December 6, 2017 § Leave a comment
Just in time for your last-minute Christmas shopping.
On Pinterest courtesy of ABA Journal.
December 5, 2017 § Leave a comment
When Mike and Kim Smith were divorced in 2011, both of them lived in the Tupelo area. In 2012, Kim relocated near Atlanta with the children, and the parties agreed to meet for visitation exchanges in Leeds, Alabama, a point approximately half-way.
Mike customarily travelled to Kentucky for work or play, and the parties agreed for a time to meet in Chattanooga, which was more convenient for Mike. Kim, however, found the Chattanooga exchange unacceptable, and insisted on the Leeds exchange location. Mike filed a petition to modify visitation to require the Chattanooga location.
Following a hearing, the chancellor denied Mike’s petition to modify the visitation exchange point. Mike appealed. In Smith v. Mull, decided November 7, 2017, the COA affirmed. Judge Lee wrote for the unanimous court, Tindell not participating:
¶14. Mike also argues that the chancellor erred in failing to modify the exchange location from Leeds to Chattanooga when he is working or visiting in Kentucky. In doing so, Mike asserts the chancellor “gave no cogent reason” for her decision. We disagree.
¶15. This Court has articulated the relevant principles regarding modifications of visitation: When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. The chancellor has broad discretion to determine the specific times for visitation. H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). With these principles in mind, we find the chancellor’s decision to deny Mike’s request for modification was supported by substantial credible evidence.
¶16. In his motion, Mike sought to have the exchange location modified to “the most convenient location for . . . the minor children.” He argued that when he is working or visiting in Kentucky, Chattanooga should be the court-ordered exchange location, as it is a slightly shorter distance (approximately 143 miles) from Kim’s home than Leeds (approximately 152 miles). He further argued that the chancellor’s failure to modify the
exchange location was not in the best interests of the children because it requires approximately 150-160 additional miles per exchange when he is in Kentucky. He alternatively sought to have Kim meet him at a different location so long as it did not exceed the 152 miles that Kim would normally drive from her home. Kim testified that Leeds was “very systematic, very structured, it’s what we’re used to, we know the safe places, we know all that stuff.” Kim also testified that, although Chattanooga may be a shorter overall distance from her home, it took longer to travel there than to Leeds.
¶17. To prevail, Mike needed to show that “the prior decree for reasonable visitation [was] not working and that a modification [was] in the best interest[s] of the child[ren].” Id. After hearing testimony from both parties, the chancellor found: “[M]odification of the place of exchange, while perhaps more convenient for [Mike] when he elects to travel out of state, would disturb the children’s routines with which they have become comfortable and which complies with the prior decrees.” The chancellor further stated: “I don’t buy into [Mike’s] argument . . . that the court is inconveniencing the children, because, as their father, [Mike] ha[s] to make whatever decision works for [himself]in their best interest[s].” The chancellor ultimately held that Mike failed to show that visitation was not working to serve the best interests of the children. Upon review of the facts before us, we do not find the chancellor erred by declining to modify the visitation-exchange location. This issue is without merit.
This is actually a somewhat familiar fact situation in chancery court. One or both parties relocate, throwing visitation into controversy. In these cases, I often hear it said that the test is whether the prior order for visitation is working or workable. But that is an incomplete statement. The test is actually whether the prior order for visitation is not working … and whether modification is in the best interest of the child or children. That latter consideration is what tripped Mike up in this case. It’s not what is more convenient for either or both parents; it’s what is in the best interest of the child or children.
December 4, 2017 § 2 Comments
As I write this Congress is in the throes of crafting revisions to the federal tax code that will have far-reaching impact on domestic litigation. For instance, I have heard that the child-dependency exemption is being considered for elimination, and even deductibility of periodic alimony has been on the chopping block. Whether or not those particular provisions end up being affected, there are hundreds of others that could be, and that could directly impact your clients.
We not only do not know what substantive changes will be made, but we do not know when they will go into effect, and we do not know how existing contracts and judgments will be affected.
This might be a good time to suggest to your clients to put the brakes on negotiating divorce terms until the dust clears. Then, it would be prudent to sit down with a competent CPA to get some guidance about what difference changes in the law will make in your advice to your clients. It might also be a good idea to come up with and insert some disclaimer language in your PSA’s in which your clients acknowledge that the advice you have given is against the backdrop of a possibly drastically changing legal landscape.
Or, it may prove to be yet another Washington chimera. Just pay attention.
December 1, 2017 § 1 Comment
“I am sure I have always thought of Christmas time, when it has come round — apart from the veneration due to its sacred name and origin, if anything belonging to it can be apart from that — as a good time; a kind, forgiving, charitable, pleasant time: the only time I know of, in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts freely, and to think of people below them as if they really were fellow-passengers to the grave, and not another race of creatures bound on other journeys. And therefore, uncle, though it has never put a scrap of gold or silver in my pocket, I believe that it has done me good, and will do me good; and I say, God bless it!'” — Charles Dickens, A Christmas Carol.
