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

[believe09]

Guess I didnt need to speak on behalf of puf. Well said.

 

[believe09]

Huh ?

Not being prepared is what could smooth Terri's path to getting parenting time.

Why? Because the judge would then have even less information with which to make a decision? If neither side presents information on who is better able to advocate for the welfare of the child, what choice will the judge have but to find against her? I mean Kaine obtained an RO for a year based upon his unchallenged statements.

I dont think she gets a do over.

 

[pufnstuf]

Guess I didnt need to speak on behalf of puf. Well said.

You did just fine, ma'am. Agree with every word you said.

And thanks, gwenabob, for the information that you can give us about Oregon's court system. Good to have someone with your experience in Oregon law on board!

 

[pufnstuf]

I dont think she gets a do over.

I agree...

Which seems to be what Bunch is striving for.

 

[Calliope]

Let's review what has transpired over the past several months.

In late June, Kaine found out that his wife not only tried to hire someone to murder him, but also quite likely was involved in his son's disappearance. So he field for a restraining order and for divorce.

The respondent in the RO matter did not answer the restraining order matter within the mandated 30 days.

Instead, she stated via her attorney that she'd give Kaine the divorce, but wanted the custody and property matters bifurcated and abated to a later date... at least two years as Bunch requested, to be precise.

On October 7, Terri appeared in court, still wishing for the abatement of the custody matter in the DIVORCE proceeding. The judge, refusing to abate the divorce (custody matter included) for two years as Bunch had requested, set the hearing for January.

At the end of court, Bunch said that he'd actually do opposite what he had asked for in earlier statements: he'd seek a more immediate amendment to the custody matter than HE HIMSELF had stated that his client would be satisfied with--at least two years.

One week later, Terri filed for a modification to the restraining order.

Keep in mind, her attorney had requested that the custody matter associated with the divorce proceeding be delayed for "at least two years." He went to court still stating such. Then when the judge refused to abate the divorce for two years, he suddenly changed his mind and stated that it is important for Baby K to see her mother, and he'd file to amend the current custody order--which was declared in the RO.

Why would he then file to modify the custody matter under the restraining order in expedited fashion when under the divorce proceeding he claimed that he wanted the matter delayed for at least two years. Any small gain that Terri gets with the modification to the restraining order will be subsumed by the custody order that will come with the divorce.

If any lawyer's actions in this current quagmire need be questioned, I say it's Bunch's.

I am sure that Laura Rackner has witnesses. But having witnesses and subpoenaing and deposing those witnesses are two different matters. And to subpoena and depose, you must have an action at hand about which to subpoena and depose. Considering that Terri's attorney has been almost schizophrenic in his statements and filings, I'm sure that Rackner has been prepared to pass out subpoenas as soon as the latest Bunch action was filed. It speaks nothing to her lack of preparation that she can't subpoena and depose until there is an action before the court about which to subpoena and depose.

Now that there IS a custody action before the court, I am certain that Rackner is preparing to depose in response.

All of that is irrelevant. Regardless of what Bunch & Co. have done over these last 4 months, it was Rackner's responsibility --- from the moment they decided to file an application for the RO --- to be prepared to answer any possible motions on Terri's behalf. While she certainly can't cover every possible scenario (meaning unforeseen circumstances), in THIS case the law clearly states the process of modification to parenting time. That is something Rackner should have been aware of from the start. You yourself posted the bench guide; I did so back when the RO was first applied. The law is crystal clear what the respondent can do and what the court can order regarding this issue. I'm rather shocked that Rackner was caught unprepared on an issue that is clearly a distinct probability. She's had all these months to gather witness statements and be ready for this motion she was sure to have known was coming. Being that she's such an experienced civil attorney, I have to wonder how well she's protecting Kaine's interests.

 

[pufnstuf]

All of that is irrelevant.

Not irrelevant at all. I guarantee that the judge will take it into account.

