Thursday, August 21, 2014

Failure to Complain About Reduced Child Support Payment Does Not Result in a Permanent Modification of Child Support

In the Matter of Guri and Guri, the New Hampshire Supreme Court was faced with the question "does a child support recipient's acceptance of a reduced payment result in a modification of the child support order?". The New Hampshire Supreme Court responded with an unequivocal "no". The Court explained that the recipient's silence does not indicate his or her implied agreement to modify child support, even in the instance when a voluntary acceptance of reduced payments was over a long period of time. The Court explained that the child support recipient does not have an obligation to affirmatively notify the parent paying child support that she or he objects to the reduced amount.

This case illustrates the importance of having any modification in child support agreed to by the parties and approved by the court. Too often, the person making the reduced payments acts under the misconception that the reduced payments are legally authorized and is later faced with a contempt complaint and a significant child support arrearage, with the potential of interest and the payment of attorney's fees and costs.

If you have any questions regarding the modification of child support, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo, is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Wednesday, August 20, 2014

Child Support Payments Made Directly To The Children Are Fraught With Issues

In some cases, the payment of child support is highly emotional. Some parents who are ordered to pay child support do so with great reluctance. In some instances, the parent ordered to pay child support will purchase items for the children and/or provide funds directly to the children and then attempt to decrease the child support by the amount given to the child. In the Matter of Guri and Guri, the New Hampshire Supreme Court noted that the general rule provides that no credits are allowed for payments directly to children. In making this decision, the Supreme Court reasoned that the parent receiving support should have the discretion to decide how allocate the support payments for the basic needs of the children and the party ordered to pay support should not be to unilaterally interfere with that discretion.

The Supreme Court went on further to acknowledge that there are two exceptions to the general rule, but these exceptions should be applied very cautiously. The court noted that the party ordered to pay child support may be entitled to a credit for payments made directly to the children when: (1) the party receiving child support does not allocate support payments appropriately for the basic needs of the children; and (2) wherein the custodial parent consents to direct the payment to the children." In both these exceptions, the trial court has discretion to credit the direct payment towards child support arrears.

The key in the decision is that, even in the exceptions apply, it is still within the trial court's discretion to give the person paying child support a credit for the direct payments. This broad language gives the trial court significant leeway, which should give the parent paying child support a lot of concern. In instances where the parents agree, it is strongly recommended that the agreement be in writing and signed by the other parent. It is also recommended that the person making the payment get a receipt or other documentation that the payment was made either to the child or for the purchased item to have the requisite proof if the issue becomes disputed later.

If you have any questions regarding child support obligations, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo, is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Wednesday, August 13, 2014

Racial Discrimination

Employment discrimination laws do not protect an employee who is part of a racial minority from adverse employment action. The law protects her from having an adverse employment action against her because of a racial animus or an adverse employment decision being made that, while not based upon racial animus, still has a disparate impact on her because of her race. Employees of all races still need to perform their jobs in accordance with the legitimate standards of their employers. In the July 29, 2014 court decision of Roslyn K. Chavda, Ph.D. v. University System of the State of New Hampshire, the New Hampshire federal trial judge found that Dr. Chavda had presented insufficient evidence that the adverse employment action taken against her was because of illegal discrimination rather than the perceived performance deficiencies of her as a professor and therefore the judge granted the University System of New Hampshire (hereinafter “UNH”) summary judgment thereby prohibiting Chavda from proceeding forward on her claims to a jury.

In this case, Chavda, a former Assistant Professor at UNH sued seeking to proceed forward to trial with a race and gender discrimination claims as well as a claim for wrongful discharge under the public policy exception to the employment-at-will doctrine. As an initial matter regarding the claim for wrongful discharge, the judge noted that such a claim could be precluded because her employment relationship is that of a tenured-track professor permitted reappointment under the terms of a collective bargaining agreement between the American Association of University Professors and UNH. Generally speaking, the agreement provided that non-tenured faculty members, such as Chavda, worked under renewable one-year appointments and were evaluated annually by their department to assess their progress on the path towards tenure. Chavda was eventually removed from a tenured track and given a one-year terminal contract for the 2011 academic year after having worked at UNH as an Assistant Professor since 2006. The judge first noted that a wrongful discharge claim under common law public policy exception to the employment-at-will doctrine might not be applicable because her employment rights and obligations are defined under the contract; not as an employee at will. Nevertheless, the judge found that the evidence presented by Chavda was insufficient as a matter of law to allow her case to go to a jury to argue that she was discharged for doing something public policy would encourage or refusing to do something public policy would discourage.

