WV Mountaineer Series CLE: FAMILY LAW 2016

SEPTEMBER 9-10, 2016
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Early Bird Registration: $325
10.8 WV MCLE credits, including 2.4 Ethics/L.O.M credits


Friday,  September 9,  2016

  • 10:00 a.m.-10:50 a.m.:  Family Law Update – Brittany Ranson Stonestreet, Esq.
  • 10:50 a.m.-11:40 a.m.: Parenting when there are Substance Abuse Issues –  Family Court Judge David Camilletti,  Amy Lanham, Esq.  
  • 11:40 a.m. -12:30 p.m.:  When family law and immigration law intersect – Paul Saluja,  Esq.
  • 12:30 p.m.- 1:30 p.m.: LUNCH (on your own) &  W.Va. State Bar Family Law Committee Meeting
  • 1:30 p.m.-2:20 p.m.: Appellate Tips for family lawyers in Circuit Court and W.Va. Supreme Court of Appeals Eydie Nash Gieser,  Esq.  (Deputy Clerk of W.Va. Supreme Court of Appeals) 
  • 2:20 p.m.-3:30 p.m.: Technology & Marketing Tips for Small Family Law Firms –  Chris Pritt, Esq.
  • 3:30 p.m. -3:40 p.m.:    BREAK 
  • 3:40 p.m. -4:10 p.m.:    Family Law Issues on the Horizon –   WVU College of Law Prof.  Kendra Freshee
  • 4:10 p.m. -5:10 p.m.:  Investment Strategies and Financial Planning after the Divorce –  DHG Wealth Advisors Thornton Clay,   Financial Advisor, Accredited Asset Management Specialist and Accredited Investment Fidiciary  (AAMS, AIF) and Dollie Halford – Certified Financial Planner and Certified Divorce Financial Analyst,   (CFP,  CDFA)

RECEPTION following conference sponsored by Dixon Hughes Goodman Hughes Wealth

Saturday,  September 10,  2016

  • 9:00 a.m.-10:30 a.m.: Effectively Presenting your Family Law case Randall Kessler,  Esq. Atlanta GA, Former American Bar Association Family Law Section Chair
  • 10:30 a.m. -11:20a.m.:  How to present a Champagne case on a beer budget   –   James W. Douglas,  Esq.
  • 11:20 a.m.- 12:00 p.m.: Must know Social Security Info in Divorce Cases –  Andy Nason, Esq.  

2:00 p.m.  – WVU GAME TIME! 

WVU v. Youngstown! *tickets available

Strategies for an Efficient Law Practice in 2014

1. Strategic Scheduling:
Structure your calendar so you have focused time for everything you need to do each day, week and month. For instance, use one day to schedule in office meetings and another for out-of-office meetings. Block off prep and drafting time on your calendar. If you travel outside your home county, try to schedule multiple hearings on the same day to consolidate travel time.
Don’t forget to schedule time for yourself and your family. This could include making a goal to leave the office by a certain time each night or refusing to check work email in the evenings or on weekends.
***If you’re delegating scheduling to staff (see #2) inform them of your strategic scheduling plan so that everything will be done consistently (see #3).
2. Delegate! 
There are likely many tasks that can be delegated to your staff.  You may need to provide final approval, but others in your firm can help with drafting correspondence and pleadings, etc., following up on the status of matters, and scheduling, among other tasks.
3. Do everything consistently!
Too often the tasks that support the growth of your law practice slip to the bottom of the to do list as “urgent” client tasks rise to the top.  Find a way to create consistency in everything you do, including communicating with clients, intake of information and documents, etc. Creating checklists for yourself and staff in response to various events can build consistency and will encourage delegation of tasks so that nothing slips through the cracks.
Source:  LawMarketing

Click here to view the January 2014 Family Times Newsletter

WVSC Opinion: Andrea H v. Jason R.C. (Filed 6/5/13)

Read Opinion Here: http://www.courtswv.gov/supreme-court/docs/spring2013/12-0435.pdf

Attorney-Client Privilege and the Workplace Email

Communicating with a client via email can be very useful.  It enables the fast and documented transmission of updates or matters in the case. For the family lawyer, it can be helpful for quickly resolving  time sensitive issues that arise between the parties, often in the form of a custody dispute.  Electronic documents can be sent back and forth between client and attorney with comments and changes.  The examples are endless.

