Dick & Jane Interrupted

Posted on October 14, 2013 - Dick and Jane

Justin cropped Super LawyerBy Justin O’Dell

We left Dick and Jane with the subject of a letter threatening legal action by Dick’s old company for violation of his employment contract.  Before we see what happens, the lives of our little family are once again being interrupted.

This month’s interruption is designed to introduce a new feature to our newsletter, blog and website.  Each month hereafter, we will feature a community section and we will highlight the work of a local non-profit, specifically a non-profit agency with whom we are involved and support.  We will briefly mention our involvement, but devote most of the space to describing the agency, their mission and their upcoming event.

To introduce the new feature, we have decided to use Dick and Jane.  We will get back to their lives and legal issues next month and most months thereafter.

You may recall that the eldest daughter, Lindsay, is an avid cross-country runner.  Dad (a UGA grad) is often at events yelling “Run, Lindsay, Run”.  This year, Dad is proud to sponsor Lindsay to run in the GOBBLE JOG benefiting MUST Ministries.  Dick and Jane don’t talk about it much, but Jane has an older brother, Frank, who has struggled with homelessness in the past.  Frank appears outwardly to be normal, however issues with mental illness have made it hard for him to maintain employment and a family structure.  While on proper medication, he is functional and productive.  However, the medication has strong side effects and he does not feel good, so he stops taking them.  Once this happens, a downward spiral ensues.  Part of his illness causes him to run away from family and other loved ones who try to help him.

MUST Ministries has and continues to be there for Frank.    MUST is able to provide him with shelter, food and a warm and loving environment.  The caring and understanding volunteers have become folks that Frank can trust.  Once in the care of MUST Ministries, Frank is able to get medical treatment and get back to normal.  As he regains himself, MUST is there to help Frank find employment and get back to being productive.

Frank’s family struggles because of Frank’s issues.  His ex-Wife works 2 jobs, but she and children rely heavily on public assistance and other forms of support when Frank spirals, loses his job and cannot pitch in.  Often times, the best meals that the children receive are the free breakfast and free lunch at school.  Unfortunately, during the summer, these meals are not available.  Thankfully, due to the MUST Ministries summer lunch program, these children (and hundreds of others) are guaranteed a healthy meal every day.

We all have a Frank in our family, a friend’s family or as someone we know.  Sometimes homelessness is not a person’s fault or the result of bad choices.  Sometimes life just takes a wrong turn.  MUST Ministries is there in these situations and is there to help those in need.  MUST Ministries firmly believes that a hand up is far better than a hand out.  Rather than just provide a meal and shelter, MUST Ministries engages in transforming a life and making sure that a person can return to being productive.

This is why Lindsay is proud to support MUST Ministries by running on Thanksgiving Day in the Gobble Jog.

This is why O’Dell & O’Neal is proud to support MUST Ministries in contributing toward this worthy event.  If you want to do the same, follow the links, seek them out and do what you feel led.

Thanksgiving Day Gobble Jog

MUST Ministries

Leslie O’Neal’s Case Affirmed by the Georgia Supreme Court

Posted on October 8, 2013 - Uncategorized

Leslie headshot outside_9797_10x10“Judgments affirmed. All the Justices concur.” That was the decision of all of the Georgia Supreme Court Justices on September 23, 2013 following oral arguments presented before them in June.  Leslie represented the Appellee at the trial level in a petition to modify the terms of his original divorce decree. He was seeking sole legal custody of two minor children and an increase in child support. After a multi-day final trial, the trial court granted him sole legal custody, an increase in child support, and attorney’s fees from the other side.   The opposing party appealed the trial court’s ruling and after oral arguments, the Supreme Court affirmed all aspects of the trial court’s decision.

 

This opinion by the highest court in our state is a tremendous affirmation of Leslie O’Neal’s commitment to serving her clients. We are proud of Leslie’s continued success in the Georgia Supreme Court and congratulate her on another victory in this arena!