As to the discrimination claim, the Court noted that Chavda was African American and that when she was hired, UNH was in the midst of a hiring freeze, yet her Political Science Department was able to get around the freeze and hire Chavda because of her race and UNH’s ongoing efforts to enhance racial diversity on campus. Chavda attempted to use that evidence as a motive for racial animosity by faculty, yet she had no evidence of such racial animus. Chavda also presented evidence that when she arrived on campus she was pregnant with twins. Her pregnancy resulted in complications for both her and twins. The complications forced Chavda out of the classroom for several weeks. Chavda’s primary teaching responsibilities were in the Department’s Master of Public Administration (MPA) program which was directed by Dr. Mel Dubnick. Chavda states that in the spring 2007 Dubnick stated people were angry with her for getting pregnant and not being able to fulfill the plans they had anticipated because of her being out due to pregnancy complications. These communications, however, happened in 2007. For several years thereafter her contract was renewed and the Department’s Promotion and Tenure Committee had recommended the renewal of her contract for several years prior to the ultimate recommendation that she be removed from tenured track and given a terminal one-year contract. Chavda argued that when the Promotion and Tenure Committee made its evaluation resulting in her removal from tenure track she was treated differently than three white colleagues of the approximately same position and tenure track. The judge noted that of the two of the three white colleagues, both women, who were granted tenure had publication records that were markedly better than Chavda’s and Chavda’s student evaluations were consistently lower than those similarly-situated junior faculty members. Chavda asserted that unlike a hostile environment where racial epithets were hurled, or she was directly impugned due to her childbirth, the academics exercised their bias in the confines of the Promotion and Tenure Committee. Further, she also stated that unlike the typical situation where those creating a hostile atmosphere at least had the courage to do so directly, these academics choose the cloistered deliberations of the Promotion and Tenure Committee to hurl their venom and then couched their conclusions in an antiseptic verbiage of annual reviews largely leaving Chavda to guess why her efforts to improve were fruitless. The judge found that those conclusory statements were not backed by the actual evidence which revealed that the perception of Chavda’s performance deficiencies were the reasons why she was denied tenure and not because of child birth or because of her race. Being published in that college professor’s area of study and having positive student evaluations are both part of the legitimate standards a school of higher education places upon its faculty and holding faculty to those standards is legal and very appropriate.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Monday, August 11, 2014

Supervised Visitation Facilities in Massachusetts

There are occasions when a parent's visitation/parenting time must be monitored in order to ensure the protection and safety of the child/children. The levels of supervision vary depending upon the facts of each situation. Some supervised visits may be able to take place in public with a supervisor monitoring off at a safe distance. Other extreme cases require the visitation to be in a secure facility with a monitor in the room and a police officer located outside of it.

Finding an appropriate supervised visitation facility may be a daunting task. Below are links to websites that provide contact information for supervised visitation facilities through the Commonwealth, with many of the links concentrating in Middlesex and Essex Counties. It is important when choosing a supervised visitation facility that you contact the facility directly to ask your specific questions and to see if they are able to address the concerns in your particular case. It is also recommended to go and to view the facility beforehand.

The links to the websites are as follows:

Massachusetts Supervised Visitation Directory: http://www.svdirectory.com/state.htm?st=ma

MassLegalHelp.org - Listing by County: http://www.masslegalhelp.org/domestic-violence/supervised-visitation/ma-coalition/providers

Merrimack Valley: http://mvhub.com/cgi-bin/mvhub/guide.pl?rm=show_program&program_id=505929

Middlesex & Essex County Provider: http://www.masslegalhelp.org/children-and-families/publications/booklets/alternative-house

Other resources:

http://www.masslegalhelp.org/domestic-violence/supervised-visitation-centers

Supervised Visitation Network (all sites in Massachusetts, also links to nationwide search): http://www.svnetwork.net/providers_results.asp

If you have any questions regarding supervised parenting time and/or visitation, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Tuesday, July 22, 2014

Wishing Harm To A Person Does Not Warrant The Issuance Of A Domestic Violence Restraining Order

In order to receive a domestic violence restraining order under NH RSA 173: B, the person seeking the restraining order must prove by a preponderance of the evidence that he/she was abused. In Hurley v. Hurley, an ex-wife sought a restraining order against her ex-husband, predicated on the ex-husband's text message. In the text message, the ex-husband stated "wish you would die in a fiery crash". Recognizing that the ex-husband's text message may well be regarded as reprehensible, the New Hampshire Supreme Court ultimately concluded that the text message did not constitute abuse as defined by the Statute and ruled that the ex-wife was not entitled to a domestic violence restraining order.

While the Supreme Court's decision is instructive as to what constitutes abuse, it is important for parents to understand that such improper communication with their ex-spouse could have other consequences. By way of example, continued inappropriate communications such as indicated in this decision could result in the divorce court from issuing a martial restraining order under NH RSA 458 or put further restrictions on parenting in order to address the improper communications. It is essential in raising children post-divorce/separation that the parents learn to communicate effectively and in the children's best interest. The harm from such communication is far reaching, not only to the person to whom the communication is directed, but to the children as well.

If you have any questions regarding post-divorce/separation communications, please do not hesitate to contact an attorney at Hamblett & Kerrigan to discuss. The attorneys at Hamblett & Kerrigan have experience in handling such situations. Let Hamblett & Kerrigan use their experience to your advantage.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.