Benavidez Law Blog

How To Tell Children About Divorce

    One of the most difficult conversations a parent can have with a child is informing the child that the parents are divorcing.  Parents are often uncertain as to how to approach the conversation and worry about the child's reactions.  Below are some tips for approaching this conversation in a manner that will reassure the child and make the discussion more productive.  The tips originated from Jennifer Coleman, a counselor with a Master of Science in Marriage and Family Counseling.  Her comments were originally posted on the December 31, 2008 podcast "Talking To Your Children About Divorce" at http://www.kramer.vs.rosen.com.

    First, if at all possible, the parents should tell the child about the pending divorce together.  Telling the children together is important because it projects a uniform message to the child.  It also reassures the child that the parents are still capable of communicating and working together in the best interest of the child, even if they are experiencing difficulties getting along in general.  Modeling this cooperative behavior from the start also shows the child that the parents will be able to continue working together as parents. 

    The parents should choose a place to tell the child about the upcoming divorce where everyone, especially the child, feels comfortable.  The location should also be semi-private, so the child will feel like he/she has the ability to express feelings about the divorce.  It is also generally preferable for parents to wait to tell the child about divorce until the parents can offer some tangible information as to how the child's life will/will not change in the face of the divorce.  For example, the child will be reassured if the parents can offer information about who is moving out of the house, where the child will live, and how often the child will see the parents.

    The conversation will often be smoother if the parents prepare ahead and together for what will be told to the child.  It is important to reassure the child that the divorce is not the child's fault, and that both parents will still love the child.  Often younger children will not require further information beyond the knowledge that they will continue to be cared for by the parents.  However, the parents should expect that older children will have more questions and concerns.  It is important to give older children the information they require without placing them in the middle of the divorce or in a caretaker role over the parents. 

    To this end, it is important for parents to avoid statements placing blame for the divorce on the other parent or on the child.  It is imperative for the parents to avoid making the child feel guilty, like the child caused the divorce, or that the parents would remain married if it were not for something that the child did/did not do.  Furthermore, the child loves both parents, and when one parent bad-mouths the other, the child often feels that he/she is required to make a choice between the parents.  This is also very harmful for the child.  A parent should strive to preserve the relationship between both parents and the child and avoid making one parent the "bad guy" in the divorce.

    Furthermore, the child should be protected from information about situations that the child cannot effect - particularly finances and personal information.  A child should not be placed in the role of worrying whether a parent will be emotionally or financially stable. 

    Parents should show that they are aware that the child may have a variety of reactions to the news that the parents are divorcing, and that the child's reactions are okay.  A parent should not show surprise to any reaction that the child might have.  

    Often parents are concerned that they will break down and become emotional during this conversation.  Showing emotions is acceptable to a point because it shows the child that it is okay for the child to be emotional as well.  However, if a parent becomes uncontrollably emotional, the child will then worry about the parent's mental health.  Parents should avoid placing the child in this position. 

    The above information, along with continued cooperation between the parents, are key to protecting the child's future well-being.  Numerous studies have shown that children perform better academically, emotionally, physically, and socially when they are protected by their parents from the divorce proceedings and when the parents are able to maintain a civil relationship in making parental decisions.

Happy New Year!! A Great Time to Think About Estate Planning

Around this time of year, many families resolve to take care of their estate planning needs. If you are thinking about whether you need an estate plan consider the following questions:

1. Has it been more than one year since you reviewed your estate plan?

2. If you or your spouse passed away today, are you uncertain about what would happen to your assets?

3. Do you have minor children or other people who are dependent on you? If you were not here to provide for them, would they be in financial trouble?

4. If you became incapacitated, would you or your family have to go through court proceedings to carry on your affairs?

5. Is anyone other than your present spouse listed as beneficiary on any life insurance policy or account?

6. Would you like to avoid probate of your estate?

7. Would potential nursing home expenses create a hardship for your family?

If you answered “Yes” to any of these questions, you may be in need of estate planning. There are a number of estate planning options available for most people. They include Wills, Revocable Trusts, Powers of Attorney and Probate avoidance. In Arizona, if you die without a will (intestate), the laws of the State of Arizona will determine who receives your property. Typically your property will first pass to your spouse and children. However, this depends on who survives you at the time of your death. The benefit of a will, trust, or other probate avoidance mechanism, is that they allow you to alter the State’s default distribution plan and allow you to set forth a distribution plan according to your personal preferences.

