Lewisville Family Law Blog

The "Morality Clause" in child custody - helpful or harmful?

  • 20
  • October

Thumbnail image for wfneal_SMALL.jpgIf you are involved in a divorce in the State of Texas chances are pretty good you are going to have slapped on you what is commonly called a "Morality Clause". What is a "Morality Clause"? Well, in simple terms, it is a prohibition against a parent allowing anyone to whom they are involved in a dating or romantic situation to spend the night while the divorce is ongoing. The intent and purpose of the clause is well meaning and noble. It is designed to protect the stability, routine, and consistency of children while Mom and Dad are divorcing. No one could debate this goal as virtuous and protective of children. However, in the real and practical world we live in - the real questions are: does it work and is it worth it?

Does is work? In typical lawyer fashion - it depends. If the parents are mature and grown up and believe that following the rule of law is important - then yes it works. The fear of being held in contempt of court (yes, you can be put in jail for a violation) for allowing the high school sweetheart Mom or Dad reunited with on line and are now trying to rekindle their old high school passion can temporarily deter a parent from doing something that instinctively they know is not good for the kids. They will toe the line even when their self-centered emotions tell them otherwise. The children are saved from the angst and psychologically devastating effects of simultaneously being forced to deal with the loss of their family unit AND the introduction of a new adult figure in their lives. If the children are protected from this situation for even a few months, then they will be better off in the long run. If having a Morality Clause in place does nothing more than strike a moral chord in a parent to think more about their children than themselves and they begrudgingly adhere to its dictates, then it works the way it was designed and it is a good thing.moral1.jpg

On the other hand, if a parent views the Morality Clause as nothing more than an intrusion into their adult and private lives or their hormones overload their brain, then what will occur is a conscious and intentional course of action to find ways to "get around" the clause or make sure they don't get caught. The divorcing parent who won't buy into the purpose of the clause will concoct all sorts of ways to avoid it. The morality clause is designed to avoid a child getting up on a Saturday morning to watch TV and eat Cheerios and being met with some guy or girl they don't know drinking coffee in their pajamas in the kitchen. The Morality Clause doesn't prohibit the new boyfriend or girlfriend from being around the kids - only from staying the night. Therefore, most of the clauses have a time limit to define "overnight". The Denton County Standing Orders, where I practice most of the time, sets the hours of an overnight between 10:00 p.m. until 7:00 a.m. Dallas County, Collin County, and surrounding counties vary as to the starting and stopping times but each defines what an overnight will be. So, the parent that can't accept the purpose of the Morality Clause will go through all kinds of machinations to give the appearance of compliance. They make a big deal of the paramour leaving right before the start time of the overnight time then put the kids to bed and slip the new BF or GF in the backdoor and into the bedroom. The alarm is set early the next morning and Mommy or Daddy's new friend leaves early out the back door only to reappear right at 7:01 am with donuts and kolaches for everyone. What a great guy or girl. This is but one of many ways to try and skirt the Morality Clause and it is played out thousands of times each weekend by custody litigants. So, if you are a rules follower because you believe the law is there for a reason or only because you are afraid of negative consequences - then it works. A psychologist friend of mine once told me that the #1 universal truth he has found in all his years of treating his patients was that "people are going to do what they really want to do".

Is it worth it? If your divorce is in a county that has standing orders and a Morality Clause like Denton County has, you really have no choice while the case is pending. However, the issue always comes up in finalizing the divorce as to whether the parties will agree to extend it post divorce or whether the Judge of the Court you are in will make it extend into the divorce decree. The spouse or litigant that is not involved in a new relationship will always want it put in and the one who is looking to continue their relationship with the new soul mate after the divorce will always fight to keep it out - or water it down. There are as many variations of the Morality Clause as there are leaves on a tree. Lawyers can bill many hours crafting, negotiating, drafting and trying Morality Clauses. Not a financially sound idea. In addition, even if you can get one into your divorce decree - what benefit does it have to you? If your ex is determined to violate it and you bring an action to enforce it - guess who your number one witnesses are? Your kids! The only indisputable proof you are going to have is your kids testifying about waking up in the middle of the night scared and going to see Mommy or Daddy and finding someone else there also. Are you going to call your kids to testify? Of course not - that double or triples the harm you are trying to protect them from. Can you use a private investigator? Yes, but that now adds another layer of cost to your already too expensive litigation and all that PI is ever going to be able to say is that the paramour was seen entering the house or apartment and never leaving until the next morning. While persuasive - such proof is never conclusive - allowing for more money to be spent on lawyers fighting for their clients.

