Essay Instructions: This is the assignment that I have to complete. An office memo and a client letter.
I need to use the following to cite in both the client letter and the memo.
1. Army Lawyer March 1990 Article name The Divestiture Defense and United States v. Collier
2. United States v. Diggs 52 M.J. 251 (C.A.A.F. 2000)
3. Article 91 UCMJ
Instructions in how to prepare the letter and memo below
This week, you will have to research and write an office memo, as well as a client letter. Read this Memo sent to you by the Senior Partner in your law firm, Plentibux & Moore:
Memo to: Jack Starr, Paralegal
Subject: Memorandum on Divestiture
I was just contacted by my good friend, Fred Payne, about his son, Sergeant Ima Payne of the United States Army Infantry. It seems SGT Payne has been criminally charged by the Army for “disrespect” because he yelled and cursed at his First Sergeant.
I have heard of “divestiture” and need to know if it is a defense to the military offense of disrespect (Article 91, UCMJ). I seem to recall a case ??" U.S. v. Diggs - that may have dealt with this issue. I also heard that a fellow named Milhizer may have written a law review article in the Army Lawyer about divestiture. Make sure you dig in to the case law as you research the answer, as I am very unfamiliar with the military system.
I need a quick but detailed answer as to the elements of the underlying offense (disrespect) and also need to know whether “divestiture” is a potential defense at the court-martial of Sergeant Payne. Please also outline any limits to the defense.
Draft an office memorandum, using the same format you used last week to answer Mr. Plentibux's questions. Make sure you cite the relevant case law, the law review article, and the Manual for Courts-Martial in your memo. Your answer must not exceed five pages in length. Make sure you use proper Blue Book citation in your memo. A link to the Manual for Courts-Martial can be found in your class “Web Resources.” Use LexisNexis for your research.
Once you have completed the Office Memo, draft a client opinion letter, explaining what you found in your research, for my signature.
This is an example of the client letter and how my professor want every part separated
Law Offices of Leida Velez Valdivieso
5700 Somewhere Street
Melrose, Florida 32536
February 23, 2010
Mrs. Holly Dixon
Moody, FL 32806
Re: Probate of Holographic Will
Dear Mrs. Dixon
You hired me to represent you on this case. When we met at the office, you asked me to determine the likelihood that Mary Cary will submit the holographic will be eligible for probate. (Sentence makes no sense) This letter is solely for your benefit and limited to the facts discussed below.
Your husband passed leaving behind a holographic will that you want to challenge. Mr. Dixon handwrote the will’s first half and Edgar Mae, the next-door neighbor, typewrote the second half. Mr. Edgar Mae states that Mr. Dixon was too weak to continue. Mr. Dixon signed the will; however, there are no subscribing witnesses to the will. Good.
Based upon the above facts you will probably be successful because your husband’s will was not wholly written by your husband. (Awkward but correct) The statute (Be more specific here) clearly states that every last will and testament shall be in writing and signed by the testator or by some other person in his direction and in his presence and if not wholly written by himself, be attested by two or more credible witnesses. In this case, the will was not wholly written by your husband and there is no evidence that two witnesses subscribed their names in the presence on the testator. Therefore, it is likely not eligible for probate.
The statute that applies to this case is the Vernon’s Texas Civil Statutes. Article 8283 of the statute states that if the will is not wholly written by the testator he or she need to have two witnesses above the age of fourteen subscribing their names in the document in the presence of the testator. Substantively correct, but awkwardly written.
Your case is very similar to Dean v. Dickey in this case the testator typed the his own will in the presence of one witness. (Incorrect sentence structure.) In this case, the trial court did not approve the probate because there was only one witness. This case was appealed and the appeals court affirmed the trial court decision. (You need to explain more clearly ??" your writing is awkward. Watch your basic writing mechanics.)
It is (See ??" this mistake indicates that you are not concentrating when you proofread your writing.) my opinion that the will is ineligible for probate under the Texas Law based on the fact the there were no other witnesses the day that your husband started and finished his will. The only person present that day was Mr. Edgar Mae the next-door neighbor. You are not really explaining this very clearly. Here is an example of what I was looking for:
Texas Probate Code Sections 59 and 60 apply to wills that are handwritten by the deceased. These statutes refer to wills written wholly in the handwriting of the deceased and proscribe how such wills must be witnessed. The statutes allow wills that are wholly in the handwriting of the deceased to be probated. The statutes provide that handwritten wills are admissible for probate if they are witnessed in the manner as the will prepared by Mr. Dixon. Such wills, however, must be written wholly in the handwriting of the deceased. Sections 59 and 60 of the Texas Probate Code do not define the meaning of “written wholly” in the handwriting of the deceased. The Texas Court of Appeals in the case of Dean v. Dickey, however, has defined the meaning of “wholly in the handwriting of the deceased.” In this case, the will was typed wholly by the deceased. The court held that words “wholly written” as used in the statutes mean wholly written in the handwriting of the testator, not typewritten.
Based upon the decision in Dean v. Dickey it appears that the will of Mr. Dixon, submitted by Mrs. Cary, is not entitled to probate. The will was not “wholly written” in the handwriting of Mr. Dixon as required by the court’s interpretation of the law. One half was typewritten.
It is possible that the Dean case may not be followed by the current Texas courts. The case is over forty-five years old and may not represent the present thinking of the courts. The holding in Dean, however, was based upon the court’s concern for ensuring the genuineness of the will, and this concern is as equally important today as it was forty-five years ago. This has not changed over the years. In addition, the legislature has not amended the statute to evidence a different intent.
