Marietta to the Berlin Wall

Abbey 360 Berlin Abbey with bear BerlinO’Dell & O’Neal Attorneys’ summer law intern, Abbey Warren, is currently studying abroad in Berlin and we have asked her to send us updates on her travels through Europe. As we continue serving clients and the community here in Marietta, it is our pleasure to share Abbey’s greetings from the Berlin Wall! Read and enjoy!

from Abbey Warren…

So, I have been in Berlin a week so far! I greatly miss my O’Dell & O’Neal family – especially the air conditioning and even needing to wear a sweater! Berlin has had record highs since we have been here; since it is normally so cold they do not have air conditioning in most buildings. Thankfully, our hostel does have A/C but the school where we have class from 9:30-3:30 does not!

The plane ride over was a bumpy one and I definitely felt motion sickness but finally made it here in one piece! The people in Germany are very friendly but direct – to the point they seem confused when I use my Southern manners to ask them how there day is going! It is a very interesting European city because unlike most of the other cities in Europe, 80% of the original city has been destroyed. So far, one of the best parts has been visiting remains of the Berlin Wall. It is incomprehensible to think of someone building a wall right through Atlanta! How lucky we are to have not experienced some of the turmoil this city has.

My classes have been interesting and I have been able to negotiate with people from 4 different countries so far (Denmark, Belgium, Australia, and Spain). It was tremendously intriguing to see how different cultures color the way we go about negotiating and conceding to the other party!

 

 

 

Leslie O’Neal Selected for Leadership Cobb 2013-2014

Leslie headshot outside_9797_10x13Congratulations to Leslie O’Neal for being selected to the Leadership Cobb class of 2013-2014! Leslie will join 44 other diverse and qualified individuals to participate in this leadership development program sponsored by the Cobb Chamber of Commerce. Through various programs and retreats, Leadership Cobb enhances personal and professional growth while participants gain awareness of current issues, community resources and the social, political and economic needs of the community.

Dick & Jane, Jack & Bill

Justin cropped Super LawyerEffects of the Supreme Court Ruling on the Defense of Marriage Act (DOMA) and Proposition 8

By Justin O’Dell

Last month, we left Dick and Jane with Dick contemplating a career change and the effects of a covenant not to compete.  This month, the Supreme Court of the United States (SCOTUS) sent a ripple through the nation and has caused Dick to put his plans on hold for another month.  We will come back in August and look at the covenant not to compete issue.  For this month, a discussion of the landmark decision by SCOTUS presents a litany of issues.

In order to give the effects of the ruling practical understanding, let’s create a brother for Jane named Jack.  Jack is in a committed relationship with Bill.  Jack and Bill lived in Vermont and were lawfully married after Vermont began to allow for same-sex marriage.  However, Jack and Bill now live here in Georgia.  The Attorney General of Georgia has stated that the Georgia Constitutional ban on same-sex marriage, passed in 2004, remains valid and in effect.  That amendment states:

(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such relationship.

Last month, SCOTUS held that the Federal Defense of Marriage Act (DOMA) was unconstitutional and found a lack of standing on the part of the Appellants related to California Proposition 8.  Pages could be spent explaining and analyzing each ruling, but rather than reinvent the wheel, please read and consider this link for an excellent plain English explanation:  http://www.scotusblog.com/?p=166124.

So after the ruling in US v. Windsor, the following questions are immediately concerning to Jack and Bill.

(1)   Can Jack now carry Bill on his health insurance?

(2)  Can Jack and Bill file a joint tax return?

(3)  Can Jack and Bill get divorced in Georgia?

(4)  Are Jack and Bill treated as married if one of them dies?

(5)  Can Jack and Bill make spousal decisions associated with health care, banking, etc…?

Should SCOTUS eventually hold that individuals have a fundamental right to marriage and equal protection of marriages, that ruling would immediately apply to all States and render invalid any ban on same-sex marriage.  With that issue still up in the air, the overriding issue at the moment is the interplay between the rights of each State to enact its own laws and the Full Faith and Credit Clause of the U.S. Constitution.

The Full Faith and Credit Clause of the Constitution, found in Article IV, Section 1 provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

The Clause is not unlimited and has been held that it does not require a state to uphold or enforce the laws of other states which are in direct contravention to the laws and policies of that state.  Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 502 (1939).  This exception would seem to apply in the instance of marriage.  In fact, the Clause was never held to require states wherein interracial marriage was banned to recognize interracial marriages of other states.

But not so fast…. marriages wherein the parties are first cousins (legal in some states, illegal in others) are not deemed invalid simply by moving across state lines based on the Full Faith and Credit Clause.  Similarly, common-law marriages which are no longer recognized in Georgia (after January 1, 1997) are valid and recognized in Georgia if properly created in a sister state.  Precedent would seem to be shifting in favor of mandating the recognition of lawful marriages of another state.

