2010.06.28 - Kyron's Dad files for divorce and restraining order

[cluciano63]

I just hope that if Kyron is out there on SI, they find him this weekend.

 

[Kat010]

The "harm" comes to the precedent it might set that all attorneys would be forced to stipulate beyond a reasonable point to where their fees came from. Because a client has the privilege of their attorney keeping their transactions private. Because another party, as poignant as his cause might be, cannot through that emotional point, force the attorney or the other party to disclose information which has no bearing on the action in front of the court (in this case, the divorce).

Terri's attorneys filed a stipulation, and with the knowledge that any information therein being false could render a charge of perjury for the attorney, that the money came from a third party, was not a marital asset or gift, or that it fell into the area of marital property.

Asked, and answered. And Kaine pushes on anyway. That's on him. It can't always be blamed on Terri. Kaine is pushing past the information he got because he thought he could, and the court is saying no, he can't.

Well stated, Debs.

Kaine has been answered, in an acceptable legal way. In his continuing push, he's actually hinting that the opposing attorneys are lying and that their tenderings, as officers of the court, are not to be trusted. That's a mighty big thing -- people's licenses to practice law can hinge on ethical considerations.

Bunch's document is a triple whammy. Or maybe more. One thing he points out, more than once, is that Kaine has been answered (among many other good points) and that Kaine's insistence on pushing has created extra expenditures. So, he's also noted that Kaine should pay for the extra work and services that his unreasonable--according to Bunch and Houze--demands have created.

In short, if you make a mess, you clean it up. After reading Bunch's document, it is so clear that KH just simply will not accept normal legal tenderings and procedures. And I think that just backfired on him.

The legal system has its own protocols and rules, including courtesies and trust between professionals for stipulations and other items. Really, I was so amazed at what I read--it sounds like they've gone over and over and over this money suit with Kaine ad nauseum.

This is definitely a war, and I'd say that today Bunch proved that he's not going to give away even l/32nd of an inch to the enemy, and that he's not just waging a defensive campaign. He's going to be aggressive--and that impressed me. It looks like he and Houze are an impressive team.

Their fight is important in order to maintain the sanctity of attorney-client privilege. It's also important in order to protect our rights by not allowing a civil action to be used as a dubious sneaky investigative tool nor an excuse to throw away our constitutional rights.

Frankly, this seeming alliance of Kaine and LE feels very...hinky. LE needs to do their job without using one of the victims as their tool. I think the constant accusations about TH by Kaine and Desiree are also going to backfire, as is the LE/KH joint campaign (or so it seems). Some of this just seems as ham-fisted and clumsy as the failed MFH sting.

I've never before seen a campaign between LE and one person, even to the point of apparently assisting him in his divorce and in return, that person serving as a back-door wedge against standard law, against one person, not even arrested or charged, in any case that I can quickly refer to. This is all very, very, very strange. MOO

Note to BeanE: I think I just trumped your latest run-on sentence. Holy moly! Someone here is way overdue for beddy bye.

 

[tlcya]

I take it to mean that under OEC it is for Kaine to prove by documentation that the money IS a marital asset or debt if he truly thinks that the case. In other words, Terri doesn't have to prove the retainer isn't a marital asset, the burden is on Kaine to prove up that it is.

I think Kaine is hoping if he can prove the money is a marital asset then he can move for the court take control of those funds. It must be so galling for he and Desiree to think that Terri somehow came up with that money (as far as I know we still haven't seen an exact number and were told by Houze that the 350K figure was greatly exagerated).

I totally get where Kaine and Desiree are coming from. I just don't think they have a case on this petition.

 

[debs]

I may be more of a cowgirl than some, but if I thought TH took my child I'd be filing on her daily if I could. I just can't even imagine wearing his shoes.

I don't know if being a cowgirl helps, but it sure can't hurt! But though he might THINK that, he has to PROVE it. And he is not only NOT proving it, he is turning it around on Terri and telling her she must prove she DIDN'T ..... (insert favorite accusation here). That isn't the way the law works, and as much as one's heart can break for his plight, the law has to be upheld over the emotional predicament. I don't doubt that there is any one person out "here" who could imagine wearing his shoes. But I can deal with logic. And I can deal with reason. And in that vein, and in order to sort through things as best I can, I do so.

He's just not entitled to this money information in the manner in which he's demanding he should get it. The money went to Houze, not Terri. End of that story. I do understand what Kaine wants, though.

