appealed, and the appellate court agreed with the trial court that there was a change in circumstance which warranted a modification of Wife’s support obligation. The court reasoned that although at the time the parties entered into their original agreement they had contemplated an increase in Wife’s earnings, they had not contemplated such a dramatic increase in Wife’s earnings. Huge win for Wife, right? Not so fast. The appellate court went on to state that the $990 annual cap was inappropriate because the Marital Settlement Agreement stated that the base amount of support paid met husband’s needs and the parties’ standard of living. Therefore, the parties had agreed to a support payment that exceeded the parties’ marital standard of living by inclusion of the bonus provision.
Generally, the payor of support wants their Marital Settlement Agreements to include a statement that the support paid meets the supported parties’ needs and the parties’ marital standard of living. Establishing the marital standard of living and husband’s needs is good practice as those agreed upon facts generally limit a supported spouse’s ability to seek a significant increase of support in the future. Fortunately for Wife, the Marital Settlement Agreement in T.C. v. D.C. included such a provision. But in this case, the problem was not the marital standard of living, it was the gravy – Wife’s agreement to pay bonus support meant she was willing to pay husband support that exceeded the parties’ marital standard of living. Therefore, when drafting Marital Settlement Agreements, if there is a bonus support provision, the support payor should insist to a cap on the amount of bonus support paid.
Ultimately, the net result of T.C. V. D.C. is Husband was not capped at the original $990 annual bonus, but the court can establish some reasonable cap, based on the parties’ expectations at the time they entered their marital settlement agreement.
This entry was posted in Attorneys' Fees, Support and tagged divorce, support on 01/30/2019 by FordFamilyLaw.
In C.A. v. C.P. et al., the Third Appellate District recognized the parental rights of a child’s mother, husband parent and biological father (C.A.). The child was born into an intact marriage after mother had a short relationship with C.A. All parties were aware of the child’s paternity, acknowledged C.A. as the biological father, and were actively involved in the child’s life from birth until she was three. During that time, C.A. had regular overnights with the child, held her out as his own, accepted her into his family, and supported her financially. This action arose when mother and husband refused to allow C.A. to continue visiting with the child.
Under the holding in C.A. v. C.P. et al., the Court determined that both C.A. and husband qualified as fathers of the child: C.A. as a presumed natural parent pursuant to Family Code Section 7611(d) and husband under Family Code Section 7540. C.A. fulfilled the requirements to be considered a presumed natural parent by receiving the child into his home and holding her out as his natural child, which both wife and husband cooperated with. Husband was conclusively presumed a natural parent because he was married to and living with wife at the time of the child’s birth.
“(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.
(b) The purpose of the bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.
(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.” Sen. Bill No. 274 (2013-2014 Reg. Sess.).
In their findings, the Court highlighted the long-standing bond that the child had with C.A. and his deep involvement in many aspects her early life. The key inquiry was if C.A. had an extant relationship with the child and if removal of this relationship would be in contradiction of the child’s best interest, specifically her need for stability. Finally, the Court held that their recognition of three legal parents did not violate Constitutional protections of marriage and paternal rights.
C.A. v. C.P. et al., provides a roadmap for parents that may be involved in future three party custody cases. Once standing is established through a valid claim of paternity, the Court will examine the extent of the claimant parent’s involvement in the child’s life and determine if it is in the best interest of the child to maintain that bond through a legally recognized relationship. The more consistently involved the claimant parent is, the more likely they are to be recognized as a legal parent. This serves as both instructive for possible biological fathers wishing to assert their parental rights and as a cautionary tale for married parents of a child with a third party biological parent.
This entry was posted in Custody on 12/05/2018 by FordFamilyLaw.
People v. Sanchez represents a potentially significant evidentiary problem in the context of custody and visitation cases involving a custody evaluation and report.
Under the holding in Sanchez, which is a criminal law case, case-specific, out-of-court statements that are relied upon by an expert to form his or her opinion are considered hearsay and are inadmissible and excluded from the record unless a hearsay exception applies. Custody Evaluators, and to a lesser extent Recommending Mediators, gather collateral testimony and documents and rely on such materials in their reports to formulate their opinions regarding custody and visitation. Unless the parties stipulate to the admissibility of the Custody Evaluator’s report as a whole, any collateral evidence that may have supported the Custody Evaluator’s conclusions could potentially be excluded under Sanchez. What’s more, if the Custody Evaluator’s findings relied primarily on excludable hearsay, there’s a possibility that the report and recommendations might be excluded.
To date, this concern over whether and to what extent Sanchez applies to custody evaluations remains somewhat theoretical. The issue has not yet made its way through the appeals process and some experts in our field predict it never will due to the statutorily-sanctioned, investigative-nature of custody evaluations. Nonetheless, amongst family law attorneys, the holding in Sanchez has created uncertainty as to whether a custody evaluation and its underlying evidence will or will not be excluded. This uncertainty often leads to litigation, and with it, the associated drain on both private and public resources.
Senate Bill 1276, which could come up for a vote later this year, proposes revisions to California Evidence Code §§ 801-803 is designed to address the above problem (and similar ones from the broader context of civil litigation). The most significant changes are found within the text of § 801 of the Code.
(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.
(1) Whether, the expert routinely relies upon similar statements in his or her professional capacity outside of the court.
(2) The expertise of the expert, including his or her experience, in evaluating the trustworthiness of the sources of information relied upon in forming his or her opinions.
The new Code creates an exception to hearsay that the Court has the discretion to apply in civil cases only, looking at two factors: (1) whether the information considered by the Expert is considered routinely; and (2) whether the Expert has the experience to evaluate the trustworthiness of the sources of information. In the context of custody evaluations, the Evaluators routinely rely on collateral sources of information for their reports – such as documents, testimonials, interviews, etc. Custody Evaluators also have the experience and clinical expertise needed to sufficiently investigate the matter and to apply the proper weight and significance to the facts gathered by them. For example, Evaluators rarely rely on a particular collateral source without assessing the information obtained from one such source in relation to other data and information. Therefore, it seems likely that the case-specific, out-of-court statements often relied on by Custody Evaluators — which may be considered hearsay in other contexts — will not be excluded as such under SB 1276’s proposed revisions to the Evidentiary Code.
Sanchez seems to make sense in the criminal law arena, where the individual rights that are at stake may require the highest due process protections and a more strict application of the hearsay rules. SB 1276 is designed to eliminate the uncertainty created by Sanchez in the context of civil matters that often rely on expert testimony, such as in the custody evaluation context. For many family law practitioners in particular, the above distinction between criminal and civil practice under the new proposed code is a welcome change. Hopefully, SB 1276 will pass.
This entry was posted in Custody, Uncategorized on 03/26/2018 by FordFamilyLaw.
In California, mediation is mandatory whenever custody and visitation are at issue, and for good reason – custody mediation can have a very positive, long-term impact on families. See summary of Dr. Robert Emery’s 12-year study on the effects of divorce mediation at http://emeryondivorce.com/divorce_mediation_study.php. On the other hand, some have questioned the fairness of mandatory mediation in custody cases in California. See, e.g., Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991). Regardless, there is a fairly wide consensus within the field of mediation that the benefits derived from mediation and the fairness of the mediation process itself depend on how the mediation process is being offered.
In light of the mandatory mediation requirement, two types of mediation are offered through the California court system: (1) recommending mediation/counseling; and (2) confidential mediation. Compare Cal. Fam. Code Sections 3183 and 3188. Each County in California may select the type of mediation that parties to a custody dispute must attend.
Under the recommending mediation approach (formally titled “recommending counseling”), the mediator first tries to help the parties reach a consensual agreement. If the parties cannot do so, the mediator then provides the parties and the court with non-confidential recommendations regarding custody and visitation. The parties can agree to adopt the recommendations, or the court may decide to adopt or modify the recommendations after hearing the parties’ arguments for and against adoption. For reasons that are fairly apparent, the non-confidential recommendations can have a significant impact on how parties negotiate and/or how the court rules. One of the advantages of the recommending approach is that the parties have the opportunity to meet with a psychologist or therapist trained to deal with families who can first try to help them in a more consensual process but can then also make a recommending to the court based on his or her professional expertise. One potential disadvantage of the recommendation approach is that parties often approach recommending mediation as a process within which they advocate their position to the mediator rather than try to candidly communicate with one another and problem-solve. As a result, the potential of reaching a consensual agreement is often diminished.
In contrast, under the confidential mediation approach, neither the mediator nor the parties can report the content of the mediation to the court other than reporting any actual agreement reached. This approach allows parties to have more frank conversations with the help of the mediator without worrying about the impact their conversation may have on the outcome of their case. However, unlike the recommending approach, the only immediate, tangible by-product of a confidential mediation is when the parties do in fact reach an agreement. Although confidential mediation may very well pay dividends well beyond an immediate agreement, confidential mediation may be less efficient than recommending mediation, at least in the short-term.