“There’s nothing sadder in this world than to awake Christmas morning and not be a child.” — Erma Bombeck
“In the old days, it was not called the Holiday Season; the Christians called it ‘Christmas’ and went to church; the Jews called it ‘Hanukkah’ and went to synagogue; the atheists went to parties and drank. People passing each other on the street would say ‘Merry Christmas!’ or ‘Happy Hanukkah!’ or (to the atheists) ‘Look out for the wall!'” — Dave Barry
November 29, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today.
A FEW POINTERS FOR MORE EFFECTIVE CHANCERY TRIALS
December 14, 2010 § 7 Comments
A few thoughts that might help:
Facts, not impressions. Okay, you’re the judge and you have to decide whether the defendant assaulted the plaintiff. Here are two different versions in response to the question “Please tell the court what you observed when you entered the room.”
Version One: “The defendant was going crazy. I mean he went mental. Kaflooey! And I couldn’t believe it. Never saw anything like it. Mmm, Mmm, Mmm; I mean to tell you. Crazy. And, Lordy, such language. I didn’t know which way to turn. Didn’t really scare me, though — I was in Viet Nam. But it might have scared the others.”
Version Two: “The defendant picked up a recliner chair and threw it through the window. Then he grabbed a beer bottle and rared back like he was going to hit the plaintiff in the head, but instead he slapped her in the face and screamed that he liked to kill her. She was all balled up on the floor crying and begging, yelling out “please don’t break my arm like you done the last time!” and then he turned and glared at me and I thought he was going to kill me.”
Version one doesn’t convey a single thought about what the defendant actually did to assault anyone. It is ineffective because it is full of impressions and adjectives. Where are the specifics?
Version two, on the other hand paints a vivid picture chock full of verbs that unmistakably conveys the violence and anger. All the details are there.
When you’re prepping your witnesses for trial (Uh — you do prep your witnesses, I hope), train them to paint a word picture of what happened instead of just babbling a bunch of labels.
Eliminate pronouns from your questions. Keep in mind that you are doing two important things while you are questioning the witness: You are telling the judge your client’s story as persuasively as you can; and you are making a record for the appellate court to use if necessary. So how does the following help your client?
Q. So when they entered the room, what did he say?
A. They was all talking loud, but he said he was going to kill her for messin’ around with him.
Q. Who else was in the room?
A. Just all them and me.
Q. What if anything did you see him do?
A. Well, he left the room and then he came with guns and then they both had guns.
Q. What did he do?
A. He started to shooting. That’s when he shot her by mistake, I guess.
Huh? Who’s on first? What’s on second? I dunno’s on third? How in the world can anybody follow that? Let’s go back and eliminate the pronouns:
Q. So when Robert, Travis and Bo entered the room, what did Bo say?
A. Robert, Travis and Bo was all talking loud, but Bo said he was going to kill Charlene for messin’ around with Billy Joe.
Q. Who else was in the room?
A. Just Rita and Charlene and me.
Q. What if anything did you see Bo do?
A. Well, Travis left the room and then Caleb came with guns and then Travis and Bo both had guns.
Q. What did Bo do?
A. Bo started to shooting. That’s when Bo shot Rita by mistake, I guess.
Clearer? It is to me.
Focus on the points you need to prove. If, for example, you are trying to modify child support, it makes no sense to take your client early in her testimony through a long, meandering history of the marriage and divorce, and then how the children are doing in school, and then get several pictures into evidence that one of the children finger-painted in kindergarten, and then a narration of the soccer tournament in Brandon, and then ad nauseam. Get into the Adams factors for child support modification, sit down and hush. Just hush. Sometimes I have the impression that an attorney has no clue about what he or she is supposed to prove because the witnesses and exhibits are all talking about something entirely different from what is at issue.
It’s your job to establish jurisdiction. Yes, it’s your job. Nevertheless, I have had to do it on more than one occasion for the attorney. Here’s the deal:
If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue, and of course a marriage;
if you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and
ditto for a contempt action;
if you are trying a property dispute, where on this green earth is the property located?
The pleadings are not evidence in chancery court. Don’t think just because it’s in the pleadings that it is proven. The pleadings are your template for what must be proven through competent evidence at trial. If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.
No corroboration = no divorce. Unless the parties lived in near-total isolation and were incommunicado, which is almost unheard of in this internet-connected, smart-phone world, corroboration is a prerequisite to a divorce. What constitutes adequate corroboration is beyond the scope of this post, but you can find what you need to know in Professor Bell’s or Professor Hand’s treatise. In uncontested cases, I will sometimes “recess” the hearing to allow a lawyer time to recoup some of his or her dignity by scrounging up some corroboration, but in a contested case, I can not do that without prejudicing the opponent, and the result is an unfortunate denial of the divorce.