Read the Supreme Court’s opinion:

http://www.gasupreme.us/sc-op/pdf/s13a0911.pdf

Justin O’Dell Achieves Preeminent Peer Rating with Martindale-Hubbell

Posted on October 2, 2013 - Uncategorized

Justin cropped Super Lawyer Congratulations to Justin O’Dell for his Preeminent AV rating by his legal peers with Martindale-Hubbell! Justin has been reviewed by his peers in the legal community for his legal knowledge, experience and ethics, achieving the outstanding Preeminent rating with Martindale-Hubbell. At O’Dell & O’Neal Attorneys, we value being recognized by other members of the Georgia Bar as a testament to our ability to serve clients with the highest level of professionalism and expertise. Click on the Peer Rating  button to see Justin’s complete Martindale-Hubbell profile.

AV rating Martindale

Bethenny Frankel’s Ongoing Custody Battle

Posted on September 16, 2013 - Celebrity Scenarios

Leslie_ONeal_9797_8x12By Leslie O’Neal

Bethenny Frankel began her rise to celebrity status as a regular on the Real Housewives of New York, where she was a cast member on Seasons 1 through 3.  Frankel quickly became a celebrity in her own right as a business mogul with the launch of her Skinny Girl products, her self-help books, her exercise DVDs, and her own talk show.  But despite her success as an entrepreneur, Frankel’s personal life has been far from glamorous in recent months.

Frankel married entertainment executive Jason Hoppy on March 28, 2010, while she was seven months pregnant with their daughter, Bryn.   The marriage quickly deteriorated after she and her husband documented their private lives on the reality show, “Bethenny Ever After.”  Bethenny filed for divorce in January of 2013 and shortly thereafter, Hoppy filed an aggressive response.  Surprisingly, the divorce has not centered on the appraisal and division of Bethenny’s multi-million dollar business enterprises, but rather on who will be granted custody of their 3 year old daughter, Bryn, with each party requesting primary physical custody.

In Georgia, there are over 17 factors that Courts will consider when determining what custodial arrangement is in the best interest of the child.  Those factors include the love, affection, bonding, and emotional ties existing between each parent and the child, the love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children, each parent’s knowledge and familiarity of the child and the child’s needs, the capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, the home environment of each parent, the mental and physical health of each parent, each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities, each parent’s employment schedule and the related flexibility or limitations, and the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.  Children that have reached the age of 11 in Georgia have the right to convey their desire as to which parent should have primary physical custody to the Court.

Bethenny’s custody battle has become increasingly bitter and she recently admitted to Nightline that she is going through a “brutal, brutal time”.  Because custody cases can often reach a heightened degree of tension, one of the most difficult factors for determining the best interest of the child can often be the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.  It is not uncommon in acrimonious cases that either one or both of the parties find it virtually impossible to speak favorably about the other parent.   However, speaking poorly about the other parent in the presence of the child is an indication that the parent is not putting the child’s interests before their own and is generally not tolerated by the Court.  Hopefully for Bryn’s sake, her parents can find a way to reach a compromise soon.

Justin O’Dell Delivers Sunshine at Marietta High School

Posted on September 12, 2013 - Uncategorized

Justin SunshineJustin O’Dell delivered a little sunshine today to fellow Kiwanians at Marietta High School as he shared inspiring testimony from a Mother in the Family Dependency Treatment Court program. Some smiled and some cried as he read from a hand-written letter he had received. As a founding member of Reconnecting Families, Justin is able to participate in providing support services to families who are in the drug treatment program. The program recently held it’s 8th graduation commencement and it continues to provide accountability and meaningful alternatives to the traditional judicial system for these families.

To learn more about Reconnecting Families and ways that you might volunteer your time and resources, visit www.reconnectingfamilies.org.

