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Occasionally interesting cases come along and this week I came across a case where an individual wanted to change his name to “Takashi-Kaito Tai-Zaki Ato.”

In Re the Matter of the Application of: Allen LaShawn Pyron, for Change of Name, filed February 10, 2014, A13-1235. (Unpublished.)

Mr. Pyron is indeterminately civilly committed as a sexually dangerous person to the Minnesota Sex Offender Program. Pursuant to Minn. Stat. § 259.13 (2012), Mr. Pyron applied to have his name changed to “Takashi-Kaito Tai-Zaki Ato” stating that he sought the change “[t]o be able to exercise my religious freedoms of the name change process without having to explain myself.” Given Mr. Pyron’s criminal background, the State of Minnesota objected “arguing that the name change would compromise public safety by hindering accurate record keeping and future investigations.” The district court denied Mr. Pyron’s request and Mr. Pyron appealed.

According to Minn. Stat. § 259.13, when a convicted felon requests a name change, the prosecuting authority or the attorney general may object “on the basis that the request aims to defraud or mislead, is not made in good faith, will cause injury to a person, or will compromise public safety.” Once this objection is made, the burden is on the applicant to prove there is no basis for denying the request. If the denial, however, would infringe on the applicant’s constitutional rights, then the name change request must be granted.

Mr. Pyron argued that his proposed name change would not compromise public safety but he did not provide a transcript of the district court hearing with his application. Without the transcript the Appellate Court had no basis to conclude that the district court had clearly erred in its decision.

Mr. Pyron also argued that the denial of his name change infringed on his constitutional right to freedom of religion. The Appellate Court reviewed “whether (1) the applicant’s religious belief is sincerely held, (2) the state regulation burdens the exercise of religious beliefs, (3) the state interest in the regulation is overriding or compelling, and (4) the state regulation uses the least-restrictive means.” The Court found no evidence of Mr. Pyron’s religion, that he held sincere beliefs, or how changing his name would impact his religion. The Court upheld the district court’s decision to deny Mr. Pyron’s application for a name change.

The materials on this Web site are for informational purposes only and do not constitute legal advice. Transmission of the information on this Web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. You should not rely upon this information without seeking professional counsel.

The transmission of any information to our office does not create a lawyer-client relationship. If you have not received a written statement from us that we represent you, do not send us information concerning a legal problem or question, as that information may not be privileged or confidential.

The Minnesota Court of Appeals recently held that an evidentiary hearing (trial) is not necessary when the district court addresses whether the custodial parent can move children out of state. This issue typically appears after a divorce or custody matter wherein the non-custodial parent has court ordered parenting time and the custodial parent wants to move out of Minnesota.

Anh Phuong Le v. Holter, 838 N.W.2d 797 (Minn. App. 2013).

Le and Holter were married in 2001 and in 2009 they were divorced. The parties were granted joint legal custody and Le was granted sole physical custody. Holter had parenting time every other weekend and one overnight during the week.

On July 16, 2012 Le filed a motion to move the children out of state to California, or in the alternative, to order Hennepin County Family Court Services to perform a custody evaluation. On July 27, 2012 Holter filed a responsive motion requesting that Le’s motion be denied. On July 30, 2012 both parties and their respective attorneys appeared for a hearing during which the attorneys argued for and against Le’s motion to move the children. Neither party called witnesses.

In her affidavit, Le claimed that she was struggling to find employment in Minnesota, her unemployment was expiring soon, her chances to find employment would be better in California, and that living near her family would benefit the children by exposing them to the Vietnamese culture. The district court denied her motion finding that she had not met her burden of proof that it was in the children’s best interests to move to California. The district court addressed each of the eight factors listed in Minn. Stat. § 518.175, subd. 3(b) (2012). Le appealed claiming that the district court was required to hold an evidentiary hearing before ruling on the merits.

