Judge Elwood F. Melson, Jr.

Decisions made in Family Court are difficult ones. Perhaps no other court deals with issues as difficult and sensitive as the one that involves the State making decisions regarding domestic relations.

This last Tuesday, one of Delaware’s dedicated public servants died. Former Family Court Judge Elwood F. Melson, Jr., was admitted to the Delaware Bar in 1940. He was a Navy veteran, and was elected to a position as a State Senator in 1954. In 1964, he was appointed as an associate judge in Family Court for New Castle County. Judge Melson’s best known legacy was bringing predictability and stability to determinations of child support payments. He created a mathematical formula that was focused on arriving at a fair and equitable settlement between parents regarding payment amounts, while recognizing the needs of children, and of non-custodial parents.

The formula became known as the Melson Formula in Delaware, and was also known in other states and countries as the Delaware Plan. It was years ahead of its time, and influenced many other courts and legislatures. On its face, it appears fairly complex, but an attorney who has used it a couple of times can grasp its intricacies as it balances a good number of issues that previously would have been left to the discretion of a judge. It is aimed at achieving consistent results regardless of who the hearing officer might be in Family Court. It has played an important part in helping other states come up with reasoned discussions as to how their laws on child support should be constructed, and has been adopted by a number of other states.

Melson Formula Articles:

March, 1999 Wilmington News Journal Editorial from Family Court Chief Justice Vincent J. Poppiti

Judge Melson and all who have followed in his footsteps by subsequently updating the formula have tried to balance simplicity with the desire to be fair to both parents and the children. Some states have enacted a straightforward formula that uses a percentage of parents' income, certainly a simple solution, but not necessarily more equitable. The Delaware formula addresses issues such as attributing income to unemployed or underemployed parents, income from second jobs, allowances for insurance and pensions, and support of other dependents.

May, 1999 Wilmington News Journal Editorial from State Rep. Gerald A. Buckworth

A 1988 federal law requires all states to have guidelines for setting and modifying child support obligations. Delaware was ahead of the curve, having instituted such a system nearly a decade earlier.

A findlaw.com discussion of the different models for calculating child support, by Laura Morgan, gives a detailed explanation of the way the Melson Formula is applied, and had the following to say about the Formula:

The proponents of the Melson Formula model argue its internal logic makes it the fairest of the models. Even though the Melson Formula model seems to be the most complicated of the models, its proponents contend that its seeming complexity is superficial; once a practitioner has used the Melson Formula model, its subsequent application is simple.

The Melson Formula model is, indeed, the most internally consistent. It takes into consideration not only special custody arrangements and health care needs, it also takes into consideration each parent's needs. It is thus, on its face, the fairest as perceived by the parent. Where perceived fairness is the most important factor, then the Melson Formula model is the clear winner. Moreover, one expert has found that the Melson Formula model tends to produce less extreme differences in living standards where one parent has a very low income and the other parent has significantly higher income. This again contributes to the perceived fairness of the Melson Formula model. Moreover, because the Melson Formula model takes into consideration commonly occurring expenses, it is consistent and predictable. Its only fault is in its facial complexity.

- William Slawski

Merry Christmas to All!

The Alaskan Rule?

Alaska has historically been said to follow the "English Rule" of loser-pay law. Currently set forth in its Civil Rule 82 , Alaska uses a subtle but effective fee shifting process that is more of a compromise between the American Rule and the English Rule than it is one or the other. The Alaska Rule has maintained a high approval rating among the professionals in that jurisdiction. A study of the Alaska method showed that there are positive and negative impacts from the rule but generally accepts it. And as many studies do, it suggests more studies.

American Rule and English Rule

How does our justice system determine who is responsible for attorney fees? Most United States jurisdictions follow the "American Rule" which makes each party responsible for his own legal costs. In contrast, the "English Rule" provides for the loser to pay the winner's legal fees. There is a "shifting" of the law in some U.S. jurisdictions, which is eroding the distinction between the two rules.

Declaration of Independence, 1921

When things get so balled up that the people of a country have to cut loose from some other country, and go it on their own hook, without asking no permission from nobody, excepting maybe God Almighty, then they ought to let everybody know why they done it, so that everybody can see they are on the level, and not trying to put nothing over on nobody.

All we got to say on this proposition is this: first, you and me is as good as anybody else, and maybe a damn sight better; second, nobody ain’t got no right to take away none of our rights; third, every man has got a right to live, to come and go as he pleases, and to have a good time however he likes, so long as he don’t interfere with nobody else...

So begins a reinterpretation of the Declaration of Independence, from the pen of HL Mencken. Mencken was one of the most well known, and prolific newspaper writers, and political commentators of his day. He is also well known for his commentary on American English, and American slang. The Declaration that he updated, in a unique style, is filled with poor english, and bad grammar, with a lot of political incorrectness. But, in many ways, Mencken's translated sentences are much more understandable than some of the 18th century language they replace.
- William Slawski

Larry D. Sullivan in the News (Journal)

Today's Wilmington News Journal features an article on employer offered legal service plans, entitled "Benefits Packages Branch Out," in their Business Monday section. The article includes a picture of Larry D. Sullivan, Esq., and several quotes from him on the how such plans work, and how they can benefit a company's employees.
- William Slawski

Digital Millennium Copyright Act news

fear of linking
A decision in Federal Court (NYTimes - free registration required) regarding the Digital Millennium Copyright Act (DMCA) and hyperlinks that lead to a software code designed to circumvent DVD movie copy protection, has online journalists concerned about linking to pages that might contain illegal materials. The Judge tried to limit his ruling about including links to material that was illegal under the DMCA by creating a three part test, stating that there had to:

be clear and convincing evidence that the person responsible for the link (a) knew at the time that the offending technology is on the linked-to site, (b) knew that the offending technology is illegal under the D.M.C.A., and (c) created or maintained the link for the "purpose" of disseminating the tainted code.

Many online journalists, and free speech experts are concerned that this ruling will cause journalists to become overly cautious, and not link to pages where there might be newsworthy materials that may or may not be illegal under the DMCA.

criminal prosecution
Another story involving the first criminal prosecution under the Digital Millennium Copyright Act (DMCA) sees Russian software designer Dmitri Sklyarov released from U.S. custody with charges against him dropped by the United States. The article states that he will be supervised for a year during his release, which points towards a "probation prior to prosecution" disposition for the charge. Sklyarov was being held for creating software that would disable the security on Adobe e-books technology. Adobe's e-book software does not allow for the creation of a backup copy, and will only play the e-book upon the computer that it was downloaded upon. In Russia, it is illegal to release software that does not allow for the creation of a backup.

fear of music
Webcasting is something that many college radios stations have embraced fully. Yet they don't have the budget that large commercial stations have. Will a proposed Music Online Competition Act make a difference? Will college stations be forced to stop webcasting? Will they have to pay extremely large fees being applied retroactively? See Why college radio fears the DMCA.

cafe
The Electronic Freedom Foundation has started a Campaign for Audiovisual Free Expression (CAFE), which has sections on online censorship and free expression; online content filtering, labeling, and rating; patents, trademark, copyright, and fairuse. A visit to their pages will quickly bring you up to date on some of the concerns many have regarding freedom of expression issues on the world wide web.
- William Slawski