Another way to look at the difference between these two approaches is that under the recommending approach, the goal is dual: (a) to try to help the parties reach their own agreement; but if they cannot agree, then (b) to provide the court with assistance/guidance by way of issuing a recommendation. Under the confidential approach, the only goal is to help the parties reach a consensual agreement via a confidential process.
Many Counties, including Alameda, have adopted the recommending mediation module. Others, like San Francisco County, provide confidential, non-recommending mediation. Contra Costa County has been a recommending mediation County for many years; however, recently the County announced a planned shift to a hybrid confidential/recommending module starting in March 2018. This hybrid approach involves a first tier of confidential mediation, a second tier of fact-gathering conducted by a different mediator, and a third tier of recommending mediation with the same mediator that conducted the second tier fact-gathering. Referrals to tiers two and three will be at the discretion of the Judge presiding over the case. The Contra Costa module, is designed to reap the benefits of confidential mediation and recommending mediation/counseling, but at different stages of the case.
One of the limitations of court-connected mediation services is the court’s lack of resources, which limits the amount of time dedicated to mediation. Parties do have the option to opt out of the court-connected services and stipulate to private mediation. Our office (which practices in Contra Costa and Alameda) often explores with our clients the option of working with a private recommending mediator/counselor or a private confidential mediator. While this service is not free, it does allow for a more thorough and holistic approach to resolving custody and visitation issues and often saves a fair amount in attorney’s fees.
To conclude, parties with disputes over custody need to understand that there are important choices to be made regarding the mediation process (as a stand-alone process or in conjunction with litigation), choices that can significantly impact how custody and visitation is determined. It is very important for attorneys and their clients to have a discussion about these various processes at the onset of the case.
This entry was posted in Custody on 01/29/2018 by FordFamilyLaw.
So Long to Spousal Support?
A California resident is attempting to place a ballot initiative on the November 2016 ballot that would significantly alter (eliminate?) spousal support in California. The proposed ballot initiative can be found here.
Spousal support is governed by Family Code Section 4300 (et. seq.) and case law. In short, “a person shall support the person’s spouse.” Fam. Code § 4300. Section 4320 sets forth the factors the court is to review when determining post-dissolution spousal support. The proposed revision would have 4300 read: “No party shall be unfairly burdened because the other party is unwilling to become self-supporting.” The “new” 4320 would eliminate the spousal support factors as there would be no need for them without any legally authorized spousal support.
The ballot initiative, if passed, would a) immediately eliminate current spousal support orders less than 10 years in length and b) reduce by 20% per year for 5 years orders with a duration for greater than 10 years. Spousal support is currently modifiable based on a change in circumstances, court order, or agreement by the parties. The proposal appears to eliminate spousal support completely by 2021.
To become an official ballot initiative, certain steps must be followed. Click here to learn more about that process. If it obtains the necessary signatures, it still must win a vote at the polls.
This entry was posted in Support on 04/07/2015 by FordFamilyLaw.
The Petition breakdown wraps up today. The Judicial Council updated the Petition and Response as of January 1, 2015. The information contained in the pre- and post-updated forms are (for the most part) the same. However, in seeking to complete the task at hand (a walk-through of the Petition), the final components are briefly discussed below.
If a child is born after marriage, the child is considered of the marriage and the child of the two parents. Fam. Code § 7541. If a child is born prior to the marriage (to the parents), the Petitioner (or Respondent) can request that the court find the pre-marriage child a child of both parties. This is in lieu of a separate parentage action.
Payment of attorney’s fees in conjunction with a family law matter is governed by Family Code Sections 2030-2034. The Court looks at a number of factors including the requesting party’s need and the other party’s ability to pay. These are not the only factors, and the Court is also required to review the level of difficulty of the case as well as the spousal support factors (discussed below) as they relate to the payment of fees.
Temporary and long-term (or permanent) spousal support will be discussed in a separate blog post. The Court is required to review a number of factors in determining post-judgment support.
Previous blog posts described the difference between community property and separate property. The Petitioner and Respondent can ask the Court to award community property to him/her and confirm his/her separate property to him/her.
Child support will be addressed in a separate blog post.
Continue to check back to this blog for further information on support (child and spousal) as well as other news and updates as they relate to family law in California.
This entry was posted in Attorneys' Fees, Community Property, Support on 01/20/2015 by FordFamilyLaw.


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“We first consider whether “the facts alleged show the [defendants’] conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Next, we determine whether that right was “clearly established” at the time of the alleged violation. Id. Applying this inquiry while viewing the facts in the light most favorable to Plaintiffs, the district court erred in granting summary judgment on this claim.
“As a threshold matter, we must determine whether, when “[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201. We evaluate claims that state actors retaliated against a claimant in response to his exercise of free speech under the framework generally set forth in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Under MountHealthy and its progeny, a plaintiff must show that (1) he was participating in a constitutionally protected activity; (2) defendant’s action injured plaintiff in a way “likely [to] chill a person of ordinary firmness from” further participation in that activity; and (3) in part, plaintiff’s constitutionally protected activity motivated defendant’s adverse action. Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (internal citations omitted); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Once a plaintiff raises an inference that the defendant’s conduct was motivated in part by plaintiff’s protected activity, the burden shifts and defendant “can demonstrate that it would have taken the same action in the absence of the protected activity.” Arnett v. Myers, 281 F.3d 552, 560- 61 (6th Cir. 2002) (citing Thaddeus-X, 175 F.3d at 399). The inquiry of “whether activity is ‘protected’ or an action is ‘adverse’” is context-specific. Thaddeus-X, 175 F.3d at 388.
“The First Amendment generally protects Plaintiffs’ right to display signs communicating their views on abortion, and “[t]he fact that the messages conveyed by those communications may be offensive to their recipients does not deprive them of constitutional protection.” Hill v. Colorado, 530 U.S. 703, 714-15 (2000); see also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects . . . . That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment.”). The district court correctly found that Plaintiffs had “engaged in protected activity,” (J.A. at 116), and Defendants do not argue otherwise. We next consider whether the adverse action “would chill or silence a ‘person of ordinary firmness’ from future First Amendment activities.” Thaddeus-X, 175 F.3d at 397 (citation omitted) (noting the “standard is amenable to all retaliation claims”). Here, Plaintiffs need not show they were actually deterred from exercising their right to free speech, but rather must show the actions were “capable of deterring a person of ordinary firmness from exercising his or her right[s].” Id. At 398. A chilling effect sufficient under this prong is not born of de minimis threats or “inconsequential actions,” but neither does the requisite showing permit “solely egregious retaliatory acts . . . to proceed past summary judgment.” Id.
“Deprivation of one’s liberty of movement can hardly be classed “inconsequential;” indeed, the Founders endeavored scrupulously to protect this liberty in the Constitution. See U.S. const. amend. IV; U.S. const. amend. XIV. A two and one-half hour detention absent probable cause, accompanied by a search of both their vehicles and personal belongings, conducted in view of an ever-growing crowd of on-lookers, would undoubtedly deter an average law-abiding citizen from similarly expressing controversial views on the streets of the greater Dayton area. See McCurdy v. Montgomery County, 240 F.3d 512, 520 (6th Cir. 2001) (impliedly acknowledging an arrest without probable cause constitutes adverse action of sufficient consequence); cf. Lucas v. Monroe County, 203 F.3d 964, 974 (6th Cir. 2000) (loss of business after being removed from a police station’s rotating call list sufficient to “deter the average wrecker service operator” from similarly criticizing defendant sheriff).
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As experienced contractors and material suppliers know, actions to foreclose upon mechanic’s liens can involve lien priority disputes with lenders. Contractors and suppliers recently scored a significant victory in connection with these disputes in Weitz Co., LLC v. Heth, 314 P.3d 569, 674 Ariz. Adv. Rep. 29 (App. 2013) which struck down the doctrine of equitable subrogation in the context of mechanic’s liens. Simply put, equitable subrogation “enables a later-filed lienholder to leap-frog over an intervening lienholder.” It had previously been used in Arizona to allow subsequent lenders who supplied funds to pay off a primary lien to jump intervening mechanic’s liens and be substituted into the position of the primary lienholder.
The dispute in Weitz arose from the development of a 165 unit mixed-use residential and commercial condominium project in Phoenix. The project was financed by a construction loan from First National Bank of Arizona (“First National”) that was secured by a deed of trust. Construction began and the general contractor – Weitz Company, LLC (“Weitz Co.”) – served a preliminary twenty-day mechanic’s lien notice on January 18, 2006. Towards the end of the project, the owner became unable to pay Weitz Co.
The owner began selling individual condominium units in September 2007 before the completion of construction. Ninety-two units were sold, and most were financed through commercial lenders. The proceeds from these sales went to pay off portions of First National’s construction loan, but the amounts owed to Weitz Co. remained unpaid. Weitz Co. subsequently recorded a mechanic’s lien against the project, and ultimately sued to foreclose that lien against, among others, the purchasers of the units and their lenders (the “Lenders”). The Lenders argued that they had priority over Weitz Co.’s lien because they were equitably subrogated to First National’s position. Weitz Co. countered that, under A.R.S. § 33-992(A), its lien had priority over all liens attaching after construction began. The parties filed cross motions for partial summary judgment, Weitz Co. prevailed, and the Lenders appealed.
