Experts, Specific Values and "Financial Misconduct" in Divorce Cases

The Cuyahoga County Court of Appeals has just recently reaffirmed that when a domestic relations court is faced with two values for a business, one provided by the husband and the other provided by the wife, the Court is permitted to exercise its "discretion" to determine which value, based upon the evidence, is proper. This discretion is a powerful right possessed by the domestic relations court, but there must be credible and objective evidence and reasoning presented to the Court in support of the value. In the case of Haynes v. Haynes, 2009 Ohio 5360, the Court also sent the case back to the domestic relations court to obtain specific values of the parties property so that the Court could mathematically divide all of the property as equally as possible. For some reason, the parties did not present (and the trial court magistrate did not require) specific values for important pieces of property that had to be divided by the court. Ohio law requires that a domestic relations court do its best to divide up all of the marital property equally - and obtaining values for all of the relevant property is absolutely necessary to obtain an equal division. The Court also held that the trial court was correct in holding that using business funds to pay for gambling debts was "financial misconduct," and that the gambling spouse could lose a portion of their half of the marital estate for such conduct. Ohio divorce law holds that if one spouse engages in "financial misconduct," the court can penalize that spouse by taking away a portion of the marital estate and giving it to the other spouse.

The Supreme Court of the United States addresses DUI tipsters

In what is rather a rare situation, the United States Supreme Court is reviewing (and eventually answering) the question of whether or not an anonymous tip of possible drunk driving to a police department is sufficient to give police officers of that department the right to pull over that driver. In the case of Virgina v. Harris, the prosecution is trying to convince the United States Supreme Court that the Supreme Court of Virginia was wrong when that Virginia Court held that an anonymous tip is not enough for a police officer to pull over the driver - and that the officer must actually see the driver driving poorly before that officer can pull over the driver. Since the case just got to the United States Supreme Court, it may indeed be sometime in the future before we get an an answer to this question. The answer to this question shall be binding on all states in the Union - including Ohio. Ohio currently allows for anonymous tips to provide enough "reasonable suspicion" for the police to pull over a driver if the tip was proven to be "reliable" and the tip has not gotten stale over time. Stay tuned . . . We will let you all know as soon as we get the ruling.

Recent Ruling on Class Actions

The Cuyahoga County Court of Appeals has recently issued a ruling on what the law calls "class actions." In a case involving a Consumer Sales Practices Act lawsuit against a car dealership (Konarzewski v. Ganely, Inc., 2009 Ohio 5827), the Court of Appeals ruled that (i) the persons to be included in the class were ascertainable and (ii) the transactions at issue were similar enough (i.e. the claims were "typical" enough and had enough "commonality") to proceed as a class action. The defendant, in a further attempt to prevent the certification of the class. claimed that the class definition was not clear enough. However, the Court also rejected that argument and stated that the definition does not have to specifically identify every member by name - it just has to be clear enough to give a court an idea of how to identify who the potential members might be once the class is certified. The Court of Appeals has now sent the case back to the trial court with instructions to certify the class and work in refining the class definition. This ruling could have large implications for businesses that rely on a large volume of small transactions. If the custom of that business is to engage in a minor manipulation of the law each time it engages in those transactions, then a class action lawsuit by just one of the affected customers could result on a huge class action lawsuit against the business.

Video of Our Oral Arguments at the Supreme Court of Ohio

In one of our earlier posts, we notified you of the fact that we had an important case pending with the Supreme Court of Ohio. That case involved a dog mauling of a young girl. When that case went to trial, the trial court made us chose between 2 types of case presentation, which we believed was against the law. The Court of Appeals agreed with us (see the Court of Appeals decision), but the insurance carrier for the dog owners wanted to have the Supreme Court of Ohio hear the case. You can hear the September 30, 2009 oral arguments Michael O'Shea made at the Supreme Court of Ohio in Case No. 2008-2106 Yoshanta Beckett et al. v. Richard Warren et al. by clicking here. Give us some comments if you want.

