Lamalvaoeland's Blog

Changing Families, Changing Divorces

LaMalva & Oeland — Mon, 14 Mar 2011 18:04:21 +0000

It takes time, but eventually all shifts in the institution of marriage create shifts in divorces. This article may be foreshadowing: http://www.csmonitor.com/Business/2009/0614/p13s01-usec.html

The Institution Formerly Known as Marriage

LaMalva & Oeland — Tue, 30 Nov 2010 02:31:29 +0000

There have been a spate of articles lately reporting on the demise of marriage (see as examples http://www.suntimes.com/news/nation/2904596,CST-NWS-marriage18.article and http://news.yahoo.com/s/ap/20100928/ap_on_bi_ge/us_census_recession_s_impact_5). Perhaps we’ll see that it is greatly exaggerated, but it does cause a divorce lawyer to begin to wonder – if there are fewer marriages, there will be fewer divorces, so what does this mean for me?

Actually, what I think we will see is a broadening of the definition of marriage, the one man/one woman movement notwithstanding. Eventually, the law will catch up with justice, and will recognize that the prohibition against allowing same-sex couples to marry is obscene and, more importantly, arcane. While we as a society lament the institution of divorce, it is a very efficient way to divide property, assets and debts accumulated by two people in a romantic relationship when that relationship ends. If you have any doubt about this, ask people who own a home together but are not married and have recently broken up. While not impossible, there is no framework for these people as efficient and well-defined as divorce, and it makes the process of dividing assets and the like difficult and painful. So, as more same sex couples find their public footing and accumulate the trappings of marriage, (i.e. kids, houses and dogs), they will need a way to deal with these trappings when the relationship dissolves. In a way, society, at least a contemporary one, needs divorce. That’s where divorce lawyers come in.

Finally, if anyone thinks allowing same-sex marriage will be the downfall of the institution of marriage should come do what I do for two days. Heterosexuals are doing a fine job of mucking it up on their own. Maybe extending the right to marry to people who have been denied that right would, in fact, strengthen a re-defined, inclusive institution of marriage.

Happy Birthday

LaMalva & Oeland — Wed, 18 Aug 2010 02:41:35 +0000

When I was a second-year law student I took the Public Interest Practicum. PIP, as we called it, sought to teach through real world experience, and we were required to serve the Athens community in some capacity. I volunteered at the local soup kitchen, making sandwiches and dispensing advice, and at the homeless shelter run by the Salvation Army. It was at the shelter that I met Clark. Clark was an African-American man in his 50s from Greene County, Georgia. He was trying to get permanent housing through the local housing authority, and needed his birth certificate to complete his application. Clark was quiet and humble, and felt like he was imposing simply by asking me for help. But, he finally did – he asked me to help him get a copy of his birth certificate. This seemed simple enough, even for a green law student like me, so I asked him for some basic information – his full name and date of birth. Clark said, in response to the question about his birthday, that he wasn’t sure, but he gave me what he believed was his birth date. He was wrong. We later learned that date was his brother’s birth date, and Clark chuckled when we learned that, and when we learned his true birth date. That’s when it struck me. We only know our birth date because someone else tells us, and because we have people in our lives that love us and have the emotional and financial ability to make our birthday celebrations memorable. Clark didn’t have that. Clark didn’t have people in his life making his birthday celebrations memorable. In fact, I assume he didn’t have birthday celebrations at all. One of many children born to a poor family in rural Georgia, Clark didn’t have cake, ice cream and presents. So, when he grew up, he didn’t know his birth date.

I have never forgotten Clark, and I have never forgotten the lesson he taught me about the enormous divide between the haves and have-nots. And, every year on August 17th, I am grateful that Clark taught me to cherish the fact that I know my birth date.

