Author: JGL Law

Reversed summary judgment, reinstated case by parents of trespassing child who drowned in apartment complex pool). Blackburn Limited Partnership v. Paul (Md. 2014)

Last year, Chief Justice John Roberts, in ruling with the majority that Section 4 of the Voting Rights Act was unconstitutional, wrote “Blatantly discriminatory evasions of federal decrees are rare.” Even if true, this statement does not speak to the prevalence of subtly discriminatory actions, often based on hidden, deep-seated prejudices, such as those demonstrated recently by Los Angeles Clippers owner Donald Sterling.  Sterling showed the world that an outward appearance of racial neutrality may serve to mask inner bigotry that may affect actions taken by an employer.

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in the workplace, has noted that race discrimination may take less-than-obvious forms.  This includes race discrimination that involves disparate treatment based on an individual’s association with a person of a certain race (or status in another “protected class”―discussed in previous JGL blog posts here and here―such as those with disabilities), referred to as “association discrimination”. 

While Title VII does not include provisions explicitly prohibiting association discrimination, it has been interpreted broadly by the courts to protect individuals victimized by employment decisions based in whole or in part on an individual’s association with someone of a particular race. For example, in Holcomb v. Iona College, the employer terminated a white head basketball coach, claiming that the removal stemmed from a poor-performing team that needed an overhaul.  Coach Holcomb, however, claimed that he was fired because his wife was black, and Iona’s athletic director had openly disclosed his dislike of interracial marriages and even expressed his desire to decrease the presence of African-Americans at basketball events.  Iona argued that even if the latter were true, the Plaintiff’s own race was not at issue, and thus, he had no standing under Title VII. 

The Second Circuit Court of Appeals disagreed, noting that when an adverse employment action arises out of an employer’s disapproval of interracial association, the employee is being subjected to the adverse action due to his own race.  As such, he has a cause of action for racial discrimination cognizable under Title VII. As explained by the EEOC, Title VII’s protection against association discrimination is not limited to situations involving the race of a spouse; it also protects against discrimination based on association with friends of a certain race, as well as memberships in or association with a race-based organization or group. 

In the case of Donald Sterling, even if he somehow manages to retain ownership of the Clippers, he likely could face other individual causes of action based on race discrimination, and perhaps association discrimination.  After clearly expressing his disapproval of the association with African-Americans he may be subject to claims by all Clippers employees, regardless of race, who have been adversely affected by Sterling’s employment decisions, provided they can prove that the decision was based, at least in part, on their association with African-Americans. Whether blatant or subtle, such claims may be on the rise, and justifiably so.

Once a divorce matter has been filed and the Court sets a trial date, most clients mistakenly mark their calendar with the belief that upon conclusion of the trial, every aspect of their divorce case will be over.  However, if the client or their spouse has retirement or pension accounts that constitute marital property and are ordered to be distributed from one party to another (in full or in part), then there will most likely be several post-trial steps associated with the distribution that must occur before the case can be officially considered concluded.

If the proper steps are not taken, then beware, contentious proceedings can, and have been known to, occur post-divorce associated with the distribution of retirement and pension funds. In a nutshell, if  the retirement or pension plan that is to be distributed is governed by The Employee Retirement Income Security Act of 1974 (hereinafter referred to as ERISA), then the appropriate Qualified Domestic Relations Order (“QDRO”), or its counterpart, will need to be drafted, agreed upon and executed by counsel, filed with and executed by the Court, and then filed with the retirement or pension plan’s Plan Administrator and subsequently approved, prior to the separation or disbursement of funds. What is ERISA? ERISA (codified at  29 U.S.C. §1001 et seq.) was enacted, in part, to protect the interests of employees who participated in employer-sponsored pension plans.  This federal law sets forth minimum standards for most voluntarily established, private sector, pension or retirement plans, which standards include but are not limited to the following: (1) plans must provide each participant with plan information; (2) plan managers and those who control plan assets are subject to specific fiduciary responsibilities; (3) plans are required to establish a grievance and appeals process in order for participants to get benefits from their plans; and (4) participants are provided with the right to sue for benefits and breaches of fiduciary duty. What has been termed the “anti-alienation” provisions of ERISA prevent the assignment or distribution of the proceeds of an ERISA qualified plan to third parties.  29 U.S.C. § 1056(d)(1).  Furthermore, when Congress enacted ERISA it was intended that this law would be preemptory in nature and that it would “supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in 29 U.S.C. § 1003(a) . . .”  29 U.S.C. § 1144(a).  See also Potts v. Potts, 142 Md. App. 448, 455, 790 A.2d 703, 708 (2002).  The combination of the anti-alienation and preemption provisions raised a question with the courts as to “the validity of orders entered in State domestic relations proceedings requiring that pension benefits be paid to a person other than the plan beneficiary.”  See id. (citing to Rohrbeck v. Rohrbeck, 318 Md. 28, 32, 566 A.2d 767, 769 (1989)). While considering what eventually became enacted as the Retirement Equity Act of 1984, Congress provided clarification regarding both issues, stating that

if a domestic relations order requires the distribution of all or a part of a participant’s benefits under a qualified plan to an alternate payee, then the creation, recognition, or assignment of the alternate payee’s right to the benefits is not considered an assignment or alienation of benefits under the plan if and only if the order is a qualified domestic relations order.  Because rights created, recognized, or assigned by a qualified domestic relations order, and benefit payments pursuant to such an order, are specifically permitted under the bill, State law providing for these rights and payments under a qualified domestic relations order will continue to be exempt from Federal preemption under ERISA.

