Tennessee Judge Fired for Refusing to Approve the Name “Messiah” for Baby Boy

DSC01152_2 (2)_2When couples with kids separate they can fight about almost anything. One of the most common points of disagreement is what surname a child will use in the future. Mom wants her surname used by the child, while Dad wants his, or one of them proposes a double-hyphenated last name. Yes, these cases are routinely heard by family court judges, usually with little fanfare.

A naming case attracted more than the usual amount of attention when Jaleesa Martin and Jawaan McCullough appeared before Tennessee Judge Lu Ann Ballew quarrelling over what surname their son Messiah should use. The Child Support Magistrate surprised both parents when she unilaterally ordered that Messiah could not use the name of Jesus and ordered that he be called Martin McCullough.

Judge Ballew opined that the name Messiah was reserved for Jesus Christ and that the youngster would suffer embarrassment and derision if he were forced to assume a name that was associated with God the Son. Messiah’s parents successfully appealed Judge Ballew’s order where the appellate court held her ruling was unconstitutional. End of story? Not quite.

Judge Ballew, whose appointment was at the pleasure of the court service, was fired last week for “inappropriate religious bias”, with the Chief Judge noting she had been cited previously for a similar offence. She will face a judicial hearing on March 3, 2014.

Something tells me there is a lot more to this story. Stay tuned….

Lawdiva aka Georgialee Lang

Judge “Friends” Wife While Hearing Her Divorce Case

P1010870 - Version 2She’s a Facebook fan and also a Florida judge who thinks its OK to “friend” a litigant in the middle of her divorce trial. No, I’m not kidding!

Sandra Chace and her husband Robert Loisel had just finished their divorce hearing and were awaiting the Judge’s decision, when Sandra received a request from the Judge to become a Facebook friend.

Ms. Chace immediately contacted her lawyer who recommended she not accept the request, so she ignored it.

Shortly thereafter the Judge handed down her Reasons. To Ms. Chace’s dismay the decision was highly favourable to her husband. Notably, the Judge left her responsible for the majority of the family debt and granted her spouse extremely generous alimony.

After learning this Judge had previously contacted litigants through social media and had been compelled to recuse herself, Ms. Chace’s lawyer brought a motion before her alleging a reasonable apprehension of bias based on her internet overture to his client and his client’s rejection of it.

The protocol for applications alleging bias is to go back to the Judge who made the order and have him or her review the situation.

Several years ago I brought a similar application before a judge in the British Columbia Supreme Court on the basis that his remarks during the hearing could lead a reasonable person to believe he was biased against my client.

At the time I thoroughly researched the law on bias and was not surprised to see that in 99.9% of cases, the judge determined there was no bias. That’s the finding this Judge made as well.

Ms. Chace then appealed the decision to the Court of Appeal who disagreed with the Facebook friendly trial judge. The Appeal Court found that Ms. Chace was caught “between the proverbial rock and a hard place”. She was trapped in a difficult position: Should she respond to the Judge’s ex parte communication or ignore it and risk offending the judge?

The Appeal Judges quashed the order of the trial judge and remitted the matter back to the trial court. Ms. Chace can only hope she does better the second time around.

Lawdiva aka Georgialee Lang

BC Court of Appeal Allows New Hearing for “Game-Playing” Litigant

BarristerThis week’s decision from the British Columbia Court of Appeal in Ghavim v. Jamali provides a stark picture of how a family law litigant can use the system to thwart a “just, speedy and inexpensive” resolution to a family law case.

The parties were married for 20 years, immigrating from Iran to British Columbia. The marriage broke down in 2009 and in September of 2010 Ms. Ghavim filed a divorce action seeking division of property and child and spousal support. There were several interlocutory applications and a five-day trial was set for November 2012.

Ms. Ghavim’s lawyer, in an effort to bring an end to the issues in the case, set down a hearing in August 2012, called a summary trial. A summary trial is an expedited hearing to resolve a case, short of a lengthy trial. Family law lawyers are encouraged to bring finality to family law cases to decrease costs and the emotional wear and tear of protracted litigation.

On the appointed date in August, Mr. Jamali showed up without a lawyer and sought an adjournment to obtain counsel. I have never seen a Court refuse an adjournment application brought by an in-person litigant and the case was adjourned for a month.

