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Family Law Newsletter
for members of the Colorado Bar Association Family Law Section
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Letter from the Chair
David Littman
The current economic crisis is seriously impacting families and it is impacting also their decisions regarding professional services relating to divorce. This, in turn, presents us with both unique challenges and many opportunities. Families in transition may no longer be able to spend substantial sums on traditional legal representation. We, as a profession, can moan and cry about possible decreases in our incomes, or we can develop new methods for serving greater numbers of families who are going to be watching their dollars more closely. We can encourage our clients to behave rationally and to think about how to conserve assets. We can use the various forms of alternative dispute resolution that have developed in the past twenty years.
Alternative Dispute Resolution has moved into the mainstream of family law practice with a variety of options to meet various needs and approaches. We have more tools than ever before to assist our clients in maintaining control of their case. In most instances, the least desirable alternative is to push families in transition through the litigation system. There are so many alternatives: mediation, decision-makers, parenting coordinators, collaborative law, Early Neutral Evaluation or Assessment, parenting coaching and many other approaches to help divorcing families find solutions without resorting to the cost and anxiety of a trial. Consider seeking early settlement options once financial disclosures are available. It may even be appropriate, in certain cases, to seek temporary solutions prior to disclosures being completed.
I want to issue a challenge to my attorney colleagues to be open to being more than gladiators riding into battle on behalf of our clients. As attorneys, we need to become better communicators and better problem solvers. We need to challenge ourselves to set examples for our divorcing clients, conducting ourselves at the highest levels of professionalism both in our conduct and in the way we communicate with one another about a case. We need to model effective problem solving during our representation to demonstrate that it is possible for divorcing parents to do the same.
It is extremely rare that clients come to us hoping that, with our skills, we will escalate the tensions surrounding a case.
Along with taking on the challenge of new skills and new responsibilities, I want to speak about our duty to those who cannot afford legal services. Difficult economic periods create greater needs for volunteerism from the bar. 11% of Coloradans are “poor” according to federal poverty guidelines - 500,000 people statewide. 15% of our state’s citizens speak a language other than English in their homes - 600,000 people statewide. Among our most vulnerable are people with disabilities, the elderly, Native Americans and migrant workers and, of course, among the most vulnerable are children.
Metro Volunteer Lawyers accepts cases based upon gross family income - an individual above $12,763 has too much income and a family of four cannot exceed $25,813 annual income to qualify for help. Think about it: if a person earns more than $49/day they are not eligible for services from MVL.
In 2007, only 323 attorneys accepted cases from MVL. However, those 323 attorneys handled 1,781 cases, more than 5 cases per attorney on average.
Nationally 1 out of every two eligible applicants for legal services is turned away because of a lack of resources.
When the Thursday Night Bar, the precursor of MVL was founded in 1966, Donald Giacomini stated in the Rocky Mountain News:
“We hope to galvanize as a profession to show this community we intend to discharge to the best of our responsibility an obligation we feel we owe. The legal profession is a branch of the administration of justice and not a mere money getting trade.”
I am encouraging each of us to take at least one pro bono case annually as part of our opportunity to give back to the community.
Pro Bono Opportunities
Metro Volunteer Lawyers needs your help!!
Why volunteer?
One reason is that the number of Colorado’s population financially eligible for free legal services from CLS or MVL (persons who earn less than 125% of poverty level) skyrocketed from 396,775 in 1980 to 692,505 in 2005, a whopping 57% increase. There is an ever-widening gap between the need for legal services and the resources available to meet that need. Due to a lack of available resources and limited awareness of the legal nature of problems, only one in five legal issues experienced by poor people is addressed with the assistance of a legal services lawyer or a pro bono private lawyer. Without our volunteers, we simply cannot provide pro bono legal services to needy metro area clients.
How does it work?
Sign up to volunteer to take a pro bono case. MVL will match you with a client. It’s easy. Our professional liability insurance will cover you for the case that we assign to you. You will represent the client in conducting his or her case just as you would any of your regular clients. You should even have them sign an agreement for services to outline the scope of services you will provide. Please keep track of your time and let us know when the case is completed. If you need a mentor, or just some professional guidance, we will give you the names of experienced attorneys who are willing to lend you an ear.
One free general CLE credit is earned for every five billable hours spent on a pro bono case, up to a maximum of nine CLE credits per reporting cycle.
For more information about these cases or other opportunities with MVL, please contact Patricia Trujillo at (303) 866-9307 or patt@denbar.org
Denver Family Law Pro Bono Mentoring Program?
By: Judge William Hood, Denver District Court
As we all know, indigent pro se parties in domestic relations cases could use more pro bono help. Unfortunately, it may be difficult for some attorneys with expertise in domestic relations to devote much time to organizations such as Metro Volunteer Lawyers (MVL). Those without such expertise may be reluctant to wade in. Consequently, I have started discussions with a number of people regarding a mentoring program to address these barriers to pro bono work in Denver domestic cases and would appreciate your input.