See Rohrbeck, 318 Md. 28 at 33 (citations omitted) (emphasis added).  In other words, courts were provided with the authority to execute orders allowing benefits to be paid to someone other than the plan beneficiary through the means of a QDRO.  “From a practical point of view, a QDRO allows divorcing parties to avoid a lump sum payment and the tax consequences that accompany such a payment.”  See Freedenburg v. Freedenburg, 123 Md. App. 729, 751, 720 A.2d 948 (1998). For a broad overview of the historical development of QDROs, refer to the following Maryland case law: Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A. 2d 767 (1989); Potts v. Potts, 142 Md. App. 448, 790 A. 2d 703 (2002); and Dennis v. Fire & Police Employees Ret. Sys., 390 Md. 639, 651, 890 A. 2d 737 (2006). What is a Qualified Domestic Relations Order (QDRO)? And What Language Must Be Included Within the QDRO? The law defines a “qualified domestic relations order” as a domestic relations order that meets certain requirements that are set forth in the statute.  First, the order must constitute a “domestic relation order,” which is defined as: any judgment, decree, or order (including approval of a property settlement agreement) which- (i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law). 29 U.S.C. § 1056(d)(3)(B)(ii). The order must also meet three additional requirements: (1) It must create or recognize the existence of an alternate payee’s right to, or assign to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan (29 U.S.C. § 1056(d)(3)(B)(i)); and (2) Procedurally, in order to be recognized as a QDRO by the QDRO Plan Administrator, the QDRO must clearly specify the following: (i) the name and last known mailing address of the alternate payee and the participant; (ii) the amount or percentage of the participant’s benefits to be paid by the plan to the alternate payee (or the manner in which the amount or percentage is to be determined); (iii) the number of payments or the period to which the order applies; and (iv) each plan to which the order applies. (29 U.S.C. § 1056 (d)(3)(C)).[1] And, (3) It: (i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (ii) does not require the plan to provide increased benefits (determined on  the basis of actuarial value), and (iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order. 29 U.S.C. § 1056(d)(3)(D). At a minimum, the QDRO must be in compliance with the aforesaid provisions. Practically speaking, a QDRO is typically a separate Order, executed by counsel for both parties, and submitted to the Court post-divorce.  However, note that ERISA does not require that a QDRO be part of the actual judgment of absolute divorce, but if counsel is able to prepare and have opposing counsel approve the QDRO in advance of trial or the uncontested divorce proceeding, then the QDRO may be filed with the Court at the time the judgment of absolute divorce is granted, as a way to expedite the process. How Do I Know if my Pension Plan or Retirement Account is Governed by ERISA? If your pension or retirement plan is governed by ERISA, then your employer is required to provide participants and their beneficiaries with the following specific documents about the plan: (1) the summary plan description; (2) the summary of material modification; (3) an individual benefit statement; (4) if the plan allows the participant to direct their own investments, then, on a regular basis, the plan is required to make participants aware of their rights and responsibilities under the plan regarding directing their investments, which includes information about fees and expenses; (5) an automatic enrollment notice (if applicable); (6) a summary annual report; and (7) any applicable black out period notices. The summary plan description is given to employees after they join the plan (and to beneficiaries after they first receive benefits) and this document will contain language related to whether the plan is governed by ERISA.  Furthermore, the summary plan description is supposed to provide a plain language description of the plan, describes plan features, what to expect of the plan, and it is required to be comprehensive enough to apprise participants of their rights and responsibilities under the plan.  A copy of the plan is also required to be provided upon request. What Are The Procedural Steps For Filing a QDRO and Obtaining Approval? If the parties reach a settlement of their case, which involves the distribution of retirement or pension funds from one spouse to another, or the trial court issues an opinion ordering the same, and it is clear that the plan is governed by ERISA, then the proper QDRO needs to be prepared, signed by counsel (and sometimes the parties), filed with the Court, executed by the Judge, and then submitted to the plan administrator for approval along with a certified copy of the QDRO, the Parties’ Judgment of Absolute Divorce (and settlement agreement, if applicable). Each plan governed by ERISA is required to have a clearly defined process for handling the submission of QDROs.  Therefore, counsel should contact the plan administrator in advance of submitting the QDRO in order to obtain the specific details regarding this process. What Happens After the QDRO Has Been Submitted to the Plan Administrator? As the Court of Appeals made clear in Rohrbeck,

The law requires each plan to establish ‘reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders.’ 29 U.S.C. § 1056(d)(3)(G)(ii); [I.R.C.] § 414(p)(6)(B).  Upon receipt of a domestic relations order, the plan administrator must notify the participant and the alternate payee of the receipt of the order and the plan’s procedures for determining its qualified status.  The administrator has ‘a reasonable period’ of up to 18 months in which to determine that status and inform the parties of the decision.  See  29 U.S.C. § 1056(d)(3)(G)-(H); [I.R.C.] § 414(p) (6)-(7).

Rohrbeck, 318 Md. at 35, 566 A.2d at 771.  From a practitioner’s perspective, once the QDRO has been sent to the plan administrator, if counsel or his or her client has not received confirmation that the QDRO has been received by the plan administrator within a month from the date it was mailed out, then counsel should follow up with the plan administrator to confirm receipt, as well as to obtain a time estimate for how long the review and approval process will take. Do QDRO’s Apply to All Retirement or Pension Plans? No. IRA’s, tax-sheltered annuities under Internal Revenue Code § 403(a) and (b), governmental plans and church plans are not governed by ERISA in this regard.  As a result, the terms of the plan and applicable law govern what documents are required to be executed in order for these funds to be distributed post-divorce. Can QDRO’s Be Used For Purposes Other Than Distributing Pension/Retirement Funds in a Divorce Case? The use of QDRO’s is not limited to divorce matters. QDRO’s can also be utilized for purposes of collecting child support or spousal support, which includes the collection of past-due child support or spousal support arrearages.

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[1] Note that ERISA, 29 U.S.C. § 1056(d)(3)(K) states that the term alternate payee means “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” Section 1056(d)(3)(J) indicates that “a person who is an alternate payee under a qualified domestic relations order shall be considered for purposes of any provision of this Act a beneficiary under the plan.”

 

Can an employer be liable for racist and sexist comments by a client or business partner—someone who does not even work for the employer—toward one of its employees?

Under a recent decision by the Fourth Circuit Court of Appeals, the answer is “yes.” In Freeman v. Dal-Tile Corp., a decision issued on April 29, 2014, the Fourth Circuit recognized that an employer can be liable for harassment perpetrated by a third-party against one of its employees.

Title VII, as well as Maryland state law and some county laws, prohibits harassment on the basis of race, color, religion, sex, or national origin (i.e., “protected classes”). The law is well-established that an employer may be liable for harassment perpetrated against an employee by a supervisor or co-worker. (See related JGL posts here and here.)  Until the Freeman decision, it was unclear under what standard in the Fourth Circuit whether an employer could be held liable for harassment based on one of these protected classes[1] perpetrated against an employee by a third-party who does not even work for the employer.

Lori Freeman was employed by Dal-Tile as a customer services representative. In that role, she frequently interacted with Timothy Koester, a sales representative for another company that did business with Dal-Tile. On numerous occasions, Koester made racially and sexually-offensive comments to and in the presence of Freeman. Among other egregious actions, Koester used the N-word towards and in the presence of Freeman, who is African-American. He also loudly and lewdly bragged about his sexual partners and activities. Ms. Freeman complained about the harassment to her supervisors, but largely to no avail. She eventually resigned and brought suit against Dal-Tile.

The U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of Dal-Tile, but the Fourth Circuit Court of Appeals reversed that ruling. For the first time, the Fourth Circuit ruled that an employer may be liable for harassment committed by third parties under a negligence standard. As explained by the Court: “an employer is liable under Title VII for third parties creating a hostile work environment if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment.”

For employers, the most important point of this decision is that they must respond to complaints about harassment of their employees by third parties. Employers are not insulated from liability simply because the harasser does not work for them. If an employee complains about offensive comments or actions by a customer, client, business partner, or anyone else, the employer must investigate and, if necessary, take action to stop the harassment. As the Fourth Circuit said, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.” Any employer who is unsure about their legal obligations or potential liability for third-party harassment should consult with an attorney right away.

