What would you do if you discovered your spouse was being unfaithful and you wanted rock solid evidence to present to your divorce lawyer? Be careful not to go to far into your spouse's computer or you may run afoul of applicable wiretapping and surveillance laws.

A recent federal appellate decision from the 7th Circuit in Chicago held that a wife's unauthorized access to her husband's email account possibly violated the federal wiretapping laws. The couple was embroiled in a high-conflict divorce featuring allegations that husband was a serial adulterer.

In the county family court, husband sought discovery of all evidence that supported wife's adultery allegations. Wife obliged, producing a series of damaging emails between husband and several other women. During this discovery, husband learned that wife placed an "auto-forward" rule on husband's email so that, unbeknownst to him, all of his emails were forwarded to wife.

Getting creative, if not desperate, husband filed a lawsuit in federal court against wife and her divorce attorney on the basis that wife's capture of husband's email, and her lawyer's disclosure in the divorce proceeding, violated the federal wiretapping and surveillance act. The federal district court, however, dismissed husband's federal lawsuit.

In reversing the lower court on appeal, the United States Seventh Circuit Court of Appeals held that husband adequately pled a claim under the federal law; but that the case against the lawyer was properly dismissed. The case features a legalistic argument under the Wiretap Act regarding whether wife "contemporaneously" intercepted the emails; this debate was found to of little import by the 7th Circuit's panel in reversing the lower court and remanding the case against the wife.

So now, wife will need to prosecute her divorce while simultaneously defending husband's federal action. The case stands for the proposition that it pays to abide by the rules when conducting discovery in a lawsuit; even a divorce that features a serial cheater.

Post #573

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So often, the holiday season is the season of love. Many men muster their courage to "pop the question" during the holidays.

In the Western marital tradition, a man typically requests the hand of his intended in marriage with the conditional gift of an engagement ring. When a woman accepts the proposal, she proudly wears the ring as a sign to all that she intends to wed the ring donor.

What happens, however, when the marriage does not occur? The legal significance of this issue often correlates to the value of the ring. Sadly, some of the doomed couples wind-up in court.

A decision last week from the Virginia Supreme Court reaffirmed the general rule that an engagement ring is a gift conditioned upon the nuptials of the parties. If the wedding is called-off, regardless of fault, the ring donor is entitled to the return of the ring; the donee has an obligation to return the property.

In the Virginia case, the donor broke-off the engagement after a year. The donee, sporting a two carat ring on her finger, worth over $25,000, balked at returning the ring to her fiance. When this lovers' quarrel was not amicably resolved in private, the couple lawyered-up, and the fur started to fly.

The case went all the way to the Virginia Supreme Court, which conducted a brief survey of the law of engagements and correlated property rights. Featuring a cite to a 1985 law review article from the University of Michigan Law School, the decision shines a light, for instructional purposes, on the old "promise to marry" suits from the late 19th Century.

Promise to marry suits enabled the spurned woman [or man] to file a claim for return of property, both given and expected, along with damages for the embarrassment and heartbreak attendant with a broken engagement. Such suits were fodder, as noted by the Virginia High Court, for tabloid exploitation and sensationalism, depending on the fame or infamy of the litigants.

These common law claims were replaced over the last Century with so-called "heartbalm" statutes providing for the  return of property given that was conditioned on nuptials. The Virginia case is consistent with a published decision from the Michigan Court of Appeals, Meyer v Mitnick, that sprang from the Oakland County Circuit Court.

In the Oakland County case from 2001, the engagement ring donor, a well-to-do physician, requested that his intended execute a prenuptial agreement. She refused and the engagement eventually broke off. Like last week's case from Virginia, the physician donor was the one who broke-off the engagement and the woman donee refused to return the ring.

The Michigan Court of Appeals upheld former Oakland County Circuit Judge Fred Mester, holding that where the condition subsequent -the wedding- does not occur, an action for replevin could be brought for the return of the property.

Indeed, it seems only fair to us here at the Law Blogger that, if the nuptials never occur, property given in anticipation of that fact should be returned. That is a fair and reasonable result.

The cases highlighted in this post tell us that it matters not who calls off the wedding.

Post #572

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Here at the Law Blogger, we rarely peruse the pages of US Weekly for blog content, but the latest celebrity gossip combines cutting-edge legal issues with the lifestyles of the rich and famous in such a way that we couldn't resist digging deeper.

Actress Sophia Vergara, most famous for her role as Gloria on Modern Family, is the unwitting subject of international headlines concerning embryos she had stored during her relationship with Onion Crunch inventor Nick Loeb.

