One of my favorite blogs is Law and the Multiverse. The blog’s premise is to take fictional situations from movies, comic books, and televisions shows and discuss the legal ramifications by applying relevant law. Have you ever wondered whether mutants are a protected class? They have the answer. Want to know whether superheroes have a duty to rescue? Check here. Ever thought they just got the law wrong in Snakes on a Plane? You were right.  

I must have had this blog on the brain while watching Fox’s comedy Raising Hope. The show ended its second season with a courtroom custody drama titled “I want my baby back, baby back, baby back.” Jimmy Chance, two year old Hope’s father, is engaged in a custody battle with Hope’s mother Lucy Carlisle, a boyfriend-murdering serial killer who survived execution. The show is very funny, and clearly this episode was going for laughs and not realism. But that didn’t stop me from rolling my eyes or yelling “come on” at some of the absurdly unrealistic depictions of family law. So I thought that I would play Katniss and Peeta’s “real or not real” game Law and the Multiverse style.

Suppressing Evidence

First up, at the start of the trial, the mother’s attorney stands and makes an oral “Motion to Suppress Evidence of My Client as a Serial Killer.” She argues that the mother’s serial killer background should be suppressed because the charges were dismissed as part of a settlement deal from Lucy’s lawsuit against the prison, and therefore technically never happened. Assuming Lucy’s attorney is making the argument based on Rule of Evidence 403, which allows the exclusion of relevant evidence if the probative value is outweighed by the prejudicial nature of the evidence. Of course the fact that Lucy is a serial killer is prejudicial to Lucy, but it is not more prejudicial than probative, and would not be excluded on this basis.

Even if the judge found that it was more prejudicial than probative, in New Hampshire family cases, the judge has the flexibility to disregard the Rules of Evidence. Pursuant to Family Division Rule 2.2, the Rules of Evidence do not apply in divorce and parenting matters. The judge may, in her discretion, apply the New Hampshire Rules of Evidence “to enhance the predictable, orderly, fair, and reliable presentation of evidence.” The evidence of Lucy’s murder spree would absolutely come in as it is critical to the determination of the child’s best interests. The verdict: not real.

Jury Trial

Next, in Raising Hope land, a jury will hear the custody trial and issue a verdict. When the evidence of Lucy’s violent past is suppressed, Jimmy and his parents are not too worried because only locals “who were living under a rock” would not recognize Lucy as the serial killer from her high-profile trial. And then they bring out a jury composed only of miners who were stuck underground during the murders and trial. The Chance’s lawyer quips that he thought it was the gentlemanly thing to do to let his opposing counsel pick the jury (The Chances should probably be looking into malpractice claims). Of course, in reality, juries do not hear family cases. In New Hampshire, a judge (RSA 490-F), marital master, or child support referee (RSA 490-F:15) preside in the family division and issue court orders. The verdict: not real.

Presence of Minors in Courtroom

The jury renders a verdict in favor of the mother, granting custody of Hope to Lucy. While the verdict is being read, Hope sits on her father’s lap. Pursuant to New Hampshire Family Division Rule 2.8 “a child shall not be brought to court as a witness, or to attend a hearing, or be involved in depositions without prior order of the Court allowing that child’s participation. To obtain permission of the Court for the presence of a child in such a proceeding, good cause must be shown.” There are some exceptions for domestic relations cases, such as adoptions (RSA 170-B:19), guardianships of children over the age of 14 (RSA 463:8 and Family Division Rule 5.4), and certain circumstances in abuse and neglect cases (Family Division Rule 4.5). However, these exceptions do not apply in parenting rights and responsibility cases like the Chance custody trial, and Hope would not be permitted in the courtroom. The verdict: not real.

Brawl in the Courtroom

Finally, after the verdict is read, Virginia and Burt, Jimmy’s parents, begin wrestling with the bailiffs and generally causing a ruckus in the courtroom. The Chances seem to remain incarceration-free despite the fracas. This kind of behavior would probably have landed Virginia and Burt in jail for direct criminal contempt. The judge must preserve and protect the dignity and authority of the court, and the Chances conduct violates such dignity and authority. The verdict: not real.

Raising Hope gets an A for laughs, but and F for realism. I’ll still tune in though.

