Question one FAMILY LAW
Rose and Rex married in 1986. Rose was 20 years old, had a high school
education and was employed by "Club 21' as a coat checker. Rose's only
asset was a 1971 Vega automobile. Rex was 65 years old, refired and independently
wealthy. Six, months after the marriage of the parties, Rose gave birth
Initially, the marriage was a happy one and Rex enjoyed lavishing gifts
on Rose. He bought her furs and jewelry and, on the parties' first anniversary,
presented her with a deed transferring his vacation home in Palm Springs,
California, into joint names- Unfortunately, by 1990, Rose had grown bored
with Rex and commenced an affair with her personal trainer, Bubba. Although
the parties primarily resided in St. Louis, Missouri, Rose periodically
visited Palm Springs, taking Rudy and Bubba with her.
During the marriage of the parties, neither party was employed as Rex
had more than adequate assets and income to support them. Both were involved,
concerned and doting parents. Rose did not permit her liaison with Bubba
to interfere with her parenting of Rudy.
Rose, Rudy and Bubba traveled to Palm Springs over the Christmas holiday
in 1994. During that vacation, Rose determined she was living a lie and
had to divorce Rex. She consulted an attorney in California who advised
her to file a Petition for Dissolution of Marriage in California and have
it served in Missouri. She filed the Petition in late December 1994. At
the same time, Rex decided he had been made a fool long enough and could
no longer tolerate Rose's affair with Bubba. He filed a Petition for Dissolution
of Marriage in Missouri two days after Rose filed her Petition in California.
Upon Rose's return to Missouri in early January 1995, she was served with
Rex's Petition before Rex was served with the Petition she filed in California.
Rex was served two days later.
1. Does California or Missouri have jurisdiction to determine the custody
Fully explain your answer.
2. Rex tells you, his attorney, that he questions whether Rudy is his
biological child and he wants to know for sure. What must you, as Rex's
attorney, do in order to raise that issue and have a court determine Rudy's
3. Rex feels he was hoodwinked by Rose and requests that the court return
the Palm Springs estate, furs and jewelry to him as his separate property.
Rose, on the other hand, claims that Rex gifted the estate, furs and jewelry
to her and therefore they should be hers. What result and why?
4. Rose wants custody of Rudy and wants to move permanently with him
to Palm Springs. Rex opposes the move. Will she be permitted to remove
Rudy from the State of Missouri? Why or why not?
5 . Rex's annual income from premarital investments is approximately
$1,000,000. He does not work and therefore has no earned income. Rudy will
spend equal time with each parent, Rose is seeking child support equal
to 10% of Rex's annual income- Will she be successful? Why or why not.
Discuss specifically how the child support, if any, will be determined
and what factors the court must consider.
6. Rose is seeking lifetime maintenance. Will she get it? Why or why
ADMINISTRATIVE LAW QUESTION FEBRUARY 1994
Horace Dimbulb was principal at Wisdom Senior High School from 1987
to 1993. Malcolm Smart, Wisdom Schools' Superintendent, sent Dimbulb many
memos throughout his career as principal highlighting serious performance
problems such as failing to have master student assignment schedules so
that some students had no assignments and others had double assignments,
and failing to exert any control over student behavior in the school building
as evidenced by students running boisterously down halls during class periods
and openly using profane language to teachers. Despite the memos, Dimbulb's
performance did not improve.
In February, 1993, Smart told Dimbulb that he would not recommend Dimbulb
for re-employment as principal. The Wisdom -School District's Board of
Directors voted not to re-employ Dimbulb as principal and to offer him
a teacher's position on April 14, 1993. The Board prepared a letter advising
Dimbulb of its decision and sent one copy regular mail, one copy certified
mail, and gave a third copy to Smart to hand deliver to Dimbulb on the
Dimbulb knowing that the Board notified school employees of its decisions
regarding reappointments on April 15th of each year, took a sick day on
April 15, 1993, Smart was unable to hand deliver the letter due to Dimbulb's
absence, The Board then hired a private process server, Will Getu, on April
15th who tried to serve Dimbulb at his home several times on April 15th
with no luck. Getu testified at the hearing that he could see Dimbulb in
his home through the window, but Dimbulb would not open the door. Dimbulb
received a letter from the Board advising him of the Board's decision in
the regular mail on April 16th and a teacher's contract was on his chair
when he returned to school on the 16th.
