“QUOTE UNQUOTE”

June 29, 2012 § Leave a comment

“A man wrapped up in himself makes a very small bundle.” — Attributed to Benjamin Franklin

“I do not know what I may appear to the world; but to myself I seem to have been only like a boy playing on the seashore, and diverting myself by now and then finding a smooth pebble or a prettier shell than ordinary, while the great ocean of truth lay all undiscovered before me.” —  Sir Isaac Newton

“The most of my sufferings and sorrows were occasioned by my own unwillingness to be nothing, which I am, and by struggling to be something.” —  Edward Payson

WRONGFUL DEATH AND THE ERRANT FATHER

June 28, 2012 § 1 Comment

In 1988, Catherine LePori gave birth to a son, Brandon, without benefit of marriage. In 2001, DHS filed an action against Alton Welch to establish paternity of the child. For reasons unexplained in the record, no judgment was entered until 2007. Those are the barebones facts that underlie the COA decision in LePori v. Welch, decided June 26, 2012.

We can deduce from the record that Alton never paid any significant child support during the pendency of or after that DHS suit, and that he did not develop any significant relationship with the boy.

In March, 2008, Brandon was was working in a sewer line when it caved in and he was killed. He was nineteen at the time.

In March, 2009, Catherine filed suit to terminate Alton’s parental rights posthumously, expressly for the purpose of preventing Alton from having any interest in a wrongful-death suit she had filed. Alton had filed a motion to intervene in the wrongful-death action.

The chancellor dismissed Catherine’s petition for failure to state a claim, and she appealed.

In its decision, the COA noted that the statutes providing for termination of parental rights (MCA 93-15-103, et al.), are concerned with the best interest of the child, not the parents or survivors. Thus, if the child is deceased the statute logically no longer applies. The court held that the statute is not to be applied posthumously.

Catherine argued that dismissal of her termination case would unjustly enrich Alton, whom, she alleged, had caused substantial erosion of the parent-child relationship. Judge Maxwell’s opinion pointed out, however, that MCA 91-1-15(3)(d)(i) provides that the natural father must have “openly treated the child as his, and ha[ve] not refused or neglected to support the child” in order to inherit. That code section is incorporated into the Wrongful Death Act (MCA 11-17-13).

Based on the code sections, Judge Maxwell pointed out that Catherine could have filed an action to determine Brandon’s heirs at law in his estate, and pled 91-1-15 as a basis to adjudicate that he had no interest. Or, Judge Maxwell noted, she could have pled the statute to argue against Alton’s motion to intervene in the circuit court action.

This is an interesting case that has implications beyond its apparently narrow focus. When you’re confronted with issues such as this, don’t get tunnel vision and limit yourself to one way to go. Keep your eye on the big picture and consider how all the component parts fit together.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #5

June 27, 2012 § Leave a comment

This is the sixth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #5 …

Use summaries and compilations.

MRE 1006 allows you to present summaries and compilations of voluminous and complicated evidence. If you simply dump 300 pages of credit card statements on the judge, you likely will not get the same result you would if you instead presented her with a table summarizing those statements and highlighting what you want the judge to consider.

The entire rule reads this way:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Rule 1006 is a great tool to help you accomplish the Golden Rule of Chancery Court, which is “The easier you make it on the chancellor, the better your chance that the judge will rule in your favor.”

Think of it this way: If you dump those 300 pages of accounts in the judge’s lap with little or no guidance, how thorough do you expect the judge to be in his examination and analysis, when he has other hearings and trials to deal with day after day after day? Judges are like everyone else. Faced with unrelenting time pressure they will take shortcuts to get some relief, and that includes even the very best, most thorough judges. I am sure that in the back of the judge’s mind is the thought that if the lawyer could not take the time and effort to elucidate this mass of evidence, why should I? 

You can alleviate that judge’s drudgery by admitting into evidence a chart or summary of the data, showing calculations you used to produce your compilation. Some forms could include month-by-month summaries with yearly totals, time lines with highlighted benchmarks, account calculations, graphs, comparative charts, illustrations, diagrams, and just about any other form of graphic depiction of the evidence that will aid the judge.

The only requirements are: (1) the summary or compilation must be of evidentiary matter that is too voluminous to be examined conveniently in court; (2) the summary or compilation must be based on that evidence; and (3) the originals must have been made reasonably available for inspection and copying, and you should have the originals available in case the judge orders that they be produced in court.

Earlier this year I tried a case in which the attorneys had cooperated to reduce hundreds of bills and accounts to tables and charts with totals and recaps that were easy to decipher and follow. It made a complicated case much simpler to decide, and I was able to get out an opinion in short order with the aid of the Rule 1006 summaries.

Use MRE 1006 to your advantage. It might just be the leg up you need to prevail.

AN ENDURING MISCONCEPTION

June 26, 2012 § Leave a comment

In a contested equitable distribution case, I require the parties to present a pre-trial order that includes a listing of all property with values. Lawyers appear with the appropriate information, get a trial date, and we proceed from there.

Then, at trial, it happens quite often that someone testifies that they omitted an item or several — some stock, interest in a trust, some furniture, a few pieces of jewelry — usually with some significant value. And we then devote considerable attention and time to something that could simply have been listed on the property list that was not.

Almost invariably the rejoinder is to the effect that “It was something I owned before the marriage,” or “That was an inheritance from my dad that I received after the marriage,” or “Those were rings that momma gave me.”

The misconception — an enduring one — is that if it was owned before the marriage, or was an inheritance or gift, it is not considered in equitable distribution. That’s not so.

