Take Me Out To The Ball Game

Many years before I went to law school I lived in downtown Russellville. It was common practice then to contact city hall when you wanted something done. I’m not talking about a complaint or getting an ordinance passed I’m talking about a little work around the home place. If you backed a candidate and that candidate won you could expect a little help.


I had a family member who needed a drainage ditch dug on his private property. The city sent some employees over to take care of it. It was just a few hours work and it didn’t seem to bother anyone. The same was true for many things such as using the city’s employee to run the city’s dozer or grader to do a little work on private property.

This all changed a little many years ago. The laws forbid anyone employed by the city, county, or state to do work on private property while being paid by the government. It also made it illegal to use city, state or county equipment on private property.

Now, however, the law is much tougher. The 2010 special session of Alabama legislature passed a new ethics law. This act became law on January 1st of this year. It requires all city mayors to attend a training session on the new law. It also requires that every state office holder to attend the ethics training sessions.

The law makes it clear that any person that works for the state, an Alabama county, or city is forbidden from doing work on private property. In May of this year a mayor was accused of using city pump trucks to remove water from a parking lot where a for-profit event was scheduled. The law also makes it clear that any person that is an elected official of the state, an Alabama county or city is forbidden from receiving anything of value from another person. William B. "Bill" Blount was an investment banker, bond underwriter, and former Alabama Democratic Party chairman. Jefferson County Commissioner, Mary Buckelew was given a few gifts by Mr. Blount. These gifts included Italian designer shoes, purses and a spa treatment. She was given a light sentence under the old ethics law. Under this new law she could have receive substantial prison time. A conviction under the state ethics law can yield a prison sentence of two to 20 years on each offense and a fine of up to a $30,000 per offense.

Elected officials are not allowed to use their office for personal gain even if the gain is very small. There is controversy brewing in Montgomery over baseball tickets. The Montgomery Biscuits (here is their link http://www.biscuitsbaseball.com/schedule.html ) season ticket holders often took state officials out to the ball game. Now they are reluctant to do so. Some have said they don’t think they will be able to use the tickets anymore because they can’t take their elected friends with them. Let’s just hope they don’t buy them some peanuts and Cracker Jacks.

ALL THE MONEY

This past week I went to divorce court in another Circuit. A young man hired me after he received notice of a default judgment. A default judgment is what happens if you do not show up for court. The other side wins and wins big. This gentleman had never been notified of the court date. He had not been served divorce papers. The default divorce gave him supervised visitation with his child. The visitation could only occur at the mother’s discretion. He was also ordered to pay child support and alimony both of which exceeded his income.

Child support is set by law in Alabama using a specific formula. However, if you are not in court to challenge the numbers you lose. Unlike child support, there is no formula to determine the amount of alimony.

An ex-spouse may receive alimony from the spouse who has the ability to pay. Alimony is given to balance the economic status for both parties as it existed during the marriage. Alimony in gross is a lump sum payment. Alimony in gross is similar to a division of property. It can’t be modified after 30 days from the final divorce decree being entered. Also remarriage of the receiving party does not necessarily stop the payments. The lump sum payment may be nontaxable.

Periodic alimony payments are made over time. They differ from alimony in gross. The amount can be modified if there is a showing of a material change in circumstances for either party after the divorce (Such as the paying ex-spouse losing the ability to pay.) Periodic alimony stops when the receiving ex-spouse remarries or cohabitates with a member of the opposite sex. It also stops upon death of either party. Periodic alimony is a tax deduction for the paying spouse and income for the receiving spouse. Periodic alimony is payments made for a determined amount of time.

Sometimes an ex is granted rehabilitative alimony for a short period of time such as two to five years. It is designed to help a spouse go through school or to transition back into the job market.

If the judge decides to give alimony there are several things to consider. The judge must determine if there is a need for one to receive the money and also if the other has the ability to pay. The length of the marriage is an important factor. The judge also looks at the ages and health of each party. The judge also considers the conduct of the parties during the marriage. Sometimes alimony is awarded to the faithful spouse as the divorce has been brought on because of cheating.

Periodic alimony is often subject to termination if the former spouse is living openly or cohabiting with a member of the opposite sex. This requires proof. If the former spouse merely has a roommate of the opposite sex who pays rent and there is no evidence of sexual activity between the two, proof of cohabitation probably does not exist.