For employees, the message is clear—the law does not force them to endure harassment by third parties. There is a clear right to sue for harassment not only by supervisors and co-workers, but also by third parties. However, it is imperative that any employee who is subjected to a hostile work environment make a prompt complaint to a supervisor or other appropriate person in management. Any employee who feels they are being harassed and is unsure of their legal rights or responsibilities should contact an attorney immediately.

 

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[1] As the courts tend to look to Title VII jurisprudence when interpreting liability under the Americans with Disabilities Act, it is possible that this standard could also extend to instances where harassment is based on an employee’s disability.

In a unanimous decision, the Court of Appeals of Maryland recently held in Blackburn Ltd. Partnership v. Paul,[1] that all Maryland public pools have a duty to comply with Maryland’s swimming pool barrier safety regulations.[2] The Court recognized that the pool barrier safety regulations were designed for the protection of young children from accidental drowning and near-drowning by limiting or delaying their access to swimming pools, spas and hot tubs.

Therefore, under the Statute or Ordinance Rule, a public pool owner may be liable for such an injury to a child irrespective of his or her legal status on the property when the incident occurs.

The tragic events that led to this decision occurred on June 13, 2010.  On that day, three-year-old Christopher Paul lived with his parents, Alicia Paul, Junior Christopher Paul, and his ten-year-old half-brother, Andre, at Country Place Apartments in Burtonsville, Maryland. Andre and Christopher went outside to play and twice returned to the apartment and then returned outside again, each time for only a few minutes. During their third trip outside, Christopher threw a toy down the hill next to the playground and Andre went to retrieve it. When Andre walked back up the hill, he could not find Christopher so he alerted his mother. Knowing that he had been to the pool with his father the day before, Andre and Mrs. Paul immediately began looking for Christopher, including at the pool area, which was supposed to be closed and locked at that time. When she arrived at the pool gate, she saw Christopher’s shoes and shirt on the pool deck just inside the gate. A lifeguard arrived at the pool at that moment and retrieved Christopher from the pool, who was not breathing and had no pulse. Rescue efforts began, paramedics arrived, and they too continued rescue efforts on the unresponsive Christopher. As a result of this near-drowning, Christopher sustained a severe anoxic brain injury. He now has multiple, complex medical conditions, which require continuous care.

Although the gate was supposed to be locked, it had a loose opening of at least 18 inches. At closing, a padlock and chain would be affixed to the upper half of the gate. However, the chain would only loosely fit around the upper half of the gate, and the lower half of the gate would be unlocked There was a lot of play in the gate and that the bottom portion bowed out significantly. As a result, while the pool was supposed to be closed, the gate doors could easily be pushed in either direction to create a large opening – approximately 18 inches wide. There were also multiple 6-inch gaps in the fence, which Christopher also could have fit through. Christopher’s head was measured by a physician to be 5.1 inches wide and he stood at just over three-feet tall.

Christopher’s shirt and shoes were found on the pool deck just inside the only pool gate, and there was no evidence of any forced or other methods of entry except through the large openings in the fence and gate. Christopher would have easily been able to pass through the 18-inch gap in the “closed” gate. Investigation concluded that Christopher had entered the pool through the large opening in the lower portion of the gate.

The defendants in the case argued that: 1) they had no duty to Christopher because he was a trespasser at the pool; 2) pool safety regulations do not create a duty to one who is a trespasser; and 3) they were not required to retrofit or change their barriers because the pool safety regulations in COMAR do not apply to them as their pool was constructed in 1978 – before the newer pool safety regulations were enacted.[3]

The Court of Appeals, in affirming the decision of the Court of Special Appeals,[4] held that the common law trespass analysis is wholly inapplicable in this instance. Rather, “another strand of law is relevant” under the “Statute or Ordinance Rule.” Under that rule, to prove a negligence case, a plaintiff need only show: “(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.”[5] Although the pool owners argued that this rule is limited to lead paint cases, the Court clarified that “the Statute or Ordinance Rule has never been confined to the context of lead paint cases . . . has broad applicability, and need not be cabined by common-law rules that are unique to the premises liability context.”[6]

The Court recognized that COMAR has specific gate and barrier requirements, including that, except when open, an opening in the barrier may “not allow passage of a sphere 4 inches in diameter”[7]—a measurement based specifically on general understandings of the size of heads and chests of small young children—as the regulation was “intended to prevent a young child from passing through an opening.” The Court rejected the property owners’ argument that this requirement did not apply to them based on a plain language reading of the regulations, common sense, the purpose of the regulatory scheme as a whole (pool safety), and a separate provision requiring that if a pool “has a condition that jeopardizes the health or safety of the public,” it must be corrected to meet the pool regulations.

Moreover, the Court found persuasive that COMAR adopts Appendix E of the Model Barrier Code for Residential Swimming Pools, Spas, and Hot Tubs. The Model Barrier Code is clear that the purpose of the barrier requirements is to protect young children from accidental drowning and near-drowning. Therefore, “in the event of a lapse in adult supervision, and particularly for the protection of children in the most at-risk age group, less than five (5) years of age, who cannot yet appreciate or be instructed as to the risk of drowning, supplemental layers of protection are established. They limit or delay child access to” a pool.[8] The Court therefore concluded that all Maryland public pools are required to comply with the gate and barrier requirements set forth in COMAR.

Finally, returning to the Statute or Ordinance Rule, the Court found that it is applicable here. The pool barrier safety regulations were designed for the protection of a particular class of persons such as Christopher – namely, children under the age of five. Additionally, for part (a) of the Rule, a violation of the statute or ordinance, there was sufficient “evidence concerning the state of the fence at the time of the incident [which] could prove that Petitioners’ enclosure failed to meet the requirements of COMAR 10.17.01.21A(3).” For part (b) of the Rule, causation, the Court had little trouble detailing the numerous factors displaying circumstantial evidence sufficient to show that the pool barrier was not sufficient and that Christopher entered the pool by slipping through the defective gate. In sum, the Court concluded that, irrespective of Christopher’s legal status at the pool, a reasonable trier of fact could find that the property owners violated their duty to have an adequate barrier and that such violation was the cause of Christopher’s injuries.[9]

This case is extremely important in establishing safety standards for those in and around public pools in the State of Maryland. No longer will older public pools be permitted to argue that they are not required to protect the public, particularly children in and around pools, from the well-documented dangers of deficient pools and barriers. Additionally, this case is significant in that it firmly rejects limiting the Statute or Ordinance Rule to only lead paint cases. If a plaintiff can show the defendant violated a statute or ordinance designed to protect that class of persons, and that violation was a proximate cause of the injury, he or she will be permitted to assert a claim for negligence.

