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Tennessee Passes Law Protecting Faith-Based Adoption/ Foster Care Agencies

This is from religionclause.blogspot.com which you can find here:

Yesterday, the Tennessee General Assembly gave final passage to HB0836 (full text) which bars denial of licensing or funding for faith-based child placement agencies. The law protects agencies that refuse to participate in placing a child for foster care or adoption in violation of the agency’s written religious or moral convictions or policies. According to AP, Gov. Bill Lee’s Communications Director says that the governor will sign the bill.

You can learn more about this issue here.

PA Superior Court Says QDRO’s Take Effect Upon Execution of Marital Agreement

Conway v. Conway v. City of Erie Police Relief and Pension Association, 209 A.3d 367 (PA Super. 2019)

Brief Summary of the Facts:

Michael Conway (“Husband”) and Julie Conway (“Wife”) were married on July 12, 1991 and separated in August 2007.  Husband was employed as a police officer and filed for divorce on July 28, 2009. The parties executed a Marital Settlement Agreement (“MSA”) on Aug. 19, 2016, that directed the parties to prepare, execute, and file a Qualified Domestic Relations Order (“QDRO”) to allow Wife to receive her marital share of Husband’s pension. At the time of the execution of the MSA, Husband’s pension plan stated, with regard to a QDRO, “a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.” A divorce decree was entered on Aug. 22, 2016, that incorporated the MSA. On Aug. 23, 2016, the municipality for which Husband worked amended the pension plan to read “a former spouse of a Participant shall not be treated as the spouse or surviving spouse for any purposes under the Plan,” (emphasis added). Wife submitted the QDRO to the pension plan administrator on Aug. 29, 2016, which denied the QDRO on the basis that as it was filed after the Aug. 23, 2016 pension plan revision and is inconsistent with the same. Wife filed a Motion for Entry of QDRO, which was denied by the trial court, prompting Wife to appeal to Superior Court.

Issue:

Did the trial court err by failing to enter the QDRO submitted by Wife to secure her post-divorce rights to Husband’s pension when the MSA and Divorce Decree were both filed/entered and in effect prior to the revision to the pension plan? Holding A QDRO is an order “which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan.” A QDRO merely implements the terms of a preexisting MSA and does not in itself create new rights or terms. In the instant matter, the MSA was entered and incorporated into a Divorce Decree before the pension plan was revised; therefore, as the QDRO only serves to recognize and implement settled rights, it is enforceable as the underlying MSA predates the pension plan revisions. The denial of the QDRO amounts to an unlawful ex post facto application of the revised pension plan. Based on the above, the court directed the QDRO to be entered.

Comments/Impressions:

The court also pointed out that the objective of the Divorce Code “is to effectuate economic justice” for the parties to a divorce. In the court’s estimation, to rule against Wife “would deny [her] the benefit she bargained for and would cause an unfair and severe injustice concerning the parties’ settlement of their existing rights” and would be “contrary to the goal of achieving economic justice.”

Originally published in the Pennsylvania Family Lawyer in Volume 41, Issue number 3 (Autumn 2019)

Court Refuses To Examine Parties’ Need For Jewish Religious Divorce

This is from religionclause.blogspot.com which you can find here:

In A.W. v. I.N., (Sup Ct Nassau Cty NY, Jan. 2, 2020), a New York state trial court held that the 1st Amendment precludes it from looking beyond a wife’s sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband’s remarriage. NY Domestic Relations Law §253 requires such a statement from a plaintiff in a divorce action, and also provides that the court may not look into any religious or ecclesiastical issue.  In this case, the husband sought a stay in entering a final judgment of divorce because the wife refused to appear before an Orthodox Jewish religious court and accept a get (divorce document) from the husband.  According to an affidavit from a rabbi submitted by the husband, the husband is prevented from remarrying without the wife’s acceptance of a get.  The wife contends, on the other hand;

the parties were not married religiously nor was there any religious ceremony. Therefore … since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband’s offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew.

The court said in part:

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so.

You can learn more about this issue here.

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

Catholic School Principal’s Retaliatory Discharge Claim Dismissed

This is from religionclause.blogspot.com which you can find here:

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff’s firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach…. Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address … whether claims for common law retaliatory discharge are available to contractual employees.

You can learn more about this issue here.

Family Law Tip: Divorce After Death?

I  post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

This is from religionclause.blogspot.com which you can find here:

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff’s claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.

You can learn more about this issue here.

