Articles Archives - Clooten Law Hermiston Pendleton

Ask a Lawyer – August 2022

January 18, 2023/0 Comments/in Articles /by clooten

Q:

My neighbor keeps calling the police and making false accusations. Now she says she is going to file a Restraining Order (“RO”) against me. My fear is that if the RO is upheld, I might have to go to jail. Please help.

Answer:

This question comes up in so many different flavors that it’s worth taking a dive into false accusations. Before we begin the analysis, I’ll cut to the chase: you need to speak with an attorney.

This question breaks down into two parts: I) False Accusations, and II) the fundamentals of a Restraining Order.

False Accusations break down into two larger categories: Criminal and Civil.

Let’s analyze each. The type of false accusations will dictate your response.

Criminal Context

Generally, false accusations in the criminal context include an allegation of a criminal offense. This alleged offense may have even been reported to the police. Frequently, criminal allegations will be closely tied to Restraining Orders.

This is a fairly simple analysis. If another person has made a false accusation against you in a criminal case, you need to talk with or hire an attorney.

The right to remain silent is a right that applies equally to a person who is guilty, not guilty, or somewhere in between. Your answers could have far-reaching impacts; well beyond the current investigation.

Civil Context

This could be through a pending civil case, a former significant other, or a person smearing your good name online.

At a very basic level I believe that a person needs to decide whether they are going to fight back or let the allegations blow over. There are pros and cons to either decision and generally speaking, a person should have a larger plan in place to win the war.

Regardless of your choice in response, I’ll provide my basic guidelines for dealing with false accusations.

If the allegations are indeed false, the truth is on your side. Don’t stoop to their level and make false accusations back against the other person.

False accusations are deeply troubling. They can cause you to feel alone. They can cause myriad negative emotions.

Do not be alone with your accuser in the future. Make sure you follow recording laws but have a recorder or bring a witness.

Do not give the accuser additional ammunition.

If you’ve hired an attorney, only speak through the attorney. Don’t try to go around the attorney and speak to the person who has made false accusations against you. It will only lead to more issues.

If you don’t have an attorney, all communications need to be in writing. You should also carefully decide before sending any communications.

Fundamentals of a restraining order

There are 4 requirements to qualify for a restraining order: Age, Relationship, Abuse, Ongoing danger.

Age: Generally speaking, everyone needs to be 18 or older, but they are available to minors in certain situations.

Relationship: You and the accuser must have a qualifying relationship. Your accuser must be:

your current or former spouse or Registered Domestic Partner or
someone you live with in a sexually intimate relationship (or used to)

or

someone you have a sexually intimate relationship with (or did within the past 2 years) or
related to you by blood, marriage, or adoption

or

the parent of your child

Incident of abuse in the last 180 days. In this case you caused

Physical Injury to the accuser

or

tried to physically injure the accuser

or
• you made the accuser afraid that you were about to physically injure them

or

you made the accuser have sexual relations against their wishes by using force or threats of force

Ongoing danger. You must be an imminent threat to the physical safety of the accuser.

As you can see, the use of a restraining order is generally reserved for people who were previously in a relationship with the other person or who have a familial relationship. In general, a civil restraining order will only result in jail time if you violate a provision of the restraining order and are convicted of contempt.

This being said, any time a person has threatened or filed a restraining order against you, it’s recommended that you consult with an attorney before making a decision on how to proceed.

Ask a Lawyer – Blaine Clooten of Clooten Law, LLC – November 2022

January 18, 2023/0 Comments/in Articles /by clooten

Question: I’ve read some of your other articles and thought you might be able to help. My ex and I separated in 2019. Before that, we lived together for 12 years and had a child together. We were never married. We are now going through a custody case. We have a very smart 10-year-old daughter who wants to tell the judge who she wants to live with. At what age can a child decide which parent she wants to live with?

Answer: Thank you for reading! I am happy to try to point you in the right direction. I hope this answer helps you out.

The direct answer to your question is at age 18. At age 18, the child can choose who she wants to live with.

There are different ways that the child’s preference or interest can be heard by the court, but ultimately, this is an issue for the parents to decide. If the parents cannot decide then the court will decide.

So, how is your child’s voice going to be heard by the court if they are not 18?

There are circumstances where the judge will hear testimony from a child during a custody case. Frequently in this county, the judge will take the child into chambers, which is a less formal setting. The child is then questioned, and their answers are recorded for the official court record.