Last May I joined the Denver District Court bench never having practiced in the area of domestic relations, aside from having taken a couple of cases through MVL. Armed with that vast experience, I entered the fray. While I knew precious little about family law (and still have much to learn), I was worried that “pots and pans” would simply prove to be something I had to endure. Negative comments from all quarters left me bracing myself for litigants frothing at the mouth, shouting profanity at one another, as I pounded my gavel in a futile effort to restore order. Fortunately, the reality, most days, is quite different.
The truth is that most litigants, in Denver at least, do not come before the court spewing invective. Instead, they struggle with very limited resources and a resulting confusion about process. Often their cases are not complicated, either factually or legally, but the stakes are extraordinarily significant when children are at issue. The “self help center” on the Colorado State Judicial Branch website, pro se resource centers, family court facilitators and CFI’s assist many of these people tremendously. MVL’s Family Law Court Program helps with non-contested matters. http://www.metrovolunteerlawyers.org/RTF1.cfm?pagename=Family%20Law%20Court%20Program
Still, there is a gap we should do more to address, particularly in contested matters involving kids.
The CBA’s website tells me that the Family Law Section is some 900 attorneys strong. Presumably, many of these attorneys practice in the Denver metro area. Among your ranks are the finest domestic practitioners in the state. I have had the good fortune to watch some of you ply your trade with acumen and compassion. Based on those experiences, I can see that the decision to go into domestic practice typically is inspired by much more than simply a desire to make a buck. (Certainly, if that is all it was about, many of you would have moved in another direction!)
Yet, as I look at the roster of attorneys who presently help MVL or who participate in the Colorado Supreme Court Pro Bono Legal Services Commitment and Recognition Program R.P.C. 6.1 (http://www.courts.state.co.us/supct/probono.htm) or who donate to Colorado Legal Service’s annual Campaign for Justice, it is hard not to hope for more. If each section member took one pro bono case per year, or mentored others who did so, it would do a great deal to help indigent families in transition.
My objective, however, is not to chastise. I certainly appreciate that many of you are actively involved in host of altruistic activities. Many of you no doubt also sometimes find yourselves doing unintentional pro bono work when clients don’t pay their fees. Not so long ago, I found myself struggling with similar issues. Nonetheless, I feel that it remains important for us to do more to directly assist indigent litigants, especially when there is such a strong need in this very important arena.
I also understand that many of you may feel that directly representing clients in MVL cases may not be the best way to use your talents and limited time. Therefore, I have suggested to MVL, the Denver Bar Association (DBA) and the chair of the Family Law Section, David Littman, that we start a mentoring program (perhaps through MVL) to allow more seasoned domestic practitioners to assist those who lack experience. Hopefully, such a program would build on some of the good work previously done by John Eckelberry and others associated with the Family Law Section’s efforts to foster mentoring for younger domestic practitioners.
Neophytes who are doing, or who aspire to do, domestic work would have the opportunity not only to help those in need, but to also be helped themselves by developing professionally, learning important practice skills and also, frankly, by networking a bit. Through mentoring, more people could be helped than by simply taking on cases, and the time commitment would be substantially less and in smaller increments. Much of this mentoring could be done by phone and would allow those with busier schedules to help in a different, but a very meaningful, way. This approach might enable MVL to persuade some of the R.P.C. 6.1 volunteers to overcome some of the same apprehension I had about domestic practice.
Both mentors and mentees could be eligible for CLE credits under C.R.C.P. 260.8(1) (which notes that lawyers can earn nine units of credit during each three-year compliance period by, among other things, “mentoring another lawyer or law student” who is doing uncompensated pro bono civil legal work).
At this point, we need to evaluate whether there is really any enthusiasm for such a project. My initial conversations with people at MVL, DBA and the Family Law Section suggest that there may be an interest, but the concept needs refinement and, of course, some ideas seem more appealing in the abstract. Please let the bar association know if you would be interested in helping either as a mentor or mentee or have other ideas. Melissa Nicoletti at the Colorado Bar Association has graciously offered to receive your emails. You may reach her at melissan@cobar.org. Thank you.
FLS NEWSLETTER
Editors: Ellen Weston Squires, Katie Hays, Ann Gushurst and Cyndy Ciancio
The editors will happily accept submission of articles for publication, letters to the Editor, or other items of interest. The editor retains the right to edit any and all submissions. Please e-mail articles to ellen@SquiresFamilyLaw.com
Case Law Update
Published cases 3/11/08 – 10/14/08
By: Ronald D. Litvak, Esq. & Courtney J. Leathers, Esq. of Litvak Litvak Mehrtens & Epstein P.C., Denver, CO
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SEPARATION AND OTHER MARITAL AGREEMENTS
In re the Marriage of Thornhill, No. 05DR1025, 2008 WL 3877223 (Colo. App. Aug. 21, 2008).
Trial Court: Judge Flynn, Mesa County; Opinion by Judge Terry (Rothenberg and Hawthorne, JJ. concur)
Wife appeals, arguing that the parties’ separation agreement was unconscionable, that the court erred when it applied a marketability discount to the valuation of Husband’s closely-held business; Husband cross-appeals, contending the court erred when it ordered temporary maintenance for Wife.