As a principal, Dimbulb's rights are governed by 168.101 RSMo. Pertinent
subparts of 168.101 provide:
*(3) Each school board . . . shall notify each . . . employee in writing
concerning his reemployment in his present staff position or lack thereof
on or before the fifteenth day of April . . . . Failure on the part
of a board to give the notice constitutes reemployment of the same
terms and in the same staff position
*(6) If such . . . employee has been reemployed five times within the
district, the school board, if requested in writing by such . . .
employee within ten days after receipt of notice of demotion or lack
of reemployment on the same terms and in the same staff position,
shall make available in writing a statement of reasons for demotion
or lack of reemployment within ten days after receipt of request.
The board shall grant such . . . employee a hearing if requested in
writing by him within ton days after the receipt of statement of reasons,
the hearing to be held within ten days after the request therefor,
and to be open at the request of the . . . employee. The . . . employee
may have counsel at the hearing, may testify and offer evidence sustaining
his defense and may cross examine adverse witnesses.
Chapter 536 governing Administrative Procedure and Review was in effect,
and provided in pertinent part:
* 536.010(2) "Contested case" means a proceeding before an agency
in which legal rights, duties or privileges of specific parties are required
by law to be determined after hearing.
*536.073 (1) In any contested case before an agency . . . any party
may take and use depositions in the same manner, upon and under the same
conditions, and upon the same notice, as . . . is provided for with respect
to the taking and using of depositions in civil action in the circuit
court . . . .
Upon notice of the Board's decision, Dimbulb timely requested a hearing
and a statement of reasons for the Board's decision pursuant to 168.101
(6). The Board fully and timely complied with his requests. Dimbulb took
multiple depositions prior to the hearing. Barry Ster, Esq. represented
Dimbulb during the hearing, and called and crossexamined witnesses. The
hearing was transcribed and both parties submitted exhibits and trial briefs.
Following the hearing, the Board sustained its decision not to re-employ
Dimbulb as a principal and issued Findings of Fact and Conclusions of Law.
Dimbulb sought judicial review of the Board's decision in the circuit court
which sustained the Board's decision. Dimbulb then appealed the case to
the Missouri Court of Appeal, Northern District raising three points on
appeal: 1) the trial court erred in reviewing the case as a contested case;
2) several of the Board's Findings of Fact were contrary to the exhibits
and testimony offered at the hearing; and 3) the Board failed to notify
Dimbulb in a timely fashion of Its decision not to re-employ him as a principal
and such failure constituted reemployment as a principal.
1. What argument(s) should Dimbulb make to show to the appellate court
that the case was not a contested case?
2. How should the attorney for the Board respond to Dimbulb's argument(s)
on the contested case issue?
3. What standard of review should the appellate court use to determine
the validity of Dimbulb's claim that some of the Board's Findings of Fact
are contrary to the exhibits and testimony offered at the hearing?
4. Finally, what should the court's ruling be on Dimbulb's claim that
the Board did not notify him in a timely fashion of its decision not to
re-employ him as principal and such failure constituted reemployment as
a principal? Why?
MISSOURI PRACTICE AND PROCEDURE
Paula Patient filed suit in Acme County, Missouri against Doctors Able
and Baker on July 8, 1994. Paula's Suit alleges that Doctors Able and Baker
failed to properly diagnose and treat her gall bladder disease.
Doctor Able filed his Answer to Paula Patient's petition and raised
the following affirmative defenses:
For further Answer, and by way of affirmative defense, defendant Dr.
Able states that plaintiff is comparatively at fault in this case.
Dr. Baker filed his answer to plaintiff's petition, and denied therein
that he had ever rendered any direct treatment to the plaintiff. Defendant
Dr. Baker admitted only that he had consulted with Dr. Able about the care
and treatment Dr. Able rendered to plaintiff Paula Patient.
The medical records in the case indicate that on June 23 and 24 1992,
at the request of Dr. Able. Dr. Baker briefly examined Paula Patient while
she was admitted to St. John's Hospital. Dr. Baker made some treatment
recommendations to Dr. Able and documented his opinions in a consultation
note found in the plaintiffs medical chart. Dr. Baker had no other contact
with plaintiff or her care and treatment until July 9, 1994 when, again
at the request of Dr. Able, he interpreted data from recent tests performed
on Paula Patient. After reviewing the tests, Dr. Baker wrote a short 'Ietter
of consultation" to Dr. Able advising him of his findings and concluding
that the current treatment plan should be continued.
Instructions: Please answer the following questions based on the
factual scenario above and in the question itself. First, answer
the question and then explain your answer. Please be concise and
Is Dr. Able's affirmative defense legally sufficient as stated? Why
or why not?