 

[Calliope]

I found this to be the most intersting part of the argument. can anyone speak to this?

This is what he's quoting:

Rule 305. Allocation of the burden of persuasion
A party has the burden of persuasion as to each fact the existence or nonexistence of which the law declares essential to the claim for relief or defense the party is asserting. [1981 c.892 §14]

Rule 307. Allocation of the burden of producing evidence
(1) The burden of producing evidence as to a particular issue is on the party against whom a finding on the issue would be required in the absence of further evidence.
(2) The burden of producing evidence as to a particular issue is initially on the party with the burden of persuasion as to that issue. [1981 c.892 §16]

https://www.oregonlaws.org/ors/chapter/40

 

[JBean]

Well stated, Debs.

Kaine has been answered, in an acceptable legal way. In his continuing push, he's actually hinting that the opposing attorneys are lying and that their tenderings, as officers of the court, are not to be trusted. That's a mighty big thing -- people's licenses to practice law can hinge on ethical considerations.

Bunch's document is a triple whammy. Or maybe more. One thing he points out, more than once, is that Kaine has been answered (among many other good points) and that Kaine's insistence on pushing has created extra expenditures. So, he's also noted that Kaine should pay for the extra work and services that his unreasonable--according to Bunch and Houze--demands have created.

In short, if you make a mess, you clean it up. After reading Bunch's document, it is so clear that KH just simply will not accept normal legal tenderings and procedures. And I think that just backfired on him.

The legal system has its own protocols and rules, including courtesies and trust between professionals for stipulations and other items. Really, I was so amazed at what I read--it sounds like they've gone over and over and over this money suit with Kaine ad nauseum.

This is definitely a war, and I'd say that today Bunch proved that he's not going to give away even l/32nd of an inch to the enemy, and that he's not just waging a defensive campaign. He's going to be aggressive--and that impressed me. It looks like he and Houze are an impressive team.

Their fight is important in order to maintain the sanctity of attorney-client privilege. It's also important in order to protect our rights by not allowing a civil action to be used as a dubious sneaky investigative tool nor an excuse to throw away our constitutional rights.

Frankly, this seeming alliance of Kaine and LE feels very...hinky. LE needs to do their job without using one of the victims as their tool. I think the constant accusations about TH by Kaine and Desiree are also going to backfire, as is the LE/KH joint campaign (or so it seems). Some of this just seems as ham-fisted and clumsy as the failed MFH sting.

I've never before seen a campaign between LE and one person, even to the point of apparently assisting him in his divorce and in return, that person serving as a back-door wedge against standard law, against one person, not even arrested or charged, in any case that I can quickly refer to. This is all very, very, very strange. MOO

Note to BeanE: I think I just trumped your latest run-on sentence. Holy moly! Someone here is way overdue for beddy bye.

Nothing strange going on here imo.
Don't forget our legal system is adversarial in nature. Arguing points of law is the name of the game and that is what they are supposed to be doing in there and that is what they are doing. I don't think they are accusing , but rather arguing that their interpretations of the laws are not all the same.

 

[Kat010]

I found this to be the most intersting part of the argument. can anyone speak to this?

IANAL so I can't speak to it, but I will say: YOWZA! You've picked one of the key elements of Bunch's arguments. And it's simple "husband refuses to accept..." etc. I think it's a very elegant legal way of saying that a temper tantrum doesn't work in a courtroom. Again, I was shocked when I read that whole document and understood how much work has gone into going over and over this issue and providing an answer.

Bunch's document is so impressive. JMO, of course.

 

[tlcya]

wellspoke kat. The thank you button was not nearly enough.

 

[pittsburghgirl]

Kaine appears to be certain that TH is responsible for whatever has happened to Kyron, and thus I am sympathetic to his attempts to make her life a living hell.

However, he is being short-sighted and badly advised. TH will be entitled to a defense. If TH goes on trial in Kyron's case or for the MFH, she should have the best defense possible. Then if and when she's convicted, that's one less possibility for an appeal.

