January 2004

 Family Law Section Council Meeting - January 16, 2004

 Frances C. Fontana FLS Secretary

The Executive Council Meeting was called to Order by Steve Lass, Chair, at 1:47 p.m. In attendance were Council Members Fran Fontana, Secretary; Dave Johnson, Treasurer; Lesleigh Monahan, Immediate-Past Chair; Martin Brown; Marie Avery Moses; Beth Henson; Frank McGuane; Russel Murray; Richard Zuber; Steve Epstein; Gina Weitzenkorn; Kathryn Beck; Mary Jane Cox; Lisa M. Dailey; Ron Litvak; Deb Anderson; Terry Bernuth;  Dick Rotole; Rob Hinds; Bob Malman; David Littman; Angie Arkin; Joan McWilliams; and Guests: Elissa Bercovitz; Ellen Squires and John L. Eckelberry.  The following Council Members were excused:  Bonnie Schriner and Sheila Gutterman.

A Motion to approve the Minutes of the November 21 meeting was made, seconded and passed.  The Minutes for the November 21, 2003 Executive Council Meeting are approved.

Steve Lass invited all of the Council Members to go to the Family Law Section Web site in order to offer comments and feedback about ways to enhance or improve the usefulness of the site to our membership. 

Steve Lass reported that there were 175 attendees at the luncheon and gave credit and thanks to Ron Litvak for the great turnout and the terrific job he did with the Case Law update.  

It was noted that the last newsletter included an announcement about Kim Willoughby’s book, and that as a result thereof, we are now receiving requests for press releases from several other people.  It is not the position of the Family Law Section to provide for press releases, although it is possible to include announcements about publications by members in the newsletter.  Ellen Squires who is working with Helen Shreves on the newsletter reported that their position has been that if it is in the nature of an announcement it is okay to print, but not if it appears like an advertisement.  The Council discussed what types of things to print and it was agreed that the officers will meet with Ellen and Helen to discuss the issue further, in the hopes of developing a policy on that issue. 

The section has received a grant request from the Office of Children’s Representative.  Dave Johnson reported on the request and described the work of the office.  OCR is asking for a $1,000 grant to assist with training this year.  That request was reviewed by the Grant Committee who recommended approval of the request.  A Motion to approve the grant was made, seconded, and unanimously approved.  Dave Johnson will follow up on getting the money to OCR

David Littman related information about the 1st JD CASA indicating that it is a is well managed with a competent director.  David indicated that he did not know the specific purpose of the 1st JD CASA grant request but noted that in the past the Grant had been used for training of CASA volunteers.  David offered to contact the director of the program to check on the grant request and report back to Council at a future meeting.

Treasurer’s report indicates that there is slightly over $60,000 in the Section account as of December 31st , available for upcoming expenses.  Melissa McClerkin reported that the Section has historically been billed $1.50 per member for bar association services that are provided, and that the per member price is being increased to $3.00 per member for the ‘04 - ‘05 membership year. 

Lesleigh Monahan reported that the nominating committee was gearing up and reminded existing Council members that they are required to take affirmative action in order to be included on the ballot if their term is up and they want to run again.  Council members were also reminded that they are to obtain the endorsement of 5 section members in order to be placed on the ballot.  Angie Arkin indicated that she would still like to participate in Council meetings but would prefer to give up her seat so that it can be filled by someone who can vote on Council issues.

The Council discussed the difficulty that exists in getting members from outside the Denver Metro area to run for Council.  All Council members were encouraged to actively solicit members they know live outside the Denver metro area, who might be willing to run for Council.

Lesleigh also reported on the Judicial Education Training component of the Family Law Institute and indicated that an outline has been prepared of topics that might be appropriate for training or  luncheon sessions at the Institute, along with a potential list of faculty presented to Melinda Taylor at SCAO. Lesleigh is awaiting a response from Melinda.

The Council members then discussed ideas on training for the new Denver District Court judges.  It was noted that the Section might be called upon to provide some funding for costs associated with the training of new judges.  The Judges bench book committee will take a serious look at updating the bench book as another way to assist with judicial training.

Melissa McClerkin reported on the mentoring program.  All of the mentees have been assigned mentors, and that new calls for mentors are starting to come in.  All Council members are on the list as available mentors.  As part of the program, initial letters will be sent to the mentees six months after the initial match to check on progress.

The February luncheon will be on appellate advocacy and all Council members were urged to attend.  There will only be an Executive Council meeting if it is necessary to address legislative issues.  The March luncheon will be part of the CLE program with CCMO.

It was reported that the Section is signed up to have four members go to lunch March 30th at the DU Law School to provide an opportunity for law students to ask questions about family law practice.  Thanks to David Littman, Martin Brown, Beth Henson, and Dave Johnson for volunteering to participate in that event.

The Colorado Lawyer committee indicated that it is always in need of Family Law articles and Council members were urged to contribute.

It was reported that the transition from the Lend-a-Lawyer program to the Flying Squad is complete and volunteers are needed for the flying squads.  Jon Pelegrin’s firm has volunteered, as has Martin Brown and Fontana & Associates.  Randall LaCoco is looking at implementing the use of flying squads in Durango, and other areas where it might be welcomed. 