A will provides for the distribution of propertied owned by you at the time of your death, excluding property passing outside of probate and property payable to your estate at the time of your death. The scope and complexity of a will can vary greatly and should typically be suited to achieve your specific estate planning needs. This may require the inclusion of a trust in your estate plan. A trust is a fiduciary relationship in which a trustee holds legal title to specific property under a fiduciary duty to manage, invest, safeguard, and administer the trust assets and income for the benefit of designated beneficiaries who hold equitable title. A trust allows for the distribution of property both outside of the State’s distribution plan and outside of the probate process.

The attorneys of the Benavidez Law Group, P.C., are experienced and available to handle any estate planning questions you may have.

Changes to A.R.S. 25-318(B)

    Recent revisions to A.R.S. 25-318(B) will become effective on January 1, 2009.  A.R.S. 25-318 addresses the division of property and assets in an action for dissolution of marriage.  The revised text of A.R.S. 25-318(B) now states "[i]n dividing property, the court may consider all debts and obligations that are related to the property, including accrued or accruing taxes that would become due on the receipt, sale or other disposition of the property.  The court may also consider the exempt status of particular property pursuant to title 33, chapter 8." 

    Previously, Arizona law limited the ability of the court to address tax consequences when allocating property and debts.  The seminal case in the area is the Supreme Court of Arizona's decision in In re the Marriage of Goldstein, 583 P.2d 1343 (1978).  The court held that the trial court properly declined to consider the husband's tax bracket in allocating certain property to the husband, because there were no immediate tax consequences associated with the distribution of the property, and considering possible future tax variables and consequences was speculative.  This position was affirmed in Johnson v. Johnson, 131 Ariz. 38(1981), where the court refused to consider the value of an unmatured pension plan in light of tax rate or bracket.  However, in Koelsch v. Koelsch, 148 Ariz. 176(1986), the court allowed consideration of tax consequences on a pension plan because the appellant was close to retirement, and the tax consequences could therefore be determined with reasonable certainty. 

    Therefore, under previous law, the court could not consider the tax consequences associated with an award of property, unless the tax consequences were imminent.  This approach had a negative effect of rendering some property distributions unequal.  For example, in an action for dissolution where two homes of equal monetary value are the only property owned by the parties, the court would consider a division whereby one spouse keeps the marital residence while the other retains the second home to be equitable. However, the spouse awarded the second home will incur capital gains taxes when that home is sold, while the spouse awarded the marital residence will likely not owe any taxes upon the sale of that residence.  The second home is therefore worth less than the marital residence because of the associated tax liability, but a court would have been unable to consider the capital gains issue unless sale of the second home was imminent.

    The new wording of A.R.S. 25-318(B) appears to open the door and allow the court to address future tax consequences when equitably allocating assets and debts.  Addressing the future tax consequences is not mandatory to the court - it is instead an option that a judge can exercise when appropriate.  It is unclear how the change in the statute will effect the cases cited above. It is also likely that we will see litigation clarifying this area in the future.

There's no such thing as "attempted felony murder" in Arizona...

In a unanimous panel opinion, the Arizona Court of Appeals, Division 1, ruled that there can be no offense of "attempted felony murder" under Arizona law.  The Court explained its reasoning in State v. Moore, which depends on the legal defininition of felony murder.  Felony murder is an offense that occurs when a person is killed during the commission of a felony offense.  The death of the person need not have been intended by the defendant -- the only intent that is required is the intent to commit the felony offense.  In effect, the intent to commit murder is supplied by the felony murder statute.

In contrast, the offense of attempt does require an intent -- the intent to commit another offense, even though that offense does not actually occur.  The Moore Court looked at these two offenses together, and reasoned that a charge of "attempted felony murder" would require the State to prove that the defendant intended to cause an unintended death.  In other words, the charge would require proof that a person intended an unintended consequence -- a logical absurdity.  Accordingly, the Court ruled that the offense of "attempted felony murder" does not exist in Arizona.

The full opinion can be found at: http://www.cofad1.state.az.us/opinionfiles/CR/CR07-0475.pdf.