The Court of Appeals affirmed the district court citing that the statute does not impose a requirement for the district courts to hold evidentiary hearings for a removal out of state. Furthermore, pursuant to the Rules of Family Court as set forth in the Minnesota Rules of General Practice 301.01(a), (b)(1), (2), and (8) it is “presumed that non-contempt motions will be submitted on affidavits, exhibits, subpoenaed documents, memoranda, and arguments of counsel.” Requests for oral testimony must be remitted to the court prior to the motion hearing.

In this case, Le (and Holter) never requested an evidentiary hearing and the rules permit a hearing based solely on affidavits and oral arguments. Le argued that based on case law the district court must conduct an evidentiary hearing once the court finds there is a prima facie case for moving out of state. This reasoning; however, is based on custody modifications which is a different statute than the move out of state statute.

The moral of the story? Whether motioning to move children out of state or responding to such a motion, make sure the affidavits are thorough and contain all evidence that substantiates that it is in the children’s best interests to move.

The materials on this Web site are for informational purposes only and do not constitute legal advice. Transmission of the information on this Web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. You should not rely upon this information without seeking professional counsel.

The transmission of any information to our office does not create a lawyer-client relationship. If you have not received a written statement from us that we represent you, do not send us information concerning a legal problem or question, as that information may not be privileged or confidential.

Effective January 1, 2014 the Minnesota Statutory Short Form Power of Attorney form changed slightly so now is a good time to review what exactly a Power of Attorney is.

In Minnesota, Powers of Attorney are subject to the provisions of Minnesota Statutes, Chapter 523. The breed most of us may be familiar with is the “Statutory Short Form Power of Attorney” based on Minnesota Statutes Section 523.23.  In order to get to know this breed better, let’s review some of its basic features. The person who grants the authority to act in his or her behalf to another person is called the “principal”. The person who holds a power of attorney authorizing him or her to act in behalf of another is called the “attorney-in-fact.”

Another feature is that the power of attorney is valid only if a competent adult (the principal) signs and dates the power of attorney giving another the written power to act as their attorney-in-fact. A competent adult means an adult who is not incapacitated and is not subject to an appointment of a guardian or conservator. In plain English, your crazy Uncle Eustis who talks to trees and communicates with Martians most likely cannot validly give another adult the power to act as his attorney-in-fact.

Another feature is that the power of attorney can be “durable” or “non-durable”. A durable power of attorney means that the power of attorney continues to be valid even if the principal becomes incapacitated or incompetent after granting it. A non-durable power of attorney ceases to be valid if the principal becomes incapacitated or incompetent. Again, in plain English, if Uncle Eustis signs a non-durable power of attorney while he is sane and then he walks into a tree causing him to go into a coma, the power of attorney is likely no longer valid since he would probably be considered incompetent.

Before Uncle Eustis becomes incapacitated or incompetent, he can sign the power of attorney which gives broad and sweeping powers to the attorney-in-fact. The powers that may be granted cover many areas including transactions involving real property, personal property, bonds, shares, commodities, banking, business, insurance, beneficiary transactions, gifts, and fiduciary transactions. The Statutory Short Form Power of Attorney may also authorize the attorney in fact to act in behalf of the Principal as to claims and litigation, family maintenance, benefits from military service, records, reports and statements. (Minnesota Statute Section 523.24 provides a definition for all these powers and this blog will not address them in depth so if you wish further information on this, contact an attorney.) This feature of the power of attorney is essentially the body since these powers guide and control what the attorney-in-fact can do on behalf of Uncle Eustis.

How long Uncle Eustis’ power of attorney continues depends on not only whether it is durable or non-durable but who is the attorney-in-fact and how long Uncle Eustis lives. For example, if Aunt Hazel, Eustis’ wife, is his attorney-in-fact but she files for divorce, the power of attorney terminates upon the commencement of the divorce (also upon separation or annulment of the marriage). On the other hand, if Aunt Hazel never starts a divorce but Uncle Eustis dies from a heart attack while playing a tough game of Scrabble, the power of attorney terminates upon his death. Uncle Eustis also has the option of having an expiration date for the power of attorney. These features must be taken into consideration when deciding who to designate as the attorney-in-fact. In fact, more than one person can be designated as the attorney-in-fact and other individuals can be designated as successor attorney(s)-in-fact in case the attorney-in-fact dies, resigns or is otherwise unable to serve.