Loeb and Vergara split in May 2014, after reaching an agreement that her cryopreserved embryos, frozen during an attempt at in vitro fertilization, would remain in storage indefinitely. 

The cryopreserved embryos were to remain in a deep freeze unless and until the parties -Vergara and Loeb- entered into a written agreement directing some other disposition of the biological property. 

Since April 2015, the parties have been engaged in litigation over the fate of the two frozen embryos. At that time, Loeb filed a complaint in California and the parties remained embroiled in the lawsuit until just this month, when Loeb voluntarily dismissed the California lawsuit.

The following day, a 46-page complaint was filed in Jefferson Parish, Louisiana requesting that the two frozen embryos be released to him so that he can have them implanted in a surrogate.

Loeb's decision to dismiss the California case and re-file in Louisiana is a transparent attempt at "forum shopping". Louisiana has the strictest laws concerning human embryos in the country, and requires courts to make determinations regarding embryos in the best interests of the embryo.

The basic premise of the legal system is that a court must have proper jurisdiction over the parties to a case in order to grant any relief. The in vitro fertilization process took place in California, the embryos are stored in California, and Vergara lives in California. Loeb admits to residing in Florida, but claims that Louisiana should have jurisdiction.

Vergara's role on True Blood caused the parties to spend time in Louisiana during their relationship, as did Loeb's status as a Tulane University alumnus and reserve police officer in Plaquemines Parish. He further claims that Jefferson Parish has jurisdiction because the parties ended their relationship at the Louis Armstrong International Airport.

In the family law industry, interstate disputes over child custody and jurisdiction are governed by the Uniform Child Custody Jurisdiction and Enforcement Act. Under the standards of that act, California has clear jurisdiction over Louisiana.

Setting aside the jurisdictional issues with the Louisiana complaint, the legal team working for ART Reproductive Center, Inc., the Beverly Hills fertility clinic selected by Loeb and Vergara, anticipated these disputes and required all parties to sign documents indicating that future decisions concerning their embryos must be mutual.

While Loeb claims that he signed the agreement under duress, this blogger is skeptical that his claims of duress will hold up in court. The Louisiana Civil Code requires a person claiming that they signed a contract under duress to show a reasonable fear that they have been threatened with unjust injury. In determining whether a fear is reasonable, the court considers the age, health, disposition, and other circumstances of the party claiming to have signed under duress.

Loeb is a 41-year old business man worth over $15 million dollars with a platoon of lawyers on speed dial. He was educated at high-end college preparatory schools before enrolling at Tulane University, where he graduated with a degree in management and finance. It is difficult to imagine how he could be so intimidated by Vergara that he had no option but to sign a contract.

After all this, if Louisiana does order that the embryos be released to Loeb for implantation, it still must enforce the order in California. While the Full Faith and Credit Clause of the United States Constitution would make the Louisiana order valid in California, federal courts have been hesitant to enforce judgments from other states that conflict with the policy of the state resisting the order.

This blogger remains curious about the outcome of this interesting case. We here at the Law Blogger believe that Loeb's recent filing is nothing more than an attempt to remain in the public spotlight through his past connection to Vergara. 

June 2021 Update - A Los Angeles Superior Court Judge has granted Ms. Vergara a permanent injunction against Mr. Loeb; he cannot bring the frozen embryos to term without Sophia's express written consent.

Post #571

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Normally stealthy, the Detroit-based Cryonics Institute was in the news world-wide last month. A controversy regarding the remains of a London teenager crossed international lines in a dispute that combined high-profile custody litigation with the cryopreservation debate.

The teenager, unidentified because of her age, suffered terminal cancer and expressed her wishes to be cryonically preserved after her death. She hoped that a cure would someday be discovered for her cancer. Her divorced parents were unable to agree on the process and the matter was resolved in the family division of the British High Court.

So long as the custody dispute raged-on between the teenager's parents, the child's preference regarding cryonic preservation was also a contested issue. Finally, when her cancer became terminal, the child's preference was honored by both of her parents.

Cryopreservation on this scale is not supported by the mainstream scientific community. While scientific advances have perfected the cryogenic preservation of human embryos, there is no evidence that the technology is viable for a human body.

Despite the lack of scientific basis, the Cryonics Institute has 145 human "patients" as well as 125 "pet patients". The cost of freezing starts at $28,000 for humans and $5,800 or more for pets.

Stanford University law professor and bioethicist Hank Greely is not comfortable with the sales pitch of bringing a frozen person back to life. "If you think about this as a health intervention, I think it's ethically problematic," Greely stated. He added that the ethical dilemma could be lessened by treating the process as an alternative to the traditional preservation practice of embalming.

