Archive for the ‘ACCESS RULES’ Category

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Partitioning Co-Habiting Couple’s Real Estate

Thursday, April 30th, 2009

Vern and Nancy lived half the year in California and half in Montana. They were not married. Vern inherited a home from his dad in Glasgow that served as their Montana residence. Vern purchased two additional properties in Glasgow: an additional home they fixed up for a rental with a loan secured by his inherited home and another run-down property for cash. He placed both of these two additional acquired properties in his and Nancy’s name jointly.

Vern and Nancy ended their relationship after 8 years. Vern sued for partition of the two jointly titled properties. The trial court awarded the rental to him and ordered him to pay Nancy $5,400 for her contribution to the property. Based upon emails between the parties post-separation as well as testimony, the trial court found Vern intended the run-down property as a gift to Nancy. The court ordered Vern to deed the property to her or pay her $5,300 for the property.

Vern appealed the portion of the decision awarding Nancy the run-down property. He argued that he had not intended to simply give Nancy the property — and in any event, legal title was in their names jointly and there was no evidence of delivery.

The Montana Supreme Court affirmed the decision, emphasizing that partition actions are actions in equity. In a partition action, the court starts with the presumption that jointly titled property is owned in equal shares. That presumption is rebuttable, however. Evidence of unequal contribution to the property is sufficient to lead to another presumption: that the parties own shares based upon their relative contribution. That presumption is rebuttable too: by evidence that one party intended a gift to the other. According to the Supreme Court evidence of intent to gift casts a wide net: “The party may establish proof of a gift by parol evidence, such as conduct over the course of time, the relationship between the two parties, the sharing of expenses, labor, or any other admissible means.” One might wonder what evidence could not be offered as proof of a gift.

The case is Anderson v. Woodward 2009 MT 144

Posted in ASSET AND DEBT DIVISION, Family Law | No Comments »

Birth Dates Published By the Court

Friday, April 10th, 2009

The Montana Supreme Court published In Re Marriage of Chapman and Panagakis, 2009 MT 119N, on April 9, 2009. The decision itself contains the full dates of birth of both children. Section 4.50 (c)(4) of the Rules for Privacy and Public Access to Court Records in Montana states that full birth dates of any person are not to be shown in any public court record. Technically, this inclusion of private information in a court decision does not violate the Privacy Rules, as Section 4.50 (d) places sole responsibility for keeping such information out of court records on the litigant: “It is the responsibility of the filing party to comply with these rules to protect private information.”

This case illustrates the difficulty in sanitizing public court records of information that could lead to identity theft or worse. It is exceedingly easy for these kinds of details to be overlooked. Once published on the internet, however, all court control of this information is lost. These birth dates will be available forever.

Posted in CHILDREN, Family Law | No Comments »

Using Initials for Parents’ Names

Monday, March 23rd, 2009

In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (”Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”

Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.

Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.

Posted in Appellate Practice, Family Law, Parenting Plan Evaluations, Uncategorized | No Comments »

Grandparents Prevail Over Long Absent Father

Saturday, March 14th, 2009

In 1996, Mom has a child in Louisiana with Dad. Dad does not know she was pregnant and does not know he is a father. Mom relinquishes custody in Louisiana to her parents, the maternal grandparents. Louisiana court issues order transferring custody to grandparents. Then grandparents, mom and child all move to Montana. In 2006, 10 years after the child’s birth, the grandparents apply for medicaid benefits for the child. Dad is contacted and child support ordered. Dad seeks custody in parenting plan proceedings now in Montana. District Court refuses to grant dad custody, ordering instead a plan that gradually introduces him to the child with supervised visits initially and then a mental health professional to monitor how that is going with the anticipation that dad will first move on to unsupervised visits in Montana and later visits in Louisiana where he still resides. Dad appealed both on the basis of inadequate findings to support the trial court rulings and on constitutional grounds. The Supreme Court affirmed the trial court stating that the findings were sufficient and stating that the appellant had failed to file a motion and brief preserving the constitutional issue on appeal. The case is In Re Parenting of K.A.R. 2009 MT 73N.

