IF DIOGENES LIVED IN MERIDIAN IN THE 21ST CENTURY …

April 15, 2011 § Leave a comment

Instead of shining his lamp, I guess he’d take out a want ad in the Meridian Star like this dude did last Sunday …

In a way, I’m kind of pulling for him to have success in finding a non-wimp, honest lawyer.

Thanks to Pam Bittick, Esq., for this.

[SIDE NOTE:  If my information is correct, the gentleman who ran this ad was actually a candidate for governor in 2007.]

DICTA

April 15, 2011 § Leave a comment

Hunter S. Thompson

Keith Richards

A HELPFUL VISITATION RESOURCE

April 14, 2011 § Leave a comment

Mississippi Department of Human Services’ Division of Child Supprt Enforcement has a program designed to aid non-custodial parents with visitation.  You can read about Mississippi’s Access and Visitation Program (MAV-P) by clicking on the link.  The site includes contact information.

MAV-P offers parents who have a court order a neutral facility for visitation and supervised visitation.

For parents without a court order, the program offers a mediation service.

Also included are parenting education and fatherhood mentoring.

Neither parent is required to be a recipient of DHS benefits, but paternity must be established in all cases as a prerequisite to participation in the program.

Any lawyer who has done much custody work can tell you that visitation cases can be as difficult and touchy as the most hotly contested custody cases.  Since Wesley House in Meridian stopped offering supervised visitation some time ago, it has been a challenge to come up with a viable solution when confronted with the need for supervision.  Now it appears that we have a way.  I have tried to communicate this information to as many of our guardians ad litem (GAL’s) as possible.  And now you are in the loop.  Please let me hear from you about the effectiveness vel non of this program.

CAVEAT:  One of the Lauderdale County GAL’s informed me that she tried to invoke these services only a couple of months ago and was told that this office did not have such a service.  If she was informed correctly, that’s more ammunition for those who have questioned whether Lauderdale County DHS is functioning as it should.

UNCONTESTED DIVORCE: ON OR OFF THE RECORD?

April 13, 2011 § 4 Comments

Should you make a record when presenting an uncontested divorce?  I usually leave it up to the lawyer.  If you’re making that decision, you should consider the COA decision in Simmons v. Simmons, rendered March 29, 2011.

In that case, the appellant failed to appear or defend, and his ex-wife went ahead and presented the case as an uncontested divorce.  The chancellor entered a judgment granting his ex-wife not only a divorce, but also the entire marital estate and attorney’s fees.  Joey presented several issues on appeal, one of them that his ex had failed to make a record, and as a result there is no evidence to support the chancellor’s award.

The COA opinion, written by Judge Roberts, cited Luse v. Luse, 992 So.2d 659, 661 (Miss. App. 2008) for the proposition that there is nothing in MCA 93-5-17(1) that requires transcription of an uncontested divorce hearing, and there is a presumption that there is sufficient evidence to sustain a decree if one is entered by the chancellor.

It’s still up to you whether or not to make a record, but it may just be counterproductive to have one.  if you make a record, it seems that you are creating something for the other side to use as a target, and they just might hit the jackpot on a lucky Tuesday with the COA.  On the other hand, if you make a perfect record, in a child custody case, for example, you might seal off any attack.  What do you think?

THYME FOR LEA & PERRIN TO FILE AN ACCOUNTING FOR ROSEMARY

April 12, 2011 § Leave a comment

Examining an accounting in a probate matter such as an estate, guardiandhip or conservatorship can be a mind-numbing task:  bank statement, bank statement, cancelled checks, bank statement, bank statement, cancelled check, bank statement, cancelled checks, receipt, receipt, receipt, bank statement, and on and on.

My day was considerably brightened recently as I pored over an annual account in a conservatorship:  bank statement, cancelled checks, bank statement, receipts, cancelled checks, bank statement, barbecue shrimp recipe, bank statement, receipts.

Wait a minute … backspace … barbecue shrimp recipe?  In an accounting?  I never heard of such a thing.

My first reaction was that perhaps this seasoned lawyer had slipped it in there just to see whether I really read all that stuff (he should know better).  Then it occurred to me that maybe he was trying to document the ward’s standard of living (but that might not be a good idea because the ward has since died, and this is after all a pretty artery-clogging recipe).  Or maybe it was intended to be an inventory of the ward’s kitchen assets?  I eagerly anticipated my meeting with counsel for an explanation.

When I met with the attorney, though, he disclaimed any idea how the recipe might have gotten into his court file.  He professed to be as bumfuzzled about it as I was.  Now, faced with such a mystery, lawyers generally blame their secretaries, but not this lawyer.  He took the high road and blamed it on one of the deputy clerks.  When the deputy clerk was confronted, however, she pointed the blame at the lawyer’s secretary, so the customary cycle of legal blame came around full circle to where it belongs.

But I was not looking to place blame.  Not at all.  I wanted instead to commend the perpetrator for adding some spice to what can be a mundane, tedious task.  Alas, however, the identity of that heroic person shall apparently remain a secret.

Now, I know what you are wondering.  You are wondering what exactly was this recipe that stirred up so much attention.  Well, here it is, verbatim, from the court file …

BBQ Shrimp

2      Sticks melted butter

1/2      Cup Lea & Perrin’s

1      Tsp salt

1      Tsp black pepper

1/2      Tsp cayenne pepper

2      Tsp garlic puree

1      Tsp thyme

2      Tsp rosemary

1/2      Tsp celery salt

1      Tsp olive oil

Mix and cook, not boil, let cool.

Put shrimp [quantity not provided] in dish w/mix, ref. over night, cook at 350, stir every 4 to 5 min and turn shrimp when 1/2 way done, taste after 20 min.  cook about 30.