The Policy of Honesty

LaMalva & Oeland — Tue, 10 Aug 2010 18:40:33 +0000

While reading the article on ajc.com about the trouble lawyer Lynn Swank now finds herself in (http://www.ajc.com/news/henry/attorney-representing-catholic-archdiocese-588965.html) I was struck by an unanticipated feeling – sympathy. No, I have never forged a judge’s signature on an order. I have never even come close to that level of poor judgment. I have, however, found myself, at times, over-worked and in over my head. During those times the temptation to do something, anything, to make a disappointed or angry client happy is strong. While I have no idea what Ms. Swank was thinking – in fact, I don’t even know Ms. Swank – I have a pretty good guess that she hadn’t done what her client wanted because she didn’t know how or didn’t have the time. I have been there, and I know the feeling that I have to take action, whatever the action is, to make it right. This is where the age-old mantra that your grandmother taught you should kick in: honesty is the best policy. Ms. Swank’s travails, (here comes the qualifier that any lawyer worth his or her salt would interpose – Ms. Swank is merely accused of wrongdoing, and is afforded the benefit of innocence until proven guilty. And, by the way, law enforcement does get it wrong sometimes, so that’s not interposed just for the hell of it), are the lesson I tell myself and I tell my clients: it is rarely the mistake that causes your downfall. It is the cover-up of the mistake that causes your downfall. I can imagine a scenario where a lawyer simply calls her client and says, “I’m sorry, I haven’t done it, I can’t do it, here’s a refund, good luck.” While this is an awfully tough phone call to make, it sure beats finding oneself in the midst of a GBI investigation, criminal charges and a Bar Association investigation sure to follow. So, listen to your inner-grandmother more often.

Ken Wynne Interview

LaMalva & Oeland — Thu, 05 Aug 2010 19:10:23 +0000

On July 1, 2010 Ken Wynne became the newest addition to the bench of the Alcovy Judicial Circuit. Announced as a judicial appointee by Governor Purdue in December of 2009, Judge Wynne’s swearing-in was delayed because of the issues with state revenues and budgets, but now formally installed he has taken to the work eagerly and with purpose. I sat down with Judge Wynne just a few weeks into the job for this interview.

Q: What was your first job after graduating from the University of Georgia School of Law?

A: I worked for Harmon, Smith & Bridges in Atlanta, which had a general civil practice. I did mainly domestic work for the firm, although I also did some commercial litigation as well. I worked there for about 14 months.

Q: What did you think of the domestic work?

A: Well, I was young and wasn’t married, so I probably had less of an appreciation for the work than I do now. Frankly, at that time, I found watching marriages dissolve and parents fighting over children to be draining.

Q: Where did you go after that job?

A: I came to the District Attorney’s Office in the Alcovy Judicial Circuit in August of 1988. Initially I handled child support enforcement and the delinquency cases in the Juvenile Courts of Newton and Walton counties.

Q: Why did you become a prosecutor?

A: I enjoyed criminal law in law school, and I found being a prosecutor gave me the opportunity to do the right thing in the cases that I handled. I had the choice, based on the facts and law presented in each case, to dismiss a case or to aggressively prosecute the case, depending on what was needed. I liked very much that ability to do what I believed was right.

Q: Before taking the bench you were the elected District Attorney for the circuit. How did you climb from the humble beginnings in the office to that position?

A: In 1990 John Ott was the District Attorney, and he was appointed to the bench. His assistant Alan Cook ran against another lawyer in the office and two other attorneys and won in a special election. We had been an office of 4 attorneys – one became the judge, one became the District Attorney, and one left after losing the race. So, I was the only one left when Alan looked around and needed a chief assistant. I was his Chief Assistant for 10 years, and when Alan decided not to run for re-election in 2000 I ran and was fortunate enough to be elected.

Q: Given that you came directly from the District Attorney’s Office, you have to sit out for a while on criminal cases. How do you feel about doing nothing but civil work for a while?

A: That’s right, we estimate I will not have a criminal calendar for about 60 days, so I have been absorbed in the civil case load. It has really been a blessing in a way, because it has given me time to re-familiarize myself with civil practice and procedure. It has afforded me the time to really focus on the cases before me, time to read each file and research the issues presented in each case. It has been the best way for me to get up to speed on the law so that I can handle these matters competently. I have really enjoyed it. It’s been fascinating because it’s a new challenge.

Q: What positives for the family law bar do you think you bring to the bench from your experience as a prosecutor?

A: A judge has to know the rules of evidence well, and I tried many, many cases in the District Attorney’s Office. I know the rules of evidence well, and I think this will benefit all lawyers, but especially family lawyers because of the sheer number of hearings and trials you typically have.

Q: What about your experience as a prosecutor will inform your judicial philosophy in the area of family law?

A: I think there is some real commonality between criminal and domestic work, and sometimes some overlap as well. In both, you are typically dealing with people who have a problem and who are unable to resolve it themselves. As a prosecutor, I had the ethical duty to seek justice, and inherent in that is the notion of fairness. I think this experience will help in the domestic arena with two entrenched parties who can not find common ground. It will be my goal to find what’s fair, and to help people part as amicably as possible, especially when they have children.