Repeated violations (even if proved circumstantially) can help significantly in a post divorce custody change lawsuit. However, that edge is immediately reduced to moot if your ex simply decides to get married. Paramour now becomes step mom or dad.

After 42 years of doing this and drafting countless Morality Clauses and then filing actions to both enforce them and change custody plans based on them, it is my opinion that they are, over the long term, not worth the investment of money and time. The money and time is better spend with quality mental health experts working with your kids (if necessary) to deal with the new situation or just good old common sense parenting of your children if you have successfully moved on from the hurt and pain that is caused by an affair or your ex finding a new partner. If you continue to harbor anger and resentment, and then rely on your family, friends, church and professionals to get your kids beyond it - you doing otherwise will only make the situation for your children worse.

Years ago, when I was a very young attorney, a wise District Judge gave me this advice. He said: "It is an axiom of divorce that the more a paramour is at the forefront of the case the more complicated, expensive, and time it will take to get it done". He was right - Morality Clause or not.moral.jpg

Standing Orders - What are they and how do they apply?

  • 16
  • October

johndenke_SMALL1.jpgWhen a family law case is filed in certain counties in Texas, there are orders of the court that immediately apply to the parties and govern their behavior during the case. These orders, called "Standing Orders", are typically for the protections of the parties and their children along with the preservation of property of the parties. The standing orders are typically agreed and signed to by all of the District Judges in a particular county who hear family law cases.

In Denton County, the standing orders begin with rules for no disruption of the children subject of the litigation. So, for example, the parties cannot change the children's residence without agreement or court approval, disrupt the children, hide or secret them, or make disparaging remarks to them about the other party. Also, in an original divorce case, neither party can have a person they are in a romantic or dating relationship with overnight with the children. The court is mainly trying to protect the children from changes in their routine or from involvement in the litigation with these rules.Unknown-jpg

The next set of standing orders involve conduct of the parties. Parties are prohibited from using vulgar or profane language when communicating with the other party, whether in person, by telephone, or in writing. They are also prohibited from threatening the other party, or making harassing phone calls repeatedly or at an unreasonable hour. These are pretty obvious in that they tell parties to behave themselves even though they may greatly dislike one another when a case is first filed.

After these sets of orders come the rules designed for preservation of the parties' property. These orders prevent the parties from destroying, selling, or mortgaging property, incurring debt, withdrawing money, restricting lines of credit, or terminating utilities. They also prevent a party from excluding the other party from use of the marital residence if the other party resided there within 30 days of the filing of a divorce. Parties to a case may try and take these types of actions to protect themselves and their property, but the court does not want a party to completely cut off the other party from the community estate just because a divorce has been filed.

The parties are authorized to do that which is necessary to conduct their usual business and occupation, to spend funds for attorney's fees, and for reasonable and necessary living expenses. Further, the parties are ordered to complete a parenting class if children are involved in the case.

Your attorney or their paralegal should go over the standing orders with you step by step to advise you of your rights when a divorce or other family law case is filed. They will put you on notice of your duties and limitations when it comes to behavior that is supposed to occur and not to occur when a case is filed. In addition, they can direct the parties' behavior towards one another and their children before a hearing can be held in front of the judge in your particular court.dentonDwiTimPowersCourtAppearance-3.jpg

The Reason for Divorce

  • 14
  • October

Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgWhat's your reason for getting a divorce? Is it the infidelity, the drinking, the mismanagement of money, the lack of respect?

Everybody has a different reason for getting a divorce. Each marriage is different, and each couple experiences different forces and obstacles throughout their relationship. Each couple reacts and responds to daily conflict in a different manner, and each individual in the couple reacts and responds differently to those same conflicts.reasons).jpg

Sometimes a client will come in wanting a divorce when there is, as they say, "no rhyme or reason" for the breakup of the marriage. This is usually disproved, however, after probing more into the dynamics and facts of the marriage. Psychologists call this denial. We certainly get our fair share of clients choosing (consciously or subconsciously) to remain unengaged from the problems the couple faces every day.

