Sandwiches and the law.
Truitt and Lyons, Attorneys • June 30, 2018
A court decides that a burrito is not a sandwich.
Sometimes legal blogs are too serious, boring or scary. Let’s talk about sandwich law.
This year, the United States District Court for the Eastern District of Pennsylvania ( Fleet v. CSX Intermodal, Inc) issued a decision in a case where an employee was reprimanded for eating a sandwich on the job. The plaintiff alleged that the employer knew of his diabetic condition and that this reprimand was retaliatory and violated the Family Medical Leave Act. But what is a sandwich, legally speaking?
In 2006, a Massachusetts court held that a burrito is definitely NOT a sandwich ( White City v. PR Restaurants ). The owner of a sandwich shop had entered into a lease with a shopping mall. The shopping mall agreed not to lease space to other restaurants with sandwich sales greater than 10% of their total sales. The mall leased space to a Mexican restaurant that was selling, among other things, burritos. The sandwich shop sued, alleging that the burritos were basically sandwiches. Both sides submitted expert opinions on the subject from high profile names in the restaurant industry. One such expert stated, “I know of no chef or culinary historian who would call a burrito a sandwich…..” The sandwich shop argued that a broad definition of a sandwich should be applied. A tortilla, they argued, qualifies as bread and a food product with bread and a filling is a sandwich. The Court applied a strict dictionary definition of the word (New Webster Third International Dictionary): “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” The sandwich shop lost. The court found that the Mexican restaurant was not sandwich competition in violation of the lease
However…..is a sandwich a meal? This issue was addressed by the state Supreme Court of California way back in the 1932. Under the state law during that period, wine and beer could only be consumed in certain public places with meals. In Covert v. State Board , the Supreme Court of California ruled that, “[u]nder our modern system of living a sandwich served in good faith as a meal would constitute a meal as contemplated by law.” However, if the sandwich is “served as mere subterfuge for a meal, it is not a meal.”
We don’t practice sandwich law, but please contact us if you would like to discuss a personal injury, family law (divorce, custody, support, adoption) or other legal matter. Our number is 360-675-9310.
In Washington State, a guardianship is a statutory proceeding to appoint a guardian for an incapacitated person and to give that guardian authority to provide for the incapacitated person’s health and safety, to manage the incapacitated person’s financial matters, or both. A “guardianship of the person” usually involves managing the incapacitated person’s health care, giving medical consents, and overseeing the appropriateness of housing, diet, clothing, recreation, etc. A “guardianship of the estate” involves managing assets, maintaining records, paying bills on behalf of the incapacitated person, etc. A guardian may be a guardian of the person or the estate, or both. The law also provides for either a full guardianship or limited guardianship. A full guardianship invokes the court’s power to manage the incapacitated person’s affairs without limitation, while a limited guardianship imposes only certain restrictions on the incapacitated person’s ability to manage their affairs. Typically, a guardianship is used in situations where an elderly person loses the ability to manage their affairs. However, a guardianship may be needed for a younger person who, for example, has become disabled. If you would like to speak with us about a potential guardianship or other legal matter, please call us at 360-675-9310.
In Washington, a trial court has the discretion to impose foreign travel restrictions in a parenting plan based on "factors or conduct as the court expressly finds adverse to the best interests of the child." In Katare v. Katare (2012) the Washington State Supreme Court found that imposition of restrictions on foreign travel is appropriate if the court finds there is "a danger of serious damage" such as abduction, even if the parent "had not yet attempted abduction." The courts have also held that the restrictions imposed "must be reasonably calculated to address the identified harm." In the Katare case, the trial court prohibited one of the parents from taking the children out of the country until they turned 18 and denied that party access to the children’s passports and birth certificates. The parent was also required to surrender his passport to a neutral party during visitation periods. If you would like to discuss a parenting plan or any other legal matter with our office, please call us at 360-675-9310.