In summary, based on Sections 59 and 60 of the Texas Probate Code and the court’s ruling
in Dean v. Dickey, it is my opinion that the will of Mr. Dixon submitted by Mrs. Cary is not eligible for probate because it was not entirely handwritten by Mr. Dixon.
I hope this information answers your question. I am available if you need my services for this and other cases in the future. If you have additional questions do not hesitate to contact my firm.
Leida Velez Valdivieso
Attorney at Law
This is an example of the office memo and how my professor want the parts to be separated
To: Prof. Ekman
From: Leida Velez
Date: February 14, 2010
Re: Mr. Arturo Garcia
Modification of Child Support
Statement of Assignment
I have been assigned the task of preparing a memo addressing two questions. The first question if it was permissible for Ms. Chavez to unilaterally reduce child support payments when the oldest child reached the age of majority. (mixing tenses) The second question is what is the likelihood of the court granting a modification of child support due to Ms. Chavez change of occupation. (Awkward)
In light of the provisions of New Mexico NMSA § 28-6-1 and § 40-4-7 that provides that the age of majority is reached when an Individual turns 18 years old, may the noncustodial parent unilaterally reduce support when the oldest child reached the age of majority? (The question really revolves around whether she could do this unilaterally!)
In light of the provisions of New Mexico NMSA § 40-4-11.4(A) that provides that a court may modify a child support obligation upon a showing of material and substantial changes subsequent to the adjudication of a preexisting order, can a court grant a noncustodial parent a modification of child support due to a voluntary change of occupation?
You need to be just a bit more specific in your articulation of the issues!
Not in this case. However In the case of Britton v. Britton, (Give full case citation.) the Supreme Court of New Mexico concurred with the well established general rule 2 A.L.R.3d 596 (Don’t cite in a memo to the ALR, generally speaking. Rather, cite to the black letter law or the case law.) that says that an undivided support award directed at more than one child is presumed to continue in force for the full amount until the youngest child reaches majority. You really don’t answer the question you pose in the first issue above. Isn’t part of the answer also that the court has exclusive jurisdiction over the support agreement, meaning that in any event, the parent can not unilaterally change it, regardless of the situation? You need to be much more precise.
No. In the case of Wolcott v Wolcott, (Give full case citation)the Court of Appeals of New Mexico ruled that even if a noncustodial parent changed of careers voluntarily and in good faith, this change does not automatically mandate a reduction in the child support obligation. It does not automatically lead to a reduction, but could it? What if the change is in bad faith? Again ??" you need to be more precise!
After 5 years, Arturo Garcia and Mary Chavez were granted a divorce in May 2001. There are three children from the marriage. The primary custody of the children was awarded to Mr. Garcia. Ms. Chavez, a brain surgeon at the moment of the divorce, was ordered to pay child support in the amount of $3,000 per month. The terms of the divorce order were undivided in that it did not specify a “per child” amount. Ms. Chavez, who was unhappy about the amount of child support that she was ordered to pay, (How do you reach that conclusion? Remember that conclusions are different than facts. The facts may lead to that conclusion, but this is not necessarily a fact. Does that make sense?) quit her medical practice and enrolled in a paralegal program at the community college. Four months ago, the oldest child turned 18 and moved out of the house. Ms. Chavez reduced by one third the amount of child support she was paying. Ms. Chavez did not obtain a court order granting a modification of her support obligation. Good in part, but see my comments . . .
The law governing the modification of the spousal support; support of the children; division of property NMSA § 40-4-7 section F states, “The court may modify and change any order in respect to the care, custody, maintenance of the children whenever circumstances render such change proper. The district court shall have exclusive jurisdiction (emphasis added) of all matters pertaining to the care, custody, maintenance of the children so long as the children remain minors.” In this case, the court ordered an undivided child support payment. In 2 A.L.R. 3d 596, (Give the citation to the case, not to the ALR ??" that is more helpful to your boss. We always work from the law, not from restatements or digests. Things like ALR cites are more helpful as you begin your research.) the court established that an undivided support award directed at more than one child is presumed to complete in full force until the youngest child reaches majority.
The second issue that we are trying to resolve is if Ms. Chavez goes to court and notify her change of occupation would the court modify her child support payments. (Incorrect sentence structure. Just say it simply. In the case Wolcott v. Wolcott (Need full case citation, and need it in proper Bluebook format. Here is how the citation should look: Wolcott v. Wolcott, 105 N.M. 608, 735 P.2d 326 (Ct. App. 1987).
the court, established that the common trend in various jurisdictions is that a good career change, resulting in a decreased income, may constitute a material change in circumstances that warrants a reduction in a spouse’s support obligation. (Incorrect sentence structure) “Likewise, where the career change is not made in good faith a reduction in one’s support obligations will not be warranted” Id at 105 N.M. 608, 735 P.2d 326 at ___ . (Incorrect citation.)
According to 2 A.L.R. 3d 596 an undivided support award directed at more than one child is presumed to complete in full force until the youngest child reaches majority. In this case the terms of the divorce order were undivided in that it did not specify a “per child amount” (Forgot period. Awkward sentence. You are not proofreading your work properly. Don’t cite to the ALR. Cite to the case law.
In the matter if change of career would result in a reduction of child support obligation. (Incomplete sentence.) It was established by the court that if a career change is not made in good faith by the noncustodial parent the court would not award a reduction in the obligation. In the case of Ms. Chavez, she resented the amount of child support that she was paying.(Conclusory. How do you know this? Do we even know for sure that she made statements to that effect? How would we establish that? Do we need to investigate further?) In this case, the career change was not made in the good faith of all the parties. (again ??" conclusory!)
Excerpt From Essay:
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