The Lawletter Vol 37 No 8

Dora Vivaz, Senior Attorney, National Legal Research Group

A hot topic in politics as well as in the courts these days is the extent to which same-sex couples may be treated differently from heterosexual couples.  While much of the focus has been on the right to marry, there have been other questions, distinct from the marriage issue, such as rights to government, employment, or other benefits offered to otherwise similarly situated couples but withheld from same-sex couples.  Not surprisingly, the decisions have not been uniform, even within the same circuit.

The Lawletter Vol 37 No 8

Jim Witt, Senior Attorney, National Legal Research Group

Perhaps the most obvious legal question that arises when a couple break their engagement is whether the formerly prospective bride, assuming that she has received an engagement ring, is obligated to return it to the formerly prospective groom.  A recent South Carolina appellate case, Campbell v. Robinson, 726 S.E.2d 221 (S.C. Ct. App. 2012), arose out of the broken engagement of Matthew Campbell and Ashley Robinson.  Campbell shows that depending upon the couple's level of rancor, the broken engagement and the question as to ownership of the ring can lead to additional legal issues.

In the Campbell case, Campbell proposed and presented a ring to Robinson in December 2005.  In a spring 2006 phone conversation, they agreed to postpone the wedding. The engagement was later canceled, and a dispute ensued over ownership of the ring.  Campbell filed suit against Robinson, demanding a jury trial and seeking (1) declaratory judgment that he owned the ring and was entitled to the ring's return or its equivalent value; (2) damages for the ring's wrongful retention; and (3) monetary restitution for the benefit Robinson had received while possessing the ring.  Robinson counterclaimed, based on Campbell's breach of promise to marry, arguing that she was entitled to damages for her prenuptial expenditures, mental anguish, and injury to health.

Robinson testified that the engagement had been terminated solely by Campbell's action and that after the engagement was canceled, she asked Campbell twice whether she should return the ring.  She asserted that Campbell had told her that she could keep it.  Campbell, in his testimony, denied ending the engagement by himself and contended that the cancellation had been mutual.  He also denied telling Robinson that she could keep the ring.  He further contended that Robinson had refused to give him the ring after he asked for its return.

The trial court held that (1) South Carolina has not abolished actions for breach of promise to marry, and (2) South Carolina courts hinge postengagement entitlement to the engagement ring upon who was "at fault" for the engagement's cancellation.  Therefore, the trial court ruled that Campbell would be entitled to the return of the ring if Robinson was at fault in terminating the engagement.  If Campbell was at fault, however, Robinson would be entitled to keep the ring, and if Campbell breached the promise to marry, Robinson could recover damages.  The trial court rejected Campbell's argument that he could recover damages on his claims.  The jury found that Campbell was responsible for the termination of the engagement and therefore could not regain possession of the ring.  The jury also found that Robinson was not entitled to any damages for Campbell's breach of promise to marry.

The court of appeals first dealt with the question of whether South Carolina courts recognize a cause of action for breach of promise to marry.  The court acknowledged that certain heart-balm actions had been abolished in South Carolina, Russo v. Sutton, 422 S.E.2d 750 (S.C. 1992) (the Supreme Court of South Carolina abolished the heart-balm action for alienation of affection), but observed that promise-to-marry actions have not been expressly abolished.  Therefore, the court concluded that Robinson had set forth a valid cause of action for breach of contract to marry.

The court agreed with Campbell's contention that the trial court had erred in ruling that the ownership of the ring depended upon the assignment of fault in the termination of the engagement.  Rather, the court held, the question of the right to the ring depended on the determination of whether there had been a completed gift of the ring.  The court reasoned that the gift of an engagement ring is impliedly conditioned upon the marriage's taking place. Thus, until the condition of marriage is fulfilled, the attempted gift is unenforceable, and the ring must be returned to the donor upon the donor's request.  The court held that the party challenging the conditional nature of the transfer of possession of the ring has the burden of presenting evidence to establish either that the ring had not been intended as an engagement ring, that it was an engagement ring but had not been transferred subject to the condition of marriage or any other condition, or that the condition attached to the transfer of the ring had been canceled.

November 6, 2012

Brad Pettit, Senior Attorney, National Legal Research Group

The volatility of stock, bond, and real estate markets, as evidenced by the technology stock and real estate "bubbles" during the last two decades, makes it incumbent upon trust professionals to make sure that they comply with current legal standards for managing and investing trust assets.  The Uniform Trust Code provides generally that a trustee must act "prudently" when administering a trust:

§ 804. Prudent Administration.