On September 1, 1994, Dr. Baker filed a motion for summary judgment
in which he alleged that there were no genuine issues of disputed facts.
Defendant Dr. Baker claimed that he never treated Paula Patient and, therefore,
he did not have a physician/patient relationship with her. He claimed that
without a physician/patient relationship, Paula could not sue him for malpractice.
May Paula Patient oppose Dr. Baker's motion for summary judgment by relying
on the allegations of her petition? Explain.
In addition to the arguments Dr. Baker made in paragraph II above, he
asserted, in the alternative, that if he did render any treatment to Paula
Patient, such treatment had last been rendered on June 24, 1992 when he
examined her. Therefore, he asserts, this suit was not filed within two
years from the date of the last treatment as required by Missouri law.
As Paula Patient's attorney, what is the primary argument you would make
to defeat summary judgment on this basis? Briefly state why.
The Court scheduled a date for oral argument on Dr. Baker's motion for
October 13, 1994. The day before the hearing, Paula Patient served Dr.
Baker with an affidavit in opposition to the summary judgment motion, stating
that Dr. Baker provided information and consultations which Dr. Able used
to prepare a treatment plan for Paula Patient. The affidavit is based on
information and belief of Paula Patient's current treating doctor. Is Paula
Patient's affidavit properly before the court? Explain.
FEBRUARY, 1995 BAR EXAMINATION
O. J. Simple, following a very successful career as a professional athlete,
retired to Little Angel, Missouri to be closer to his two adult sons, Johnny
and Bob. Unfortunately for 0. J., he encountered legal problems during
his retirement and the payment of legal fees has diminished his once-large
estate. His assets now consist of two bank accounts, one with a balance
of $5,000 and the other with a balance of $2,500, and five acres of vacant
land next to the new highway. Not wanting to spend another dime on lawyers,
0. J. does not make out a will. Instead, he gathers his two sons together
for a family meeting and tells them the extent of his property and that
he wants his two sons to share the money in the bank accounts and that
he is going to leave the five acres of land, which he believes to be practically
worthless, to his old college football buddy, Roosevelt Green. 0. J. explains
to the kids that he had made a promise to Roosevelt years ago that he would
leave this land to him in his will because Mr. Green provided great assistance
during 0. J.'s legal problems.
After this meeting, 0. J. goes to the bank and has the $5,000 account
put in the joint names of 0. J. and his son, Johnny. 0. J. then has the
$2,500 bank account put in the joint names of 0.J. and his son, Bob. 0.
J. does not make a will, but instead makes a Missouri beneficiary deed
leaving the five acres to Mr. Green. 0.J. does not, however, have the beneficiary
Six months after all this occurs, 0. J. dies. Mr. Green somehow obtains
the beneficiary deed and records it. Mr. Green then enters into a contract
to sell the five acres to Wal-Mart for $25O,000. The two sons, Johnny and
Bob, go to the bank and learn of the joint bank account. Johnny and Bob
also learn about Mr. Green's contract to sell the property to Wal-Mart
for $250,000 and they are quite angry since they and their father thought
this property was virtually worthless. Bob, being a licensed attorney in
Missouri, decides to take legal action. Bob files one lawsuit against the
son, Johnny, asking the Court to divide the two bank accounts evenly. Bob
files a second lawsuit against Mr. Green and Wal-Mart in which he seeks
to have the beneficiary deed set aside, and Bob also asks the Court for
a temporary restraining order, a preliminary injunction, and a permanent
injunction to block the sale of the property to Wal-Mart.
Based on these facts, answer the following questions:
1. What, if any, is Bob's remedy to obtain one-half of the total of
$7,500 in the bank accounts?
2. Assume that Bob gives no notice to either Mr. Green, WalMart, or
their lawyers, and has not served them with the summons and petition, but
nevertheless gets the Court to grant a temporary restraining order. Is
the TRO proper?
3. Assume the court grants the TRO and sets bond at $250, 000, but no
bond is ever posted. Can Green and Wal-Mart now go ahead with the sale?
4. Assume the court grants the TRO and sets a preliminary hearing for
the following Wednesday. At this preliminary injunction hearing, can Green
and Wal-Mart present their own evidence to show that the beneficiary deed
5. Assume that 0. J.'s signature on the beneficiary deed was never acknowledged.
Does Green have any other legal way to obtain ownership of the five acres.
If so, what?
6. At the preliminary injunction hearing, what must Bob prove in order
to be granted the preliminary injunction blocking the sale of the property