Posted on July 01, 2011 in Divorce

In our June 28, 2011 blog we discussed how Courts in Maryland seem to be divided on whether same sex couples legally married in other states should be granted a divorce in Maryland. To confuse matters even more, as reported by the Maryland Daily Record on June 24, 2011, a criminal Judge has ruled that same sex couples are permitted to assert their spousal privilege in criminal matters. So while some family law Judges may not recognize same sex couples as spouses, it appears that some criminal Judges are. In the Washington County case, the lesbian partners were married in Washington D.C. Recently, one has threatened the other with violence, and therefore was charged with assault. However, in criminal matters spouses can invoke their right not to testify against their spouse. In this case, the victim of the alleged threat has asked to assert her privilege not to testify against her partner. The Judge has recognized the partners as spouses and allowed her to do so. The Judge specifically ruled that “Maryland generally recognizes a marriage as valid as long as it was valid in the jurisdiction in which it took place.”

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 Posted on June 30, 2011 in Criminal Defense

This week, a judge sitting in the Circuit Court for Harford County, Maryland ruled after a lengthy motion’s hearing that the prosecutor violated my client’s due process rights. The result was that all charges including attempted murder and first degree assault were dismissed. This case involved some unique facts and circumstances that if appealed, may garner some attention by the appellate courts.

Pertinent Facts:

On May 22, 2009, a district court charging document was issued by the Harford County police charging the Defendant with assaulting his wife on May 20, 2009 and charging him with the attempted murder of his brother in law on May 21, 2009. The Defendant was held without bail from May 22, 2009 until June 10, 2009 when bail was set at $25,000. The Defendant paid a bondsman and was released. On that date, the charges with respect to the incident with his brother-in-law were dismissed. At that time, the State dismissed the charges because the brother-in-law was on active duty and soon to be deployed out of the country. Thereafter, in October, 2009, the Defendant’s wife invoked her marital privilege and the Defendant was found not guilty of assaulting her.

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 Posted on June 30, 2011 in Medical Malpractice

A recurring controversy in the military is a legal doctrine – called the "Feres Doctrine" – which forbids any active-duty personnel from filing a medical malpractice case against military doctors. In the past, the United States Supreme Court declined to hear any challenges to the doctrine, but that might change as soon as this week. The Supreme Court decision of whether the Justices will hear a case could come as early as this week.

The Feres Doctrine was created from a consolidation of three cases in the 1950’s that netted the practical effect of barring military personnel from collecting damages for any personal injuries from the United States Government. The Feres Doctrine also prohibits family members of these of service men and women from filing wrongful death or loss of consortium actions when a service member is killed or injured due to medical malpractice.

The theory behind the doctrine is that there are other ways military members are compensated for their injuries or death. An example is the Veteran’s Administration. If a military member is injured while serving, they are referred to this organization for medical care and other services.
The case that’s instituting this potential second-look at the long standing doctrine is being brought by the family of an airman in Sacramento. The man, who was diagnosed with acute appendicitis, was left in a persistent vegetative state allegedly due to medical malpractice. The family argues that they should not be denied the ability to bring a medical malpractice action because the man survived the surgery; it was the subsequent breathing complications that arose and ultimately led to his current condition when a nurse negligently put a breathing tube into his trachea instead of his esophagus.

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 Posted on June 28, 2011 in Family Law

On June 24, 2011 New York passed the law allowing same sex couples to wed in their state. New York is the sixth state to allow same-sex couples to wed, following Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and Washington D.C. Like the bill that was proposed, but failed, earlier in Maryland this year, the law in New York will call for religious exemptions, meaning that there will be strong protections in place for religious groups that oppose gay marriages. New York does not have a residency requirement for marriage, so commencing July 24, 2011 it is predicted the state will see a lot of same sex couple weddings.

For more information, contact Monica Scherer, Esq. at 410-625-4740

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 Posted on June 28, 2011 in Divorce

As we had previously reported in our March 1, 2010 blog the Maryland Attorney General issued an opinion in February 2010 that states Maryland should recognize same sex marriages performed legally in other states as valid marriages in Maryland. However, the bill to allow same sex couples to marry in Maryland did not pass in the legislature this term. This has left Maryland Courts in limbo with how to handle same sex couples who file for divorce. Local news station, WTOP, reported on Friday, June 24, 2011 that a local Prince Georges County same sex couple was recently denied a divorce based on “the unnatural circumstances of their marriage.” The Judge specifically stated in his opinion “to recognize the alleged marriage would be contrary to the public policy of Maryland.” The Prince Georges County couple has filed an appeal with the Maryland Court of Special Appeals.

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 Posted on June 25, 2011 in Family Law

Most family law matters, such as divorce proceedings, and custody proceedings, do not involve the Maryland criminal system, or involve any imminent punishment such as jail time. However, when a non-paying child support obligor (parent who is supposed to be paying child support) is brought to court after the child support obligee (parent who is supposed to be receiving child support) files a Petition for Contempt, that obligor may be sentenced to jail time. Because this obligor faces jail time at this contempt proceeding, the proceeding, while civil in nature borderlines a criminal proceeding because of the punishment that can be imposed. While criminal defendants who cannot afford an attorney have the option of obtaining a public defender, civil defendants in most cases do not. Therefore, it has often been a question whether these non paying child support obligors are entitled to an attorney due to the threat and/or possibility of incarceration?