When the case began in September, Mr. Jamali, not surprisingly, still had no lawyer, but the case proceeded, as it should have. He did bring an interpreter with him.

On a summary trial the evidence before the court consists of affidavits, transcripts of other sworn testimony, and relevant documents. Each of the parties filed two affidavits.

The wife alleged her husband had a luxury apartment in Tehran valued at $1 million dollars that provided rental income of $7,000 per month. Her husband brought a lease agreement to court that showed a rental income of $50.00 a month. He also said the apartment had only $50,000 in equity with a fair market value of $200,000 to $300,000. Ms. Ghavim asserted that the rental agreement was a forgery, a recurring feature in cases like this one.

The parties sold their home in the Lower Mainland in 2009, each receiving a portion of the net sale proceeds of $259,000, however, Mr. Jamali’s previous lawyer had given an extra amount from his trust account to Mr. Jamali, although he had no authority to do so. That money, of course, was long gone and the judge voiced his criticism of the lawyer’s questionable actions.

During the hearing the judge asked questions of Mr. Jamali in order to elicit the testimony he would need to make a decision. Notably, the judge queried him with respect to the deposits in his bank account. He was utterly unable to explain the source of the funds.

The judge asked to see Mr. Jamali’s wallet, noting that for someone who had no income he was carrying a large amount of cash. Of course, Mr. Jamali had an answer for that: it was money to pay the interpreter. As an aside, I am puzzled that Canadian immigrants like Mr. Jamali who cannot speak English manage to obtain status in Canada, but that’s for another day.

The judge was openly skeptical of the husband’s evidence and at one point suggested that he stop “playing games”. The Court ultimately did not believe that Mr. Jamali had no income and imputed income to him, ordered him to pay retroactive child support and provided Ms. Ghavim with $32,000 in lump sum spousal support, which was the amount remaining from the proceeds of sale of the home.

Of course, Mr. Jamali retained the apartment in Tehran and its rental income, since only a court in Iran could divide that property.

Mr. Jamali appealed on the basis that the judge showed bias against him during the hearing. The Court of Appeal characterized the issue as to whether a reasonable observer of this trial would conclude that Mr. Jamali’s trial was unfair and ruled they would.

The Court of Appeal noted that Mr. Jamali probably didn’t understand the process of a summary trial, he probably didn’t know that he could argue that there be a full trial, he probably didn’t know that when he answered the questions of the judge that the judge would rely or scrutinize his replies to determine credibility, he probably didn’t know that he could ask to cross-examine his wife on her affidavits,and he probably didn’t know the judge would make a decision.

Yes, that’s the upshot of the case. The Court of Appeal saw Mr. Jamali as a victim of an unfair hearing and ordered that the parties start over, while confirming that the new process should also be a summary trial.

Perhaps its been too long since the Appeal Court presided over a family law hearing where there is nothing but excuses: I don’t have a lawyer; I don’t speak English; I didn’t have enough time; I didn’t know I could do this or that; please believe me, although I could have brought appraisals and documents to prove my case.

This is just one example of why the Canadian public is fed up with the system of family justice and yes, these cases happen time and time again.

How much do you want to bet that Mr. Jamali shows up again without a lawyer and the new judge makes a similar ruling?

Lawdiva aka Georgialee Lang

Father Pays His Child Support, But Still Jailed for Six Months

DSC00280Texas father Clifford Hall has a great relationship with his 11-year-old son. He pays child support and sees his son regularly. So what’s the problem?

In November 2013 Mr. Hall was in court where his ex-wife’s lawyer confirmed there were no arrears of child support. Fast forward to January 2014, when he reappeared in court and was advised that due to an administrative error his direct deposits of child support to his ex-wife’s bank account had resulted in an underpayment of support. His ex also complained that he was not in adherence with their parenting agreement, as he was seeing his son more often than the agreement permitted.

He immediately paid the $3000.00 owing and expected to walk out of court with everything squared away. Not so fast…

Houston Judge Lisa Millard had something else to say “I sentence you to Harris County Jail for 180 days”. Gulp… That’s six months!

