Cathy McKay and the Woman to Woman Project

            In the modern legalized world, sometimes people simply need help, advice, or an education. However, many people often lack the basic means to receive such guidance. Through their kind deeds, volunteers help these people by devoting their time and providing their knowledge and expertise to those that desperately need it. Cathy McKay is one such volunteer.

Apart from the countless other activities, boards, and volunteer work she participates in, Cathy is a member of the New Hampshire Woman’s Bar Association (NHWBA). The NHWBA, in conjunction with the New Hampshire Department of Corrections, developed and runs the Woman to Woman Project. The Project is focused on extending the NHWBA’s goal of “[promoting] the advancement and interests of woman in the legal community through leadership, professional interaction, education, and exchange of ideas.” (See the recent New Hampshire Bar News article for more). The goal of the program is twofold to provide general answers to those with questions in the family law field, but lack financial support, and to maintain the equality of services between the men and woman’s prison. Overall, the hope is that these women can learn from their legal troubles and come away with a better understanding of the system of laws and regulations that impacts their lives and their children’s lives.

            The office of Parnell, Michels & McKay would like to thank Cathy on her selfless service to her profession, New Hampshire, and its citizens. We here at Parnell, Michels & McKay truly strive to help those out there in need of guidance by untangling what can be a complicated web of legalese. We seek to counsel people through life’s difficult moments with personal empathy and countless years of legal experience. If you are interested in learning more about Family Law, or you have another legal matter that needs to be address, please contact us to learn more. If you would like to know more about the NHWBA or the Woman to Woman Project, please visit the NHWBA’s website here.  

-          By: David M. Stamatis, Esq.

Office Christmas Party - Legal edition

            With just a few days before one of the biggest holidays of the year, many businesses choose to reward their employees by throwing holiday parties. These festive celebrations can help reward the employees for the company’s good year while inspiring thoughts of togetherness and good cheer. However, how often do we hear about the raucousness of some holiday parties? It seems like every year, there is some national news story about allegations of sexual assault or other wildly inappropriate and dangerous behavior by superiors to subordinates or co-workers to other co-workers (e.g. this story about a supervisor who installed a stripper pole for his employees). Often, these bouts of horrendous behavior are spurred on by alcohol. Many pop culture staples have taken on the “office party” tableau, including The Office and Mad Men. In fact, this year, Dreamworks and Paramount released a movie playfully mocking these workplace gatherings in the appropriately titled, “Office Christmas Party”. While these media mainstays may have us joyfully laughing at the actions of fictitious characters, these events cannot be treated as a laughing matter for employers.

            Employers ought to be concerned with the actions of employees who may have imbibed a tad too much at their holiday gatherings. If that employee gets into an accident on the way home from such a gathering, the employer may have significantly more to worry about than terminating an employee with poor decision making skills. While Courts in the “Live Free or Die” State held that “it is the drinking, not the providing, of alcohol that causes the harm,” duties for employers will still develop if they serve as their employees’ social host. Hickingbotham v. Burke, 140 N.H. 28, 34 (1995).

In New Hampshire, the law focuses on who provides the alcohol and where it is provided. While there is more than one theory of recovery, a quick primer on the law of social hosts and respondeat superior may help guide employers through the holiday season. Consider the following scenario: Smaller businesses may consider buying and providing alcohol to their employees at an office gathering at work to save some money. For peace of mind, these smaller businesses are better served by hiring a bartender for the event and/or renting a separate location. While larger business may not have the financial concerns that smaller businesses have the advice applies to them in the same measure.