Leaving Home Monitoring System Can Result in an Escape Charge

The Cuyahoga County Court of Appeals has just ruled that a if person is on electronic home detention (e.g. an electric ankle bracelet that monitors the location of a defendant) while on probation, and that person defies the geographical limitations of the bracelet or snaps-off/shuts-off the bracelet, that person can be charged with a separate and subsequent escape crime - even if that person was sent to jail for a probation violation. The defendant in State v. Peters, 2009 Ohio 5836 argued that, because the trial court had already sent him to prison for violating the electronic monitoring terms (i.e. ankle bracelet) of his probation, charging him with a separate and subsequent crime for the same conduct violated the "double jeopardy" clause of the Ohio and United States Constitution. However, the Court of Appeals disagreed. The Court held that (i) charging one for conduct which also resulted in a probation violation is not a violation of double jeopardy and (ii) a trial court is without authority to dismiss an indictment prior to trial because there is no legal mechanism (as there is in a civil case) for a court to do so. Suggestion, keep the ankle bracelet on and keep watching Oprah.

Mandatory Longer Sentence for DUI Breath Test Refusal Found Consitutional

In still another ruling on the ongoing debate about DUI sentencing statutes, the Supreme Court of Ohio recently ruled that the extra 10-day sentence mandated by Ohio law on those who (i) have a prior DUI conviction and (ii) refuse the breath test on a subsequent DUI arrest and conviction is not a violation of the Fourth Amendment of the Ohio and United States Constitution. The defendant in State v. Hoover, 2009-Ohio-4993 alleged that the mandatory breath test required under Ohio DUI law violated his Constitutional right against "unreasonable searches and seizures" - a right protected by the Fourth Amendment of the Ohio and United States Constitution. However, in a narrow 4-3 decision, the Supreme Court of Ohio rejected that argument, holding that a series of decisions by the Court have already held that a defendant does not ever have a right to refuse a breath test, and, therefore, any increased in penalty for a refusal of the test cannot be unconstitutional. These prior holdings have all been based upon the idea that when a person requests and obtains an Ohio driver's license, that persons has consented to having their breath tested at any time they are arrested for a DUI. So if a person has a prior DUI conviction, and that person is subsequently arrested for another DUI and refuses a breath test, that person is facing (i) a 10-day sentence for a 2nd DUI and (ii) an ADDITIONAL 10-day sentence for refusing the test - for a total minimum sentence of 20 days. If that same person had consented to the test (and tested over the legal limit), they would only be facing a mandatory sentence of 10-days. A person with a prior DUI conviction has to really ponder whether refusing a breath test if arrested for a 2nd DUI is worth the extra penalty. Suggestion, consult with a lawyer as soon as you are confronted with this issue.

New Ohio Supreme Court Ruling on Expungements

The Supreme Court of Ohio has just issued an important ruling which clarifies some of the issues defendants and their lawyers are faced with when dealing with whether or not a defendant can obtain an expungement of multiple convictions stemming from a single event of criminal conduct. In State v. Futrall, 2009-Ohio-5590, the Supreme Court of Ohio held that if any of the criminal convictions stemming from the same series of events are barred from being expunged, then all of the separate convictions from that series of events cannot be expunged. For instance, if the defendant's course of conduct resulted in 4 separate convictions, if only one of those convictions is barred by statute from being expunged, then all of the convictions from that case are also barred from being expunged. Some types of convictions are barred by law from being expunged (for example, various crimes of violence and DUIs). If the defendant after a trial or as part of a plea negotiation is found guilty of one of these convictions, her/she cannot get any of what would otherwise be expungible convictions expunged. Thus, defendants and thier lawyers must be very cautious when considering this new ruling when deciding to go t trial or enter a plea - especially if that defendant has aspirations of getting that particular conviction(s) expunged in the future.