US Supreme Court Decides - Navy 1, Whales 0

Winter v. National Resources Defense Counsel, Inc.

United States Supreme Court

Argued October 8, 2008 - Decided November 12, 2008

The full opinion can be found here.

In March of 2007, the National Resources Defense Counsel filed a lawsuit against the Secretary of the United States Navy in an attempt to prevent the Navy from using Mid-Frequency Active sonar in training exercises off the coast of Southern California.  The National Resources Defense Cousel sought declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 and other federal laws.  The waters off the coast of California contain at least 37 species of marine mammmals.  The National Resources Defense Counsel asserted that the MFA sonar causes serious injury to these mammals.

In a 6-3 decision, the United States Supreme Court held in favor of the Navy.  The Court stated "the Navy's need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plantiffs."

Justices Alito, Scalia, Thomas and Kennedy joined an opinion written by Chief Justice Roberts.  Justice Breyer filed an opinion concurring in part and dissenting in part, in which Stevens joined as to the concurrence.  Justices Ginsburg and Souter dissented outright.

Arizona Court of Appeals Holds that Ineffectual Assistance of Counsel does not always Justify Reversing an Order Terminating Parental Rights

       On November 7, 2007, Division Two of the Arizona Court of Appeals rendered an opinion in John M. v. Arizona Department of Economic Security and Shannon M.  John M. appealed the termination of his parental rights on the grounds that he had received ineffectual assistance of counsel.  John argued that the Strickland v. Washington, 466 U.S. 668 (1984) standard that a party must show both that the representation received fell below professional norms and that the faulty representation materially affected the outcome of the case was only applicable to criminal proceedings.  Instead, John argued that the court should evaluate claims of ineffective assistance of counsel under a due process standard.  The State argued that the Strickland test should be applied, and that John's appeal should be denied because he did not show that he was prejudiced by errors made by his attorney.

       The Court noted that no Arizona court has directly addressed whether ineffective assistance of counsel justifies reversing an order to terminate parental rights, and if so, what circumstances justify reversing that order.  The Court determined that the Strickland standard was relevant, even though that case involved a criminal proceeding, because the case relied on due process and fairness concerns and not exclusively on the Sixth Amendment.  However, the Court believed that the distinction between criminal proceedings and termination of parental rights could be relevant to the standard of review applied to a case, because cases involving the termination of parental rights must balance the liberty interest of the parent in raising the child and the child's liberty interest in safety and security.  The Court also believed that the role of the attorney in a termination proceeding, while important, is not as significant as the role of an attorney in a criminal proceeding, because juvenile judges are not limited to the evidence presentedand may direct further inquiry to make certain that parties are properly represented.

       The Court explicitly decided not to rule on whether Arizona allows only a claim of ineffective assistance of counsel as grounds to terminate parental rights, or what would be required to show incompetence.  Instead, since the Strickland standard applies in termination proceedings, John M. would need to demonstrate that errors made by his attorney negatively impacted the outcome of his case.  John M. did not make such a showing, so the trial court's Ruling was affirmed.

Arizona Court of Appeals Holds that Private Action to Terminate Parental Rights may be Concurrently Adjudicated during Dependency Proceeding

Full opinion can be found here.

     On September 30, 2008, Division Two of the Arizona Court of Appeals held in Bobby G. v. Arizona Department of Economic Security, 540 Ariz. Adv. Rep. 6 (2008) that a private Petition to Terminate Parental Rights may be filed pertaining to a child already involved in a dependency proceeding. In this case, the minor child was adjudicated dependent, and her father was actively involved in his case plan and working toward reunification. The Arizona Department of Economic Security asked the Court for additional time to accomplish reunification at the permanency hearing and received an additional ninety days. The attorney for the minor objected at that time, and thereafter filed a Petition to Terminate Parental Rights under A.R.S. §8-533. This statute authorizes interested parties to file a Petition to Terminate Parental Rights, and is one of two statutory mechanisms in Arizona that allow a termination of parental rights. The second method of terminating parental rights in Arizona is codified under Section 10 of Title 8 in the Arizona Revised Statutes and applies to children who have been adjudicated dependent. These statutes allow the Department of Economic Security to file a Petition to Terminate Parental Rights after receiving authorization from the Court in a dependency proceeding. The private Petition to Terminate Parental Rights was granted, and the father appealed.