 

[grandmaj]

In a divorce, both parties are entitled to complete information about the other spouse's sources of income, assets and debts, how they paid their lawyers and whether they had or have access to other monies whether via gift, loan or payment by a third party of any kind of expenses. That information must come from subpoena or via discovery responses under oath. A statement from an attorney does not suffice.
Also, the info about these attorney's fees, in this case, is not only important as it pertains to whether the funds came from undisclosed assets that may be at least partially marital property, or whether they came from TH encumbering marital property, the first which KH would not be able to determine without valid discovery responses. It is also important as it may pertain to issues such as whether one party should pay the other's attorney's fees, and support issues. Bottom line is that KH is entitled to the information requested, via answers that are under oath.



If he was doing this pro bono, he would, IMO be furthering his client's position by admitting so. It would show that he feels strongly enough about TH's innocence that he agreed to waive the fee.



Right.



I know what you mean! But I did not mean to cause mystery. To me, this is clear: The family judge believes that LE has probable cause as KH alleged. I feel he believes TH is likely involved. The judge wants to balance not compromising the investigation, and possibly hindering the ability to find Kyron, or to find out what happened to him, as well as KH's struggle to use the civil process to get those answers, with the constitutional rights of TH who has not been named a suspect or POI by LE, who has not been arrested and for whom not one criminal charge is pending. What a balance.



KH's attorney does not have the burden of rebutting the statement.

bumping bolded above by me.

Delay tactics can only last so long. Eventually Kaine will legally be entitled to the information and will get it.

 

[Calliope]

Well stated, Debs.

Kaine has been answered, in an acceptable legal way. In his continuing push, he's actually hinting that the opposing attorneys are lying and that their tenderings, as officers of the court, are not to be trusted. That's a mighty big thing -- people's licenses to practice law can hinge on ethical considerations.

Bunch's document is a triple whammy. Or maybe more. One thing he points out, more than once, is that Kaine has been answered (among many other good points) and that Kaine's insistence on pushing has created extra expenditures. So, he's also noted that Kaine should pay for the extra work and services that his unreasonable--according to Bunch and Houze--demands have created.

In short, if you make a mess, you clean it up. After reading Bunch's document, it is so clear that KH just simply will not accept normal legal tenderings and procedures. And I think that just backfired on him.

The legal system has its own protocols and rules, including courtesies and trust between professionals for stipulations and other items. Really, I was so amazed at what I read--it sounds like they've gone over and over and over this money suit with Kaine ad nauseum.

This is definitely a war, and I'd say that today Bunch proved that he's not going to give away even l/32nd of an inch to the enemy, and that he's not just waging a defensive campaign. He's going to be aggressive--and that impressed me. It looks like he and Houze are an impressive team.

Their fight is important in order to maintain the sanctity of attorney-client privilege. It's also important in order to protect our rights by not allowing a civil action to be used as a dubious sneaky investigative tool nor an excuse to throw away our constitutional rights.

Frankly, this seeming alliance of Kaine and LE feels very...hinky. LE needs to do their job without using one of the victims as their tool. I think the constant accusations about TH by Kaine and Desiree are also going to backfire, as is the LE/KH joint campaign (or so it seems). Some of this just seems as ham-fisted and clumsy as the failed MFH sting.

I've never before seen a campaign between LE and one person, even to the point of apparently assisting him in his divorce and in return, that person serving as a back-door wedge against standard law, against one person, not even arrested or charged, in any case that I can quickly refer to. This is all very, very, very strange. MOO

Note to BeanE: I think I just trumped your latest run-on sentence. Holy moly! Someone here is way overdue for beddy bye.

bbm

He called Kaine's motions frivolous (and gave examples to back that up). IMO, that's significant.

 

[Calliope]

bumping bolded above by me.

Delay tactics can only last so long. Eventually Kaine will legally be entitled to the information and will get it.

IMO, Bunch laid out an excellent argument as to why Kaine is NOT legally entitled to that information.

I don't believe Kaine will win on this one.

 

[tlcya]

Kaine appears to be certain that TH is responsible for whatever has happened to Kyron, and thus I am sympathetic to his attempts to make her life a living hell.

However, he is being short-sighted and badly advised. TH will be entitled to a defense. If TH goes on trial in Kyron's case or for the MFH, she should have the best defense possible. Then if and when she's convicted, that's one less possibility for an appeal.

I think we can all agree with that - no matter what we think has happened to Kyron or who is responsible!

 

[germaine]

I found this to be the most intersting part of the argument. can anyone speak to this?