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Levi S. Zaslow is an attorney in the civil litigation department at Joseph, Greenwald & Laake, P.A. He, along with Timothy F. Maloney, Veronica B. Nannis, Peter C. Grenier, and Andre M. Gregorian, briefed Blackburn Ltd. Partnership v. Paul in the Court of Appeals and Court of Special Appeals. The opinion of the Court of Appeals is available here, and the opinion of the Court of Special Appeals is available here. Mr. Zaslow is licensed to practice in Maryland and the District of Columbia. He handles cases at each Maryland court level, from the Court of Appeals of Maryland to the Maryland district courts, in addition to agency-related matters. He also routinely practices in federal court in Maryland and the District of Columbia representing both plaintiffs and defendants.

 

[1] No. 55, Sept. Term, 2013, __ Md. __, __ A.3d __, 2014 WL 1672388 (Md. Apr. 28, 2014). The opinion of the Court of Appeals is available here.

[2] This includes “recreational pools,” which are pools at “[a]n apartment complex, housing subdivision, or mobile home park with more than ten units.” COMAR 10.17.01.01; 10.17.01.05B(19)(f)(v).

[3] Paul, slip op. at 6-7, 2014 WL 1672388, at *3-4.

[4] Paul v. Blackburn Ltd. P’ship, 211 Md.App. 52, 63 A.3d 1107 (2013). The opinion of the Court of Special Appeals in available here.

[5] Paul, slip op. at 10-11, 2014 WL 1672388, at *4-5.

[6] Paul, slip op. at 15-16, 2014 WL 1672388, at *7.

[7] COMAR 10.17.01.21A

[8] Paul, slip op. at 18-26, 2014 WL 1672388, at *8-12.

[9] Paul, slip op. at 27-31, 2014 WL 1672388, at *12-14.

This past session, the Maryland legislature enacted a number of changes that affect both victims and perpetrators of domestic violence. Although certainly not a comprehensive overhaul, the new legislation touches on several important areas that affect the public’s ability to obtain and extend both peace and protective orders, as well as enhanced penalties for those who violate such orders.

Peace and Protective Orders are civil orders that an individual may obtain against another individual for committing a prohibited act, such as assault, stalking, or some other form of general harassment (in common parlance, a “restraining order”). These orders are often obtained before criminal charges are formally brought, and provide a measure of protection to victims of abuse or harassment while charges are pending. Whether an individual is able to obtain either a peace or protective order depends on the underlying conduct and the relationship between the persons involved.[1]

 Permanent Final Protective Orders

Ordinarily, Final Protective Orders are only effective for one year. However, under certain circumstances a Court may issue a permanent protective order. As the law presently stands, a court is required to issue a permanent final protective order against an individual if

(1) the individual was previously a respondent against whom a final protective order was issued and

(2) the individual was convicted and served a term of imprisonment of at least five years for attempted murder in the first or second degrees, first degree assault, first or second degree rape, first or second degree sexual offense, or attempted rape or sexual offense in the first or second degree.

Bills passed by both the Senate and the House this termexpand the circumstances under which a permanent final protective order may be obtained.[2]

Instead of requiring an individual to serve at least five years before a permanent order may be obtained, the legislature has changed the language to permit the issuance of an order when an individual is sentenced to serve a term of imprisonment of at least five years for specified underlying acts of abuse, and has served at least 12 months. Now, rather than requiring that the respondent actually serve five years in jail – something that will not always occur due to jail overpopulation and credit for good time served – the respondent will only have to have served at least 1 year in jail before the petitioner is able to request a permanent order.

The bills also add the crime of second degree assault to the list of crimes, the commission of which subjects an individual to the issuance of a permanent final protective order. This is an extremely important addendum, as it allows many petitioners to obtain permanent protection before the violence escalates further.

Extensions of Protective Orders

If a petitioner (the person seeking to obtain the peace or protective order) wants to extend a protective order, they have to file a motion and go before the court to do so. However, if a hearing is not held on the motion to extend before the order actually expires, the court cannot do anything – even when the motion was timely filed. In La Valle v. La Valle, 432 Md. 343 (2013), the Court of Appeals held that if a motion to extend a protective order is filed before its expiration, but, for any reason, the hearing on the motion is delayed beyond the expiration of the protective order, that order can no longer be extended.

Senate Bill 434 and House Bill 647, both passed during this past term,require a court to extend a final peace order or a final protective order if, during the term of the order, the petitioner or person eligible for relief files a motion for extension, and to hold a hearing within 30 days after the motion is filed. Given the many snow days we experienced this winter, this provision will help ensure that petitioners are able to obtain the necessary relief even if mother nature causes the courts to close unexpectedly.

Child Witnesses to Domestic Violence

More than 3 million children each year witness domestic violence in their homes.[3] In addition to an increased likelihood that a child will themselves be subject to violence, a number of studies have shown that children who witness domestic violence may suffer emotional and developmental difficulties that are similar to those suffered by children who have been directly abused. Additionally, children who witness domestic violence are far more likely to follow the same path once they become adults; the American Psychological Association has noted that a child’s exposure to the father abusing the mother is the strongest risk fact for transmitting violent behavior from one generation to the next.[4]

Attempting to strike a blow to this continuing cycle of violence, Senate Bill 337 and House Bill 306 add an enhanced penalty for those individuals who commit a crime of violence when the person knows or reasonably should know that a minor, who is at least two years old, is present in a residence within sight or hearing of the crime of violence. Anyone who commits a crime of violence under these circumstances is subject to an enhanced penalty of imprisonment for up to five years in addition to any other sentence imposed for the crime of violence. Importantly, any enhanced penalty imposed under these bills must be separate from and consecutive to any sentence for the underlying crime of violence.

 Burden of Proof to Obtain Protective Orders

 As the law currently stands in Maryland, in order to grant a final protective order a judge must find by “clear and convincing evidence” that the respondent has committed, and is likely to commit in the future, one of several prohibited acts against the petitioner. According to a 2012 report from the Department of Legislative Services, Maryland is the only state that specifically requires by statute that a petitioner must meet the higher burden of “clear and convincing evidence” to receive a final protective order; 29 other states utilize the “preponderance of the evidence” standard in determining whether to grant a final protective order.[5]

After many years, and amidst widespread criticism from the domestic violence community, the Maryland State Senate and House both recently passed legislation which lowers the standard of proof from clear and convincing evidence to a preponderance of the evidence standard that must be met before issuing or extending final peace orders.

What is a Burden of Proof?

 A “burden of proof” is the duty or obligation a person has in a court proceeding to prove their case. There are several different burdens of proof that are used in various court proceedings. Perhaps the most well-known standard is that used in criminal cases, whereby a person must be found guilty “beyond a reasonable doubt.” That means that in order to find someone guilty of a crime, the state must essentially prove that the evidence demonstrates the defendant committed the crime to a certain degree of certainty, and that there is no other logical explanation to explain the underlying event; if the jury has no doubt as to the defendant’s guilt, or if their only doubts are unreasonable, then the burden has been met. If we were to set up the burdens of proof on a football field, to meet this burden you would basically have to score a touchdown; it is the highest burden of proof.

