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December 2013 Archives

How Do I Pay Legal Fees?

Most criminal defense lawyers demand their fees up front and prior to representation.  Fees are generally paid with checks, however many other forms of payment are acceptable. Cash, money orders, and major credit cards are accepted by the Bouldin Law Firm, as well as many other law firms in Northern Kentucky. Most often people pay with MasterCard, Discover, Visa or AmEx (America Express). Also accepted is Diners' Club, JCB and PayPal. Barter may be accepted in special circumstances. It is hard to financially plan for a criminal arrest. If you need to make arrangements, speak with your attorney. For a consultation in Northern Kentucky, contact my office at [email protected] or call 859-581-6453.

Do Divorce Attorneys Take Credit Cards?

I DO. Many divorce attorneys accept major credit cards from their clients. I generally accept Visa, MasterCard, Discovery and American Express (AmEx) but also have ability to take Diner's Club, JCB, and PayPal. Clients can swipe or call in their credit card information. We request a lot of information to assure the validity of the card and avoid stolen cards or scams.  Also accepted are personal, certified and cashier's checks, money orders, and cash. Call today to schedule a consultation or for price quote.  Some uncontested, short term and childless divorces can be as low as $1,500, but generally are charged at hourly rate, ($250/hour as of 12/31/13).  Discuss using tax refund to pay your legal fees.  Contact Michael Bouldin at 859-581-6453 or email at [email protected]

NKY DUI New Years 2013-2014

Northern Kentucky police will be out in force on New Year's Eve again this year for 2013-14 crossover.  Of course, the best defense against a DUI charge is to (1) stay home; (2) stay sober; or (3) take a taxi.  If you are charged with DUI, you should consult with an attorney and know your rights.  An attorney can help you through the process and determine what defenses may be available. Even if you are guilty, an attorney can assist in minimizing the driving suspension, minimizing fines and hopefully avoiding a jail sentence.  General advice is to consent to a breathalyzer test if you have not consumed any alcohol.  The test is designed to determine the amount of alcohol consumed.  If you have been drinking and driving, the best way to avoid a DUI conviction is generally to refuse a request for blood alcohol.  Unfortunately, a refusal will lead to a license suspension at the initial hearing before the Court. It is also very possible to be arrested for DUI on January 1st, the day after New Year's Eve.  If you consume a lot of alcohol one evening, your blood alcohol level may still exceed the legal limit the following day.  Driver's should be leery of heading back to pick up their vehicle before they are completely sober.  One additional point: once you get home, stay there!  I have represented many, many clients who have safely arrived home, only to go back out to get food, cigarettes or more beer and then received a DUI. Stay safe this New Years and don't start out 2014 in jail.  If you are charged with DUI, contact an attorney.  In Cincinnati and Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected] .

What Is a Merits Hearing in Ohio?

A Merits Hearing in Ohio is essentially an uncontested final hearing for dissolution or divorce. These are held if the parties have reached an agreement with respect to division of assets and debts as well as custodial issues. In addition, if proof was not taken at a contested hearing, the Court may require a merits hearing in order to finalize the divorce. Most often a Merits Hearing is very short: 5-10 minutes. It involves verification by the parties of personal information as well as verification of signatures on Parenting Plan and Property Settlement Agreement. This is similar to an Uncontested Final Hearing which is held in Northern Kentucky. If you have a question about upcoming hearing, contact your attorney If you do not have an attorney or wish to schedule a consultation regarding divorce or dissolution in Boone, Kenton, Campbell or Hamilton Counties, contact Michael Bouldin at [email protected] or call 859-581-6453. *Michael W. Bouldin is licensed to practice law in both Ohio and Kentucky and accepts domestic/family law cases in both jurisdictions.

What Does Joint Custody Mean in Kentucky?