I have to wonder whether it gets dumber than this. A good father who pays his support and sees his child, who, but for an unintentional underpayment, will no longer be in a position to pay support, and can only see his son in a prison visiting room, while the State of Texas expends tens of thousands of dollars to keep him locked up.

Fortunately, there is now talk of a state judicial investigation and Change.org have started a petition directed at Texas governor, Rick Perry, calling for the release of Mr. Hall.

This judge needs her head examined!

PS Change.org is the online petition company that launched the internet petition against George Zimmerman in the Trayvon Martin case in Florida, obtaining 2.2 million signatures

Lawdiva aka Georgialee Lang

Family Law Nightmare: Nozolino v. Nozolino

BarristerIf you thought you had an ugly divorce, you may reconsider after hearing about Nozolino v. Nozolino. The Nozolino’s from Colorado were divorced in 1999. Unhappy with the outcome of his family law trial, Bruce Nozolino, a software engineer in his 50′s, appealed the decision before Chief Justice Gil Martinez, regarding division of property, attorney’s fees and several other issues. To no avail, as his appeal was dismissed.

But Court was not over, it was merely adjourned to await the next battle. And there were many.

The Nozolino’s fought over every issue, whether large or small. They fought over the cars, his wife’s pension, her jewellery, the burgundy leather ottoman and particularly over the kids, how much time they would spend with their dad and how much money Bruce Nozolino would pay for their support.

Mr. Nozolino eventually fired his lawyer and redirected his fury from his allegedly adulterous ex-wife to her lawyer, John Ciccolello, a leading Colorado attorney, who he insisted was unethical and unprofessional, delaying hearings to prejudice Mr. Nozolino and making false statements against him.

At one point, Mr. Ciccolello sought to bring trespassing charges against Mr. Nozolino in respect of Nozolino’s attendance at his office, but the charges did not proceed. Meanwhile, Mr. Nozolino took every opportunity to bring Ciccolello to the attention of the Court, seeking sanctions for serious ethics breaches. None were ever proved.

In the midst of the divorce battle in October 2001 a shot was fired at the home of Chief Justice Gil Martinez. No arrests were made but soon after the Chief Justice removed himself from the Nozolino case. Most people thought it was just a coincidence until it was revealed that bullets had also been fired into the home of John Ciccolello a few months earlier.

On January 23, 2002 attorney Ciccolello was in his second floor office when a sniper’s bullet pierced the window and lodged in his eye socket . He believed he was going to die, but thankfully survived his injuries and even with his loss of vision and related hearing problems, continued his thirty year family law practice.

All eyes turned to Bruce Nozolino as the attacker, but with no inculpating evidence, charges could not be filed. Mr. Ciccolello spent years watching over his shoulder wondering and worrying what might be next.

He left the Nozolino case shortly after the shooting and in August 2002, the Court ordered that Mr. Nozolino pay his former wife’s attorney fees in the amount of $30,000.00. By this time, Mr. Nozolino was barred from having any contact with Ciccolello, his ex-wife and his children.

Colorado Springs lead investigator Terry Bjorndahl continued to pursue the investigation against Nozolino and also found himself the subject of a lawsuit brought by Nozolino against him. Nozolino alleged that when Detective Bjorndhal seized Nozolino’s gun collection, Bjorndahl had made the seizure in order to sell the guns to ensure that Bjorndahl’s divorce lawyer, none other than John Ciccolello, was paid his attorney’s fees arising from the Nozolino case. The suit was dismissed.

On November 30, 2008, 46 year-old Richard Schreiner was outside his Colorado Springs home shoveling snow when he was gunned down on his front sidewalk. Good police work uncovered information that indicated that during the Nozolino trial, his name had come up as a “friend” of Mrs. Nozolino’s.

After nine years of investigation and a three-month grand jury hearing, Bruce Nozolino was arrested in July 2010 and charged with thirty-one counts, including the murder of Richard Schreiner and the attempted murders of John Ciccolello and Chief Justice Gil Martinez. A public defender was assigned as counsel for Nozolino, who was being held without bond. Not one to lay idle, Nozolino was also busy tampering with witnesses and had five additional charges levied against him.

