"Marital Property" and "Separate Property" under Ohio divorce law

A recent Ohio Court of Appeals opinion discussed the definition of, and difference between, "marital property" and "separate property."    These can be important definitions when the parties have been married for a long time and have worked on or bettered property each may have owned prior to the marriage.   Generally speaking, under Ohio law, the property you bring into the marriage (called "separate property") does not become "marital property" (property owned by both the husband and the wife) just because of the marriage.   If that separate property is segregated and remains largely unchanged during the marriage, it remains separate property.   If either or both of the parties work on or assist in the increase in value of separate property during the marriage, then that "appreciation" in value (but not the pre-marital portion) is going to be considered marital property.   Separate property can also lose its status as separate property (called "transmutation")  if it is "commingled" with marital property and the commingled part cannot be "traced" back to its separate property roots. Since there is no marriage class that people go to before marriage, many of our clients are stunned to find out that a portion of, or even all of, their separate property is now, because of how that property was treated during the marriage, allegedly marital property.

Slip and Fall Personal Injury Cases

We often get calls from folks who fell while walking on someone's property - and they often assume that the property owner is liable to them for the injuries they suffered from that fall. However, when applying Ohio law to the facts of many of these cases, the property owner has no liability.   Under Ohio law, in order for a property owner to have any liability to someone who is injured on that property, the injured party must prove EITHER: (1) the owner of the property knew of the dangerous condition before the injury, and that owner failed to remedy, or improperly remedied, that dangerous condition, or (2) the property owner actually "created" the dangerous condition. Further, there is a good body of law that states that naturally accumulating ice or snow does not require the owner of the property to clear that accumulation - and if you slip and fall on that naturally accumulation snow and ice, the property owner has no liability to you. Further still, if you trip and fall on a sidewalk where the "crack" is 4 inches or less, then the property owner has no liability to you. Nevertheless, many times the property owner does, for the reasons stated above, have liability to a person injured on that property. We have successfully obtained reasonable compensation for people in those situations, so feel free to contact us to see if you have a valid claim.

And, like your mother said, watch where you are going.

The only bald-headed guy in the police line-up - that ain't fair

In a recent court of appeals case, the Court held that if you are going to conduct a police line-up, and the target defendant is bald, better make sure that you have other bald-headed guys in the line-up.  The Court stated that in order for a defendant to suppress a police line-up procedure (i.e. bar the jury from hearing that the defendant was ID'ed out of a line-up), the defendant must show the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and that the identification itself was unreliable under the totality ofthe circumstances.  Given the fact that the witness did not pick out the defendant in the first line-up, and given the fact that the defendant was the only true bald guy in the second line-up, the Court found the whole process unduly suggestive and tainted.

If you are in a live line-up, take a look down the line to see the hairstyles of all of the other guys.

A reduction from a serious set of felonies to a $250 fine - what a day

We recently had a client who was charged with a set of serious felonies all stemming from a very bad night.   The defendant (who is not gay)  caught his girlfriend in a car with a gay woman who he believed was "hitting" on his girlfriend.  He got upset and opened the car door and tried to get the love of his life out of the car - and ended up only grabbing her purse away form her.   A fight and short car chase ensued, and our client was arrested by the Cleveland Police and charged with Felonious Assault, Kidnapping and Robbery.  Our client has a very good and long standing job, is in his 50's, and a conviction for this type of stuff would have lost him his job. Well, after some months of pretrial haggling and discussion, his serious felony charges were reduced to a misdemeanor, and he was fined $250.00 and sent home.   What a day for him.

Some days are better than others.

Spousal Support and Your Retirement Assets

In a recent case issued out the Cuyahoga County Court of Appeals, the Court discussed the differences between the retirement assets of the parties and the "income" that is generated from those retirement assets.   For example, there is a difference between a 401K account that has a $100,000.00 balance in it and the $3,000.00 per year amount that is generated from the investment income on that account.   While a Court cannot use the $100,000 as "income" for support purposes, it can use the $3,000.00. In this Court of Appeals case (which also involved other spousal support issues), the ex-husband argued, among other things, that since his retirement assets were awarded to him in his divorce years earlier, the Court could not use the "income" currently being generated from that retirement account for calculating a modification or termination of his spousal support (the ex-husband had filed a motion to modify his spousal support).   The Court held that while it cannot utilize the balance in the account as "income," it could use the monthly payments being sent to the ex-husband as "income" for spousal support purposes.

