Howard v. Howard

Howard v. Howard

336 S.W.3d 433 (Ky. 2011)

Roy Shane Howard and Sondra Howard. Trial Court divided parties marital property and debts assigning Shane liability for a National City loan on the parties’ Dodge Durango. Shane successfully filed in fed court a bankruptcy petition for Chapter 7 discharge.

Sought to reduced child support obligation, claiming health problems, inability to find work and the bankruptcy he received. Sondra found he was in contempt of court for failure to pay the debt on the repossessed Durango. Appeal as with bankruptcy. Appeals court found that under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), which does not discharge the debtor from any debt “to a spouse, former spouse or child” for something other than a domestic support obligation.” Shane appealed.

As the Court of Appeals states, Shane had the obligation under the divorce decree but the issue whether this debt would not be subject to discharge under the requirements of 11 U.S.C. section 523(a)(15) as a debt to Sondra under the divorce decree. They found that the obligation did indeed meet the rquirements and that Sondra was not required to file anything in bankruptcy court regarding the Chapter 7 filing in order to preserve her right to enforce in state court of Shane’s obligation to her under the divorce decree.

The Court ended up finding that while the debtor’s obligation on an underlying debt to a third-party creditor may be discharged because that underlying debt was not to a spouse or former spouse or child, the weight of authority holds that a separate, otherwise enforceable, obligation under a divorce decree to make payments on a third-party debt is not dischargeable in Chapter 7 bankruptcy following the BAPCPA amendments.

Near v. State of Minnesota ex rel. Olson

Near v. State of Minnesota ex rel. Olson

283 U.S. 697 (1931)

Facts. In 1927, Minnesota passed a law prohibiting the publication of any newspaper, periodical or magazine that was “malicious, scandalous and  defamatory or obscene, lewd and lascivious.” Anyone who distributed such materials was prohibited from continuing production and was charged with creating a public nuisance. In late 1927, the Petitioner published several articles in The Saturday  Press what indicated that the law enforcement was not “energetically” pursuing the head of the mob. The Petitioner was then forced to stop production. This was serious article about the failures of law enforcement.

Prior restraint at issue: subject to prosecution for publishing malicious content. Enjoined from all publishing. There’s a chilling effect from this kind of prior restraint.

Issue. Is a court order enjoining a publisher from producing a magazine a prior restraint in violation of the Fourteenth Amendment rights of freedom of press?

Rule. The government may not censor expression in advance under 1^st Amendment.

Held. Yes. To allow the court to enjoin the activity without providing the publisher an opportunity to show that the matter is true, is a step toward total censorship of the press.

National Endowment for the Arts v. Finley

National Endowment for the Arts v. Finley

524 U.S. 569

Facts. The Petitioner is a federal agency that provides funding for the arts. It requires the Chairperson to ensure that “artistic excellence and artistic merit are the criteria by which grant applications are judged, taking into consideration general standards of decency and respect for diverse beliefs and values of the American public.” NEA has the ultimate authority to grant funding for projects, but cannot approve anything the advisory council rejects. In 1989, two provocative works prompted pubic controversy leading to the reevaluation of the project selection process. Consequently, Congress adopted a law that made NEA consider the “general standards of decency and respect for the diverse values of the American public.” NEA petitioned.

Issue. Is the new law invalid on its face and therefore a violation of the First Amendment right to free speech?

Rule. A law is facially valid as long as it doesn’t suppress disfavored viewpoints.

Held. No. This law is constitutional as it doesn’t interfere with freedom of speech and it’s not overly vague. Content-based not viewpoint based restriction. Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nat

Michael H. v. Gerald D.

Michael H. v. Gerald D.
504 US 905

Facts . In 1975 Carole D. and Gerald D. were married in California and resided together. In 1978, Carole started to have an affair with Michael H. Carole then conceived a child, Victoria, in 1980, with Gerald, which was listed as father on the birth certificate. Gerald held that Victoria was his child, but then after delivery Carole informed Michael that he might be the father. In 1981, blood tests showed that Michael was the father to the 98.07 percentile. Carole visited Michael and resided with another man in California, since Gerald had moved to New York. In the summer of 1982, Carole and Victoria visited Gerald in New York and the three vacationed in Europe. That fall she flew back to California, and in November, Michael filed an action in CA to establish paternity and right to visit. In 1983 the court appointed a guardian ad litem to represent Victoria. She filed a cross-complaint asserting that if she had more than one psychological or de facto father, she was entitled to maintain her filial relationship with all of the attendants rights, duties, obligations with both.
Carole filed for summary judgment while she was living with Gerald and in August, she returned to California and again became involved with Michael, instructing her attorneys to remove the summary judgment motion. For the next eight months Michael held Victoria out as his daughter. Then in April 1984, Carole and Michael signed a stipulation that he was Victoria’s father. That next month, she left Michael, instructing her attorneys not to file the stipulation. Carole reconciled with Geraldnd and they lived together with two more children being born.
In May 1984 Michael and Victoria, through guardian ad litem, sought visitation rights for Michael. A court appointed psychologist recommended that Carole retain sole custody, but Michael be allowed continued contact with Victoria pursuant to a restricted visiation schedule. The court concurred. In October of 1984 Gerland moved for summary judgment on ground that under California law there was no triable issue of fact as to Victoria’s paternity. The law said: “the issue of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” The presumption may only be rebutted by blood test, and a motion for such tests must be made within two years of birth by the husband, or by the wife if the natural father has filed an affidavit acknowledging paternity.
In 1985 the Superior Court granted the motion for summary judgment, finding that Carole and Gerald were cohabiting at the time of conception and birth and that Gerald was neither sterile nor impotent.

Issue. Does the presumption established by the law infringe upon the due process rights of a man who wishes to establish his paternity of a child born to the wife of another man or infringe upon the constitutional right of the child to maintain a relationship with her father?

Rule. An adulterous biological father does not have a constitutional right to paternity over a marital father.

Held. Michael contends as a matter of substantive due process that because he has established a parental relationship with Victoria, protection of Gerald and Carole’s marital union is an insufficient state interest to support termination of the relationship. The Court declines to accept that a State must recognize multiple fatherhood because Victoria was not illegitimate since she has a father.

Covalt v. High

Covalt v. High
N.M. Ct. App. 675 P.2d 999 (1983)

Facts. Covalt and High had an oral agreement for a formation of a partnership that dealt with real estate. They built an office and warehouse building which was leased to CSI, a corporation in which Covalt and High were the sole shareholders. After Covalt resigned his corporate position, he wrote High to demand that the monthly rent for the partnership real estate leased to CSI be increased. High didn’t agree and litigation ensued. Covalt filed the action, seeking the sale of property in lieu of partition, an accounting, and both actual and punitive damages. The DC awarded damages to Covalt, and High appealed.

Issue. Except with express language, do all partners have equal rights in the management and conduct of the business of the partnership?

Holding. They do, except where partners have expressly agreed to the contrary, all general partners have equal rights in the management and conduct of the business. One partner may not recover damages for the failure of the copartner to acquiesce in a demand to negotiate and execute an increase in the monthly rents of partnership property. Thus, there was no breach of fiduciary duty.