Throughout my years practicing law and in my role as a guardian ad litem, I often hear misconceptions about contempt. Usually I hear statements along the lines of “I don’t want a criminal record” or “if I am found in contempt I will be arrested.” This post is intended to dispel some of these misunderstandings and to set the record straight.

Contempt can be civil or criminal, direct or indirect. The difference between civil or criminal lies in the purpose of the punishment. Direct or indirect contempt contrasts between acts committed either in the presence or outside of the presence of the court.

Civil Contempt

A finding of civil contempt results in an order that is remedial, coercive and for the benefit of the other party. The punishment is intended to force the contemnor’s compliance with court orders. Examples of the consequences of a contempt finding include money fines, orders directing compliance with the court orders, or even an indefinite jail sentence until the contempt is cured. It is often said that the contemnor “holds the key to the jail in his pocket” because curing the contempt will set him free. In family matters, motions for contempt are often brought for failure to pay child support, failure to abide by the parenting schedule, or selling or encumbering property in violation of a non-hypothecation order. Jail is a remedy of last resort, and one that usually only follows repeated, intentional refusals to abide by court orders or extreme behavior. The court will usually exhaust other remedies, such as payment of the other parties’ attorney’s fees, before sending a person to jail for civil contempt. A civil finding of contempt does not appear on a person’s criminal record.

Criminal Contempt

In contrast, a person who has been found in criminal contempt does not hold the keys to the jailhouse, and remedying the contempt will not set him free. The punishment is punitive, and intended to protect and preserve the dignity and authority of the court. Indirect criminal contempt proceedings must generally follow to procedural formalities of criminal proceedings. The defendant is entitled to reasonable notice, providing a date and time for the proceeding and warning that the contempt is considered criminal. The prosecutor must prove the elements of contempt beyond a reasonable doubt, and the contemnor is entitled to counsel and holds the right against self-incrimination. If the court intends to impose a sentence of greater than six months, the defendant has the right to a jury trial.

An example of criminal contempt, and the confusion that can result between criminal and civil contempt, is the New Hampshire case of Mortgage Specialists v. Davey. Mortgage Specialists sued the defendants for violation of trade secrets. Following a preliminary injunction, the defendants destroyed documents in violation of the court order. The court found the defendants in contempt, believing that they had thumbed their noses at the trial court’s authority and thwarted the dignity of the process, and issued penalties including attorney’s fees, fines and a penalty of three times the amount of profits unjustly reaped from the violation of trade secrets. The Supreme Court vacated the finding because the defendants were not provided notice that the contempt proceedings would be criminal.

Indirect Contempt

Indirect contempt is conduct that takes place outside of the presence of the court. The court does not have first-hand knowledge. Instead, the acts of contempt must be proved through evidence. An interesting case that distinguishes direct contempt versus indirect contempt is Kristen McGuire v. Suzanne Collins. In McGuire, a litigant in a custody matter arrived at the courthouse smelling of alcohol. The court security officer approached the litigant, and a state trooper performed a preliminary breath test. The results were not provided to the litigant, or her attorney. However, when she appeared before the court for the hearing, the judge informed her that she had blown a .20, well above the legal limit. However, the litigant displayed no disorderly behavior in the courtroom. The judge sentenced to litigant to 30 days in jail for direct, criminal contempt for appearing before the court in an inebriated state. However, the sentence was overturned by the Superior Court following a filing for a writ of habeus corpus because the family division judge had not personally observed the elements of contempt. Instead, the court had to rely on the observations of the court staff and the preliminary breath test conducted by the state trooper to prove the elements of contempt. Therefore, the court did not have direct knowledge and could not conduct summary proceedings resulting in the immediate incarceration.

Direct Contempt

Direct contempt takes place in the presence of the court where the judge personally observes all of the elements of contempt. The following is a perfect example of direct contempt from Maryland in the case of Patrick Smith v. State of Maryland:

THE DEFENDANT: What is the maximum on contempt, sir?

THE COURT: What is the maxim um on contempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is that correct . . . ?

[STATE’S ATTORNEY]: Yes.

THE COURT: Mr. Smith, I am not going to give you in excess of six months.

THE DEFENDANT: Let me tell you something.

THE COURT: What?

THE DEFENDANT: You say you won’t give me in excess of six months.

THE COURT: Yes.