            Without the separation of location and alcohol provider, business maybe looked at as a social host, or worse yet, as holding the party within the confines of employees’ scope of work. Both theories are fact based inquiries that will target the exact who, what, where, when, how, and why of the party and the alcohol served. If the employer is considered a social host, an injured third party would need to show that the social host placed their guests in such a position that the host “consciously disregarded a substantial and unjustified risk of a high degree of danger” through the (over) provision of alcohol to their guests. Id. at 33. The theory of respondeat superior would require the injured party to prove that the employer imputed upon itself a duty to third parties by holding an office party that was within the scope of the employee’s job, not as an employee individually. See Estate of Thompson v. McClure, 2001 N.H. Super. LEXIS 21, *4–5 (Super. Ct. 2001) (quoting Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485 (1995)); see also Everitt v. Gen. Elec. Co., 159 N.H. 232, 238 (2009) (leaving the door open for recovery under the theory similar to respondeat superior but for unrelated parties). Thus, by having off-campus parties, with separate bartenders, on time or days that are not during work hours, employers separate themselves from the actions of their employees. Employers do well to remember that while third-party liability is difficult to prove, it is not impossible. Thus, it is best to operate under the motto of, “spend a nickel to save a dime”.  

            Christmas, and all the holidays celebrated this season, should be fun events that leave you with happy memories for a lifetime. Unfortunately, these times do not always pan out the way you hope. If you have been injured by slipping on a poorly shoveled walkway, you have had a car accident during icy conditions, the holiday money crunch has left you thinking about bankruptcy, or you are simply considering about divorce, the attorneys at Parnell, Michels & McKay can help. We seek to counsel people through life’s difficult moments with personal empathy and countless years of legal experience. If you are interested in learning more about some of the topics mentioned in this post, or you have a pressing legal concern, please contact us to learn more. Let us help you get back to having a happy holiday season.   

New Change Helps Make Bankruptcy More Accessible

            Soon the holiday season will be upon us. To some, this time of year signals warmth, family, and good cheer. To others, the holidays are simply another source of stress. There are many pressures in this modern age that pull our focus in several directions. Family finances are often something that get pushed to the back of our minds, leaving many living beyond their means. As such, financial debt is a keystone burden that many New Hampshire families face. After years of neglect, mismanagement, pride, or the unexpected, families often consider the possibility of filing for bankruptcy. Filing for bankruptcy need not be a daunting or embarrassing process. Rather, many are so thankful for the relief a bankruptcy filing can provide after months of phone calls and dealing with creditors.

There are several different kinds of bankruptcy filings to help those in distress. The different kinds of filings are divided into the frequently-noted “Chapters”. For an individual natural person(s), Chapters 7 and 13 are of significance. Today’s blog post considers a slight, but significant change in the process of filing for one chapter or the other. For the Chapter a debtor chooses is not as simple as picking one form or another. In fact, there are many questions and considerations that a debtor ought to consider with an attorney before filing. The attorneys at Parnell, Michels & McKay are equipped with the prerequisite knowledge and years of experience needed to address an individual’s particular financial situation. This blog post is intended to note a small, but important alteration in the Bankruptcy Rules, not provide legal advice.

 In general, a Chapter 7 is a pure liquidation bankruptcy of dischargeable debt, and a Chapter 13 is a reorganization bankruptcy design to repay some of the debtor’s debt. In 2005, the United States Congress substantially changed its bankruptcy laws to add what is now called the “Means Test”. The Means Test was implemented to prevent Chapter 7 filing abuse by debtors that possessed the ability to repay at least some of their debts. In the most short and simplistic terms, the difference between a Chapter 7 and Chapter 13 is dependent on the debtor’s income. If a petitioner makes too much money, they may be prohibited from filing a Chapter 7 for failing the Means Test.

The Means Test is applied when a debtor possess a gross income that is higher than the median state income as determined by the federal government. Still, an application of the Means Test does not automatically induce a Chapter 13 bankruptcy. Rather, the Means Test considers a certain amount of national allowances (for items like food, clothing, etc.), taxes, the different kinds of debt a debtor possesses, and certain other exceptions, across the six (6) month period prior to filing. To be clear, this a vast over-simplification of how particular (and critical) the Means Test can be for certain debtors. However, the area of concern for this blog post is the recent changes in New Hampshire’s median state income.