Something to remember when considering how you divide up retirement assets and setting support in a divorce decree.

Comparing Sentences Can be Very Important

The Cuyahoga County Court of Appeals has issued a recent opinion where the 50-year-plus sentence of a defendant was reversed because, as the Court held, the sentence was "disproportionate" to the sentences received by other defendants for essentially the same stuff.  This type of ruling is rare - because courts of appeal rarely reverse sentences set by trial judges.   However, in this case, the Court compared the sentence issued by the trial court to other sentences issued by other trial courts for similar crimes.   What was perhaps different here was that the defendant's lawyer was able to locate and point to other cases - and  this took time.   We did this recently for a client of ours accused of a serious crime (where the possible sentence was the main focus of the whole case), and we convinced the trial court NOT to impose a bigger sentence.  This type of analysis takes time - but can be more than worth it for the client.

What do You Need for a New Trial?

An Ohio Court of Appeals recently set forth the law in Ohio that applies to when a defendant asks for a new criminal trial based upon newly discovered evidence.  In State v. Brown, the Court held:

To prevail on a motion for new trial based upon newly discovered evidence, Defendant must show that the new evidence: (1) discloses a strong probability that the result of the trial would be different if a new trial were granted; (2) has been discovered since the trial; (3) is such as could not have been discovered before the trial through the exercise of due diligence; (4) is material to the issues; (5) is not merely cumulative to former evidence; and (6) does not merely impeach or contradict the former evidence.

In Brown, the Court of Appeals held that the trial court was wrong to have refused a new trial for Brown when Brown's lawyers discovered (after the trial) that the bullet in question did not match the gun involved in the crime.  It is rare that a court gives a defendant the right to have a new trial.  But medical and forensic science is evolving on almost a yearly basis, and what was not available last year is available now.   We might expect to see more of these types of decisions in the years to come.

Can a spouse testify against another spouse in Ohio?

In a recent Ohio Court of Appeals case, the Court discussed an issue that we commonly use to see on TV and the movies - one spouse testifying against another spouse.  In the old mob movies, the mobster would just marry the female witness to the crime  - and thus she would not be permitted to testify against him.  Spouses, under Ohio law, are generally NOT permitted to testify against their respective spouses when that spouse is being prosecuted for a crime.   This is called the "spousal privilege."    The spousal privilege under Ohio law has one big exception.  If the testifying spouse is the victim of the crime (for example, a victim of domestic violence), they the spousal privilege does not apply. Our advice is simple - be nice to your spouses.

Our Public Records Victory at the Supreme Court of Ohio

We obtained a rather huge victory for all Ohio residents last week.   We won a Supreme Court of Ohio case which held that we were entitled to a large number of lead poisoning records from the Cuyahoga Metropolitan Housing Authority ("CMHA").   We had sought to learn as much as we could on how many children had been poisoned by lead paint at CMHA in the last 20 years.  CMHA violated Ohio law by refusing to produce ANY records concerning leading poisoning issues at CMHA.  The Cuyahoga County Court of Appeals ordered the records produced and awarded sanctions against CMHA.  CMHA appealed to the Ohio Supreme Court - and lost.   This is a victory for our firm but also a victory for all of the citizens of Ohio - because public records are owned by the citizens of the State of Ohio - not the public employee cronies who do not want the public to know how they have failed to protect children from lead poisoning at CMHA housing.     Stay tuned for more details to follow.  We expect more nonsense from CMHA - they don't want us to see what they have either done or not done.

Read "ALL" of the Contract.

Under Ohio law, there is a doctrine called the "parol evidence rule."  This rule has nothing to do with the "parole" that a prisoner gets when he/she is released from prison early.     The "parol evidence rule" dictates that if there is a written contract between two or more parties, any previous or subsequent "oral" statements or promises made by one of the parties that is different from what is contained in the written contract, are essentially unenforceable (unless there is "fraud" involved).   The Cuyahoga Court of Appeals recently reaffirmed this rule in the case of Falivene v. Bob Schmidt Homes, Inc..  In that case, home purchasers were stuck with the strict written provisions of the purchase agreement they signed - regardless of what they claimed they were told by the home building company.    The home buyers lost this appeal when the Court applied the "parol evidence rule."  They were not happy campers, and this lawsuit soured some friendships.  The advice here is simple and obvious, you have to read ALL provisions of ALL of the contacts you sign - and perhaps have a lawyer explain some of the less-than-clear provisions.  Call us if you have problems with an issue like this.