In a recent unpublished case in the Washington State Court of Appeals (Division 1, 2019), the appeals court addressed a father’s petition for a minor modification of his parenting plan. He was asking the Court to change his parenting plan obtained during divorce proceedings a few years earlier. In order to establish adequate cause to modify a parenting plan in Washington State, a petitioner must show a substantial change of circumstances grounded on facts that have arisen since the prior parenting plan that were unknown to the court at the time of the prior parenting plan. In this, case, one alleged change in circumstances was non-cooperative behavior on the part of the other parent. However, the other party disputed this allegation and the facts were in dispute. Furthermore, the Court of Appeals indicated that “conflict and lack of cooperation between parents does not generally constitute a substantial change in circumstances unless it directly impacts the welfare of children.” Thus, the appeals court upheld the denial of the father’s petition because it found the trial court did not abuse its discretion. The outcome may have been different if the father had provided evidence from third parties that the mother’s behavior had changed substantially since the entry of the original parenting plan. As you can see, petitions for changes to final parenting plans can be more difficult and complicated that one might assume. If you would like to consult with us regarding a family law, divorce, custody, child support, guardianship, probate, personal injury or other matter, please call our office at 360-675-9310.
There is a statute in Washington State law that controls termination of parental rights for purposes of an adoption. According to this law, “the parent-child relationship of a parent may be terminated upon a showing by clear, cogent, and convincing evidence that it is in the best interest of the child to terminate the relationship and that the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his or her parental obligations and is withholding consent to adoption contrary to the best interest of the child.” In other words, in order to terminate the parental rights of a nonconsenting parent, the court must find parental unfitness on the part of the nonconsenting parent. The Washington Supreme Court has found that parental obligations consists of the obligations to: 1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. How long must a parent be derelict in their duties until parental rights can be terminated? It depends on the facts of the case. In an unpublished opinion filed in August, 2019, the Washington State Court of Appeals (Division III) upheld a trial court decision terminating the rights of the natural mother who had, according to the evidence, performed none of these obligations for more than five years. The step-mother of the child had petitioned for termination of parental rights and adoption. If you would like to discuss an adoption, family law, divorce, custody, support, probate, guardianship or other matter with our office, please call us at 360-675-9310.
In a recent case from Division III of the Washington State Court of Appeals, the trial court grappled with the fact that sometimes, “somebody could stay near his children and make next to nothing, or move further away from his children and—and make a substantial income.” The trial court determined that the paying parent had an obligation to make a reasonable amount of income and had the qualifications to do so in another location. Child support was set at trial based on job postings in Seattle when the paying parent lived in Kittitas County, thus requiring relocation to make that kind of wage. The Court of Appeals sent the case back for reconsideration of the issue. According to the Court of Appeals, the majority rule in other states is that that the parenting paying support is not required to relocate in order to find a better paying job. “In making employment decisions, married parents regularly weigh maximizing income against fostering a positive environment and relationship with their children. The fact that a divorced parent has been designated the noncustodial parent should not deprive him or her of all right to a work/life balance.” If you would like to contact us to discuss a child support, family law, custody, divorce, guardianship, probate or personal injury matter, please call 360-675-9310.
In calculating child support, the court must consider all income and resources of each parent's household. This includes income such as salaries, wages, interest and dividends, along with other sources of income including maintenance actually received. The court is required to impute income to a parent when the parent is "voluntarily unemployed or voluntarily underemployed.” In other words, the court will put income in their column whether they are actually making the money or not. In a recent case from the Washington State Court of Appeals (Marriage of Kaplan, 2018), the court stated that: “where, as here, a spouse in a long-term marriage stays home to care for the children and manage the household while the other spouse works out-side the home, the court erred in finding at the time of dissolution that [the mother / wife] was voluntarily unemployed and voluntarily underemployed.” The court found that, under the facts of that case, it was error for the trial court to have put income in the wife's column (to calculate child support) when she was not working for those reasons. If you would like to discuss a child support matter, please call us at 360-675-9310. We also handle other divorce / family law matters, guardianship, probate and personal injury.
