Friday, August 21, 2009
The Eighth District Court of Appeals has essentially ruled that a domestic relations court can rely on the monthly expenses voluntarily paid by an ex-husband as method of determining the actual functional income of the ex-husband for spousal support purposes. In Feldman v. Feldman, the Court held that it was proper for a magistrate to rely on the monthly expenses of the ex-husband - as opposed to the stated income of the ex-husband - to determine the amount of spousal support the ex-husband must continue to pay to the ex-wife. Thought: If in your divorce your actual monthly expenses exceed what you claim is your monthly income, you have some explaining to do.
On Ohio Court of Appeals has just held that if you sign a contract that has an arbitration provision (i.e. where the parties agree that all disputes under the contract must be arbitrated rather than litigated in a courtroom by a judge or jury), and, further, if the arbitrator issues a arbitration judgment against you, a court must ratify/confirm that judgment if the winning party applies to have the court do so. In NCO v. Reese, the court held that a trial court had erred when it failed to ratify/confirm an arbitration ruling, and that the trial court in fact HAS to ratify/confirm the arbitration ruling UNLESS the losing party can prove one of VERY limited number of factors. Thought: Be very careful about signing any contract containing an arbitration clause - you may be waving many of the rights you would otherwise have in a courtroom.
The Eighth District Court of Appeals has recently held that cognovit notes can, if improperly drafted, can backfire on the drafter. (Cognovit notes are special promissory notes - controlled by statute- which give the holder of the note the ability to get an immediate and automatic judgment if the debtor defaults - without the normal delay associated with normal litigation). If the language in the cognovit note is defective (that is, not drafted according to the statutory mandate), any judgment rendered on the note is void - and unless the complaint is properly served upon the defendant, any other normal judgment rendered against the defendant in a normal litigation process is void as well. In Adams v. Bennett, the Court made it clear that anyone (be it a pro se litigant or a lawyer) who incorrectly drafts a cognovit note may essentially have a worthless document. Thought: Forget the store bought or non-lawyer drafted cognovit notes if the loan in question is important to you.