In September 2012 Nozolino was convicted of tampering with witnesses and perjury in relation to the grand jury inquiry into the murder of Richard Schreiner and the attempted murders of the judge and his wife’s lawyer. He was sentenced to 21 years in prison.

His trial on the remaining charges is scheduled for January 2014. Colorado is a death penalty state. You don’t say?

Lawdiva aka Georgialee Lang

BC Judge Expands Definition of Family Violence to Include Non-Payment of Child Support

GEO#1My esteemed legal colleague JP Boyd writes in his blog about a recent case where a Provincial Court judge has decided that a failure to pay child support on time and in the full amount constitutes “family violence”. An excerpt from JP’s blog reads:

“In the recent decision of J.C.P. v J.B. the Provincial Court has characterized a person’s failure to “pay child support on time and in the full amount” as “family violence” within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties’ child. This decision continues a trend toward the broad interpretation of “family violence”…

In J.C.P., Judge Merrick was asked to determine a range of issues including child support, parenting arrangements for a four-year-old, and whether family violence had occurred. Each of the parents made allegations of physical and sexual violence against each other, with the conflict in the evidence provided which is commonplace when such claims are raised, such that the court could not determine what had actually happened. The court was, however, able to conclude that the father had committed family violence as a result of a combination of his failure to pay the full amount of child support owing and his other behaviour.”

What was his “other behavior”? Here is the judge’s reasoning:

“I have come to this conclusion based on the following:

(a) [the father's] repeated failures to pay monthly child support, as ordered, for more than a year despite having an ability to do so;
(b) [the father's] communication to [the mother] that other than child support, what could he do to assist her in parenting [the child];
(c) [the father's] actions in placing $20 in [the child's] backpack which went back and forth with [the child] as if it was some form of an allowance for [the mother];
(d) [the father's] view that child support was not due on the 1st of the month, as ordered by the court, and that he could choose to pay it within the month and whenever he chose to within the month;
(e) [the father's] initial reluctance to contribute to the cost of [the child's] required dental care; and
(f) [the father's] steadfast refusal to pay child support despite the considerable number of urgings and the explanation by the court as to the importance of child support.”

Yeah, right?

Hopefully this decision of the Provincial Court will be appealed because it is nothing short of ludicrous. While I have no time for fathers who refuse to pay court ordered child support,(if the decision is wrong then appeal it!) but to equate non-payment or late payment of child support with domestic violence is a stretch that I cannot comprehend.

Another sign of political correctness run amok? Really, Judge Merrick?

Lawdiva aka Georgialee Lang

Is “Yelling” Domestic Violence? British Court Says “Yes”.

49afd8240a58bf0fb97d4a86105572c1Have you ever yelled at your spouse, perhaps out of frustration or even anger? If you say “no”, I don’t believe you.

For those of us who on those rare, embarrassing occasions have sounded off rather loudly, best keep away from England, since Britain’s highest court has found that raising your voice to your spouse qualifies as domestic violence.

This is truly a case of “words mean what I say they mean” and the “I” is Baroness Hale of Richmond, who was the first woman appointed to the prestigious House of Lords in 2004 and in 2009 took her place on England’s new Supreme Court of the United Kingdom. She is the most senior female judge in Britain.

The case involved 35 year-old Mirhet Yemshaw who lived in government subsidized housing with her husband and children. She brought an action against the housing authority for refusing to provide her with her own apartment after she left the home she shared with her husband because of alleged domestic violence.

Ms. Yemshaw had not been threatened by her spouse, neither had she ever been physically assaulted; no pushing, shoving, or slapping. Nothing.

She said that her spouse had yelled at her in front of the children and did not provide her with a sufficient allowance to run the household. She also said that she was afraid she would lose custody of her children.

Rather than viewing this as a preemptive strike in an obvious matrimonial dispute, Lady Hale declared that the definition of domestic violence must change to include a range of abusive behaviors.

She said it was not up to the government or other officials to decide what constituted domestic violence, rather it was within the purview of the courts alone to determine changes in the meaning of Parliament’s words.

Lady Hale remarked that while the dictionary defined “violence” as a physical attack it could also include “extreme fervor, passion or fury.”