 

[Calliope]

Why? Because the judge would then have even less information with which to make a decision? If neither side presents information on who is better able to advocate for the welfare of the child, what choice will the judge have but to find against her? I mean Kaine obtained an RO for a year based upon his unchallenged statements.

I dont think she gets a do over.

Interesting that the definition of sound legal advice and representation now includes not being prepared for probable outcomes. That would certainly make the job a lot easier, I'll give you that. And save a ton of $$$ on case studies, precedents, research and sourcing.

 

[Dee10]

Interesting that the definition of sound legal advice and representation now includes not being prepared for probable outcomes. That would certainly make the job a lot easier, I'll give you that. And save a ton of $$$ on case studies, precedents, research and sourcing.

Who's to say Kaine's lawyer didn't anticipate this? But would you spend xxxxx amount of $ before need be? In could have been totally anticipated, but you ask the court for time. :angel:

Anyway, JVM had a segment on the suit tonight, only caught some of it & it what I saw contained "no" lawyers unfortunately. Maybe we can post the transcript later or maybe it needs a new thread? Sorry, I didn't catch the whole thing.

 

[Chili Fries]

All of that is irrelevant. Regardless of what Bunch & Co. have done over these last 4 months, it was Rackner's responsibility --- from the moment they decided to file an application for the RO --- to be prepared to answer any possible motions on Terri's behalf. While she certainly can't cover every possible scenario (meaning unforeseen circumstances), in THIS case the law clearly states the process of modification to parenting time. That is something Rackner should have been aware of from the start. You yourself posted the bench guide; I did so back when the RO was first applied. The law is crystal clear what the respondent can do and what the court can order regarding this issue. I'm rather shocked that Rackner was caught unprepared on an issue that is clearly a distinct probability. She's had all these months to gather witness statements and be ready for this motion she was sure to have known was coming. Being that she's such an experienced civil attorney, I have to wonder how well she's protecting Kaine's interests.

I'm not going to get into to the purely legal discussion because I definitely have no expertise in that area, but...

...Calliope I do see how there could be issues that Kaine and Rackner would only be able to evaluate at the time Terri's motion was filed. Specifically the mental state of the baby and maybe of Terri too. That's something you would wait until necessary to gather information about, be it depositions from caregivers, family members or doctors. If Kaine wants to provide information about the continuing change in the baby's mental state since she last saw Terri and the baby's general well being, it would behoove him to provide the court with the most up to date info. With regard to Terri, if there is some kind of psych eval done then Kaine may need time to have an expert of his own evaluate the result.

And thanks again to Desquire and Gitana for providing their expert opinions on these matters.

 

[krowdkat]

With all due respect, Calliope, I would never have my lawyer go through the time/expense to depose a bunch of witnesses on my behalf because someone MIGHT file an emergency request. Kaine nor his attorney had any way of knowing that Bunch would file that motion after the abatement was granted. Why pay for something you don't have to until you do?!?

In fact, since TH didn't oppose the RO order within the 30 days alotted, they probably felt confident that their witnesses supeoanas and depos didn't need to be completed (if at all) until January when the abatement was lifted.

 

[Calliope]

With all due respect, Calliope, I would never have my lawyer go through the time/expense to depose a bunch of witnesses on my behalf because someone MIGHT file an emergency request. Kaine nor his attorney had any way of knowing that Bunch would file that motion after the abatement was granted. Why pay for something you don't have to until you do?!?

In fact, since TH didn't oppose the RO order within the 30 days alotted, they probably felt confident that their witnesses supeoanas and depos didn't need to be completed (if at all) until January when the abatement was lifted.

Well, if he wants to be represented by someone who can so easily be blind-sided with a motion that is clearly within the realm of probability, that's certainly his choice. If it were me, I'd be wondering what other probable motions on behalf of Terri were likely to appear on the horizon ... and if my attorney was prepared to defend my interests.

 

[loves2bmom]

http://www.oregonlive.com/portland/index.ssf/2010/10/kaine_horman_wants_mental_eval.html


The two parties are due again in court on Nov. 4 for housekeeping issues, according to the clerk for Multnomah County Judge Keith Meisenheimer.