This blog briefly describes the various features of a power of attorney demonstrating that Uncle Eustis (and you) should give these features consideration before signing a power of attorney. For further information and advice on what might work best for your situation, please contact an attorney.

The materials on this Web site are for informational purposes only and do not constitute legal advice. Transmission of the information on this Web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. You should not rely upon this information without seeking professional counsel.

The transmission of any information to our office does not create a lawyer-client relationship. If you have not received a written statement from us that we represent you, do not send us information concerning a legal problem or question, as that information may not be privileged or confidential.

Failure to Pay Child Support May No Longer be a Crime

The Minnesota Supreme Court issued an opinion last week that totally changed the prosecution for Minn. Stat. § 609.375, Nonsupport of Spouse or Child.

State of Minnesota vs. Larry Allen Nelson, ____ N.W.2d ________ (2014)

According to Minn. Stat. S 609.375 the crime of nonsupport of spouse or child is defined as “Whoever is legally obligated to provide care and support to a spouse or child, whether or not the child’s custody has been granted to another, and knowingly omits and fails to do so is guilty of a misdemeanor, and upon conviction may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $1,000, or both.”   Further on in the statute it defines a gross misdemeanor violation and a felony violation but still the crime requires that the nonsupport is based on the legal obligation to provide “care and support” and that is what this case is all about—“care and support.”

Historically counties on behalf of the State of Minnesota had the ability to charge an obligor with this crime after attempting to obtain contempt orders against obligors who have failed to pay their child support obligations. In this present case, Mr. Nelson was convicted of a felony for failing to pay his child support obligation. He appealed it claiming that the State “did not prove beyond a reasonable doubt that he omitted and failed to provide care to his children.” In a split decision, the Supreme Court agreed with him and reversed his conviction.

The Supreme Court found that the word “care” “refers to those nonmonetary legal obligations that require watchful oversight, attentive assistance, or supervision.” In other words, it is not referring to child support. The State introduced evidence that Mr. Nelson failed to “support” his children by not paying his child support but the State did not introduce evidence that Mr. Nelson did not “care” for his children. As a result, the State did not meet their burden. Due to this recent interpretation of the statute, the legislature will likely address the statute to allow the State to prosecute without having to prove “care” was lacking.

Interestingly, some form of this statute has been around for many years. In September 1963 a portion of the statute read as follows:

Whoever is legally obligated and able to provide care and support to his wife who is in necessitous circumstances, or his child, whether or not its custody has been granted to another, and intentionally fails to do so is guilty of non-support of said wife or child, as the case may be, and upon conviction thereof may be sentenced to imprisonment for not more than 90 days or to payment of a fine of not more than $100; if failure to provide care and support to a minor child or a pregnant wife continues for a period in excess of 120 days such person is guilty of a felony and may be sentenced to imprisonment for not more than five years.

Obviously the legislature has taken this very seriously for over 50 years.

The materials on this Web site are for informational purposes only and do not constitute legal advice. Transmission of the information on this Web site is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. You should not rely upon this information without seeking professional counsel.

The transmission of any information to our office does not create a lawyer-client relationship. If you have not received a written statement from us that we represent you, do not send us information concerning a legal problem or question, as that information may not be privileged or confidential.

When I have a family law case that involves child support and/or spousal maintenance, I always recommend to my clients that they apply for child support services (if they do not already have a child support case open through their county).  Child support services are helpful for the obligee (the person receiving the payments) as well as the obligor (the person who is paying).

What are child support services?  The Minnesota Department of Human Services (DHS) Child Support Enforcement Division is the umbrella agency for all the county child support offices.  As stated on their website:  “Minnesota’s child support program is county administered and state supervised. The state office sets policy, maintains a statewide computer system and payment center, disburses child support to families, monitors program performance and supervises Minnesota’s child support program. County child support offices administer the program, provide services and manage cases by working with parents to establish and enforce support orders.”  “Child support agencies helpestablish paternity, get anorder for support,enforce an existing order, collect payments and more.” (The Minnesota Department of Human Services (DHS) is a great resource for answering this question:  http://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_000160#.) 