Joint custody is the right of both parents to participate in the decision making process of issues which affect the child.  It does not include day-to-day decisions such as which shoes to wear or what to serve for dinner.  It generally does include decisions such as: which school will the child attend, what religion will the child be raised (and if to baptise), which extracurricular activities to participate and medical decisions.  Generally, either party has the right to make emergency medical decisions but must notify the other parent as soon as practical of any medical emergencies. Joint custodians determine what course of action to take for non-emergency decisions such as elective surgeries, immunization and dental braces.  The basis for making a custodial decision is found in KRS 403.270. Joint custody is preferred in the Commonwealth of Kentucky and can be ordered despite disagreement between the parties.  Before fighting for sole custody, a parent should discuss the entirety of the mater with their attorney to ascertain their chances of a sole custody award.  Other consideration should be given to the underlying reason(s) for requesting sole custody.

Crappy Christmas Gift

Every year I seem to get a few divorce clients, or people who at least want to know their options, after receiving a terrible Christmas gift from their spouse.  It also happens that often one of the parties receive a pretty good gift from their paramour/lover, who is not their spouse. After practicing domestic litigation for 19 years, I have come to the conclusion that infidelity is very seldom the cause of divorce.  To the contrary, infidelity is generally a symptom of a troubled or broken marriage.  I am a strong proponent that this is the basis for Kentucky's no fault divorce statutes.  In generally, the Courts do not allow testimony regarding the reasons for the divorce, as it generally has no bearing on division of assets, division of debts or custody of the children. Of course there are no absolutes in the law.  There are occasions where the fault can be brought into play.  Spousal support is an area, for example, where if one party has a "sugar daddy" then that may be considered as income.  Also, if the children are subjected to illegal drugs, then that can be used in a custody proceeding.  also, a court will rarely equally divide debt incurred as a result of one party's gambling or money spent on a girlfriend. If you need to consult with an attorney regarding your divorce, options and advice, contact Michael Bouldin in Northern Kentucky at [email protected] or call 859-581-6453 (581-MIKE).

"Have a Good Night" Stop and Search

A recent Kentucky Supreme Court decision in Turley v. Commonwealth, 399 S.W.3d 412 (Ky. 2013) the Defendant was stopped for speeding and improper illumination of his license plate. The Defendant passed a filed sobriety test, the officer verified his documentation and then told the defendant to "have a good night."  After the Defendant returned to his vehicle, the officer detained the 2 passengers, claiming a Terry stop. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968) an officer can briefly detain persons to ask their identification and general information if there is a reasonable suspicion of criminal activity, but not enough evidence to support probably cause for arrest.  A Terry stop may also include a pat down search to assure the officer's safety.  The officer testified his reason for detaining the passengers was to see who they were and to make sure the passengers did not have any outstanding warrants.  The  Court found that the officer asserted "no individualized reasonable articulable suspicion that the passengers were engaged in or about to engage in criminal conduct to justify the Terry stop. The officer saw a wooden box and demanded it opened; which yielded methamphetamine, oxaprozin, 2 loaded handguns and $3,900 in cash. The Trial court denied the motion to suppress the evidence as a product of illegal seizure.  The Supreme Court reversed the trial court, holding all evidence seized after the officer accomplished his legitimate purpose for the traffic stop and said goodnight to the Defendant was seized illegally and cannot be used against the Defendant at trial. If you have been charged you should know all of your possible defenses.  For a consultation in Northern Kentucky, contact Michael Bouldin at [email protected] or call 859-581-6453.

KY Grandparent's Rights Update

Kentucky Supreme Court recently issued an opinion in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) to examine how to interpret Kentucky grandparent visitation statute, KRS 405.021(1). The interpretation was to ensure that the Kentucky law was consistent with the US Supreme Court holding in Troxel v. Granville, 530 U.S. 57 (2000). Troxel held that parents have a constitutionally protected liberty interest in rearing their children without government interference, and the courts must give appropriate weight in non-parent visitation proceedings to the parents' decision to deny visitation.  The Court held that a fit (not unfit) parent is presumed to act in the child's best interest.  Troxel held that the grandparent had to overcome this presumption by clear and convincing evidence. The Walker case was remanded for a new hearing because the court utilized case law which predated Troxel.  As such, it should be noted that the grandparents have a fairly high standard in order to get visitation, especially if the parents are united in their denial of visitation.  Also, there is no "standard visitation" for a grandparent and the court would determine the best interest of the child(ren), whether it be for short and infrequent visitation or regular ongoing and lengthy visitations. If you have questions or concerns, contact your lawyer.  For consultation in Boone, Campbell or Kenton counties, call Michael Bouldin at 859-581-6453 or email at [email protected]  

What is Standard Visitation in Kentucky?