At the other end of the spectrum is the “preponderance of the evidence” standard. This is the standard that is applicable in most civil cases. This standard requires just enough evidence to establish that a fact is more likely true than not true, or more probable than not. If we use the football analogy, to meet this burden you would only have to take the ball just over the 50 yard line. This is the lowest burden of proof one must meet.

In between those extremes lies the “clear and convincing” standard. This standard requires more than just a preponderance of the evidence, but less than would be required to prove something beyond a reasonable doubt; there must be a high probability that something is true in order to meet this burden. Basically, we’re looking somewhere between the 50-yard line and the goal line, although where that line lies is very difficult to determine.

 

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For more information on peace orders and protective orders in Maryland, please visit the Maryland Courts website at http://mdcourts.gov, or the Maryland Network Against Domestic Violence website at http://mnadv.org.

 

 

[1] For a great checklist to help you determine if you are able to file for a peace or protective order, see the Brochure titled “How to File for a Peace or Protective Order” produced by the Maryland Judiciary, located at http://www.courts.state.md.us/courtforms/joint/ccdcdvpo001br.pdf.

[2] Senate Bills 334 and 434; House Bills 309 and 647.

[3] Safe Horizon, https://www.safehorizon.org. Safe Horizon is a victim services agency providing assistance to victims of domestic violence, child abuse, human trafficking, rape, and sexual assault.

[4] American Psychological Association, Violence and the Family: Report of the APA Presidential Task Force on Violence and the Family (1996).

[5] Department of Legislative Services, How States Address Domestic Violence in Selected Areas (2012), available at http://dls.state.md.us.

  On April 14, 2014, Governor Martin O’Malley signed two bills that usher in a change for marijuana laws in Maryland. The first, Senate Bill 364, goes into effect on October 1st and decriminalizes the possession of marijuana. Under SB 364, a person cannot be criminally charged for possession of less than 10 grams of marijuana, instead they will face civil fines as follows:

• first-time offenders will face fines up to $100
• second-time offenders will be punishable with a fine up to $250; and
• subsequent offenders will face fines up to $500

The bill also requires third-time offenders or offenders under the age of 21 to be evaluated for substance abuse problems, and to attend drug education classes. Importantly, though possession of marijuana has been decriminalized the possession of paraphernalia remains illegal. Two weeks prior to SB 364 reaching the Governor’s desk, the House of Delegates voted 78-55 to pass the legislation. On April 7, 2014 the Senate followed suit, approving the measure 34-8. The second bill, House Bill 881, goes into effect on June 1 and allows qualified patients who obtain authorization from certain state-approved physicians to purchase marijuana from licensed medical marijuana treatment centers. These qualified patients will also be protected from arrest and prosecution of marijuana possession charges. Maryland has incrementally loosened restrictions regarding medical marijuana over the past decade. In 2003, it adopted the Darrel Putnam Compassionate Use Act, which allowed defendants charged with possession of one ounce or less of marijuana to assert an affirmative defense of medical necessity. If successful, the defendant would not face any penalty. That law, however, did not prevent patients from being arrested, prosecuted, or having to pay a fine, even if a defendant could prove they were a qualified patient. Last year, Maryland passed HB 1101 which established “Academic Medical Centers” to supply marijuana to patients. This program was contingent on hospitals approved to conduct medical marijuana research agreeing to join the program and supply cannabis to patients. HB 1101 was largely viewed as a failure because no medical facility actually joined the program. In contrast to the legislation passed in 2003 and 2013, SB 364 and HB 881 significantly liberalize marijuana laws in the state. Maryland joins a dozen other states that have legalized or decriminalized marijuana to some extent, although Maryland has not caught up to Colorado’s pot vending machines. Nevertheless, the possession of marijuana remains illegal under federal law. In Gonzales v. Raich, 545 U.S. 1, (2005), the Supreme Court held in a 6-3 decision that under the Commerce Clause of the United States Constitution the federal government could prohibit the use of marijuana, including for medicinal use, even if it was allowed by state law. Because the federal government still has marijuana prohibition on the books, Marylanders, otherwise acting legally under state law, can still face federal enforcement and associated criminal penalties.

On April 8, 2014, President Barack Obama signed an Executive Order prohibiting federal government contractors from retaliating against employees for disclosing their own or other employees’ salary information. This post will explore the implications of this new Executive Order for federal contractors and their employees.

What is the purpose of the new Executive Order?

Many employers, including government contractors, prohibit their employees from discussing or disclosing salary and compensation information with one another. Such policies often make good business sense from an employer’s perspective by giving employers freedom to compensate employees as they see fit without creating tension and dissention among employees regarding their salaries. However, these policies also make it more difficult for employees and the federal government to detect discrimination.

Current federal law, the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act of 2009, prohibits employers from discriminating against employees in the payment of wages on the basis of their sex. Federal law also prohibits any form of discrimination on the basis of race, color, religion, sex (pregnancy), national origin,[1] disability[2], and age[3]. These laws can be difficult to enforce if employers have policies prohibiting employees from disclosing salary and compensation information to each other, as many employers do. As explained in the Executive Order, “[w]hen employees are prohibited from inquiring about, disclosing, or discussing their compensation with fellow workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.”

The purpose of this Executive Order is to prohibit federal contractors from terminating or taking other adverse actions against employees for disclosing salary and compensation information, with the goal of expanding enforcement of federal equal pay and anti-discrimination laws.

How will the new Executive Order affect federal contractors?

The President’s Executive Order amends the longstanding Executive Order 11246. EO 11246 was first enacted by President Lyndon Johnson in 1965 on the heels of the Civil Rights Act of 1964 in an effort to eradicate discrimination by federal contractors. EO 11246 is implemented through the Federal Acquisition Regulation (FAR), a set of federal regulations that govern all aspects of federal contracting.

EO 11246 currently requires that federal contracts include, among other things, provisions mandating that “the contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin,” and requiring contractors to take certain affirmative actions to prevent discrimination. The new Executive Order amends EO 11246 to add the following provision: “The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.”

Contractors and employees of contractors will want to take note of several important aspects of this new law:

• It applies not only to current employees, but also to applicants for employment;
• It allows employees and applicants to inquire about, discuss, or disclose their own compensation information;
• It also allows employees and applicants to inquire about, discuss, or disclose the compensation information of other employees or applicants;
• It prohibits employers from terminating or “discriminating” against employees and applicants because they inquired about, discussed, or disclosed compensation information, effectively precluding standard employer policies that prohibit employees from disclosing their compensation information to one another;
• It contains an exception for employees who have access to compensation information as part of their duties; employers may still prohibit these employees—such as accounting and human resources personnel—from disclosing compensation information, unless it is done as part of an EEO complaint process or investigation.

Does the new Executive Order apply to all federal contracts and contractors?

