April 16, 2012 § 2 Comments
HB 484 was signed into law Friday by Governor Bryant, putting into effect the first pay raise for Mississippi judges in nearly 10 years. The bill increases pay for appellate and trial judges in five increments over five years, beginning 2013. It is funded entirely by an increase in court filing fees that still leaves our state last in the southeast in the amount one has to pay to initiate a legal proceeding.
Many people helped get this done, and if I tried to name those who did, I would surely offend someone by omission, but this was a team effort by judges, legislators, leadership of the bar, lawyers, and laypeople who understand the importance of an independent, adequately-compensated judiciary.
The bill also establishes a group to study judicial compensation and make recommendations that would hopefully remove judges’ pay from the political-football status it has enjoyed hitherto. Maybe pay could be tied to a percentage of federal judges’ pay, or the southeastern average, or some other objective standard.
The entire budget for the judiciary in Mississippi is less than 1/2 of 1% of the state budget. Yes, less than 1/2 of 1%. The third, constitutionally co-equal branch of state government gets 1/2 of 1% of the entire state budget to fund its entire operation, which includes: salaries and state portion of benefits for 19 appellate judges and approximately 100 trial judges; salaries and state portion of benefits for staff attorneys and/or law clerks for judges who have them; an office expense allowance for each judge; the mini-bureaucracy in Jackson; in-state travel (some limited funds are available, rarely, to attend out-of-state conferences); and the judicial college in Oxford that provides much-needed training for judges. That’s a lot to squeeze into 1/2 of 1%.
A nearby legislator who voted against the bill was asked by an attorney why he voted against the bill. His response was, “They make enough.” I hope he gave the issue more thought than that. Even with the pay raise, Mississippi judges rank at or near the bottom of the southeastern average. As it stands now, it is a considerable sacrifice for most of us to take a job as a judge. What we give up financially is the possibility to earn more, the advantage of owning a business that can pay many expenses that judges have to shoulder personally, and the possibility of entering business ventures with others. But the limitations are not only financial. We have to submit to the code of judicial ethics, which limits us in many ways, and any judge who has done the job for even a short time can describe the feeling of isolation that comes with the wall of separation that is required to do it properly.
Despite the limitations, Mississippi has a remarkably talented, dedicated and competent judiciary. It struck me from the beginning as I saw judges at meetings and conferences how seriously they take their jobs. Judges work in our state, and they work hard, trying their best to follow the law and making difficult decisions.
Maybe our legislative leaders will find a new way in the future to give the judiciary adequate tools to do its job. Commerce depends on courts that are sound, consistent and clear in their rulings. Society depends on courts that are fair and equitable in resolving disputes among citizens, and sure and just in addressing criminal behavior. Government depends on the balance that the judicial branch provides.
It’s true that it all boils down to money, but we need to have the best government we can afford, not the cheapest we can get by with.
April 13, 2012 § Leave a comment
“Guard well within yourself that treasure, kindness. Know how to give without hesitation, how to lose without regret, how to acquire without meanness.” — George Sand
“Waste no time arguing what a good man should be. Be one.” — Marcus Aurelius
April 12, 2012 § 12 Comments
Evidence is no longer a required course of study at either of the law schools in Mississippi.
That may be old news to you, but I heard of it for the first time only last week. You can click on either or both law school links over there on the right and check for yourself. You’ll have to do a lot of digging to find the info; I recommend you go straight to the school catalogs in .pdf format.
I am sure the academicians have a good reason for this development. I’m guessing – I haven’t “interviewed” any deans or anyone else – that it has something to do with the bar exam, and not law school itself, being what they consider the real certification of skills.
Still, when I think of subjects at the core of being a lawyer, evidence certainly ranks right up there in the top few. A good grasp of the law of evidence requires one to bring to bear the very analytical legal skills that distinguish the legal profession from other fields of endeavor.
Moreover, the law of evidence informs much of what a lawyer does in the everyday practice of law, regardless whether that lawyer ever personally sets foot in the court room. A lawyer’s advice about the drafting of a contract is shaped by the distinct possibility that it may have to be in evidence at trial some day. Advice to clients about how to make a proper paper trail and document activities is based on evidentiary considerations. When a client asks advice about what his or her liability might be if sued, the lawyer has to evaluate the evidence, taking into account what may or may not be admissible in evidence.
As I see it, law school has three primary functions: (1) to teach the law; (2) to teach how to find the law when one is not sure what the applicable law might be; (3) and to analyze the problem like a lawyer so as to bring (1) and (2) to bear.