It occurs to me that if every lawyer would file a recipe with annual and final accounts, we could at length compile a cook book, perhaps with a catchy title like Cooking from the Court Files, or Entertaining Intestacy, or Recipes De Bonis Non.  We could organize it so that conservatorship accounts would be accompanied by seafood recipes, guardianships would have entrees and appetizers, intestate estates would have meat dishes, testate estates would have breads and breakfast recipes, and trusts — of course — would include desserts.  I think I’ll see if Judge Mason will consider a local rule to that effect.  Or instead, maybe we can implement this idea across the state, sell the books, and fund a judicial pay raise.  Winner, winner, chicken dinner.

 

CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

“QUOTE UNQUOTE”

April 8, 2011 § Leave a comment

Photo from the New York Times

The way I look

at it, I’m passing through a phase:

gradually I’m changing to a word.

Whatever you choose to claim

of me is always yours;

nothing is truly mine

except my name. I only

borrowed this dust.

— Stanley Kunitz

APPEARANCES CAN BE DECEIVING

April 7, 2011 § 5 Comments

When do your actions constitute an appearance in court on behalf of your client?  It’s an important question, because your actions or non-actions can result in professional liability for you.

Take for example this scenario:

Joey, an old client, and his daughter meet with you one morning.  Joey is upset because his wife, Betty, has filed a divorce complaint against him.  He wants you to represent him, but he can’t afford your retainer, and you know from past experience that he probably won’t pay your bill.  In an effort to mollify Joey, you call the lawyer on the other side and tell him that Joey is willing to agree to a divorce, and if Betty will provide a list of property she wants, the case can be settled.  You hang up the phone, Joey and daughter leave thinking all is taken care of, and you promptly put it out of your mind, turning your attention to paying clients.

Fast forward a few months.  Joey returns to your office quite upset.  He hands you a judgment granting Betty a divorce and giving her most of the marital assets.  Oops.

What happens next?  In the case of Simmons v. Simmons, with facts almost identical to those above, Joey’s lawyer filed a motion to set aside the divorce on the basis that the phone call constituted an appearance.  The opposing attorney took the position that he had a vague recollection of a phone call from someone, but could not even remember who called him, and he went forward with the divorce when his client insisted he finalize the case.  The chancellor overruled Joey’s motion, and Joey appealed.  The COA held that the chancellor’s finding that the phone call did not amount to an appearance was one of fact, and would not be disturbed on appeal.

So how do you protect yourself in these situations?  A few suggestions:

  1. Don’t do it.  Don’t make that call.  Explain to Joey that you can not just call the other lawyer without being retained.  If you call, Joey will likely believe that you now represent him, retainer or none, and you may well have a professional responsibility to him.
  2. Okay, if you simply can not resist, then don’t make the phone call without a representation agreement.  If the client can’t pay the full freight tab, consider a limited scope representation agreement at a lesser rate, and reduce your services accordingly.
  3. Document, document, document.  Write a letter and follow up.  Fax the letter; that fax transmission notation and receipt may be just the proof you need if the lawyer on the other side claims he never received the letter.

You’ve probably thought of a few other measures you could take.  Good.  Protect yourself.

Just last week I continued a divorce trial (for two weeks) because a lawyer had gotten into a similar swivet.  To make matters worse, the lawyer has a letter from the defendant, who is in Rankin County Correctional Facility, thanking him for his efforts in representing her, although all he did was make a couple of phone calls to counsel opposite.  He has two weeks to get straight with his client/non-client.

Another post on this subject is here.

STAY OF EXECUTION

April 6, 2011 § 5 Comments

In a divorce the judge grants your client a judgment in the amount of $115,000 for her interest in a marital-asset business.  The judge orders the husband to pay the judgment at the rate of $500 a month.  Can you execute on the judgment even if the husband is making the payments as ordered by the court?

The answer is Yes, you may execute regardless of his payment history.

In the case of Jenkins v. Jenkins, handed down March 29, 2011, the COA cited Peeples v. Yarbrough, 475 So.2d 1154, 1158-59 (Miss. 1985), and reversed a chancellor’s ruling that execution on the judgment was stayed as long as the defendant made the payments as ordered.  The COA held that the chancellor has no authority to stay execution on the judgment, although the judge does have the authority to order and enforce a payment schedule.

So what to do if the chancellor does include a stay with entry of the judgment?  I would suggest that you file a timely MRCP 59 motion to reconsider citing Jenkins and Peeples.  If you don’t, you run the risk of running afoul of your trial judge, even if his or her judgment was contrary to the law.

DICTA

April 5, 2011 § 1 Comment

  • National Affairs has a thoughtful article on The Auto Bailout and the Rule of Law that will get you thinking about what happens when political and economic exigencies collide with the law.
  • Wondering how to retire with no savings?  You may be surprised to learn that many people do.  Pop Economics takes a look at the phenomenon.
  • What would it be like to fly as a passenger on the world’s fastest bird, the peregrine falcon?  Find out here via this BBC video.
  • Is it contradictory to claim to be a conservative and be in favor of tort reform?  If you hate the federal health care mandates, how can you love federal tort reform?  Some food for thought on the subject here.
  • Are Apple and Nokia headed the way of the stegosaurus?  Bruce Everiss thinks they are.
  • So with Apple and Nokia easing into oblivion, is Windows Phone 7 the next big thing?  Maybe not.
  • The dramatic death of Soviet cosmonaut Vladimir Komarov in 1967, with sound track.
  • If you’re wanting to keep up with just about every reported instance of police misconduct across the country, check out the daily-updated Injustice Everywhere blog.
  • And is the Tasmanian Devil headed down the fateful path of Apple and Nokia?  It seems that an epidemic is taking its toll on the creatures, claiming as much as 90% of the wild population to date.

Tasmanian devils:

Where Am I?

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