Detailed Parenting Plans Avoid Future Litigation

When parents get divorced or separate through the legal system, the court requires that a parenting plan be put into the final judgment. The goal of the court is to ensure that both parents have frequent and meaningful contact with their children. At Brittle & Brittle P.C., we recommend that parents put together a detailed parenting plan to help avoid future litigation. Even when parents are getting along at the time of their divorce, we remind clients that circumstances can change. What happens if you or your ex-spouse remarries? Or either of you has another child? In those circumstances, conflict often arises and couples who used to get along begin having difficulty communicating. Future problems can often be avoided by careful drafting of a parenting plan.

For example, a statement that “the parties will each have 50% parenting time” is one we often see in judgments prepared by paralegal services. But what does this really mean? Will one parent have Junior from January 1 through June 30^th, and the other parent from July 1 through December 31^st? Or from Sunday to Sunday? Or alternating months? You get the picture! Be specific! List specific times, exchange locations, and who will handle transportation. Do the same for holidays and school vacations.

The lawyers at Brittle & Brittle P.C. can help you write a parenting plan, even if you are using the court forms or a paralegal service to prepare your other court documents. We will give you suggestions about language to address safety provisions, transportation issues, scheduling of activities, exchange of clothing, and more. Give us a call to schedule an appointment!

Oregon’s Child Support Calculator

When getting a divorce, one key question on a client’s mind is how much one party will be ordered to pay in child support. Generally, child support is easy to calculate in advance. The State of Oregon has an online child support calculator, which takes into consideration each parent’s gross monthly income, the number of children each parent has, the cost for healthcare for the children, the monthly cost for childcare, and the number of overnights each parent has the children throughout the year. With these numbers, the calculator generates an amount of child support. This amount is presumed to be the correct amount of support. The Court does have the authority to deviate upwards or downwards from this amount, based on the circumstances of the case. However, in most circumstances, the number generated by the child support calculator is the amount ordered by the court at the conclusion of the case.

Do you have questions about child support? Call one of our experienced divorce lawyers today!

Court of Appeals Case: Determining Income for Child Support

When parents are self-employed, the Court must determine that parent’s actual income before calculating child support. To do so, the Court must deduct from a business’ gross receipts the cost of goods and necessary expenses required to operate that business. In this case, there was insufficient evidence to determine Father’s actual income because the documentation he provided lacked credibility. Under that circumstance, it is appropriate for the Court to determine Father’s potential income for his given field under the Oregon Administrative Rules.

Read the case, decided on 4/20/2011

Matthews v. Matthews

Are you seeking to modify child support? One of our experienced family law lawyers can help!

Court of Appeals Case: Spousal Support

In this divorce, the trial court divided ownership of Alabama Shopping Center (ASC), which was the parties’ primary source of income. ASC provided both parties with equal incomes post-divorce. However, the trial court then awarded Wife $4,000 indefinite monthly spousal support. Husband appealed, arguing that there was no evidence that he had a greater earning capacity than Wife and that less (or no) support should be awarded. The Court of appeals agreed, and said that without evidence of a greater earning capacity, the trial court’s award of $4,000 was purely speculative and therefore inappropriate. Although the court may make an award of spousal support based on a forecast of Husband’s income, the forecast itself cannot be based on speculation but must be based on reliable estimates of future income. Further, Husband argued that support cannot be higher than what he could afford to pay. Wife argued that spousal support was still appropriate, because of Wife’s health issues and more limited work experience, even though Husband was currently retired. The Court found that there was enough evidence to justify some spousal support, and modified support to $400 per month indefinitely.

Read the case, decided on 04/20/2011: Hendgen v. Hendgen

Are you seeking to modify spousal support? One of our experienced divorce lawyers can help!