Once my clients have an order for child support, they can apply for full child support services using this application or by contacting their county’s child support agency:  https://edocs.dhs.state.mn.us/lfserver/public/DHS-1958-ENG. As of 2014 if the applicant is not receiving public assistance, the applicant must pay a $25 application fee and a 2% recovery fee (2% of the funds collected).  If the applicant or their minor children are receiving public assistance, then there is no charge.  The child support agency has many enforcement remedies such as contempt proceedings for non-payment of support, income withholding, tax intercepts, and driver’s license suspension.  (For a complete list see: http://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_008810#.)

If my clients have a spousal maintenance only order (no child support), an income-withholding case can be opened using this application:   https://edocs.dhs.state.mn.us/lfserver/public/DHS-3164-ENG. As of 2014, a monthly $15 fee is paid by the obligor through income withholding for income withholding-only services and there is no application fee for the applicant.  In spousal maintenance only cases (also known as non-IVD cases); however, the child support agency will not initiate the income withholding.  That must be done by my client or, as is typical, I do the necessary paperwork.  For my client’s I have sent the income withholding notice found at this site to the obligor’s employer:  https://edocs.dhs.state.mn.us/lfserver/Public/DHS-5785-ENG. Once the income withholding commences, the county child support agency will monitor the income withholding but the agency will not automatically implement a cost-of-living adjustment for spousal maintenance.  A packet addressing cost-of-living adjustments can be found at:  http://www.oesw.leg.mn/cola/COLAPacketrev092014.pdf.

How can child support services benefit the obligor?  Part of the issue of child support and spousal maintenance is keeping track of how much is owed and how much is paid.  Child Support Enforcement computer system keeps track of all payments and the balance due.  When I was a child support officer I would run into obligors who paid the obligees directly; however, without proof of payment they did not get credit for those payments if the obligee claimed the payments were never made.  Using the services of the child support agency helps to avoid this situation.

Another benefit to the obligor (and obligee) is that if the obligor (or the obligee) believes there has been a substantial change in his/her circumstances making the child support obligation unreasonable and unfair, the obligor can request that his/her obligation be reviewed by the child support agency.  This site explains this situation well:  http://www.dhs.state.mn.us/main/idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_008812.  

This blog provides a brief overview of child support services and how the child support agency can assist obligors and obligees.  I encourage the reader to visit the DHS website for further information.  Please keep in mind that the statutes upon which these described child support services are based occasionally change so any reader of this blog should check out the DHS website for updated information, contact their child support officer (if he/she has an open child support case), or contact an attorney regarding his/her individual case.  Once child support and/or spousal maintenance is ordered, both the obligor and the obligee can take advantage of the child support services provided by the State of Minnesota.

“How long will this take?”

“How much will this cost?”

This are the two most common questions I get during a consultation.  My answer to both questions?  “I don’t know.  It depends on you and your spouse.”  Let me explain.

Let’s start at the beginning so that my answer makes sense.  A divorce starts with a Summons and Petition for Dissolution of Marriage.  The Summons is kind of like an announcement which informs the party being served (the respondent) that the petitioner is commencing a divorce, the respondent has 30 days to respond to the Petition or the divorce may go by default, that the divorce may involve real property (i.e., house, cabin), insurance is to remain the same, possessions are not to be sold except by agreement or for the necessities of life, parties may have to use Alternative Dispute Resolution (i.e., mediation), and if there is a dispute over the custody of the children, the parties may have to take a parenting time class.