THE DEFENDANT: You know what? You have been sitting up there in the trial in every hearing I have had for this far, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify —

THE COURT: I asked you if you had anything you want to say as to what sentence the Court should impose —

THE DEFENDANT: Yeah. You know what? You can give me six more months, motherfucker, for sucking my dick, you punk ass b itch. You should have a white robe on, motherfucker, instead of a black. Fuck you.

THE COURT: I find you in contempt again.

THE DEFENDANT: Fuck you in contempt again.

THE COURT: I find you three times in contempt —

THE DEFENDANT: Fuck you. And fuck.

THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve.

THE DEFENDANT: Yeah. You better leave now, you, Ku Klux Klan.

Other examples of direct contempt include assaulting another person in the courtroom or refusing to testify when ordered to do so. When direct contempt occurs, the court may skirt procedural formalities required of indirect contempt in light of the court’s direct knowledge of the contempt. The word “summarily” does not refer to the swiftness of the punishment, but rather the dispensing with the formalities that accompany a conventional trial such as service of process, notice of hearing, and submission of evidence. Instead, the court must give the contemnor oral notice of the contempt observed, an opportunity to speak in his defense, where after the court may issue a finding of guilty and pronounce sentence.  

In November, I authored an article on same-sex marriages in the New Hampshire Bar News geared towards helping practioners understand unique issues in same-sex divorces. I reprint here the full article:

Practicing family law in one of the six states that recognizes same-sex marriage requires an understanding of the unique challenges that same-sex couples face in a divorce. Usually, a divorce provides a mechanism to dissolve the legal relationship, divide property and establish parental rights and responsibilities. Although same-sex couples can dissolve their marriage in New Hampshire, reaching a fair and reasonable property division or establishing parental rights and responsibilities is much more difficult.

Marriage & Divorce

New Hampshire practitioners have limited precedent to guide them on several thorny issues that are distinctive to same-sex couples. Ironically, one of the few cases involving same-sex relationships, which is still good law, is now inconsistent with the state’s recognition of same-sex marriage. In the Matter of Blanchflower held that adultery does not include homosexual relationships. The court based its decision on the definition in New Hampshire of adultery, which excludes all non-coital sex acts, no matter the gender of the persons engaging in the act. Thus, although other fault grounds may be pursued, adultery is off the table for same-sex divorcing couples. The Blanchflower Court noted that it was not the function of the judiciary to extend past legislation to provide for present needs.

A common dispute in same-sex divorce is the calculation of the length of the marriage. In cases where the parties’ cohabitated long term prior to the marriage, one party may attempt to tack on the cohabitation to increase the length of the marriage and impact alimony and property division. This argument stems from the claim that had the parties been able to marry, they would have. Without New Hampshire precedent, the court may look to Massachusetts for guidance, where the Massachusetts Supreme Judicial Court has held that marriage benefits apply prospectively to the legalization of same-sex marriage. In addition to the cohabitation argument, the question also remains whether domestic partnerships, like those in California or New Jersey, might be similar enough to a marriage to tack on and create a long-term marriage.

Alimony

The IRS identifies alimony as payments made between spouses or former spouses pursuant to a divorce or separation agreement. Typically, alimony is deductible to the payor and includable as income to the payee for federal income tax purposes. However, the Defense of Marriage Act prohibits the federal recognition of same-sex marriages, and in turn precludes the IRS from recognizing a same-sex spouse as such. Although the IRS has not provided specific guidance on the issue, it seems clear that alimony payments are not tax deductible to the payor and may incur a gift tax liability. The IRS might alternatively consider the payments compensation for past services, with income tax, self-employment tax and possible withholding obligations. Either treatment will incur tax consequences that could be financially devastating to the family.

Property Division

In "traditional" divorces, opposite-sex couples rarely invokes tax consequences during the division of their marital assets. Such property transfers meet specific IRS exemption rules. Same-sex couples on the other hand can be saddled with a large tax liability as a result of property division.

The Defense of Marriage Act disqualifies same-sex spouses from the tax exemptions for property transfers made pursuant to a divorce decree. Instead, same-sex couples incur a gift tax liability for most transfers made between the spouses or former spouses in excess of $13,000. For example, if one spouse transfers $30,000 to the other spouse for property settlement, $17,000 would be taxable. In addition to gift tax, same-sex couples must be aware of capital gains tax when the home is transferred from joint ownership to one spouse.

