Legal Remedies that won’t work in Family Law, and why….from Law.com

This might be parallel to the desensitization of “the system” to increasing alarm about domestic violence issues. An incident happens, and here come the attorneys (if any). A food distributor got its damages — but when live are lost through negligence, and the “failed alarm” of the family law system — no such damages, even. WHY? Well, let’s look at two from law.com today….the 2nd isn’t family law case, but the Kids for Cash racket. However, it relates to family law issues…

So how does the case go, and who’s going to be punished by paying for such disasters? The insurance companies already paid the warehouse owners over $10 million.

I’m putting in this post (and article) to point out one thing: Negligence is one thing, and Breach of Contract (which is a tort) another. The question of WHO IS RESPONSIBLE is often moot, but we ought to know.

From Law.com, today:

Pa., N.J. Insurers Win $10.9 Million in Colorado Jury Trial

Gina Passarella

The Legal Intelligencer

August 27, 2010

PARTIES (not incl. attorneys):

Warehouse owner, a food distributor:

• food distributor Core-Mark Midcontinent Inc [Attorney Letofsky, from Newport Beach, CA]
  

Warehouse’s 2 insurers [Attorney “Dunford, from Denver, CO]

• PA-based Insurer
• NJ-based Fire insurer

Alarm Company

• Sonitrol Corp.

LOCATION: The trial (and warehouse?) was in Colorado, as were the winning attorneys.

They definitely won:

The two insurance companies, represented by Thomas M. Dunford of Cozen O’Connor in Denver, were suing for the claims they already paid to Core-Mark in the amount of $10.96 million.Core-Mark, represented by Brian Letofsky of Watkins & Letofsky in Newport Beach, Calif., was suing for the amount of damages not covered by insurance, or $7.34 million.

The seven-member jury in Adams County District Court awarded those exact figures on Aug. 18, for a total award among the three companies of $18.3 million. Pre-judgment interest of 8 percent per year in Colorado could add millions to the jury award, Cozen O’Connor said.”

That’s definitely a win — let’s look at it, a bit;

This case, Core-Mark Midcontinent v. Sonitrol Corp. , has been going on since December 2003, a year after the Dec. 21, 2002, fire. About three weeks before the scheduled trial date in October 2006, the Adams County, Colo., trial judge ruled in favor of Sonitrol’s summary judgment motions. The alarm company argued there were exculpatory provisions in the contract that greatly limited their liability to be only $500 or six-months’ monitoring, whichever was cheaper, Dunford said.

The trial judge agreed and ruled the plaintiffs could only be awarded $500 under the terms of the contract.

3 years in the mix, and set for trial. At the last moment, the trial judge blows it out of the water. I’m sure 3 years of legal work wasn’t a $500 deal — these guys kept going.

However, in a family law case involving domestic violence, such a “blowing it out of the water” by a trial judge (if a trial even happens) could result in a deathh (cf. Lemkau/Tagle….) It could send a single mother — or father’s — life into an economic tailspin. They might have to drop issues to survive, or to stay safe, or lest a child be harmed (further). But here, both sides were corporations. Both sides had attorney FIRMS, not a pro bono setup.

They appealed to the Colorado Court of Appeals, which ultimately threw out the plaintiffs’ negligence claim

From what I can deduce, NEGLIGENCE is harder to prove. Appeals courts can’t handle causes of action not alleged in the original matter.

but allowed the breach of contract claim to move forward.

Good thing — for them — the attorneys had alleged more than one thing: negligence and breach of contract. Breach of contract is a TORT (a “wrong” ) in civil matters.

Here’s where family law comes in — again, I’m not a lawyer, but I’m deducing from what I’ve read / seen — Is the marriage a civil contract? Don’t go all “Prop 8” on me here, I’m talking about no-fault divorces. No fault means no fault.