Kentucky does not recognize "standard visitation" guidelines. I am often amazed by the number of clients, mostly mothers, who refer to standard visitation and like to tell their attorney how they just want primary custody with the father having standard visitation. Family court rules have adopted a Model Time-Sharing/Visitation Guideline.  This guideline accounts for: (1.) The time-sharing/visitation schedule set by the court for holidays, school breaks and summer break should control over regularly scheduled time-sharing/visitation time, even if this allows successive time-sharing/visitation periods. I have been practicing domestic law for over 19 years and have kept abreast of all changes to the law as well as to the Family Court rules and models.  NEVER have I seen, except in some rural counties (i.e. Grant County) a standard schedule.  Many parents say that standard is every other weekend and one night each week.  I would agree this is a traditional standard schedule, however it is no longer a standard.  Pursuant to the new Model, (6.) The parent exercising time-sharing/visitation should be given a minimum of every other weekend as the time-sharing/visitation time with the child(ren) and one midweek overnight time-sharing/visitation. . . . KRS 403.270 provides, in pertinent part: The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian.  (You may check out my prior blog which defines "de facto custodian.")  The point of this article is to realize that there is no law that gives preference to either parent.  Even under the standard schedule in Grant County, the Court must determine who is the residential parent prior to determining whether the standard schedule is appropriate. If you have questions about custody, divorce, parenting time and schedules, contact your attorney.  For a consultation with an attorney in Northern Kentucky, call Michael Bouldin at [email protected] or call 859-581-6453.

What is PreTrial Services?

When a criminal defendant is arrested and brought into the jail they are usually interviewed by someone from Pretrial Services.  The Administrative Office of the Courts (AOC) is in charge of the Pretrial Services and does the interview and investigation and risk assessment.  The point of the interview is to gain information about the defendant which can be used for purposes of determining the bond amount of the defendant.  Bond is the amount of money required to be posted so that the the defendant can be released on bail pending the trial of the action. The interview is confidential and between the Pretrial Officer and the Defendant.  After interview, the Pretrial officer will contact another person, generally a famiy member of the defendant, to verify the information given by the Defendant.  Once verified, bail is generally set.  Bail is set based on a number of factors, but most important is the contained in:

What is Mediation?

Mediation is often used in divorce/dissolution cases prior to trial.  Mediation allows the parties, together with a neutral mediator, to attempt to resolve their disputes without a Judge making the decision.  Mediation can be used with collaborative dissolution, to determine division of assets and debts, to finalize spousal or child support and for most every other area involved with family law. Some family courts offer mediation services for no cost or at a greatly reduced cost.  Boone County, for example, will permit the use of their staff which are trained in mediation, to serve as mediators free of charge to the parties. In Campbell County, they often have mediators at the courthouse on days of hearings to try and help resolve the matter.  These mediators charge a greatly reduced fee of $40/hour, which is split between the parties. Many mediators charge hourly rate and some have sliding scale.  A good mediator may be $200-$350/hour.  The fee is generally equally divided between the parties.  If the fee is not to be divided, this should be discussed with your attorney in advance of the mediation date.  Mediation is generally a voluntary process, however the Court can and may Order mediation.  If the court does order mediation, there is no requirement that an agreement is reached, but only that both parties participate in good faith. In nearly every mediation, the client is responsible for mediation fees.  Clients should expect to pay the mediator at the end of the mediation, regardless of whether an agreement is reached.  You should know in advance the anticipated costs of mediation, knowing the hourly rate as well as the time allotted for mediation.  In Northern Kentucky there are many very skilled mediators.  Many mediators, like attorneys, specialize in certain areas of practice.  Your family law attorney can help guide you to a mediator who excels in this area. If you have questions, contact your attorney. If you are looking for an attorney or mediator in Northern Kentucky, contact Michael Bouldin at [email protected] or call 859-581-6453/

Child Support Modification in Kentucky

Clients often ask what is required to file for modification of child support in Northern Kentucky.  The law requires that a "substantial change" must occur in order to modify child support.  Any change which results in a 15% modification is considered to be "substantial."  Many people believe that you need to wait 2 years to modify, however a moving party can request modification at any time.

