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Appellate Court Says ‘Normal’ Visitation Expenses Don’t Justify Lower Support

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In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.

The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.

The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.

This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.

However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’

Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.

This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.

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NEW CONNECTICUT APPELLATE COURT FAMILY CASE ILLUSTRATES PERILS OF DIY APPEAL

After more than 20 years of marriage that ended in divorce in 2003, Connecticut resident Peter Larson seems to have been no stranger to the courts.  When he returned to court in 2010 to seek a reduction of child support and alimony orders, he had two previous efforts at modification under his belt and  probably felt confident that he would win his pro se bid for relief.  After all, his income had gone from about $85,000 in 2003  to about $21,000 and he was unemployed.

And, in fact, he did come away with some degree of success without the help of a lawyer. The trial court recalculated his child support dropping it from its original level of $347 per week to $115 per week. In addition the court reduced his alimony order to $1 per year — not a permanent victory on the alimony front, but still an important win.

Unfortunately, Mr.Larson’s former wife, Matilde, did hire a lawyer who filed a  counter-motion for contempt seeking past due child support and attorney’s fees.  Ultimately, although he received a break in his current orders, Mr. Larson was also ordered to pay almost $100,000 in past-due support and was also ordered to pay almost $27,000 in attorney’s fees.

In a per curiam decision of the Connecticut Appellate Court scheduled for release next week, the Court upheld the trial court’s action.

As he had at the trial court level, Mr. Larson represented himself on appeal. His arguments of error were;

  • The trial court hadn’t reduced child support enough
  • The trial court should not have found him in contempt of prior orders
  • The order of attorneys fees was excessive because the fees were unreasonable

The Court’s response to these claims makes it clear that Mr. Larson would have benefitted from consulting with a lawyer before filing his motion and, later, before filing his appeal.  First, the court stressed the enormous discretion accorded to trial courts by appeals courts in family matters.  It is never enough on appeal that the appellate judges might have decided the case differently.  This means that strategic errors at the trail level can rarely be corrected on appeal.

Second,  Mr Larson would have been cautioned that, because he was not fully in compliance with existing orders,  he should have expected a counter-offense if he chose to seek a modification.  Based on the amount of the arrearage that the court found, it is clear that his former wife had tolerated his non-compliance for a very long time up to the point that he made the first move in 2010.    To the extent that Mr. Larson thought his current financial situation would — or even could — protect him from being held in contempt for falling behind, he was  mistaken and any experienced lawyer would have made that clear to him.

Third, he would have been advised that law that requires courts to consider the respective finances of the parties when allocating responsibility for attorneys fees in divorce cases, does not apply in enforcement proceedings where there has been a finding of willful contempt.  In such cases, attorney’s fees can be shifted to the party who failed to obey a court order as a simple matter of punishment.

While Larson complained that he had not been given a fair chance to challenge the reasonableness of the fees, the appellate court noted that, not only had the trial court afforded him the opportunity to do that, but  had actually scheduled a separate hearing for that very purpose.  Although Larson attended the hearing he did not, according to the court, present any evidence on the subject.  It is not unusual for inexperienced litigants to expect the trial judge to take the lead in a factual inquiry.

In a 201o op-ed piece published in the New York Times entitled “A Nation of Do-It-Yourself Lawyers”  John T Broadrick, chief justice of New Hampshire, and Ronald M. George, chief justice of California, stressed the disadvantages faced by litigants who, for financial reasons, feel compelled to go it alone.  The authors urged members of the bar to step up to help mitigate the problem by offering so-called unbundled legal services so that litigants who could not afford comprehensive representation could nonetheless receive limited assistance in the form of consultation, coaching, and help with document preparation.

What many do not understand is that limited representation can be a minefield for lawyers since the rules in many states do not adequately protect them.  We cannot reasonably expect lawyers who would otherwise be willing to play a supporting role in a lawsuit, to risk taking responsibility for the final outcome of litigation they do not fully control or to be required to provide additional or even comprehensive services without remuneration.

Still, in every community there are lawyers who recognize the problem and who are willing to address it as long as roles are clearly defined and the expectations are clear.  When the stakes are high, it makes sense to seek them out.


40 STATE WORKERS ACCUSED OF FRAUD FOLLOWING HURRICANE IRENE TO BE REINSTATED

According to an Associated Press report issued yesterday, Susan Meredith  a state arbitrator has reinstated 40 of the 103 state employees who lost their jobs in the wake of alleged disaster relief fraud following Tropical Storm Irene.  D-SNAP — the Disaster Supplemental Nutrition Assistance Program — provided food stamp and other relief to qualifying Connecticut residents.  Qualification for the D-SNAP assistance depended on the income and assets of the applicants and on the amount and type of damage suffered.

The  story was picked up by news services across the state but also caught considerable national attention.

According to the report which cited a statement by Sal Luciano, executive director of the Union local representing some 35 of the former employees, the arbitrator  determined that the errors committed by these 40 employees warranted discipline but not dismissal.  Accordingly they will be required to pay restitution and serve suspensions of varying lengths –so far between 15 to 60 working days. This leaves open the issue of back pay for periods of unemployment following the August 2011 storm that exceeded the newly imposed suspensions. More than 60 additional cases are still pending–among them cases characterized as the most egregious

According to a post by the Hartford Courant blogger, Christopher Keating, the level of mutual tension between members of the Malloy administration on the one hand and lawyer for 60 former workers,  Rich Rochlin,  have remained high.

With controversy raging in Michigan and elsewhere over the role of labor unions in the public sector, we are curious to know how our clients and neighbors in Connecticut and especially here in Mystic, Stonington, Groton, New London, and the rest of Southeastern Connecticut view the issues.

Does the fact that the fraud impacted publicly administered relief funds, mean that public employees found to have abused the program should be accountable –not just in criminal court — but to their employer as well?   Would this create an unfair disparity between workers in the public and private sectors?  Should the state seek review of the decisions in Superior Court?  Please tell us what you think.