Justin O’Dell Serves on 2013 Cobb Diaper Day Committee

Posted on September 12, 2013 - Uncategorized

Cobb Diaper Day 2013Did you know that food stamps do not cover personal hygiene products like diapers? Can you imagine being forced to choose between feeding your family and buying diapers for your little ones? Cobb Diaper Day collects donations of approximately 50,000 diapers each year  for low-income families so that they don’t have to make that choice. Justin O’Dell is one of the founding members of Cobb Diaper Day and was honored to read a proclamation from Governor Sonny Perdue at the first Diaper Day event.

As a member of the 2013 event committee, Justin continues to support the diaper collection that helps ease the burden for hundreds of families. Start a collection in your neighborhood and bring the donations to one of the drop-off points during September and October or join us on the Marietta Square at 5:00 pm on October 28th for a community-wide collection. You may drop off your diaper donations at our offices at 506 Roswell Street, Suite 210 in Marietta  prior to October 28th:

  • For more information on how to start a collection in your neighborhood or at work, go to www.cobbdiaperday.com.

“Often times it is the little things in our lives that make the biggest difference” – Barbara Hickey, Cobb Diaper Day 2013 Committee Chair

Dick & Jane & The Threatening Letter

Posted on September 12, 2013 - Dick and Jane

Justin cropped Super Lawyer

By Justin O’Dell

We left Dick and Jane with a discussion regarding a business opportunity for Dick.  For purposes of our continued character development, we will assume that Dick decided to go for the job and take the new position and ownership interest in the company.

As expected, a threatening letter arrived from the attorney for his old company.  The letter references the existing covenant not to compete and contains several threats about litigation.  Of course, the letter concludes with the very lawyerly “GOVERN YOURSELF ACCORDINGLY!” which always seems to be written in all caps.  Dick is nervous and wondering what to do.  Should he ignore it?  Should he respond?  Should he hire a lawyer to respond?

First and foremost, it is critical that Dick respond, particularly if something in the letter makes an accusation or otherwise requests a response.  Georgia law contains an evidentiary rule related to failure to answer a business letter.  O.C.G.A. § 24-14-23 states that “In the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise, the party shall be presumed to admit the propriety of the acts mentioned in the letter of the party’s correspondent and to adopt them.”  Thus, if Dick fails to respond he may make admissions as to actions and allegations which could be harmful down the road.

Second, Dick should not respond without a lawyer.  Many times, individuals believe that they are right and that if they can just explain it adequately to the other party, the other party will see things correctly and agree.  In reality, adversaries have most likely made up their minds about a situation by the time they have seen a lawyer.  Rarely, if ever, will a letter filled with admissions and explanations accomplish anything toward changing the mind of an adversary.  Instead, the letter might make certain admissions or provide other evidence that becomes critical to the case at a later date.  By speaking with a lawyer, it is likely that Dick can obtain help in narrowing down a proper response.

Finally, it is possible for Dick to consult with a lawyer about a response, but then draft the response himself.  Most jurisdictions place limitations on lawyers “ghostwriting” pleadings and other matters to be filed by litigants with the Court.  However, there would not be any ethical or other legal prohibition on a lawyer helping a person draft and send a legal response letter in the hopes of avoiding litigation.

For next month, we will see if Dick escapes a lawsuit. . .

Leslie O’Neal Graduates Leadership Cobb 2013-2014

Posted on September 4, 2013 - In The Community

LDO's LCC Graduation 1Congratulations to Leslie O’Neal for successfully graduating from the Leadership Cobb class of 2013-2014! For the past 10 months, Leslie and 44 other diverse and qualified individuals participated 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.

Simon Cowell Sued in Socialite’s Divorce Drama

Posted on August 16, 2013 - Blog, Celebrity Scenarios

Leslie_ONeal_9797_8x12By Leslie O’Neal

Simon Cowell’s personal life has come under intense scrutiny in recent weeks with the revelation that he is expecting a child with Lauren Silverman, who is conspicuously still married to Cowell’s friend, Andrew Silverman.   Lauren Silverman initially claimed that she and her husband Andrew had been unhappy in their marriage for some time.  However, Andrew Silverman has a far different perspective on the situation.   The New York Post reports that when Andrew filed for divorce last month, he cited adultery as the cause for separation.  Evidently seeking to prove a point, he named Cowell as a co-respondent in the divorce case.   This begs the question; can a person be sued in someone else’s divorce case if that person committed adultery with one of the parties in the divorce?  It depends on if your State still enforces the legal theory of alienation of affection.