However, often times the email address a client provides an attorney with is the email address provided by the client’s employer. The major issue is will a client lose attorney-client privilege if the client communicates with the attorney using an e-mail address provided by their employer. Many employers have the ability to view these e-mails whether the employee is aware of it or not.

The following articles provide insightful analysis on the issue of attorney-client privilege in the workplace:

1. Email and Attorney Client Privilege: Cautionary Tales for Employer and EmployeeBy Clare Pastore, Professor of the Practice of Law, USC Gould School of Law. 

2. Sorting Out Attorney-Client Privilege with workplace emails, By Wayne Moskowitz.

3.  The State of the Attorney-Client privilege in the workplace, By Victoria Taylor, Bingham McCutchem. Published by the American Bar Association.

WV Supreme Court justice challenges name change laws in dissent

By: Kate White, via West Virginia Gazette

CHARLESTON, W.Va. — West Virginia law governing name changes is outdated and reflects sexist attitudes, according to a state Supreme Court justice.

In a dissenting opinion filed May 21, Justice Margaret Workman outlined her views and took her colleagues to task for relying on outdated traditional values and Anglo-American customs.

The court’s majority opinion reversed a ruling by Monongalia Circuit Judge Phillip Gaujot, granting a petition allowing a woman to hyphenate her daughter’s surname.

Relying on cases dating back to 1977, the court overturned the case saying the woman failed to provide clear and convincing evidence the change would benefit her daughter.

“… the name of a minor child cannot be changed from that of the father unless … by clear, cogent and convincing evidence it is shown that such change will significantly advance the best interests of the child,” the court wrote reaffirming the 1977 decision.

Workman challenges that rule, pointing out that the requirement of clear and convincing evidence is rarely applied to cases where constitutional or property rights aren’t involved.

Citing cases from other states, Workman wrote, “our precedents are outmoded and completely unmoored from what should be the focus in these cases: the best interests of the child, taking into account the realities of the child’s living circumstances.”

Read the rest of the article herehttp://www.wvgazette.com/News/201306010018?page=1

WVSC Opinion: T.H. v. D.K. and R.R. (filed 6/12/2012)

FactsRespondents (D.K. and R.R.) are the respective fathers of three minor children. Petitioner (T.H.) is the children’s mother. Upon her divorces from Respondents in 2004 and 2006, Petitioner received primary custody of the minor children.  Between May 2008 and September 2009, three relevant incidents occurred. The Circuit Court summarized these events as follows: First, the Petitioner’s misuse of prescription medication (Ambien) resulted in a 12 year old driving on a public road while the Petitioner was in the passenger seat.  Second, the Petitioner deliberately took medication that she was no longer prescribed at the highest level recommended for her step up program even though she was aware of the side effects.  Third, the Petitioner admitted to taking one of the children out of town so that the Respondent could not see the child. She further admitted that she had not taken her medication that day and that she deliberately disposed of medication in attempt to deceive anyone who would assert a custody action against her.  The Respondents sought a modification of custody. 

Procedural: The Family Court found that there was no substantial change of circumstances and decided not to remove the children from Petitioner’s custody.  The Family Court relied heavily on testimony of Petitioner’s doctor who stated that she was no danger to her children and that she was capable of caring for them.  The Circuit Court reversed and awarded custody of children to the Respondents based on its finding that the establishment of Petitioner’s poor judgment which placed the child in danger, viewed in light of the later questionable incidents constitutes a substantial change of circumstances.  The Court further found that the Family Court relied too heavily on the testimony of the Doctor because it was shown that the information was primarily based on self-report from Petitioner and her family and that the doctor was not aware of the entirety of Petitioner’s actions.

 Holding: The W.Va. Supreme Court AFFIRMED the Circuit Court and adopted its reasoning.

Read the Opinion Here: http://www.courtswv.gov/supreme-court/docs/spring2012/11-0110.pdf
Read Dissenting Opinion of Justice Ketchum here:  http://www.courtswv.gov/supreme-court/docs/spring2012/11-0110d.pdf (dissent based on finding that Circuit Court substituted its own judgment for that of the Family Court)

WVSC Opinion: Melinda H. v. William R.II. (filed 4/19/2013)

Facts:   Mother and Father were divorced in 2002. They had two children. Father agreed to pay $700 per month in child support in the Final Divorce Order, though Father voluntarily began paying $850 in 2006.  Father worked as a production specialist with Momentive Performance Materials for over 17 years during which time he earned an MBA.   Father’s Momentive paystub from August 2010 reflected a current monthly gross income of $6,919.48.