Relocation with Children in Custody and Divorce Cases

In Northern Kentucky the issue of relocation has become one of the most litigated issues before the family courts.  Court rules 7(2) require that "before a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian."  This requires not only notice to the court but service on the joint custodian.  Joint custodians should be very reluctant and careful before deciding to relocate, as the courts will often not approve a move which substantially limits the other parent's rights or time with the child(ren).  The rule further provides that "either party may file a motion for change of custody or time-sharing within 20 days of service of the notice if the custodians are not in agreement; or, the parties shall file an agreed order if the time sharing arrangement is modified by agreement.  The two cases of Pennington v. Marcum and Wilson v. Messinger are considered. The rule also requires that sole custodians provide "written notice shall be filed with the court and notice shall be served on the non-custodial parent.  If the court ordered visitation is affected by the relocation, the non-custodial parent may file a motion contesting the change in visitation with in 20 days of the notice." When dealing with relocation issues, it is important that parties discuss the case with a family law attorney who understands this specific area as there are often long term ramifications for acting hastily.  Often parties move, purchase property, or simply up and leave, believing that they have the right to move the children without the knowledge or consent of the other parent.... This may lead to extreme hardship or loss of custody. The law and the family rules regarding notice does not specify a number of miles or whether the relocation is out of state or out of the county.  Local judges can consider a move across the street to require notice.  In sole custody situations, the non-custodial party cannot object unless the relocation affects the court ordered visitation.  In joint custody situations, the relocating party has the burden of proof and there is no requirement that the time share is affected by the relocation in order for the other party to object. If you have questions about relocation, contact your attorney before making any decisions or moving.  If you need to speak to an attorney in Northern Kentucky, contact Michael Bouldin for a consultation at [email protected] or call 859-581-6453.

What is a Re-Opening Fee?

Under Kentucky rules the parties generally pay a one-time fee for a dissolution, or any other civil action, to the Clerk of Courts.  This fee is the same regardless of whether it is a simple uncontested dissolution or a high-conflict divorce which requires numerous hearings.  By contract, the fees in Ohio vary depending on the amount and number of documents filed, hearings required and time spent.  Hamilton County charges per page for each filing which is entered. Kentucky's court costs are significantly less than our Ohio counterparts.  Northern Kentucky filing fees range from $153 - $178 for the case, additional costs are charged for service.  After a decree is entered, any new filings are considered post-decree matters and generally require a re-opening fee.  This does not include cases for child support enforcement or any motion filed within 6 months of the original decree. A re-opening fee of $50.00 is charged in all cases which have been closed for more than 6 months.  Typically the court will not docket a case unless the reopening fee is paid with the motion. If you have questions about fees, contact your local Circuit Court Clerk and request the Family Division.

What is Case Management in Kentucky Dissolution?

Kentucky Family Court Rules provide for Case Management Conference within 60 days of service of the Petition unless the parties give notice to the Court that the case is being mediated.  FCRPP2(6) - Case Management.  The rule provides that the petitioner has the burden of filing for the conference, however in Kenton County, frequently in Division 2 - Judge Mehling will schedule a case for a Case Management Conference (CMC) within those 60 days with notice being sent out only weeks after the Petition is filed. The parties and their counsel are required to attend and should be prepared to discuss: filing of discovery, filing of Verified Financial Disclosures, what will be necessary to prepare the case for trial, what are the issues to be litigated (support, custody, division of assets, identification of assets, debts) and if there are any temporary issues requiring litigation. Failure to appear at the CMC may result in any of the following: contempt motion, dismissal of the dissolution, court costs and legal fees being assessed.  Also found within these rules is the clear preference for mediation.  Clients should speak with their attorney about mediation and involvement in the process to attempt to resolve their differences.  Special care should be made to advise the court if the case is proceeding as a collaborative dissolution. If you have questions about a case management conference, ASK YOUR LAWYER.  If you do not have an attorney or wish to discuss your dissolution, call Michael Bouldin at 859-581-6453 or email at [email protected] .  Speak to Emily to schedule a consultation.