Parenting Classes in Portland Metropolitan Area

When parents get divorced in Oregon, the Court requires both parents to attend a parenting class prior to the finalization of the divorce. This is also true in modification cases, where custody or parenting time may be changed. The purpose of the class is to provide parents information about: (1) the emotional impact of a divorce or separation on children at different developmental stages; (2) parenting during and after a divorce; (3) custody vs. parenting time; (4) the development of parenting plans; (5) the effect of conflict or parental conduct on children, including long-distance parenting; and (6) mediation and conflict resolution. Each county has their own required class, and the cost and length of the class varies. Find out more about the class required by clicking on the links below, or by contacting the family law clerk at the court in your county.

Multnomah County: Parent Education Program (one 3 ½ hour class, $55/$70)

Clackamas County: Parents Helping Children Cope with Family Change (one 3 ½ hour class, $55/$70)

Washington County: Kids' Turn (four 90-minute classes, $210)

Contact a Portland divorce lawyer.

Court of Appeals Case Law: Change of Custody

After a divorce or custody case, parents often find themselves in the situation where a modification of custody is necessary. Generally a modification requires a showing that there has been a substantial change in circumstances since the last determination of custody, and that the change is in the child’s best interests.

In Buxton v. Storm, the Court of Appeals determined that the increased conflict between the parties, and the effect of that conflict on the child, qualified as a change in circumstances sufficient to modify custody. The record reflected that the case between the parties was highly litigious. Mother had repeatedly accused Father of serious crimes, but all accusations proved unfounded. Mother repeatedly excluded Father from participating in various medical and psychological interventions to treat and evaluation the child. Mother influenced the child such that the child’s behavior problems escalated. Finally, the experts who evaluated the case determined that the child displayed symptoms of anxiety, developmental delay, and aggressive behavior, which could be attributed to the conflict between the parties. In reviewing the statutory factors related to custody, the Court particularly focused on which parent would be willing and able to facilitate and encourage the child’s relationship with the other parent. Upon their determination that Mother severely interfered with Father’s relationship with the child, the Court reversed the trial court’s decision and awarded sole custody to Father.

Read the case, decided on 8/11/2010. http://www.publications.ojd.state.or.us/A136958.htm

Are you seeking to modify custody? One of our experienced divorce lawyers can help!

Court of Appeals Case Law: Valuation of a Business

In many marriages, one or both parties own a business. In the case of Slater and Slater, Husband owned a chiropractic business, which he purchased in 1996. Part of the purchase price included $37,000 for “goodwill” and the prior owner’s patient list, and another $75,000 for the prior owner’s execution of a non-compete covenant. The revenues generated by this business were substantially higher than the national average for chiropractic businesses. One issue at trial was whether the business’ “goodwill” included the value of a non-compete covenant, even though Husband asserted he did not intend to sell the business.

The appellate court reviewed the case, and first defined “goodwill” as the value of a business over and above the value of its assets, irrespective of the owner’s continued personal services, personality, or reputation. In other words, where a business has no value beyond its assets unless the owner personally promises his/her services to accompany the sale of the business, there is no “goodwill.” The court held that the trial court erred, and held that a future covenant is not recognized in the marital property division, because the valuation of the business as a marital asset could not be predicated on the enhanced valuation of the business based on an assumption that Husband would be bound by a noncompetition covenant.

If you own a business, talk to one of our Portland divorce lawyers about how the Court may value the business.

Read the case, decided on 12/29/10. http://www.publications.ojd.state.or.us/A137465.htm

Why use an attorney for your divorce?

Many people ask why they would use an attorney for purposes of getting divorced. The short answer is that you do not have to. The courts provide many forms and instructions for performing a basic divorce. If a so-called “simple” divorce is all you need, then this is great.

However - and this is a big however - there are many things that you can overlook when doing a marital dissolution on your own. The division of assets and debts, child custody, and parenting schedules all contain potential pitfalls for couples if not properly performed. Often, the very simplicity of a divorce agreement can create confusion down the road. For example, if parents agree to “joint custody, 50/50 split in parenting time” without further detail, what does this actually mean? Every other day? Every other week? Even if things are amicable now, what happens down the road when the parties disagree on which 50% of the time they actually get?

