July 29th, 2009 | Posted by Amber Small | Posted in Family Law
The Indiana Court of Appeals has reversed a lower court’s order for the second time in the same case. In Lori (Faust) Montgomery v. Dennis Faust, No. 85A04-091-CV-32, a second appeal was filed by Lori Montgomery regarding the trial court’s failure to include land and a car owned by Dennis Faust in the marital pot in the original ruling on the dissolution of the parties’ marriage. The Appellate court remanded the case to the trial court with instructions to include all of the marital property before determining the appropriate division.
On remand, the lower court issued a new order including the land and the car in the marital pot, but still ruled the division of assets the same as its prior order, returning the land and car to Faust and ordering Montgomery to pay an equalization payment to Faust in the amount of $5,451. The trial court noted this resulted in an unequal division of the assets, but claimed such division was appropriate due to the short duration of the parties’ marriage.
In its findings, the Court of Appeals agreed with Montgomery’s argument that the trial court abused its discretion by setting off all property owned by each party prior to the marriage in a “perfunctory manner” which resulted in a systematic exclusion of assets. By not including all the assets in the marital pot (or excluding some), the lower court failed to adequately consider all factors listed in IC 31-15-7-5, by which the trial court is to presume that an equal division of marital property between the parties is just and reasonable, unless evidence rebuts that assumption. The appellate court was unable to determine that the trial court had considered all of the statutory factors.
Judge Patricia Riley stated: “There is nothing in either order to suggest that the trial court considered the present economic circumstances of each spouse, the future earnings ability of each spouse, or the conduct of the parties during the marriage as related to the disposition or dissipation of their property.”
Instead of remanding the case again for further proceedings, the Court of Appeals remanded with instructions to eliminate the equalization payment from Montgomery to Faust from its dissolution decree, but affirmed the denial of attorney fees in favor of Montgomery. To read the case in detail, click the following:
Faust_Court_of_Appeals_Decision.pdf
July 2nd, 2009 | Posted by Amber Small | Posted in Business Litigation
The 7th Circuit Court of Appeals upheld the US District’s Court’s ruling in a case alleging reverse gender discrimination. In David Farr v. St. Francis Hospital and Health Centers , No. 08-3203, District Court Judge Sarah Barker decided that the there was no merit to the Plaintiff’s claim that St. Francis hospital had discriminated against him by terminating him for improper use of work computers. Farr was a respiratory therapist in the hospital’s Pulmonary Rehabilitation Department. He was the only male employee in the department staff of seven. They all shared the same computer but had different user names and passwords.
Farr was fired following an investigation into the discovery of “lurid” and “obscene” sites which had been accessed on the department’s computer. The investigation by the department showed that Farr’s user name had accessed the inappropriate sites and found that no other employees’ names were associated with the violation. The investigation also showed that Farr was the only employing working a specific Saturday when a significant portion of computer activity involved pornographic sites. Farr was suspended for five days, and ultimately fired for breaching various hospital policies.
Farr filed a grievance, and admitted that he’d accessed at least half of the sites identified on the report issued by the hospital’s IT department. However, he hired his own expert who contended that the other sites where placed on the computer by malware without his knowledge. The grievance committee upheld the termination, and in 2007, Farr filed suit alleging he was a victim of gender discrimination. Farr claimed the hospital assumed he was the only one looking at the inappropriate sites because he was the only male in the department. Judge Barker granted summary judgment in favor of the hospital in an August 1, 2008 decision, which Farr appealed.
In its decision, the federal appellate panel found that Farr’s claims didn’t hold water based on the evidence and that it was reasonable and not discriminatory for the hospital to investigate the person who was officially logged on to the computer at the times the sites were accessed. Given Farr’s admission that he had accessed at least half of the inappropriate sites, there was a nondiscriminatory basis for the employer’s action. The panel affirmed Judge Barker’s ruling, and dismissed Farr’s other claims
July 1st, 2009 | Posted by Amber Small | Posted in JHDJ Law General
July is a historically low month for donations to area food pantries. At Jocham Harden Dimick Jackson, we are partnering with area businesses, including AlphaGraphics to host a food drive from July 1-July 31. We are collecting donations of non-perishable food items to help stock the shelves at Gleaner’s Food Bank. If you are interested in participating or donating, stop by our offices or call us at 317-569-0770 to make arrangements.