Of the many areas of study that might be required, I nominate evidence as one that may be unparalleled in its ability to teach law students how to think like a lawyer. Now, I am not an academician. I am a mere trial court judge toiling away in an obscure corner of Mississippi, so my opinion, I am sure, carries little weight on this subject. But based on 33 years of practicing law and 5 years on the bench, I have to say from a purely nuts-and-bolts standpoint that a solid grasp of evidence would be in my top 3 of essential subjects to have if you expect to succeed as a lawyer (FYI, I nominate contracts, civil procedure and evidence).
And yet, by making evidence an elective, the subject has been assigned the same academic weight as other elective courses, which include Venture Capital, Law and Literature, and Legislation at MC; and Gaming Law, Bioethics, and Legal History of Slavery at OM. Not to say that any of those courses are not worthy of being included in a proper curriculum, but are they as essential to the core function of a lawyer as is Evidence?
It seems that the function of law schools has shifted from my era, when we were admitted to practice by diploma privilege after completing a rigorous, mostly required curriculum, to the current, when completion of law school is merely the gateway to admission to the bar exam, and it is up to the students to select (with a few exceptions) what he or she prefers to study.
In 1980, or thereabouts, Mississippi abolished “reading for the bar,” under which an aspiring lawyer would study the law on his or her own under the tutelage and supervision of a lawyer in good standing. After the prescribed period of study, with a certificate of the tutorial lawyer in hand, one applied to take the bar exam. Wisely, under that system, the experienced lawyer directed his tutee’s attention to the things that mattered, which included a hefty dose of Wigmore.
Now one must pay a law school – handsomely – for the same experience, sans the same dose of practicality.
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
But, you say, prospective lawyers still have to pass evidence on the bar exam. Yes, but I would be more comfortable knowing that the student who was certified by the law school as being ready to take the bar exam had actually studied and passed evidence courses rather than merely mastered enough of an outline to pass the bar exam.
In the UK there is a two-tiered system: solicitors, who sit in their offices, advise clients, draft wills and other papers, do property work; and barristers, who are certified to have the skills to do litigation.
Maybe we could adopt a similar dichotomy here. I propose that our two-tiered system would be divided along the lines of who has not studied evidence and who has. Those who have not, we could call “shopkeepers” or “legal retailers.” And those who have studied evidence we would call “Lawyers.”
April 11, 2012 § Leave a comment
I posted here about allocating marital debt. Debts that are clearly for the benefit of the household are debts that the court should assign to one or both parties in a divorce, applying the equitable principles laid out in Ferguson. No distinction is made between secured and unsecured debt.
Under our case law, we treat debts the same as we do assets for the purposes of equitable division. We classify them as marital or non-marital, place a valuation (the loan balance) on them, and equitably assign responsibility for them. That approach works well in general for debts that are secured by assets that are subject to equitable distribution. The debt in most instances reduces the asset value and goes with the person who gets the asset. Fair enough.
But what about where the debt is for expenses such as day-to-day living expenses or other family expenses that do not result in an asset in the household? I’m talking about credit card debt to pay the light bill, or to buy Christmas presents, or to pay for a family weekend in Gatlinburg, or to buy groceries at Wal-Mart? None of that kind of debt produces an asset. It’s debt that produced cash that was spent up in the ordinary course of living. Had the parties lived within their means, those expenses would have been paid out of ordinary income by the parties, but they chose to incur debt for them instead.
Expenses of the types described immediately above are part of routine, everyday life. If it is reasonable to allocate marital debts for those kinds of expenses to the parties, then why would it not be reasonable to track back through the marriage and account for all expenses, whether charged on a credit card or not, and allocate them between the parties? Say, for instance, that the parties in a hypothetical case spent $30,000 in a hypothetical year on groceries, household goods, utilities, toys for the children, medicine, cable tv, internet access, yard work, medications, property taxes, and on and on and on. If they filed for divorce, why would it not be reasonable, under the same logic we apply to marital debt, to go back and investigate how much they each contributed and then charge the one who contributed less with the difference? And if it is reasonable to do that, why do we not do it in all cases, even where the parties have been married 10, 20 or 30 years or more? Why not examine each year of the marriage, reconstruct the expenditures and equitably allocate the expenditures? Imagine what it would be like to try such a case. Horrors.