Talking to a qualified attorney can help make you aware of the things you should look out for, even if you plan on doing the divorce yourself. Some of the most contested cases end up as a result of poor planning on the front end. If you are contemplating a divorce, even if you are in agreement with your spouse about how it should look, you are well served by talking to an experienced lawyer.

Contact one of our Portland, Oregon divorce lawyers for Oregon-specific legal questions

Qualified Immunity of Police Officers in Discrimination Case

Summary provided in whole by NCVLI
Elliot-Park v. Manglona, No. 08-16089, 2010 WL 92482 (9th Cir. Jan. 12, 2010).

The Ninth Circuit Court of Appeals held that law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are not entitled to qualified immunity in a case where an automobile accident victim brought a civil rights action against police officers, pursuant to 42 U.S.C. § 1983. The victim, a woman of Korean ethnicity and race, argued that the officers failed to investigate the crime or make a drunk-driving arrest due to her race and the race of the alleged perpetrator, who, like the officers, was of Micronesian race and ethnicity. After the district court denied defendants’ motion to dismiss, defendants appealed, arguing, inter alia, that victims do not have a constitutional right to have police arrest others who have victimized them, and, even if defendants’ conduct violated the victim’s constitutional rights, they were entitled to qualified immunity because such rights were not clearly established at the time of the violation. The court rejected defendants’ first argument, finding that the victim did not base her equal protection claim on a general constitutional right to have an assailant arrested, but instead claimed that the officers’ failure to make an arrest was the result of their racial bias against her and in favor of the alleged perpetrator. As the court noted, although police have broad discretion in deciding whom to arrest, they cannot exercise such discretion in a discriminatory fashion: “For example, a police officer can't investigate and arrest blacks but not whites, or Asians but not Hispanics. Police can't discriminate on the basis of the victim’s race, either.” The court held that the discriminatory failure to investigate a crime or make an arrest violated equal protection. Upon finding that the right to the non-discriminatory administration of protective services is clearly established, the court also held that qualified immunity did not apply to the failure to investigate a crime or make an arrest based on the victim’s and perpetrator’s race. As such, the court of appeals affirmed the district court’s denial of the officers’ motion to dismiss.
A PDF of this decision can also be found at www.ncvli.org, under “New & Noteworthy Cases.”

Appointment to Public Service Advisory Committee

Brittle & Brittle P.C. is proud to announce that Jill E. Brittle has been chosen by the Oregon State Bar Board of Governors to serve on the Public Service Advisory Committee, effective January 1, 2010, for a two-year term. The committee provides volunteer opportunities to increase understanding and respect of the justice system by adult Oregonians.

Oregon Court of Appeals Holds Romantic Overtures Support Stalking Order

In this case, Ms. Van Buskirk, a reporter for the Portland Tribune, sought a Stalking Protective Order against Mr. Ryan. The two met at an open house for the Tribune, but never met after that. However, Ryan began sending letters and e-mails to establish a romantic relationship with Van Buskirk. Despite repeated requests to stop attempting to contact her, Ryan continued to send correspondence, some of which include references to her young son. Ryan also sent correspondence to Van Buskirk’s parents, comparing the two to Romeo and Juliet. He also attempted to reach her by phone at work and home and went to her workplace on repeated occasions. The Court of Appeals found that the communications themselves were not a sufficient basis for the entry of the stalking protective order because there were no unequivocal threats of violence. However, the Court held that the communications provided context for Ryan’s other non-communicative contacts (i.e., going to her place of employment). In light of the many communications, the Court found that these non-communicative contacts formed a pattern of behavior that made Van Buskirk’s apprehension reasonable. The Stalking Protective Order was enforced.

Read Van Buskirk v. Ryan.