The liens provided for in this article…are preferred to all liens, mortgages or other encumbrances upon the property attaching subsequent to the time the labor was commenced or the materials were commenced to be furnished except any mortgage or deed of trust that is given as security for a loan made by a construction lender…if the mortgage or deed of trust is recorded within ten days after labor was commenced or the materials were commenced to be furnished.
The court then addressed the Lenders argument that “Arizona courts have consistently recognized and applied equitable subrogation in the context of mechanic’s liens.” As support for their position, the Lenders cited to the Court of Appeals decisions in Lamb Excavation, Inc. v. Chase Manhattan Corp., 208 Ariz. 478, 95 P.3d 542 (App. 2004) and Peterman-Donnelly Eng’rs & Contractors Corp. v. First Natl. Bank of Arizona, 2 Ariz.App. 321, 408 P.2d 841 (1965). In both Peterman-Donnelly and Lamb subsequent lenders were equitably subrogated to the position of the primary lender, ahead of prior-in-time mechanic’s liens.
But in Wietz, the court disagreed with the application of equitable subrogation in Peterman-Donnelly and Lamb. The court found that these prior decisions “failed to adhere to the plain language of § 33-992,” and “failed to recognize that § 33-992 does not provide an exception for altering the priority [Arizona’s] legislature has afforded to mechanic’s liens.” In other words, the court held that Peterman-Donnelly and Lamb were incorrectly decided insofar as they “stand for the proposition that a court may apply equitable subrogation to override the plain language of § 33-992.” As such, the court concluded “that equitable subrogation cannot operate to supersede the statutory requirement that mechanic’s liens have priority over all subsequent encumbrances, except for construction loans filed within the narrow time constraints of the statute” and affirmed the trial court’s grant of summary judgment in favor of Weitz Co.
The ruling in Weitz is a significant victory for contractors and suppliers in protecting their mechanic’s lien rights. In addition to affirming that mechanic’s liens have priority over liens attaching after the commencement of construction (subject to the construction loan exception), it allows contractors and suppliers to rely on the clear language of A.R.S. § 33-992 in determining the priority of their liens.


A Co-owner Filed Bankruptcy, What Now?
Condominium associations are solely dependent upon the collection of assessments from its members for their survival and to purchase and provide the goods and services necessary for the maintenance of the project for the benefit of its members. Thus, when a Co-owner files bankruptcy, there is an understandable feeling that all is lost. However, that is not always the case in every bankruptcy. There are instances where the Co-owner will not only be responsible for post-petition assessments, but also pre-petition assessments as well. The purpose of this article is address the types of bankruptcy, how often a debtor may file for bankruptcy and practical steps in the process.
In the majority of circumstances, the condominium association will face a Co-owner who files either a Chapter 7 or Chapter 13 petition. In a Chapter 7 bankruptcy, a Bankruptcy Trustee is appointed to oversee the liquidation of the debtor’s non-exempt assets. The idea is that the debtor’s assets are sold to pay the debtor’s debts (the money the debtor owes to creditors). Sometimes that actually happens. Most often it does not, because when the debtor’s exempt property is taken off the “bankruptcy table”, there is nothing left to liquidate (that is, to sell) to generate the money to pay the debt (often referred to as a zero asset case). The end result is that in many Chapter 7 bankruptcy cases, the bankruptcy discharge wipes out all of the debtor’s pre-petition debt, and creditors typically obtain nothing unless, as shown below, the creditor is secured.
In a Chapter 13 bankruptcy, a debtor with regular income commits to making regular payments to the debtor’s creditors over the course of a 3-5 year plan. It allows the debtor to pay all of his/her creditors all of the money owed, some of the money owed, or none to some and some to others. In exchange, upon successful completion of the plan, the debtor receives a broader discharge than a Chapter 7 debtor.
A debtor can file a petition every single day but in order to receive a discharge of his or her debts, in a Chapter 7 case there must be eight years between discharges, and in Chapter 13 cases, a discharge is not available to a debtor who received a discharge in a Chapter 7 case filed within 4 years prior to the current Chapter 13 case and within 2 years for a prior Chapter 13 case. 11 U.S.C. § 727 (a)(8) and 11 U.S.C. §§ 1328(f)(1) and (2), respectively.
This is important because when condominium associations face a Co-owner who has previously filed for bankruptcy protections they can, with their counsel’s help, determine whether the Co-owner will remain personally liable for the assessments and, in some instances, as seen below, whether the automatic stay takes effect.
A bankruptcy case begins with the filing of a bankruptcy petition. When a bankruptcy petition is filed, an “automatic stay” immediately takes effect halting all creditors, including condominium associations, from continuing with any attempts at collection of a debt, which includes any pending legal action. 11 U.S.C. § 362. The filing of a bankruptcy petition is considered an order of relief, granting the debtor from such collection activity by way of the automatic stay. The automatic stay remains in place until the debtor is discharged, unless otherwise lifted by the court.
If the debtor has filed for bankruptcy in the past year and that case was dismissed, then the automatic stay only last for 30 days. 11 U.S.C. § 362(c)(3). Another way of saying this is if you file a second bankruptcy within one year of a previous bankruptcy being dismissed, then the automatic stay expires after 30 days. The debtor’s attorney can file a motion to extend the automatic stay, but it may not be granted. The rule is in place to prevent a person from filing multiple bankruptcies to repeatedly stop a creditor from taking action against secured collateral.
If a debtor files a third bankruptcy in one year then no automatic stay goes into effect and the creditors are free to continue collection activity unless the Bankruptcy Court enters an order reinstating the automatic stay. 11 U.S.C. § 362(c)(4). The debtor’s attorney may schedule a hearing to determine if the court will extend the automatic stay. If the court finds that a debtor is abusing the bankruptcy system by filing too many bankruptcies or not following through with the bankruptcies they do file; the court may enter an order prohibiting the debtor from filing any more bankruptcies for a period of months.
In Chapter 7 cases, the debtor will file a number of schedules and documents that sets forth his/her assets, debts, income and expenses, including a Statement of Intention that advises what the debtor intends to do with property to which there is secured debt. Under the Michigan Condominium Act, MCL 559.101, et seq., the condominium assessments unpaid together with interest, collection and late charges constitute a lien on the condominium Unit. See MCL 559.208. The Statement of Intention will reveal whether the debtor intends to keep his/her Unit or surrender it to the mortgage company. No Statement of Intention is required for Chapter 13 filings.
In Chapter 13 petitions, the debtor will file a Chapter 13 Plan that will show three things: (1) what category of creditor your association is proposed to be, (2) whether the debtor agrees to make post-petition assessment payments as they fall due, and (3) whether the debtor intends to abandon the property in your association.
What Steps Cannot be Taken?
Once the condominium association receives notice of the Co-owner’s bankruptcy filing—whether the debtor filed a Chapter 7 or 13 petition—the Association cannot continue to call the debtor, send infractions to the debtor, impose fines for violations, ask for payment, lien the debtor’s Unit, sue the debtor in court, take judgments against the debtor, issue writs of execution against the debtor, levy execution against the debtor’s personal property, foreclose and sell the debtor’s unit or otherwise take any action to collect on a debt. Additionally, for Chapter 13 filings, the Association cannot proceed against joint co-owners because Chapter 13 filings also contains a special automatic stay provision that protects co-debtors, even if they have not filed for bankruptcy protection. 11 U.S.C. § 1301(a).
In a Chapter 7 case, the condominium association must examine and review the Statement of Intention to determine whether the Co-owner is keeping or surrendering the Unit. If the Co-owner is keeping the Unit, he/she will pay any pre-petition delinquency and will pay the condominium assessments going forward as though he/she had not filed bankruptcy.
If the debtor is surrendering the Unit, the association’s counsel should contact the debtor’s counsel to confirm and ensure that the Co-owner will make his/her post-petition assessments. Under the Bankruptcy Code, the debtor remains personally liable for condominium assessments arising after the Chapter 7 bankruptcy petition date and continuing for so long as the debtor owns the property. 11 U.S.C. § 523(a)(16).
In those instances where the debtor has already lost ownership of his/her Unit due to a foreclosure sale, either prior to his/her bankruptcy filing or soon after his/her bankruptcy filing, there will be no post-petition assessments owing or the amount owing may not be economically worth pursuing. The association should always monitor the bankruptcy case to confirm that the debtor has received a Discharge Order. It is the Discharge Order that forbids the association from attempting to collect debts that were discharged through the bankruptcy. If the case is dismissed, the association is entitled to proceed against the entire delinquency because the dismissal is the same as the bankruptcy case never being there.
In a Chapter 13 case, in order to determine a debtor’s intentions as to the Unit in a Chapter 13, one must examine the debtor’s Chapter 13 Plan. If the debtor acknowledges the condominium association’s secured status by listing the association for payment in Class 2, 3 or 4 of the Plan, then the association’s claim will be deemed secured and the Plan will provide for payment in full of the association’s claim. If the debtor does not provide for payment in full plus interest, plus monthly payments after the bankruptcy as they fall due, the association can object to the confirmation of the plan. The usual result is that the debtor amends the Plan to provide for proper payment in full.