 

 

Family Law Tip: Gifts and Child Support

I  post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

 

6th Circuit Rules In Firefighter’s Claim of Retaliation for Religious Speech

This is from religionclause.blogspot.com which you can find here:

In Hudson v. City of Highland Park, Michigan, (6th Cir., Nov. 22, 2019), the U.S. 6th Circuit Court of Appeals in part reversed a district court’s dismissal of claims by a firefighter that he was dismissed in retaliation for his religious views.  The court summarized the facts:

Hudson worked for the Highland Park Fire Department from 2002 to 2015. Over time, he developed a reputation for two things: being an effective firefighter and being outspoken about his Christian faith. According to Hudson, the other firefighters had reputations too—for watching pornography in communal spaces and engaging in extra-marital affairs at the fire station. All of this created tension. He criticized their behavior, and they responded with disrespectful comments about his religious practices and sexual orientation. The back and forth went on for five years.

Hudson was fired after he claimed extra hours on his time sheet and reported he had worked the same shift for two different employers. The 6th Circuit held, however, that Hudson had shown enough to avoid dismissal on the pleadings of his claim that the Chief had fired him because of his speech. The court however affirmed the dismissal of his Title VII religious discrimination claim, saying in part:

Employees are free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat…. Employees are no less free to root legitimate criticisms about the workplace in their faith than in any other aspects of their worldview. For many people of faith, their religion is not an abstraction. It has consequences for how they behave and may require them to be witnesses and examples for their faith. That reality does not permit differential treatment of them because they criticize behavior on moral grounds stemming from religious convictions as opposed to moral grounds stemming from secular convictions. “Let firemen be firemen” is not a cognizable defense to Title VII claims based on gender discrimination, race discrimination, or faith-based discrimination.

Even so, Hudson’s disparate treatment claim fails…. He cannot show that the city’s justification for his discharge amounted to a pretextual basis for discriminating against him because of his faith. The fire department put forth a legitimate, non-discriminatory reason for treating Hudson differently. He falsified his time-sheets while other firefighters did not.

Judge Kethledge, dissenting in part, would have affirmed the dismissal of Hudson’s claim that he was fired in retaliation for his speech. Judge Stranch dissented in part, contending that Hudson should have been allowed to move ahead on his hostile work environment claim which the majority held should be dismissed.

You can learn more about this issue here.

Is Busyness Jeopardizing Our Souls?

Today it seems everyone’s favorite response to the common, probing introductory question, “How are you?” is this: I’m busy. Very busy. Extremely busy. I’m guilty of this response more than I care to admit. Of course, many of us are—actually—extremely busy. Many of us are stretching ourselves razor thin, fulfilling the necessary obligations of life: tending to our jobs, families, and children, addressing the infinite list of errands and to-dos, scheduling time for exercise, friends, entertainment, bills, volunteer work. The list goes on. Endlessly.

Technology, despite its aim to lessen our collective human burden (which it no doubt has in some ways), has helped fuel this increasing and widespread condition known as busyness. The ease with which we can connect to the world—be it to our work emails or social media relationships—allows us to be permanently “plugged in.” We can get away from the crowd and commotion of our lives physically to seek rest, but we can still pick up our phones to engage with them just as if we never left.

There is a great Corona commercial from a few years back that comes to mind. The scene begins with the crystal blue of the ocean. The camera pulls back to reveal a woman reclining comfortably in a beach chair. To her left, and mostly off camera, a man throws stones into the ocean, leisurely skipping rocks on an afternoon in some coastal paradise. We’re left with only the lull of the ocean and soft splashing of rocks dancing on the water’s surface. Suddenly we’re interrupted by the buzz of a phone. The man, after a moment’s hesitation, picks up the disruptive object and hurls it into the ocean. He watches it skip a few times before it disappears into the blue. I’m sure many of us at times wish we could do the same and cast away any and all reminders of our stack of obligations, our plethora of duties. If only…Yet, even though tossing an expensive phone into the sea might not be the most prudent of things to do—in fact, in most cases it would be pretty stupid—I think it can be easy to forget that we do still have a choice. We can still, in a sense, turn the phone off.

The New York Times article “The Busy Trap” by Tim Kreider explains that our “busyness” often serves as a euphemism for “exhaustion.” We’ve become so busy with keeping ourselves busy—incurring an endless list of tasks and unchecked boxes—that we’re drained, restless, and, well, exhausted. The article continues, claiming that “busyness,” despite the temptation to believe it’s been forcefully hoisted upon our shoulders—like some compulsory sentence doled out without our permission or desire—is a condition of life we’ve opted for:

“The present hysteria is not a necessary or inevitable condition of life; it’s something we’ve chosen, if only by our acquiescence to it.”

The article continues to expose the impetus of choosing such a depleting way of life:

“Busyness serves as a kind of existential reassurance, a hedge against emptiness; obviously your life cannot possibly be silly or trivial or meaningless if you are so busy, completely booked, in demand every hour of the day.”