Father quit his job at Momentive to work part-time at his fiance’s family business, Marble King, earning $10/hour.  Father’s uncorroborated testimony was that working at Momentive was too stressful and was causing sleeping disorders, loss of appetite, racing thoughts and depression.  Father further testified that he may be able to run Marble King one day.

Father filed a Petition for Modification of Child Support on August 5, 2010 because the eldest child was emancipated and due to his change in employment income.

Procedural:  Family Court attributed income to Father for child support purposes in the amount of $10 per hour at a 40 hour work week.  Child Support was reduced to $332 per month.  Mother appealed. The Circuit Court refused the appeal.

Holding: (Chief J. Benjamin) Reversed. Father should have been attributed income based on prior employment as he met the 3-part statutory test and did not satisfy any exception.  Furthermore, the fact alone that a parent who is the full-time caretaker for a minor child is or is not attributed income based on full time federal minimum wage does not  make attribution of income to the other parent based on prior earnings inequitable.

Reasoning: Family Court failed to analyze statutory 3-part test for attribution of income as set forth Porter v. Bego.  As analyzed under the facts of this case: (1) Father voluntarily left his job at Momentive to be underemployed at Marble King; (2) Father is available for full time work for which he is fitted by prior training and experience; (3) a reasonable father whose ex-wife is a full time caretaker for the parties’ children would not have left his well-paying job at Momentive to take a $10/hour job working only 20 hours per week.

Father does not meet any of the 4 exceptions to attribution of income under WV Code 48-1-205(c).
1. Economic Self-Improvement Exception: Father’s plan will not result, in a reasonable time,  in an economic benefit to his child (who will turn 18 in October 2013).  While may be plans to turn business over to Father’s fiance one day, testimony was that it would not be now or in the foreseeable future.
2. Medical Exception: Father’s uncorroborated testimony regarding his health was insufficient to meet the medical exception.
3.  Inequitable Exception: It is not inequitable to attribute Father income based on prior earnings just because caretaker exception may apply to Mother. (See Holding above).

Relevant Statutes/Caselaw:
WV Code 48-1-205 (attribution of income statute)
Porter v. Bego, 200 W.Va. 168 (1997)(3 part test for determining whether to attribute income).
Johnson v. Johnson, 200 W.Va. 28 (1997)(standard for determining whether parent’s endeavor falls under plan of economic self-improvement exception to attribution of income)
WV DHHR v. Gibson, 207 W.Va. 594 (2000)(Attribution of income to parent who is a full-time caregiver for minor child).

Read full opinion herehttp://www.courtswv.gov/supreme-court/docs/spring2013/11-1270.pdf

WVSC Opinion: In re Grandparent Visitation of A.P. (filed 5/20/2013)

Facts:  Child was born in May 2009. Mother and Child resided in the same home as the child’s maternal Grandparent for the first 2.5 months of child’s life.  During that time, Grandparent provided “extensive care.”  Mother was a school teacher and did provide care for the child over summer break when she was not working.  Mother and Child moved out in July 2009, however, Grandparent continued to have several visits per week and multiple overnights until December 2009.  Mother and Grandparent disagreed over Mother’s significant other and Grandparent had made disparaging comments in the presence of the child.  Visitation gradually decreased thereafter as Mother and Grandparent’s relationship deteriorated, and Mother ultimately prohibited visitation in April 2010. Grandparent filed Petition for Grandparent’s Visitation in June 2010. Father resides in Florida and has no court-ordered visitation.

Procedural: Final Order of the Hancock County Family Court awarded maternal Grandparent visitation once a month for 5 hours and a period of time on Easter weekend, few hours day before Thanksgiving, 4 hours every Dec. 23, and 3 hours near child’s birthday.  Mother appealed.
The Circuit Court Affirmed.

Holding:   West Virginia Supreme Court Reversed and Remanded with directions to deny grandparent visitation.

