December 31, 2011 § Leave a comment

Auld Lang Syne 2012


December 30, 2011 § Leave a comment

I’m hearing that Ron Doleac is appointed to take Chancellor Gene Fair’s poaition.


December 29, 2011 § Leave a comment

This may be the last substantive post here for 2011. The next you read here will come in 2012.

As with every year, 2011 provided its bounty of blessings and pestilence. Each of us can take stock of his or her own legacy from the passing year.

From the standpoint of the year’s end the coming year always glows bright with prospects. We hope for and expect better things.

In 2012, here’s what I look forward to:

  • Judge Eugene Fair being sworn in as the newest member of the COA. It will be a great advantage to have the perspective of a chancellor on the appellate court.
  • That our judges at all levels will continue to be dedicated and sincere in their pursuit of fairness and justice.
  • That our lawyers will continue in their dedication to their role in the rule of law, and that they will continue to improve and grow in professionalism and skill.
  • That the economy will recover.
  • That our political leaders will put aside partisanship and actually govern our nation and state for the common good.
  • That our families and all we love will be healthy and free from danger and care.
  • That our favorite sports teams will do well (Lord knows, mine could not do worse … except for the Saints).

And … well, that should be enough wishful thinking to get us started.

For all of you who read this blog, I ask God’s blessings on you, and I wish you the best in the coming year. God bless us one and all!


December 28, 2011 § 2 Comments

Here is a table showing the various standards of appellate review that apply to chancery court matters, based for the most part on material distributed to the judges at our annual meeting in October.
Knowing the standards of review can help you evaluate your case as to whether it warrants an appeal, as well as whether you have made a record that will satisfy the applicable standard.




Appeal to trial court from administrative agency action or ruling Arbitrary and capricious When this court reviews a decision by a chancery court or circuit court concerning an agency action, it applies the same standard of review that the lower courts are bound to follow. We will entertain the appeal to determine whether the order of the administrative agency (1) was supported by substantial evidence; (2) was arbitrary or capricious; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party. Miss. Sierra Club v. Miss. Dept. of Environmental Quality, 819 So.2d 515, 519 (Miss. 2002). 
Attorney’s fees Abuse of discretion Whether to award attorney’s fees rests entirely within the discretion of the trial court. A trial court’s decision on attorney’s fees is subject to an abuse of discretion standard. Unless the trial court is manifestly wrong, its decision regarding attorney’s fees will not be disturbed on appeal. Ward v. Ward, 825 So.2d 713, 720 (Miss. App. 2002).
Contempt – civil Manifest error In civil contempt actions, the trial court’s findings are affirmed unless there is manifest error. Riley v. Wiggins, 908 So.2d 893 (Miss. App. 2005).
Contempt – criminal Ab initio This court proceeds ab initio to determine whether the record proves the appellant is in contempt beyond a reasonable doubt. Brame v. State, 755 So.2d 1090, 1093 (Miss. 2000).
Domestic relations Manifest error/clearly erroneous In domestic relations cases the scope of review is limited b y the substantial evidence/manifest error rule. This court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his finding. Our scope of review in domestic relations matters is limited under the familiar rule that this court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard. Jundoosing v. Jundoosing, 826 So.2d 85, 88 (Miss. 2002).
Evidence, admission or exclusion Abuse of discretion The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (Miss. 2006).A trial court’s decision to admit or exclude evidence will not be reversed unless a substantial right of a party is adversely affected. Robinson Prop. Group, L.P. v. Mitchell, 7 So. 3d 240, 243 (Miss. 2009).
Expert testimony Abuse of discretion/clear error The qualifications of an expert in fields of scientific knowledge are left to the sound discretion of the trial court. Its determination on this issue will not be reversed unless it clearly appears that the witness is not qualified. This court reviews the trial court’s decision to allow expert testimony under the well-known clearly erroneous standard. Similarly, an expert’s testimony is always subject to MRE 702. For a witness to give MRE 702 opinion, the witness must have experience or expertise beyond that of an average adult. Thus, we generally defer to the discretion of the trial court in determining whether an expert is qualified to testify, and we will only reverse when there was clear error or abuse of discretion in the decision to admit the testimony. Cowart v. State, 910 so.2d 726, 728-29 (Miss. App. 2005).  
Findings of fact by chancellor Manifest error/clearly erroneous A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (Miss. 2002).
Law, questions of De novo We conduct a de novo review for determinations of legal questions. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (Miss. 2002).
Jurisdiction, in personam De novo An appellate court reviews jurisdictional issues de novo by examining the facts set out in the pleadings and exhibits to determine the propriety of the proceedings. American Cable Corp. v. Trilogy Commun., Inc., 754 So.2d 545, 549 (Miss. App. 2002).
Jurisdiction, subject matter De novo Whether the trial court had jurisdiction to hear a particular matter is a question of law, to which this court must apply a de novo standard of review. Edwards v. Booker, 796 So.2d 991, 994 (Miss. 2001).
Reconsideration under MRCP 59 Abuse of discretion A petition for reconsideration is treated as a motion to amend judgment pursuant to M.R.C.P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 265 (Miss. 2001) (quoting In re Estate of Stewart, 732 So.2d 255, 257(Miss.1999)). [I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004) (citation omitted). This Court reviews the denial of a Rule 59(e) motion for abuse of discretion. Id.