The Federal Circuit Courts have already split on this issue.  In Finstuen v. Crutcher, the 10th Circuit Court found that Oklahoma must recognize a same-sex marriage in the context of an adoption birth certificate.  In Adar v. Smith, the 5th Circuit ruled just the opposite.

So what to do with Jack and Bill?  In the short term, Jack and Bill would be well advised to act as if their union will not be recognized in Georgia.  They should utilize powers of attorney and other estate planning techniques to make sure that their estates and legal matters receive the maximum possible recognition currently available under Georgia law.

Survey Says…

CheatingWifeMore Women Are Breadwinners and Cheaters

According to a recent survey by the National Opinion Research Center, women are earning higher wages and more of them are admitting to cheating on their husbands. The social survey indicates that greater financial security among women lessens their concern over having their husbands leave them when they cheat. For more detail on the survey, read this AJC.com article:

http://www.ajc.com/weblogs/biz-beat/2013/jul/03/study-higher-pay-more-wives-cheating/

 

Domestic Violence

Justin Leslie at table croppedO’Dell & O’Neal Volunteers Services to the Cobb Justice Foundation

O’Dell & O’Neal are proud to serve as volunteers for the Cobb Justice Foundation by taking cases assigned from Cobb County Legal Aid on a pro bono basis. As a measure of giving back to the community, O’Dell & O’Neal Attorneys recently donated legal services through the Cobb Justice Foundation to assist a Cobb County victim in securing a TPO. This client needed immediate legal representation that would facilitate protection for her and her children but not exhaust her limited financial resources. Justin O’Dell and Law Intern, Abbey Warren, donated their time and expertise to the Cobb Justice Foundation and Cobb County Legal Aid to make sure this woman and her children gained that protection through a TPO.

At O’Dell & O’Neal, we understand that being in an abusive relationship is difficult and dangerous and that leaving can potentially escalate the abuse or place the victim’s life at even greater risk. Justin O’Dell and Leslie O’Neal have experience assisting victims of abuse in navigating the legal process for protection against the abuser. Often in this process, time is in short supply and victims need swift legal advice and action. Justin and Leslie have quickly and successfully attained Temporary Protective Orders for abuse victims in Cobb, Fulton and several other surrounding areas.

For more information on domestic violence and available resources, visit the following:

http://www.georgialegalaid.org/organization/legal-aid-of-cobb-county

http://www.cobbjustice.org

http://www.ywca.org/site/pp.asp?c=ejINI0PNKuG&b=306861

http://cobbsolicitorgeneral.org/domestic-violence

https://www.gadfcs.org/familyviolence

Kim Kardashian and Kris Humphries Finally Divorced

Leslie_ONeal_9797_8x12What Took So Long?

By Leslie O’Neal

What seemed to be the never-ending divorce battle between Kim Kardashian and Kris Humphries has finally reached its long awaited conclusion.  On June 3, 2013, the Los Angeles Superior Court granted a final decree of divorce, effectively dissolving their marriage in its entirety.   The couple was married only 72 days before Kardashian filed for divorce, but the divorce proceedings lasted nearly two years.  Both sides agreed that they had signed a Pre-Nuptial Agreement, which begs the question; what took so long?

Humphries spent the majority of the divorce proceedings pursuing an annulment rather than a divorce. Georgia law allows for an annulment if the Court declares the marriage void.  The most common way to convince a Court that a marriage in Georgia is void is if one of the parties was either unable to contract (such as a minor), or if one of the parties was fraudulently induced to contract.  Other reasons might be that one party to the marriage had a previous, undissolved marriage and therefore, was not eligible to marry in the first place.

Kris Humphries alleged that he was fraudulently induced by Kim Kardashian to marry her.  He pointed to the fact that their wedding was televised for her reality TV show to support his assertion that she induced him to marry her in order to gain publicity. Kardashian denied these claims, and testified in her deposition that she genuinely loved Humphries and that her reality show had nothing to do with her decision to marry him.  Because Humphries was seeking an annulment, he was entitled to engage in an extensive amount of discovery during the divorce case to prove his claims.

Discovery is common in divorce cases, and enables each party to obtain facts and evidence that could be used in the trial phase of the case.  Because discovery allows for the exploration of evidence which might be relevant to the case, rather than evidence which is truly relevant, it is very broad and allows each party to seek a wide-range of information.  Humphries was permitted to serve witness subpoenas and take the deposition testimony of Kardashian’s boyfriend, Kanye West, her mother, Kris Jenner, and others who were involved in the production of her reality show and the preparation of their wedding.  Scheduling depositions takes time to coordinate, and inevitably contributes to delay.