Remember the glitzy, famous Gabor sisters? Zsa Zsa Gabor, who knew quite a bit about marriage and divorce from her own experiences, had this to say: "Getting divorced just because you don't love a man is almost as silly as getting married just because you do."

Now I don't usually go around quoting Zsa Zsa Gabor, but her way with words here sheds some light on the many relationships I've seen end when they don't really need to. The number one reason I get as a divorce lawyer is that one of the individuals does not love the other anymore. Sure, one of the reasons listed in the introductory paragraph may have instigated the loss of the love once felt, but the love is lost nonetheless.

What strikes me most about Ms. Gabor's quote is this: if you based getting into the marriage strictly on love, then it would make sense to end the marriage when the love seems to stop; but a marriage is a multifaceted relationship that cannot simply rely on one overriding facet called love. All the other facets must be examined as well to see which facet(s) need to be better maintained in the relationship. Each individual must share the focus on the relationship as a whole, and not just on the guiding emotion.

Don't get me wrong, I'm not saying that love is not important in a relationship. It is! But you cannot expect to make up for the regular attention the other facets need and deserve. If your marriage is in trouble, get help. Seek quality marriage counseling from someone you both can trust and listen to. Just don't give up without looking at the other facets in your relationship first.infidelity1.jpg

Where to File when Two States are Involved?

  • 09
  • October


Sometimes a situation exists whereby parents are in different states and one or both seek to file for relief in a court regarding their children. Issues can arise as to which state should have the right to hear the case and decide issues of custody and child support. The rules behind where to file for relief can be complex, so it takes an attorney with knowledge in these areas to make the proper determination.

First, as a general rule, the custody action should be filed in the state where the child has lived with a parent for the past six months before the lawsuit was filed. This is called the child's "home state" for filing purposes. The court can look at the total circumstances when determining this, such as how long the child lived in the state, the parents' intent, and whether a move was voluntary.iStock_000014314271XSmall02.jpg

You may ask what happens if one parent leaves the home state with the child and the other remains there. Well, if it is an initial suit regarding the child, the home state retains the right to hear the case as long as the home state was the state where the child resided within six months of the filing of the case. So, a parent who is residing in the home state who leaves with the child one day never to return will still be subject to the court's power in the home state as long as the other parent files in the home state within six months.

There are of course occasions where the child has no home state. In this circumstance, the determination will depend on if the child has a significant connection with the state. The three requirements for a significant connection are: 1) the child must not have a home state, 2) the child and at least one parent must have a connection with the state other than physical presence, and 3) substantial evidence of the child's care and relationships must be available in the state.

Even if a child has a home state, that state can sometimes decline to hear the case if it determines that it is more convenient for another state to hear the case. This can be for logistical reasons including distance between the states, the location of evidence concerning the child, and the respective financial conditions of the parents. A court can also decline to hear a case if it finds that a parent engaged in unjustifiable conduct, such as taking the child from their home state to another state and then filing in that other state.

The preceding commentary is really just the tip of the iceberg when it comes to interstate child custody matters. My goal was to give you a general understanding of the law that exists when two parents claim their respective states have the right to hear their child custody case. Again, I urge you to seek the advice of an attorney if you are faced with a case involving interstate child custody concerns.usamap.jpg

The Roadmap to Success

  • 07
  • October

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It seems to be solid wisdom to "know where you're going." That's why it's important to ask your attorney for a roadmap of how the divorce process is expected to work for you.

Every client comes to the family lawyer with unique circumstances. It's the attorney's job to take those facts and circumstances and apply them to the Law. It's possible for that attorney, then, to estimate the steps needed to complete whatever issues come with that client. Of course, this will likely involve alternate routes, depending on the complexity and peculiarities involved.

Our firm's founding Senior Partner, William F. Neal, always stresses the importance of preparing a litigation plan for each and every client. He is a forty-plus-year lawyer who knows every in and out of the Courtroom. He is just an awesome litigator! He knows the importance of giving a client the vision he sees that client's case taking. He adjusts it as new information is obtained or the "twists and turns" lead to a different path. But he is always on top of what's going on in the client's case.