CAVEAT: The ground of habitual cruel and inhuman treatment was amended, effective in early 2017, to eliminate the requirement for corroboration in some cases involving domestic violence. You need to study the statute carefully to determine whether or not and how it applies in your case.
Spend some time on your 8.05. A post with ten tips for more effective financial statements is here. I have seen cases turn on the 8.05’s, and the one that is clear and better-presented prevails every time.
Oh, and here’s something to keep in mind: If you’re in a modification of child support case, the most crucial thing to prove is that there has been a CHANGE in circumstances. Use your brain here. If you are trying to prove a change, and it involves money, what is the best tool to use to show that change? Yes! It’s the 8.05! Of course! Add a column to your current 8.05 showing the expenses and income from back in 2003 when the divorce was granted. You can ask your client to dig around and find the 8.05 from back then to base your figures on, or ask her to reconstruct those figures for you. If she does have the 2003 8.05, you could offer that into evidence to prove the expenses and income back then.
Finally, do yourself, the witnesses, opposing counsel and above all the court a favor and simply number the pages and items of your financial statement. Imagine how mind-numbing this unfortunately typical exchange is for the judge (and everyone else within earshot):
Q: So you spend $200 a month on clothes?
A: Yes. No. I’m not sure I know what you’re talking about.
Q: It’s on page 3.
A: (Flipping pages of the 8.05) No. I think that’s the equity in my house. Or maybe that’s my life insurance. Or pet expense. I’m not sure.
Q: No, look at the third page, the third page. 1-2-3.
A. Do you mean the GMAC here? That must be my church donation — Greater Meridian Adventist Church? Hmm, I don’t even go to that church.
Q: You’re looking at your car payment. Turn to the page that looks like this (Showing the witness the document).
A: I don’t see where it says that I spend money on clothes.
Q: Well, you have the figure $200 down there where it says “clothing.” What is it for?
A: Oh, clothing. I see it on line 11, but that’s the fourth page.
Q: No, it isn’t, it’s the third.
A: You’re right, it’s the third. Now what was the question?
Wouldn’t it have been more effective to direct the witness to the numbered page and to a particular line number? It certainly would save wear and tear on the judge, if nothing else. And the less wear and tear you inflict on the judge, the better your case turns out. Every time.
November 28, 2017 § 2 Comments
A point I have harped on often around here is that you should not spare your effort to produce proof on valuation of assets — particularly retirement funds, equity, and the like. It can make a huge difference in what your client takes away in equitable distribution and/or alimony, and if you have to appeal it may be the difference between affirmance and reversal.
A recent example is the COA’s decision in Inge v. Inge, decided October 3, 2017. Denise Inge appealed, complaining that the chancellor had erred by not finding the present value of the parties’ future retirement benefits. The COA found no error. Judge Wilson succinctly rejected her argument for a 10-0 court:
¶19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So. 3d 1249, 1252-53 (¶11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan [v. Dogan], 98 So. 3d  at 1124 (¶20) [(Miss. Ct. App. 20120]. [My emphasis]
Let that sink in: The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. In other words, it’s up to you to make a record. The more thoroughly you do that the better equipped you will be on appeal.
A few other points to ponder (with links to some previous posts):
- Another post making the same point is here.
- If you don’t give the judge enough to tip the scales your client’s way, the judge may average competing values.
- The date applied by the court to valuation can cost or gain you client big bucks.
- 8.05’s should not be an afterthought or thrown together. They should be carefully crafted with the attorney’s help because they are the “gold standard” of financial proof in chancery litigation.
November 27, 2017 § Leave a comment
Ever since the ancient case of Reynolds v. Riddell, 253 So.2d 834 (Miss. 1971), the law in Mississippi has been that once a Mississippi court enters a judgment awarding custody, that court in that particular chancery district retains exclusive jurisdiction to modify and enforce its judgment between parties continuing to reside in the state, even if one or both parties have relocated to other counties.
The sole exception is a Habeas Corpus proceeding, which must be brought in the county where the children are located. Bubac v. Boston, 600 So.2d 951 (Miss. 1992). Habeas, however, is a temporary action that does not confer continuing jurisdiction on the Habeas court, and does not actually effect a permanent modification. Id. at 955; See also, Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).
Reynolds did provide an escape hatch: if the chancellor finds that the matter is inconvenient in the original county, due, say, to the relocation of the parties, she can transfer the action to another county. Reynolds at 837.
Against this backdrop, we consider whether it is proper for the chancery court in one custody modification action before it to, in effect, transfer the modification to another child custody action pending before it. That’s what the chancellor did in the custody dispute between Kelly Burge and the two fathers of her children, Chad Sharff and Craig Burge. Sharff had filed for modification of custody of his son. Burge filed for modification of a prior divorce judgment between him and Kelly, seeking custody of his son.