If the paying party files bankruptcy, alimony payments must still be made. Oh, what happened to my client? Well, among other things; he no longer has a duty to pay spousal support.

Techno-Law

In 2006 Alabama court officials introduced an e-filing system to allow thousands of attorneys to securely file complaints, discoveries, proposed orders and other documents over the Internet. The Alabama Administrative Office of Courts (AOC) expected attorneys to electronically file about 80 percent of all civil cases through AlaFile by the end of 2006. Civil cases include family matters such as divorces and child support. AOC is the office that oversees the state’s unified court system and is responsible for centralized purchasing, personnel issues, technology and other matters. Alafile is the name given the new system allowing legal documents to be filed over the internet.

I do not believe that AOC adequately calculated attorney’s reluctance to embrace change especially changes in technology. Most of us only change when we are forced to. If it ain’t broke don’t fix it. We have all been e-filing appeals for some time. A few adventurous attorneys have begun filing some of their civil documents on line.

You may have heard that there have been changes brought to the state court system because of a lack of money. Some counties have been requiring that everything filed in civil and criminal court be e-filed. The Chief Justice of the Alabama Supreme Court, Sue Bell Cobb, has set up deadlines that must be met by each state court. The time has come to Franklin County for all civil matters to be filed over the internet.

When I first started practicing law here in 1984 I believe the filing fee for a circuit court civil case was $49. This fee allowed multiple modifications, contempt petitions, and defaults. Now it cost $156 to file the original complaint or petition. It cost another $256 to file for modification and an additional $56 to file for a default judgment.

E-filing will save money and time. Tax payers will spend less money on paper, file folders, postage, printers, ink and personnel. It is also suppose to be more accurate and efficient. I guess it will be better after the learning curve.

My thought is that if it will work better for my clients to have everything to be filed electronically I’m in favor of doing it. Also if everything filed in court is on the internet my clients should have access to all of that information. I have a system that is being put into place that will do just that. This system is currently available only to my domestic relations clients. If my office represents anyone in a divorce or custody matter they will be able to access their file over the internet. They will also get e-mail notifications of everything that has been updated or changed. This is so new that I don’t have e-mail addresses for most of my clients. They can’t connect to this new system until I’ve obtained that address.

As soon as we all learn to file the civil cases over the internet we will be required to electronically file criminal cases also. So let’s work out all the bugs and get on the bandwagon.

Rebecca Green Thomason

Lawyerthomason@gmail.com

Greenthomason.com

256.331.0800

Foreclosed? Is it legal?

There are so many houses for sale in Franklin County. Many of the empty houses are a result of a loan foreclosure.

In Alabama a foreclosure does not have to go through the court system. Sometimes a lawsuit can be in the final stage of foreclosure.

Before there can be a sale the mortgage company sends a notice that the loan is being accelerated and that a foreclosure sale will occur in 30 or more days. The loan company must advertise the foreclosure sale in the newspaper in the county where the property is located for three consecutive weeks. If the property shows up in the legal notices then the borrower needs to try to get a loan modification, reinstate the loan, or obtain another loan. It may also be a good time to seek advice from a bankruptcy lawyer on filing a chapter 13 bankruptcy to stop the foreclosure. Many times the mortgage company or loan officer has not followed the letter of the law. The borrower may want to check with a lawyer to see if they can sue the mortgage company. A suit will often stop the foreclosure sale.

Sometimes the mortgage company will decide to sell the property on a different date than was published in the paper. If the company fails to give proper notice of this change, the sale may be considered an illegal sale. The sale usually happens on the courthouse steps. The sale starts right on time. We have had people show up for the sale five minutes after the published time only to find out that the property was sold to the high bidder. Anyone with the money or the credit can buy the property at the sale; the mortgage company, the original owner or an investor.

The new owner will need to record a foreclosure deed in the probate court of the county where the home is located.

Usually a letter is mailed by the new owner the day after the foreclosure sale. The letter informs the borrower that they have ten days to leave the property. If the owner fails to leave then they will lose their right of redemption. In Alabama a borrower has twelve months to redeem or buy back the foreclosed property.

If the borrower stays in the home after the ten days the new owner must file an ejectment lawsuit. Often the lawsuit requests that any deficiency be paid and for the judge to declare that right of redemption has been lost.

The borrower must answer the lawsuit within thirty days. Many people just don't file an answer. This is when a default judgment is entered against them which will include being ordered out of the home. Often the answer will include filing counterclaims against the company or new owner. The counterclaim is often for fraud or a broken contract.