As absurd as the above sounds, we take exactly that approach in regard to marital debt. There is no limit on it. There is no threshhold. Whatever the debt is, and however long it took to amass it, we allocate it equitably. As it stands now, there is no limit to how far one can go back to claim reimbursement for or an allocation of marital debt or for how much.
It is logical, of course, that the debt is merely the residue left over after the expenses have been paid. In a divorce, debt is literally the ashes of a failed marriage. The debts are still there long after the expenses have gone away, and equity requires that the parties who enjoyed its benefits should share its burden. I understand that. What I don’t understand is that we have not imposed any reasonable parameters on it.
April 10, 2012 § 3 Comments
MCA § 43-19-101 should be familiar to you. It sets out the child support award guidelines. Since the guidelines are based on the payer’s income, it’s critical to understand just what and what is not included in income.
Subsection 3(a) tells us that we first have to “Determine gross income from all potential sources that may reasonably be available to the absent (i.e., noncustodial and paying) parent.” That’s an interesting phrase, “potential sources that may reasonably be available.” Notice that it does not refer to actual income. Potential sources that might come into play are to be considered.
Income under 3(a) includes, but is not limited to …
- Wages and salary income. There is no exception for overtime; it’s included.
- Income from self employment. Both reported and unreported income in this category is covered.
- Income from commissions. Variable and seasonal income is included, and there are different approaches that the court can use to address it. Bonuses are included.
- Income from investments. Dividends, interest and capital gains are income.
- Interest income.
- Interest earned from any trust account or property. It makes no difference whether it came from a “family trust” or similar creature; if it is income, it is included.
- Paying parent’s portion of joint income of both parents. As reflected on the joint tax return.
- Worker’s compensation.
- Disability. You can read the rules for calculating child support when the payer is a social security recipient here.
- Unemployment. No exemption from child support when the income source is unemployment benefits.
- Annuity and retirement benefits.
- IRA disbursements and withdrawals.
- Any other payments made by any person, private entity, federal or state government, or any unit of local government. Any 1099 income would be included. Any refund of taxes paid in would be included.
- Income earned from an interest in inherited property.
- Any other form of earned income.
At the end of 3(a) is the statement: ” … gross income shall exclude any monetary benefits derived from a second household, such as income of the [paying party’s] current spouse.”
Section 3(b)(i) requires that overpayments of taxes are to be included in gross income. That means that income tax refunds must be added back in. For low-income taxpayers who claim benefits such as earned income credit and head of household status, this can mean an increase in gross income by as much as $3,000 to $5,000, based on what I’ve seen in court. The trick is to figure out how much of that refund was attributable to the paying parent, and not to his spouse, and then to calculate his tax rate, social security deduction, etc. Don’t expect the judge to do all that math for you on a hunch as to what the proper percentages might be.
As a rule of thumb, you would do well to include anything that might even remotely be considered income. The judge will. If it looks like income, sounds like income, smells like income and feels like income, it most likely is.
One would think that the statute and its intent are straightforward and unmistakeable, but not from what I see in court. Witnesses often testify that they did not include bonuses “because I don’t know whether I’ll get one this year,” or commissions because “I never know from month to month what my commissions will be,” or overtime because “I don’t know when I’ll get some more overtime.” That’s simply not the law. Irregularity and umpredictability are factors that the court can consider, but they don’t warrant completely excluding those items from income.
As a practice matter, are you asking questions in your interrogatories, depositions and requests for production that address all those types of income?
April 9, 2012 § 5 Comments
When you have worked hard on a case and prevailed, you’d like to be adequately compensated. You put on your proof of attorney’s fees and the judge makes a handsome award. Only problem is, the other side appeals and the COA tosses out your award, much to your chagrin. How should you have bulletproofed that award?
In the case of Alexander v. Alexander, decided March 27, 2012, the chancellor had awarded Amanda Alexander a judgment for nearly $32,000 in attorney’s fees in a divorce action against her husband, Khari. The COA reversed the special chancellor’s decision for failure of to make any findings of inability to pay or about the reasonableness of the request. Here’s what the opinion said on the point:
“An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So. 3d 637, 648 (¶43) (Miss. Ct. App. 2010) (citing Smith v. Smith, 614 So. 2d 394, 398 (Miss. 1993). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶44) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the time and labor required,” (6) “the usual and customary charge in the community,” and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So. 2d at 767.
¶15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So. 3d at 648 (¶44) (citing McKee, 418 So. 2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.
