August 2012 Archives

Sections Of The Defense of Marriage Act Found To Violate The Equal Protection Clause

August 28, 2012, by Law Offices of James V. Sansone

DOMA_CapitolDome.jpgThe First Circuit Court of Appeals held that section 3 of the federal Defense of Marriage Act, defining marriage as a union between a man and a woman for the purpose of federal laws and regulations, violates the Equal Protection Clause.

The court held that the rational basis test requires an intensified scrutiny of purported justifications for legislations such as section 3, which discriminates against minorities and intrudes on matters customarily under the control of the individual states. The court concluded that none of the purported justifications for section 3 provide an adequate basis for upholding the statute.

Section 3 of the Defense of Marriage Act [1 U.S.C. § 7] provides that ''[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.'' (Section 2 of DOMA, which preserves a state's power not to recognize same-sex marriages performed in other states, was not at issue in this case.)

The First Circuit noted that any arguments that either presume or rest on a constitutional right to same-sex marriage are foreclosed by Baker v. Nelson [409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972)] . Baker involved an equal protection challenge to a Minnesota statute defining marriage as a union of persons of the opposite sex. The United States Supreme Court summarily dismissed, for want of a substantial federal question, an appeal of a Minnesota Supreme Court decision upholding the statute. According to the First Circuit, a Supreme Court summary dismissal ''prevent[s] lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions''

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Are Inherited IRA's Exempt From The Bankruptcy Estate?

August 21, 2012, by Law Offices of James V. Sansone

401k-nest-egg.gifAccording to the 5th Circuit Court of Appeals the answer is NO! In the case of In re Chilton, 426 B.R. 612 (Bankr. E.D. Tex. 2010), A bankruptcy debtor inherited an individual retirement account (IRA) from the debtor's deceased parent prior to the debtor's bankruptcy, and the debtor claimed an exemption in the property pursuant to 11 U.S.C.S. § 522(d)(12).

Pursuant to 11 U.S.C. § 522(d)(12), a debtor is permitted to exempt certain property, including "Retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986The bankruptcy trustee objected to the exemption.

The debtor placed the funds distributed from the parent's IRA into a new account created in the deceased parent's name from which the debtor, as the beneficiary of the new account, was required take distributions prior to retirement. The debtor contended that the new account was tax exempt and contained retirement funds, and thus the funds in the account were exempt from claims of creditors.

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Sebastopol Tenant Gwen Smith Ordered To Pay The Press Democrat$30,613.50 In Attorney's Fees

August 14, 2012, by Law Offices of James V. Sansone

cms_eaw_1_6_justice[1].jpgI previously wrote a post about the defamation lawsuit Gwen Smith filed against the Santa Rosa Press Democrat. Well that suit is over and Smith was ordered to pay the Press Democrat $30,613.50 in attorney's fees and $5,747.50 in costs. Oh, California's Anti-Slapp statutes can be a wonderful thing.

For those of you interested in the full decision please read on.

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Santa Rosa Landlord Constance Cook vs. Sonoma County Tenant Gwendolyn Smith, The Appeal

August 10, 2012, by Law Offices of James V. Sansone

ostrich_head_in_sand.jpgAs any reader of my blog knows, Gwendolyn Smith has appealed the $49,635.96 judgment against her. Just like she did in the trial court, Smith was able to prolong the appeal by filing several motions for extensions of time. For those who are interested, below you will find (1) Smith's opening brief, Cooks Brief, and Smith's Reply Brief. If you read nothing else, you will enjoy Smith's Reply Brief. It says all that you need to know. I shall not say any more on that subject. For the full case docket click here.

I almost did not have time to write this post as my "white van" had to be taken back to the "CIA". I also am "biding my time" and will be ready to stand up to protect my clients from the tyranny of others. (You need to read Smith's Reply Brief for this to make sense).

Appellants -Gwen Smith- Opening Brief.pdf (Gwen Smith)

Cook Respondent Reply Brief.pdf (Constance Cook)

GS Reply Brief.pdf (Gwen Smith)

Remember, the greatest trick the devil ever pulled was convincing the world he didn't exist.

Jurisdiction in California Child Custody and Visitation Cases

Child-Custody.jpgChild custody disputes can often be emotionally trying experiences. Parents fighting to have their children in their lives may not realize the rules that they have to follow when filing child custody cases. Not all courts have the right to hear a custody case, and parents in California facing custody battles should understand how the law determines a court's jurisdiction in such cases.

When Both Parents Live in California

Under a federal law called the Uniform Child Custody Jurisdiction and Enforcement Act, the court in a child's home state has jurisdiction over custody matters. A child's home state is whichever state the child has lived in with a parent for at least six months. If the child is not yet six months old or has not lived in any state for at least six months, then his or her home state is the state in which he or she has "significant connections."

When both parents are living in California, barring exceptional circumstances, the California state courts would have jurisdiction over the custody matter. Therefore, child custody cases are most often decided in the county court where the child has the most contacts, such as residence, school attendance, child care, etc.

When the Parents Live in Different States

Congress passed the Parental Kidnapping Prevention Act to prevent parents from taking children to other states to try to circumvent custody decrees issued in a state where the parents and child used to reside. If a state court with jurisdiction in the case has issued a custody order, then other states must enforce the order. A state court cannot just issue a new custody order if a parent petitions for one.

As such, parents who move to California from other states generally may not file custody petitions in California if an order in another state exists. Likewise, parents cannot leave California to try to evade a California custody order. If parents wish to have a California custody order modified after they have left the state, they must either return to California to do so, or the California court must transfer jurisdiction to a different state after receiving a petition with reasons for doing so.

Seek Legal Help

Child custody disputes can be complex matters, especially when the parents live or wish to live in different states. If you have questions about child custody, talk to a seasoned child custody attorney who can discuss your situation with you and advise you about the options available to you.