Often the mortgage company is located in another state but must sue in Alabama. The judge will usually require a corporate representative to come to Alabama to give a deposition and to attend the trial.

Rebecca Green Thomason

Attorney at Law

115 South Jackson Ave

Russellville Al 35653

lawyerthomason@gmail.com

greenthomason.com

256-331-0800

Smile

I’ve been somewhat melancholy for the past week. I needed a few jokes to lighten my mood and thought you might need a small laugh too. However, in our politically correct society, it’s hard to tell a joke without offending some group of people. There is one group that can be made the bunt of a joke and no one will get upset. You got it lawyer jokes are always politically correct. So here goes…

An attorney telephoned the governor just after midnight, insisting that he talk to him regarding a matter of utmost urgency. An aide eventually agreed to wake up the governor.

"So, what is it?" grumbled the governor.

"Judge Garber has just died" said the attorney, "and I want to take his place."

Replied the governor "Well, it’s OK with me if it’s OK with the undertaker."



Two attorneys went into a diner and ordered two drinks. Then they produced sandwiches from their briefcases and started to eat.

The owner became quite concerned and marched over and told them, "You can't eat your own sandwiches in here!"

The attorneys looked at each other, shrugged their shoulders and then exchanged sandwiches.



An attorney defending a man accused of burglary tried this creative defense: "My client merely inserted his arm into the window and removed a few trifling articles. His arm is not himself, and I fail to see how you can punish the whole individual for an offense committed by his limb."

"Well put," the judge replied. "Using your logic, I sentence the defendant's arm to one year's imprisonment. He can accompany it or not, as he chooses."

The defendant smiled. With his attorneys assistance he detached his artificial limb, laid it on the bench, and walked out.



An attorney was on vacation in a small farming town. While walking through the streets, a car was involved in an accident. As expected a large crowd gathered. Going by instinct, the attorney was eager to get to the injured, but he couldn't get near the car. Being a clever sort, he started shouting loudly, "Let me through! Let me through! I am the son of the victim."

The crowd made way for him. Lying in front of the car was a donkey.



A doctor and an attorney in separate vehicles collided on I-65 one foggy night. The fault was questionable, but both were shaken up, and the attorney offered the doctor a drink from a pocket flask. The doctor took the flask with a shaking hand and belted back a couple of swallows.

As the attorney started to put the cap back on the flask the doctor asked, "Aren't you going to have one too, for your nerves?"

"Of course I am," replied the attorney, "after the Alabama Trooper gets here."

How can a pregnant woman tell that she's carrying a future attorney? She has an uncontrollable craving for baloney.

What do you get if you send the Godfather to law school? An offer you can't understand.

Rebecca Green Thomason

www.Greenthomason.com

256.332.0800

Twisted

The tornados in Alabama have left devastation on an unprecedented scale. There are more than 200 people confirmed dead and many thousands more lost their homes and all their possessions. Much of this painful damage to life and property occurred right here. The thoughts and prayers of every member of the Franklin County Bar Association go out to the families touched by this tragedy. We have all been touched in some way.

The Franklin County Bar Association will provide free help to storm victim such as helping them file insurance claims. This is an often time-consuming and confusing process, which seems especially disheartening in the face of such tremendous loss. They will also help with FEMA claims and give advice on landlord-tenant issues. They will be available to answer any legal questions that relate to the storms and the loss of life and property and other legal matters related to Wednesday's storms.

Others are trying to help too. The Department of Insurance has instructed insurance companies to give customers who can't pay their premiums because of the storms a 30-day grace period. The order means customers who have been affected by the storms can't have their coverage canceled for nonpayment until May 27, 2011.

Insurance companies recommended that homeowners who have minor damage should go ahead and make temporary repairs themselves. They should board up broken windows and put tarps over holes in a roof. Then save your receipts to show to your insurance adjuster to cover costs of the necessary materials.

Many insurance companies are setting up portable offices throughout the state. I do not know if any will be in our area. You may have to wait for assistance from your insurer as they may have to add temporary staff to help with the huge amount of claims. If you can find your policy; review it. Bring the police to any attorney you decide to seek advice from. The Alabama Department of Insurance phone number is 800-433-3966. You may also go on line to register for an emergency insurance adjuster at http://www.aldoi.gov/Licensing/EmergAdjustForm.aspx

Remember, as repulsive as it is, scams follow disasters. So be on the lookout for roofing and other repair scams. Also, be sure to confirm the identity of anyone claiming to represent your insurance company. You should also be careful in the next few months of attorneys from out of the area. Attorneys who advertize quick fixes to your problem need to be scrutinized carefully. It is not ethical for an attorney who you do not know to contact you about representing you because of your storm damages. Just contact any attorney who is currently an active member of the Franklin County Bar for free legal advice. We, like you, have lost property, friends and loved ones.