I generally have a less litigious roadmap for my clients. I prefer taking cases to resolution through the collaborative process or other alternative dispute methods. I still see the importance of a clear roadmap to present to the client to resolve conflicts with the other party. As a matter of fact, here are the usual six steps found in a Roadmap to Resolution in a collaborative case:divroadmap.jpg

1. establishing the playing field and ground rules via the collaborative law participation agreement;

2. stating and reviewing each party's goals and interests/concerns;

3. gathering information;

4. option building and creations of solutions;

5. evaluating options and solutions; and

6. entering into peaceful negotiations and selections from the available options.

We often discuss in the office whose method is better, the litigation route or the collaborative process. Even though we both understand and respect the nuances of each practice method, we agree it is important to let the client know what to expect and what the road will likely look like. We agree on the importance to communicate early and communicate often with the client. The client is usually dealing with more than enough stress and unknowns. The least we can do is to paint a picture of where we're going in the process.

Your trusted lawyer may very well do the same thing. If not, ask if a roadmap of your case can be created for you.dirovcechanges.jpg


Social Media + Divorce and Custody Cases = Bad Things

  • 01
  • October

Thumbnail image for Thumbnail image for ljasmall.jpgSome of us love Facebook and Twitter, to a lesser extent.. I know I do. I have enjoyed catching up with people I knew as a child, keeping up with current friends and what is going on with them, and what is happening in my professional life. Folks post everything from what they are eating, where they are, or what is currently happening with them. Including their litigation.social4.jpg

What I have found is that a lot of people give too much information about their personal lives on Facebook. As a family law attorney, it has become a treasure trove of information if you are going through a divorce or custody case. Here are a few things you should consider if you are going through a divorce or custody case that I have experienced that you should or should NOT do.

First, you should delete any pictures you have posted while you are out getting your drink on with friends. I had a client that posted a picture on Facebook of her in front of a tap on her knees drinking from the tap in a bar. Really? Her husband was contending she had a drinking problem. Take down any pictures of you drinking or partying. You really should not post these kind of pictures anyway if you have children.

Second, don't badmouth your spouse or ex on social media. Don't discuss your case. In any form. I had a case where the opposing party was discussing pending litigation on Facebook and was referring to the Mother of his child as Sasquatch. The Judge was not amused. Just don't do it.

Third, if you are married, don't take pictures of you and your paramour on vacation. Yes, this happens. Amazing.

Forth, don't disparage the Judge in your case. An opposing party in a case I was involved in disparaged the Judge after his ruling against them. Not smart.

In summary, be careful what you post on Facebook or other social media. Judges are fine with your posts being printed out and admitted into evidence. What you post can and will be used against you. I hope you and your attorney take this blog to heart.social6.jpg

Parents Still in Charge

  • 30
  • September

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpg"Children of any age will feel reassured to know that mom and dad are still in charge and have control of what is going on." Parenting.Coach-350-x-320-2.jpgThis is a quote from a blog post written by my friend and collaborative colleague, Robin Watts. In her "We've Decided to Get a Divorce-When and How Do We Tell the Kids?" post on our Denton County Collaborative Professionals group website she delicately lays out the considerations for an appropriate talk with the kids about Mom and Dad's divorce. I would recommend reading that post.

Of course, Robin is a counselor and spends a great deal of time with children in volatile situations, but her quote is spot on and applicable throughout the entire parenting process, whether in a divorce, post-divorce or any co-parenting situation. Children do want, and need, their parents to act like adults and the ones in charge. They don't need one or both parents acting childishly and immaturely out of control or like a spoiled, selfish brat.

But for various reasons, sometimes that parent who "demands" all the rights and time with the kids‎ is the parent most out of control--yet, he/she doesn't even see it!

Here's an example of what I'm talking about: Well-to-do Dad and Well- to-do Mom are both professionals in their fields and doing very well financially. They share a couple of preteen kids‎. Both parents should be responsible, model citizens and parents. You'd think so, anyway! But Dad sometimes just cannot control himself (for various reasons that often come in a bottle). He gets teed off because Mom took the kids to an event Dad wanted to take them to, and Dad decides to terrorize Mom by vandalizing Mom's property and invading her personal space.