Q: What will you expect from family law practitioners that appear in front of you that maybe you will not expect from other lawyers?

A: Well, I expect all lawyers to be prepared, of course, but I think family lawyers have a special obligation to remember that, many times, there are collateral parties involved – children. While you certainly have the obligation to represent your client’s interests, I expect you to do this in a way that minimizes the damage to the children. I recognize what you do is different and more difficult at times, but on a personal note, my parents divorced when I was 7 years old, and I clearly remember the impact that had on me and my brothers and sister. I think it is incumbent on all of us to think about that.

Q: You are a blank slate to us. Tell us what we can expect from you.

A: It’s been a long time since I was in private practice, with the stress of being in different courts and multiple clients. But, I do understand the pressures of private practice, and while I certainly expect conflict letters to be filed, I understand the business of private practice added to human frailty means mistakes will be made. I will be patient unless and until I think that patience is being taken advantage of.

Also, I will issue my rulings as soon as possible, and it will be my goal to rule from the bench when possible. While sometimes I will need to take some time to consider cases, I think waiting for court rulings causes anxiety for litigants. Sometimes they just want a decision to bring closure.

Finally, you can expect me to be prepared and informed in court so that I can handle cases competently.

Q: Because of the delay in your swearing in and that you have no law clerk, you have a unique perspective on the budget problems facing the judiciary in the state. How has this impacted you so far?

A: My colleagues on the bench here have been very gracious in allowing their law clerks to rotate and help me out, so that has been a big help. I do find myself spending a lot of time just making sure all the forms are in the file that are supposed to be there, and I’m not sure that’s the most efficient use of my time. I would rather be studying points of law or closely reviewing settlement agreements.

Q: Are there things family lawyers can do in our cases to help with this?

A: So far the only thing I have really seen is in cases where the agreement proposes a shared physical custody arrangement, and one party’s income is significantly higher than the other party’s income. In spite of this disparity, the request is that neither party pay support to the other. I believe children should have the same advantages in both households, so I would ask that you consider this in these cases. Also, sending proposed orders, even in lieu of letter briefs and the like, would be helpful.

Q: What will be your goal or goals in the family law cases that come before you?

A: Some of this I have already mentioned, fairness, an amicable resolution when possible, and swift decisions when an amicable resolution is not possible. But, also I recognize divorce is just a bad situation, and I think the greatest help I can give is to make sure the proceedings are held correctly, so I plan to be prepared when I walk into the courtroom and take the bench.

Q: I guess every lawyer has what I call “If I were a judge” moments when we think we would or would not do things a certain way if we were on the bench. What promises did you make to yourself that you want to make good on now that you’re a judge?

A: I believe in the economy of words from the bench. As the judge, I am not the show. I have to control my courtroom, but I am not the show. I believe lawyers should be able to try their cases. Clearly we have the rules of evidence, and the judge has to exercise some degree of control simply to keep the case progressing, but lawyers should try the case. The less visible I am the better.

Judge Wynne has been married to Pam Wynne for 22 years, and together they have a 17 year old and a 15 year old. He remains active in his church and in the local Kiwanis Club in Covington, Georgia.

Collateral Damage

LaMalva & Oeland — Tue, 03 Aug 2010 01:06:18 +0000

In an effort to introduce the fifth and newest judge in the Alcovy Judicial Circuit (Newton and Walton Counties) to the greater family law bar, I interviewed Ken Wynne for an upcoming issue of the newsletter of the Family Law Section of the State Bar of Georgia. I asked him what he expected of those of us who practice family law when we appear in front of him that he does not necessarily expect of other lawyers. At first he said what I would’ve expected – that he expects all lawyers to be prepared. But, then he said something that I have turned over in my mind many times since the interview. Judge Wynne said he expects lawyers who practice family law to remember that many times there are collateral parties to a divorce – children – and that, while we have an obligation to represent our clients and their interests, we must always remember not to create collateral damage. These competing interests were driven home to me recently when meeting with a potential client. She asked, “How mean are you?” While I was able to deflect the question and answer it by telling her I am always very protective of my client’s interests, the question stung a little because it raises the problem of zealous representation of a client while remembering Judge Wynne’s admonition.

So, thank you, Judge Wynne, for reminding me to take care to tread lightly when I can, in the interests of collateral parties.