Paul Seckel and Guntersville Law, LLC welcome our newest lawyer, Attorney Emily Jolley. Emily is a 2015 graduate of the
Guntersville Law LLC’s newest attorney. Emily Jolley
Birmingham School of Law. Prior to entering the practice of law, Emily worked for twenty years as an educator. She has served as a general education teacher, special education teacher, assistant principal, principal, and IEP Coordinator. She has been a consultant and expert witness for special education litigation. Emily earned her bachelors degree at Auburn University in secondary education, her master’s degree in educational leadership from the University of South Alabama, and her educational specialist degree in special education from Jacksonville State University. Emily has been a presenter at National, State, and school district-wide workshops on meeting the individual needs of students and special education law. Emily is a native of Albertville, Alabama and graduated from Albertville High School in 1993. She has worked for the Albertville City School System since 2008. Emily has always had an interest in the legal field that she and her brother, Allen, gained from their father, retired Circuit Judge Tim Jolley. Emily has two daughters, Sarah and Katie. Emily’s dedication and love for teaching mean that she will be working part-time for an undetermined amount of time so that she can fulfill her teaching responsibilities. Please call 256-571-1529 to set up an appoint with Attorney Emily Jolley. Alternatively, you can email her at email@example.com.
The Alabama Supreme Court recently released an opinion in the case of Ex parte City of Guntersville Petition for Writ of Mandamus. This case originated in Marshall County Circuit Court where Margaret Hulgan filed a negligence case against the City of Guntersville to recover for damages for injuries she alleges she incurred at Civitan Park after watching the Fourth of July fireworks show on July 4, 2012. Ms. Hulgan claimed that when returning to the parked vehicle she arrived in, she tripped over a crossbar in the parking area and injured her shoulder.
The City of Guntersville made a motion for summary judgement claiming that it had immunity from her claim and that it did not have actual knowledge that the crossbar presented a condition, use, structure, or activity which involves an unreasonable risk of death or serious bodily injury, thus not allowing this claim to fall under one of the exceptions to immunity under Alabama Code §35-15-24. The Marshall County Circuit Court ruled against the City of Guntersville and did not grant their motion for summary judgement. The City of Guntersville appealed the decision on summary judgment and the issue was decided by the Alabama Supreme Court.
The Alabama Supreme Court ruled in favor of the City of Guntersville’s petition for a writ of mandamus to vacate the order by the circuit court that denied the city’s motion for summary judgment and entered a summary judgement in favor of the city. The court stated in it’s opinion that Ms. Hulgan did not meet her evidentiary burden to prove that the city had actual knowledge that the crossbar presented a danger and that the City of Guntersville had a clear legal right to immunity under the recreational use statutes.
The Alabama Court of Civil Appeals has ruled that creditors cannot garnish the wages of someone earning less than $1,000 per paycheck as long as that money is being spent on living expenses.
The court ruled on May 12, 2017 in the case of Merrida v. Credit Acceptance Corp. The case originated out of Mobile involving two women who were sued by Credit Acceptance Corp. for payment of car loans. According to court documents, Samantha Nettles owed more than $13,500, and Lenita Merrida owed almost $10,500. The amount included missed payments, interest and court costs.
They were first represented by Legal Services Alabama (LSA) last year, which argued the women’s wages of less than $1,000 per paycheck were protected by the Alabama Constitution from garnishment. After a ruling against the women at the circuit court level, LSA and the Southern Poverty Law Center appealed the decision and argued that they could not support their families on what they made if their checks were garnished. Previously the $1000.00 dollar exemption had been interpreted as a one-time exemption of $1000.00. The ruling in Merrida v. Credit Acceptance Corp. established that instead of a one-time exemption that the $1000.00 exemption should be applied to each pay check so that anyone earning less than $1000.00 per pay check is protected from wage garnishments that prevent them from providing the necessities for their families.
Guntersville Law, LLC is proud to announce the launch of its special education Web site. If you suspect there is an issue with your child receiving a free appropriate public education (FAPE), that your child’s school has violated the Individuals with Disabilities Education Act (IDEA), that your child’s Individualized Education Plan (IEP) is inappropriate, or that a student’s 504 plan is inappropriate, please check out our new Alabama Special Education Law Web Site. You can access the site directly at www.aledlaw.com
Please call Paul Seckel at 256-571-1529 if you need a free consultation to discuss your child’s special education needs.
In Whitehead v. Whitehead, decided by the Alabama Court of Civil Appeals on February 12, 2016, the Court does a really good job of explaining the two standards for custody modification. Alabama applies either the McLendon standard or the Couch standard when deciding custody modification.
Two Parents Fighting Over Child In Divorce
The McLendon standard “provides that the parent seeking to modify a previous custody award must demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the child’s best interests and that the benefits of the change would offset the disruptive effect of the change in custody.”
The Couch standard, otherwise referred to as the “best interests of the child” looks to what is in the child’s best interest.
How to Decide Which Standard Applies
If this is the initial custody determination, or someone with joint physical custody is seeking to modify child custody, then the Couch standard applies.
If the divorce order gives either parent primary physical custody, then the McLendon standard would apply and the party seeking modification would have to prove that:
- A material change in circumstance has occurred
- Change of custody would so benefit the child that the disruption of custody is outweighed by the benefit the child would receive by the change in custody.
This publication is meant for informational purposes only and is not intended to be legal advice. You should consult an attorney for information of how this applies to your particular situation.