On the eve of trial, Humphries abandoned his desire to seek an annulment and entered into a Settlement Agreement with Kardashian, which allowed the couple to proceed with a standard Divorce Decree.  Luckily for Kardashian, this process was complete before the summer, as she is expecting a baby with her current boyfriend, Kanye West, in July.

Dick & Jane – Covenant Not to Compete

Justin cropped Super LawyerBy Justin O’Dell

 

This month we switch gears from Probate Court to the business world.  Recall that Dick is a project manager with a mid-sized engineering firm.  Dick has been approached by a well-respected member of the industry about a business opportunity.  The opportunity calls for Dick to take a position with a new company.  Dick would be offered a good compensation package and ownership interest in the enterprise.  The potential is well-worth considering.

However, Dick has an employment contract signed in 2005.  In June 2011, he was told to sign a new version of the contract.  Although his employment is labeled “at-will”, Dick has a clause labeled “COVENANT NOT TO COMPETE; NON-SOLICITATION.”  The paragraphs, in summary, prohibit Dick from:

  •   –     Accepting any position with another engineering firm anywhere in the State of Georgia for a period of 2 years following his separation from his current employment; and
  •    –    Soliciting any customer of his current employer with whom Dick has had contact in the 2 years prior to his separation from his current employment.

The first question for Dick is whether the Covenant Not to Compete is enforceable and, if so, to what extent?

Part one of the legal analysis involves determining which body of law to apply.  In Georgia, the law for decades held that a contract containing a covenant not to compete was in the nature of a restraint on trade.  As a result, these covenants were enforceable if, and only if, they satisfied a three part “reasonableness test”; that is that the limitations were reasonable in duration, scope and geographic area.  Over dozens of years of case law and litigation, the area seemed settled that an agreement of 2 years or less, limiting the individual to a similar position to the one currently held and limiting the area to the current area of operations would be enforced.  Any agreement more restrictive would not generally be upheld, absent other evidence or facts justifying the restriction.  Thus, Dick could be bound to an agreement which prohibited him from working as a project manager in the Atlanta area for 2 years.  The key to the law was that an unreasonable agreement was thrown out entirely.  The theory of the result was that employers would be motivated to try and draft reasonable restrictions if they knew of such a negative potential consequence.

In 2010, thanks in part to a highly misleading Constitutional Amendment, this jurisprudence was replaced with the “blue-pencil” rule.   Rather than throw out an agreement entirely, the “blue-pencil” rule allows the Court the ability to edit the restrictive language downward to a less restrictive agreement.  As a result, employers now have no fear in drafting incredibly onerous and restrictive language knowing that the worst possible outcome is simply a rewrite downward to what should have been stated originally.   The new statute (O.C.G.A. §13-8-50, et seq.) does state that it only applies to agreements entered after May 2011 (the date it was signed into law).

Under this scenario, Dick has a problem.  His agreement was originally signed in 2005 and is covered by the old law.  However, his HR department circulated a new version (probably in response to the new law) in June of 2011.  In order for the new version to apply, his company would have to demonstrate that it was presented along with some new consideration (a promotion, a raise, etc…).  If the document was merely circulated and signed as a updated “contract” it is probably not valid.

In either event, the analysis and guidelines for reasonableness set forth in the statutes are incorporated from Georgia case law, the dramatic change is in the outcome of an unreasonable agreement.

Customer solicitation is another matter.  As a general rule, these provisions are enforceable provided they are reasonably written.  This is where the change in Georgia law is of manifest importance.  Under the old rule, if the covenant was unreasonable and the contract went out, the non-solicitation of customers went with it.  Under the new rule, the contract stays and is merely edited downward and the non-solicitation clause survives.

Next month we will dive into the analysis and see whether or not Dick can take the position.  If so, what level of contact with existing customers will be permitted?

Blog Sidebar

Prior to the passage of the above-mentioned Constitutional Amendment, Justin O’Dell wrote a letter to the Editor at the Marietta Daily Journal on the proposed amendment which was published October 12, 2012. Read Justin’s letter in it’s entirety:  https://odelloneal.com/wp-content/uploads/2013/01/2010.10.12.The-Marietta-Daily-Journal-Passage-of-Amendment-1-would-hurt-little-guy.pdf

 

Fraternal Order of Police Cops & Kids

photo 3 (2)On Monday, June 3rd, Justin O’Dell was a proud sponsor of the Cops and Kids Golf Tournament at the Brookstone Golf and Country Club in Acworth. The tournament is hosted annually by the Fraternal Order of Police, Kermit Sanders Lodge #13 to benefit their Christmas Kids project. O’Dell & O’Neal continues to find opportunities within the community to serve and give back.