Cryopreservation is not the only example of the pseudoscience of cryonics duping consumers to part with a chunk of cash. Beginning in the 1970s, and finally becoming popular in the US over the last several years, cryotherapy is a controversial procedure that involves standing in a chamber filled with nitrogen gas chilled to between -319 and -166 degrees Fahrenheit.

Cryotherapy reached Michigan in 2015, with a whole-body cryotherapy treatment center opening in Birmingham last year. With its proponents touting benefits that include increased athletic performance, weight loss, speeding up surgical recovery, improving skin conditions, and even treating rheumatoid arthritis, it is hard to not take a closer look at these impressive, although unsubstantiated claims.

Alas, there is no mainstream medical support for cryotherapy. A recent scholarly review of scientific studies was unable to find any data that supported whole-body cryotherapy over more traditional methods such as cold water immersion or ice packs.

The 2015 death of ChelseaAke-Salvacion increased the scrutiny of this controversial spa procedure.  Ms. Salvacion did not freeze to death, but asphyxiated due to the lack of oxygen in the air during her cryotherapy session.

There is no scientific evidence that exposing the human body to extreme sub-zero temperatures has any likelihood of preserving the body in a state of suspended animation, waiting for technology to catch up with the forward thinking Cryonics Institute members. The custody case of the UK teenager further complicates the ethical considerations of this dubious proceedure.

Likewise, there is no evidence that cryotherapy is any more effective than sitting in a bathtub full of ice water. Nevertheless, people continue to be fascinated by the mysteries of the sub-zero and they continue to be willing to pay to satisfy this fascination.

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Post #570

Who knew that former Oakland County Circuit Judge Mark Goldsmith, now on the federal bench in Detroit, would play the central role in the presidential vote recount litigation that has burned a quick hole into the federal and state courts here in Michigan over the past few weeks. Judge Goldsmith has flip-flopped on the vote count; first mandating a re-count, then ordering it to stop after his initial decision became the subject of a ruling by the United States Sixth Circuit Court of Appeals.

We noted, as it was happening, that independent candidate Jill Stein ran cover for the Clinton campaign by filing for vote recounts in Wisconsin, Michigan and Pennsylvania. Yesterday, Stein's lawyers argued to Judge Goldsmith in federal court that the 10,704 vote margin in Trump's favor featured a host of serious but unspecified irregularities, especially in the Detroit precincts.

The Michigan Republican Party, in the media, and the Michigan Attorney General, in the courts, characterized the Stein-sponsored litigation as an expensive futile partisan publicity stunt. Republican Attorney General Bill Schuette was having none of this; the AG intervened in the federal suit filed by Stein with a pair of heavy-duty legal eagles: former Michigan Solicitor General John Bursch and Chief Legal Counsel Matthew Schneider, former legal counsel in the Bush 43 White House.

Here are the basic mechanics of the vote re-count litigation. Jill Stein, in her capacity as a presidential candidate, and Louis Novak, in his capacity as a Michigan voter, filed a timely petition with the Michigan State Board of Canvassers seeking a state-wide vote recount. President-elect Trump filed objections to the petition and the Board of Canvassers deadlocked on the recount at 4 votes each.

State law provides, in the event of a deadlock by the Board, for the recount to commence. Trump promptly appealed to the Michigan Court of Appeals, with an application to bypass the intermediate appellate court and go straight to the Michigan Supreme Court.

On the pretext of having the will of Michigan's voters usurped by Congress pursuant to applicable federal election laws, Stein filed a lawsuit in the United States District Court for the Eastern District of Michigan seeking an injunction forcing the Board of Canvassers to execute the re-count. Citing the Bush v Gore SCOTUS decision, Judge Goldsmith found that Stein had demonstrated a likelihood of success on the merits of their claim that further delay of the voter re-count would violate her fundamental constitutional right to a presidential vote under the First and Fourteenth Amendments. He ordered the recount to commence.

This ruling was appealed in real time to the United States Sixth Circuit Court of Appeals which upheld Judge Goldsmith's initial injunction, but commented that it would expect the lower court to entertain properly filed motions once the Michigan Court of Appeals subsequently addressed the state voting law issues.

The Michigan Court of Appeals concluded that Stein could not demonstrate that she was aggrieved as a candidate by either fraud or mistake. With this ruling in hand, the Michigan Attorney General filed an emergency petition in federal court and the TRO was dismissed.

Presently, the recount has been halted and, unless the Michigan Supreme Court reverses the Court of Appeals [unlikely] the matter has been concluded.

Whew! This case certainly demonstrates how swiftly our courts can operate given issues of sufficient gravity.

Post #569

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