In this scenario, if the parents are represented by counsel, only counsel, the judge, and the witness (child) will be in chambers, not the parents. This allows the child to feel freedom to testify more fully. Remember however that the testimony is on the record and either parent has access to these recordings in the future.

For this reason, attorneys often discourage their clients from putting a child on the stand unless it is essential to the case. Putting a child on the stand to state a preference for one parent over the either can drive a permanent wedge between a parent and take an extreme psychological toll on the child. The judge is not bound to follow anything the child has said and instead will only decide custody and parenting time based upon what is in the best interests of the child.

There are two other primary mechanisms that allow a child’s voice to be heard in a custody proceeding. One is for the child to request counsel. Counsel would be separate from either of the parent’s counsel and represent the interests of the child. The second is for the court to order a custody evaluation.

A custody evaluation is a report drafted by an expert after interviewing the parties, the children and any collateral contacts (family members, friends and similar people). The custody evaluation will make recommendations regarding custody of the children and a parenting time plan.

Custody evaluators are neutral third-party experts, usually licensed and trained in the field of psychology. The court must first order the evaluation and upon entry of the order, the parties must participate in the evaluation process.

The custody evaluator typically devotes substantial time and effort to interviewing the children to better understand the totality of the situation and make recommendations that are in the best interests of the child(ren).

Through this custody evaluator’s report, the child’s wishes should be expressed in either the witness statement portion, or in the evaluator’s report. Ultimately the court has the discretion to either follow the recommendations of the evaluator or make a different ruling that the judge feels is in the best interests of the child(ren).

In my practice it common for children to express to their parents a desire to testify and for their voices to be heard. They want to tell the court who they should be living with. Oregon is somewhat unique in the respect that the child’s voices can be heard, but that their wishes do not need to be followed or even considered by the judge.

A similar question often arises after a custody case has been decided and the child does not want to do visitation with one parent. The parent will ask, “At what age can a child refuse to go to parenting time.” Again, the answer is at age 18. What do I do when the child refuses to go to parenting time? This is a more fact specific answer and will depend on the situation. For the answer to this question, I recommend you talk to a family law attorney.

How do I protect myself financially from a spouse? What should I ask for in a divorce?

March 9, 2022/0 Comments/in Articles /by clooten

Ask a lawyer, March 2022

Q. How do I protect myself financially from a spouse? What should I ask for in a divorce?

A. This is a great question that could take hours to discuss, depending on the facts of your situation. Circumstances vary so much, that all I can really give is some broad strokes and general guidelines.

The simplest thing to do is to is discuss concerns with a spouse
(assuming you aren’t already planning to file for divorce) and come up with a post-nuptial agreement that guides the division of your property and decisions about spousal support should you get divorced.

In any divorce case, the first thing that you need to do is go and get your hands on every single financial document that exists that you have access to. Every account, every debt, every title. This means retirement accounts, bank accounts, anything that has numbers on it and has a value. If you are not able to get the information before filing the only other way for you to get at that documentation is through the discovery process once the case is filed.

You’ll never really understand what a fair settlement is until you know what property exists.

Oregon has a requirement that there be an equitable distribution of property. Assuming we know all the property that exists, and we’ve gathered our documents we can begin going through the analysis of a fair settlement or fair resolution.

So what is fair? A fair settlement is going to roughly be an equal distribution between the assets and the liabilities of each person. What does this mean?

It is important to note that while the court has jurisdiction to distribute all property of both spouses, generally the court will equally divide “marital assets.” That is the assets or accrual on prior assets that either party acquired during the marriage. Premarital assets or assets like inheritance require a fairly complex analysis to determine whether and how they should be divided.

On one side of the ledger, we’re going to have the assets. On the other side of the ledger, we’re going to have all the liabilities.

Let’s consider a large debt as a liability. Maybe it’s a credit card debt for a hundred thousand dollars. The person taking on that debt is also going to receive an asset of equal value to zero out the balance sheet. You have to receive roughly the same amount of liabilities and assets as the other person for the settlement to be fair.

What should you ask for in a divorce? From a property perspective, this is going to depend primarily on whether or not the person is paying spousal support. Let’s take the common example where one person has been mostly a homemaker in raising the children while the other has worked during a long-term marriage. And now they’re getting a divorce. Let’s assume the homemaker spouse doesn’t have the skillset to reenter the workforce immediately and will require training or education.