     The father argued that counsel for the minor child was precluded from filing a private Petition to Terminate Parental Rights because the child was already involved in a dependency proceeding, and therefore only termination proceeding filed pursuant to Section 10 of Title 8 would be appropriate. The Appellate Court disagreed. The Court found that nothing in the language of the statutes precluded concurrent private termination actions and dependency proceedings prior to Court authorization of a termination proceeding as part of the dependency. The Court found further support for its position in Ariz. Juv. R. Ct. Rule 64(B), which states that nothing precludes the filing of a private petition to terminate parental rights on cases subject to dependency proceedings filed after July 1998. Therefore, appropriate parties can pursue termination of parental rights despite an ongoing dependency proceeding.

     The Court further affirmed that the father's rights to due process and equal protection had not been violated, that there was sufficient evidence of abandonment, and that there was evidence that termination was in the best interests of the child.

Arizona Court of Appeals Holds That Appraisers Have Leeway to Revise Their Business Appraisals

Chapman v. Westerner, 2 CA-CV 2008-023
Arizona Court of Appeals Division Two
September 22, 2008

The full opinion can be found here.

The Arizona Court of Appeals recently clarified some apparent confusion over the finality of property appraisals in the context of business agreements.  The Court held that an appraiser has leeway to revise their appraisals in order to prevent mistakes that could impact the reliability of the results.

The decision came after two parties, Swain Chapman and The Westerner Partnership, agreed to rely on an appraisal to determine the price at which Westerner would purchase Chapman’s interest in its assets.  When the initial appraisal by KB Real Estate Appraisers valued the assets at $520,000, Chapman questioned the accuracy of KB’s methodology.  KB agreed to conduct a second appraisal and apparently identified some rather substantial mistakes--the second appraisal valued the assets at between $1.2 and $1.4 million.

When Chapman sought in court to enforce the purchase based on the revised appraisal, Westerner moved to have the court enforce the purchase based on the much cheaper original appraisal.

The majority of the legal dispute was how Hirt v. Hervey, an Arizona Court of Appeals case from 1978, should be interpreted.  According to Hirt, "once parties have agreed to value an asset by appraisal, judicial review of appraisals should be no broader than that which applies to arbitration awards, which are entitled to finality in all but narrowly defined circumstances such as fraud, corruption, or other prejudicial misconduct."  Parties must stick to their own agreement to abide by an appraisal and cannot seek "a new determination from the courts."

Westerner’s position was that this meant that the law of arbitration applied when parties agreed to abide by an appraisal, and thus the appraiser’s original conclusion must be binding and final.  But the Court rejected this interpretation, finding an important distinction between seeking "a new determination from the courts" and requesting that an appraiser correct mistakes in the appraisal.  The law of arbitration does not apply to independent appraisals; it merely "limit[s] the scope of judicial review of an appraisal when the appraisal, rather than judicial review, was the parties’ intended method for determining contractual liability."

Furthermore, when parties agree to value an asset by appraisal, they implicitly agree that the appraiser will abide by the standard practices of the profession.  The Code of Profession Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute provides that appraisers avoid any mistakes or omissions that could affect the credibility of the results of an appraisal.  By agreeing to have the assets appraised, the parties implicitly agree to give the appraiser the flexibility necessary to ensure conformance with professional standards of appraisal by correcting errors and omissions that affect the credibility of the results.

