Section III, Professor Franks
Final Examination, Fall 1994
1. Carefully analyze the facts and grasp the issues in each question before beginning to write. Spend time reading the question slowly and carefully.
2. State the issues and answers to each question concisely. Lengthy answers are not necessary.
3. Do not repeat questions in your answers. Write neatly and legibly on only one side of each page.
4. Number your answers to correspond with the question, e.g., "I-2."
5. If you feel it necessary to assume additional facts in any of the questions, give the facts that must be added and state why.
6. Do not write in the margin of the book.
7. All major questions are equally weighted unless otherwise indicated. Subparts are approximately equal but may be weighted slightly differently according to the number of issues involved in that subpart.
8. Write your fictitious name and number and the name and section number of the course on which you are being examined on the cover of each examination book.
9. If you use more than one book, indicate "Book One," "Book Two" and so forth on the cover of each book and write your fictitious name and number and the name and section number of the course on the cover of each examination book.
10. A GOOD ANSWER IS NOT NECESSARILY A LONG ANSWER.
1. Explain the difference between a restrictive (essential) clause and a nonrestrictive (non-essential) clause.
2. State briefly the basic formula or paradigm for organizing proof of a conclusion of law.
Susie Sudsfroth, age 14, comes into your law office one day and tells you her hard luck story:
Every day after school for the past ten weeks Suzie has gone directly to the Derwinkle residence, where at the request of Mrs. Constance Auerback Derwinkle she babysat the two Derwinkle children, Derwood Derwinkle, age 7, and Deborah Derwinkle, age 8.
Each day after school for ten weeks Suzie would arrive at the Derwinkle residence promptly at 2:30 p.m., letting herself in using the key Mrs. Derwinkle gave her. Fifteen minutes later, the two little Derwinkles would arrive on the bus from their school. Suzie would prepare them a snack and help them with their homework until about 5:30 p.m., at which time Constance Auerback Derwinkle would arrive home from her stockbrokerage, usually driving up in her Mercedes. Then Suzie would leave and walk, rain or shine, the two blocks across the tracks to her parents' mobile home.
For all her work, Suzie tells you, she hasn't been paid one cent. Her agreed compensation was to have been two dollars per hour. For ten weeks, Constance Auerback Derwinkle has been promising Suzie to pay her. But yesterday, when Suzie once again asked Mrs. Derwinkle for her pay, the woman said: "If you can't be patient and if you're always complaining, I'll just find another sitter. You're fired."
Suzie had been hoping to use her money to buy her hearing-impaired mother a much-needed hearing aid for Christmas. She asks your help in getting her her money.
After first obtaining Suzie's permission to call her dad, you've done so and gotten her father's okay to write a demand letter on Suzie's behalf to Mrs. Constance Auerback Derwinkle. Please write that letter now.
Homer Hornblower and his wife Henrietta divorced in 1990, and she was awarded sole custody of their only child, Huey. Homer was given reasonable visitation.
Six months ago, Homer reported to you that he hasn't been allowed to see his son, now age 12, since the divorce. You first wrote demand letters, to no avail. Following your demand letters, visits were scheduled, but Henrietta always had an excuse at the last moment. So you filed a civil damages action for intentional infliction of emotional distress and intentional interference with the father-son relationship. You also filed a contempt rule in the divorce case, alleging Henrietta to be in violation of the court order directing her to allow Homer reasonable visitation.
Henrietta has filed an answer to the contempt rule, claiming simply that Huey does not want to see his father. In her answer to the contempt rule, she alleges:
Defendant has diligently attempted to comply with this honorable court's visitation order, but the boy refuses to get into the car. The boy adamantly states that he absolutely will not visit his father. When last directed to get into the car to visit petitioner, Huey slammed the car door, stormed off to his room, and stated that he does not ever want to see his father again. Defendant is unable to force a visit upon an unwilling "child" who now stands two inches taller and weighs twenty-five pounds more than his mother.
Last Thursday, you were present in the Family Court of East Baton Rouge Parish as the court was hearing another couple's visitation squabble. You heard the judge -- the same judge who will be hearing your client's contempt rule next month -- ask the lawyer representing the non-custodial parent in that case, "Ms. Bronson, how can I possibly hold a custodial parent in contempt for denial of visitation when the child refuses to go?"
You've seen the handwriting on the wall and are getting worried. Concerned about this point, you've done your library research. You've discovered the case of Ermel v. Ermel, 469 A.2d 682 (Pa. Super. 1983), decided a decade ago by the Pennsylvania Superior Court -- that commonwealth's intermediate court of appeal. A copy of the case is attached.
In anticipation of next month's contempt hearing, please prepare a memorandum of law for the court.
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