Applicable Statutes/Case law:
WV Code 48-10-501  (Court shall grant reasonable visitation if in child’s best interest and will not substantially interfere with parent-child relationship)
WV Code 48-10-502 (Factors to consider in awarding grandparent visitation)
WV Code 48-10-702(b) (Rebuttable presumption that a grandparent filing a petition where no other custody-related action is pending is not entitled to visitation where the parent through whom the grandparent is related has custody of the child.)
Troxel v. Granville, 530 U.S. 57 (2000)(significant weight to be given to fit parent’s wishes with regard to grandparent visitation)

Reasoning:   In reconciling competing interests, significant weight must be accorded to fit parent’s wishes.  Mother’s status as a “fit parent” is uncontested. Mother testified extensively about Grandparent’s negativity and adverse impact it will have on Child.  There is a presumption that a fit parent acts in best interests of the child. See Troxel.  Evidence that Grandparent maintained substantial relationship with the child until she was 11 months old did not overcome presumption against visitation by clear and convincing evidence in this case.

Click here to read full opinion: http://www.courtswv.gov/supreme-court/memo-decisions/spring2013/11-1668memo.pdf

2013 WV Legislature Regular Session

Legislation Pending in Committee as of 2/13/13

  • SB 26: Requiring health insurance coverage for hearing aids under certain circumstances(pending, senate banking and insurance committee, as of 2/13/13)
  • SB 28: Relating to minors obtaining tattoos. (pending, senate health and human resources committee, as of 2/13/13)
  • SB 66: Eliminating requirement that school input data into WVEIS. (pending, senate education committee, as of 2/13/13)
  • SB 73: Establishing criminal penalties for custodian’s failure to report missing child. (pending, senate judiciary committee, as of 2/13/13)
  • SB 77: Relating to wills and descent and distribution upon legal separation (pending, senate judiciary committee, as of 2/13/13)
  • SB 78: Excepting income or earnings from equitable distribution asset in determining spousal support (pending, senate judiciary committee, as of 2/13/13)
  • SB 93: Relating to parental notification of abortion on minor. (pending, senate judiciary committee, as of 2/13/13)
  • SB 105: Waiving adoption filing fees in certain cases (pending, senate judiciary committee, as of 2/13/13)
  • SB 121: Creating Fund for Civil Legal Services for Low-Income Persons (pending, senate judiciary committee, as of 2/13/13)
  • HB 2020: Relating to conditions of bond for defendants in cases of crimes between family or household members (pending, house judiciary committee, as of 2/13/13)
  • HB 2026: Relating to requirements for self-employed persons to participate in the Bureau for Child Support Enforcement’s PayConnextion program. (pending, house judiciary committee, as of 2/13/13)
  • HB 2071: Relating to procedures for writs of execution, suggestions and suggestee executions relating to child support and spousal support, and increasing the statute of limitations (pending, House Judiciary Committee, as of 2/13/13)
  • HB 2089: Uniform Premarital Agreement Act (pending, house judiciary committee, as of 2/13/13)
  • HB 2110: Providing the visitation to a grandparents shall consist of a minimum of one visit a month (pending, house judiciary committee, as of 2/13/13)
  • HB 2146: Relating to conduct and circumstances of child abuse (pending, house judiciary committee, as of 2/13/13)
  • HB 2167: Creating the misdemeanor offense for child neglect resulting in a substantial risk of bodily injury (pending, house judiciary committee, as of 2/13/13).
  • HB 2195: Providing for the seizure of assets and other real property used for the exploitation of children. (pending, house judiciary committee, as of 2/13/13)
  • HB 2197: Clarifying that a child who is physically health and presumed safe is a neglected child if the child is habitually absent from school. (pending, house education committee, as of 2/13/13)
  • HB 2201: Relating to child abuse and neglect (pending, house judiciary committee, as of 2/13/13)
  • HB 2220: Prohibiting sex offenders from residing in certain areas and subjecting convicted sex offenders to global positioning system monitoring (pending, house judiciary committee, as of 2/13/13).
  • HB 2245: Requiring the use of helmets by skateboarders (pending, house judiciary committee, as of 2/13/13).
  • HB 2251: Providing for the payment of unemployment compensation when a person misses work due to domestic violence (pending, house judiciary committee, as of 2/13/13)
  • HB 2270: Increasing the effective period for domestic violence protective orders (pending, house judiciary committee, as of 2/13/13)
  • HB 2293: Reducing from six months to three months the period of delinquency for failure to meet an obligation to pay support to a minor. (pending, house judiciary committee, as of 2/13/13)
  • HB 2296: Establishing a bill of rights for children in foster care. (pending, house judiciary committee, as of 2/13/13)
  • HB 2297: Establishing a bill of rights for foster parents. (pending, house judiciary committee, as of 2/13/13)
  • HB 2298: Providing guidance for prosecuting attorneys in cases involving abuse and neglected children (pending, house judiciary committee, as of 2/13/13). 
  • HB 2299: Requiring certain insurance companies to participate in information data matches with the Bureau of Child Support Enforcement. (pending, house judiciary committee, as of 2/13/13)
  • HB 2300: regulating the use of the internet by children (pending, house judiciary committee, as of 2/13/13).
  • HB 2305: BPA-Free Kids Act (pending, house health and human resources committee, as of 2/13/13).
  • HB 2314: Authorizing a family court judge to order a child to be taken into custody in emergency situations(pending, house judiciary committee, as of 2/13/13).
  • HB 2324: Increasing the minimum prison sentence for a parent, guardian, or custodian who abuses a child. (pending, house judiciary committee, as of 2/13/13)
  • HB 2338: Requiring a convicted sex offender who volunteers for an organization whose volunteers have contact with minors to inform that organization of his/her conviction. (pending, house judiciary committee, as of 2/13/13)
  • HB 2349: Increasing the number of child protective service workers (pending, house health and human resources committee, as of 2/13/13).
  • HB 2400: Relating to disclosure of sex offender registration to private elementary and secondary schools, and to higher education institutions (pending, house education committee, as of 2/13/13).
  • HB 2409: Relating to child welfare (pending, house judiciary committee, as of 2/13/13)
  • HB 2424: Relating to automatic revocation of a will upon legal separation and excluding from the definition of “surviving spouse.” (pending, house judiciary committee, as of 2/13/13)