/CJO

Judge: Prosecutors must get DUI breath-test software code

Source: Tucson Citizen

A.J. FLICK
Published: 10.27.2008
A judge ordered the Pima County Attorney's Office to ask a leading manufacturer of alcohol breath-test machines to reveal its software code.
Superior Court Judge Deborah Bernini noted Monday that Owensboro, Ky.-based CMI Inc. so far has refused to divulge its source code to defense attorneys, despite a previous order.
"Every lawyer in this room should be concerned about CMI's unwillingness to follow the court's order," Bernini said.
Bernini said CMI must hand over its source code in electronic form by Nov. 10.
CMI has a policy of releasing the source code in a printout if the recipient agrees not to release it to anyone else.
Defense attorneys asked for - and Bernini ordered - the source code in electronic form so they can test its veracity.
"This information would be available with ease in an email," Bernini said Monday.
She noted that she even allowed extra time for CMI to give the code to lead defense attorney James Nesci.
"They had all the time in the world to comply with the order and/or suggest why the order was in error," Bernini said. "They have chosen not to do so."
Bernini set a Nov. 24 hearing for CMI President Toby Hall to explain why he and CMI shouldn't be held in contempt of court for not following her order.
Deputy County Attorney Robin Schwartz told Bernini that she isn't sure prosecutors can get CMI to divulge the source code either.
Defense attorneys in the 23 alleged drunken-driving cases before Bernini want the source code so they can check for accuracy of breath tests for alcohol.
"I don't think CMI will ever turn over the source code," Nesci told Bernini.
"I think CMI is hiding something in the source code," Nesci said.
Nesci said the Intoxilyzer 8000, which is used by Tucson police, isn't as effective as CMI claims it is and divulging the source code would prove it.
"If they're found to be untruthful to the people who have spent millions of dollars for their equipment, they could be sued into oblivion," Nesci said.
Nesci said absent the source code, the defense wanted Bernini to dismiss the cases or suppress the breath-test evidence.
Schwartz argued that state law says that even if attorneys can't get the schematics and software for a breath-test machine, breath test results are still admissible.
Nesci argued in his motion to suppress the breath tests that the statute is unconstitutional and shows how the state Legislature interferes in judicial matters.
Bernini said Nesci's argument was "well-taken," which Nesci and co-counsel Joseph P. St. Louis said amounts to agreeing it was unconstitutional.
Schwartz asked Bernini for a delay so prosecutors could ask the Arizona Court of Appeals to review her order forcing them to get the code.
Bernini denied the request, saying she was sure the appellate court would find sufficient cause to order the source code.
Nesci said after the hearing that Bernini's rulings are unprecedented among similar hearings held across the country and should hold up in appellate court.

The Impact of the Servicemembers Civil Relief Act (SCRA) on Family Law Proceedings

    The Servicemembers Civil Relief Act (SCRA) is a federal statute that was signed into law on December 19, 2003.  It provides certain protections to members of the military and active-duty National Guard and Reserve personnel involved in court proceedings.  Some of the SCRA protections have a direct impact on family law matters.  The provisions of SCRA most likely to affect family law proceedings are discussed below.

     The SCRA requires a civil court or an administrative agency to enter an order delaying legal proceedings for at least ninety days when the defendant is in the military service, and the defendant's military duties negatively impacts that person's ability to prepare for the legal proceeding.  Additionally, the court or agency must believe that the defendant may have a valid defense that cannot be presented without the defendant's presence, or the defendant's attorney must be unable to contact the service member defendant.

     The SCRA also allows a defendant service member to request a ninety day delay in civil or administative legal proceedings.  The service member must make this request by submitting two documents: (1) a letter or other communication that states how the service member's current military duties negatively impact the service member's ability to appear and prepare for the proceeding, and (2) a letter or communication from the service member's commanding officer that states that the service member's current military duties preclude participation in a court proceeding and that the service member is not authorized to take military leave at the time.

     Most family law proceedings are civil legal matters.  The delay provisions in SCRA therefore apply, and may be used by a member of the military or an active-duty National Guard or Reserve member to delay many family law proceedings for at least ninety days. Additional delays can also be requested by the service member.

     The provisions of SCRA also impact a Decree of Dissolution of Marriage that is entered by default.  A Decree may be entered by default when the Respondent is served, but does not enter an appearance in the dissolution matter.  Before the Court can enter a default Decree of Dissolution of Marriage, it must first determine whether the Respondent is in the military service.  If the court determines that the Respondent is in fact a member of the military, the court must appoint an attorney for the Respondent before the default Decree of Dissolution of Marriage may be entered.   If the court cannot determine whether the Respondent is in the military, the court will require the person asking for the Decree of Dissolution of Marriage to be entered by default to post a bond to indemnify the Respondent if the court believes the Respondent may have a defense that requires the Respondent's presence, or if the attorney appointed to represent Respondent's interests cannot contact the service member.  In this situation, the bond will be required before the court will enter a default Decree of Dissolution of Marriage.