News

[11/20] $6M verdict upheld in McDonald's strip search case
[11/20] Investors sue Fla. lawyer in fraud probe for $100M
[11/20] NYC model who married doorman sues upscale co-op
[11/20] NYC TV newsman guilty of attempted assault on wife
[11/20] Ala. court says woman can't claim $41.8M jackpot

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Articles

Community and Non-Community Property

When spouses purchase property, ownership rights may be an issue. Property may be considered community or non-community property. It depends on the jurisdiction the married couple resides in. If the couple lives in a community property state, the state laws will consider each spouse owners of the property acquired during the marriage. Unless the property was acquired by an inheritance or by a gift from the other spouse, each individual will have one-half ownership rights to the property. Accordingly, there are only nine states that have community property laws (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin). If a married couple resides in one of these nine states and acquires property while living in the state, that property will be considered owned by each spouse. Alternatively, if a couple purchases property in a non-community property state (the majority of the states are non-community property states), the spouse who purchases the property may be considered the sole owner.

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Can Same-Sex Couples Marry?

Historically, state laws would only recognize a marriage between a husband and wife of the opposite gender. Some state statutes focused on the issue of same-sex marriage and declared that such a union would not be valid. Other state laws did not refer to gender in statutes regarding marriage. However, the courts in many states have still read the law as not allowing marriage between individuals of the same gender. In recent years, this view has been changing. It is true that the majority of states still do not recognize same-sex marriage, but a minority of states do. Moreover, there are some states that do not have same-sex marriage, but have laws that protect same-sex unions; these include civil unions and domestic partnerships.

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Case Summaries

[11/20] Severo v. Comm'r of Int'l Rev.
In taxpayers' appeal of a tax court decision granting summary judgment for the IRS and permitting it to proceed with its collection action relating to petitioners' 1990 tax liability, the order is affirmed where the statute of limitations regarding collection was tolled during the pendency of petitioners' bankruptcy proceedings.

[11/18] Boyer v. Crown Stock Distrib., Inc.
In Chapter 7 bankruptcy proceedings in which the trustee filed an adversary action against the defendants claiming fraudulent conveyance under the section 4(a)(2) of the Uniform Fraudulent Transfer Act, judgment in favor of the trustee is affirmed in part and reversed in part where: 1) bankruptcy court did not commit clear error in finding that the statutory condition for a fraudulent conveyance was satisfied; and 2) district court's ruling with respect to the dividend is reversed as the trustee is entitled to the dividend because it was an integral part of the leveraged buy-out.

[11/13] In re: Nowak
In Chapter 7 bankruptcy proceedings, the Bankruptcy Appellate Panel's (BAP) denial of plaintiff-creditor's motion to allow an informal proof of claim based on its prior filings as a putative secured creditor is affirmed as the BAP did not abuse its discretion in finding that: 1) plaintiff had ample notice of the likelihood that it would lose its status as a secured creditor, necessitating the filing of a proof of claim; 2) plaintiff's unexplained delay weighed against allowing plaintiff's informal proof of claim; and 3) the large dilution in the distribution to other creditors in this case was an appropriate consideration weighing against allowing plaintiff's claim.

[11/12] In re: Bradley
In bankruptcy trustee's appeal from a ruling of the bankruptcy court, affirmed by the district court, holding the trustee's predecessor in contempt of court and imposing monetary sanctions, the order is affirmed where: 1) the remedial civil contempt power extends to defiance of a bankruptcy court injunction whose terms are known, but which has not yet been formalized as required by procedural rules; and 2) the lack of agreement between the opposing parties briefing the motion for injunction did not render the resulting ruling unclear.

[11/12] In re: Madera
In debtors' bankruptcy proceedings for defaulting on their loan, ruling upholding the bankruptcy court's grant of summary judgment to the creditors and its denial of debtors' motion to amend is affirmed where: 1) the Rooker-Feldman doctrine precluded the bankruptcy court's jurisdiction over debtors' rescission claim because that claim was inextricably intertwined with a Court of Common Pleas' foreclosure judgment; 2) there was an adequate basis for summary judgment on the Truth in Lending Act damages claim, specifically, that debtors failed to create a genuine issue of material fact as to whether they had prior title insurance in connection with the loan; and 3) the bankruptcy court did not abuse its discretion in denying debtor's motion to amend as it was untimely.

[11/06] In re: Smith
Order of the Bankruptcy Appellate Panel reversing an order of the Bankruptcy Court is affirmed as a late alimony payment penalty was not a domestic support obligation, and as such, the ex-wife's claim was a general unsecured claim not entitled to priority status and consequently dischargeable.

[11/05] In re: Bender
In a bankruptcy adversary action seeking avoidance of the transfer of a parcel of real property from the debtor to defendant, defendant's appeal from the Bankruptcy Appellate Panel's (BAP) affirmance of the bankruptcy court's ruling that the doctrine of equitable tolling applied to the trustee's filing of the proceeding is dismissed where the BAP's order was nonfinal.