In the course of the custody cases, the chancellor dismissed Chad’s claims and consolidated cases as described below. The chancellor awarded custody of all of the children to Craig, and Kelly appealed.
One issue Kelly raised was that the chancellor had authority only in her original divorce action to modify custody, and that it was error for him to consolidate it into another custody case not arising from the divorce. In Burge v. Burge and Sharff, decided August 1, 2017, the COA affirmed. Judge Barnes penned the opinion for a unanimous court:
¶45. Kelly makes the procedural argument that the chancery court’s jurisdiction over the Sharff divorce ended when Chad’s custody-modification pleadings were involuntarily dismissed due to failure to prosecute. She claims that because Craig lacks standing in the Sharff divorce, no motion for modification survived, and the chancery court lacked grounds and jurisdiction to modify the Sharff action. Additionally, Kelly contends that the record supports collusion between Craig and Chad, who were attempting to deprive Kelly of custody of her four minor children by misuse of the procedural process. We are not persuaded by this argument.
¶46. Initially, Chad filed a petition to join Craig’s case “for just adjudication,” and requested Craig have custody of the children so as not to separate them. Alternatively, Chad requested he have custody. Approximately ten months later, Chad filed a petition to modify child custody in his own case, requesting legal and physical custody of his two children, since a material change in circumstances had occurred – the Burge divorce proceedings. He also filed a motion to transfer and consolidate his case with Craig’s case, since the same evidence would be presented in both cases to determine custody. Likewise, Craig filed a motion to consolidate his case with Chad’s case, and before trial began, the cases were consolidated.
¶47. At the conclusion of Craig’s and Chad’s case-in-chief, Kelly’s counsel made an ore tenus motion for the involuntary dismissal of Chad’s custody-modification action under Mississippi Rule of Civil Procedure 41(b), because Chad had not presented any evidence at trial to forward his claim. [Fn omitted] Indeed, Chad had not been physically present during the trial since an initial motions hearing nearly eight months earlier. Accordingly, the chancery court granted Kelly’s Rule 41(b) motion to dismiss, denying any relief requested by Chad for custody of his children. However, in the chancellor’s opinion, he stated that the Sharff divorce judgment was modified by Craig’s grant of custody.
¶48. From this ruling, Kelly argues that the involuntary dismissal of Chad’s custody modification in this case makes it “legally impossible” for the chancery court to address a change of custody for the Sharff children from Kelly to Craig. She contends the involuntary dismissal was an adjudication on the merits, and Craig no longer has standing in the Sharff case. Thus, the court lacked jurisdiction to modify the custody in it, and the children must remain in Kelly’s custody. We disagree.
¶49. In Professor Deborah Bell’s family-law treatise, she states:
A petition to modify . . . [a] custody . . . order must be filed in the court that issued the decree. As between the parties in the original action, the issuing court’s jurisdiction is exclusive, precluding any other court in the state from exercising jurisdiction over the case. . . . However, if an issuing court finds that adjudication in another court would be more efficient, jurisdiction may be transferred to that court.
Deborah H. Bell, Bell on Mississippi Family Law, § 18.07(1), at 447 (1st ed. 2005). Mississippi Code Annotated section 93-11-65 (Rev. 2013) allows the chancery court to hear a custody case apart from a divorce action. [Fn 10] Here, prior to the modification action filed by Chad, Craig had filed for third-party custody of the Sharff children in this action. According to statute, both actions were filed in the Lamar County Chancery Court, as the Sharff children resided in Lamar County in both actions, which is where custody between the natural parents has already been adjudicated. Chad’s modification action and Craig’s action are in the same chancery court, but with different cause numbers. Craig requested custody – something the court could grant – and both natural parents were given notice and an opportunity to be heard. The chancery court had the jurisdiction to modify custody of the Sharff children. That jurisdiction was not lost when Chad’s petition to modify custody was dismissed. [Fn 11] Kelly has not cited any authority to the contrary. This issue is without merit
[Fn 10] Section 93-11-65(1) provides that the chancery court of the proper county has jurisdiction to hear and determine suits for custody of minor children. “Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child.” The action shall be brought in the county where the child is actually residing, or in the county of the residence of the party with actual custody, or in the county of the residence of the defendant. “Process shall be had upon the parties as provided by law . . . .”
[Fn 11] Even if the action had been filed in a different chancery court, the chancellor could have transferred the action. Here, the actions were merely consolidated as they were already in the same court.
Conclusion: not error to consolidate the cases into a case different from the original judgment sought to be modified. Here, the chancellor ordered the consolidation, which was equivalent to a transfer under Reynolds. I think the best practice always is to get an order of the chancellor consolidating.
November 23, 2017 § Leave a comment
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