December 15, 2017 § 2 Comments
December 13, 2017 § Leave a comment
In previous posts that you can read here and here, we talked about awards of joint custody in cases that did not involve divorce. The former link was a paternity case; the latter was a third-party custody dispute between grandparents.
In yet another paternity case the chancellor awarded joint custody and his decision was affirmed in Rayner v. Sims, handed down October 17, 2017, by the COA.
The case is not particularly noteworthy, except to add it to your stockpile of authority supporting awards of joint custody in non-divorce cases.
The COA’s decision does include a discussion of one way that a chancellor may calculate child support in a shared-custody arrangement. Here’s what Judge Griffis’s opinion had to say about it:
¶29. Mackie further claims the chancellor “engaged in his own computation of the child support obligation that is not supported by or authorized by statute.” We disagree. The chancellor ordered that Chance would have physical custody three days per week, and Mackie would have physical custody four days per week. The chancellor found that child support for the minor child would be based “upon 14 percent of each party’s adjusted-gross income” and that each party “shall pay child support in proportion to their periods of shared custody and their incomes.” [Fn 6] We find statutory support for the chancellor’s decision.
[Fn 6] The chancellor stated he would leave it up to the attorneys to “do the math.”
Counsel subsequently submitted an exhibit, which outlined the child-support calculation.
¶30. Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) provides that 14% of a party’s adjusted gross income should be awarded for the support of one child. Pursuant to section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court “makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in section 43-19-103.” Under Mississippi Code Annotated section 43-19-103(g) (Rev. 2015), the “particular shared parental arrangement” is a factor the chancellor may consider in his adjustment of the statutory guidelines established by section 43-19-101(1). Miss. Code Ann. § 43-19-103(g).
¶31. Here, the record shows that the chancellor found the statutory percentage, as outlined in section 43-19-101(1), should be adjusted based on the parties’ joint custody arrangement, “in proportion to their periods of shared custody.” The chancellor further ordered that Chance shall continue to provide insurance for Frances. Such decision is supported and authorized by statute. Accordingly, we find no error and affirm.
We have all seen this apportionment of child support process handled a hundred different ways. I am sure you have seen some creative ways yourself. As long as the result comports with the statutory percentages and takes into account the shared custody arrangement, the judge’s decision would likely be affirmed.
December 12, 2017 § 2 Comments
Lawyers bicker with each other for a living. Sometimes that bickering spills over into my office. When it does I customarily say, “Bring me an agreed judgment or set the case for trial; don’t argue your case in here.”
There actually is another alternative: you can announce a settlement on the record. Sometimes that works handsomely, but many times not.
As I posted here before, the MSSC ruled in Sanford v. Sanford that you can not dictate a property settlement agreement or consent to divorce into the record and leave it at that. There must be a separate, written agreement.
In Samples v. Davis, 904 So.2d 1061, 1065 (Miss. 2004), the attempted announcement failed because:
There is no transcript in this matter memorializing the alleged agreement; given the fact that there is no transcript, there is no record of the terms to which Samples allegedly agreed, i.e., in the absence of a record, we are without proof of substantial credible evidence to support the chancellor’s order. According to Mississippi Uniform Chancery Court Rules 3.09 and 5.03, if there was an oral agreement, it should have been recorded by the Court reporter or reduced to writing and approved by Samples’ counsel. Neither of these methods were employed. Therefore, we will in effect “wipe the slate clean and put the parties back where they were prior to trial.” Massingill v. Massingill, 594 So.2d 1173, 1177 (Miss.1992).
The latest iteration of issues arising from a settlement announcement is in the case of Black v. Black, decided by the COA on November 7, 2017. Following a contentious divorce in which every major issue was hotly contested, Arthur and Alicia Black appeared before the court for R59 motions and verbally agreed to certain changes in the visitation regimen ordered by the court in its divorce judgment. But when the judge entered his judgment on the R59 motions, he failed to include the parties’ agreement on visitation. On appeal, Arthur argued that it was error for the trial court not to include the parties agreement in its final ruling. The COA agreed, with Judge Barnes writing for a divided court:
¶37. Lastly, Arthur asserts that the chancellor erred in failing to include visitation changes specifically agreed upon during the Rule 59 motions hearing in its posttrial order. Because of these omissions, he seeks to have these revised provisions memorialized. Reviewing the original visitation provisions in conjunction with the subsequent on-the-record agreement between Arthur and Alicia, we find this is proper.
¶38. In the original final order, the chancellor set forth specific visitation privileges with which the parties were to comply. For summer each year, the parties agreed that Arthur would receive the children on June 1 until June 21, and on July 10 until July 24. For Thanksgiving holidays each year, Arthur was to receive the children in odd-numbered years on the day following the last day of school until the day before school was to reconvene. As to Christmas holidays each year, Arthur was to receive the children in the second part of the holiday during odd-numbered years, and the first part of the holiday during even-numbered years.
¶39. However, at the hearing on the Rule 59 motions, Arthur and Alicia verbally revised the provisions of Arthur’s visitation privileges with the children. The parties agreed that for summer visitation, Arthur would receive the children the first Sunday of June, and the Sunday following July 9 each year. They further agreed that Alicia would have the children during Thanksgiving in odd-numbered years, and Arthur would have the children in even numbered years. For Christmas, they agreed that Arthur would have the children the first part of the Christmas holiday in odd-numbered years, and the second part of the holiday in even-numbered years. The parties also agreed that all times relevant to the visitation
provisions should be according to Eastern Standard Time, and that Arthur would maintain a $1,000 credit balance with Alicia for the children’s noncovered medical expenses. Finally, the parties agreed that any remaining balance in a child’s college fund at the conclusion of his or her college schooling would be transferred to the next child for his or her college education.
¶40. Yet none of these revisions were documented in the chancery court’s posttrial order except to note that the visitation-exchange times would be on Eastern Standard Time. To avoid future visitation conflicts, Arthur seeks to have the chancery court incorporate these revised provisions in an order. Due to the material changes to dates, as well as which party shall receive the children during odd- or even-numbered years, we find such memorialization necessary. “If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (discussing
agreement of parties in open court). Though Arthur and Alicia’s agreement was of record, this is not sufficient to ensure the absence of future conflict regarding these altered provisions. Therefore, we remand on this issue for the chancery court to memorialize the terms of the parties’ final agreement regarding Arthur’s visitation privileges.
I have said here before that orally announcing terms of settlement on the record is an unsatisfactory and inadequate way to represent your client. People do not listen or pay as much attention to what they are saying as they do when they are writing or reading. Settlement announcements often include imprecise terms, incomplete provisions, and lack of attention to detail. We take more time and care with written agreements, and there are two or more sets of eyes scrutinizing their terms.
Of course, in Black the problem was not indefiniteness, but rather lack of a definitive record at all of that to which they agreed. It was compounded by the court’s entry of an order that omitted their agreement, which left open the question whether the court was refusing to approve it, or what exactly the court intended.
Another problem in Black is that, once the chancellor ruled on the R59 motions, that was that. No more proceedings. As I said here before, “In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments.” Thus, the only avenue for relief following ruling on the R59 motions was appeal.
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.