The Petition is the nuts and bolts of the divorce.  It contains identifying information about the parties, their children, their assets, and their debts.  For instance, the Petition contains the parties’ names, addresses, date of birth, when and where they were married, date of separation, whether they are in the military, whether they have lived in Minnesota a minimum of six months, if they are employed and where, and their approximate income.  The Petition also identifies any minor children, vehicles, retirement accounts, homes, cabins, bank accounts, and debts.  At the end of the Petition, the petition states what she/he is seeking such as a divorce, spousal maintenance, child support, custody of the children, division of assets and debts, and attorney fees.  Each Petition is tailored to the facts of each divorce.

The drafting of the Summons and Petition do not normally take too long; however, the time involved in drafting these documents (meaning attorney fees) can be affected by the client.  If the client does not initially supply all the requisite information and the attorney has to ask and ask again for the information, this increases the attorney fees and the time involved.  Additionally, if the client continuously requests changes to the Petition, that affects the time involved and the attorney fees.  Of course, the client should never not request a necessary change to the Petition to save money.  The Petition should always contain complete and correct information.

Once the Summons and Petition are complete and signed by the client and attorney, then personal service must be done on the respondent.  This can be done in a couple different ways.  Personally, if it appears that the respondent will cooperate, I like to send out the Summons and Petition by mail with an Acknowledgement of Service that the respondent can sign in front of a notary and return to me.  This option of personal service tends to start the divorce in a somewhat amicable way with the hope that the divorce can be at least somewhat harmonious.  Another service option similar to the first is to see if the respondent is willing to stop by my office to pick up the Summons and Petition.  If neither of these options will work (i.e., the parties are separated and not speaking to each other), then a professional process server, the sheriff’s department or an adult friend, relative, co-worker can serve the respondent.  The petitioner cannot do the personal service.  There is a charge for the process server and the sheriff’s department.  If it is difficult to serve the respondent, then that increases the costs and the time involved.  Finally, if the respondent’s location is unknown, service can be done by publication.

It is after the Summons and Petition are served that generally determines how fast a divorce can be done and what the final cost will be.  If the petitioner and respondent are in agreement about the terms of the divorce, then a Stipulation can be drafted, signed, and filed with the Summons and Petition.  If there are not children involved, a hearing is not required (but the judge still has the authority to schedule a hearing if she/he determines one is necessary).  If there are children involved and if either the petitioner or respondent is not represented by an attorney, then a hearing is required.  Once a Stipulation is filed and if no hearing is scheduled, then the divorce could potentially be done usually in three to four weeks depending upon the judge’s schedule and workload.  If a hearing is scheduled, then the hearing is generally scheduled within six to ten weeks after the filing of the Summons and Petition.  Once the hearing has been held, the divorce is usually complete that day or soon thereafter.

If the parties cannot agree on the terms of the divorce, then more time and more attorney fees will occur.  At this point the parties might go through mediation (incurring the costs of the mediator), Discovery is done (the formal exchange of documents), motion for temporary relief (i.e., temporary child support), attend temporary hearings, opt into Early Neutral Evaluation (fees for the evaluations), attend a pre-trial, have a custody evaluation, appraisal and/or vocational evaluation, and more.  Each of these involves time and some involve drafting legal documents, appearances, court hearings, hearing preparation, etc.  This is what drives up the costs of divorces and increases the time to conclude the divorce.  In some circumstances, it is cost effective to incur upfront costs if that means that it may help resolving the divorce.  Ultimately, if the parties cannot agree on all the terms of the divorce, a trial is necessary and a trial is expensive.  In a divorce, if the parties want to avoid the time, expense, and stress of a trial, both parties need to compromise.

“How long will my divorce take?”  It depends on whether you and your spouse can compromise and whether you both can compromise quickly or if it takes the assistance of others (attorneys, mediators, appraisers, judge).

“How much will my divorce cost?”  Ditto to the above.

This blog is based on my experience BUT every divorce is different.  I have represented divorce clients where the parties have already worked out the terms of their divorce and I just make sure the terms are pursuant to statutes and case law, draft all the documents, and (if necessary) appear for a default hearing.  These cases have been done in two to three months and have been inexpensive (in comparison to more extensive cases).  I have also represented divorce clients where the parties do not come to an agreement, it takes well over a year, and we have a trial.  These cases cost thousands of dollars and take a lot of time.  Having a consultation with an attorney helps clients to understand the potential course of their divorce.  No attorney can accurately predict exactly how or when a divorce will resolve nor should this blog be taken as a prediction for any divorce.  Each divorce has a life of its own and only until it is done will anyone know exactly its course.  If you are contemplating a divorce, I advise you to consult with an attorney.