Oregon Court of Appeals Rules on Non-Biological Parent Visitations

Ms. Hanson-Parmer appealed a trial court’s decision to give Mr. Parmer parenting time with his non-biological son (D). The parties had three children during their marriage. The fourth child (D) was born during the parties’ separation. A non-parent is only entitled to visitation with a child if he can demonstrate a child-parent relationship. Under ORS 109.119, the Court must look to the six months prior to the filing of the action and determine if the non-parent resided with the child in the same household or otherwise provided for the child on a day-to-day basis. Although Mr. Parmer had regular visits with D every week (from 9:00 am Tuesday until 8:00 pm Wednesday), this does not satisfy the requirements of ORS 109.119(10). Based on these facts, the Court of Appeals ruled that the trial court had erred in awarding Mr. Parmer parenting time with D. The case is reversed and remanded to reflect the same.

Read Liana Martha Hanson-Parmer v. James Michael Parmer.

Civil Remedy for Crime Victim

Below is an interesting holding coming out of Wyoming. It raises several interesting issues. The first that the prosecutor apparently saw fit to waive civil remedy for the victim of crime. Unfortunately, this is not the issue that was clarified. Ultimately, the issue that was appealed clarified the doctrine of absolute immunity, which protects speech during the course of a legal proceeding from allegations of slander or libel.

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Summary provided in whole by NCVLI:

Abromats v. Wood, Nos. S-08-0195, S-09-0196, 2009 WL 2517175 (Wyo. Aug. 19, 2009).

Defendant, charged with various crimes related to a traffic accident, attempted in the course of plea negotiations to condition payment of restitution on the accident victim’s release of civil liability. After the prosecutor agreed to this condition, Crisis and Referral Emergency Services (C.A.R.E.S), a victims’ services organization, informed the victims that defendant was taking action in the criminal case to impede their rights in future civil litigation. The victims then submitted an impact statement to the prosecutor through C.A.R.E.S., in which they clarified that they had not agreed to release defendant from civil liability. Defendant and her husband subsequently sued the victims, arguing that two statements in the victim impact statement were libelous. The victims moved for summary judgment, which the district court granted. Defendant and her husband, as plaintiffs in the civil action, appealed the grant of summary judgment. The victims cross-appealed, requesting that the court (1) uphold the dismissal of plaintiffs’ claims; and (2) find that (a) neither of the statements were libel per se, and (b) their statements were protected by the doctrine of absolute immunity, as witnesses in a judicial proceeding. The appellate court affirmed the lower court’s decision, and agreed with the victims that the doctrine of absolute immunity applied. Specifically, the court held that a crime victim’s statement to a victims’ services provider for submission to the court, which is not published to anyone else for any other purpose, cannot support a claim for libel because such a victim has absolute immunity when making statements as a witness in a judicial proceeding. In reaching this decision, the court stated: “The victim of a crime is an integral part of many criminal investigations and we can think of few participants in the judicial process more in need of protection. In addition, a court is required to seek information about restitution to victims under Wyoming law and the court and the prosecutor are required to communicate with the victim about that and other matters. . . . It is vital that victims feel free to speak openly during that process.”

From The Oregonian: What Every Parent Should Know About Wills

This article by Amy Wang in The Oregonian reminds parents about the importance of preparing a will. Parents should consider whether to set up a trust for children to provide for educational, medical, or other expenses. Wills also allow parents to determine who will be the guardian of their children if both parents pass away. Other estate planning tools, such as an advance directive form, allow parents to state whether they want to be placed on life support or receive tube feeding. Planning ahead relieves stress and family disagreement in the event a parent becomes incapacitated. Finally, parents should update a will after the birth of additional children or when their family status has changed.

Read “What Every Parent Should Know About Wills” by Amy Wang.

