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[11/06] Classmate: Hasan said terror fight a war on Islam
[11/06] NYC man charged in $365K fitness Web site scam
[11/06] Virginia Supreme Court upholds power line plan
[11/06] Judge OKs plea deal from 'Girls Gone Wild' founder
[11/06] Judge vacates $1.26B ruling against PepsiCo

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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

[11/06] 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.

[10/28] In re: Riebesell
In a bankruptcy adversary proceeding seeking to prevent the discharge of a debt owed to plaintiff by his attorney (the debtor), judgment for plaintiff is affirmed where: 1) the parties had an attorney-client relationship during the relevant period under Colorado law; 2) the loans to defendant were not "standard commercial transactions" exempt from the requirements of Colo. R. Prof'l Conduct 1.8(a); and 3) the bankruptcy court's finding that defendant had the requisite intent to deceive plaintiff was not clearly erroneous.

[10/27] In the Matter of: Greater Southeast Cmty. Hosp. Found., Inc.
In an appeal from a district court order striking plaintiff's attorney as counsel of record and terminating his status as an appellant from a bankruptcy court order, the order is affirmed where: 1) counsel was not a licensed attorney; and 2) he lacked prudential standing to appeal from the bankruptcy court's order.

[10/15] In re: Reale
In bankruptcy trustee's action to recover money paid to a creditor, bankruptcy court's award of $20,000 preference recovery judgment against National Lumber is affirmed where: 1) a conclusion that the debtor exercised sufficient control over the funds at issue to demonstrate that they were an interest of the debtor in property is supported by the record; and 2) successor judge had no obligation to recall witnesses or to order a new trial.

[10/09] In re: Peaslee
In a debtor's appeal from a district court's order reversing the bankruptcy court's confirmation of the debtor's Chapter 13 plan, the district court's order is affirmed where the New York Court of Appeals held, in response to a certified question from the court of appeals, that negative equity on a trade-in vehicle is included in the purchase money security interest accompanying a new car's purchase and is therefore protected from cramdown by the Hanging Paragraph of Section 1325 of the Bankruptcy Code.

[10/08] In re: Simply Media, Inc.
In a case arising from bankruptcy proceedings involving fraudulent transfers, given the deficiencies of the present briefing, the appeal is dismissed and defendant's counsel ordered to show cause by written response as to why the court should not order payment by him personally of attorney's fees, double costs or both for a brief that renders the appeal frivolous.

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[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.

[10/20] In re R.N.
Dependency court's order appointing minor's aunt as the successor guardian and a separate order summarily denying father's subsequent Welfare & Institutions Code section 388 petition challenging the appointment is reversed as the failure to consider the provisions of section 366.3(f) deprived father of his rights to participate, to be considered as the guardian, and to be eligible to receive reunification services without the requirement that he file his own section 388 petition.

[10/08] In re Damian C.
In a case brought by the Health and Human Services Agency to remove defendant's one-year-old son on the basis of her drug use, trial court's jurisdictional and dispositional orders are affirmed, but the matter is remanded to the juvenile court to vacate its finding that the ICWA does not apply and to instruct the agency to complete ICWA inquiry and notice.

[10/07] In re J.O.
In dependency proceedings, trial court's jurisdictional findings and orders that pertained to plaintiff despite having ruled that he was not the presumed father, are affirmed in part, reversed in part and remanded where: 1) the evidence established plaintiff's presumed father status; 2) the finding of jurisdiction under Welfare and Institutions Code, section 300(b) is reversed as there is no causal nexus between the court's findings of serious injury and the findings relating to plaintiff; 3) court's finding of jurisdiction under section 300(g) is affirmed as it is supported by plaintiff's failure to provide financial support for over a decade combined with his demonstrated lack of interest in the children's welfare; and 4) on remand, the trial court must make the inquiry concerning plaintiff's possible Indian ancestry required by ICWA and the California Rules of Court.

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