While people are going through a divorce, emotions can run wild, words said, and animosity may rocket.  None of this helps settling a divorce.  Below are a few guidelines:

1.      Do not post on any social media comments about the divorce, your spouse, your spouse’s girlfriend/boyfriend, or the children.

2.    Do not get your new girlfriend/boyfriend involved.  Better yet, do not get involved with another person romantically until the divorce is done.

3.     When speaking to your spouse, be polite.

4.     When texting your spouse, be polite and stick to the subject.  No threats, no swearing, no arguing, no discussing new romances.

5.     Do not involve the children.  This means you do not interrogate the children when they come home from the other parent’s house, you do not tell the children about your marital woes, you do not ask the children where they want to live (what children should have to make that decision), you do not tell the children about the status of the divorce or discuss child support, and you do not malign your spouse to the children.  In other words, the children should not be involved.  This is not their divorce and you want your children to get through this as unscathed as possible.

6.     Do not argue with your spouse.  If there is a divorce/child/finance issue that you need to discuss with your spouse but cannot, have your attorney communicate for you.  If you do not have an attorney, you can use the services of a mediator.

7.     Encourage the children to see the other parent (unless, of course, if there has been abuse or if the children would be endangered).

8.    If necessary, consider counseling for yourself to help with the stress of a divorce.  If the children appear to be affected adversely, have the children see a counselor or therapist.

9.     Do not involve the children’s friends, teachers, grandparents, relatives, or neighbors.

10.Do not use drugs or alcohol to help you through this stressful time.

11. Even if your spouse threatens, swears, defames you, and is out of line, you MUST not react in kind.  Just because your spouse is acting inappropriately does not give you permission to act inappropriately.

12.If you suspect that your spouse may accuse you of abuse, always have another adult with you when you pick up or drop off your children.

Basically it all comes down to the Golden Rule:  Treat others as you would have them treat you.[i]

You’re in the midst of a divorce.  You’re having a dispute with your neighbor.  You’re having a disagreement with your business partner.  What do you do?  Mediation is one resource that might help.

Who is a mediator?  A mediator is considered a neutral who helps people to overcome a conflict, disagreement, or dispute.  The mediator does not represent either party.   In Minnesota, mediators are not licensed or certified; however, many mediators have gone through training.  In Minnesota a person can go through 30 hours of training for civil mediation or 40 hours of training for family law mediation.  Sometimes a mediator is an attorney but this background is not required and there are mediators with therapy, counseling, or social work backgrounds.

What is mediation?  Mediation is a form of Alternative Dispute Resolution (ADR).  The mediator facilitates communication between parties promoting a resolution. 

When use mediation?  Mediation can be useful for resolving conflicts.  For instance, mediation is useful to resolve parenting time disputes, custody matters, and other parenting time issues.  It can also be used for neighborhood conflicts, business issues, and community matters.

Where is mediation done?  For family law matters, typically mediation is done in an office setting or some place that is private and yet comfortable for discussions.  Mediators may use their own offices or may travel to another setting such as an attorney’s office.

Why use mediation?  Mediation can help improve communication between the parties, resolve issues, avoid litigation, and save money.  It allows individuals and not a stranger (i.e., judge) to make decisions. 

Worthwhile?  According to the National Conflict Resolution Center’s website, mediating a divorce can substantially keep the costs down, centers on the children, confidential information remains confidential, divorces are done faster, and is less stressful than litigating the divorce.  http://www.ncrconline.com/Divorce/MediationVsLitigation.php

Our law firm offers family law mediation for divorces, custody issues, parenting time issues, and other family centered matters.  Feel free to contact our office to schedule mediation.