Rebecca Green Thomason

Lawyerthomason@gmail.com

Greenthomason.com

256.331.0800

A duty not a right

It has always been that way and that is the way we have always done it. A parent who can not or will not carry out his duties and responsibility as a parent can have his rights as a parent terminated. This follows common sense. A parent who abuses her children and can’t be rehabilitated is dangerous to the child. He or she should not be allowed to make decisions for the child or about the child. Also they shouldn’t be allowed to visit with the child.

There was a woman in Alabama who was married and had two children. She also had a child from a previous marriage. Her husband and the father of two of the children molested her older child. She divorced him in February 2003. The divorce judgment awarded custody of the two children to the mother and ordered the father to pay $540 per month in child support. In August 2003, the father pleaded guilty to his crime against his step child. In October 2005, a juvenile court granted the mother's petition to terminate the father's parental rights to their two minor children. When his rights to his two children were terminated he quit paying the child support.

On January 4, 2007, the mother asked the court to find that the father was in contempt of court because he had not paid his child support. The court decided that the father was $16,730 behind in his child support. The father asked the court to reconsider its ruling because his rights to his children had been terminated earlier. The court did and decided that he did not have to pay the child support. After this the case went to the Alabama Court of Civil Appeals which decided that he did not have to pay the child support.

On September 30, 2009 the Alabama Supreme Court decided that even though the father’s rights to his children were terminated the responsibilities that he owed to the children had not terminated. Over the years lawyers have just always accepted as fact that if a parent’s rights were terminated so was his duty to pay child support. This is no longer the case. Parents who have lost their rights to their children now have the responsibility of paying child support unless a court releases them from that responsibility.

A parent who places a child for adoption may have to pay support until there is a final decree of adoption. This new understanding of the law will be best for many children. The parent who still has custody of the child will not have to bear the financial burden of the child alone. It does seem harsh that a custodial parent of a child has to face all the monetary needs of the child while the abusive parent does nothing. Also, there are many children “in the system” who get no support from either parent. The State of Alabama pays for their needs out of collected tax revenue.

Just Pucker Up and Blow

A whistleblower is a person who raises a concern about wrongdoings by a government agency, a state agency, or a private company. Whistleblowers frequently experience revenge when they have been found out. The term whistleblower comes from police officers who blow their whistles when they noticed the commission of a crime. The whistle would call attention to the danger. There have been many cases where punishment for whistle blowing has occurred. A whistleblower may be fired, suspended, demoted, and treated harshly by other employees.

The Whistleblower Protection Act protects federal whistleblowers, who work for the government and report agency misconduct. A federal agency violates the Whistleblower Protection Act if Agency authorities take or threatens to take a disciplinary action because of any disclosure of information by the employee. Whistleblowers may file complaints that she reasonably believes that there is a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. A whistleblower can’t be legally fired for telling all about her employer.

There has been a new case that has expanded this principle. Thompson v. North American Stainless, was published on January 24, 2011. Miriam Regalado, filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against her employer, respondent North American Stainless (NAS). Ms Regalado’s boyfriend Mr. Thompson worked for the same company. NAS fired Mr. Thompson after Ms Regalado filed her complaint. Thompson then filed his own charge and a law suit under the Civil Rights Act. Thompson claimed that NAS fired him to retaliate against Regalado for filing her charge. The first court dismissed Thompson’s suit on the ground that Thompson was not entitled to sue NAS for retaliation because he had not engaged in any activity protected by the statute. The second court agreed because Thompson was not the whistle blower his girlfriend was.

The United States Supreme court did not agree stating, “A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

There are many cases that deal with whistleblowers. There are also many laws on the books to protect them. So even if they are not employed by the federal government they may be protected. Whistleblowers play an important role in overseeing the business practices of companies and organizations. Under most state and federal laws, the whistleblower can be given legal protection. Sometimes they may be given monetary compensation for stepping forward and doing the right thing. Several large pharmaceutical firms have been targeted by whistleblowers for illegal activity recently. These companies have settled their cases outside of court. The companies were fined several million dollars which was paid to the federal government. The whistleblowers also received a cut of the monetary settlement.