WVSC Opinion: Mayle v. Mayle (Filed June 8, 2012)

Facts:    Parties were married in 1984.  Both parties originally worked and earned close to the same amount.  The parties agreed that Husband would go to medical school.   While Husband was in medical school, Wife worked outside the home.  Once Husband completed his formal medical education, the parties agreed that Wife would become a full-time homemaker and caretaker for their 3 children.  When the parties separated in 2007, Wife was unemployed and Husband’s income was over $300,000 per year.

Family Court Order:

  • Spousal Support: Wife awarded rehabilitative alimony of $1,500/month for 6 months and permanent spousal support of $5,500/ month for 10 years, after which the amount would be reduced to $1,500.    Family Court’s basis for the reduction was that Wife app ears in good health, very smart and organized, reasonable well-educated with a good head for business per her training and prior work experience. Even though no evidence was presented the Family Court also found that Wife may assume a greater role in her family’s business.
  • Attorney’s Fees: Wife requested reimbursement of attorney fees in the amount $20,000, with an additional $2,000 incurred in costs.  Wife’s attorney charged a flat fee of $20,000, without regard to the actual number of hours worked or an hourly charge.The Family Court denied Wife’s request for attorney fees and costs because Wife had sufficient assets awarded to her to pay her own fees, neither party had acted in bad faith during the proceedings, and her fees were significantly greater than those incurred by Husband.

Wife appealed.

Circuit Court affirmed the decision of the family court.

Issue #1: Amount of Support Awarded. Family Court erred  in award of Rehabilitative Spousal Support and grant of permanent support of $5,500.

Affirmed. Supreme Court found no abuse of discretion in award of rehabilitative spousal support and the grant of permanent spousal support in the amount of $5,500.

Issue #2: Reduction in Spousal Support. Family Court erred in reducing the amount of support to $1,500 after 10 years.

Reversed. The reduction was based on speculative events that may or may not happen.  It was error for Family Court to issue a preemptive modification without sufficient evidence to support the reduction. (Editor’s Note: Court points out that there may be case where reduction is appropriate, but in this case, there was no evidence).

Issue #3: Attorney’s Fees. Family Court erred in denying Wife’s request for reimbursement of attorney fees and costs in the amount $20,000, with an additional $2,000 incurred in costs.  Wife’s attorney charged a flat fee of $20,000, without regard to the actual number of hours worked or an hourly charge.
Reversed.  Abuse of discretion not to award some measure of fees.    This case turns on the disparity between the income of the Wife (unemployed) and the income of the Husband ($300,000+). Wife lacked actual cash assets to pay attorney fees while Husband had present ability to contribute.
The lower court was instructed to appropriately analyze the factors enumerated by the Court in Banker.

   Read the Opinion Here: http://www.courtswv.gov/supreme-court/docs/spring2012/11-0344.pdf 

Read Concurring Opinion of Justice Workman here:  http://www.courtswv.gov/supreme-court/docs/spring2012/11-0344c.pdf