As of November 1, 2016, the median income for the state of New Hampshire is $61,580. On October 31, 2016, the median income for New Hampshire was $56,289. This jump in income is unprecedented. As on January 1, 2008, the median income in New Hampshire was $50,086 and when the Means Test was implemented in 2005 the median income in New Hampshire was $50,411. As one can see, the median income is not guaranteed to improve by great leaps and bounds every year. While, the most recent jump in median income may signal more prosperous times for the Granite State, the change in median income also presents the possible opportunity for more debtors to apply for a Chapter 7 bankruptcy. Such a significant jump could prove crucial to those that fell just above the line after completing the Means Test, but would have likely struggled under a Chapter 13 reorganization repayment plan.  

            If you have considered filing for bankruptcy, but have been concerned with the prospect of doing so, now is the time to speak with the attorneys at Parnell, Michels & McKay. Our attorneys will take guide you through a process that can be as technically complicated as it is emotional. Please contact our office to learn more. Let us help you move toward some financial stability.   

Buyer Beware! (Of Ghosts?)

            The crunching of leaves, cold nights preceding comfortably cool days, October is the epitome of fall. Halloween is one of the most beloved holidays in this country, surely netting millions for the Nestlé Company and your local dentists. Halloween is known for emphasizing (and celebrating) the things that scare us. However, many places in this country attempt to make money all year-round in an attempt to monetize the bizarre, unknown, and frightening. What people often do not think about is the legal impact of such actions. In Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991), a New York Court was forced to decide that “as a matter of law, [a] house [was] haunted.” Yes, in a 1991 case riddled with ghostly-puns, a Court was actually required to write that sentence. In fact, the decision is now known as the “Ghostbusters” ruling. Please join us for a fearsome cautionary tale about disclosures in Property Law.

            After having his petition dismissed, a man appealed his rescission action. The buyer signed a purchase and sale contract on a home in Nyack, New York, a village just outside of New York City. What was the reason for his suit? The purchaser had come to find out the house was “haunted”. New York, like New Hampshire, is a caveat emptor state, meaning “let the buyer beware”. For her part, the seller held the house out as haunted. The seller sought after the publication of her family’s stories of ghostly apparitions haunting the home. The stories appeared in Reader’s Digest and the local press on at least two occasions. These publications gave the home a local reputation of being haunted. By 1989, the home was included on a walking tour of the city, which included mentioning the home’s ghostly inhabitants. However, the buyer was not from Nyack. Therefore, he was unaware of the building’s reputation of having ghostly dwellers. Upon learning of the home’s spectral residents, the seller wished to have a rescission of his contract.

At this point, a reader may ask how could the Court possibly be forced to waste its time with such nonsense. Is the Court really going to say that a buyer can back out of a contract because he is afraid of ghosts? The short answer is yes, but not for that reason. Despite the ridiculous context, there was a real legal question for the Court to answer: How far does caveat emptor apply? The Court answered the question by stating, baring certain nonapplicable exceptions, there is normally no duty to disclose information concerning the premises. However, there are limits to caveat emptor. The basis behind the legal theory is that it is the buyer’s sole responsibility to assess the fitness and value of the property he or she is buying. However, it is not the buyer’s responsibility to consider and ask every single question that could possibly pertain to the property. The Court encapsulates this idea by writing, “there is no sound policy to deny plaintiff relief for failing to discover a state of affairs which the most prudent purchaser would not be expected to even contemplate.” Of course, any person would want to know the facts that may impact the potential value of a home, right?

As preposterous as the facts of this case may be, in New York, and in general, caveat emptor applies to the physical condition of the home. Caveat emptor does not apply to the reputation of a home created by information disseminated to the public through the seller.  The Court held that “[w]here a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller, or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission”. Even express disclaimers will not save the potential defendants. The Court takes time to note that even though the purchase and sale agreement included the phrase to sell the home “as is”, such language assumes that both parties have an equal understanding of what the property is or had an opportunity to reasonably discover such facts. As the Court reasons, “permit[ting] a seller to take unfair advantage of a buyer’s ignorance so long as [the buyer] is not actively misled [is] ‘singularly unappetizing’.” For here, the seller not only took advantage of the seller’s ignorance, but did so on the basis of facts the seller created about the home.