Generally, the required EEO provisions must be incorporated into all prime and subcontracts valued at more than $10,000. The FAR provides that this requirement does not apply directly to contracts of less than $10,000. However, if the aggregate value of all of a contractor’s prime and subcontracts during the last 12 months exceeds $10,000, the required EEO provisions must be incorporated into the contract. It is anticipated that, since the new Executive Order amends EO 11246, the $10,000 requirement will apply to it as well.

Under the FAR, there are other exemptions from the requirement to include EEO provisions in a contract. Any contractor with questions about whether EEO provisions must be included in a contract, or whether an exemption applies, should consult with counsel.

What happens if a federal contractor violates provisions of the new Executive Order?

The Secretary of Labor has authority to enforce the provisions of EO 11246. A contractor who violates EEO provisions in a contract can be subject to a variety of sanctions. Under the FAR, the Secretary of Labor has discretion to publish the name of the contractor, report violations to the EEOC or Department of Justice for investigation and further proceedings, and in egregious cases direct that the contract be cancelled or even that the contractor be prohibited from entering into further contracts.

What rights does an employee have if a federal contractor violates provisions of the new Executive Order?

EO 11246 does not necessarily provide an employee with a direct cause of action. If a contractor violates the new Executive Order by terminating or retaliating against an employee for inquiring about, discussing, or disclosing compensation information, the employee can make a complaint to the Secretary of Labor. Beyond that, the employee may have a claim against the contractor for violation of federal equal pay or anti-discrimination laws. Any employee who believes his or her rights have been violated should consult with an attorney immediately.

When does the new Executive Order take effect?

Although the new Executive Order itself took immediate effect, its provisions do not apply to current contracts. The Executive Order directs the Secretary of Labor to propose regulations to implement the Order within 160 days. The provisions of the Executive Order will apply to contracts entered into after the effective date of those regulations.

“Death of the fraudster” by Georg Auer Hohensalzburg

Are you a Marylander?

Do you want your hard earned tax money going to companies who are defrauding the Maryland state government?

Probably not.

But, if you don’t mind companies who contract with the Maryland state government who fraudulently take taxpayer funds, then Monday, April 7, 2014, the last day of the legislative session, was a great day for you.

On that day, the Maryland False Claims Act Amendment, HB 867, which passed the Maryland House of Delegates, was just about to make it through to a final vote on the Maryland Senate floor when it was postponed.  This delay killed the bill for another year.  This postponement was evidently orchestrated in last minute, backroom deals that are the all-too-familiar, stereotypical control of our country’s legislative bodies by special interest groups.

Currently, Maryland law only covers fraudulently taken health care funds, such as Medicaid.  This allows the state to recover illegally taken health care funds and subjects healthcare contractors who fraudulently obtain Maryland funds to penalties and damages.  House Bill 867’s enactment would have allowed the state to recover and penalize fraud on all of Maryland’s funds in the same manner, not just healthcare.

In theory, everyone should be against fraud.  Pope Francis, for instance, recently took a seriously hardline on people who steal from the government, implying by quoting Jesus that they be thrown in the sea with a stone around their neck.  President Abraham Lincoln came up with the idea for the federal law (aka “Lincoln’s Law”) in 1863 that House Bill 867 essentially duplicated.  The Federal False Claims Act even has bipartisan support in Congress, a rarity today.  So, what could be wrong with treating fraudulent non-healthcare contractors like fraudulent healthcare contractors?  Somehow stopping the stealing of taxpayer money is bad for business. Of course, this is true if your business is illegally obtaining and performing contracts with the State of Maryland.

What opponent groups fail to explain is that unreported and unrecovered fraud hurts, not only taxpayers, but honest businesses too who are at a competitive disadvantage by following the law.  As Jonathan Swift wrote in Gulliver’s Travels:

They [the Lilliputians] look upon fraud as a greater crime than theft, and therefore seldom fail to punish it with death; for they allege that care and vigilance, with a very common understanding, may preserve a man’s goods from thieves, but honesty has no defence against superior cunning; and, since it is necessary that there should be a perpetual intercourse of buying and selling, and dealing upon credit, where fraud is permitted and connived at, or has no law to punish it, the honest dealer is always undone, and the knave gets the advantage.

In Gulliver’s Travels, Lemuel Gulliver explains that he tried to defend a Lilliputian’s fraudulent actions to the state (“the emperor”) but realizing that there was no legitimate defense felt “heartily ashamed.”  While we can expect no such self-reflection by the special interests who support and are funded by the “knaves,” hopefully, the average citizen, like the little Lilliputians can make a push to enact a “law to punish” fraud next session.

Click here to get your state senator’s contact information. To see if they voted to kill the bill (a “yea” being bad), go here.

  Most people have car insurance and health insurance.  Some people even have pet insurance!  If you own property, you most likely have homeowner’s insurance.  But how many people have title insurance and/or even know what it covers? If you own real property (real estate) or plan to purchase real property in the future, you will inevitably be asked if you want to get title insurance.  However, most purchasers have no idea what title insurance is or how it benefits them even though the purchase of a home or other type of real property is probably going to be the largest purchase in their life! When you purchase real property with a lender, they will require a Lender’s Title Policy to insure certain coverage for their loan for the transaction. You may think that the Lender’s Title Policy will cover you if a claim arises, but it doesn’t.  The Lender’s Title Policy insures ONLY the Lender and it insures only that the mortgage is a valid lien, only subject to certain priorities that the Lender has seen and agreed to. An Owner’s Title Policy is offered as an option at settlement.  It is a one-time payment which provides the Owner with certain coverage and protection regarding the Real Property. Title insurance is a way to protect yourself against possible problems regarding your rights to ownership of your property arising out of events that have happened during prior ownership of the property. It may also  help to cover the cost of defending any claims that may arise after settlement.  When you purchase a piece of real estate, you are not only purchasing the physical property itself, but also all of the prior owners’ and sellers’ rights and interests in the property, which may not be 100%.  Prior to settlement, the title company will try to determine the various rights and interest that are attached to that particular property.  There are three main types of rights and interests: 1.  Rights and interests that are recorded in public records, like deeds and mortgages. 2.  Rights and interests that are not recorded in public records but which exist by law through statutes, like mechanics liens, taxes and assessments. 3.  Rights and interests that are hidden, like unknown heirs of an estate and forgeries of critical documents in the title chain. Even the most diligent title examiner may not uncover all of the “hidden” defects in title, thereby leaving you exposed and at risk of financial loss or worse, losing your home or investment.  That is a scary thought! The most common title claims arise in the form of the third version: rights and interests which are hidden.  Consider the following scenarios:

• You arrive at settlement to finalize the purchase of a home from Mr. & Mrs. Seller.  After settlement, the real Mrs. Seller claims that her name was forged; she never agreed to nor had knowledge of the transaction and therefore still owns the property.  If you don’t have title insurance and Mrs. Seller’s claims are true, you may actually own only Mr. Seller’s interest in the property.  If the entire transaction is found to be fraudulent, you may lose your entire ownership of the property.  If you had purchased title insurance, the title insurance company might negotiate with the real Mrs. Seller and reach a settlement so that you could remain in your new home.