December 27, 2011 § 1 Comment

If you prove adultery, can that get your client a divorce on the ground of habitual cruel and inhuman treatment (HCIT)?

In the COA case of Johnson v. Johnson, decided December 13, 2011, Willie Johnson argued that the chancellor improperly granted his wife, Hazel, a divorce on the ground of HCIT because the only proof against him was that he had committed adultery, which had been condoned. He contended that adultery is a separate and distinct ground, and that, since he had proven a complete defense to adultery, it was error for the trial court to grant his wife a divorce on another ground.

It’s an interesting argument, because condonation is an absolute defense against an act of adultery, but it’s much more difficult to apply against HCIT, which involves recurring (habitual) conduct.

Judge Griffis stated the opinion of the court:

¶24. While Willie might be correct that adultery alone cannot support a finding of habitual cruel and inhuman treatment, a pattern of adultery, when combined with other cruel and inhuman conduct, can support such a finding. Id. at 368 (¶¶12-13). In Fisher, the Mississippi Supreme Court held that the husband’s several acts of adultery and few acts of physical violence supported a finding of habitual cruel and inhuman treatment. Id.

¶25. Likewise, in this case, there was substantial evidence that Willie had committed several acts of adultery and that he had, on at least one occasion, committed an act of physical violence. Willie fathered at least two – possibly three – children out of wedlock with two different women during his marriage to Hazel. His affair with Jones spanned almost two decades – beginning in approximately 1991 at Utica Junior College and continuing up until the entry of divorce in 2010. Also, Hazel’s testimony and the hospital records indicate Willie physically assaulted her in their former marital home in May 2004. We find these facts are sufficient to establish that Willie’s conduct was cruel and inhuman.

¶26. We also find Hazel has shown the requisite impact on her physical or mental health. The hospital records indicate that she suffered bruises and lacerations following the incident in May 2004. Also, Willie’s affair with Jones caused significant stress for Hazel. Jones became possessive, jealous, and threatening. She made harassing phone calls to Hazel, damaged property in Hazel’s garage, and scattered Hazel’s wedding photographs on the street in front of Hazel’s house. Hazel testified that as a result of that behavior, she felt terrified and would often barricade herself inside her home.

¶27. Lastly, we do not find Hazel had condoned Willie’s adultery. Hazel did continue in the marriage after she learned about Willie’s affairs, but the evidence indicates she expected him to end the affairs and recommit to the marriage. She forgave him for his past indiscretions, but she did not consent to live in a marriage with a habitually unfaithful husband. This is not a case where isolated acts of adultery were forgiven by the other spouse. Rather, Willie’s adultery was habitual and continuous.

¶28. In Smith v. Smith, 40 So. 2d 156, 157 (Miss. 1949), the supreme court rejected the husband’s argument that his wife had condoned his habitual cruel and inhuman treatment by continuing in the marriage. The court distinguished a “single act” from “courses of conduct,” suggesting that it is more difficult to establish condonation of the latter. Id. The supreme court stated: “The effort to endure unkind treatment as long as possible is commendable and the patient endurance by the wife of her husband’s ill-treatment should not be allowed to weaken her right to a divorce.” Id. Likewise, in Lindsey v. Lindsey, 818 So. 2d 1191, 1195

(¶¶17-18) (Miss. 2002), the supreme court found the doctrine of condonation inapplicable under the facts of the case. The husband had forgiven his wife for her past acts of adultery, but the wife proceeded to commit adultery again. “Condonation can be avoided if . . . the marital offense is repeated.” Id. Based on these authorities, we find Hazel had not condoned Willie’s habitual adultery.

So there you have it. Habitual adultery can amount to HCIT and defeat a defense of condonation if it meets the basic requirements of HCIT.