Parties to a marriage may enter into separation agreements, and the provisions of separation agreements are binding upon the court unless they are found to be unconscionable. C.R.S. 14-10-112(1) & (2). When reviewing for conscionability, the court must first “review the provisions for fraud, overreaching, concealment of assets, or sharp dealing not consistent with obligations of marital partners to deal fairly with each other.” Regardless of the answer to question one, the court must then review the agreement to determine whether it is “fair, just and reasonable” by looking at the economic circumstances of the parties according to the agreement.
In this case, the Court found that the agreement was unconscionable, noting several factors. Wife was not represented when the agreement was negotiated and signed; Wife’s father, who aided in the negotiation of the agreement, was also the Chief Financial Officer of Husband’s business, thus he was conflicted between assisting Wife and attempting to preserve the business assets; and Wife testified to a lack of mathematical ability, reliance upon her father’s advice, and a lack of understanding of the value of the marital assets. Moreover, the intent of the agreement was to divide the marital assets equally, yet Wife was to receive her half of the assets over a period of ten years, without interest, thus the present value of Wife’s interest was considerably less than one-half of the marital assets. Though the court did not find fraud, overreaching or sharp dealing, the court held that the property distribution was not “fair, just and reasonable,” and had to be vacated.
With regard to temporary maintenance, the court stated that magistrates’ awards of temporary maintenance are appealable under C.R.M. 7(a). As a threshold question whether maintenance is applicable, the spouse seeking maintenance must (1) lack sufficient property, including marital property, to provide for his/her own needs; and (2) be unable to support himself/herself through appropriate employment. C.R.S. §14-10-114(3). If the spouse meets this test, then the spouse is entitled to maintenance. Only after the threshold determination for entitlement to maintenance has been met does maintenance of the parties’ lifestyle become relevant.
With regard to Husband’s majority shareholder interest in a closely-held business, the court appropriately applied a marketability discount to the value of Husband’s interest. Marketability discounts are applied in valuing closely held businesses in dissolution of marriage cases because such stock is less marketable than publicly traded stock, and in dissolution cases, courts act as courts of equity, thus they should have discretion to apply a discount.
Since the property division was vacated, and property division, maintenance and attorney fees are inextricably intertwined, the court must reconsider all three of theses issues upon remand.
DEFINING PROPERTY
In re the Marriage of Schmedeman, No. 06CA0550, 2008 WL 451743 (Colo. App. Feb. 21, 2008) petition for rehearing denied (July 3, 2008).
Trial Court: Judge Arkin, Douglas County; Opinion by Judge Furman (Rothenberg and Jones concur)
Lewis v. Lewis, No. 07SC134, 2008 WL 2581563 (Colo. June 30, 2008); as modified on denial of rehearing (Colo. Aug. 18, 2008).
Opinion by Judge Martinez (Eid, Rice and Coats, JJ., dissent)
The Supreme Court considers the proper standard of review for Ex-Wife’s claim of unjust enrichment by her ex-in-laws with the sale of the former marital home. The ex-in-laws purchased a home for Husband and Wife as a surprise gift. The ex-in-laws put $5000 down. For the next fourteen years, Husband and Wife paid the mortgage to the ex-in-laws, who paid the mortgage holder; Husband and Wife paid all property taxes, homeowner’s insurance, maintenance and improvement costs directly to providers; and held themselves out as owners of the property. Though refinancing or selling the home to Husband and Wife was discussed, it never came to fruition. Wife and children moved out in September 2000, and in November 2000 the ex-in-laws sold the house, netting for themselves alone, $108,879.86.
Wife sued the ex-in-laws to enforce their gifting the home to her, and in the alternative, since Wife was unaware of the option to purchase the home herself, Wife seeks to be put in the position of the seller to prevent unjust enrichment by the ex-in-laws. The trial court ordered judgment in favor of Wife for $17,345.37 (original purchase price less the outstanding mortgage at the time of sale). The Court of Appeals vacated the trial court’s order because it did not contain findings of fact or conclusions of law. On remand, the trial court found the close familial relationship between the parties was a “confidential relationship,” thus the parties did not commit their agreement to writing. Regardless, the ex-in-laws did have a duty to deal fairly with Husband and Wife. The trial court found that the ex-in-laws violated this duty when they sold the house without informing Wife, thus they unjustly benefited from the sale. The trial court awarded Wife $103,879.86 (sale price, less the outstanding mortgage and original down payment), based upon the theory of a resulting trust and unjust enrichment. Upon a second appeal, the Court of Appeals denied recovery under a resulting trust because there was not an express trust, stated that unjust enrichment is a mixed question of law and fact, and denied recovery under unjust enrichment.
The Supreme Court held that the proper appellate review standard for unjust enrichment is abuse of discretion. A party alleging unjust enrichment, a judicially created remedy, must prove (1) the defendant received a benefit (2) at the plaintiff’s expense (3) under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation. Focusing on the third prong, the court found that in familial settings involving failed gifts or failed contracts between close family members or confidants, when a party deviates significantly from a mutual or common purpose which results in his enrichment at the expense of close family members or confidants, he has been unjustly enriched. Thus it is the deviation from a mutual purpose that governs the third prong of the unjust enrichment standard.