Depending on things like, age, duration of the marriage, the education and work experience of the parties, the court may require the working spouse to pay spousal support to the homemaker spouse. The court will decide on the length and the amount of support necessary in each situation depending on the facts of the case. Unlike child support, there is not a set formula for calculating the amount owed to the other spouse.

Depending on income and the property, that support may need to counterbalance against what type of property division the wife is going to get. It’s a possibility in this hypothetical that the homemaker spouse might receive more property rather than spousal support, or might receive less spousal support in consideration of the extra property portion received.

So perhaps the homemaker spouse will receive the house that is free and clear, so they don’t have to make any payments on it rather than receiving spousal support payments every month.

What’s a fair divorce settlement for the working spouse in this case? What’s fair for the working spouse is going to depend primarily on what are the remainder of the assets at stake, what are the liabilities and whether or not they’re paying spousal support. And the inverse of that is also true for the homemaker spouse.

What should the homemaker spouse ask for in a divorce settlement is also then going to depend on, do they need a house for the children, are they going to be the custodial parent or have they been working?

Based on the question, I’d recommend these tips:

Divorcing a Narcissist

Pre-planning before separation guideline

Initial Steps

· Collecting documents and things (gather up all documents and make copies)
· Change your passwords (social media, financial accounts, etc.)
· Consider getting a therapist (but do discuss with an attorney the rules of discovery)
· Make sure you have a safe place to go, once you decide to leave
(especially with children)
· If there is abuse, research a restraining order (FAPA)
· Reach out to local domestic violence services
· Do some financial planning to ensure independence
· Take anything of sentimental value with you (or put them in a safe place)

Throughout divorce

· Understand the legal process takes time especially because a narcissist will not compromise
· Reflect on the bottom line for what you want from divorce regarding property and parenting time
· Consult with attorney, know your rights
· Take measures to protect your pets
· Change phone plan, and lock phone down
· Do not post on social media
· Close social media accounts but do not erase because it is “discoverable”
· Find online communities for dealing with divorce and/or other support groups

What is bail?

November 12, 2021/0 Comments/in Articles /by clooten

Understanding how “Bail” works

November 10, 2021/0 Comments/in Articles /by clooten

Q: What is bail? Who is allowed to pay it? What does a bail bondsman do?

A: This is a frequently asked criminal law question, and important to understand. In Oregon, “bail” is a method for ensuring a criminal defendant’s compliance with conditions of release, such as: making future court appearances, abiding by no contact orders, abstaining from intoxicants, not purchasing or possessing firearms during the pendency of a case, not leaving the state of Oregon, notifying the court of future address changes, and any other similar conditions that the court might impose, depending on the case.

Most states use the traditional bail method, which means you would need a bail bondsman to help post “bond” in a criminal case. When most people think of bail, they undoubtedly picture a bail bondsman. Think, “Dog the Bounty Hunter”. Only Wisconsin, Kentucky, and Illinois, along with Oregon, do not allow bail bonds. Oregon does have bail, but technically it is “security release” more than it is “bail”.

Oregon Revised Statue (“ORS”) 135.265 Security Release governs the terms (rules) of security in cases where the judge has set “bail”. Posting security is known informally as “release on bail”. The defendant then executes a security release in the amount set by the judge. The difference in Oregon compared to other states is that only 10% of the security amount must be posted in order to qualify for the release.

Here are some things to consider before posting security release for yourself or another person:

The court will automatically keep 15% of the security release posted (not less than $5.00 and not more than $750.00).
The court will, unless otherwise ordered, apply the security release deposit to any financial obligations on the case to which it was posted, and any other financial obligations the defendant owes within the State of Oregon, including child support arrears.
If the defendant fails to appear at the next scheduled court hearing, the court may order forfeiture of the entire security release posted, as well as a security judgment for the full amount of the ordered security release. Example: Judge orders $10,000 security release, 10% posted is $1,000 for defendant’s release. If a security judgment is imposed, the payee will be responsible for the full amount of the $10,000.
Refunds are disbursed to the person posting the bail once the case is closed or exonerated and will be mailed to the address listed on the bail receipt. If a change of address is needed, a written request must be submitted to the court by the person posting the bail.
If bail funds are deposited in the Inmates Trust Account by anyone other than the defendant, and the defendant self-bails, a refund will be issued to the defendant – not the person depositing the funds in the account.
The state is not required to refund bail posted. Once posted, the State will go through their process in applying funds anywhere else, before being returned to the defendant.

If you are facing any stage of a criminal proceeding, it is best to have counsel representing you. It may be possible for your attorney to reduce or eliminate the need to post security to ensure a defendant’s release from custody.