• Mr. Decedent owned a piece of real property and no Will can be found at the time of his death.  Mr. Personal Representative sells the piece of real property to you on behalf of Mr. Decedent’s heirs at law; his three children, A, B and C.  After settlement, a valid Will for Mr. Decedent is found stating that the real property has been specifically devised to Mr. Decedent’s good friend, Mr. Neighbor.  Mr. Neighbor now sues you, claiming that he is the true and rightful owner of the property.  If you had purchased title insurance, the cost of defending the claim made by Mr. Neighbor could be covered as well as any financial loss that you may incur.

• You have now decided to build your dream home.  However, the builder didn’t pay the roofer and now the roofer wants his payment, so he files a lien against the property.  Without a title search alerting you to this lien, and an owner’s policy protecting you, you would become responsible for paying this debt— meaning you’d be paying the roofer instead of purchasing new living room furniture.  If you had purchased an Owner’s Title Policy, the insurance company likely would have relieved you from paying that bill.

• After a months-long search, you finally find your family’s dream home—in a safe neighborhood with a great school district, and a big backyard for the swimming pool you plan to build.  You move in and hire a contractor to build the pool, but a few days into construction the contractor finds an underground utility line running right through the middle of your backyard.  You check your owner’s policy of title insurance, and find out that the title search did not discover this easement. Due to the fact that you had obtained an owner’s policy, your title insurance company may pay to have the underground utility relocated so you can build your swimming pool.

These are just a couple of instances where not purchasing title insurance may cost you in the long run.  Having an Owner’s Title Policy will provide protection against ownership challenges, errors or omissions in deeds, mistakes in examining records, missed liens, forgery and undisclosed heirs, among other things. What about the extra cost?  It’s not as much as you think!  Title insurance is only a one-time premium paid at settlement and is based on the purchase price of the property.  The protection of the title insurance continues for as long as you OR your heirs own the property. So the real question isn’t how much does title insurance cost; it is how much could it cost me if I don’t have title insurance?    

On March 5, 2014, the Maryland Senate passed SB212 (2014), historic legislation providing the protections of Maryland’s employment, public accommodations, and housing anti-discrimination laws to transgender persons. Passing by a vote of 32-15 in the Senate, the bill reportedly passed with the largest margin ever for an LGBT-rights bill in Maryland.

[i]The bill, introduced as The Fairness for All Marylanders Act of 2014, faced what many considered to be its greatest challenge in the Senate Judicial Proceeding’s committee, where it ultimately passed by a vote of 8-3 on February 20, 2014.[ii] On the heels of the Maryland Senate’s vote in favor of protecting transgender individuals from employment discrimination, the absence of such a provision in the Prince George’s County Code highlights an increasingly glaring omission for the County’s employees and residents.

What does the bill do?

SB 212 (2014) proposes to amend current prohibitions on discrimination in employment, housing, and public accommodations on the basis of race, color, religion, sex, disability, marital status, and sexual orientation under State law by including gender identity, and therefore transgender individuals, as a protected status.

The first reading of SB 212 (2014) defined “gender identity” as a “gender related identity, appearance, expression, or behavior of an individual regardless of the individual’s assigned sex at birth.” Opponents raised objections to the bill based on proposed hypotheticals suggesting that transgender people would be able to use restrooms consistent with their gender identities, as opposed to their assigned sexes at birth, creating uncomfortable and potentially unsafe environments.[iii]

Advocates have argued that to the contrary, transgender people are in fact in greater need of anti- harassment and anti- discrimination laws. The National Center for Transgender Equality and the National Gay and Lesbian Task Force found that transgender and gender non-conforming people suffer greater rates of unemployment, homelessness, and harassment than found in the general population.[iv]

Senator Getty’s amendment addressing these concerns is credited for the Act’s passing. The amendment narrows the definition of “gender identity.” It, too, was adopted by the Senate. In addition to the proposed definition for “gender identity” stated in the first reading of the bill, as adopted with amendments, SB 212(2014) provides that a person’s gender identity:

 may be demonstrated by either consistent and uniform assertion of the person’s gender identity or any other evidence that the gender identity is sincerely held as part of theperson’s core identity.

 If the Fairness for All Marylanders Act of 2014 passes the House and is signed into law by Governor O’Malley, Maryland will become the 18^th state in addition to Washington, DC that extends its anti-discrimination statutes to transgender persons.

How would SB212(2014) affect employees in Prince George’s County?

 Significantly, Md. Code State Gov’t §20-1202 provides an independent civil cause of action for discrimination under the Howard County, Montgomery County, or Prince George’s County codes in addition to the civil cause of action provided for violations of the State’s anti-discrimination statutes.[v] Likewise, Md. Code State Gov’t §20-1203 authorizes a civil action for violations of Baltimore County’s anti-discrimination laws arising under the Baltimore County code.  Distinct from the civil cause of action a complainant can raise under State Gov’t § 12-1013 for violations of the state’s anti-discrimination laws, §20-1202 and §20-1203 provide for the award of attorney’s fees and are not limited by any caps on damages.

Yet, as the General Assembly takes one step toward equal protection of civil rights for all Marylanders,  examination of each of the county codes that serve as the basis of legislatively authorized civil claims reveals that the protections sought by SB 212(2014)’s advocates are absent from Prince George’s County anti-discrimination ordinances. The Montgomery County Council modified its county code to include anti-discrimination protections for transgender people in 2007;[vi] Howard County followed in 2011;[vii] and Baltimore County amended its Code to include gender identity as a protected status in 2012.[viii] Each of the counties whose codes prohibit discrimination on the basis of gender identity therefore entitle a complainant to file a civil claim on that basis under the county code under the authority of State Gov’t §20-1202 or 1203. If SB 212 (2014) is signed into law, transgender individuals in Montgomery, Howard, and Baltimore Counties would also be able to file an additional civil claim for employment discrimination on the basis of gender identity under the State’s proposed anti-discrimination law, as well.

However, at present, there are no protections for gender-identity or expression or for transgender persons under the existing Prince George’s County ordinances prohibiting discrimination in employment , housing, residential real estate, law enforcement, education, financial lending, and public accommodations.[ix] Section 2-186 of the Prince George’s County Code defines discrimination as an act or failure to act or delay of any action regarding a person “because of race, religion, color, sex, national origin, age (except as required by State or federal law), occupation, familial status, marital status, political opinion, personal appearance, sexual orientation, or physical or mental handicap….” In so doing, Prince George’s County provides protections from discrimination in arguably the broadest scope, at least relative to its sister counties whose employees and residents are entitled to enforce anti-discrimination ordinances by filing civil claims in court.