Are There Self-Defense or Stand Your Ground Laws in Kentucky?

Yes, Kentucky law recognizes a version of the stand your ground law that made Trayvon Martin and George Zimmerman household names. Under Kentucky law at KRS 503.050, the use of force is justified if the person believes the force is necessary to protect himself.  Following is the text of the statute on self-defense.   KRS 503.050 Use of physical force in self-protection -- Admissibility of evidence of prior acts of domestic violence and abuse.(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.(4) A person does not have a duty to retreat prior to the use of deadly physical force.In addition to the foregoing, KRS 503.055 further provides protection if you are in your dwelling, residence or occupied vehicle.  This basically states that if you are in your home or vehicle, the law presumes that you have a reasonable fear of imminent peril or bodily injury.  This is a step further because under 503.050 the defendant must prove that it was justifiable, wherein in the home/vehicle it is presumed. Further defined in KRS 503.060 are improper uses of force.  Justification defenses are available to many charges, including murder, manslaughter, assault and domestic violence. If you have questions about the law in Kentucky, contact Michael W. Bouldin. If you have been charged with a crime and possibly have a justification defense, make sure you hire an experienced criminal defense attorney.  For consultation, call 859-581-MIKE, (581-6453) or email at [email protected]

Our Custody Holiday Schedule Needs to Change

Attorneys who practice family law often get a number of calls this time of year due to the holidays.  Parents who are separated often complain because (1) they do not have a holiday schedule in place; (2) they are unhappy with the current holiday schedule; (3) they want to change the holiday schedule; (4) they have to work at the time they have custody; or (5) the other parent has stated an intent to change the schedule and they do not agree. Generally, if the parties cannot otherwise agree, then they follow the court's Standard Holiday Schedule.  The standard schedule for Kenton County is as follows this post.  If you do have an agreement and you agree with the other parent to modify the schedule, it is best to get that agreement in writing, with email being sufficient. Remember, many people have agreements that do not follow the standard schedule!  If you have an Agreement or any other Court Order, be sure to check YOUR agreement.  If you do not have any order or agreement in place, you should try to work with the other parent to come to an agreement.  If you keep the child this year, it is likely a judge will give the other parent the same amount of time in the future.   Many family court judges have a special Holiday Docket so that parties can have these issues heard before the holidays.  They are generally the second or third week of December and motions must be filed in advance.  Rules vary by county, so check with your attorney or the local clerk. KENTON COUNTY STANDARD HOLIDAY SCHEDULE

Hidden Assets and Divorce

It is not uncommon for litigants in a divorce to claim that the other party is hiding assets.  This is especially true in cases where a party owns a business or has significant investments.  Typically one party claims the other is hiding assets, absent any real proof.  It is the job of the attorney and the party to attempt to uncover any assets as well as ascertain the truth or veracity of the financial disclosures. Commonly, the attorney will utilize verified financial disclosures and discovery methods of interrogatories and request for production of documents to ascertain what assets are involved, both marital and non-marital.  This method requires the party to provide a list and proof of all assets. Often clients will simply state, "He made $1,000,000 last year and we don't have any money."  A quick primer in gross income v. net profit can be very revealing.  After we know the amount of income, we need to deduct all reasonable costs associated with the business: overhead, employee wages, cost of goods, taxes and the like.  The income is not necessarily relevant to the net profit of a company, nor the value. IF you suspect that your spouse is hiding assets, often you can be your own best private investigator.  Copying bank statements and other financial account information can prove essential in determining if assets are being secreted.  You should ask your attorney if he/she has experience in uncovering hidden assets.  You should also inquire if the attorney has business valuation experience or if they suggest hiring a CPA or other professional in determining the value of a business.  Hiring the right business evaluator or forensic accountant may be essential in discovering actual value and assets. If you have questions you should schedule a consultation with an attorney.  Having practiced family/domestic law in Northern Kentucky for over 19 years, with a background in business and degree in Business Economics, often the value of a company can be ascertained by review of financial statements, asset/debt balance sheet, and tax filings.  Other times, an accountant is required to set the valuation or to aid the parties in agreeing.  If you wish to schedule a consult, call Michael Bouldin at 859-581-6453.