In a divorce case, the party seeking an award of attorney’s fees must prove inability to pay. Deen v. Deen, 856 So.2d 736, 739 (Miss.App. 2003); Duncan v. Duncan, 915 So.2d 1124, 1128 (Miss.App. 2005); Sullivan v. Sullivan, 43 So.3d 536, 541 (Miss. App. 2010). Ability of the opposing party to pay must also be considered. Sarver v. Sarver, 687 So.2d 749, 756 (Miss. 1997).
Interestingly, the COA decision had already reversed and set aside the divorce in Alexander for failure to prove grounds before it addressed the award of attorney’s fees. There is no mention of the effect of that reversal on the fee award.
So what could counsel here have done to protect the attorney’s fees? Here are a few suggestions:
- It’s axiomatic that if you don’t put on the proper proof, the chancellor will not have the basis to make an adequate ruling. Print out the McKee factors and address every single one of them in your testimony. Don’t skip or skimp on anything! There is case law to the effect that, even if the chancellor never mentions McKee, he will presumed to have considered the factors IF there is evidence in the record that supports the award.
- Make sure you have adequate time records or other documentation in support of your testimony as to time spent, expenses, work done, and put your records into evidence. Here is a link to a helpful post on what you need to prove to get that award of attorney’s fees.
- If you feel that the chancellor has not made sufficient findings, file a Rule 59 motion and ask the judge to supplement his findings. Better yet, provide him or her with proposed findings of fact and conclusions of law on the point that address every applicable McKee factor.
When you have worked hard on a case, you want and deserve to be paid. Sometimes your client won’t be able to pay you, and your only realistic option is to look to the other party. Don’t leave it to chance. Make a bulletproof record.
April 8, 2012 § Leave a comment
April 6, 2012 § Leave a comment
“I am more afraid of an army of one hundred sheep led by a lion than of an army of one hundred lions led by a sheep.” — Charles Maurice de Talleyrand-Perigord
“”Revolution only needs good dreamers who remember their dreams.” — Tennessee Williams
“The individual has always to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. But no price is too high to pay for the privilege of owning yourself.” — Friedrich Nietzche
April 5, 2012 § Leave a comment
Back in the 90’s the Washington Post invited its readers to create new literature by combining the works of two different authors, and to provide a suitable description of the merged book.
Machiavelli’s Little Prince. Antoine de Saint-Exupery’s classic children’s tale as presented by Machiavelli. The whimsy of human nature is embodied in many delightful and intriguing characters, all of whom are executed.
Green Eggs and Hamlet. Would you kill him in his bed? Thrust a dagger through his head? I would not, could not, kill the King. I could not do that evil thing. I would not wed this girl, you see. Now get her to a nunnery.
Where’s Walden? Alas, the challenge of locating Henry David Thoreau in each richly-detailed drawing loses its appeal when it quickly becomes clear that he is always in the woods.
Catch-22 in the Rye. Holden learns that if you’re insane, you’ll probably flunk out of prep school, but if you’re flunking out of prep school, you’re probably not insane.
2001: A Space Iliad. The Hal 9000 computer wages an insane 10-year war against the Greeks after falling victim to the Y2K bug.
Rikki-Kon-Tiki-Tavi. Thor Heyerdahl recounts his attempt to prove Rudyard Kipling’s theory that the mongoose first came to India on a raft from Polynesia.
The Maltese Faulkner. Is the black bird a tortured symbol of Sam’s struggles with race and family? Does it signify his decay of soul along with the soul of the Old South? Is it merely a crow, mocking his attempts to understand? Or is it worth a cool mil?
Jane Eyre Jordan. Plucky English orphan girl survives hardships to lead the Chicago Bulls to the NBA championship.
Looking for Mr. Godot. A young woman waits for Mr. Right to enter her life. She has a loooong wait.
The Scarlet Pimpernel Letter. An 18th-century English nobleman leads a double life, freeing comely young adulteresses from the prisons of post-Revolution France.
Lorna Dune. An English farmer, Paul Atreides, falls for the daughter of a notorious rival clan, the Harkonnens, and pursues a career as a giant worm jockey in order to impress her.
The Remains of the Day of the Jackal. A formal English butler puts his loyalty to his employer above all else, until he is persuaded to join a plot to assassinate Charles de Gaulle.
The Invisible Man of La Mancha. Don Quixote discovers a mysterious elixir, which renders him invisible. He proceeds to go on a mad rampage of corruption and terror, attacking innocent people in the streets and all the while singing “To Fight the Invisible Man!” until he is finally stopped by a windmill.