            While you likely will not have to deal with poltergeists when buying or selling your next property, the sale of a home does have its share of terrifying pitfalls. New Hampshire is a caveat emptor state. Surely, you would not want to be left with some haunted manor (made scarier by the termite damage you forgot to ask about). Consider consulting with an attorney that knows the kinds of questions you should ask before signing your name to any contract. At Parnell, Michels & McKay we seek to guide people through what can be obscure legalese to help provide sound legal advice steeped in the practical necessities particular to a client’s situation. If you are interested in learning more about the kinds of questions you should ask when purchasing a home, information you should provide when selling a home, or have questions and concerns about Property Law, please contact us to learn more. Let us help you avoid a “haunting” experience.   

Bill Parnell Awarded Citizen of the Year by Greater Derry/Londonderry Chamber of Commerce

By: Rory Parnell

My father moved to Derry in 1979. He had grown up in Virginia in a town called Falls Church, and then went to Boston University for college. He fell in love with the northeast, and after getting married moved to New Hampshire. There, he started a legacy as a community member who strove to help develop the Town of Derry. I was born a few years later and joined two brothers. We grew up in Derry and went to school here. Growing up, my father had many lessons for us to teach. He was always a proponent of setting a good example for us and working hard to develop us as people.  Now, looking back as an adult I can see now some of the sacrifices he made for us and the community.

When my father and I discuss the type of law firm we want to be, he often said we want to be lawyers who help those in the community but also make our own kid’s soccer practice. As we grew up, he coached our flag football teams, our soccer teams, and even moonlighted as a summer league hockey coach. He did this because he was needed not only by us, but by our teammates and our community. He coached so many teams and joined so many local sports boards and organizations that I don’t think I could list them without someone helping me. I always just expected that this was how it was, and this was normal. As I grew into adulthood, I realized just how much work he had to put in to be there for us and the community.

As Derry moved into the 21^st century, my father was there. I remember we had the Main Street Corporation office in our old East Broadway office, and I remember how much he worked with them to help revitalize the image of downtown Derry. East and West Broadway did not look as it does now. We’ve become modernized and an example to other New Hampshire towns that investing in your community will pay off. He worked hard to develop the image of our community, and continues to do so to this day. He worked hard as president of the Chamber of Commerce and made some difficult decisions. These decisions were hard and took a strong person to make them. Yet, he volunteered to not only make them, but to be a target for those negatively affected. In the end, the community was much better for it, and he was content with that. Getting credit for his work was never something he focused on or sought out.  He was happy with knowing the results were good for those around him.

So, tonight at the Derry/Londonderry Chamber of Commerce Annual Dinner he will be put in a spot that I do not believe he expected. He has been named Citizen of the Year for his tireless work in the community. As I think about the many years I’ve had the pleasure of calling him my father, I am happy to see him recognized. I was fortunate enough to be the one to call him and tell him that he was Citizen of the Year. His reaction was telling. He was speechless, which is something that does not happen often for a lawyer. He had to take a few moments to compose himself, as he felt honored to receive the award. The honor was not from getting the award itself, but from the recognition of the individuals and community members he worked hard to develop this community with. He put in countless hours volunteering for various community programs because he believed that is the way we need to act. We should be positive influences in our community, and strive to better those around us. This was its own reward to him, so being honored as Citizen of the Year meant a great deal to him because of those who chose him. These are his friends and fellow community members working side-by-side with him to make the community better.

To say I am proud of my father is obvious, but the fact the community is able to recognize his efforts means a great deal to myself and the rest of the firm here at Parnell, Michels & McKay. We are so happy to see him get this award tonight and join the list of so many other community members that have received this award in the past.  Tonight, he is named Citizen of the Year, and we are just plain proud of you, Dad. You set an example for all of us to achieve, and I hope we have many years left of working to make our community and the state of New Hampshire better than when we came to it. 

Collaborative Law Alliance of New Hampshire Honors Catherine P. McKay with 2016 John Cameron Award

               We are proud to announce that Catherine P. McKay has been named the 2016 John Cameron Memorial Award winner for her service towards the development of Collaborative law in New Hampshire.  This award is given annually to the individual who best represents and moves forward the goals and ideals of collaborative law.