 

[krowdkat]

Well, if he wants to be represented by someone who can so easily be blind-sided with a motion that is clearly within the realm of probability, that's certainly his choice. If it were me, I'd be wondering what other probable motions on behalf of Terri were likely to appear on the horizon ... and if my attorney was prepared to defend my interests.

I was involved in a bitter custody battle for 16 years. In my experience, the judge will ALWAYS allow both sides time to be prepared with each motion that is filed. Many times, even though both sides were prepared, the judge rescheduled for a variety of reasons. Frustrating to take the day off and have to pay my attorney for her time, even though we were ready to proceed. I believe this is why it has been said that the wheels of justice move slowly.

I don't believe it has to do with either attorney blindsiding one another. Just simply a chess game of legal strategy and I'm sure some sort of cost containment strategy on Kaine's behalf. He's currently raising a baby girl without financial support from the other party and dealing with everyday expenses as well as long haul legal expenses. A good civil/family attorney cost about $250/per hour in my state. IMO.

 

[grandmaj]

All of that is irrelevant. Regardless of what Bunch & Co. have done over these last 4 months, it was Rackner's responsibility --- from the moment they decided to file an application for the RO --- to be prepared to answer any possible motions on Terri's behalf. While she certainly can't cover every possible scenario (meaning unforeseen circumstances), in THIS case the law clearly states the process of modification to parenting time. That is something Rackner should have been aware of from the start. You yourself posted the bench guide; I did so back when the RO was first applied. The law is crystal clear what the respondent can do and what the court can order regarding this issue. I'm rather shocked that Rackner was caught unprepared on an issue that is clearly a distinct probability. She's had all these months to gather witness statements and be ready for this motion she was sure to have known was coming. Being that she's such an experienced civil attorney, I have to wonder how well she's protecting Kaine's interests.

I disagree. Gathering witness statements under deposition has to be approved by the court. You can't just depose people. In that Terri did not contest the RO there is no way that they could go around deposing people. There was no case. There was no civil action. There is no way she would have received a subpoena until this motion was filed by Bunch. Everything was in limbo until the abatement hearing. Those matters were abated for 90 days. And now this motion for visitation time, has opened a new door.

In that Bunch attempted this little back door approach and is now saying that his client is not going to cooperate and participate, Atty Rackner now should be given permission to depose witnesses for a given purpose. It is called a Subpoena Deuces Tecum and issued by order of the court. Bunch has opened that door.

Rackner is doing exactly her job and very well IMO by insisting on a method to obtain direct testimony from family and friends under oath and within the law. You cannot just demand that people talk to you. What a chaotic world this would be if it was legal for lawyers to go around demanding direct testimony without even a court filing. That isn't how the legal system works.

And, how could Rackner three months ago pursue medical records about Terri for the months since three months ago? (July, August, September, October)? Or direct testimony from family and friends about her actions in the months since Kaine left Terri? There wouldn't be records for the time since Kaine left Terri 3 or 4 months ago.

 

[human]

I think it's hard to predict the unpredictable.

I think it's highly likely that Kaine et al knew that Terri would not challenge the RO (as she did not in real life challenge it. ) No second guessing if she would challenge it or not. She did not because, I feel, the info is true.

So now Bunch et al have a new tactic. Maybe to try to make people think that Terri is a concerned parent. Who knows. I am sure that Kaine et al know exactly what Terri's game is and they will respond appropriately.

 

[Calliope]

I think it's hard to predict the unpredictable.

I think it's highly likely that Kaine et al knew that Terri would not challenge the RO (as she did not in real life challenge it. ) No second guessing if she would challenge it or not. She did not because, I feel, the info is true.

So now Bunch et al have a new tactic. Maybe to try to make people think that Terri is a concerned parent. Who knows. I am sure that Kaine et al know exactly what Terri's game is and they will respond appropriately.

bbm

Yes, but this is hardly unpredictable, especially for an attorney who is supposed to be well-versed in the statutes governing FAPA RO's.