UNIV of PITTSBURGH LAW REVIEW (vol 68:835) has an article by Margaret M. Mahoney, a Univ. Pittsburgh Law Professor (I don’t have the year handy)a printout I looked at, becaus of its title: “The Enforcement of Child Custody Orders by Contempt Remedies.” [lawreview.law.pitt.edu/issues/68/68.4/Mahoney.pdf ] She discusses this, (recommended reading, MOms & Dads, FYI): among the issues: “The Distinction between Civil and Criminal Contempt” and under the section, ‘The Nature of Parenting Plan Orders (Part I of II) this major point:

“CUSTODY ORDERS ARE NOT PREMISED ON A DETERMINATION OF WRONGDOING“

IF WE UNDERSTAND ANYTHING ABOUT FAMILY LAW (OR AFCC) — FROM MY BLOG — UNDERSTAND THAT THE “THEME” IS THE PARENT JUST HAVE A DIFFICULTY GETTING ALONG. THE STATE IS HEAR TO FIX THAT, FOR THE SAKE OF YOUR KIDS (OSTENSIBLY).

THIS PUTS IT IN A WHOLE DIFFERENT BALLPARK FROM CIVIL OR CRIMINAL LAW, AND LIMITS WHAT CAN BE DONE ABOUT ENFORCING ANYTHING.

Punishment for Civil Contempt of Court vs. Criminal Contempt of Court

Unlike criminal contempt sentences, which aim to punish the act of contempt, c iviivil contempt sanctions aim to either: (1) restore the rights of the party who was wronged by the failure to satisfy the court’s order; or (2) simply move an underlying proceeding along. [for example, if they refuse to produce documents requested in discovery] Civil contempt sanctions typically end when the party in contempt complies with the court order, or when the underlying case is resolved.

Like those charged with criminal contempt, the court may order incarceration of people held in civil contempt. However, unlike individuals charged with criminal contempt, people held in civil contempt are generally not given the same constitutional rights that are guaranteed to criminal contempt defendants.

Those held in civil contempt generally must be given notice of the contempt sanctions and an opportunity to be heard, but usually are not guaranteed a jury trial. Also, their contempt does not need to be proven beyond a reasonable doubt, while criminal contempt charges must be proven beyond a reasonable doubt. Finally, criminal contempt involves a specified sentence (jail and/or fine), while civil contempt sanctions can be more indefinite, lasting until either the underlying case is resolved or the party in contempt complies with the court order.

Sometimes these basics can be forgotten when in the mix of a family law case.

MANY MOMS GET INTO FAMILY COURT AS A CONSEQUENCE OF HAVING GONE TO SOMEONE TO GET A CIVIL RESTRAINING ORDER, 0r are brought there upon foolishly requesting child support. (LITTLE DID WE KNOW ABOUT THAT LANDMINE…!) AND IN THE AFTERMATH OF THIS, VOILA — SEPARATION, AND PARENTING ORDERS. And those parenting orders can produce civil contempt that, if not obeyed, can get a parent punished.

There’s a legal, principle AND principal difference. That difference affects remedies. Family law is not that new a beast (no-fault divorce is, relatively), but it is a beast of a certain intrinsic nature. It seems (I’m not an attorney!) that divorce itself, or the need to resolve parenting, does not represent EITHER a crime (putting it in criminal), or a TORT (putting it in plain civil court). This, it ain’t a crime, no one did anything wrong (per se, by going to court) puts it in a very swooshy field when it comes to the courtroom. Not so in other venues, which is what I’m pointing out here, when a company recouped its losses, as did the companies insuring it, and too bad for the alarm company whose product didn’t work.

That FL nature can produce situations like a Dombrowski — whose ex-husband’s recent 67 alleged contempts were most likely wilful — and “nothing” for consequence, or a ruling where if she calls the police, to stop the bleeding, she’s in contempt!

A battered Mom, an abducted, battered or raped chid, and a burnt-down warehouse are different scenarios. The alarm company had a specific contract to protect. The spectacular destruction (but no known loss of life or physical injury to a person) was remedied through million-$$ award (how/whether it will be collected is another matter, but at lesat the cause was vindicated by a ruling). Distraught mothers, children, have few remedies if the destrcution is much more spectacular. Some domestic violence fatalities have involved fire and property destruction, too. (Offhand, I can think of a car and a house and a bashed-out window in a place of business — that’s just offhand I also cannot think of a single DV case that got a Victim Compensation Fund award.

Maybe it’s just not really a “crime” or a breach of contract?

In remanding the case to the trial court, the appeals court said damages could be recovered only if it could be proved Sonitrol’s conduct in breaching the contract was done willfully and wantonly. Dunford said the court found that was a question for the jury.