A specific part of property division is the ability of a spouse to transfer property to a spouse or former spouse by qualified domestic relations order (QDRO) pursuant to the federal Employment Retirement Income Security Act (ERISA), a portion of a retirement plan or tax sheltered annuity. The tax treatment of such transfers depends on the word "spouse." In other words, in order to qualify for the tax-free transfer benefits, the relationship must be recognized by the IRS as a marriage. Under the Defense of Marriage Act, which defines marriage as between a man and a woman, a QDRO is not a vehicle available to same-sex couples to transfer retirement assets tax-free. Instead, same-sex couples must pay taxes and early withdrawal penalties on transfers made to the other spouse, regardless of whether it is deposited into the other spouses’s retirement account.

Parental Rights & Responsibilities

New Hampshire follows the legal principal that a child born into a marriage is presumed to be the legal child of both spouses. This presumption of legitimacy may be attacked however, and if successful could drastically affect the non-biological parent’s right to seek parenting rights and responsibilities, including residential responsibilities. Although the step-parent statute might be a useful tool in this circumstance, the parenting rights accessed through this avenue could look much different than the rights of a legal parent. Co-parent adoption is the safest way to establish protected parenting rights for each spouse.

 Question:

 Do I still have to notify the other parent about moving pursuant to the relocation statute if there is a domestic violence restraining order and my address is confidential?

 

Answer:

 

The statute states that the notice requirement applies in all parenting rights and responsibilities cases unless specifically addressed otherwise in the parties’ existing order or agreement. If there is a court order stating that you do not have to comply with the relocation law, then no notice is needed. Similarly, if the move results in your moving closer to the other parent and there is no change in school placement, then no notice is needed pursuant to the relcoation statute. You may, however, need to provide notice of your address change pursuant to provisions in the court order requiring parents to keep each other updated on address and contact information.

 

If you are required to provide notice of the address change, then you must comply and provide notice of the move to the other parent. If you are concerned about releasing your address, the best approach would be to provide notice of the move by providing the town or city location only, and not the street address, and file a motion with the court to seek permission not to disclose the full address. Presumably, the other parent has the right to know what schools the children are attending, so the information about the town or city will most likely need to be disclosed.

 

Remember, this is a basic answer to a basic question. Each family matter is unique, and has a specific set of facts which might change the above answer. In order to make sure that you arein compliance with court orders and New Hampshire law, you should seek advice from an attorney who is able to review your situation with you.

The Facts

            The plaintiff, Linda Thompson, filed a domestic violence petition against the defendant, Christopher D’Errico requesting an order of protection. After an evidentiary hearing, the Court issued a final order of protection, and made findings that the defendant had on a daily basis sent text messages to the plaintiff using “extraordinarily foul language”, that the defendant had made reference to a having a loaded shotgun, and that a family friend had to interfere to stop the defendant from putting his hands around the plaintiff neck. The defendant moved for reconsideration, arguing that the evidence did not support a finding that he posed a credible threat to the plaintiff’s safety. The trial court conducted a further hearing, and issued an order detailing the text messages sent by the defendant at extremely inconvenient hours, using such language as “bills asshole die bitch,” sent in the days leading up to the filing of the domestic violence petition. The court found these texts to be a “credible present threat, considering the defendant’s previous threat of the loaded shotgun and the defendant’s previous attempt to put his hands around the plaintiff’s neck.”

The Appeal

The defendant appealed the order, arguing that:

(1) his non-threatening foul language is protected by the First Amendment;

(2) there is no evidence to support the plaintiff’s allegations against him;

(3) the text messages might have been sent by a third party having access to his phone;

(4) the trial court erred by admitting evidence of certain text messages; and

(5) the evidence does not support the finding of a credible present threat to the plaintiff’s   safety. 

The Holding

            The evidence supported a finding of a credible threat to the plaintiff’s safety. The Supreme Court came to this conclusion because the defendant, who was the appealing party, failed to provide a transcript, and absent a transcript, the court must assume that the evidence was sufficient to support the trial court’s ruling. The court refused to consider other questions presented on appeal for this same reason, finding that the defendant had failed to demonstrate that he had preserved issues for appeal without a transcript evidencing his objections to evidence.