If the debtor lists the association in Class 5 of the Plan, then the association will be treated as a general unsecured creditor for pre-petition debt but the debtor will be responsible for post-petition assessments so long as the debtor retains an ownership interest in the Unit. Maple Forest Condominium Association v. Spencer (In re Spencer), 457 B.R. 601 (E.D. Mich. 2011) (post-petition accruals were not discharged because, under local law, they arose under a covenant running with the land; reversing the decision to the contrary by the bankruptcy court).
Whether the Association is treated as a secured or unsecured creditor, the association should timely file a Proof of Claim to ensure that the proper amount due and owing to the Association is paid through the Plan. Moreover, it allows the association to object to the confirmation of the Plan until the delinquency amount and/or misclassification of the association’s claim (the debtor lists the association as unsecured when in fact it is secured) are corrected. If a timely Proof of Claim and/or an Objection is not filed, the association will be stuck with the debtor’s number and/or classification of the association’s claim. If the association does not timely file an unsecured Proof of Claim, in such an instance, it will obtain nothing from the Chapter 13 Plan.
If during the term of the Plan, the debtor fails to pay post-petition assessments, the association has the right to request the Bankruptcy court to dismiss the debtor’s bankruptcy or relief from stay. Relief from stay is a motion presented to the court advising the Court that the association is not adequately protected (not being paid on time after the bankruptcy filing) and requesting that the association be free to proceed with foreclosing on its lien. Because Chapter 13 bankruptcies are more complex (and therefore, more expensive), debtors will typically make arrangements to cure the post-petition default so that the bankruptcy remains in effect.
In Chapter 7 cases where the debtor is surrendering the Unit, if the debtor is granted a Discharge Order, the discharge injunction forbids the Association from attempting to collect the pre-petition assessments. However, the debtor will be responsible for post-petition assessments so long as he/she has an ownership interest in the Unit. In Chapter 7 cases where the debtor is keeping the Unit, the debtor will be responsible for the both the pre and post-petition assessments.
In Chapter 13 cases where the debtor is surrendering the Unit, if the debtor is granted a Discharge after completion of the Chapter 13 plan, the Association will not be able to collect the pre-petition assessments but the association may have received payments towards the delinquency during the Plan term. In Chapter 13 cases where the debtor keeps their Unit, the Association’s pre and post-petition assessments are paid by the Trustee’s office during the term of the Plan.
In limited circumstances not dealt with in this article, the Association’s secured debt is not affected by the discharge. That is because the Association continues to have a lien against the debtor’s property. And even though the debtor cannot be compelled to pay the debt, the Unit can be sold to satisfy the entire obligation to the Association. And usually that results in the debt being paid, whether it arose before or after the bankruptcy was filed.
If the association protects itself by timely filing its lien against the Unit, it will in most cases not be affected by a Co-owner’s bankruptcy, provided the debtor retains the property. This is because despite the bankruptcy, the association will still be able to compel payment by foreclosing its lien. However, if the debtor surrenders/abandons the Unit, however, it is more likely that a mortgage holder senior to the association would foreclose itself, consequently wiping out the association’s lien.
Accordingly, it is important for the association to seek the assistance of experienced professionals when faced with a co-owner who has filed bankruptcy.
William Z. Kolobaric is an attorney with the law firm of Hirzel Law, PLC where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (248) 478-1800 or wkolobaric@hirzellaw.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.
 Class 1 – creditors entitled to priority over all other creditors, such as the Chapter 13 Trustee, the debtor’s attorney, and the taxing authority; Class 2, 3 and 4 are all derivations of creditors who the debtor acknowledges are holding secured creditor status. The first, second and other mortgage holders will be seen in Class 2. Usually, the condominium association will be there as well. Class 5 are unsecured creditors.
 For example, see blog post on Lien Stripping and Bankruptcy.


UNITED STATES OF AMERICA, APPELLEE, v. LUIS SOTOMAYOR, A/K/A “TOTI,” CARMEN IRIS RIVERA, A/K/A “CARMENCITA,” JOSE MIGUEL CRESPO, A/K/A “MIKE CRESPO,” VICTOR HERNANDEZ, A/K/A “VICTOR,” A/K/A “VITIN,” STEVEN ANGELET, A/K/A “STEVEN MARCANO,” A/K/A “STEVIE,” AND ISMAEL ROMERO, A/K/A “COOKIE,” APPELLANTS.
Nos. 1031-1036, Dockets 78-1064, 78-1073, 78-1076 to 78-1078 and 78-1086.United States Court of Appeals, Second Circuit.Argued June 1, 1978.
William C. Pelster, New York City, for appellant Luis Sotomayor.
J. Jeffrey Weisenfeld, New York City (Steven M. Jaeger, New York City, on brief), for appellant Jose Miguel Crispo.
Robert B. Blossner, New York City, for appellant Steven Angelet.
Samuel W. Murphy, Jr., David S. Versfelt, New York City (Donovan, Leisure, Newton Irvine, New York City, on brief), for appellant Ismael Romero.
Stephen M. Goldenberg, New York City, for appellant Victor Hernandez.
Michael Young, New York City (Goldberger, Feldman Dubin, New York City, on brief), for appellant Carmen Rivera.
Robert B. Fiske, Jr., U.S. Atty., S. D. N.Y., New York City (Robert J. Costello, Richard Lawler, Robert J. Jossen, Asst. U.S. Attys., S. D. N.Y., New York City, of counsel), for the U.S.
[*] Of the United States District Court for the Eastern District of Virginia, sitting by designation.
 Appellants appeal from judgments of conviction entered on January 26 and February 8, 1978 in the United States District Court for the Southern District of New York, after an eight week trial before the Honorable Lawrence W. Pierce, District Judge, and a jury. The appellants were convicted of conspiracy to import cocaine into the United States and to possess and distribute heroin and cocaine in the United States in violation of 21 U.S.C. §§ 846 and 963. In addition, Ismael Romero was convicted of possession with intent to distribute and distribution of 106.3 grams of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(a). The principal error alleged is the failure of the district court to suppress wiretap tapes allegedly untimely sealed under New York law. We affirm.
 The Government’s prosecution was mainly based on the introduction into evidence of 138 recorded conversations seized as a result of New York State court-ordered surveillance of four telephone lines in Bronx and Westchester Counties. Testimony was also given by officers who performed surveillance, and who explained to the court and jury the code system employed to discuss drug dealing over the telephone system.
 The investigation which led to the indictment was commenced during the summer of 1976 by members of the New York City Police Department assigned to Manhattan North narcotics in conjunction with the Bronx County District Attorney. During the course of the investigation, the indicated wiretap orders were sought by New York law enforcement officers. These orders were granted by a justice of the Supreme Court of the State of New York, Bronx County, and by a judge of the Westchester County Court.
 A central plant was established by the investigators to record and log the intercepted communications. The procedure for collection and preservation of the original tapes was to remove the tape from the recorder at midnight and place it, and the line sheets, in an envelope, which was put into a wire basket on a desk at the central plant. Police Officer Connelly was responsible for transporting the tapes from the plant to the Bronx district attorney’s office the following day. On several occasions other officers performed this duty when Connelly could not.
 The envelope was taken to the wire room at the district attorney’s office. The tape would then be reproduced and stored in this room, which was under the supervision of detectives Ryan and Campion. Connelly, or one of the other officers, would return to the plant with the duplicate recording. Only Ryan, Campion, and their commanding officer had access to the tapes in the district attorney’s office once the tapes were received as the tapes were filed in the office and only these three individuals had keys to the room.
 Officer Connelly, in his capacity as coordinator of the four taps, was also present at the sealing of each of the tapes. He took possession of the appropriate tapes from the district attorney’s wire room and appeared before a judge with an assistant district attorney for the sealing procedure. The sealing dates were December 2, 1976 (Tap 22); November 16, 1976 (Tap 25); January 11, 1977 (Tap 28); December 29, 1976 (Tap 29). Stated otherwise, the sealing took place within one day following the last extension. Appellants do not contest the admissibility of evidence received during the last extension order, but challenge the admissibility of evidence received during the original orders and any extension orders save and except the final ones.
 Once sealed, the boxes containing the tapes were kept in a vault room in the Bronx district attorney’s office. On September 16, 1977, Detective Ryan, on state court orders, turned the sealed tapes over to Police Officer Palermo and Agent Mella of the Drug Enforcement Administration. The tapes were transferred to the United States Attorney for the Southern District of New York. On September 26, 1977, the tapes were unsealed in the presence of District Judge Pierce and defense counsel.
were Sotomayor and Carmen Iris Rivera, whose operation provided narcotics to the organization of Crespo and Victor Hernandez. Crespo and Hernandez, in turn, acted as wholesalers and distributed the narcotics to a partnership consisting of Steven Angelet and Gregory Comulada, and also to Herman Rivera, Ismael Romero, and Santiago Lopez. This latter group of purchasers redistributed the narcotics to their customers. Among Herman Rivera’s customers were Angel Rivera and Robert Beck. Angel Rivera also received narcotics from the Sotomayor-Carmen Rivera partnership. In addition, the Angelet-Comulada partnership had other sources of supply for cocaine in Florida.
