I am glad to announce that Matthew D. Henderson will be joining Troutman & Napier, PLLC as an associate attorney. Matthew comes to us from the Fayette County Attorney’s office. Prior to that, he served as Judge Philpot’s judicial intern in Fayette Family Court. He will be bringing tremendous skills and knowledge in areas of criminal law and family law as well as estate planning and general litigation. With the addition of Matthew, Troutman & Napier, PLLC offers a full range of services and practice areas for our clients.
I just finished attending the Judge Joe Lee Bankruptcy Institute here in Lexington, Kentucky. It was great to celebrate Judge Lee’s 50th year as a bankruptcy judge and learn about the major impact one of our local judges has had in shaping bankruptcy law and practice. It was also reaffirming to hear a call to raise the bar in bankruptcy practice by our Chapter 13 trustee, Hon. Beverly Burden. She pointed out how specialized and potentially complicated Chapter 13 bankruptcy practice is and that one must be knowledgeable in the area before taking on these matters. I heartily agree and that is why I take such training opportunities and why I do extensive research in order to become more knowledgeable. The practice of law is much akin to the practice of medicine in that unforeseen events can arise in any case and having a solid knowledge base is essential to react appropriately.
This is a post about aggressive lawyering worth reading. While it focuses on family law where such approaches are most obvious, the basic truth applies to all areas of law. That is, lawyers who look for resolution of conflict when possible rather than the escalation of conflict are by far more successful for their clients.
I’ll warn you in advance that this particular post gets a little sappy and dips into spiritual themes. If that is not for you, I do not apologize, but I do give notice. Historically, the practice of law was intimately and inseparably tied with spiritual matters and religion. Something went wrong along the way and the spirit was wrung right out of the law. Thus, there are many unhappy and hope-less attorneys. I choose otherwise and this New Year’s Eve is a ripe opportunity to delve into that choice a bit.
People thrive on hope and this time of year is full of messages of hope. The birth of the Christ child brought the ultimate message of hope, redemption and renewal and so we celebrate Christmas. The need for hope seems universal and one sees the theme play out again and again in the stories of our lives and back into history. Thus, with the renewal of the calendar, we celebrate the ending of 2009 and the start of 2010. There is nothing magical that happens between 11:59 pm and 12:00 am tonight, but we see the new year as a symbol of new hope; a fresh start.
This brings to the fore why I love practicing bankruptcy law: it brings to people a new hope and a fresh start. It is unlike family law that is typically about the end of hope and the close of things (except adoption!), criminal law that is about punishment, or even personal injury where the focus is on pain. Certainly those other areas of law do involve hope and restitution, but it is not the focus on the same level as bankruptcy law.
Certainly, bankruptcy is not a step to take lightly and one should never mistake the legislated ability to discharge one’s debts with some sort of entitlement to avoid financial responsibility. Conversely, one should not mistake the act of taking bankruptcy as a sin unto itself. Rather, bankruptcy harkens back to the year of jubilee discussed in Deuteronomy Ch 15 and elsewhere in scripture. It is a real life example of hope and redemption.
The vast majority of people who contemplate bankruptcy are hard working people and these are the folks I want to help. Perhaps they made a series of innocuous mistakes that ended up with catastrophic results. Perhaps an illness or the anonymous and uncaring force of the economy left them without means. Perhaps sin such as a gambling addiction or a shopping compulsion lead to the point of insolvency. Regardless, bankruptcy offers the promise of starting fresh financially. The lifting of a financial burden can open up hearts to hope for other more significant and deeper renewal. And so, I enjoy practicing bankruptcy because it breeds hope.
Sure, there are some people who abuse the system. They run up debt with every intention of walking away from it. They become serial bankrupcty petitioners. I am sure they are out there, but they are a slim minority. I invite them to go down the road to that law firm that advertises on the television. If you have read this far, you are not one of those folks.
Also, if you read this at all, it is likely that you are hurting financially. I encourage you to consult with an attorney to learn about your options. Bankruptcy may not be necessary; you may benefit from a quality non-profit debt reduction agency such as Apprisen (they have an office here in Lexington). If, however, the debt your are under is overwhelming you and the resources just are not there to get out without losing your home and important property, then do not wait too long to consider bankruptcy. Give yourself the gift of hope on the financial front and then see that hope multiply.
Tragic circumstances underlay the Court of Appeals opinion in Zoeller v. Gutterman, 2006-CA-002141-ME (October, 26, 2007)(to be published), where grandparents fought over visitation rights. Mrs. Gutterman and Mr. Gutterman had been married and conceived two children during their twelve year marriage. One of those children was Ashley.
Ashley, at age 15, gave birth to a son in 2000, about eight years after her parents divorced. She subsequently agreed for her mom, now Mrs. Zoeller, and step-father to be the court appointed guardian for the child in 2002. Sadly, Ashley died in 2004. Mr. Gutterman, Ashley’s dad, filed a petition for grandparent visitation under KRS 405.021. Unbeknownst to Gutterman, The Zoellers had filed a petition to adopt Ashley’s son. The adoption was granted prior to the visitation and so the Zoeller’s argued that he now had no standing to seek visitation since, legally, the child was no longer his grandson. The Court does not provide the whole background story, but I suspect there was such bad blood between the former Mrs. Gutterman and her ex-husband, that when Ashley passed away, they refused to continue the weekly visits she had with her father where her baby went along and visited too.