Pursuant to prong one, the court found a confidential relationship between Wife and the ex-in-laws, thus there was a duty to deal fairly with each other. Pursuant to prong two, the ex-in-laws were enriched by the contributions of Husband and Wife. Pursuant to prong three, the court found a mutual purpose in acquiring the home so that Husband and Wife would enjoy the benefits of home ownership.
Justice Eid, dissenting, states there are no cases in this jurisdiction, or any other, recognizing a “mutual purpose” theory of unjust enrichment. He contends that unjust enrichment analysis focuses on the benefit conferred, not upon the intent of the parties. He argues that the court has created a new cause of action, “failed gift or failed contract between close family members of confidants” and the standard they apply is actually a claim for breach of contract, not unjust enrichment. The majority erred by not determining whether Wife actually conferred a net benefit on the ex-in-laws and to what extent, if any, she conferred a benefit versus Husband conferring a benefit.
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Featured Article by Brian Beatte, Esq. and Hope Beatte, M.D.
I Hate You, Don’t Fire Me
Bipolar Disorder vs. Borderline Personality Disorder-Dealing with Impossible Clients
By: Brian Beatte, Esq. & Hope Beatte, M.D.
You know the ones … the client whose behavior is erratic, unpredictable, and irrational. One moment they are praising you as the best attorney in the world and in the next breath they are threatening you or adamantly adhering to an untenable position against all advice. They purposely place their children in the middle of a divorce and often seem intent on making a bad situation worse by behaving bizarrely. What are we, as attorneys, to do with our difficult clients? Perhaps it would help us to understand them a little better.
In our attempt to describe this type of person, we sometimes refer to these types of clients to our colleagues as “that crazy client of mine” or “that client with the screw loose.” All too frequently, those of us with backgrounds in mental health (or exposure to the never-ending array of advertisements promoting drug therapies for mental illnesses) resort to casually labeling difficult clients as suffering from “bipolar disorder.” Sometimes we may become so frustrated we ask the client, “Just exactly what is wrong with you?!” The client’s answer to this question often only adds to the confusion, as many clients have self-diagnosed themselves as suffering from bipolar disorder. Often, we are too quick to accept this overused diagnosis.
The Difference Between Bipolar Disorder and Borderline Personality Disorder and Why It Matters
Clients who are well-versed in mental health issues may be all too happy to tell you why they are acting as they do. One of the most popular labels for dysfunctional behavior patterns these days is bipolar disorder (the old term was manic-depressive). However, most psychiatrists agree that this label is one of the most over diagnosed illnesses in modern psychiatry. Bipolar disorder is a chronic, severe, debilitating mental illness characterized by extreme shifts in mood that occur over several weeks. Generally, the “true” bipolar client has experienced major depressive events intermixed with manic episodes. Mania is very serious and is defined by racing thoughts, not sleeping, hyperactivity (tons of energy), rapid and pressured speech, irritable or euphoric mood, grandiosity, distractibility, an increase in goal-directed activity, and impulsivity including excessive spending, promiscuity, and other reckless behavior. Fortunately, very few people actually have this diagnosis, statistically only between one-half and five percent of the general population.
We note that the diagnosis of bipolar disorder should only be made by a trained mental health professional using strict criteria (reference the DSM-IV for the comprehensive bipolar disorder criteria). If you suspect a client suffers from this illness, you should refer them to a mental health professional for an appropriate diagnosis and treatment. As legal professionals, we should be slow to label our clients as “bipolar” (even if the client asserts that he/she has the diagnosis) as this diagnosis carries the stigma associated with severe mental illness. However, bipolar disorder can be managed effectively by medication, allowing clients who are correctly diagnosed and treated to exhibit consistently normal behavior.
Then how can all these people in your office (or, as frequently is the case, in the office of opposing counsel) be bipolar? Well, more than likely they aren’t . . . period. A more plausible explanation is that these clients have a personality disorder. A personality disorder is best defined as lifelong poor and ineffective coping skills. Borderline personality disorder is often the real culprit when the inaccurate diagnosis of bipolar disorder is made by a mental health professional or, alternatively, self-diagnosed. Borderline personality disorder is characterized by mood swings that change in minutes (also described as intense affective instability), rage (inappropriate or excessive anger, fighting, and hitting walls or breaking objects), threats of suicide (often with cutting or burning of self), transient stress related paranoia, rocky relationships, fears of abandonment, substance abuse, and other erratic or dangerous behavior. Borderline clients often see things as black and white (typically viewing someone or something as either all good or all bad). In addition, borderlines are often plagued by unstable self-image and chronic feelings of emptiness.
The unstable self-image displayed by the borderline personality disorder often exhibits itself in our offices every day. These clients display frequent and dramatic shifts in what most people consider fundamental and defining areas of a person’s life, e.g. new careers, values or belief systems, and present goals. These shifts often occur in the span of one meeting to the next (or from one e-mail to the next, or telephone call to the next, etc.). Also, the client with the borderline personality disorder will seek to undermine a “deal” immediately before it is realized, e.g. make a last-minute demand that dramatically affects the relative positions of the parties involved or affects the timing of an impending transaction. Or, more common still, these clients will sabotage a clearly-defined goal of representation (such as a divorce settlement) on the eve of accomplishing that goal, e.g. call the opposing spouse the night before the mediation and make unreasonable demands or wild accusations.