Posted in Parenting Plan Evaluations | No Comments »

Findings Needed For Appellate Review

Thursday, February 19th, 2009

Trial court must include findings and conclusions in its order. Reversed for failure of District Court to do so in a parenting plan modification case. Here the Judge ordered both permanent change to the parenting plan plus ordered future counseling with the reservation to the judge to make further modifications to the order, which it did. Reversed and remanded for findings. Marriage of Banka. 2009 MT 33.

Posted in Family Law, Uncategorized | No Comments »

Adoption: termination of father’s parental rights denied. 2009 MT 22

Thursday, February 19th, 2009

District Court refused to terminate father’s rights and allow the guardians, the maternal grandparents, to adopt. The court can terminate if under Section 42-2-610 MCA, the putative father failed to establish and maintain relationship, or under Section 42-2-608 MCA, father is unfit. Here the father was in Iraq for a time, then came back and sought contact with the child and provided some support. That was enough to cause the trial court not to terminate his rights. Affirmed by the Supreme Court.

Adoption of R.A.J. 2009 MT 22.

Posted in Family Law, Uncategorized | No Comments »

Sealing of parenting plan investigative reports

Wednesday, February 20th, 2008

The reports of parenting plan investigators appointed under Section 40-4-215 (4) M.C.A. must be filed as part of the court record but “… may, without objection, be sealed.” The investigator must make not only the report generated, but the underlying documents, testing results, names of everyone the investigator spoke with — upon which the report is based. The investigator has broad powers: to obtain medical records of a child (less than 16 years of age) without obtaining the parents’ or the child’s consent. This is clearly a discretionary judicial act, but no standard for ruling is expressed.

With the new Access Rules, best practice is to routinely move to seal such reports and underlying documents.

Posted in Family Law, Medical Records, Parenting Plan Evaluations | No Comments »

Motion to seal parenting plan interviews, reports, investigations, testimony

Wednesday, February 20th, 2008

Section 40-4-216 (4) M.C.A. allows a court to seal interviews, reports, investigations and hearing testimony if it finds that keeping the information secret is necessary to protect the child’s welfare. Ironically, the new Access Rules may make it far easier to seal such records — when the only alternative is internet publication.

Section 40-4-216 (3) allows the public to be barred from a parenting plan hearing if barring the public is in the best interests of the child.

Posted in Family Law, Parenting Plan Evaluations | No Comments »

Cell Phone Numbers

Sunday, February 17th, 2008

At least one court I know is collecting cell phone numbers. I expect this will become common as the only practical way to contact victims, witnesses, and jurors. Not only is there no protection from internet publication of cell phone numbers under the new Access Rules, Section 4.10 (c) specifically forbids any district court or court of limited jurisdiction from adopting any rule restricting the internet publication of these telephone numbers.
Cell phone numbers are, of course, not published in the Dex Telephone Book or competing paper directories. So this information will be quite valuable commercially. Telemarketers, political operatives and others will embrace this new source of information regarding thousands of Montanans. Google and an increasing array of commercial companies can be expected to download and index these cell phone numbers as well.

Posted in Phone Numbers | No Comments »

Medical Records

Saturday, February 16th, 2008

Medical records are not protected from internet publication by the new Access Rules. They SHOULD be protected. As the Access Rule Commentary to Section 4.50 admits, HIPAA does not protect such documents because state courts are not included within the definition of “health care entities”.
“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45 C.F.R. Part 160 and 164. Whether the limitation extends to state court records is not clear, however, state courts are not included within the definition of health care entities that are covered by HIPAA.” See Access Rule Commentary to Section 4.50.
Once a medical record, psychological evaluation, child custody evaluation and other similar documents are admitted into evidence or attached as exhibits to affidavits filed before the courts, they become “court records” under Section 3.10 of the Access Rules. All court records except for records that are expressly not publicly available are slated for internet publication under the Access Rules.
In my family law practice it is not unusual to have psychologists involved to help the court decide contested parenting plan cases. The reports from psychologists performing custody evaluations include a detailed personal history of the adults, the children, psychological testing results, mental health diagnoses and recommendations of the professional for the court.
Why are not medical records, including psychological evaluations and medical and mental health related information categorically protected from internet publication? Why did not the Task Force add these records to 4.50 (c)?
As the Montana Psychological Association comment from June 1, 2006 noted, lots of harm to Montanans can come from unrestricted internet publication of such records.

We should routinely file motions to seal these documents in light of the harm to be done by internet publication.

Posted in Medical Records | 1 Comment »

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