December 23, 2011 § 2 Comments

Matthew 2: 9-10


December 22, 2011 § 1 Comment

Actual courtroom proceedings collected from hither and yon over the years …

Toxic voir dire

Q:       You indicated that you knew one of the attorneys. Which attorney do you know?

A:       I know you. You represented me in a personal injury claim I had.


Q:       You have heard me ask about the distinction in burden of proof. What do you think of that?

A:       I think you have about beat that horse to death.


Q:       Ma’am, I am having trouble reading your writing. It says that you are manager at a hotel?

A:       Yeah, it does. I thought you said you had trouble reading my writing.


Q:       Does it make any difference to you in this case that I prosecuted you a while back in another case?

A:       Not really, since I won the case.


Object Lessons

Atty:       I object under the “who cares” principle.

Court:     Sustained.


Atty:       I prophylactically object to the question.

Court:     Prophylactically?

Atty:       I am not talking about contraception, judge. I am talking about preventing a line of questioning that would …

Court:     Your prophylactic objection is premature.

Atty:       Then I withdraw it.


Atty 1:       Objection, irrelevant.

Court:        Sustained.

[Later in the trial …]

Atty 2:       Objection, irrelevant. What’s good for the goose is good for the gander, judge.

Court:        Sustained.

[Later in the trial …]

Atty1:       Objection.

Court:       What’s the ground for your objection?

Atty 1:       That goosey-gander thing.


All in the Family Law

Q:       Have you and your wife equitably divided all of your personal property?

A:       Yeah. I went by and picked up what she throwed out.


Q:       She has Chanel? Is that the name of the dog?

A:       Yes, and I want half.

Q:       You want half? How do you expect that to work?

A:       I want the front half. I will feed it. She can have the other half.


Mens Rea in Corpore Insano

Prosecutor:       Mr. Sheriff, when you pulled over the defendant, was she drunk?

Defense atty:     Objection. Calls for a conclusion.

Court:                   Sustained.

Prosecutor:       Mr. Sheriff, when you stopped the defendant were your blue lights flashing?

High Sheriff:      Yes, sir.

Prosecutor:       Did the defendant say anything when she got out of her car?

High Sheriff:      Yes, sir.

Prosecutor:       What did she say?

High Sheriff:      “What disco am I at?”


December 21, 2011 § 2 Comments

What does the following language in a divorce property settlement agreement (PSA) mean?

The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].

That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.

Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.

Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.

Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.

The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.

In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.

This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”

A few suggestions:

  • As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
  • Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
  • Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection. 
  • Here are five suggestions for improving your PSA’s.
  • And here are five more.
  • Here is a post about a nightmare scenario in draftsmanship.
  • Kicking the can down the road, and why it’s not a good idea in your PSA’s. 
  • And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.

Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.


December 20, 2011 § Leave a comment

We’ve discussed imputed income here before. In essence, income can be imputed where the payor claims reduced income or incapacity in certain situations.

Another situation for imputed income arises where the judge finds that the payor has greater income than is reported on the financial statement and in the testimony. Such was the case in Brooks v. Brooks, decided by the COA on December 13, 2011.

In Brooks, at ¶ 9, the COA upheld the trial court’s decision not to accept the husband’s testimony about his income. The husband, Brandon, was a self-employed attorney who reported fluctuating income. The chancellor relied on Brandon’s 2007 income tax return to determine income because that was the only tax return he provided; he did not offer his 2008 or 2009 returns into evidence. In the absence of the two subsequent returns, the COA ruled, it was reasonable for the court to rely on and draw conclusions from the information submitted.

Brandon also contended that his income was insufficient to pay alimony to his former wife, Dawn, in the amount ordered, but the COA rejected that argument, at ¶ 22:

The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:

“. . . Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.”

From the payor’s standpoint, the more accurate and credible evidence you offer the court to establish income, the better off your client will be. Explain and document discrepancies and inconsistences, or run the risk that the court will construe them against your client.

From the recipient’s standpoint, attack income information and don’t take it at face value. You might persuade the judge to find that there is more income there than is being reported.


December 19, 2011 § Leave a comment

MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”

The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:

  1. The evidence was discovered following the trial;
  2. There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
  3. The evidence is not merely cumulative or impeachment;
  4. The evidence is material;
  5. The evidence is such that a new trial would probably produce a new result.

“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).

The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).

All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.

Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.

On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.

On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.

On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.

On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”

At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.

The chancellor overruled the motion, and said:

“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.

Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”

The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.

The COA affirmed, saying at ¶35:

Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.

Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.

So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.

Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.

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