On Monday, June 20, 2011 the Supreme Court of the United States issued an Opinion on this very question. As the New York Times reports, "The Supreme Court on Monday gave a complicated answer to the simple question of whether poor people facing jail time for failing to pay child support are entitled to court-appointed lawyers." The Supreme Court case, Turner v. Rogers, involved in a man who had been sent to jail numerous times after civil contempt proceedings for his failure to pay child support. He was not represented by an attorney at these hearings. The Supreme Court ruled that there is not an automatic right to counsel in these civil contempt proceedings, however cautioned that if the opposing side (the obligee) has an attorney then it may be a different story. The Court cautioned that courts should warn those facing civil contempt that their non payment is a "critical issue."

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 Posted on June 24, 2011 in Medical Malpractice

In August 2000, a Maryland patient visited her gynecologist and informed her that she was experiencing abnormal bleeding. The gynecologist, Dr. Moen, ordered an ultrasound to help her determine the cause of the bleeding, but did not perform an endometrial biopsy. The ultrasound was performed and subsequently interpreted by a radiologist, Dr. DeCandido. When interpreting the ultrasound, Dr. DeCandido did not notice and report a mass located on the patient’s right ovary that measured 1.5 centimeters.

Following these procedures, the patient continued to experience physical problems, specifically pelvic symptoms and irregular bleeding, and complained to Dr. Moen of the same. Approximately a year and half later, Dr. Moen performed an endometrial biopsy of the patient’s uterus and discovered that the patient had endometrial cancer. After being diagnosed with cancer, the patient began treatment with a gynecological oncologist at the Johns Hopkins Hospital. Despite an operation and other treatment, the patient ultimately died approximately five and a half years after she first complained of her symptoms to Dr. Moen.

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 Posted on June 23, 2011 in Divorce

Many clients come to me unclear as to their rights to their marital home. If your home is owned and was purchased during your marriage, it is a marital home. Martial property is defined as “the property, however titled, acquired by 1 or both parties during the marriage.” Maryland Code, Family Law § 8-201(3). Therefore, absent a protective order, discussed in our August 2009 blog, no one has the authority to make their spouse leave the home. If your home is rented and both names are on the lease then no one has superior rights over the other and therefore, no one has the authority to make their spouse leave the rented home.

If the parties come to an agreement that one spouse will leave, that is a different story. However, many individuals are “kicked out” of their marital home by their spouse because they are not aware of their rights. If you feel it is better that you leave the marital home, then you should do so, however, you are not barred from re-entering your home and may do so at any time. If your spouse changes the locks to your home then I would advise you contact the police to assist in re-entry.

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 Posted on June 23, 2011 in Divorce

As a follow up on our June 10, 2011 blog more regarding adultery and introducing a new relationship to your child(ren), we thought it may be best to touch on dating during your divorce proceedings. Typically, we advise clients to refrain from dating while their divorce is pending and we do so for several reasons.

First, as explained in the previous blog, it could be considered adultery to be dating while married if your spouse can prove the elements necessary to establish adultery. Although parties may be separated while waiting for a divorce, they are still technically married and therefore, it is still considered adultery, which is both a ground for divorce and a crime in the State of Maryland.

Second, it may not be what is in the best interest of your child(ren) and if you are not putting your child(ren)’s best interest first then you may be facing an uphill battle if custody is an issue in your matter. While dating may not offend a Judge, it will not be helpful to your case if the Judge feels that your children are being negatively affected by your dating life and you have still chosen to partake in it. Even if the individual you are dating is wonderful and wonderful to your child(ren), your children are still going through a major adjustment period and to have one or possibly two new individuals then become a part of their homes and time with their parents may not be what is best. Additionally, while your children may not overtly be exhibiting problems as a result of your pending divorce, it is best to be able to focus all of your attention on them during your time with them to be aware of any issues they may be experiencing.

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 Posted on June 21, 2011 in Criminal Defense

As an Aggressive Maryland Criminal Defense Attorney, I have represented hundreds of people over the last 15 years who were charged with domestic violence assaults. Before that, I prosecuted hundreds more as an Assistant State’s Attorney. These cases are among the most difficult cases criminal defense lawyershandle because prosecutors are under tremendous pressure to prosecute these cases aggressively. There is simply no quicker way for a prosecutor to find him or herself out of a job than failing to prosecute one of cases only to have the defendant assault the victim again.

For this reason, even seemingly minor cases resulting in little or no injury are often prioritized by Assistant State’s Attorneys for aggressive prosecution. I had a case falling into this category last week in the District Court in Baltimore County. Here are the facts:

My client was estranged from his wife of only one year when the alleged incident occurred. My client and his wife had shared a house when they were together but my client had moved in with his father when they separated but he left some of his possession in the marital home including a big screen television. On the date of the incident, he returned to the home with his father to retrieve the TV. When he arrived he knocked on the door and his estranged wife let him in. He and his father advised her why they were there at which point she told him that she wasn’t going to let him take the TV. He advised her that he purchased the TV prior to the marriage and that it was therefore obviously his and that he wasn’t leaving without it.

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