Why then are so many clients so pleased to tell you they are “bipolar” when they actually present with a borderline personality disorder? For those clients who seek mental health treatment, part of the blame falls on therapists and psychiatrists who often diagnosis a major mental illness in a client in order to be able to bill insurance companies (you need a code to bill and it usually cannot be a personality disorder). Part of the blame falls on clients who hear media messages and self-diagnose. It is also comforting, albeit in strange way, for these clients to have a socially accepted label to apply to “what is wrong.” These clients often become fixated on their diagnosis, so don’t expect them to respond enthusiastically when you suggest that they may share the borderline personality disorder. Also note that the borderline personality often frustrates attorneys who encourage them to seek professional help. This is because, unlike the true bipolar, clients who exhibit borderline personality disorder do not respond well to medications or therapy. In fact, most mental health professionals believe that patients with borderline personality disorders cannot be treated; rather, they can only be managed.
If you think you have a borderline client what can you do? It just so happens that these types of clients respond well to structure. This means that you need to be consistent and establish solid boundaries in the face of their chaotic behavior. Keep appointment times and set limits on the amount of time spent in meetings, on the phone, responding to e-mail, etc. These clients may ask for outrageous favors like giving them your home number, urging you to come to their home to see them on nights and weekends, or continuously urging you to bill at a lower rate. Often, borderline clients have had multiple attorneys before you. Even though you are consistent and provide ample structure, these clients may continue to confound you. They may show up at your home. They may scream at you. Don’t give in. Try not to respond to their inappropriate behavior or mood swings and remain neutral. Often the borderline will try to involve you directly in their conflict, don’t participate. One of the most frustrating facets of the borderline personality is the frequent and sudden shifts in mood. One minute you are the greatest attorney in the world and in the next minute your client is threatening to fire you or take disciplinary action against you.
As practitioners, we can each expect to run into difficult clients from time to time. In addition, the borderline personality is not limited to our client ledgers; rather, these individuals are frequently members of our own families, circle of friends, co-workers/staff, neighbors, etc. Some of us may even identify with the borderline characteristics outlined above when we look closely at ourselves and examine our own coping mechanisms. It is important for us to learn how to effectively manage these clients in order to help them obtain the best possible outcomes from our representation. Perhaps along the way, we can assist our clients in developing positive coping skills that they can use not only in the midst of a turbulent and distressing legal battle, but also in their day-to-day lives.
Fellow counselors, good luck in dealing with these difficult clients and keep up the good fight.
Checklist for Symptoms Identifying Problem Clients in the Initial Interview
- Multiple attorneys before you
- Client requesting special favors, or treatment such as your home number, after hours visits, etc.
- Rapid, shifting moods
- Issues with temper or rage
- History of substance abuse, impulsive and/or reckless behavior
- Multiple career changes over a short period of time
- Inability to complete educational goals
- Tendency to see things in black and white, either all good or all bad
- Feelings that everyone is out to get them
- Suicidal threats or references
Recommendations for Dealing with Difficult Clients:
- Maintain appropriate boundaries: do not give out personal phone number, home address, information about your family
- Promote a structured environment: provide definite tasks, goals and stick to them
- Adhere to preset meeting times and time limits
- Limit indecision or indecisiveness by providing the client with the “best” choices or alternatives
- Avoid conflict or engaging in arguments with the client
- Remain neutral even if client becomes enraged or angry – do not react
- Be consistent: do not give in to special requests
- Develop good working relationships with several therapists, psychiatrists or mental health professionals that you may refer difficult clients to
- Lastly, have a safety plan for your office in case a client loses control
- Additional items that may be useful:
DSM-IV Criteria for Borderline Personality Disorder: Requires any 5 out of 9
1. Frantic efforts to avoid real or imagined abandonment
2. A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation.
3. Identity disturbance: markedly and persistently unstable self-image or sense of self.
4. Impulsivity in at least two areas that are potentially self-damaging (e.g., promiscuous sex, eating disorders, binge eating, substance abuse, reckless driving)
5. Recurrent suicidal behavior, gestures, threats, or self-mutilating behavior such as cutting, interfering with the healing of scars, or picking at oneself
6. Affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days)
7. Chronic feelings of emptiness, worthlessness
8. Inappropriate anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights)
9. Transient, stress-related paranoid ideation, delusions or severe dissociative symptoms
Source: (2004) Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR (Text Revision). Washington, DC: American Psychiatric Association.
Notes from Adams County Brown Bag Luncheon With FLS Officers
August 21, 2008
The following officers of the FLS attended: David Littman (chair), Kathryn Beck (past chair), Marie Moses (chair elect), Richard Zuber (Secretary), Brenda L. Storey (treasurer).
The following District Court Judges, attended: Hon. Edward C. Moss, Hon. Patrick T. Murphy, Hon. Jill-Elyn Straus, Hon. F. Michael Goodbee.