            The First Amendment does not protect the defendant’s non-threatening foul language because the definition of harassment, which requires repeated communications with offensively coarse language that is made with the purpose to annoy or alarm, is narrowly tailored to the illegal communication it seeks to prevent.

The Takeaway

            Provide a transcript for your appeal. The transcript is the written record of what happened during your hearing or trial. Without a transcript, the Supreme Court has no way of knowing whether you brought an issue to the attention of the trial court for consideration. For example, did you object when the other side submitted a tax return to the judge? If your appeal alleges that the trial court improperly allowed the tax return into evidence, the Supreme Court needs to confrim that you objected and preserved that issue for their review. Similarly, without a transcript, the Supreme Court must assume that the conclusions or findings reached by the trial court were supported by the evidence. In this case, the defendant failed to provide a transcript, and many of his arguments brought before the Supreme Court, including whether the trial court had sufficient evidence to reach the conclusion that he presented a credible threat to the plaintiff’s safety, failed for that reason. The results might have been different if he had ordered and paid for the transcript.

            As the Occupy Wall Street movement recently learned, free speech as limits. The statute defining harassment requires a repeated course of conduct, where communication occurs at extremely inconvenient hours or with extremely coarse language. The calls must also be made with the purpose to annoy or alarm. Harassment cannot be conjured from a single call made to anyone, anywhere, at any time. Here, the defendant sent repeated texts, at inconvenient hours, and with extremely coarse language. The texts were clearly designed the alarm the plaintiff, rather than expressive conduct made for a legitimate purpose. This communication is the exact type of illegal behavior the statute is designed to prevent.

The 9th Circuit Family Division at Nashua is now open. The Nashua Family Division will serve the Hudson, Hollis and Nashua communities.The family division has jurisdiction over divorce, parenting, child support, guardianship, termination of parental rights, abuse/neglect, CHINS, and some adoptions. The courthouse is located at 30 Springs Street, and the phone number is 603-882-1231. For other family division locations, check the court website.

 

 

The divorce is finally over, and it is time to move on. There are still some loose ends to tie up though, even after the divorce decree has issued. Not every item may apply to your case, but here are the most common things that should be on a newly single person’s to-do list. 

1. Update your life insurance and retirement account beneficiaries
2. Prepare a new will
3. Execute a quitclaim deed and record it at the registry of deeds to transfer the title of the house
4. Draft a QDRO, submit it to the court for approval and provide the order to the plan administrator
5. Resume your maiden name, and obtain a new social security card, driver’s license and debit and credit cards
6. Complete required paperwork to implement child support orders
7. Change your vehicle titles
8. Close all joint bank and credit card accounts
9. Make sure that COBRA benefits are in place and the necessary paperwork has been completed
10. Exchange personal property awarded to you or your former spouse

A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

 

Family Division Rule 1.25-A applies to all new actions in the family division for:

 

·         divorce

·         legal separation

·         annulment

·         civil union dissolution

 

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

 

·         parenting petitions

·         child support petitions

·         petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

 

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

 

The rule obligates each party to provide the following documents to the other party:

 

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

 

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

 

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

 

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

 

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

 

i. The party,

ii. The party’s spouse, and

iii. The party’s dependent child(ren).

 

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

 

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

 

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties’ minor child(ren).

 

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties’ minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

 

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

 

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

 

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

 

Since July 2011, indigent parents accused of abuse or neglect have had to manage the court system without an attorney. Recent legislative changes removed the statutory requirement contained in RSA 169-C:10, II(a) that counsel be appointed for requiring appointed counsel for indigent parents. However, the question still remains whether the parents have a constitutional right to counsel under the New Hampshire constitution.

The New Hampshire Supreme Court is now faced with that question, and has called for amicus briefs or memorandum on the following question:

Does the Due Process Clause of the New Hampshire Constitution (Part 1, Articles 2 and 15) or the Fourteenth Amendment of the Federal Constitution require the appointment of counsel for an indigent parent from whom the State seeks to take custody of a minor child based on allegations of neglect or abuse? 

I believe the civil right to counsel for parents accused of abuse or neglect is a fundamental right, as basic as the right to an attorney in criminal matters. My New Hampshire Bar News  opinion and blog post provide a more detailed analysis. I am interested to hear your opinion so feel free to leave a comment.