"Abandoned" Hard Drives and "Search Warrants"

On January 17, 2012, the Ohio Supreme Court held that if a defendant abandons a computer hard drive, the police do not need to obtain a search warrant to search that hard drive.  In State v. Gould, the Court noted that the defendant had left his computer hard drive with his mother for months, and had left the State.   In light of these circumstances, the Court held that the hard drive had been "abandoned," and that police do not need to obtain a search warrant to search abandoned property.   The hard drive contained a number of child pornography images.

GPS Tracking Needs Search Warrant

On an issue that we have been "tracking" for a number of months (see our previous posts on this blog), the Supreme Court of the United States today held that police officers need a warrant before they can attach a GPS tracking device to a drug dealer's car.   The GPS device was attached for 4 weeks.   This is a case where new technology required a new decision by the highest court in the land.   In United States v. Jones, the US Supreme Court, in a rare unanimous opinion, held that before a police department attaches a GPS device to a criminal defendant's car, the police must get a search warrant.  The Court had no choice but to overturn a drug dealer's drug trafficking conviction based upon the failure of a police department to get that warrant.  

Do not interfere with the police who are arresting someone - you could get charged with "Obstruction of Justice"

The Cuyahoga County Court of Appeals recently affirmed the conviction of a woman who interfered with the arrest of her daughter.    In State v. Whitby, the Court held that a mother's act of fending off a police officer's act of arresting of her daughter (by pushing and blocking the arrest attempts) was a violation of Ohio Revise Code 2921.32.  Our advice, unless the police are deliberately injuring someone, once they begin the arrest process, don't interfere - wait for the lawyers to do their work once they get to the courtroom.

Cognovit Notes in a "consumer transaction" are illegal

The Cuyahoga County Court of Appeals recently reaffirmed that using a "cognovit note" (i.e. a promissory note that essentially gives the lender the right to get an automatic judgment without a trial) is illegal when the deal involved a "consumer transaction." A consumer transaction includes the sale of a residential home. See Agarwal v. Matthews. Be careful what type of promissory note you might be signing. A cognovit note forfeits many of the rights you would have under a regular promissory note.

New Years Eve Post

Happy New Year. Drive safely and wisely – especially over the next 48 hours. We will be open 24/7 for the next 48 hours, so call us at 800-529-1966 if you or someone you know makes a mistake or otherwise needs us. Print off the 800 phone number and keep it with you. The number: 800-529-1966

Michael J. O’Shea, Esq. Lipson O'Shea Legal Group Beachcliff Market Square 19300 Detroit Road – Suite 202 Rocky River, Ohio 44116 (440) 356-2700 – office (216) 470-8098 – cell (440) 331-5401 – fax myclevelandlawyer@gmail.com www.lipsonoshea.com

Did you "refuse" to take the DUI "test"?

Many of our clients accused of OVI/DUIs claim that they "refused" the breath ("BAC") test when they were arrested. They tell us that they "have read" that you should always refuse the "test." However, what they don't seem to know (until at least we tell them) is that the BAC test is only ONE of the tests that the officers use to gather evidence of impairment. The roadside tests they administer are also very incriminating pieces of evidence that a trained police officer uses against a DUI/DWO arrestee. What your eyes look like, what you say, how you say it, how you smell, how you look, and how you reach and grab for things inside of the car are valuable pieces of information that a trained police officer uses (and notes in his report) to investigate his/her belief that you might be impaired. Further, the "field sobriety tests" (called "FSTs") give the officer even more valuable info. The follow-the-finger/pen-with-your-eyeballs test (called the "HGN test"), the walk-and-turn test and the one-leg stand test are well recognized and respected tests (if done correctly by the police officer) of impairment. So if you have made the hard decision to "refuse" sobriety tests, remember that a trained officer is immediately looking for ALL evidence of impairment - including but not limited to the BAC test.