The following Magistrates attended: Magistrate Gregory P. Beacom, Magistrate Peter Stapp, Magistrate Jonathan Bley.
Also present were Janet Lee, Domestic Family Court Facilitator and Jennifer Mendoza, Juvenile Programs Coordinator.
David Littman’s comments:
• the FLS wants an on-going dialogue with the Bench as to any issues or matters of concern for either lawyers or judges.
• the FLS officers will facilitate any announcements/communications the Bench might want to publish
• He outlined ways to stay connected including attending, without charge, the monthly lunch programs put on by the FLS
• Judges attend the Family Law Institute without charge as to tuition and books.
• This past year there was a Judicial Conference/Training in Breckenridge which ran contemporaneously with the Family Law Institute which encouraged many judges to also attend the Family Law Institute which was a very successful program both in terms of content and attendance. (Marie Moses as chair elect advised she is in the process of planning next year’s Family Law Institute and that the Institute will take place on August 7, 8, and 9, 2009. The location of the program at least for 2009 will remain at the Beaver Run resort.
• the FLS is in the process of updating and publishing a new Bench Bar book, with a CD which will be provided to the judges without charge. *Note: There are still some 2006 books available for those judicial officers in need of a copy.
• In addition, the judges were notified that there will once again in 2009 be a designated FLS-sponsored luncheon for judges and family law practitioners date to be announced.
Marie Moses further reported that she and Kathryn Beck presented September 26 on the topic “Standards For Modification of Parenting Time and Parental Rights and Responsibilities including Removal.” There continues to be a lot of confusion among practitioners as to which standard is applicable.
At the May luncheon, Dick Rotole et al., are scheduled to present the Legislative Law update. Further, it is anticipated there will be an Ethics presentation at the March meeting. David hopes there will be an ethics discussion concerning the Sorensen case decided last year, pertaining to what duties a lawyer has in representing impaired clients.
The judges were further advised that the FLS provides a mentoring program for younger attorneys with the Chair of this program being attorney John Eckelberry. There are at present 25 FLS attorney volunteer mentors signed up, more than the number of attorneys seeking assistance. Also, discussion took place pertaining to what steps could be taken to accomplish the aspirational goal of lawyers exercising greater degree of professionalism towards each other and to the courts. The Bar Association has a professionalism committee which can work with attorneys who are in conflict or at war with one another. The judges were encouraged to suggest such a remedy to lawyers they perceive are not working well together. David further commented on the fact that Rob Hinds is working on updating the “Expert Witness Handbook”.
David asked the judges about what Adams County was doing regarding promoting Early Neutral Evaluations (ENE) a/k/a Early Neutral Assessment (ENA). It was reported that trainers from Minnesota had conducted a training for Adams county lawyers/mental health/court personnel. However, concerns regarding confidentiality had been raised regarding ENA teams possibly reporting to the court when recommendations regarding the need for counseling or evaluations were made. Judge Moss indicated that there is one ENA team in Adams county taking referrals on a pro bono basis and that there will likely be court-imposed financial guidelines for pro bono ENA. Judge Moss also indicated that he believed the process will have to be fleshed out over time and that, so far, he is happy with ENA.
Further discussion took place as to whether with low income parties, the use of the ENA process represents a Hobbs choice, particularly where the parties might only have funds for either a CFI evaluation or an ENA assessment but not both. David pointed out that the typical cost of a CFI evaluation is far more than that of an ENA process, especially if the assessment is 4 hours or less. Moreover, it has been his experience that most CFI’s who are mental health professionals are regularly performing psychological testing to comply with APA guidelines. He noted that, as a result, the cost of many CFI evaluations has skyrocketed, far beyond what was initially contemplated as a less costly alternative to a 14-10-127 C.R.S. evaluation. Another issue that has created drawbacks as to using CFI’s is that Supreme Court directive 04-08 prevents CFIs from acting as mediators in the case in which they have been appointed, thereby making ENA an attractive alternative form of dispute resolution.
New 2008 Legislation as reported by Marie Moses as follows:
There are three new bills pertaining to family law.
1. CRS 14-10-129 (3)(a) was amended to also include certain crimes against children committed by a parent outside the State of Colorado. The out of state crimes should contain the same elements as the listed Colorado crimes, as a basis for restricting or denying parenting time.
2. CRS 14-10-131.3 was added to CRS by way of SB081176 covering the circumstance of interim modification of existing permanent parenting time orders resulting from deployment overseas for servicemen/women only in the Reserves and National Guard. Upon return from deployment overseas the interim modified order terminates. However, neither parent is precluded by this Bill from seeking a permanent modification of parenting time, if the facts and circumstances of the case justify modification upon the servicepersons return.
3. Senate Bill 08-183 added a new section to Article 4 of Title 19 namely 19-4-107.3, “Concerning the Effect of DNA Evidence Of NonParentage on Child-Related Orders. This new statutory section permits a court to set aside a prior order determining parentage based on DNA testing establishing an exclusion as the biological father provided the motion to set aside the order is filed within 2 years of the date of the order and provided the court determines that it is just and proper under the circumstances and in the best interests of the child. Further despite a DNA exclusion, the statute precludes setting aside the order if the alleged father admitted paternity under 19-4-105(1)(c)(father has married child’s mother and acknowledged paternity in writing).