What Does a DUI Cost in Kentucky?

I am often asked, "What is the cost of a DUI in Kentucky?"  The answer can be as simple as the legal fees involved, but the real answer is much more complex. The cost for increases in insurance rates vary according to your insurer.  That said, the best estimate is between $1,200 the first year, which is basically an absolute minimum to over $40,000 over the next 13 years.  Generally most insurance companies will double the rate for insurance once a driver is convicted of a DUI offense.  Also, a DUI stays on your record for 5 years, so the minimum is generally $6,000. If convicted, other costs include $750-1000 in court costs and fees.  This includes the state mandated DUI service fee as well as the statutory fine of $200-500 for a first offense.  The court will also mandate an Alcohol and Drug Evaluation, $60 plus mandatory classes which can be from $120-500.  The division of drivers' licensing will also charge a reinstatement fee which is $40 in Kentucky (note: Kentucky reinstatement fee is among the least expensive in the country). Also involved is potential for 3-30 days of incarceration, which generally translates to lost income.  Also is loss of license for 30-180 days. Remember, these all all for FIRST OFFENSES.  The breakdown is as follows: If convicted:                                                                                    If acquitted: $0 - $5,000                           LEGAL FEES                                 $1,200 - $5,000 $750 - $1,000                      COURT COSTS/FINES               $0 $6,000 - $40,000               INSURANCE INCREASE         $0 $180 - $560                           DUI CLASSES                               $0 $40                                             REINSTATEMENT FEE            $0 yes                                               LOSS OF LICENSE                      no (*unless refusal) possible                                     INCARCERATION                     no As you can see, the cost can be very expensive if you are convicted of a DUI, even a first offense in Kentucky.  If you have been charged with a DUI you need to know your rights and speak with a criminal and DUI defense attorney.  In Northern Kentucky and Cincinnati, contact Michael Bouldin for a consultation at 859-581-6453 or email [email protected]

Custody Issues

When determining custody of children, whether during a divorce or if parents were never married, parents are presented with a myriad of issues which need to be addressed.  Often parties come into the lawyer saying, "We agree on the custody."  That said, very few parents have actually discussed ALL of the parenting issues.  Following is a list of issues which parents need to address: PARENTING A.      Decision Making (Legal Custody) and Primary Residence B.      Weekly Residential Schedule C.      Holiday and Vacation Periods (overall intention)

Vacation and Divorce

Vacations with your family may be a way to reconnect with your spouse or maybe the final realization that the marriage is irretrievably broken. Having helped over a thousand clients through divorces I have come to discover that many people take fairly large scale vacations prior to filing for separation. This is often due to a hope that the vacation will rekindle a love or help the family to bond. Often the vacation may be a second honeymoon or a special trip that the couple has wished and dreamy about for years. Although this may be strange to hear from a "divorce attorney," I think it is a wonderful way to see if both partners are in the relationship or if one has checked out. Many times one party sees this as a hope and the other sees it as a chance for a once in a lifetime trip. When one party is trying and sees that their spouse has "checked out" a divorce filing often follows. If you have questions or heed a consultation about divorce, separation, reconciliation, or dissolution contact a family law attorney. In Northern Kentucky call Mike Bouldin at 859-581-6453 (581-MIKE) or schedule an appointment by speaking to Emily.

Biggest DUI Day of the Year

Black Friday is often described as the biggest shopping day of the year. Did you know it's also the day that the most DUI charges arise? Thanksgiving weekend presents a number of factors that lead to a significant number of DUI and OVI arrests. Long days, increased alcohol consumption, seeing family and friends, kids home from college are but some of the reasons. Also, many police agencies are on high alert during this season. If you have been charged, you have rights and likely many defenses. Speak with an experienced DUI defense attorney. For a consultation in Northern Kentucky or Cincinnati contact Michael Bouldin at [email protected] or call 859-581-6453.

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