Of course you can imagine that the police are then involved and new court dates are set for various criminal and/or civil issues. Clearly the parents are not in control, and my guess is that the kids know it. Moreover, they feel it!

Robin's blog post speaks mainly to when to tell your children news of breakup or remarriage or some other significant event, but isn't every day significant to our children? Don't they deserve to have their parents in control each and every day?

I don't think our children expect us to be super heroes (although that phase is fun while it lasts!), but they don't want us in jail or losing our jobs, either.

So parents, reassure your children, and show them gracefully how you're in charge every day by getting along with the other parent and recognizing the other parent as also being in charge.parent_kids.gif

If Divorce is inevitable - 3 good reasons to FILE FIRST

  • 26
  • September

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The question I am always asked during the first conference with a client is "Does it matter who files first?" The answer to the question is ALWAYS "yes" - but how that answer is given depends on the circumstances of the client I am representing. Often times, the spouse I am visiting with about a divorce does not want the divorce. They are seeing me because their husband or wife has told them they want a divorce and there is no reconciliation possible or wanted. Other times, the actions of their spouse have led them to my office - such as when the secret of an affair has been unearthed and opened to the light of day. And other times, the client I am seeing hasn't told the other spouse about the certainty of their decision to seek a divorce and need to know the ins and outs of what will happen when they go forward and tell their spouse of their decision.filefirst.jpg

Whether a client wants the divorce or does not want the divorce, the practicality of the situation and the chances for a good outcome for them in the difficult position they find themselves is to file the divorce action first - be the Petitioner in the suit. Why? Most people find it counter intuitive to be the one that does not want the divorce at all - but are being told filing first is best for them. Outside of emotion and appearance to others - family, friends, and co-workers - the logic of being the one that first files the divorce is irrefutable.

1. From temporary hearings - to mediation - to final trial: You get to tell your story first. Huge advantage. It's also backed by long recognized social science principles. "Serial position effect" is the tendency for a person to recall the first and last things in a series best, and the middle items worst. Human beings (Judge or Jurors) remember the first thing they hear or see (the primacy effect). Which would you rather do - sit in a courtroom for 2-3 hours listening to the other side going on about all the things you did wrong in the marriage and all your shortcomings (we all have them) - or be able to get on that witness stand, or tell that mediator, all your strong points and why the things your spouse is going to say are made up, wrong, and embellished? In Texas mediations, even the Mediator will typically start with the Petitioner to get their side and position first. At every step in the process of divorce, if you filed first you get your position out first. File First.

2. You get the last say. The twin psychological principle to the primacy effect is the recency effect which holds that people also remember best the last thing they hear or see. We've all been in arguments and know how important it is to get in that "last word". As the Petitioner, you have the right to put on the last witness, or piece of evidence, or get back up and refute what your spouse has just been trying to sell the Judge or Jury during their side of the case. You have the right to leave that Judge the last impression, the last fact, the last important detail of your case. If closing arguments are allowed, then your lawyer gets to give the Judge or Jurors that last impassioned plea and summary of your case. Your side of the story is the last thing they will hear when they leave to go make a decision. The other side can do nothing but sit on their hands while your position is left in their ears and brains. Your message will never be as powerful as then. File First.

3, Filing First will effect protection of assets, your children and could bring about reconciliation. Even if you are the one that doesn't want the divorce, filing first will put orders and rules into an arena that, prior to filing the divorce, had none. Whether your attorney seeks a restraining order to keep the status quo until you can have a hearing or the county in which you reside has Standing Orders governing the conduct of parties in a divorce, the consequences to actions will now have remedies and penalties. Assets will be frozen which will stop a spouse from transferring monies or changing ownerships in businesses while everything is in limbo following the aftermath of the divorce bombshell being dropped. The lives of your children will be stabilized. By filing first you now have consequences for your spouse draining the joint checking account or turning off utilities or running up the credit cards in anger. Filing first becomes an insurance policy for you to protect what you have now so you can use some of it in the future.

One ironical consequence to filing first is reconciliation. Filing first and having the spouse served with the divorce petition catches them totally off guard and unprepared - emotionally, financially, and practically - for what is about to happen to them. In more than a minority of cases, the spouse who has been carrying on in an affair that has now been exposed decides that what he or she is about to lose isn't worth what they thought they were getting. They re-think their position - counseling and rebuilding of the marriage is chosen over life with someone new.