 The investigation proceeded basically in inverse order of levels of importance to the conspiracy. The first wiretap was on the telephone of Gregory Comulada. Through conversations intercepted during that wiretap it was determined that Comulada had a partner in the narcotics business, Steven Angelet. Other conversations intercepted on the Comulada wiretap showed that Comulada and Angelet were receiving heroin from Mike Crespo. A wiretap then was installed on Crespo’s telephone and revealed that Crespo had a partner, Victor Hernandez. Additional conversations intercepted during that wiretap showed that Crespo and Hernandez were receiving narcotics from Luis Sotomayor and Carmen Rivera.
 At trial, the Government proved the substantial narcotics conspiracy charged in the indictment through much the same way that the investigation had uncovered the loosely knit, but clearly connected, chain of supplier-wholesaler-distributors and purchasers. The chronological wiretaps demonstrated the inverse hierarchy and brought the conspiracy from distributor to wholesaler to supplier over a short period of time in the fall of 1976 and January 1977. The evidence showed that these defendants discussed various narcotic transactions in code language over the telephone and that Crespo and Hernandez also employed a radio communication device or “beeper” to maintain constant communication with each other as well as with all of their customers. The scope and volume of defendants’ activities was suggested by a ledger book which was seized pursuant to a search warrant from Angel Rivera’s apartment. This ledger book demonstrated the positions of Sotomayor and Carmen Rivera as sources of supply.
 In addition, Detective Mahone testified that Ismael Romero sold him 106.3 grams of heroin on December 3, 1976, and offered to sell quarter kilograms of heroin to him on a regular basis.
 The Government concedes that if the tapes are inadmissible, a new trial must be granted.
 The crux of this case lies in the tape sealing requirements of the New York statute and their possible application to a subsequently conducted federal prosecution. It was not until the state and local law enforcement officers had completed their investigation that a decision was made to permit federal prosecution. As noted, on September 16, 1977, the tapes were transferred, pursuant to state court orders, to the federal authorities.
 In dealing with wiretap orders the federal statute, 18 U.S.C. § 2518(8)(a), provides: “Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” (Emphasis added) The tapes were timely sealed following the expiration of the extension orders in accordance with the federal statute. No federal agents were involved in the wiretap investigation or in the sealing.
authoritatively declares New York law on this question. Se Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933). Accordingly, our discussion proceeds with the understanding that the tapes in this case were not sealed in compliance with New York law and would not be admissible in a state court proceeding.
L.Ed.2d 84 (1975); United States v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974), cert. denied 419 U.S. 1107, 95 S.Ct. 778, 42 L.Ed.2d 802 (1975); United States v. Castillo, 449 F.2d 1300, 1301, n. 2 (5th Cir. 1971); United States v. Coronna, 420 F.2d 1091, 1092, n. 2 (5th Cir. 1970); United States v. Scolnick, 392 F.2d 320, 323 (3rd Cir. 1968), cert. denied sub nom. Brooks v. United States, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968) United States v. Beigel, 370 F.2d 751, 756 (2d Cir. 1967). There are undoubtedly other authorities which have been overlooked. In several of these cases, conflicting federal and state statutes involved wiretaps.
 This circuit, despite its opinions in Turner, Magda, Mejias, Burke and Beigel, appears to have made some distinction as to whether state or federal law applies. In United States v. Manfredi, 488 F.2d 588, 592 (2d Cir. 1973), involving a joint wiretap investigation between state and federal officers, the court held that the federal government subjected itself to the risk that state courts may impose on such warrants and the evidence obtained under those warrants a higher standard than would a federal court dealing with the interpretation of the federal wiretap statute, citing as its only authority California v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749, appeal dismissed for want of substantial federal question, 414 U.S. 804, 94 S.Ct. 163, 38 L.Ed.2d 40 (1973). In any event, the wiretaps in the instant case were not the result of a joint investigation but were solely the product of state action.
(2d Cir. 1974), cert. denied 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974), where again the issue was whether the state officers had complied with the “minimization” requirements of 18 U.S.C. § 2518(5). Again, relying on Manfredi, the author stated that the question must be answered in the first instance by reference to state law, although it was stated that, in bot Manfredi and Rizzo, the procedures employed constituted sufficient “minimization” under state and federal law.
 It is this language in Marion upon which the appellants rely. They argue that since the state law requires the sealing of the tapes immediately after the expiration of the term of the original warrant, as well as at the termination of any extension order, the more stringent requirements of the state law must be met before the tapes can be received in evidence.
 We agree that under New York law as interpreted by the New York Court of Appeals the tapes could not be received in evidence in a New York State court. However, we do not consider Manfredi and its progeny to obligate us automatically to apply in a federal proceeding all provisions of a state wiretap statute containing more stringent requirements than those prescribed by Title III. We believe that at most Manfredi requires us, in determining whether to admit a wiretap obtained by a state officer acting under a state court order issued pursuant to a state statute, to apply only those more stringent state statutory requirements or standards that are designed to protect an individual’s right of privacy, as distinguished from procedural rules that are essentially evidentiary in character.
 This distinction between procedures governing the interception of wiretap evidence and those governing the preservation of such evidence after interception for trial is important. Since a state’s protection of privacy normally reflects principles central to its social and governmental order, our failure to respect its more stringent protection of privacy rights would not only violate principles of federalism, but encourage state and federal law enforcement officials to by-pass state law and to engage in federal forum-shopping of tainted evidence. On the other hand, rules pertaining to the admissibility of evidence are ordinarily governed by the law of the forum.
 Applying these principles here, it is readily apparent that New York’s sealing requirements, although vital to the state statutory scheme, do not impose a standard designed to protect an individual’s right of privacy but seek only to assure that, once a lawful interception has been completed, the fruits of the seizure will remain intact. United States v. Lawson, 545 F.2d 557, 564 (7th Cir. 1975). The sealing requirement is a post-interception procedure relating solely to the later preservation of the evidence, as contrasted to the methods used to obtain it. Since the latter involved the state’s interest in protection of privacy, the state’s law on the subject was respected in Manfredi, Rizzo and Marion. However, whatever interest, if any, the state may have in securing federal enforcement of its sealing requirements through application of the exclusionary rule is outweighed by the federal interest in establishing its own standards for the admission of lawfully obtained wiretaps into evidence.
interpretation of the relevant statutes or its exclusionary rule. The integrity of the factfinding process has not been impaired in this case. There is no suggestion that the tapes were altered in any manner. The tapes were the result of a state investigation in which the federal authorities played no part. At the time of the investigation the only apparent state authority on the subject was People v. Mangiaracina, a decision by the Supreme Court of Kings County on July 15, 1976, which held that the sealing need not take place until immediately after the expiration of the last extension date. The universal practice of state and federal authorities was to arrange for the sealing of tapes after the expiration of the last extension order. Thus the state police, in executing the court warrants after Mangiaracina but befor Glasser and Washington acted reasonably in the good faith assumption that they were not required to seal the tapes until the extensions of the warrants had expired. Indeed there was no motive for them not to seal each installment immediately upon its completion if there were grounds to believe at that time that such earlier sealing was required.
The teaching of these retroactivity cases is that if law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the “imperative of judicial integrity” is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.
 See also Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
penalized for failure to anticipate the later interpretation of § 700.50(2) by Glasser, Weiss and Washington.
 Appellants urge only a violation of the New York statute, CPL § 700.50(2), which was modeled after the federal statute, 18 U.S.C. § 2518. There is no history indicating why the state legislature did not use the precise wording of 18 U.S.C. § 2518(8)(a). Fury, supra, at 533.
 In Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965), it was held that “the Court may in the interest of justice make [a] rule prospective . . where the exigencies of the situation require such an application.” We are convinced that the “interest of justice” is promoted in this case where only a technical violation relating to an interpretation of the state statute is involved, and where no state court had rendered any authoritative construction of the statute at the time the taps were conducted. Under the exigencies of the situation there was no error in denying appellants’ motion to suppress the tapes.
 The only other issue which merits discussion is the contention by Ismael Romero that the district court erred, at mid-trial, in not granting him a severance of the substantive count of the indictment, in which he was named as the sole defendant. He claims that the evidence introduced against him on the substantive count may have “spilled over” to convict him on the conspiracy count and, in turn, that the evidence introduced against his codefendants on the conspiracy count may have “spilled over” to convict him on the substantive count.
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
 We are of the opinion that Romero has waived any claim of error under Rule 8 by his failure to move before trial for a severance. Rule 12(b)(2) and 12(f), F.R.Cr.P.; United States v. Green, 561 F.2d 423 (2d Cir. 1977), cert. denied 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 764 (1977).
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.