A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

Unif. Trust Code § 804 (U.L.A. 2000 & Westlaw current through 2011 annual meetings of the Nat'l Conference of Comm'rs on Uniform State Laws and A.L.I.).

The Uniform Prudent Investor Act expressly states that "[a] trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying."  Unif. Prudent Investor Act § 3 (U.L.A. 1994 & Westlaw current through 2011 annual meetings of the Nat'l Conference of Comm'rs on Uniform State Laws and A.L.I.) (emphasis added); see also P.G. Guthrie, Annotation, Duty of Trustee to Diversify Investments, and Liability for Failure to Do So, 24 A.L.R.3d 730 (1969 & Westlaw databases updated weekly).  The Restatement of Trusts similarly provides that "[i]n making and implementing investment decisions, the trustee has a duty to diversify the investments of the trust unless, under the circumstances, it is prudent not to do so."  Restatement (Third) of Trusts ["Restatement"] § 90(b) (2007 & Westlaw current through Apr. 2012).

The Comment to § 3 of the Uniform Prudent Investor Act provides two examples of situations in which a trustee's general duty to diversify investments may be less than absolute:

October 30, 2012

Charlene Hicks, Senior Attorney, National Legal Research Group

In recent days, federal officials have launched an all-out effort to halt the fraud and corruption plaguing the nation's bank mortgage industry.  On October 9, 2012, the Federal Trade Commission ("FTC") filed three separate federal court lawsuits against allegedly phony mortgage-relief companies.  These suits accuse the companies of having engaged in deceptive business practices by falsely assuring struggling homeowners that they could save their homes from foreclosure, charging thousands of dollars in up-front fees, and then providing little or no actual assistance.  On the same day, the U.S. Attorney General, the Federal Bureau of Investigation ("FBI"), and the Department of Housing and Urban Development ("HUD") announced the results of the Distressed Homeowner Initiative, a year-long, coordinated, multilevel investigation targeting predatory foreclosure-rescue and mortgage-modification schemes.  Meanwhile, on another front, the U.S. attorney's office in Manhattan filed a mortgage fraud lawsuit against Wells Fargo, accusing the major bank of having engaged in improper underwriting of home loans for over a decade.  The following day, October 10, the FTC announced that it had reached a settlement with Equifax on allegations concerning the improper sale of information on late borrowers.  The FTC alleged that Equifax had sold more than 17,000 lists of consumers who met specific criteria, such as being late on their mortgage payments, to Direct Lending Source, which, in turn, had sold the lists to various third parties.

A major source of ammunition in these federal efforts against mortgage fraud is the newest provision of the FTC's Mortgage Assistance Relief Services ("MARS") Rule, which was issued in November 2010.  See 12 C.F.R. § 1015.5.  This Rule prohibits mortgage-relief companies from collecting any fees until the homeowner has a written offer from his or her lender or servicer that the individual deems acceptable.  Mortgage-relief services that charge advance fees to consumers may be held civilly or criminally liable for violation of the MARS Rule.  See id. § 1015.10.

Notably, attorneys are generally exempt from MARS Rule prohibitions.  Id. § 1015.7.  To qualify for exemption from all MARS disclosure rules except the advance-fee ban, an attorney must satisfy three conditions:  (1) The attorney must be engaged in the practice of law; (2) the attorney must be licensed in the state where the consumer or dwelling is located; and (3) the attorney must comply with state laws and regulations governing attorney conduct relating to the MARS Rule.  Id. § 1015.7(a).  To qualify for an exemption from the ban against advance fees, the attorney must also meet a fourth requirement: Any up-front fees collected must be placed in a client trust account, and the attorney must abide by state laws and regulations governing such accounts.  Id. § 1015.7(b).

Broadly speaking, the sweeping actions just taken by various federal agencies may signal a general change in attitude from one that is "procreditor" to a more lenient "prodebtor" perspective.  Such a shift in the law could potentially benefit debtors seeking relief from seemingly harsh creditor-imposed penalties of all types.

The Lawletter Vol 37 No 7

Charlene Hicks, Senior Attorney, National Legal Research Group

Precision is essential in drafting effective legal contracts of any type.  If the contract language is not sufficiently expansive to include a particular party or situation, contractual obligations that were intended to be binding may be set aside as inapplicable.  At the same time, however, there has been a great movement toward "plain language" contracts as opposed to agreements comprised of "legalese."  The interplay between these potentially conflicting themes was recently highlighted by the First Circuit's opinion in Gove v. Career Systems Development Corp., 689 F.3d 1 (1st Cir. 2012), a case involving the applicability of an employer's mandatory arbitration clause to an unsuccessful job applicant.