The ramifications of this ruling will be draconian and disastrous in terms of the interpretation of a variety of criminal and family law statutes. I wonder if Lady Hale thought about that before she decided she knew better than everyone else.

However, she was not alone. Four male Law Lords agreed with her decision, albeit Lord Brown expressed what he called “real doubt” about the correctness of the decision, noting that the ruling overturned two precedent cases decided by six Justices of the Court of Appeal. Nonetheless, he was content to let the majority rule.

Yemshaw’s husband says all of this started because his wife was unhappy.

Lawdiva aka Georgialee Lang

Human Trafficking Allegations Against BC Woman Proven False

GAL & PAL #2jpgI can only imagine the relief and joy West Vancouver businesswoman, Mumtaz Ladha, must have experienced after Madam Justice Lauri Ann Fenlon of the British Columbia Supreme Court acquitted her of all charges in relation to the allegations that she enticed a young African woman to come to Canada to work as her unpaid slave.

And to those who may think that the acquittal was simply because these kinds of charges are notoriously difficult to prove, Judge Fenlon laid waste to that theory, declaring that Ms. Ladha’s generosity was exploited by the young Tanzanian woman, who took advantage of the situation in an attempt to remain in Canada.

The judge said:

“I wish to emphasize that this is not a case in which I am left with only a reasonable doubt about whether the offences occurred….

I am left, rather, with the conviction that the allegations made by (the complainant) are improbable. On the evidence before me, it appears far more likely that the complainant took advantage of Mr. Ladha’s generosity in order to come to Canada and then took advantage of an opportunity she saw to remain in this country, showing a callous disregard for her benefactor and the truth in the process.”

What is appalling is that Ms. Ladha’s legal ordeal took four years to resolve. For four years, she lived with the stigma and shame of allegations that painted a false picture of her as a cruel, wealthy, woman capable of concocting a plan to coerce a naïve young woman into servitude.

While the judge focused on the alleged victim’s lack of credibility, she also noted that when Ms. Ladha was first faced with the allegations she defended her accuser to investigators exclaiming that she was “an innocent child who must have been pushed to do this.”

It is always heartening to see the justice system work, now if we can just get it to work a little faster.

Lawdiva aka Georgialee Lang

Bondage Judge’s Judicial Inquiry High-Jacked By Federal Court and Collapses

BarristerIf the Canadian Judicial Council Inquiry Committee reviewing Madam Justice Lori Douglas’ off-duty behavior is a microcosm of Canada’s justice system, why should anyone be surprised that after years of litigation manoeuvres by Ms. Douglas, the Committee has finally thrown up their hands and walked off the job.

Their frustration with the legal gamesmanship and the resulting delay and expense is a feeling that is shared by millions of Canadians daily, particularly those unfortunate enough to be caught in the morass of family court.

However, when the body that governs superior court judges in Canada cannot move forward and complete their mandate because of the interference of another court, one has well and truly gone down the rabbit hole.

Judge Douglas’ saga began in the Fall of 2010 when her husband, divorce lawyer Jack King’s former client, Alex Chapman, reneged on his 2003 agreement to keep his lips sealed in exchange for a payment of $25,000. His lurid secret was that Mr. King had shared explicit nude photos of his wife, Judge Douglas with him and allegedly attempted to entice him into a sexual relationship with the two of them.

Chapman’s complaint to the Canadian Judicial Council alleging sexual harassment started their investigation which eventually led to a rare public inquiry in May 2012 as to whether she was fit to retain her position as a judge of the superior court in Manitoba.

By the time the hearing got underway, additional allegations tangentially related to the harassment charges came into sharper focus. The investigation revealed that when she applied for her judicial position in 2005 she answered the question “Is there anything in your past that could reflect badly on the office of a judge?” in the negative and “changed” some of her diary entries that related to the Chapman allegations.

Several days into the inquiry, after the evidence of husband Jack King and Mr. Chapman had gone in, it became apparent to Judge Douglas’ lawyer that things were not going well for her and an application to terminate the inquiry based on the legal principle of “a reasonable apprehension of bias” was brought on her behalf. The sole basis for the allegation was that counsel for the Committee aggressively cross-examined two inquiry witnesses.