Playing by the Rules

dp-on-this-date-in-history-andrew-jackson-kill-001On this day in 1806, 2 attorneys in Nashville rode from their homes to Kentucky where dueling was legal and settled their differences with pistols. On this day, Andrew Jackson emerged the victor in a duel with Charles Dickinson who had supposedly printed libelous statements that Jackson’s wife, Rachel, was a bigamist. It seems that defending her honor was at the root of most of the 13 different duels that Andrew Jackson won. Though he earned a reputation as a hothead, he went on to serve 2 terms as President of the United States. He maintained that he was just playing by the rules.

So, today we give thanks for a justice system that has evolved!
(Photo credit: www.dailypress.com)

Dick & Jane – Dealing With an Aging Relative

Justin cropped Super LawyerBy Justin O’Dell

Last month, we came to the conclusion that Dick and Jane could be facing the situation of dealing with the filing of a Guardianship and Conservatorship over Dick’s Mother.   The process sounds intimidating and costly.  If a fight breaks out within Dick’s family, it can prove to be emotional and expensive.  However, if the family stays on the same page and works together, the Probate Court is designed to facilitate the situation while protecting the interests of the Mother.

Before we proceed, we must establish a few definitions:

1)  Ward – The Ward is the person who is declared incapacitated.

2)  Guardianship – A Guardian is appointed to make decisions about the health and welfare of a Ward.  These decisions may touch on financial considerations, but a Guardian does not have control of a Ward’s assets or finances.  Some decisions are allowed without Court approval and others require permission of the Court.

3)  Conservatorship – The Conservator has control of the Ward’s finances and assets and makes decisions about the Ward’s estate.  The Conservator submits an annual budget called an “Asset Management Plan” along with an Inventory of the Estate and a Return of Receipts and Disbursements.

There are two ways to file for Guardianship and Conservatorship.  The processes are the same, but it is not required that an individual file for both.  Circumstances and the individual situation may warrant seeking one without the other.

The first type of Petition requires the signature of a related family member and a physician or medical doctor who has recently examined the Ward.  The second type of Petition may be brought by two family members.  In either instance, all of the Petitioners are required to swear that the Ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his/her health or safety (Guardianship) and lacks sufficient capacity to make or communicate significant,  responsible decisions concerning management of his/her property (Conservatorship).

Once filed, an evaluator will be appointed to make a brief medical evaluation of the Ward to determine whether or not the allegations of the Petition have merit.  The Ward will also be appointed an independent attorney and, sometimes, a Guardian ad Litem to look after the interests of the Ward.

The spouse and all of the children of a Ward are given notice and the right to participate in the proceedings.  If minor children are involved, an attorney or guardian ad litem will be appointed to represent their interests.

If the matter is contested, either as to the issue of capacity or as to the issue of which person should be Guardian and/or Conservator, a full evidentiary hearing will be held.  If all parties, including those appointed for the Ward, consent that the action is prudent and necessary, then the hearing is much more truncated.

If granted, the Probate Judge has the power and authority to grant the Guardian and Conservator any number of rights and powers and to take any number of rights and powers away from the Ward.  These decisions are driven by the facts and circumstances of the case and based on a desire to preserve the independence and rights of the Ward, but also to protect the welfare and estate of the Ward.  Even if the Conservator is granted all of the available powers and the Ward is deprived of the same, some transactions, such as selling property of the Ward always require the permission and approval of the Probate Court.

The Guardianship and Conservatorship can be terminated if the individual regains capacity.  Any interested person, including the Ward him or herself, can initiate a Petition for Restoration of Rights.

Guardians and Conservators can be compensated for the service.  Guardian’s compensation is determined by the Court and Conservator’s compensation is based on a percentage of the assets and receipts and disbursements involved.

Guardians and Conservators become “fiduciaries” of the Ward.  Under Georgia Law, a fiduciary is bound by the highest standards of loyalty, honesty and fair dealing to their beneficiary.  If a Guardian or Conservator breaches a fiduciary duty, they are liable to the Ward and can be order to appear before a Probate Judge to account for their actions.  Other agencies, such as the Internal Revenue Service, also have provisions whereby a Guardian or Conservator can become liable for failure to property act on behalf of another.

Guardianships and Conservatorships are an important function in dealing with the aging process.  Even the most carefully planned estate with Powers of Attorney and Health Care Directives in place can fall short.  Most notably, these documents merely extend rights to a third party, but do not cut off the rights of the Ward.  For situations in which a family needs to protect a loved one from themselves or from predators and scammers preying on the elderly, a Guardianship and Conservatorship is the only possible route.  Finally, Guardianships and Conservatorships are also necessary in order to deal with a disabled child who is turning 18 or when tragedy strikes and a loved one is suddenly injured in a sudden event like a motor vehicle accident or contracts a disabling medical illness.

To learn more about this area, the Probate Court Council of Georgia has published a very helpful guidebook which provides a more expanded discussion.  You can find the handbook here: http://www.sji.gov/PDF/GA_Handbook_for_Guardians.pdf.