Thus, the real question is not whether there was a misjoinder under the liberal provisions of Fed.R.Crim.P. 8, but whether the refusal of the district court to sever [the appellant] from the main trial was so unfairly prejudicial under Rule 14 as to constitute an abuse of discretion. This is a difficult burden for [the appellant] to meet. “The determination of the elusive criterion of prejudice rests in judicial discretion at the trial level, and is virtually unreviewable.” 8 Moore’s Federal Practice ¶ 14.02, at 14-3 (2d ed. 1977) (footnote omitted). While we do not shirk our responsibility of review, we are reluctant to overturn a conviction for denial of a motion for severance unless there is a showing of substantial prejudice. United States v. Miley, 513 F.2d 1191, 1209 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975). It is not sufficient merely to show that the accused would have had a better chance for acquittal at a separate trial. United States v. Corr, 543 F.2d 1042, 1052 (2d Cir. 1976); 8 Moore’s Federal Practice, ¶ 14.04, at 14-14.2 to 14-15 (2d ed. 1977) (footnote omitted).
 After consideration of the record, briefs and oral argument, we are satisfied that Romero has not met this burden.
 Appellants were sentenced as follows: Luis Sotomayor, twelve years imprisonment, with ten years special parole; Carmen Iris Rivera, ten years with ten years special parole; Jose Miguel Crespo, ten years with three years special parole; Victor Hernandez, six years with three years special parole; Steven Angelet, ten years with three years special parole; Ismael Romero, five years on the conspiracy county and a concurrent three years on the substantive count, with four years special parole.
In addition, Sotomayor and Rivera were later sentenced to six-month concurrent sentences after pleading guilty to assaulting a deputy United States marshal during the course of trial.
Sotomayor’s appeal is no longer before us. He escaped from the penal institution on or about July 10, 1978. On August 30, 1978 the panel entered an order dismissing Sotomayor’s appeal with prejudice unless he returned to federal custody within 30 days of the filing of said order, same being under the authority o Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970), and United States v. Sperling, 506 F.2d 1323, 1345, n. 33 (2d Cir. 1974). Sotomayor was not returned to federal custody within the required period and the dismissal of his appeal is now final. While Sotomayor is no longer a party to the appeal, this opinion would apply to him if he had remained a party.
 Comulada died before the indictment was returned. When the police learned he had died, the tap on his telephone was terminated.
 At the time of this writing, Herman Rivera is a fugitive, as he was at the time of the trial.
 Lopez is a fugitive, as he was at the time of trial.
 Angel Rivera entered a pretrial guilty plea to the conspiracy count, and received a sentence of ten years with ten years special parole. However, Judge Pierce later granted a motion to reduce Rivera’s sentence and resentenced him to imprisonment for eight years with six years special parole.
 Beck is a fugitive, as he was at time of trial.
 The initial federal indictment was filed on June 6, 1977. A superseding indictment was returned on August 1, 1977. The appellants went to trial on a second superseding indictment filed September 30, 1977. The last extension order for the final plant or tap expired on January 10, 1977.
 Washington confirmed the reading of § 700.50(2) given by the Appellate Division, Second Department, of the New York Supreme Court. People v. Glasser, 58 A.D.2d 448, 396 N.Y.S.2d 422 (2d Dept. 1977); People v. Weiss, App.Div., 404 N.Y.S.2d 392 (2d Dept. 1978); see also People v. Pecoraro, 58 A.D.2d 462, 397 N.Y.S.2d 60 (2d Dept. 1977) (one judge disapproving and two judges approving of Glasser’s interpretation of the statute). Glasser and Pecoraro were decided before the defendants in this case went to trial but after the wiretapping took place. Prior to the decision in Glasser, but also after the completion of the wiretapping at issue in this case, this Court, having available only an unreported New York trial court decision, interpreted § 700.50(2) as being equivalent to the federal sealing requirements. 18 U.S.C. § 2518(8)(a). United States v. Fury, 554 F.2d 522 (2d Cir.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977).
 Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. Shaffer, 520 F.2d 1369, 1372 (3rd Cir. 1975); United States v. Armocida, 515 F.2d 49, 52 (3rd Cir. 1975); United States v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974). There are probably many other authorities along similar lines.
We reject the urging to apply Di Re for two reasons: we perceive Title III to represent “an applicable federal statute,” and we do not believe that Di Re is meant to apply to a case such as this. In addition, we conclude that the federal court is not compelled to exclude the seized material merely because of a violation of state law. We thus affirm Hall’s conviction.
That the issue is not clear is evidenced by the dissent of three of the thirteen judges.
 The only case authority cited for this position i Manfredi. However, reliance is also placed upon S.Rep. 1097, 90th Cong., 2d Sess., quoted in 2 U.S.Code Cong. Admin.News at pp. 2112, 2187 (1968), which reads: “No [state] applications may be authorized unless a specific State statute permits it. The State statute must meet the minimum standards reflected as a whole in the proposed chapter. The proposed provision envisions that States would be free to adopt more restrictive legislation.. .” (Emphasis supplied) We do not construe the emphasized language as evidence of Congressional intent to preclude admissibility of such testimony in a federal court where higher standards imposed by a state statute are not met.
the court found that the tapes had been sealed in accordance with both state and federal law, and in Ricco the court was applying a requirement — that the tapes be sealed “immediately” upon expiration of the period of authorized eavesdropping — that is common to the state and federal law. Thus, it is certain i Capra and quite possible in Ricco that the result did not depend on whether state or federal law applied.
 A second reason for distinguishing between the “right of privacy” and the “evidentiary” dimensions of wiretap regulations is provided by Title III of the Omnibus Crime Control and Safe Street Act, 18 U.S.C. §§ 2515, et seq., the federal statute governing wiretapping by federal and state authorities. In enacting Title III, Congress specifically intended to leave the states free to adopt limitations on eavesdropping more stringent than those applicable to warrants issued by a federal court. See Sen.Rep. No. 1097, reprinted in 1968 U.S.Code Cong. Admin.News pp. 2112, 2187. To carry out this intention § 2516 authorizes eavesdropping pursuant to a warrant issued by a federal court in compliance with the standards set out in § 2518 or pursuant to a warrant issued by a state court in compliance with § 2518 and with applicable state law. Read as a whole Title III suggests that the reference to state law extends only to the conditions for the issuance and execution of an eavesdropping warrant, as distinguished from post-interception evidentiary procedures such as sealing. Section 2516 itself is captioned “Authorization for interception of . . . communications,” suggesting that it does not address post-interception procedures. Similarly, the three general grounds for suppression of wiretap evidence, set out in § 2518(10)(a), refer to defects in the order authorizing interception and in the interception itself. The sealing requirement contains its own standard, § 2518(8)(a), suggesting that wiretap evidence can be suppressed for improper sealing only if the seal does not accord with the federal standard. Cf United States v. Curreri, 388 F.Supp. 607 (D.Md. 1974) (Title III does not require exclusion in a federal proceeding of wiretap evidence obtained under a state warrant when exclusion is not justified under any of the three grounds in § 2518(10)(a)).
Thus, although § 2518(10)(a), in conjunction with § 2516, may require exclusion of wiretap evidence obtained under a state warrant when the state standards for the issuance and execution are not satisfied, the Manfredi rule, limited to the conditions for issuance and execution of a wiretapping order, is not only consistent with but in furtherance of the legislative intent and represents an appropriate exercise of the court’s supervisory powers.
 See: United States v. Fury, 554 F.2d 522, 533. However, Judge Polsky had ruled in conformance with Fury in People v. Rosenberg, N.Y.L.J., October 20, 1976, at 13, col. 1 (Sup.Ct. Kings Co.). Judge Polsky later reversed himself in People v. Rao, 53 A.D.2d 904, 386 N.Y.S.2d 441, 1977 (Sup.Ct. Kings Co.), which reversal followed Glasser.
 The New York Court of Appeals had not at that time expressly approved or disapproved of Glasser, but an effort was made to appeal Glasser and the appeal was denied by a single judge.
 We assume arguendo Romero joined in the mid-trial severance motion made by counsel for other defendants.


Richmond Sunlight » HB2568: Child Safety Savings Accounts; established, report.
HOUSE BILL NO. 2568 Offered January 9, 2019 Prefiled January 9, 2019 A BILL to amend the Code of Virginia by adding in Chapter 13 of Title 22.1 an article numbered 2.1, consisting of sections numbered 22.1-222.1 through 22.1-222.5, relating to Child Safety Savings Accounts.
Article 2.1. Child Safety Savings Accounts.
"Child" means any individual who has not reached 22 years of age on or before September 30 of the current year.
"Child Safety Savings Account" or "savings account" means a bank account at a qualified financial institution in the name of a qualified student and into which only funds from the Commonwealth may be deposited as provided in subsection E of § 22.1-222.2 for expenditure by the parent of the qualified student for such student's benefit.
"IEP" means Individualized Education Program.
"Parent" means a parent, as defined in § 22.1-1, who has established domicile, as defined in § 58.1-302, in the Commonwealth.