Q: What are the disadvantages of getting a payday loan?

A: This is a crucial question. I’ve filed over 80 bankruptcies on behalf of folks in Umatilla County. In my experience, most people facing bankruptcy have taken a payday loan to make ends meet.

We are living in challenging times, and money is often tight. Most Americans are now living paycheck to paycheck. When you’re counting every dollar just to get by, even a minor increase in expenses can completely derail your budget.

This is where payday loans come in. The terms seem manageable. You may feel out of options. I’m in so deep, what can this one more bill hurt? It’s better than being evicted, right?

In your case, you might survive, pay off the terms, and remain cash flow positive. But in many instances, this band-aid is the beginning of the end. Once you start payday loans, you keep going back. You need that cash to make other ends meet, and the cycle gets worse and worse.

As an attorney, I am strictly prohibited from giving financial advice. But, if you are considering a payday loan, I can tell you to talk to an attorney about bankruptcy, an accountant about bookkeeping, or a financial advisor about investments.

Blaine Clooten is an attorney specializing in Personal Injury, Family Law and Estate Planning. Visit www.oregonlegalfirm.com for more details. Questions answered do not create an attorney-client relationship. Answers are for general information and are not legal advice.

Ask a lawyer, dealing with potential sexual harassment

November 10, 2021/0 Comments/in Articles /by clooten

Q: “Our young adult daughter is living with us, and is working at a medical clinic. One of the physicians she works with has asked her out on several dates (she has made up excuses and declined), continuously compliments her appearance within earshot of other staff, and has touched her back and shoulders unnecessarily. This is making her so uncomfortable that she wants to quit. She does not want to confront him. There is no HR person at the clinic and this physician is one of the owners. Would it make sense to get a lawyer involved?”

A: Your description carries many hallmarks of sexual harassment. Depending on the number of employees in the clinic, she may only have state and not federal remedies. However, she should be realistic that if she takes legal action against her employer, continuing employment may be impossible. If the employer fires her for starting legal action, that would be retaliation, which is also actionable, but she would still be out of a job. She should not quit before she finds a job because she may not qualify for unemployment benefits. This is a very complex issue, and she should consult an employment law attorney prior to making any decisions. She might want to start a job search at the same time that she consults with an attorney.

I received assistance from other attorneys for this answer and I have further reading/information for anyone that is interested, please visit: https://www.erisresolution.com/career-defense-101

Q: “I live next to a city park, which is quiet and seldom used. Now there is talk of putting a dog park or a playground there. I think it will lower my quality of life, as well as my property value. Is there anything I can do?”

A: Aside from hiring an attorney, there are two realistic paths, 1) lobby city council to prevent installation, or 2) move. An attorney can explain the other possible legal avenues you have available, such as nuisance. An actionable nuisance is an interference with an interest or right of one party, the plaintiff by action of another, the defendant, to which law attaches responsibility. To prove nuisance the plaintiff must prove the following elements, (1) Substantial interference; (2) Unreasonable interference; (3) Culpable conduct; and (4) Causation.

Aside from the statute, your legal remedies will largely be determined by local zoning/use laws and who is building the park, or in your case repurposing the park. There are also issues with dog parks regarding parking, clean up and maintenance, liability, dog fighting, and noise, all of which the local government will need to consider before building the park.

There are also statutorily defined nuisances, but those also carry defenses to nuisance claims, such as immunity, coming to the nuisance, exercise of a legal right, and comparative fault.

I know your question by nature is somewhat limited. Your remedy is going to be fact specific. I often encourage folks to become active participants in local government processes. That said, my best recommendation is to talk to an attorney about your particular situation to fully understand your legal rights.

Q: “How to find an affordable attorney?”

A: A simple enough question. Generally, it is easier for folks in more populated areas to find an affordable attorney than those in rural areas. The truth of the matter is that attorneys in Eastern Oregon are retiring faster than they can be replaced and legal resources will continue to grow more scarce over time. Finding local representation for your problem is always best because a local attorney knows the judge assigned to your case and how he or she is likely to rule based on your facts.

When a local attorney is not available, you may be forced to search elsewhere. The Oregon State Bar’s Lawyer Referral Service (“LRS”) has programs to assist the public in finding the right lawyer. You are entitled to an initial consultation of up to 30 minutes for a maximum fee of $35. Their number is: 503-684-3763.