And so we are left wondering how to combat this “emptiness,” this lurking sense that without our busyness—without being able to point to an impressive life of endless activity—we risk a life of little or no value.

Christianity speaks of the inestimable worth of human life not because of what it does—or even has the potential to do—but because it is made in the image and likeness of God. We are valuable and of infinite worth because God says we are with words that form reality and reveal truth. The rupture then that can occur within our souls is when that subtle lie starts to creep in: the one dictating that our actions make us worthy—that what we do makes us lovable in the eyes of God. To use the secular language of Kreider’s article, we rely on our actions to provide “existential reassurance” that we are worthy. To use Christian terminology, we rely on our actions to provide reassurance of God’s love and approval. And so, it seems, idleness isn’t the only playground on which the devil enjoys playing. He’s quite fond of its opposite as well.

It goes without saying that we’re still called to act. Our actions help reveal who we are, and as human beings gifted with reason, talents, desires, and a noble vocation to build up and spread God’s kingdom, we must do so through action. Yet, rather than our activity being the ultimate gauge of our souls, it serves instead to reflect them more perfectly. Thomas Merton, in his highly meditative and sagacious work No Man Is An Island, brilliantly explores the possible dangers of activity in the life of a soul:

“My soul can also reflect itself in the mirror of its own activity. But what is seen in the mirror is only a reflection of who I am, not my true being. The mirror of words and actions only partly manifests my being.”

Merton recognizes the value of actions—again, we are not called to do nothing, for “faith without works is dead”—but a soul’s state is not based only on the merit of its actions. We can be easily misled to look for proof of God’s love in tangible evidence, saying, “See, look here! I’ve done this, this and this, so therefore I’m a good, worthwhile and lovable person!”

“In order to settle down in the quiet of our own being we must learn to be detached from the results of our own activity…The fact that our being necessarily demands to be expressed in action should not lead us to believe that as soon as we stop acting we cease to exist. We do not live merely in order to “do something”—no matter what…We do not live fully merely by doing more, seeing more, tasting more, and experiencing more than we ever have before. On the contrary, some of us need to discover that we will not begin to live more fully until we have the courage to do and see and taste and experience much less than usual.”

Not only does the busyness of our work—even very good work—lead to an emptying of our true selves, but we become confused, bereft of the ability to understand who we are. Activity can clue us in on how we’re doing; yet, we are not what we do. And if we fail to see that, then our good acts can become emptied of love, an attempt to win God’s favor rather than express our love for him and others. Does our busyness keep us from loving? In the words of Mother Teresa, we must “never be so busy as not to think of others.”

Merton’s words pluck a very deep chord within me. As someone who is generally motivated and intensely devoted to a routine in order to be productive, I know that I’ve fallen squarely into the trap of relying on my actions to validate my worth in God’s eyes. And just as I’ve falsely assumed I’m “more lovable” because of certain things I’ve done, I’ve also done the opposite: labeled myself unworthy of God’s love because of a failure to do certain other things.

It’s been through prayer and an honest assessment of my actions and motivations in the space of his love that I’ve come to realize the danger of idolizing a life rife with activity. I have to keep reminding myself that no matter what I do—no matter how good or noble the action—it should always be done as a response to God’s love, not a plea for it. Love respects our freedom, gently compelling us to love always in all we do, not coercing us to love in order to be loved. And loving doesn’t always have to take form in obviously good action. It can be leisurely done in a spirit of gratitude, “meaningless” conversations with friends, and even restorative play and sport.

So what can we do to ensure our lives of busyness don’t lead to exhaustion and a loss of self? It’s nothing new: we must build into our lives a space for prayer and fruitful reflection. Even if it’s not much, we must strive to sit in the presence of the Eucharist at Adoration, read scripture and meditate on its application to our lives, or sit in silence listening to the voice of love that speaks words of affection, encouragement, and counsel. We must learn to be more like Mary, and less like Martha, in a world that unremittingly asks, “What have you done for me lately?” If we do not pray, and silently reflect on who we are often and consistently, we will continue to live in a state of exhaustion and boredom. And how can we honestly say we’re Christ’s disciples if we don’t ever allow him to tell us what to do or not do? God may want us to forgo certain activities, no matter how good, so that he can invite us into something else. If we take time to reflect, we will hear the voice of God. As Søren Kierkegaard said, “Life can only be understood backwards; but it must be lived forwards.” So let us take time to review our lives and who we are in prayerful reflection, receiving the nourishment and strength to move forward with lives filled with fruitful, grace-led, and meaningful activity.

By Chris Hazell and published on Word on Fire on February 22, 2018 and can be found here.

 

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