Oregon Court of Appeals Rules on Spousal Support and VA Payments

Husband and Wife were married for 35 years. Wife was a stay-at-home mom to the parties’ five children and did not work outside of the home during the marriage. Husband retired from the Army with symptoms of post-traumatic stress disorder (PTSD), which became worse over a period of 11 years until Husband was determined to be 100% disabled. Wife filed for divorce and requested spousal support. The trial court determined that only Husband’s non-disability income should be used to calculate spousal support. Wife appealed. The Court of Appeals found that the trial court had erred in failing to consider Husband’s VA benefits. Oregon law defines income for purposes of support payments to include “any program or contract to provide substitute wages during times of unemployment or disability." ORS 25.010(7)(f). The Court modified the trial court’s award to award Wife indefinite spousal support of $1,400 per month.


Read Morales v. Morales.

Oregon Court of Appeals Expands Parental Rights for Same-Sex Couples

In this case, the parties were in a same-sex relationship for 10 years, during which they decided to have a family together. They engaged in artificial insemination that resulted in the birth of two children. After their separation, Respondent blocked her former partner’s parenting time with the children, and Petitioner sought relief from the court. Oregon law grants legal parentage by operation of law to the husband of a woman who gives birth to a child conceived by artificial insemination, so long as the husband consented to the procedure (ORS 109.243). Petitioner argued that the statute was unconstitutional as it did not extend the same privilege to the same-sex domestic partner of a woman who gives birth via artificial insemination. The Court of Appeals agreed, and ruled that the statute must be extended to same-sex couples where both parties consent to the artificial insemination.

Read Schineovich and Kemp: http://www.publications.ojd.state.or.us/A138013.htm

Oregon Legislature to Increase Court Fees to Cover Budget Shortfall

The Oregon legislature will form a committee to address the increase of existing court fees and to establish new fees pursuant to House Bill 2287. This step was taken due to the dire state of the state’s finances for 2009-2011, which required a 10% cut in the Oregon Judicial Department’s budget. The goal is to use these funds to reduce the budget cut to 7.5%, which will still result in a loss of 220 full-time non-judge positions (over 11% of the department’s workforce).

Read more here: http://osbpublicaffairs.homestead.com/files/ci_090708.pdf

AARP Opposes Binding Arbitration Clauses in Nursing Home Contracts

In the June 2009 AARP Bulletin, journalist Emily Sachar addressed the issue of whether mandatory arbitration clauses in nursing home contracts can be waived. These clauses are often buried in the fine print and families dealing with the stress and emotion of moving a loved one into a care facility often do not understand or ignore the clause. The AARP Foundation Litigation attorneys oppose the inclusion of these clauses, which preclude the elderly and their families from litigating disputes in court and require them to enter into binding arbitration instead. The AARP is urging Congress to make binding arbitration clauses in nursing home contracts illegal, and urges families to refuse to sign any papers that include such a clause.

Read the article: http://bulletin.aarp.org/yourworld/law/articles/the_issue_can_mandatory_arbitration_clauses_in_nursing_home_contracts_be_waived_.html

Local News: Judge Invalidates Will

The family of Hillsdale resident Warren Cummins challenged his will which left his entire estate to his caregiver of four months, Patricia McIntosh. After a three-day trial and more than a dozen witnesses, Multnomah County Circuit Court Judge Katherine Tennyson agreed with the challenge and ruled that the caregiver unduly influenced Mr. Cummins to change his will.

Read the story: http://www.swcommconnection.com/news/story.php?story_id=124569106132789300

Oregon's Unusual Jury Requirements

Oregon is one of only two states that does not require unanimous jury decisions in most criminal matters. Whereas most states require unanimity, Oregon can convict or acquit a defendant based on a 10-2 jury vote. Louisiana is the only other state with such a system. Presumably, this makes it easier for a jury to reach "consensus" even with a holdout or two. However, this can also make getting an acquittal easier for a defense attorney.

For an interesting discussion of this rule, see the following article. http://www.nytimes.com/2009/07/07/us/07bar.html?_r=1&hp