A Guardian ad Litem was appointed for the young lad and the G.A.L. recommended visitation begin immediately for Gutterman. This was granted, but the Zoellers, obviously not fond of the ex-husband, filed a Writ of Prohibition to stop the visits from commencing. This was granted and aspects of the case went on up to the Supreme Court of Kentucky. The Supremes said that the Family Court did have subject matter jurisdiction, despite the Zoeller’s argument to the contrary, but that the Family Court must have an opportunity to determine if Gutterman had standing due to the intervening adoption.
After holding an evidentiary hearing, the Family Court found Gutterman had standing and that it was in the child’s best interest to have visitation. This really ticked off the Zoellers and they “zealously pursued their contention” that Gutterman had no right to pursue visitation. Id. at 4.
The Court reviewed the Kentucky jurisprudence and history of KRS 405.021 noting that it has been found to be constitutional and designed to address the concerns of increasing divorce rates, increasing pregnancy among unmarried persons, and the increasing mobility in modern society. Furthermore, as long as the grandparent is not deranged or otherwise unfit, they tend to have a special bond with their grandchildren that is mutually beneficial. One later case, Hicks v. Enlow, 764 S.W.2d 68, 71 (Ky. 1989), distinguished stepparent adoption from non-stepparent adoption in that termination of parental rights in non-stepparent scenarios severed all family connections so that grandparents could not have visitation rights.
Kentucky’s General Assembly considered the Hick’s result too harsh and modified the statute to preserve any pre-existing visitation rights granted by a court of competent jurisdiction. In this case, though, no such court order had been entered giving Gutterman those rights. Also, though, in this case there was no involuntary termination of parental rights. Essentially, the Court slapped the Zoeller’s wrists (and their lawyer’s) for failing to make the Family Court for the adoption aware of the pending visitation litigation. They quoted the Family Court in saying:
Had the Court been aware that there was an adoption proceeding pending in one courtroom and a grandparent visitation action pending in another, the adoption would have been postponed pending the outcome of the grandparent visitation hearing or the visitation issue would have immediately been scheduled for hearing. As an adoption proceeding is usually unopposed, it would almost always be concluded before a contested visitation hearing. This Court does not believe the intent of the General Assembly was to allow one party to deprive another of such a substantive right as continuation of a familial relationship by knowingly manipulating the justice system in this way.
Goodness, Mrs. Zoeller sure must have harbored intense feelings towards her ex-husband. Turns out that they both had abused either alcohol or drugs during the marriage and there was domestic violence perpetrated by Gutterman. Fortunately for Ashley’s child, Gutterman had apparently reserved his hostilities for his wife during their marriage and he managed to form a decent relationship with both Ashley and her child. Ultimately, preserving this bond, especially in the face of Ashley’s death, was seen as in the best interest of the child.
Lessons learned: 1) Say no to drugs and alcohol – their effects can be lasting, 2) Be forthright with the court, even if it appears to hinder your goals in the short-run, 3) Marriage often does not last forever, but divorce sure can, 4) Bitterness is expensive.
The Kentucky Court of Appeals addressed the issue of whether a parent with sole custody can reach into the other parents visitation time and direct that the child attend a specific church service. The Court in Wireman v. Perkins, 2006-CA-001981-ME (July 13, 2007)(to be published) found that “statutes like KRS 403.330 as according custodians, such as Wireman, the right to make the major decisions affecting the child’s education and religious training, but not as authorizing them to interfere permanently or unduly with the non-custodian’s visitation.” Id. at 5 & 6.
In this case, David Wireman had been awarded sole custody of his daughter, J.W. who was born in 1996. The original award had been for joint custody, but the mom, Lori Perkins, developed a bit of a drug problem and lost joint custody. Mom still had “reasonable” visitation, but apparently David and Lori could not agree on what reasonable meant from 2003 to 2005 when the trial court decided that it meant one evening a week and every other weekend. The Court notes that the parties were back in court SEVERAL times from November 2005 until September of 2006 making complaints of non-compliance on visitation. Apparently Lori, David or both disagreed with the trial judges definition of “reasonable” also.
In his bid to make Lori take J.W. to Fern Creek Christian Church, David relied on KRS 403.330 which states in part:
[e]xcept as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including h[er] education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or h[er] emotional development significantly impaired.
The Court distinguished David’s demand for J.W. to go to his church EVERY weekend from prior cases that required the non-custodial parent to temporarily alter their visit for religious classes of a short duration. In this case, the burden upon Lori’s time share would be too great if she were ordered to take her daughter to David’s church every weekend and so the Court denied David’s appeal. David will simply have to find an alternate way of teaching his daughter about the love, forgiveness, peace and mercy of Jesus Christ then by dragging her mother into court and spending a great deal of time and money on the conflict in trying to control what the mom and daughter do during their visits. Does anyone else see the irony here?