                The late John Cameron was once quoted by Attorney McKay as having a “collaborative heart”. He, like Catherine McKay, recognized the benefit of keeping legal disputes out of Court and allowing parties to obtain their own relief by working together. This takes the focus off of litigation and the negativity that can accompany it, and instead focuses on a more progressive approach to legal problem solving.

                Collaborative law is an ideal option in family law, and has been a service offered by Parnell, Michels & McKay for many years. Attorney McKay is happy to continue her work in the collaborative law field, and continues to be a pioneer in New Hampshire for the Collaborative Law Alliance.

                If you are interested in collaborative law, please contact us to see whether it can be a fit for you. 

What is recrimination and how does it affect adultery divorces in NH?

            Divorce is an area of Family Law that frequently delves into the sensitive foundation of the parties’ relationship. Some clients come in emotional, hurt, and raw, looking to determine the exact cause of their divorce. However, fault-based divorces are difficult to prove in and of themselves. Moreover, parties must prove that the alleged fault was the exact and only cause of the breakdown of the marriage. Even when the parties are convinced they can achieve a fault-ground divorce (like adultery), there are a number of traps and pitfalls for potential Petitioners. The defense of “recrimination” is one such example. As a practical matter, this defense is frequently conjoined with a cross-petition for a fault-ground divorce to help support this legal defense.

            In August of 2016, the New Hampshire Supreme Court considered the application of recrimination for fault-ground divorces, especially in the fault ground of adultery. Under RSA 458:7, “[a] divorce from the bonds of matrimony shall be decreed in favor of the innocent party for any of” the statutorily-listed causes. In short, a fault-based divorce means that the guilty party loses their right to determine the outcome of the divorce. However, innocent in this statute is a legal term meaning “free from guilt”. Rockwood v. Rockwood, 105 N.H. 129, 131 (1963). As applied to RSA 458:7, it was accepted that parties must come into the divorce with clean hands in order to properly maintain a fault-based divorce. As mentioned, the defense to a fault-ground divorce is recrimination. Recrimination simply means that the allegedly innocent party is “guilty of an offense against the other spouse, which would be grounds for divorce.” Id. The question before the Court was based on the timing and use of this defense. The Court considered whether one must maintain clean hands through the entire Court proceeding, instead of only prior to the time of filing.

In the Matter of Ross and Ross, the Court determined that parties must remain their innocence in order to maintain their fault-ground divorce. 2016 N.H. LEXIS 184, *1 (Aug. 23, 2016). The parties’ divorce lasted for four years. Id., at *2. Both parties alleged fault-grounds at the start of the divorce proceedings. Id. Neither party disputed that the Respondent, who alleged adultery as a fault-ground for divorce, began a sexual relationship with another partner after the divorce proceedings began. Id., at *5. The Court decided that causation, or the reason for the breakdown of the marriage, is not an element of recrimination. Id., at *6. As a legal defense, recrimination is a simple question of whether a party is guilty of actions that would lead a Court to grant a fault-ground divorce in accordance with RSA 458:7 against them. In short, recrimination only requires a party to prove the other party is not innocent at any time during the divorce proceedings. See Rockwood, 105 N.H. at 131.

It is worthwhile to combine the facts and the law in summarized terms. The parties were still technically married. One party engaged in a sexual relationship after the divorce began with someone other than his spouse. He was guilty of adultery as a legal definition. Thus, his fault claims were dismissed on the basis of recrimination. The Court does not care if that instance of adultery could not have possibly caused the breakdown of the marriage. One may say, as the Respondent attempted to argue, that this is a wholly unreasonable result. In an interesting moment of self-reflection, the Court at least addressed that their resolution of this matter might lead to impractical resolutions. However, the Court indicates that it is the New Hampshire Legislature’s job to address the concerns of public policy. 

            Divorces are difficult enough. It is important to choose an attorney that will attempt to work with all parties to find an equitable and reasonable solution whether it be through collaboration or litigation. At Parnell, Michels & McKay we seek to guide people through the toughest times of their lives by providing sound legal advice steeped in the practical necessities particular to a client’s life. If you are interested in learning more about divorce, or have questions and concerns about family law, please contact us to learn more. We want to help.