Under the Child Relocation Act of Washington State, a person with whom the child resides a majority of the time shall notify every other person entitled to residential time or visitation with the child under a court order if the person intends to relocate. The person proposing the relocation must provide his or her reasons for the intended relocation, and there is a rebuttable presumption that the intended relocation of the child will be permitted. In a recent case from December, 2018 (Snider v. Stroud), Division One of the Washington State Court of Appeals held that, in a 50/50 residential schedule, neither parent is "a person with whom the child resides a majority of the time.” Thus, neither parent is entitled to the Relocation Act’s presumption permitting relocation. The Court further found that a substantial change in the circumstances of the party wishing to relocate does not constitute adequate cause for a major modification initiated by that parent. Rather, one must show that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. Thus, if you have a parenting plan with equally split residential time and you want to relocate, you will have to have proper grounds for a major modification of the parenting plan. This is not an easy threshold to meet. If you would like to discuss a child relocation matter or other divorce, family law, personal injury, guardianship or other legal matter, please contact our office at 360-675-9310.
In a divorce case, maintenance (also referred to as “alimony”) is a flexible tool that the court can use (after considering several factors) to try to equalize the parties’ standard of living for an appropriate period of time. In Washington, the only limitation on the amount and duration of maintenance under is that the award must be “just.” Although permanent maintenance is disfavored, it may be appropriate if the party seeking maintenance will not be able to significantly contribute to their own livelihood. When determining issues of maintenance and property division, a paramount concern is the parties' post-dissolution economic position. However, permanent maintenance is not automatically appropriate following the dissolution of a long-term marriage, even when the party requesting maintenance has minimal work history. The paramount concern is the economic position in which the dissolution will leave both parties. If you would like to discuss a divorce, separation, paternity, or other family law matter or legal matter, please contact our office at 360-675-9310.
Prenuptial agreements (also sometimes called “pre-marital agreements) are favored by the courts as a matter of public policy in the State of Washington. This does not mean that they are for everyone. Nonetheless, it has been said that public policy favors such contracts because they are “generally regarded as conducive to marital tranquility and the avoidance of disputes about property in the future.” In Washington, such agreements are evaluated under a two-prong test standard if a party to the agreement tries to enforce it. Under the first prong, the agreement is determined to be valid if the agreement makes a fair and reasonable provision for the spouse who is not seeking enforcement. If the agreement does not make a fair and reasonable provision, the next question is whether there was full disclosure of the value and nature of the property involved and whether there was full knowledge and independent advice about each spouse’s rights. If you would like to speak with us about a family law, divorce, guardianship, probate or other matter, please contact our office at 360-675-9310.
In Washington State, Domestic Violence restraining orders are serious business and worthwhile to contest if you are the respondent in such a proceeding and you do not feel there is just cause for such an order to be issued against you. In addition, if you already have one issued against you, you need to be careful about violating the terms of order even if the petitioner invites contact with them. Their consent to have contact with you is not a viable defense if you are charged with a crime. For instance, in State v. Dejarlais, a 1998 case from the Washington State Supreme Court, the defendant argued that, where a person protected by a protection order consents to the presence of the person restrained by the order, the jury should be instructed that the consent is a defense to the charge of violating that order. The Washington State Supreme court held that such a consent defense is inconsistent with the legislature’s intent to protect victims of domestic violence. Furthermore, the court explained, allowing parties to consent to contact would essentially allow people to modify the order without going to court and having a hearing as required. So, if an order is issued against you and the petitioner invites you over to reconcile or talk things out, you can be charged with a crime and be convicted even if they consented to contact with you. If you would like to contest or pursue a protection order or discuss another family law, personal injury or legal matter, please contact our office at 360-675-9310.