Category: Family Law

Without Involving Police, Man Recovers Nearly $200,000 Stolen By Daughter

August 7, 2018

The client, Donald, had opened an account with Carter Bank & Trust in Roanoke, Virginia approximately ten years previously.  At some point thereafter, Donald put his daughter’s name on the account for the purpose of leaving the money to his daughter upon his death.  However, the bank inadvertently made Donald’s daughter a co-owner of the account by using paperwork different from what Donald had intended, which was to make her merely a beneficiary of the account upon his death.  As time passed, Donald’s account, including several CDs, grew to more than $198,000.00.  During this time of joint ownership with his daughter, Donald claimed that his daughter knew of the purpose of this arrangement, she never contributed to or used any of the money in the account, and she never withdrew any money for any purpose.

On March 19, 2018, Donald’s daughter and he argued over a package of bacon.  His daughter stated that Donald accused her husband and her of stealing his bacon by eating it all and then putting the empty bacon package in his freezer.  Shortly thereafter, she went to Carter Bank & Trust and withdrew all money from the account without Donald’s knowledge or consent.  After early withdrawal penalties, the daughter left Carter Bank & Trust with a cashier’s check for $198,781.14 made payable to her.  She then deposited the cashier’s check from Carter Bank & Trust into her own account at Freedom First Federal Credit Union.

When Donald learned of this withdrawal he felt hurt and betrayed, and called his daughter to demand that she return his money, which she rudely refused.  Donald did not want to see his daughter in jail, and so he did not want to call the police.  Instead, he threatened to hire and attorney to get the money back.  His daughter told him, “Go ahead, do what you gotta do.”  Donald then met with several attorneys and ultimately hired Attorney Harry F. Bosen, Jr.

To alleviate the risk of Donald’s daughter inflicting any additional financial harm to Donald, Bosen advised to Donald to revoke the Power of Attorney (POA) that he had previously given to his daughter, and he executed a new POA, prepared by Bosen, designating his brother as his POA.  Donald executed a new Will, prepared by Bosen, naming his brother as the sole beneficiary of his estate.  

Bosen researched for a legal mechanism to overcome a major hurdle in the case:  the fact that Donald had signed documents at the bank that made his daughter a “co-owner” of the account, technically giving her equal control over the funds therein.  Bosen decided that Donald’s report of the money in the account remaining untouched for the previous ten years during which his daughter was a co-owner, established at least a course of dealing and made it appear as if the account was an “account of convenience”, and that such a course of dealing was essentially an agreement as to the nature and status of the account.

Bosen then filed a Complaint in Roanoke City Circuit Court setting out three theories of recovery:  

  1. Wrongful or Fraudulent Conversion,
  2. Unjust Enrichment, and
  3. Promissory Estoppel.  

In the Complaint, Bosen asked for:

  1. temporary and permanent injunctive relief,
  2. punitive damages for conversion,
  3. attorney fees for fraud, and
  4. the return of all of Donald’s money and the penalties suffered on withdrawal.

A Preliminary Injunction prohibiting Donald’s daughter from using or spending any of the subject money was entered and then extended by agreement with the daughter’s attorney.  

Bosen then subpoenaed documents from the daughter’s bank, Freedom First Federal Credit Union.  Bosen discovered that approximately one week after depositing the subject money in her bank account, the daughter withdrew $200,000.00 from her account; and when Donald demanded she return the money to him, she put the $200,000.00 back into that same account at Freedom First Federal Credit Union.

Requests for Admissions were served on Donald’s daughter.  An Answer was filed by her attorney.  She denied the money was Donald’s! 

A few days before a hearing set for extending the Preliminary Injunction, the daughter’s attorney called Bosen with a settlement offer:  the daughter would refund all of Donald’s money and pay Donald the penalties if Donald would drop his claims for punitive damages and attorney fees.   Donald agreed.

An Order modifying the Injunction was entered, allowing the money in the daughter’s Freedom First account to be utilized to pay Donald, which was then done.  A final Order was entered, which dissolved the Injunction and dismissed the case.

Donald was extremely pleased with the outcome, and benefited greatly from Bosen’s representation because Bosen handled the case on an hourly fee basis rather than a contingency basis.  Other attorney’s had offered to handle the case for Donald on a one third (1/3) percentage, which would have cost Donald more than $66,000.00 if they had been successful in recovering all of the money like Bosen was.

No attempt was made to recover the bacon.

Disagreements Between Parents May Affect Child Custody

October 15, 2017

It is difficult for a child to be shuttled back and forth between divorced parents who cannot communicate constructively.  It is worse for the child as he or she gets older and becomes more aware of the hostility between his or her parents.  If a recent decision from North Carolina is any indication, this growing awareness of parents’ hatred toward one another may be grounds for modifying a custody order.

In that case, a couple divorced in 2012.  The judge awarded the father primary physical care and custody of the couple’s young daughter, Reagan.  The judge apparently made this decision based on the couple’s “utter inability” to work together for their daughter’s benefit, as well as the mother’s repeated unsubstantiated allegations that the father was abusing Reagan.

Two years later the mother asked the court to modify the custody order, claiming that the father’s new girlfriend was acting as Reagan’s primary caregiver.  The court granted the motion, citing “changed circumstances” and giving the mother primary custody.  Specifically, the judge found that the parents still couldn’t communicate effectively and that Reagan, who was getting older and becoming more aware of the situation, was experiencing increasingly higher anxiety as a result.  He also noted that the father and his girlfriend were keeping Reagan away from other family members, and that the mother was no longer making false abuse allegations.

The father appealed, arguing that his differences with his ex-wife were not grounds to modify custody based on a change in circumstances, since they had never gotten along after the divorce.  The North Carolina Court of Appeals disagreed with the father, finding it “entirely foreseeable” that communication problems between parents would affect a child more as she grows older, becomes involved in more activities that require her parents to cooperate, and becomes more aware of and sensitive to conflict between her parents.

Virginia law differs from North Carolina law.  Check with a Virginia lawyer who practices in family law to find out how these situations could be handled in Virginia.

Parents May Be Liable For Child’s Posts On Facebook

May 21, 2015

Parents may be held liable in a Roanoke County, Montgomery County, Botetourt County, Roanoke City, or City of Salem court for damages for things their children post on Facebook, stemming from a recent decision from the Georgia Court of Appeals.

Seventh-grader Dustin Ahearn created a fake Facebook page for a classmate, Alexandria Boston. The page used a “fat face” app to make the girl look obese, and included posts suggesting that she used drugs, was racist and promiscuous, and had mental health problems.

Alexandria’s parents complained to the school, which suspended Dustin for two days and told his parents. Dustin’s parents punished him, but they neglected to make him take down the site, which remained online for almost a year until Alexandria’s parents sued them.

The court said that Dustin’s parents couldn’t be held liable for the fact that Dustin created the site in the first place, because he did it without their knowledge. However, once they knew about the site, they may have had a legal duty to supervise Dustin’s Internet use, including making him take the site down, the court said.