Please don't drink and drive - and if you do get pulled over, get good advice from an experienced DUI/DWI lawyer. Call us at 800-529-1966 24/7.

Doing the No-Lawyer ("Pro Se") Divorce

Just this past month we have had three good folks call us AFTER they did their "simple" divorce themselves at the Courthouse. They filled out the "forms" that the Court gave them and just appeared without lawyers. However, they were unaware of many things, such as the tax implications of what they were doing, and that just because the husband was assuming certain debts that those creditors would not let the wife off the proverbial hook.  Now they wanted us to "redo" their divorce so that all of these (and other issues) could be fixed. However, we have to give them the bad news. The only things that can be "modified" after a divorce is child custody and child support - and sometimes alimony/spousal support (but only if the court or the parties agreed that the court could later modify alimony/spousal support).

Then there is the pause on the phone - and then they again ask if we are sure about this. We affirm what was just stated above. Then there is a sigh, a sincere thank you and then we end the call. We hate it when this happens. The advice here is obvious.   Never ever go though a divorce without the assistance of an experienced domestic relations lawyer.  You usually spend good money rather than face large financial issues (including larger attorney fees) if you have to get the lawyer involved after the divorce.

Just so we are clear, being too drunk is not a defense in a criminal case.

In a recent appellate opinion by the Cuyahoga County Court of Appeals, still another defendant tried to assert that he can't be guilty of a shooting because he was too drunk to understand what he was doing. However, the Court held that an Ohio statute on the books since 2000 clearly held that "voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense."   So if you or someone you know is prone to blackouts or excessive drinking, be aware that Ohio law will hold you accountable for almost anything that you do while under the influence.   Something to think about while out engaging in holiday cheer.  Be careful

Another decision about arbitration - what a mess.

In a recent opinion by the Cuyahoga County Court of Appeals, the Appeals Court held that a part may invoke a contract provision requiring arbitration (vs. a lawsuit)  - even if a lawsuit between the parties has been pending for 16 months. In Pinnacle Condominiums Unit Owners Association v. 701 Lakeside LLC, the Appeals Court affirmed a trial court's ruling that "stayed" a long-pending lawsuit between two parties so that the parties can participate in "binding arbitration" of their legal dispute.  Binding arbitration involves a private arbitrator (paid for by the parties)  who hears the evidence and each side's story, and the ruling made by the arbitrator is "binding" on the parties in that they cannot(for the most part)  appeal that ruling for any errors they believe were made in the arbitration process. What was important and unique about this case was that the Court rejected an argument by one of the parties that the contract provision calling for arbitration had been "waived" by both parties participating in a court lawsuit for 16 months. What is sad about this situation is that the parties essentially spent a good amount of time and money in the court lawsuit - only to essentially have all of that work, money and time evaporate when one of the parties eventually decided to request arbitration. To make matters somewhat worse, the filing fees and arbitrator fees for this out-of-court arbitration are going to be much larger than the $100 filing fee and "free" tax-payor paid service that a judge offers.

Suggestion (as we have made before when addressing arbitration issues on our blog here): Read your contracts BEFORE you sign them and even AFTER you sign them.

Leaning into a car is not enough for a police officer to have "reasonable suspicion" that criminal activity might be afoot.

A Cuyahoga County Court of Appeals has recently ruled that just because a suspect is leaning into a car and talking to someone late at night in a known high drug activity area, does not mean that the police officer has enough "reasonable suspicion" to believe that there might be criminal activity involved. In State v. Lynch, the Court ruled that just because Lynch was leaning into a car late at night in a high crime area of Cleveland did not mean, without more, that the officers had "reasonable suspicion" to believe that a crime might be in progress. This "reasonable suspicion" holding is important because police officers may only pull a person over or detain that person if the officer involved has "reasonable suspicion" that the person is possibly involved in criminal activity. "Reasonable suspicion" is standard somewhat below the "probable cause" standard necessary for an actual arrest.

This particular ruling may have way more to do with a prosecutor's failure to get more incriminating facts into the record (there were probably more out there that were just not introduced by the prosecutor) than it does with any bright line rule of law. "Reasonable suspicion" court rulings are always very fact specific - and each case facts can be somewhat different from a previous case facts. Motion to suppress on these types of cases are often more art than law.