Of Three Blind Mice and Men. Burgess Meredith has his limbs hacked off by a psychopathic farmer’s wife. Did you ever see such a sight in your life?
Planet of the Grapes of Wrath. Astronaut lands on mysterious planet only to discover that it is his very own home planet of Earth which has been taken over by the Joads, a race of dirt-poor corn farmers who miraculously developed rudimentary technology and regained the ability to speak after exposure to nuclear radiation.
The Exorstentialist. Camus psychological thriller about a priest who casts out a demon by convincing it that there’s really no purpose to what it’s doing.
Paradise Lost in Space. Satan, Moloch, and Belial are sentenced to spend eternity in a flying saucer with a goofy robot, an evil scientist, and two annoying children.
April 4, 2012 § Leave a comment
Amanda Alexander filed for divorce charging her husband, Khari, with the sole fault ground of adultery. She had discovered amorous emails on Khari’s computer. For his part, Khari admitted being attracted to other women, and even having flirtations with them, including one episode in which he was alone in a hotel room with a woman and put on a condom, but he denied adultery.
Amanda also testified that Khari threatened her and used profane language, slapped a phone out of her hand when she attempted to call the police, and took her car keys so that she had to get the help of police to get them back.
At the conclusion of the trial, the special chancellor found that Amanda had not proven adultery and suggested that she move to amend her pleadings under MRCP 15 to seek a divorce on the ground of habitual cruel and inhuman treatment, which she immediately did, and the judge granted Amanda the divorce on that ground.
Khari appealed, complaining that it was improper to allow the amendment because the requirements of MRCP 15(b) were not met to allow an amendment.
The COA reversed. In Alexander v. Alexander, decided March 27, 2012, Judge Lee, writing for the court, said, beginning at ¶8:
“Mississippi Rules of Civil Procedure Rule 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. Fisher v. Fisher, 771 So. 2d 364, 368 (¶13) (Miss. 2000). However, the chancellor found Amanda failed to prove adultery.
¶9. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that:
either endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.
S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp. 1991); Gardner v. Gardner, 618 So. 2d 108, 113-14 (Miss. 1993). A causal connection between the treatment and separation must exist. Fournet v. Fournet, 481 So. 2d 326, 329 (Miss. 1985). “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Moses v. Moses, 879 So. 2d 1043, 1047 (¶9) (Miss. Ct. App. 2004) (quoting Keller v. Keller, 763 So. 2d 902, 908 (¶29) (Miss. Ct. App. 2000)).
The court went on to find that Amanda’s proof did not meet the standard required to prove habitual cruel and inhuman treatment (HCIT). As Judge Lee pointed out, Amanda, when asked in her testimony what was the reason she was seeking a divorce, answered “Adultery,” and said that the reason for the separation was the inappropriate relationships with other women. Judge Lee noted that the conduct that is the ground for divorce must be the cause of the separation, not some other ground, and he pointed out that, although adultery can be considered HCIT, in this case the trial judge had found that there was inadequate proof of adultery.
This is yet another case that hammers home 2 points: (1) Make sure your pleadings are in order and map out what you are going to try to prove at trial and how to get there; and (2) You might as well not even try to get an HCIT divorce unless you have the requisite proof.
Judge Ishee wrote a dissent, joined by Judge Carlton, concluding that the chancellor did have adequate proof to support a finding of HCIT, but the dissent did not carry the day.
Two more points:
First, this case is another unfortunate example where the chancellor tried to do what he felt needed to be done, but did not have either the proof in the record or proper pleadings to go on. It’s up to the attorney to make sure that the pleadings cast a wide enough net to cover everything that needs to be covered, and that there is sufficient direct and corroborating evidence to support the judge’s ruling.
Second, I had to laugh out loud when I read this statement by the special chancellor: ” … but under the new rules an amendment can be made right up to the final order.” No, I’m not laughing at the distinguished and respected former chancellor and COA judge who made that statement. I’m laughing at myself. Here’s why: several months ago I was talking with a young lawyer about a procedural matter, and I commented that “Under the new rules … ” we now have to do so and so. Her face clouded up, and I asked her whether I had confused her. “It’s not that,” she said “it’s only that I didn’t know we had some new rules.” I explained that I still called the MRCP, put into effect in 1983 (that’s almost 30 years ago), the “new rules.” She laughed innocently and said, “1983? I was still in diapers then!” Yikes. I have since tried to purge my speech of any reference to the “new rules,” at least until we actually do have some new rules. Still, it’s hard not to feel old as Moses when someone tells you something like that.