Janet Lee, Domestic Family Court facilitator reported that those individuals interested in having their names placed on the 17th Judicial District’s CFI directory must complete the following documents:
1. CFI Affidavit of Compliance with Chief Justice Directive 04-08;
2. CFI application form;
3. An updated copy of the individual’s resume.
The foregoing documents are available on the 17th Judicial District’s web site.
Also for those who are interested you can contact Janet Lee at Janet.Lee@judicial.state.co.us or phone 303-654-3265.
2ND Judicial District/ Denver District Court Bench Bar Lunch Meeting (November 17, 2008)
The following officers/executive council members attended: David Littman(chair), Kathryn Beck ( immediate past chair), Richard Zuber( secretary) and Brenda Storey (treasurer). Marie Moses (chair elect) absence was excused.
The following judicial officers attended: Hon. J. Stephen Phillips, Hon. Robert S. Hyatt, Hon. Edward Bronfin, Magistrate Diane Johnson Dupree, Magistrate Elizabeth Demberg Leith. Court facilitator (domestic relations) Julia Kneeland also attended.
A. David’s opening remarks tracked those reported above. He actively invited the judicial officers to submit topics they would like to see addressed at the Family Law Institute.
B. Legislative Committee Report- In Marie’s absence, committee member and treasurer Brenda Storey gave a report regarding the above noted areas of new legislation.
C. Judge Phillips reported on the temporary (until July 2010) relocation of the domestic relations courtrooms (District Court judges only and not Magistrates) to 303 W. Colfax pending the completion of the new courthouse. He stressed that he was not worried about security based on statistics and the fact that there is only one entrance and one exit to the courtrooms in the building. Further, noted that the Sheriff has an office at the entrance to the building.
The domestic relations court facilitator will continue to conduct initial status conferences at the 303 W. Colfax building, although the judges may also conduct the occasional initial status conferences.
**Finally, there is parking available for the new courtrooms at 14th and Court**
D. In discussions of the updating of the Expert Witness and Resource directory (editors Rob Hinds and Helen Shreves), it was noted that new categories of experts will be added to include divorce coaches and child specialists. Magistrate Dupree asked to be advised of lawyers who are willing to volunteer to take punitive contempt cases and accept state pay.
E. David introduced a spirited discussion, soliciting opinions from the judicial officers, relative to the expense associated with CFI appointments as contrasted with the traditional 14-10-127 evaluation. Judge Phillips stated that in his opinion the CFI process is a vast improvement, since the CFI is a better “snoop” and can diffuse the animosity of the parties. Also, he/she can get a quicker assessment than the 14-10-127 evaluator. Judge Hyatt, indicated that CFIs are good for pro se cases and Denver is in need of more CFIs particularly Spanish-speaking ones who will work at state pay or on a sliding fee scale.
It was suggested that young practitioners may make good CFIs (editor’s note: by whom?). Judge Phillips indicated that in considering who to appoint as a CFI, he looks for individuals who can start immediately so parties don’t get too entrenched in their positions. He believes delaying an appointment of a CFI is a killer. One way to get on the short list for a CFI appointment in Denver is to go through the training with Katz and Loizeaux, (the Secy has been advised that their next training is in May 2009). Officers were asked to encourage experienced attorneys with CFI training to contact the domestic judges and court facilitator.
F. ENA (early neutral assessments)
The judges were not at all clear what was ENA or ENE. David explained the process.
G. Mediation- Judge Phillips doesn’t require mediation whereas Judge Hyatt sometimes has mandatory mediation before granting a permanent orders hearing.
H. CRCP 121 settlement conferences were raised by Brenda, who asked about the status of whether the judges were mandating them or not. Judge Phillips stated that he feels they have fallen by the wayside; Brenda indicated that in her experience they can be very effective.
I. General discussions followed.
• 70% of Denver cases are pro se litigants!
• Magistrate Dupree indicated that she requires a telephone conference before she will allow a case to be set for trial so as to ensure there are no outstanding discovery issues. Judge Hyatt has reluctance about giving advisory opinions at settlement conferences in advance of hearing the evidence.
• The current financial recession was cited as a factor – with all the judges concurring that it absolutely needs to be considered in dissolution matters.
Barbara M. Quade
By Richard Zuber (The following lecture was given at AAML Seminar)
We have lost a dear friend and fellow, Barbara Quade who at age 58 passed away after a long and painful illness.
Certainly her passing brings to mind the words of John Donne:
“ any man’s death diminishes me because I am involved in
mankind.” “Wherefore don’t ask for whom the bell tolls……
Barb Quade was certainly involved in mankind. She believed in the interconnectedness of people! Her beliefs were demonstrated over and over in Barb’s uncompromising commitment to give back to the community in which she lived and worked as a lawyer, as a mediator and as a human being.
One only needs to look at the newspapers that published the notice of her death, which made it clear if you wish to honor her memory don’t send flowers, rather send contributions to the Denver Bar Foundation for the Metropolitan Volunteer Lawyers. A pro bono cause which Barb championed and believed in fervently through out her legal career.