"Qualified financial institution" means a financial institution or private financial management firm selected pursuant to § 22.1-222.4 that provides a savings account that offers debit card payment features that minimize fraud and abuse and provides the parent and the Department with administration and reporting functionality pursuant to their responsibilities under this article.
"Qualified school" means a sectarian or nonsectarian private elementary school or secondary school that is located in the Commonwealth and complies with the provisions of 42 U.S.C. § 1981.
"Qualified student" means a child (i) who is deemed to reside in a school division pursuant to subsection A of § 22.1-3, (ii) for whom compulsory attendance is required pursuant to subsection A of § 22.1-254, (iii) who was enrolled at and attended a public elementary or secondary school in the Commonwealth during the two semesters immediately preceding the semester or term for which the student initially applies for a savings account, and (iv) who is the victim of harassment, hazing, bullying, kidnapping, robbery, sexual offenses, assault, battery, threat, or intimidation on school property, as reported by such child to the school principal and substantiated and reported by the school principal in accordance with guidelines established by the Department pursuant to subdivision B 1 of § 22.1-222.2.
"Quarter" means one-fourth of the fiscal year. "Quarter" includes July 1 through September 30, October 1 through December 31, January 1 through March 31, and April 1 through June 30.
"Quarterly" means once every quarter.
"Resident school division" means the school division in which a qualified student resides.
"Retained savings" means an amount that is equivalent to 10 percent of all applicable Standards of Quality per pupil state funds appropriated for public school purposes and apportioned to the school division in which a qualified student resides, including the per pupil share of state sales tax funding in basic aid and any state per pupil share of special education funding for which the qualified student is eligible.
"Scholarship foundation" has the same meaning provided in § 58.1-439.25.
§ 22.1-222.2. Child Safety Savings Accounts established; application; agreement; disbursement.
A. Child Safety Savings Accounts are established to provide the parent of a qualified student with options for the education of his child, consistent with § 1-240.1.
6. Adopt policies, processes, and procedures for the administration of savings accounts, as set forth in subsection A of § 22.1-222.3.
8. Submit to audits of the savings account.
D. The resident school division shall give written notice to any parent applying for or requesting renewal of a savings account as to the disposition of the application or renewal request no later than 14 days immediately succeeding such application or renewal request. The resident school division may send the parent a written notice requesting any additional information that is necessary to determine the final disposition of the application or renewal request. Such parent shall submit the requested information to the resident school division no later than 30 calendar days immediately succeeding such request for additional information. If the requested information is not received within such time, the resident school division may deny the application or renewal request. In the event that the resident school division denies any application or renewal request, the parent may appeal such denial no later than 30 calendar days immediately succeeding receipt of the notice of denial to the school board in the resident school division, and such school board shall hear and take action on such appeal no later than 30 calendar days immediately succeeding the receipt of the notice of appeal. In the event that the school board denies any such application or renewal request on appeal, the parent may appeal such denial no later than 30 calendar days immediately succeeding receipt of the notice of denial to an independent hearing officer chosen from the list maintained by the Executive Secretary of the Supreme Court. The costs of an appeal before an independent hearing officer shall be apportioned among the parties by the hearing officer in a manner consistent with his findings. If the parent prevails in an appeal before the independent hearing officer, the application or renewal request shall immediately be approved, effective on the date on which it was first submitted.
E. No later than 14 calendar days immediately succeeding the approval of an application or renewal request or submission of a quarterly expense summary, the resident school division shall make warrant for and disburse on a quarterly basis (i) to the appropriate savings account state funds in an amount that is equivalent to one quarter of 90 percent of all applicable annual Standards of Quality per pupil state funds appropriated for public school purposes and apportioned to the resident school division in which the qualified student resides, including the per pupil share of state sales tax funding in basic aid and any state per pupil share of special education funding to which the qualified student is eligible, and (ii) to the Department retained savings. No resident school division shall transfer federal funds, the local share of Standards of Quality per pupil funds, or any portion of such local share to a savings account.
F. The Department shall disburse retained savings for the following purposes and in the following order: (i) establishing policies, processes, and procedures for managing and administering savings accounts; (ii) managing and administering savings accounts, including Department expenditures and third-party expenditures to qualified financial institutions, auditors as specified in subsection C of § 22.1-222.3, and other organizations; and (iii) other public elementary and secondary school purposes for which the Department is authorized to disburse funds.
G. Each qualified student whose parent has applied for and received a savings account shall be counted in the March 31 average daily membership or fall membership of the resident school division as a full-time equivalent student and shall be identified as such for the purpose of the calculation of the state share to be transferred to the savings account and, as applicable, to the Department as retained savings. No such qualified student shall be counted in the resident school division's required effort to meet actual need for required matching local funds as prescribed by the Standards of Quality. Each such qualified student shall be counted in the resident school division's required effort to meet actual need for required matching local funds for any other initiative supported by the Commonwealth that requires matching local funds.
H. The Department shall determine the Standards of Quality per pupil state funds for a qualified student and retained savings based on the current general appropriation act.
I. No later than November 1 of each year, each division superintendent shall certify and report to the Superintendent of Public Instruction the number of students in the school division whose parents have received a savings account and the amount of funds transferred to each such savings account and retained savings. No later than December 15 of each year, the Superintendent of Public Instruction shall report to the Governor and the Chairmen of the House Committee on Appropriations and Senate Committee on Finance the name of each school division in which the parent of a qualified student has received a savings account, the number of qualified students whose parents have received a savings account, and the total Standards of Quality state funding transferred to savings accounts and retained savings.
J. Any entity that receives moneys from a savings account shall refund, rebate, or otherwise remit any such moneys when such refund, rebate, or remission is required pursuant to policies and procedures established by the Department pursuant to subsection A of § 22.1-222.3, but no such entity shall refund, rebate, or otherwise remit any such moneys to a parent or qualified student.
K. Upon a qualified student's graduation from high school, receipt of a high school equivalency certification, acceptance into an institution of higher education for full-time enrollment, or reaching the age of 22, whichever occurs first, his savings account shall be closed and any funds remaining in the savings account shall be returned to the Commonwealth.
L. Moneys in a savings account received by a parent pursuant to this article do not constitute state taxable income to the parent.
§ 22.1-222.3. Policies and procedures; audit; fraud.
A. The Department shall establish policies, processes, and procedures for application, quarterly expense summary administration, renewal, and appeal pursuant to § 22.1-222.2. To the extent practicable, such policies, processes, and procedures shall take advantage of existing Department and resident school division policies, processes, and procedures and third-party automated solutions to minimize cost and improve effectiveness. Each resident school division shall comply with such policies and procedures and may establish additional local policies and procedures for the implementation of the Department's policies and procedures.
B. The Department shall establish a fraud reporting hotline for the purpose of parental compliance with subdivisions C 4 and 5 of § 22.1-222.2.
C. The Auditor of Public Accounts shall include in the specifications published pursuant to § 15.2-2511 for audits of all localities that contain a local school division a requirement that the independent certified public accountant who conducts the audit of the locality include in such audit tests of compliance with subdivisions C 4 and 5 of § 22.1-222.2. Any such adjustment to such specifications is exempt from the Administrative Process Act (§ 2.2-4000 et seq.).
D. Upon finding that a parent made a knowing misrepresentation relating to any education-related expense from a savings account for a qualified student set forth in subdivision C 5 of § 22.1-222.2 or otherwise materially breached the written savings account agreement, the resident school division may rescind the written agreement, reclaim the remaining moneys in the savings account, and declare such parent ineligible for renewal of the written savings account agreement. The parent may appeal such decision as provided in subsection D of § 22.1-222.2.
E. The resident school division may refer to the appropriate state agency for investigation any incident in which it finds evidence of fraudulent use of moneys in a savings account by a parent.
F. If any education-related expense from a savings account for a qualified student is determined to be invalid, the resident school division shall direct the qualified financial institution to withhold subsequent disbursements until the parent reimburses the expense that was determined to be invalid.
§ 22.1-222.4. Savings account administration.
The Department shall contract through scholarship foundations or with one or more qualified financial institutions to establish and require such scholarship foundations or qualified financial institutions to manage savings accounts that comply with the provisions of this article. Department-approved costs associated with the ongoing administration of the savings account and compliance with this article are allowable account fees that may be passed to the savings account holder.
§ 22.1-222.5. Scope of article.
A. Nothing in this article shall be construed to permit any agency of the Commonwealth to exercise control or supervision over any private school or program of home instruction.
B. No qualified school that receives moneys from a savings account pursuant to this article shall be considered an agent of the state or federal government.
C. No qualified school shall be required to alter its creed, practices, admissions policies, or curriculum in order to receive moneys from a savings account pursuant to this article.
D. In any legal proceeding challenging the application of this article to a qualified school, the Commonwealth bears the burden of establishing that the law is necessary and does not impose any undue burden on the qualified school.
E. If any education-related expense from a savings account for a qualified student set forth in subdivision C 5 of § 22.1-222.2 is held to be invalid, such holding shall not affect the validity of any other education-related expense of a qualified student set forth in such subdivision.