Police Stopping and Charging Person
Proposed changes that are supposed to go into effect on 1/30/2016 change mandatory driver’s license suspension so that possession of marijuana in the first and second degree no longer mandate driver’s license suspension.
|OLD Section 13A-12-291 ||NEW Section 13A-12-291 |
|Specific crimes warranting suspension of driver’s license. || |
|A driver’s license shall be suspended pursuant to Section 13A-12-290 for conviction of, adjudication of, or a finding of delinquency based on, the following crimes: ||A driver’s license shall be suspended pursuant to Section 13A-12-290 for conviction of, adjudication of, or a finding of delinquency based on, the following crimes: |
|(1) Criminal solicitation to commit a controlled substance crime under Section 13A-12-202. ||(1) Criminal solicitation to commit the crime of trafficking in specified substances under Section 13A-12-231 or unlawful possession with intent to distribute a controlled substance under subsections (c) and (d) of Section 13A-12-211. |
|(2) Attempt to commit a controlled substance crime under Section 13A-12-203. ||(2) Attempt to commit the crime of trafficking in specified substances under Section 13A-12-231 or unlawful possession with intent to distribute a controlled substance under subsections (c) and (d) of Section 13A-12-211. |
|(3) Criminal conspiracy to commit a controlled substance crime under Section 13A-12-204. ||(3) Criminal conspiracy to commit the crime of trafficking in specified substances under Section 13A-12-231. |
|(4) Unlawful distribution of controlled substances under Section 13A-12-211. ||Removed |
|(5) Unlawful possession or receipt of controlled substances under Section 13A-12-212. ||Removed |
|(6) Unlawful possession of marihuana in the first degree under Section 13A-12-213. ||Removed |
|(7) Unlawful possession of marihuana in the second degree under Section 13A-12-214. ||Removed |
|(8) Sale or furnishing of controlled substances by persons over age 18 to persons under age 18 under Section 13A-12-215. ||Removed |
|(9) Trafficking in specified substances under Section 13A-12-231. ||(4) Trafficking in specified substances under Section 13A-12-231. |
| ||(5) Unlawful possession with intent to distribute a controlled substance under subsections (c) and (d) of Section 13A-12-211. |
|(10) Driving under the influence of a controlled substance, or under the combined influence of a controlled substance and alcohol under Sections 32-5A-191(a)(3) and 32-5A-191(a)(4). ||The suspension of a driver’s license for driving under the influence of a controlled substance, or under the combined influence of a controlled substance and alcohol pursuant to Section 32-5A-191 shall be governed by that section |
Alabama now has a Class “D” felony. Historically, Alabama has classified felonies as Class “A”, Class “B”, and Class “C”. With the prison reform bill proposed to be effective 1/30/2016, a Class “D” felony was introduced. Appropriate sections of the code follow:
Code of Alabama § 13A-5-11. Fines; felonies.
(a) A sentence to pay a fine for a felony shall be for a definite amount, fixed by the court, within the following limitations:
(1) For a Class A felony, not more than $60,000;
(2) For a Class B felony, not more than $30,000;
(3) For a Class C felony, not more than $15,000;
(4) For a Class D felony, not more than $7,500; or
(5) Any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense.
(b) As used in this section, “gain” means the amount of money or the value of property derived from the commission of the crime, less the amount of money or the value of property returned to the victim of the crime or seized or surrendered to lawful authority prior to the time sentence is imposed. “Value” shall be determined by the standards established in subdivision (14) of Section 13A-8-1.
(c) The court may conduct a hearing upon the issue of defendant’s gain or the victim’s loss from the crime according to procedures established by rule of court.
(d) This section shall not apply if a higher fine is otherwise authorized by law for a specific crime.
Code of Alabama § 13A-5-3.
“(a) Offenses are designated as felonies, misdemeanors or violations.
“(b) Felonies are classified according to the relative seriousness of the offense into three four categories:
“(1) Class A felonies;
“(2) Class B felonies; and
“(3) Class C felonies. ; and
“(4) Class D felonies.
“(c) Misdemeanors are classified according to the relative seriousness of the offense into three categories:
“(1) Class A misdemeanors;
“(2) Class B misdemeanors; and
“(3) Class C misdemeanors.
“(d) Violations are not classified.
Code of Alabama § 13A-5-6.
“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following limitations:
“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.
“(2) For a Class B felony, not more than 20 years or less than 2 years.
(3) For a Class C felony, not more than 10 years or less than 1 year and 1 day and must be in accordance with subsection (b) of Section 15-18-8 unless sentencing is pursuant to Section 13A-5-9.
(4) For a Class D felony, not more than 5 years or less than 1 year and 1 day and must be in accordance with subsection (b) of Section 15-18-8.
“(4)(5) For a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, or a Class A felony criminal sex offense involving a child as defined in Section 15-20-21(5) 15-20A-4, not less than 20 years.
“(5)(6) For a Class B or C felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony, or a Class B felony criminal sex offense involving a child as defined in Section 15-20-21(5) 15-20A-4, not less than 10 years.
“(b) The actual time of release within the limitations established by subsection (a) of this section shall be determined under procedures established elsewhere by law
“(c) In addition to any penalties heretofore or hereafter provided by law, in all cases where an offender is designated as a sexually violent predator pursuant to Section 15-20-25.3 15-20A-19, or where an offender is convicted of a Class A felony criminal sex offense involving a child as defined in Section 15-20-21(5) 15-20A-4, and is sentenced to a county jail or the Alabama Department of Corrections, the sentencing judge shall impose an additional penalty of not less than 10 years of post-release supervision to be served upon the defendant’s release from incarceration
“(d) In addition to any penalties heretofore or hereafter provided by law, in all cases where an offender is convicted of a sex offense pursuant to Section 13A-6-61, 13A-6-63, or 13A-6-65.1, when the defendant was 21 years of age or older and the victim was six years of age or less at the time the offense was committed, the defendant shall be sentenced to life imprisonment without the possibility of parole.