Finally, filing first doesn't mean ending first. Divorces can go away. The parties can decide to work on the marriage rather than work on the divorce. So, for those that don't want the divorce and feel like filing first sends the wrong message - take heart - you're acting decisively and filing first may just be the thing that could save that marriage. File First.firstinline.jpg

Spousal Maintenance - A Continuation

  • 24
  • September

Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgLast time I discussed spousal maintenance, I addressed some of the eligibility requirements and terms of payment such as duration and amount.  This time, I would like to go over the other ways a spouse can be eligible for spousal maintenance and the duration of such support under those provisions.

First, a spouse can receive spousal maintenance for a marriage that lasted less than 10 years if they were a victim of family violence committed by the other spouse.  The family violence would have to have been committed within two years of the filing of the divorce case.  The party committing family violence must have been convicted or been placed on deferred adjudication.  For a marriage of less than 10 years with family violence, spousal maintenance can last up to 5 years.Spousal-Maintenance-for-Dissolution-in-Indiana.jpg

Another way a spouse can qualify is if they have a disability which makes them unable to earn sufficient income to support themself.  The disability must be incapacitating and can be shown from lay witness testimony, as expert witnesses are not required.  Spousal maintenance under this factor can last for as long as the disability exists, as long as it is established that the receiving spouse cannot provide for themself in the future because of the disability.  The court may set status hearings in the future to re-evaluate the receiving spouse's disability and ability to earn income.

Finally, a spouse can establish eligibility to receive spousal maintenance if they have to care for a child of the marriage who is disabled, which prevents the spouse from making enough income to provide for their minimum reasonable needs.  Just like with a disabled spouse, the maintenance award can last as long as the child has the disability, but only so long as the disability prevents the spouse from providing for their minimum reasonable needs.

Maintenance under these provisions is another way to meet the eligibility requirements for possibly obtaining additional support from a spouse post-divorce.  Although they have additional requirements that must be met, the amount of time that they can last can make it worth it to seek maintenance under their provisionsrsz_horiz-momgettingkissed.jpg.  

When Mediation Goes Wrong-A True Story

  • 22
  • September

Thumbnail image for Thumbnail image for Thumbnail image for jimsmall.jpgMediations can and do go wrong, for various reasons. I had such an experience just recently.

I was mediating a rather nasty modification of conservatorship and visitation case. One of the parties had actually lost custody of the child at a temporary orders hearing for reasons that I will not go into in February of this year. Their final trial is set in October.

It was a very emotionally charged mediation, with emotions (and tensions) high on both sides. Part of the job of a mediator is to try and convince the parties (and sometimes the attorneys for the parties) to put emotions and hurt feelings aside and focus on what is in the best interest of the child-which means not only time the child spends with both parents, but the way that both parents will co-parent in the future as to how to raise their child.

After listening to both sides of the story, and letting everyone vent, we finally got down to the business of making an offer 3 ½ hours into the mediation. The circumstances and dynamics of the case were complicated to say the least. But, after another four hours of give and take, I took one party's final offer to the other party (after reading it to the offering party twice to make sure I had everything correct). Everything was agreed to, and the biggest battle was over who would carry health insurance for the child. One party spent an hour telling me how they should carry the insurance. That was part of the offer. The other party accepted the final offer! Awesome! Deal done. Or so I thought....Unknown-12.jpg

So I drafted the Mediated Settlement Agreement (MSA). Took it to both parties. One party returned it with no changes after 15 minutes. I checked on the other party. The offering party advised (after an hour of argument as previously noted) that they decided the other party should carry the health insurance. I tried to find a compromise that was reasonable to both parties. They refused to accept my solution. I suggested that they settle everything except that issue, and try that to the Judge. They both decided they would just try "everything". Huge mistake.

I am not a Judge, but from hearing both sides, I knew who was going to win and who was going to lose. Both parties had attorneys. The moral of this story is what my father used to tell me: "Pick your battles wisely, and decide what hill you are willing to die on". He was a Marine in WWII, so I always took his words to heart. In mediation, perhaps you should take my father's advice.Unknown-12a.jpg