The practical lesson from this case is for divorced, divorcing or separated parents to recognize that one cannot control every aspect of their child’s life anymore. Actually, one never could fully control their life, but the illusion of control is definitely shattered in these situations. Staying in turmoil and conflict with your child’s other parent will accomplish little than more pain. So, be very careful that the issue is important enough, find a lawyer that will help you discern this rather than automatically taking your case (and money), and then try to resolve it out of court first. Many issues will not be worth going that next step to court. Finally, setting an example by your behavior of the beliefs you want your child to adopt will, by far, be the most effective method of parenting.
Divorce is both the result of unresolved disappointments and resentments and the source of terrible desires for revenge. Thus, it is common for people to try and exact revenge through the courts. Common, but not particularly beneficial to any party. The Court of Appeals reminds us on this in their unpublished decision, Hollis v. Hollis, 2005-CA-000770-MR (June 1, 2007). The Court states:
“While we do not now find that John should be directed to show cause why he should not be sanctioned, we give fair warning that this Court is not to be used as a tool to frustrate the peaceful resolution of a broken marriage.”
Mr. Hollis apparently had a penchant for filing pro se motions attacking everything from the refusal of the trial court to give him a videotape of the proceedings to an attempt at trying to force Ms Hollis to return unspent child support.
So, a word of free legal advise. Let Mr. Hollis teach you if you are contemplating or undergoing divorce and talk to a counselor or scream at a pillow and leave such acts of retribution out of the courtroom. Do not expect satisfaction from the judicial process in a divorce; the court just forces a resolution in the most efficient manner it knows.
Occasionally I am asked why I refer to myself as a Counselor at Law rather than Attorney. It is a sublety that most miss, but it actually encapsulates a key philosophy to my practice. An Attorney is an agent. They go and do what they are told to do by the principal. I remember going to an attorney in my prior life over an employment issue. I really needed to understand what was happening, but this highly recommended attorney told me very little. I later realized that this was because he either: 1) did not know what he was doing so stayed silent to look wise, or 2) said very little to minimize any liability on his part.
Anyway, he went and did what I asked him to do, but I was very dissatisfied with the process because I felt very much in the dark most of the time. I mean for my clients to feel informed. This is one thing a counselor does. They help you understand what you are going through.
Secondly, a counselor counsels. In my example above, I sought wise counsel as well as understanding. This is because I was faced with something outside of my experience. I recognize that it was ultimately my decision to make as to whether or not to pursue the matter, but I needed at least some rough estimates about the expected outcomes would be depending on my decision. So, as a Counselor at Law I take the risk I believe my profession calls upon me to take to explain options and the likely outcomes of each.
We are coming down to the final stretch of the school year, but it is still possible to end up at court for habitual truancy. Under Kentucky law, if a student misses more than 3 days of school (consecutively or not) without an excuse, then that child is truant. If this happens more than once (meaning more than 6 unexcused absences) then that is habitual truancy.
Also under Kentucky law, the parent is held responsible for the child’s crime! The penalties range from $100 to $250 in fines. Here is a list of acceptable excused absences for Fayette County:
Death or severe illness in the pupil’s immediate family;
Illness of the pupil:
After a total of ten (10) cumulative full-day absences due to illness, students are required to present a written statement from a medical professional (doctor, dentist, psychologist, etc.) for each additional absence for the school year in order to be excused.
After a total of ten (10) cumulative tardies due to illness, students are required to present a written statement from a medical professional (doctor, dentist, psychologist, etc.) for each additional tardy for the school year in order to be excused.
Religious holidays and practices approved in advance with the Principal;
Medical and dental appointments (times and dates shall be verified by the physician’s signed statement);
Students will be excused only for the length of time of a scheduled doctor’s appointment and a reasonable amount of travel time. Doctor’s excuses shall state the date(s) and/or number of days for which the student will be excused.
Family emergencies requiring immediate attention are limited to three cumulative absent events per school year. Additional absent events must have the approval of the Principal to be excused. (An absent event is defined as tardy, half-day, or full-day absence.)
One (1) day for attendance at the Kentucky State Fair per Kentucky State Law;
Three (3) visits to colleges or universities approved in advance by the Principal and restricted to seniors. Documentation from the college visited will be required;
Court appearance requiring the student’s attendance. Students will be excused only for the length of time of the scheduled court appearance; or
Documented military leave;
One (1) day prior to departure of parent/guardian called to active military duty;
One (1) day upon the return of parent/guardian from active military duty;
Up to ten (10) school days to pursue an educational enhancement opportunity determined by the Principal to be of significant educational value. This opportunity may include, but not be limited to, participation in an educational foreign exchange program or an intensive instructional, experiential, or performance program in one (1) of the core curriculum subjects of English, science, mathematics, social studies, foreign language, and the arts.
Other valid reasons as determined by the Principal.
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