In that case, Ann Gove applied for a job with Career Systems Development Corporation ("CSD").  The final section of the electronic job application contained the following arbitration clause:

CSD also believes that if there is any dispute between you and CSD with respect to any issue prior to your employment, which arises out of the employment process, that it should be resolved in accord with the Dispute Resolution Policy and Arbitration Agreement ("Arbitration Agreement") adopted by CSD for its employees.  Therefore, your submission of this Employment Application constitutes your agreement that the procedure set forth in the Arbitration Agreement will also be used to resolve all pre-employment disputes.

Id. at 3.  Gove duly checked the "accept" box next to the statement, indicating that she accepted the terms of the agreement, including the arbitration clause.

Gove was pregnant throughout the period in which her job application was processed.  After she was not hired by CSD, Gove filed an employment discrimination lawsuit in federal district court against CSD.  CSD moved to compel arbitration on the basis of the arbitration clause contained in the electronic job application.  The district court denied CSD's motion on the grounds that the arbitration clause was ambiguous as to whether it applied to Gove, a job applicant who was never hired, and the ambiguity had to be construed against CSD as the drafter of the clause.

On appeal, the First Circuit affirmed.  In reaching this decision, the court began by emphasizing that the dispute concerned "the scope of the arbitration clause, not its validity."  Id. at 5.  In other words, the arbitration clause was clearly valid and effective in at least some circumstances.

In analyzing the scope of CSD's arbitration provision, the court noted that the arbitration clause was devoid of any reference to job "applicants."  Id. at 6.  "Instead, every reference is to 'your employment,' 'the employment process,' or 'pre-employment disputes.'"  Id.  Based on this language, the court determined that a reasonable basis existed for Gove's conclusion that she would be bound by the arbitration clause only in the event that she was ultimately hired.

October 9, 2012

Brett Turner, Senior Attorney, National Legal Research Group

In 2007, the Hague Conference on Private International Law finished work on a new multilateral convention on the enforcement of child and spousal support.  See  Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, Nov. 23, 2007 [hereinafter the "Convention"].  The United States signed the Convention, and on November 29, 2010, the Senate ratified it.

The Convention is implemented in a revised article 7 of the Uniform Interstate Family Support Act ("UIFSA"), which some States have already begun to adopt.  Adoption of UIFSA is, of course, a condition upon receipt of federal child support enforcement funding, see 42 U.S.C. § 666(f) (Westlaw current through P.L. 112‑142 (excluding P.L. 112‑140 and 112‑141) approved 7‑9‑12), and while the federal statute presently requires adoption of UIFSA only as it existed in 1996, it is likely that the federal statute will ultimately require adoption of the 2008 version as well.

The Convention adopts into international law the principle of continuing exclusive jurisdiction ("CEJ"), which lies at the heart of UIFSA.  Article 18 of the Convention provides:

(1)        Where a decision is made in a Contracting State where the creditor is habitually resident, proceedings to modify the decision or to make a new decision cannot be brought by the debtor in any other Contracting State as long as the creditor remains habitually resident in the State where the decision was made.

Convention art. 18(1).  Thus, when a child support order is entered in the support provider's habitual residence, support proceedings cannot be brought elsewhere unless the support provider's habitual residence changes.  Jurisdiction over support matters, once acquired, is exclusive.  See also UIFSA § 711 (specifically applying the CEJ concept to orders from nations that have signed the Convention).  There is a series of exceptions, Convention art. 18(2), that apply when the parties agree in writing to give another country jurisdiction, when the support provider voluntarily submits to another country's jurisdiction, when the country with CEJ refuses to rule, or when the original support order cannot be recognized in another country.

Article 20 of the Convention is a broad jurisdictional provision, allowing jurisdiction in the habitual residence of the support provider, the habitual residence of the support recipient, or the habitual residence of the child.  The latter two bases are fundamentally inconsistent with American law, which provides that the court cannot make a support order unless it has personal jurisdiction over the support provider, even if the support recipient and the child are domiciled within the court's jurisdiction.  Kulko v. Super. Court, 436 U.S. 84 (1978).  The Senate resolution ratifying the Convention provides as follows:

The advice and consent of the Senate under section 1 is subject to the following reservations, which shall be included in the instrument of ratification:

(1)        In accordance with Articles 20 and 62 of the Convention, the United States of America makes a reservation that it will not recognize or enforce maintenance obligation decisions rendered on the jurisdictional bases set forth in subparagraphs 1(c), 1(e), and 1(f) of Article 20 of the Convention.