[11/05] Ogle v. Fidelity & Deposit Co. of Md.
In an appeal from the district court's affirmance of the bankruptcy court's order requiring a liquidating trust to pay post-petition attorneys' fees on a claim that stemmed from a pre-petition indemnity agreement, the judgment is affirmed where such claims are categorically allowable.

[11/03] In re: Paige
In an appeal from the bankruptcy court's decision confirming appellees' joint bankruptcy reorganization plan and denying appellants' competing plan, dismissal of the appeal as moot is reversed where: 1) the competing plan could theoretically be confirmed without requiring disgorgement of payments made to third-party creditors; and 2) reversal of the existing plan would not require the undoing of complex transactions.

[10/30] In the Matter of: Proeducation Int'l. Inc.
In an appeal from the district court's affirmance of the bankruptcy court's order disqualifying counsel for a creditor, the order is reversed where: 1) the bankruptcy court should have considered counsel's evidence of his lack of involvement with the debtor while at his prior law firm in making its decision; and 2) counsel presented sufficient evidence to demonstrate that he did not operate under a conflict of interest when he undertook the representation of creditor.

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[11/19] Perry v. Prop. 8 Official Proponents
In an action challenging the constitutionality of Proposition 8, a California ballot initiative restricting the definition of marriage to the union of a man and a woman, denial of a prospective intervenor's application to intervene is affirmed where the existing parties would adequately represent its interests.

[11/19] In re Marriage of Kacik
Trial court's order modifying support, where the child support order ended in August 2006 and no modification request was brought until February 2008, is reversed as: 1) it cannot be sustained on the basis of Family Code section 4326 and 2) where section 4326 was the sole basis for the modification, the order cannot be sustained at all.

[11/10] Burke v. County of Alameda
In a 42 U.S.C. section 1983 action alleging that defendants interfered with plaintiffs' constitutional right of familial association by removing their child without a protective custody warrant, summary judgment for defendants is affirmed in part where it was reasonable for officer-defendant to believe the child's statement that she had been abused at the time she spoke with him. However, the order is vacated in part where local government units such as defendant-county are not entitled to the qualified-immunity defense.

[11/06] In re: Smith
Order of the Bankruptcy Appellate Panel reversing an order of the Bankruptcy Court is affirmed as a late alimony payment penalty was not a domestic support obligation, and as such, the ex-wife's claim was a general unsecured claim not entitled to priority status and consequently dischargeable.

[11/04] Miller v. Nichols
In plaintiffs' constitutional challenge to the state's removal of their child after termination proceedings and motion for injunctive relief to prevent a foster family's adoption of the child, district court's dismissal of the case is affirmed where: 1) the district court correctly determined that it lacked subject matter jurisdiction to review plaintiffs' motion for injunctive relief to prevent the child's adoption pursuant to the Rooker-Feldman doctrine; and 2) the factual issues underlying plaintiffs' claims were addressed by the state court and are barred by issue preclusion.

[10/30] M.T. v. Sup. Ct.
Petitioner's request for an extraordinary writ review of a juvenile court's order for a Welfare and Institutions Code section 366.26 hearing to consider modifying the permanent plan for two of his three children from long-term foster care to adoption is denied as petitioner did not have a right to a contested hearing.

[10/27] In re Calvin P.
Juvenile court's decision requiring the San Diego County Health and Human Services Agency to provide family maintenance services for plaintiff and her children is affirmed in part and reversed in part where: 1) the order requiring family maintenance services for father and the children is affirmed; but 2) the order for family maintenance services for mother is reversed and instead ordered that she be provided reasonable reunification services.

[10/26] In re J.B.
Juvenile court's findings and orders regarding defendant's two children is affirmed as there was sufficient evidence to support the jurisdictional findings and the orders removing the children from her custody.

[10/23] Long v. Teachers' Ret. Sys. of State of Illinois
In plaintiff's employment discrimination and retaliation action against her former employer, summary judgment in favor of defendant is affirmed where, because plaintiff failed to present evidence that defendant acted with retaliatory intent when it fired her, a jury could not infer that defendant fired her because she took FMLA leave.

[10/21] Green v. Mattingly
In an action claiming that defendants violated the U.S. Constitution and New York law when they successfully petitioned the family court of New York for an order temporarily removing plaintiff's child from her custody, dismissal of the action is vacated in part where: 1) the family court issued a superseding order returning plaintiff's child to her custody, and the family court proceedings were eventually dismissed, so plaintiff was not a "state-court loser" under the Rooker-Feldman doctrine; and 2) in addition, her claims did not "invite district court review and rejection" of a state court judgment. However, the dismissal is affirmed in part where plaintiff failed to allege that the family court proceeding was terminated in her favor and thus did not state a malicious prosecution claim.

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