If SB212(2014) is enacted into law, transgender employees in Prince George’s County would be entitled to file administrative charges of discrimination and lawsuits on the basis of their gender identities for a violation of the State law, but not for any violation of the Prince George’s County Code. As a result, transgender individuals filing claims of employment discrimination in Prince George’s County could be left with an incomplete remedy not equal to that otherwise enjoyed by successful complainants of employment discrimination under the county code on any other basis: without protection under the county code, transgender individuals in Prince George’s County would be deprived of the benefit of attorney’s fees and would further be subject to the limitations of the damages caps provided under State Gov’t §20-1009.

The actions of Howard, Montgomery, and Baltimore Counties appear to lay the foundation for a growing trend favoring equal protection of anti-discrimination laws for transgender employees.  No matter the outcome of SB212 (2014) at the end of this legislative session, Prince George’s County should take note of this absence in its County Code. If The Fairness for All Marylanders Act of 2014 passes, the absence of gender identity as a protected status from the Prince George’s County Code creates a gap in the remedies potentially available to transgender individuals that is not apparent for any other employment discrimination complainants.

Photo credits: http://www.davidmixner.com/2012/10/new-marriage-equality-poll-on-maryland-ballot-measure.html and  http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx

When two parties divorce (or seek custody of children), often one or both of the parties will seek child support and/or alimony. Sometimes one of the parties has been unemployed (particularly with a stay at home mother) or under-employed. But now, you will have two households, two sets of entirely separate living expenses, and additional costs – based on the salary and incomes you had while living together.

Adding to the already-frustrating multitude of complexities custody or divorce litigation involves, in many cases the unemployed or underemployed party feels indignant that he or she should change his or her lifestyle and now contribute to expenses for the household. Particularly if he or she feels that the other party was the cause of the break up.

You’ve likely seen War of the Roses with Michael Douglas, Kathleen Turner and Danny Devito. Imagine what happens when, on top of the anger and disdain for one another that already exists, the lying, cheating, philandering no good, soon-to-be-ex-spouse, tells you – “Tough luck, you need to get a job!”

Maryland Law is clear. If one parent is capable of earning an income and contributing to the support of the minor child(ren), he or she is required to do so by law under Maryland Ann., Code, F.L. Art. § 5-203(b)(1) (stating that “[t]he parents of a minor child . . . are jointly and severally responsible for the child’s support, care, nurture, welfare, and education”). The Courts have, likewise, upheld this requirement in divorce and custody cases.[1]

For example, a mother who has stayed at home for 10 years raising children may claim that she lacks marketable job skills. However, a word to the wise, “the court may impute income to a party if that party is capable of earning more income than he or she is earning at the time of the divorce.” Brewer v. Brewer, 156 Md. App. 77, 121, 846 A.2d 1 (2004)[2]

In order for the Court to determine whether a party is “voluntarily impoverished,” the Court must find that a party has “reduced his or her level of income to avoid paying support by quitting, retiring or changing jobs.” Goldberger v. Goldberger, 96 Md. App. 313, 326, 624 A.2d 1328, 1330 (1993).

In Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995), the Court of Appeals stated that “voluntary” means that “the action [must] be both an exercise of unconstrained free will and that the act be intentional.” The Court explained the need to examine the intent of the party in Goldberger:

The intent of the parent in those cases is often important in
determining whether there has been voluntary impoverishment.
Was the job changed for the purpose of avoiding the support obligation
and, therefore, voluntary, or was it for reasons beyond the control of the parent, and thus involuntary?”  Thus, a parent is voluntarily
impoverished when they have made the free and conscious choice to
render themselves without adequate resources.

“[A] parent shall be considered voluntarily impoverished whenever the
parent has made the free and conscious choice, not compelled by
factors beyond his or her control, to render himself or herself
without adequate resources.”

Goldberger v Goldberger, 96 Md. App. 313, 325-27, 624 A.2d 1328, 1330 (1993). [emphasis added].

“Factors beyond his or her control” can be extremely critical to remember, particularly if your reduction in income is based on your company down-sizing, you were laid off, or were even terminated. The Maryland Court of Special Appeals has specifically found that termination from one’s employment does not constitute voluntary impoverishment, when the individual did not intend to lose their job. Stull v. Stull, 144 Md. App. 237, 249, 797 A.2d 809, 815 (2001). In Stull, the appellant was terminated from his job for falsifying documents. Despite the appellant’s obvious misconduct, which was so reprehensible that he was precluded from receiving unemployment benefits, the Court held that the appellant was not “voluntarily impoverished” for a determination of support. The Court reasoned that regardless of whether the appellant may have intended to falsify the documents, the appellant did not intend to be terminated from his employment. Id.

Similarly, in Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 338-9 (1995), the Maryland Court of Appeals held that “misconduct on the part of an employee is not sufficient to deem a subsequent termination of employment voluntary even if the employee’s termination was a foreseeable result of the misconduct.” The Court in Wills was determining whether a father’s incarceration and resulting impoverishment was voluntary because it was the father’s free choice to commit the crime which led to his incarceration. Id. The Court ultimately decided “that the foreseeability of an action’s possible consequences were not sufficient to conclude that the [father] brought those consequences about voluntarily.” Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 339 (1995).

If you hire an attorney who is savvy to the Court’s expectations (and you should), he or she will likely tell you that you need to apply, apply, apply for jobs – regardless of whether you are really looking to obtain employment (hence the title of this blog). Reason being, the Court can determine that the unemployed or underemployed parent is “voluntarily impoverished” if he or she has refused to seek employment or work toward becoming self-sufficient. See Guarino v. Guarino, 112 Md. App. 1, 14-15, 684 A.2d 23 (1996) and Durkee v. Durkee, 144 Md. App. 161, 182-84, 785 A.2d 94 (2002).

At the time of trial, your attorney will likely provide the Court with your resume, applications, and any cover-letters you’ve prepared during the pendency of the hearing. Some attorneys even try to dazzle the Court with the weight of your efforts. “Your Honor, I have 3 inches of job applications that my client has submitted almost daily in her efforts to find employment.”) However, a good trial attorney may cross-examine you on your actual applications and whether the five pounds worth of paper was feigned attempts to obtain employment or legitimate efforts. (Hint – applying for positions well outside your scope of education, knowledge, or prior work experience may not be helpful to you on cross-examination).

Finally, when the Court conducts a hearing and determines that a party is voluntarily impoverished, the Court must make a determine of the factors enunciated in John O. v. Jane O., 90 Md.App. 406, at 422, 601 A.2d 149:

1. his or her current physical condition;
2. his or her respective level of education;
3. the timing of any change in employment or financial circumstances relative to the divorce proceedings;
4. the relationship of the parties prior to the divorce proceedings;
5. his or her efforts to find and retain employment;
6. his or her efforts to secure retraining if that is needed;
7. whether he or she has ever withheld support;
8. his or her past work history;
9. the area in which the parties live and the status of the job market there; and
10. any other considerations presented by either party.