Richard Zuber reported on the planning for the Family Law Institute.  Many of the Council members have verbally committed to speak.  The structure of the program is that Friday afternoon will be hot topics in ten minute segments, starting at 2:30.  On Saturday there will be multiple tracks with Dana Cogan and Kevin Alpert organizing and planning a mental health track; Bonnie Schriner working on a mediation track, and Richard, working on the advocacy track.  There will be focus on business valuations - nuts to bolts.  Preston Hoffer, Ron Koch and Jim Tenbrook are putting together part of the program on reading tax returns, and Ron Litvak will lay out the law relevant to business valuations.  Angie Arkin and Bob Hinds are putting together the Judges’ program on Sunday, with Angie trying to get other judges involved.   The Institute will include a Judges training component with free admission to Judges.  Chuck Brega has committed to speaking at the Judges training as has Steve Lass. Angie will e-mail all judges again with a save- the- date reminder.   Lesleigh Monahan will make sure the two new judges in Denver are aware of the Insitute.

The Officers have been invited to tour the new NITA training facility and will arrange to visit that facility  some time soon.

The primary goal of the meeting is to obtain Executive Council authority to set forth the positions upon which there is agreement.  The Officers formed a task force to take a close look at the proposed rule.  The task force read all of the comments received by Melissa from the FLS website and the comments from Tom Henley’s website.  The Section has the opportunity to submit a letter by Tuesday morning for consideration by the committee. 

The task force prepared a Draft Letter setting forth concerns about the most recent Draft of 16.2 - copies of that letter have been distributed.  Frank McGuane - moves to send the letter as drafted
Dick Rotole seconds the motion.

Ron Litvak, who is also President of the Colorado Chapter of the American Academy of Matrimonial Lawyers, noted that there was a  remarkable amount of similarity in the comments made by that group and those made by our task force.  He expressed his feeling that the work of task force adequately represents feelings being expressed by Section members.  Ron reported that the Academy decided that the automatic disclosures are too much for the majority of cases and pro se parties; current disclosures should be first layer; other disclosures contained in the rule should be authorized at first status conference; that this draft of the rule, which contemplates revocation of 26.2, does away with pattern discovery and that did a lot to take away discovery arguments; the Academy will be suggesting that getting to discovery would be tier 3 - more like pattern discovery of 26.2

Steve Lass noted that the letter is what the task force is seeking approval on, and that the Appendices are a work in progress, which can then be modified as necessary. 

Comments offered by Council Members:

The rule says that the  judge should permit reasonable discovery; if we eliminate pattern discovery,  we will then be faced with certain judges who will ask to preview interrogatories or requests before they are sent out, and there should therefore be a tiered approach to discovery included in the Rule.

One member indicated that he was troubled by rules disclosure especially with the 10 year time period for non-disclosures and that he believes the Supreme Court may be sensitive to the issue that this will expand up front costs and litigation.  He stated that he was very much supportive of the letter but perhaps there could be more language regarding the issue of costs etc.

Another member noted that if Rule 60 is extended for a lengthy period of time, and 8 years later something is raised, there is no way to know what was in the record at the time of the hearing in terms of what was disclosed or on the record; unless you order a transcript in every case the ability to recreate that record 7 or 8 years down the road would be negligible and that the lack of that information would  hinder the level of review.  That concern was reiterated by another member who added that the situation is exacerbated by  the request to retrieve exhibits at the end of trials.

It was mentioned that the general consensus is that 10 years is too long but 6 months is too short.

One member noted that the reference to any property or liability and any income is too broad.
It was suggested that the language should be similar to the language we use in separation agreements.
Another member commented that the way the letter is drafted properly addresses that particular item.

One member commented from the perspective of an advocate for kids, that there should be added language for cases that should not be pushed forward quickly; that not all cases need expeditious resolution or need to be handled quickly - best to insert in C 6 of the rule.

Regarding Modifications to Rule 60, the question asked whether the alternative of shortening the time frame could be clarified and moved from the appendix to the body of the letter.  The same question was raised about the feedback about experts put in the letter what is in the appendix.

A vote was taken and unanimous approval of the letter in general, as written was given.

The Rule might go from standing committee, to the Supreme Court or their rules committee if need be.

The Legislative Committee reported that there is a  proposed bill limited to modification of 14-10-108 related to ex parte Protection Orders without clear and convincing evidence; it would do away with the hearing requirement within 48 hours; and replace it with a hearing within 5 days after motion to set aside is filed, and if it can’t be heard the TPO  will be dismissed.  Mike Valdez is asking for comments on the bill and reported that it was likely that the Domestic Violence forces will be opposed to the bill and lead the objection.

Another bill that might come up attempts to do away with right to maintenance if the recipient is accused of sexual abuse.

It was reported that big time national collection agencies are coming to CO and trying to collect child support, arguing that they are not covered by Fair Consumer Trade Act, giving rise to the issue of regulating such activity .

Lesleigh Monahan thanked the members of the task force on behalf of the Council and the meeting was adjourned at 3:05 p.m.