I am absolutely certain that there are few attorneys in this room whom Barb didn’t seek to enlist at one time or another in her Family Law Pro Bono seminar which she started in 1995. And there are few attorneys who weren’t grateful for the experience of working with Barb.
Thus while we are all diminished by Barb’s passing, how can any of us ignore the fact that we have gained immeasurably as lawyers and as human beings by reason of our association with Barbara Quade. During her lifetime the legal profession recognized and honored Barb repeatedly.
The AAML bestowed its Lifetime Achievement award upon her in 2008. The Family Law Section of the Bar awarded her its first Family Law Icon Award in 2008 and changed the name of its scholarship fund to The Barbara Quade Scholarship which is intended to assist young attorneys who want to attend Family Law CLE programs. CLE of Colorado last year awarded Barb the Richard N. Doyle award of excellence for her contributions to continuing legal education in Colorado.
Moreover, the Academy wishes to further honor Barb by dedicating today’s seminar to her memory.
Finally, I believe that Barb is here today in spirit. If so she is undoubtedly standing next to me at the podium. I can picture her clearly! She would be frowning and looking at me and at her watch over the top of her glasses. Her arms would be crossed. She would be tapping her foot. And in a booming voice she would say “ Zuber cut the crap already and let’s get on with the seminar!!!!!”
Meet Magistrate Diane J. Dupree
NAME: Diane J. Dupree
DISTRICT: 2nd
DATE APPOINTED: May 1, 1999
LAW SCHOOL: University of Denver School of Law 1987
OTHER DEGREES: BA in Child Psychology, Metropolitan State College, Magna Cum Laude 1983
DOCKET: All matters for post-decree relief including modifications of decision making responsibilities, physical custody, parenting time, child support, modification/termination of spousal maintenance, relocation by residential parent, emergency hearings, remedial/punitive contempt proceedings, property/asset disputes, objection to garnishment, grandparent visitation, challenges to entry of judgment, and attorney fee disputes.
PREVIOUS LEGAL EXPERIENCE: Worked twelve years (1987-1999) as a partner in the litigation firm of Ciancio, Tasker, Dupree & Jonsen, P.C. Managed civil litigation caseload for personal injury claims including premises liability cases, and domestic relations cases. Caseload was approximately 60% domestic relations and 40% personal injury and civil litigation.
JOB(S) BEFORE LAW SCHOOL: Illustrator’s model for commercial art and photography studio; Finance Administrator for Honeywell Information Systems, Denver Branch.
LAW RELATED ACTIVITIES: On-going presentations to professional organizations; Pro Bono Training; Training for Supervised Parenting Time Providers; Contempt Training; board member for Domestic Violence Treatment Certification; active in numerous public service projects; judge mock trial competitions; mentor new magistrates/attorneys.
HOBBIES: I am an avid birder and take several birding excursions each year. I belong to the Audubon Society of Greater Denver, the South Platte Park Wetlands/Carson Nature Center and the Cornell Laboratory of Ornithology. I enjoy dinner with family and friends, movies, theatre and trips to historical sites. I am also a devoted Nuggets fan with season tickets and boundless optimism. I spend winter evenings trying to teach myself Spanish.
FAVORITE MOVIE: Out of Africa
FAVORITE MUSIC: Anything recorded by Ray Charles
FAVORITE READ: “John Adam” by David McCullough and “I Know This Much Is True” by Wally Lamb
PET PEEVE: Any form of the “Motion for Order to Enforce Order.” Example: “At permanent orders, the judge ordered husband to sell the 2005 Chevy truck within 60 days and give wife 50% of the proceeds. It has now been two years and he still hasn’t sold the Chevy. Wife requests the court enter an order for husband to comply with that order.” (Wife doesn’t need a second order; wife needs to proceed with enforcement of first order, i.e., contempt, garnishment, etc.).
% OF HEARINGS WHERE AT LEAST 1 PARTY IS PRO SE: 10-15%
CRCP 16.2 IMPLEMENTATION: Most attorneys are very diligent in complying with this rule. When they fail to comply without good cause, I enter sanctions; however, I am also very liberal granting motions for expanded discovery, including additional depositions. The attorneys know their case much better than I; if they tell me they need expanded discovery, I believe them. Also, the Trial Management Certificate is extremely helpful to the Court. Because the parties’ positions can change dramatically between the filing of the pleadings and the trial date, the TMC immediately brings the court up to date before the trial begins and is an excellent augmentation to the opening statements and a useful outline during the trial.
2008-2009 FLS Luncheon Dates
Friday, February 13, 2009 Fiding Hidden Assets in Divorce with Yvonne Zuber**
Friday, March 20, 2009 ENE presentation (organized by Terri Harrington)**
Friday, April 17, 2009 A look at the repercussions of the Thornhill case regarding business evaluations and the trend towards Fair Market Value (organized by Steve Epstein)**
Friday, May 15, 2009** Legislative Update
** Indicates dates for Family Law Section Council meetings
The FLS Luncheons are held at the Pepsi Center, located at 1000 Chopper Circle in Denver.
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