Just in my uneducated opinion, but what he says is that KH has the burden of proving that TH has the ability to pay suit money, not to prove where the money came from. She has demonstrated this ability by paying a ton of money to houze -- whether from marital assets or not. maybe a lawyer can weigh in on whether he has gone forward enough on that burden to shift the burden to th as to why she can't also afford to pay bunch. Also, it seems to me that bunch is mixing apple and oranges. As I understand it, kh is also, or exclusively, interested in whether the retainer is a marital asset or debt. I don't think bunch addresses the burden on that issue. jmoo

 

[liz b.]

Then it is, in essence, just the same as the parents giving her the money.

Not in the esoteric world of trusts and estates... That is why trust funds are adminstered by an attorney, never by family memebers themselves...

I am connecting KH's mention of the $, and it's origins, with the last presser given by DY... DY said something to the effect of " if TH can have 350,000 for a defense lawyer,why can't I have the same amount of $ to look for Kyron ? " ( Not verbatim )...

Hypothetically,if TH was able to get $ from her family's trust, and this was made known, I believe the public's general reaction would be : Why has she never used any of her family's money to try to help find her stepson ? And if that was true,it would be a fair question, MOO.

All JMO

 

[gitana1]

Well, I think the IRS would see it as a gift. And as Gitana said earlier, it is not a good idea for a third party to pay attorney fees because it muddies the water as to who is the client--the accused, or the party paying the fees?

Oh, let me clarify. It is true that if a third party pays the attorney's fees it can muddy the waters. But I get paid by people's siblings or parents all the time. I just have to make it very clear who the client is because often the person paying will think I answer to them.
What I was actually referring to, though, in my post, was the question whether if TH's parents hired the attorney, would it be considered a gift. I stated that one cannot hire an attorney for someone else, unless, basically, that other person is incapacitated in some way.
I do believe that payment of someone else's attorney's fees is a gift to that person. But I'm getting the argument that it's not, if it goes directly to the attorney and not through the client.

 

[debs]

Just in my uneducated opinion, but what he says is that KH has the burden of proving that TH has the ability to pay suit money, not to prove where the money came from. She has demonstrated this ability by paying a ton of money to houze -- whether from marital assets or not. maybe a lawyer can weigh in on whether he has gone forward enough on that burden to shift the burden to th as to why she can't also afford to pay bunch. Also, it seems to me that bunch is mixing apple and oranges. As I understand it, kh is also, or exclusively, interested in whether the retainer is a marital asset or debt. I don't think bunch addresses the burden on that issue. jmoo

In the memorandum, Bunch stated that Houze stipulated that the funds paid to him were from a third party and therefore not suit money, which Kaine would be entitled to know about.

It was paid to him, not Terri.

 

[tlcya]

Just in my uneducated opinion, but what he says is that KH has the burden of proving that TH has the ability to pay suit money, not to prove where the money came from. She has demonstrated this ability by paying a ton of money to houze -- whether from marital assets or not. maybe a lawyer can weigh in on whether he has gone forward enough on that burden to shift the burden to th as to why she can't also afford to pay bunch. Also, it seems to me that bunch is mixing apple and oranges. As I understand it, kh is also, or exclusively, interested in whether the retainer is a marital asset or debt. I don't think bunch addresses the burden on that issue. jmoo

I thought he answered that pretty completely when he stated that he had provided Kaine with documentation that the retainer was paid by a third party and was not paid by Terri. It was not her money, Kaine's money, Marital asset and was not a loan that would qaulify as a marital debt. Did I misread?

 

[JBean]

IMO the goal is to keep her from answering civil questions that could impact her potential criminal charges. I understand that and a good defense attorney will keep her fromhaving to answering questions. This works both ways i should add. A good prosecutor would not want his complaining witness giving sworn testimony in a civil case before the criminal trial either, imo.

 

[Kat010]

Nothing strange going on here imo.
Don't forget our legal system is adversarial in nature. Arguing points of law is the name of the game and that is what they are supposed to be doing in there and that is what they are doing. I don't think they are accusing , but rather arguing that their interpretations of the laws are not all the same.

Oh, I so agree on the adversarial nature of the courtroom. That is normal procedure.

But what I find abnormal, and what I was trying to say, sleepy-eyed, is that the alliance between LE and Kaine, profiting both (they help with his divorce; he flanks TH by using a civil action as an investigative tool to gain what LE hasn't been able to do) is just plain...hinky. And something I've not seen before. All kinds of things that normally are separated are just being twisted up together in one great big snarled mess. JMO