Alienation of Affection is an archaic legal theory dating back to times when a wife was considered the property of her husband, and it allows the husband to sue the home wrecker who destroyed his marriage. Most states have abolished alienation of affection lawsuits due to their archaic nature.  The only states that still enforce it are Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah.  Proponents in the holdout states say the threat of such legal action helps protect the sanctity of marriage.  In addition, because changing the law would require legislative action, many lawmakers are probably not inclined to get it abolished for fear of being branded as ‘pro-cheating’.

In reality, alienation of affection cases are most lucrative when the person who courted another person’s spouse happens to be wealthy.   CNN reports that juries in North Carolina have handed out awards in excess of $1 million on multiple occasions, with one woman obtaining a $9 million judgment against her husband’s mistress as recently as 2010 as reported by ABC News.  One notable Congressman in Mississippi named Chip Pickering conveniently stepped down from office in 2008, and then shortly thereafter his wife filed an alienation of affection lawsuit against his alleged mistress.  Not surprisingly, the case settled with confidentiality agreements in place. 

If you live in a state where the archaic alienation of affection law still exists, you’d better beware!  Luckily for Simon Cowell, Lauren and Andrew Silverman just settled their divorce case this week, so he is presumably off the hot-seat . . . for now.

Dick & Jane, Back to the Job Offer….

Posted on August 14, 2013 - Blog, Dick and Jane

Justin cropped Super LawyerBy Justin O’Dell

In June, we left Dick and Jane with Dick contemplating a career change and the effects of a covenant not to compete.  The analysis of that situation was put on hold to discuss the landmark decisions of the United States Supreme Court related to same sex marriage.

Recall that Dick was being presented with a job 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.

There is no doubt that the offer presented would be competitive.  As discussed previously, under Georgia law prior to 2010, the agreement would either be upheld or would be thrown out entirely.  Since 2011, the agreement could now be “blue-penciled” or edited down from unreasonable to more reasonable terms.

A covenant not to compete must be reasonable as to duration, scope and geography.  Under prior case law, a period of two years or less (as above) would likely be held permissible.  The new statutory scheme (much harder on the employee) provides that the agreement may be equal to the length of time of the duration of the parties business relationship.  Similarly, under prior case law, any agreement which was broader in geographic area than the territory worked by the employee would be unreasonable.  Under the new statutory scheme, no geographic limitation is required.  In fact, the agreement can include any location in which the company does business (whether or not the employee actually worked there) and the agreement contains a list of particular employers for whom the employee cannot take a position.  Finally, the old case law provided that the scope of the restriction should be limited to the business of the employee whereas the new statutory scheme allows restriction measured by the business of the employer.

Most importantly, the new statutory scheme contains a significant “savings” clause that provides that an agreement which contains nothing related to a limitation on duration, scope or geography can still be enforced as long as it “promotes or protects the purpose or subject matter of the agreement or relationship or deters any potential conflict of interest.”  Further, the only remedy for an unreasonable agreement is that the Court would edit the agreement down to something reasonable.

For the foregoing reasons, Dick would be able to take the opportunity under the old case law based analysis, but probably could not take the position under the new statutory scheme.  More importantly, he is not just stuck with missing this opportunity, he is most likely prohibited from accepting a position with another engineering firm in any capacity or role (whether as a project manager or not) since the scope the agreement is based on his employer’s services and not his actual job.

As a general rule, the effects of the revised Georgia law should have a severely depressing effect on job mobility and transferability.  The new laws should be very friendly toward large and mid-sized corporations wishing to lock up employees ranging from corporate officers down to mid-level managers and salesmen.