For more information on this subject check out the web. There are many web sites that deal with this subject.

Gun Smoke

 

A friend suggested I write this week’s column on Alabama gun laws. I think with all that has been going on in Arizona his suggestion is very timely. First the Second Amendment to the U.S. Constitution gives us the right to be armed. However, the federal government has regulations that every state must abide by. The National Firearms Act (NFA) requires that certain weapons be registered and fees be paid. The NFA weapons include machine guns, grenades, bombs, explosive missiles, poisonous gas, short barreled rifles and shotguns and many other similar weapons. One cannot transport these across state lines without proper federal paperwork and fees.

Some states require registration and licensing of firearms. Alabama does not. Here people are allowed to carry concealed handguns on their person and in their vehicle if they have a firearm permit. A permit is not required if a person is carrying the weapon openly such as on the gun rack of their truck. If a person carries a concealed weapon without a permit they can be fined not less than $50.00 nor more than $500.00, and may also be imprisoned in the county jail for not more than six months. However, it is easy to obtain a permit. The county sheriff may issue a permit to applicants unless there is a reason not to. The sheriff is required to do a background check to determine if the possession of a firearm would be in violation of state or federal law. The sheriff may also revoke a permit if he believes it to be necessary.

The permit is good for no more than a year. It will have the name, address, description, and signature of the licensee and the reason given for desiring a permit. The permit is given to the applicant and a duplicate is sent to the Director of Public Safety. The sheriffs’ office will also keep a copy on file for six years.

Loughne would not likely be issued a permit locally. The Code of Alabama states that no one who has been convicted of a crime of violence can own, possess, or have one under his or her control. No one who is a drug addict or a habitual drunkard is allowed to own a gun. Also in order to buy a handgun one must be over the age of eighteen and be in a sound state of mind. It is also illegal to sell or give a firearm to any of these people.

Even if he did have a permit he could not bring it with him to see Congresswoman Gabrielle Giffords. It is against the law for anyone to have a firearm in their possession while participating in or attending any demonstration being held at a public place. This ban also includes picketing, speechmaking or marching.

Also we have a catch-all law that gives law enforcement the right to disarm anyone if it is necessary for the protection of the officer or another individual.

No Abductions

A new Alabama law went into effect on January 1, 2011 to prevent the abduction of children. This law applies to parents who are in a custody dispute and have filed for custody with the court. However, in some instances the law applies to parents who have not filed papers in any court. If it is suspected that a person intends to abduct a child anyone can file a petition to prevent the abduction. It is anticipated that the court can do this on its own or the parent or the district attorney will file.
Parents who have made credible threats to abduct a child or have a history of attempting to take the child are particularly high risk especially when accompanied by other factors, such as quitting a job, selling a home, and moving assets. The more of these factors that are present, the more likely are the chance of abduction. However, the mere presence of one or more of these factors does not mean that abduction will occur. Parents who have a custody determination are already required to notify the other parent before they move. This is done in order to give time to object to the move. Now if a parent sells their home or terminates a lease without notifying the other parent they may be a suspected of planning an abduction. This is also true if they close out their bank account or quit their job. If a non-custodial parent asks for the child’s school records it may be an indication of a plan to abduct.
We have many parents in Franklin County who are from other countries. If one parent has close ties with another country, such as Guatemala, it will be easier to show that there is a chance of abduction.
If the judge believes that a child is in danger of being abducted they can issue an order to prevent it. The judge can issue an order that restricts the travel of the parents; prohibit the parent from picking up the child from school, not allowing the parent to approach the child anywhere outside of specific supervised visitation. The judge may collect the parent’s and the child’s passport. She may also require the parent to post a bond in an amount sufficient to serve as a financial deterrent to abduction.
If there is a substantial fear of abduction the judge may issue a warrant to take physical custody of the child. This can be done without notice to the other parent. However, he should hold a hearing as soon as possible.
This law doesn’t change the existing child custody laws. It attempts to put in place a way to stop abductions before they can happen. The provision to ask the courts to get involved before there has been any wrong acts is new. If you are a parent do not ever say that you will take the child. If in anger you say these words and you also move, get school records, and close out your bank account you can find yourself in a web of legal proceedings.