 

[Calliope]

I disagree. Gathering witness statements under deposition has to be approved by the court. You can't just depose people. In that Terri did not contest the RO there is no way that they could go around deposing people. There was no case. There was no civil action. There is no way she would have received a subpoena until this motion was filed by Bunch. Everything was in limbo until the abatement hearing. Those matters were abated for 90 days. And now this motion for visitation time, has opened a new door.

In that Bunch attempted this little back door approach and is now saying that his client is not going to cooperate and participate, Atty Rackner now should be given permission to depose witnesses for a given purpose. It is called a Subpoena Deuces Tecum and issued by order of the court. Bunch has opened that door.

Rackner is doing exactly her job and very well IMO by insisting on a method to obtain direct testimony from family and friends under oath and within the law. You cannot just demand that people talk to you. What a chaotic world this would be if it was legal for lawyers to go around demanding direct testimony without even a court filing. That isn't how the legal system works.

And, how could Rackner three months ago pursue medical records about Terri for the months since three months ago? (July, August, September, October)? Or direct testimony from family and friends about her actions in the months since Kaine left Terri? There wouldn't be records for the time since Kaine left Terri 3 or 4 months ago.

bbm

In a civil case? Are these rules different in Oregon?

I've been involved in a civil case where my attorney deposed witnesses without approval of the court. In fact, this was before we knew it would necessarily go to court. Luckily I had a good attorney who was prepared.

ETA: it seems there are only certain circumstances in which court approval is necessary in Federal Court; I'd be interested in knowing what the rules are for Oregon:

There are certain circumstances when the Federal Rules of Civil Procedure require that the court's approval is required to take deposition testimony. Under Rule 30(a)(2), if more than 10 depositions sessions would be required to obtain all relevant information from a testifying witness, the court must grant approval. In addition, if a witness already gave deposition testimony, a court must approve additional depositions of that same witness. Lastly, if the witness to be deposed is in prison, a request to take that witness' deposition must be made to a court.

Read more: Federal Rules of Civil Procedure Deposition | eHow.com http://www.ehow.com/about_5340954_federal-rules-civil-procedure-deposition.html#ixzz13QAjnTo9

 

[krowdkat]

bbm

In a civil case? Are these rules different in Oregon?

I've been involved in a civil case where my attorney deposed witnesses without approval of the court. In fact, this was before we knew it would necessarily go to court. Luckily I had a good attorney who was prepared.

I had the same experience in a civil case I was involved in. Many depositions were taken at my lawyers office and we had never been before a judge. In fact, the case never made it before the judge. The case was settled through mediation. A judge was never involved. Just the parties named in the initial suit that was filed with the courts. It was an employment discrimination case against a hospital I worked at, and was witness to.

 

[citigirl]

bbm

In a civil case? Are these rules different in Oregon?

I've been involved in a civil case where my attorney deposed witnesses without approval of the court. In fact, this was before we knew it would necessarily go to court. Luckily I had a good attorney who was prepared.

Rackner can depose witnesses she knows about, but not witnesses she doesn't know about. She may have to subpoena Terri's docs and possibly mental health professionals who worked with her. She may want to depose members of Terri's family who will not be deposed until they are subpoenaed. I apologize if Oregon law is different from the states I have lived in, but if so, I hope the lawyers will correct me.

Rackner's motion was about blocking expedition of the parenting hearing, not the parenting hearing itself. As well as to request the source of Terry's attorney fees so possibly some of that money can be used to defray Bunch's fees.

I expect Rackner will do all the things you say she would do for that hearing. For all you know, she has already lined up many of the witnesses.

 

[grandmaj]

I'm not a lawyer but I have been deposed many times because I was in a Public Role for years. The attorney had to at least file a notice of taking of deposition on a matter with the court and the clerk of court signed the subpoena. They were civil matters and the court case was referenced on the subpoena. Some went to court some were settled out of court.

I'm going to let the lawyers weigh in on this. But it has been my experience that depositions come after you have at least filed a claim for relief with the court.