During trial, Dunford and co-counsel Letofsky demonstrated a number of ways they alleged Sonitrol willfully and wantonly breached the contract with Core-Mark. The alarm system was having a number of false activations starting in the years right before the fire. The warehouse was equipped with several microphones that were supposed to send an alert and connect the alarm company to the warehouse when noise 75 decibels over ambient sound was detected. The alarm company would then be able to hear remotely what was happening in the warehouse, Dunford said.

A technician was twice sent out to the warehouse to make the microphones less sensitive to noise after the false activations. Dunford said he argued these changes “essentially disabled” the system. He had one of the burglars who had since been released from jail testify at trial that he used a battery-powered saw to cut down a door 18 feet from one of the microphones. He then kicked at the door, at which point it fell onto the concrete floor, Dunford said, recalling the testimony. The microphone was never activated, he said.

Suppose some law enforcement, judge, or mediator/custody evaluator, or supervised visitation monitor showed truly wilfull and wanton behavior that resulted in death or injury, let alone severe emotional distress?

Could you sue ’em? Where was the contract? The parenting-personnel are often under contract with federal grants systems based in Washington, one down to the states, to sub-grantees, etc. There’s damn little monitoring of those (some of us have been enquiring for years). They are required to “serve” families. Define “service.” They can’t — ever read some of the broad-based, grandiose descriptions on some of these sites that provide “access visitation” or “supervised therapeutic visitation” help to parent?

Same with many nonprofits. The nonprofit status is based on “serving” their clients. If the clients are harmed, or don’t like it, they can stop receiving “services” or go find another provider. Many times the government and foundations are the ones these groups are accountable to. I learned that one the (very) hard way, was just innocent. The real contract is with the government, because they are having taxes abated.

The genius of the (family law system) beast is that these extra professionals are hard to get to. They hide behind the judge, and the judge halfway spreads his responsibility with them. Want to try their accrediting organization? sometimes this may work or does

What about the judges? Well — absolute judicial immunity. It takes a lot to oust a judge, part of which is intentional.

WHAT ABOUT KIDS-FOR-CASH IN LUZERNE?

I posted this link in my own comment on one of the Luzerne posts on this blog.

All I can say is — the players are many, and the remedies narrowing, though not gone. Anyone in family court system ought to listen up, because it’s talking about RICO, fraud and racketeering, and what happens when some are tossed to the crowds. I gather this will be precedent-setting.

Federal Judge’s Ruling Sets Landscape for ‘Kids-for-Cash’ Civil Suits

Leo Strupczewski

The Legal Intelligencer

August 27, 2010

• Reprints & Permissions {my use here is within copyright law, as I understand it. I’m if anything helping direct some more traffic to the original site, and recommending some of my non-attorney readers consider the case.}
• Post a Comment //

A federal court judge this week dismissed three defendants from civil suits related to the “kids-for-cash” scandal in Luzerne County, Pa., effectively clearing the way for the case to move forward.

Judge A. Richard Caputo of the U.S. District Court for the Middle District of Pennsylvania granted motions filed by the wives of former Luzerne County Common Pleas Court Judges Mark A. Ciavarella Jr. and Michael T. Conahan, as well as one filed by Conahan’s brother-in-law, who served as a psychologist for the county’s probation department. {Fancy that — a psychologist for the probation department…}

“for the case to move forward — granting motions” — sounds like he’s bouncing potential defendants off the case. Further on, Luzerne County itself is also bounced off as a potential defendant.

It had not been proven by the plaintiffs in the cases, Caputo wrote in Wallace, et al. v. Powell, et al., that either Ciavarella’s wife, Cindy Ciavarella, or Conahan’s wife, Barbara Conahan, knew of or were involved in any conspiracy among their husbands and others to send juveniles to a pair of private, for-profit juvenile detention centers in exchange for $2.6 million.

Likewise, ruled Caputo, it could not be proved by the plaintiffs* that Michael Conahan’s brother-in-law, Frank Vita,** knew his contract with the county would allow for the creation of a case backlog that would require juveniles to spend more time in the juvenile detention centers*** while awaiting evaluations.

**Where, exactly, does nepotism start and end? If we don’t in this country, allow brother to marry sister and produce babies together, because of inbreeding and reproducing some recessive (and weakening) traits, which would affect the rest of the populace if it were practice — what about this type of inbreeding within government. I mean, think about it! This is beginning to sound like the Hapsburgs. And, within the land of Healthy Marriage, too. Look at all those married people involved here. . . . well, at least the kids if any probably weren’t hurting financially.