Oregon lawyers created the Modest Means Program to help moderate-income Oregonians find affordable legal help. Eligibility for the program is based upon type of legal matter, applicant income and assets, and availability of participating lawyers. If you qualify for the program, the Modest Means lawyer will charge you a reduced rate for any additional legal work beyond the initial consultation.

The Modest Means Program is only available for family law, criminal defense, foreclosure, and landlord/tenant matters at the trial court level, 503-684-3763 is their number.

For additional answers to similar questions please visit the resources page of my website.

Blaine Clooten, Attorney at Law, serving Umatilla County with a focus on Family Law, Estate Planning and Personal Injury Cases. Questions answered do not create an attorney-client relationship.

Is a COVID-19 lawsuit for pain and suffering a possibility?

November 10, 2021/0 Comments/in Articles /by clooten

Q: “I am thinking of suing my employer and am wondering if this is a good idea. I am a waitress in a nice restaurant. The owner has been unwilling to make anyone wear a mask, and really discourages us from wearing one while working. She had a mild case of COVID-19 back in February (before I could get a vaccine), and I’m pretty sure I caught it from her. I had a much more severe case and missed two weeks of work. My energy level and sense of smell and taste still aren’t back to normal, six months later, and I am having frequent dizzy spells. Is a lawsuit for pain and suffering a possibility?”

One of the most important things to be able to prove in any civil lawsuit is causation. You need to be able to prove that your current injury was caused by the defendant. My main concern in your hypothetical case is causation, and meeting that burden of proof.

You work in a customer facing environment, where the restaurant isn’t requiring customers to wear masks. Even if your boss had COVID and spread it to you, it’s going to be hard to prove it actually came from your boss as opposed to catching it some other way.

The other issue is that you live in the world. There are so many possible vectors for exposure. I do not think this cause of action would survive at the motion for summary judgment phase.

As we move forward, I think that’s going to be a problem with any “I got Covid at (work) (the concert) (the church) (the rodeo)” type cases. You still have to prove causation. I have to be cautious when answering these, because I don’t want to say, “no way, no how,” but it’s certainly an uphill battle.

Q: “My neighbor’s dog killed my three backyard chickens, and I’m wondering if I can make him reimburse me. He was apologetic but did not offer to pay to replace them. Part of the problem is that my chickens are not technically allowed in the neighborhood where I live, and he has been cool about it. So I would feel bad taking any legal action, plus that might compromise my ability to have chickens in the future. What’s the best thing to do in this case?”

You’ve identified the issue. Just because you have a cause of action, doesn’t mean it’s necessarily a good idea to file a case. It sounds like your chicken operation was flying under the radar with no push back from neighbors. I cannot tell you to violate the law, but I imagine that filing a lawsuit would almost certainly eliminate any future chances of doing the same thing.

I believe you could file a small claims suit. There are several steps required before filing, including making a good faith effort to resolve the case outside of court. Please read the full instructions here:

https://www.courts.oregon.gov/forms/Pages/small-claims.aspx

Reading your question, it’s hard to tell if you’re more upset at the loss of your chickens, or the actual cost of replacement. I have to imagine part of the reason you’re asking the question is that you grew close with your backyard companions over time. You also mentioned that your neighbor was apologetic.

I believe the neighborly thing to do would be to have a conversation. Let them know that you plan to replace the chickens, but want to avoid potential future loss because 1) they cost money to replace and 2) you grow attached to the animals overtime. This will be a final opportunity for the neighbor to offer to pay for the cost of replacement, and perhaps beef up fencing on his side to prevent future incidents.

Q: “Any advice on how to deal with a neighbor harassing you with the police won’t do anything? It’s verbal and property harassment.”

These are the times when I really need more information to give constructive feedback. My guess is that when contacted, the police advise you, “This is a civil matter,” meaning, it hasn’t risen to a criminal level based on their investigation. I’d really need more details about what is being said, what is going on, and how the neighbors are harassing your property. As you’ve figured out, you can continue to call the police when issues arise but finding a long-term solution sounds like your goal. I’m going to recommend you talk to an attorney and here’s why: depending on your answers to some questions, your remedy will change. I don’t believe it would be prudent to discuss potential remedies without more information. You can call local attorneys, or you can contact the Oregon State Bar Referral Service for a reference: 503-684-3763.

For additional answers to similar questions please visit the resources page of my website.

Blaine Clooten, Trial Lawyer, serving Umatilla County with a focus on Family Law, Estate Planning and Personal Injury Cases. Questions answered do not create an attorney-client relationship.