F. Nothing in this article shall be deemed to prohibit a parent or qualified student from making expenditures for the education-related expenses set forth in subdivision C 5 of § 22.1-222.2 from a source other than a savings account.
For a plain English description of this bill, comments, voting, tagging, etc., return to the main page for HB2568.


The applicants were two Finnish companies. Since 1994 they had collected data from the Finnish tax authorities for publication in list form in a Finnish newspaper. This data comprised the names of individuals and the amount of their taxable income and assets (“taxation data”). In 2003 the first applicant also began to transfer the taxation data to the second applicant to enable the latter, in conjunction with a mobile phone operator, to provide access to individuals’ taxation data by text message. Under Finnish law, this data was a matter of public record and, subject to certain conditions, the public and journalists were permitted to access it.
Following domestic proceedings, in 2009 the Finnish Data Protection Board (“DPB”) prohibited the applicants’ processing of the taxation data in this way. The applicants attempted unsuccessfully to appeal this decision before the Finnish courts. On the applicants’ application to the ECtHR, the Fourth Section held that the DPB’s decision did not constitute a violation of their Art.10 right to freedom of expression.
The Grand Chamber (“GC”) agreed by a majority of 15-2 that there had been no violation of Art.10.
Engagement of Article 8: The GC reiterated that the broad protection afforded by Art.8 was capable of extending to information already in the public domain, and to processing or publication of data on an individual “in a manner or degree beyond that normally foreseeable”: -. It concluded that the taxation data collected, processed and published by the applicants “clearly concerned the private life of those individuals” notwithstanding that it was accessible to the public: .
Interference “prescribed by law”: The GC further held that although the DPB’s decision was an interference with the applicants’ Art.10 rights, it was one “prescribed by law”: -. In particular, it held that as the applicants were media professionals, they should have been aware that the “mass collection of data and its wholesale dissemination” might not be considered processing “solely” for journalistic purposes under the relevant domestic and EU law: .
Interference had legitimate aim: The GC rejected the applicants’ argument that there was no legitimate aim for the interference in the present case, as any threat to privacy by their actions was abstract and hypothetical. It noted that there had in fact been privacy complaints from individuals whose taxation data had been published, and held that it was arguable that “all Finnish taxpayers were affected, directly or indirectly” by the applicants’ actions: .
Interference “necessary in a democratic society”: In holding that the interference was necessary, the GC relied on established criteria for balancing the competing Art.8 and 10 rights (though noting that some would have more or less relevance in the particular circumstances of the case): -.
The GC acknowledged that it was “unquestionable” that permitting public access to taxation data (such access having a constitutional basis in Finnish law) was designed to enable such debate: . However, the GC was not persuaded that publication of the raw taxation data by the applicants contributed to such a debate: -.
The GC noted that of the 1.2 million individuals listed by the applicants, only very few were individuals with a high net income, public figures or well-known personalities: . Even assuming, as the applicants had argued, that the relative anonymity of the individuals due to the volume of taxation data published reduced the interference with their Art.8 rights, that data was personal in nature and was accessed by the applicants for a purpose other than that for which it was provided to the tax authorities: .
The GC noted that, whilst the taxation data had been obtained legally, the applicants had circumvented the normal channels for obtaining it: .
The GC held that the fact that the data were accessible to the public (subject to conditions) did not mean that they could be published to an unlimited extent, and that the publication in this case rendered it accessible in a manner and to an extent not intended by the legislator: .
The GC noted that the applicants weren’t prohibited from publishing the taxation data at all, but had to do so in a manner consistent with domestic and EU law: .
The GC therefore concluded that the domestic courts had struck the right balance between the competing rights: .


Imagine going to get a massage and leaving with an injury that forever altered your life. After such an injury, it is difficult to put a dollar value on these injuries. The following lawsuit discusses the types of damages that can be sought by a Plaintiff who believes that they have been injured by a massage gone wrong.
In October 2007, Maureen Jones received a Swedish massage from Larry Ashton, Jr., a massage therapist employed by Paris Parker Salon in Baton Rouge, Louisiana. Jones reports that the massage therapist was “rough and aggressive” during the massage, causing her pain and discomfort. By the next day, she experienced sharp and burning pain. She sought medical attention and discovered she had ruptured a disc.
In October 2008, Jones sued Neill Corporation, who was doing business as Paris Parker Salons, Ashton, and ABC Insurance Company. She alleged that Ashton negligently performed the massage and he breached the reasonable standard of care, causing serious, permanent, and disabling injuries. The trial court found in favor of Jones and founding that Ashton breached the applicable standard of care. The trial court awarded damages consisting of pain and suffering, mental anguish and distress, loss of enjoyment of life, permanent disability, past lost wages, and past medical expenses.
This is a continuation of a previous post on the “DE Property,” an enclosed estate in St. Martin Parish.
Where there is an enclosed estate, which is a property that cannot get to a public road, Louisiana law allows the owner of the estate to force an adjoining property owner to allow them to cross their property. La. C.C. art. 689. That passage usually has to be taken in the shortest manner across the other person’s property. La. C.C. art. 692. Once a trial court determines the choice of route that should be granted, any review by an appellate court is a manifest error standard. May v. Miller, 941 So.2d 661 (La. Ct. App. 2006).
A consent judgment is a functional contract between two parties that puts an end to a lawsuit. Plaquemines Par. Gov’t v. Getty Oil Co., 673 So.2d 1002 (La. 1996). Because it is a contract, a consent judgment has no effect on a third party unless otherwise provided by law. La. C.C. art. 1985. Louisiana public policy encourages settlements, including by consent judgments. Domingue v. Luke Fruge, Inc., 379 So.2d 490 (La. Ct. App. 1979). Louisiana law also recognizes that a consent judgment may not be attacked through an appeal of a collateral judgment, as an appeal is inappropriate for relief from a consent judgment. Lee v. Marksville Ford L/M, Inc., 741 So.2d 122 (La. Ct. App. 1999). A consent judgment can only be attacked collaterally for the reasons listed in La. C.C.P. art. 2002.
Entrusting a child to the care of a school bus requires a certain amount of faith that they will arrive at the correct destination, safely. For any parent or guardian this evokes a certain amount of anxiety. For a parent with a special needs child, this act of faith likely garners even greater angst. Unfortunately, one Lafourche Parish parent’s fears materialized when her special needs son was struck by a car at his bus stop one afternoon. Whether the Lafourche Parish School Board (“LPSB”) could be held responsible became an issue for a jury in this recent lawsuit.
Thibodaux High School student Diamonte Bolden was hit by a car after exiting his school bus one afternoon in December of 2012. Although only in ninth grade, Diamonte was seventeen years old at the time of the accident. He was in the special education program and contended with a variety of learning disabilities including language delays. Diamonte’s bus stop was at an intersection located about half a mile from his home. The availability of sidewalks or other safe walking space along the walking route from bus stop to house was in dispute. Diamonte’s mother filed a lawsuit against LPSB, the driver of the car, and various others. At issue in the lawsuit against LPSB specifically was whether LPSB could be held liable for failing to reasonably supervise a student in light of the bus stop location and whether the accident was foreseeable.
Louisiana law provides that a school board owes a duty of reasonable supervision over its students. See Wallmuth v. Rapides Parish School Bd., 813 So.2d 341, 346 (La. 2002). Liability for inadequate supervision requires a finding of negligence plus a connection between the negligence of the school board and the damages suffered by the student. The Louisiana Board of Elementary and Secondary Education has the authority to promulgate regulations relating to the operation of school buses pursuant to La. R.S.17:164.
Families. While often a source of love and comfort, families can at times be the source of much conflict. Sometimes the death of a parent turns siblings against one another rather than binding them together. Greed can cause people to fight over insignificant or even imaginary problems. Such was the case for a large Allen Parish sibling group when they engaged in a legal battle over cows following the death of their mother. A battle that the Louisiana Third Circuit Court of Appeal refused to engage in.
The Martin family of Allen Parish, composed of six siblings, owned a plot of land indivision with one another (basically, each person owns the property equally). Sister Sheila grazed cattle on the land. The cows might have belonged to the siblings’ mother before she passed however Sheila claimed the cows were solely her property. There was no proof of ownership either way. The family troubles began when sister Linda and her husband Carlos moved onto the property. Sisters Sheila and Amy alleged Linda and Carlos would purposefully leave gates open so the cattle could escape. In one unfortunate instance, a cow and the three baby calves she was pregnant died after allegedly escaping the pen due to Carlos’ activities. Sheila and Amy also claimed that Carlos stole several gates, purposefully left harmful food out for the cows, and blocked with his car portions of the property.
Sheila and Amy filed a lawsuit in the Judicial District Court for the Parish of Allen claiming damages for the lost cow and eventually sought to hold defendants in contempt of court for failure to move his car from the land. The District Court denied the claim for damages and contempt but ordered the return of the stolen gates. An appeal was filed to the Louisiana Third Circuit Court of Appeal.