On July 27, 2012 the Committee rejected her application, whereupon she launched an appeal to the Federal Court and obtained an order from that Court that the Inquiry would be “stayed” or put “on hold” until the Federal Court could rule.

The absurdity of the process in the Federal Court is explained by the Committee in their written REASONS FOR RESIGNATION OF THE INQUIRY COMMITTEE CONCERNING THE HONOURABLE LORI DOUGLAS released on November 20, 2013.

They point out that the orders sought by Judge Douglas in the Federal Court and made by the Court were argued without challenge since the only Respondent in the action is the Attorney-General of Canada who brought their own application to be removed from the Federal Court proceedings. The Court refused to remove them from the proceedings but their lack of enthusiasm was evident when they did not appear in court for the stay hearing, thus turning it into an uncontested application, also known as a “slam-dunk”.

The learned justices of the Committee also lament that crucial issues such as the Federal Court’s jurisdiction to usurp the Inquiry’s authority were never addressed and recognize that it may be several more years before the Federal Court completes its review, including the inevitable appeals that will follow.

Finally, the Committee affirms their belief that the inquiry process under the Judges Act must not be high-jacked by “unlimited steps and interlocutory privileges…at public expense”…with the goal of defeating the “wider public purpose that must be served by the judicial conduct process.”

The Inquiry Committee’s resignation is regrettably a necessary, but embarrassing step in a circus that has played out far too long. When will Lori Douglas follow their lead and tender her resignation?

Lawdiva aka Georgialee Lang

Top Five Lawyer Movies

GAL & PAL #2jpgPeople love movies with suspenseful courtroom scenes where the accused is suddenly exonerated by a surprise witness. Doesn’t happen much in real life, but it reminds me that Hollywood used to make great legal movies Here’s my TOP FIVE list:

1. My Cousin Vinny (1992)

When two New Jersey Italian-Americans are charged with murder in Alabama, they need to find a lawyer, but the only lawyer they know is their cousin Vinny, who failed his bar exam six times. In this laugh-a minute comedy Vinny is played by Joe Peschi, while Marisa Tomei, plays his bubble-headed fiancee. Tomei received an Oscar for her role.

2. Witness for the Prosecution (1957)

This Agatha Christie play was turned into a movie starring Marlene Dietrich. It is a terrific movie about a man falsely accused of murder. I have a soft spot in my heart for this film since several years ago, I played Marlene Dietrich in an Arts Club production at the Stanley Theatre in Vancouver, in several scenes where she disguises herself to dupe a lawyer. Many Oscar nominations for this movie.

3. Judgment at Nuremberg (1961)

This film portrays the real-life trial of four judges appointed by Hitler who were charged with crimes against humanity after World War II and tried at the Nuremberg Court. Nominated for many Oscars, and the recipient of three, it was one of the first Holocaust movies. It starred Humphrey Bogart, Richard Widmark, Judy Garland, Marlene Dietrich and Montgomery Cliff. A new version starring Alex Baldwin was made for TV in 2000. It is also an excellent flick.

4. And Justice For All (1979)

Another riveting courtroom drama, this one starring Al Pacino shouting indignantly : “You’re out-of-order! You’re out-of-order. This whole courtroom is out-of-order! They’re out-of-order!” The story begins with Al Pacino’s character, a brash idealistic lawyer, in jail for contempt of court after he punches Judge Fleming during a heated criminal trial. The story is complex but the Judge Fleming thread is picked up again when Fleming is charged with rape and wants Al Pacino to defend him. The two loathe each other and therein lies the compelling drama.

5. A Few Good Men (1992)

In a Hollywood “tour de force” Jack Nicholson, Demi Moore and Tom Cruise star in this movie about a military tribunal convened to judge two Marines accused of murdering a fellow Marine. Tom Cruise plays the role of a young lawyer who has never been in a courtroom. The tension is palpable as Cruise cross-examines defence witness Col. Jessop played by Jack Nicholson. Who can forget Cruise’s taunt to Jessop “I want the truth!” and the shocking retort “You can’t handle the truth!” A stunning movie.

There are more to add to this list, but I can’t think of any movie made this decade that compares with my TOP FIVE. I suggest you run to your video store if you have missed any of these stellar films. More to come from me, but what about you? What are your favorites?