*Well, the burden of proof IS on the plaintiff, and it must be hard to prove what people knew, and intended or conspired to do. The smart defendants (and/or their attorneys or legal advisors) I suspect knew, and took advantage of this legal princple, maybe filed motions to dismiss alleging the plaintiff’s motions hadn’t met the burden of proof for facts alleged.

ATTORNEYS FOR THE PLAINTIFFS, IN FACT, CONCEDED SOME CLAIMS:

Marsha Levick, chief counsel for the Juvenile Law Center, which is representing many of the plaintiffs in the case, said the plaintiffs had conceded the claims against the recently dismissed defendants.

The decision, she said, sets the path for the case to move forward.

A settlement conference is scheduled for Sept. 15. Levick said the fact Caputo’s ruling came in advance of that conference was important because “we know what the landscape of the case is.”

“This, really, was a tremendous victory, I think,” Levick said. “We’re very gratified.”

I don’t know law enough to understand why conceding claims would be a victory. It may have to do with, the points wouldn’t have been won, the limits of what it might take to prove, and possibly an intent to go for the bigger fry, not the smaller fry (see below).

I say “bigger” not “big” because it’s quite possible (and likely) that Conahan and Ciavorella are themselves some small fry tossed out (caught by US ATTORNEY’S OFFICE INVESTIGATING THE RICO / fraud CHARGES). I don’t believe the “few bad apples” theory, i.e., that the remaining applies in the bushel are actualy good. One post said 40% of the judges in Luzerne County had problems. Locking up kids (and adults) IS a business, and the U.S. is not the world’s largest per-capita jailor by accident.

More Moms or protective Dads should try this motion to dismiss before filing ANY response to any insane accusation; it might discourage further ones. Your motions are going to get dismissed sooner or later anyhow if you go forward, and besides, it might send the FIRST judge on the case a message you’re not wet under the ears.

But YOU NAME ME one — even one — family justice center, pro bono attorney advocate working in a domestic violence center, or almost anyone(including her own family law attorney)
that will tell a woman this up front. I say “her” here, because (see NAFCJ.net, and this site) men are getting that helpful information in certain circles, through fatherhood programs reaching out to them.

***Habeas corpus? Smacks of Guantanamo?

The next paragraphs I’m including just so we can see “how many professionals it takes to screw in a lightbulb,” or screw up a youngster’s life by locking him or her up without due process or with it for that matter).

Wonder, of youngsters who were sent their for crimes, one of their parents was stuck in family law system previously… and/or impoverished, homeless, or absent from either an unfair child support order, or an unenforced fair one… I’m adding the bullet format:

The rulings mean the plaintiffs in the cases may proceed with claims against:

• Mark Ciavarella;
• Michael Conahan;
• Robert Powell, the former co-owner of the juvenile detention facilities; and
• Robert Mericle, the builder of the juvenile detention facilities.

Also remaining as defendants in the cases are:

• Mericle’s company, Mericle Construction;
• a company owned by Powell to allegedly help funnel money to the judges,Vision Holdings;
• the company that operated the juvenile detention facilities, Mid-Atlantic Youth Services;
• and the juvenile detention facilities themselves, PA Child Care and Western PA Child Care.

Two judges, a former Co-OWNER OF DETENTION FACILITIES, a BUILDER, his CONSTRUCTION COMPANY, the HOLDING TANK COMPANY getting money TO judges, and (above), the DESTINATION COMPANY (to take the funds: “Pinnacle,” above — owned by judges’ wives), the
SERVICE COMPANY, that operated the detention facilities, and finally — the Dentention Facilities themselves (the buildings only?)

Someone knows a lot about business and distribution networks: The Product (cf. “human trafficking”), the supply line personnel, you name it — it’s downright visionary.

Hence, names, like “Vision Holdings” “Pinnacle”
“Mid-Atlantic Youth Services” and of course, it wasn’t really detention, it was “Child Care.” Buyer beware..

But the judges have partial judicial immunity, as judges, and Luzerne County — well, as the article says, it’s a matter of who is the FINAL policymaker, and it can’t be sued. Sounds like a foolproof plan, and what are the chances this was an isolated situation?