All property of the parties, whether marital or non-marital, is taken into consideration in equitable distribution. Among the Ferguson factors that govern the chancery court’s adjudication of equitable distribution is the value of each spouse’s separate estate, or, in the court’s own language, “The value of assets not ordinarily, absent equitable factors to the contrary, subject to distribution, such as property brought to the marriage by the parties, and property acquired by inheritance or inter vivos gift by or to an individual spouse.” Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994). Thus, proof of each party’s separate estate must be developed and considered by the court in deciding how to divide the marital estate equitably.

Even though the parties’ separate property is required to be considered, however, assets that prove to be truly separate in nature are not subject to being divided in equitable distribution, meaning that they will go into the column of the party who owns them. The aftermath of equitable distribution will be two piles of marital assets that have been divided equitably, one for each party, upon each of which is heaped the party’s separate assets.  

It is only after equitable distribution has been accomplished that alimony may be considered, and alimony is appropriate only when the equitable distribution leaves a party with a deficit, or inability to support himself or herself. Among the Armstrong factors for adjudication of alimony is “The obligations and assets of each party.” The MSSC has held that the trial court must consider in determining alimony both the assets awarded to the spouse in equitable distribution, and the parties’ separate assets. Striebeck v. Striebeck, 911 So.2d 628, 634-635 (Miss. App. 2005), Sanderson v. Sanderson, 824 So.2d 623, 627 (Miss. 2004). Disparity of income and assets, including separate assets, after equitable distribution triggers consideration of alimony.

Remember, too, that assets can change character from separate to marital or mixed. Just because your client tells you that she acquired that antique armoire from her aunt before the marriage, don’t automatically assume it is out of reach of equitable distribution. The appellate courts have clung to the “family use doctrine,” and that piece of furnture may have gotten in play for equitable division simply because the husband used it for ten years to store his shirts, ties, underwear, pajamas and even love notes from his girlfriend.

List all of the assets, clearly marital as well as questionably marital. Then argue your client’s case as to why certain items should be excluded from equitable distribution, but don’t fail to list them.

ANSWER TO THE ADOPTION PUZZLER

June 25, 2012 § 3 Comments

I posted An Adoption Puzzler last week that set out an interesting scenario. If you haven’t read it yet, take a minute to check it out.

The comments to the post are spot on, and I will mention them in a moment, but to get right to the heart of it, what the lawyer proposed simply will not fly because of MCA 93-17-13, which states, in part: ” … all parental rights of the natural parent, or parents, shall be terminated, except the spouse of the adopting parent.” In this case, then, the statute mandates that all parental rights of both the natural father and mother must be terminated, since the mother is not the spouse of the adopting parent.

There are lots of other implications raised by this proposal that bear discussion. Some of them:

  • Is it really in the child’s best interest? Yes, he will have insurance coverage, and possibly SS survivor benefits, but his grandfather will now be his father, his father in essence will be his brother, and if the mother’s rights are terminated, she will be a complete non-entity in his life. Is the grandfather fit at his age to raise this child to adulthood?
  • Does the mother understand that if her parental rights are terminated that she has no further recourse? Look at MCA 93-17-17, which says basically that only jurisdictional defects and failure to comply with the statutory procedures are grounds to set aside an adoption. A quite possible outcome later would be that, after the father gets out of prison he can re-adopt the child from the grandfather, doubly cutting the mother out of the child’s life.
  • Why are they attempting to accomplish by an adoption what could probably be achieved as effectively by guardianship or custody? Caveat: If you’re going to go the guardianship or custody route the mother needs to be advised of the deleterious effect either action would have on her natural parent presumption, which she would lose.
  • Is it ethical to promote such a drastic change in a child’s life and legal relationship to his parents merely to gain insurance coverage and possible SS benefits? Have you inquired what the arrangements will be in the future for the care of the child? If the mother’s rights are terminated, is she nonetheless going to continue to act as a parent? If so, aren’t you perpetrating a fraud on the insurance carrier and the SSA? If she is not going to continue, how suitable is a 72-year-old man to see to the needs of a toddler, and then a child, teenager and young man, over the span of the next 15 or so years.

David Linder’s comment hit the target by citing the code section, but the other comments all sounded the same alarms that I heard ringing in my head when I heard the proposal. When you’re confronted with questioning clients on a matter such as this you have to be ready to parse it thoroughly, filtering it through your knowledge of the statute law and cases, ethics, your experience, and — yes — your gut instinct.

Kudos to all of the commenters.

[Credit to Chancellor Debbra Halford for the reference to MCA 93-17-13]

DICTA

June 22, 2012 § Leave a comment

  • What does the world look like from the point of view of your poodle? There are cameras you can buy to attach to Fido that will record his daily meanderings. Mr. Pet Cam is one model among several. For a more elevated perspective, you can even go to your neighborhood Wal-Mart and buy a remote-controlled helicopter with a camera, too. It may be paranoia, but I think there are some privacy implications here.
  • Thanks to all of you who read this blog. Wordpress provides the blogger with stats, so I can track numbers. In 2012, after two years, we are averaging around 450 views a day, a number I find incredible. Now, I don’t know whether that’s unique viewers or the same people making repeated visits; in other words, whether it’s one person viewing 450 times or 450 different people. Either way, I marvel at the numbers. Lawyers and judges from across the state tell me about how things they’ve found here made some difference, and I hear that it’s mentioned at some CLE programs. Good. If it helps, it’s serving its purpose.
  • How rational are you? You can take this quiz and get the author’s assessment of where you stand. It seems to me to be more a test of your logic skills. But is rationality simply logic and its mastery? Intuitive folks tend to look beyond logic to connect the dots, and most of us are quite rational.
  • John M. MacDonald and Robert J. Samson write in the NYT that mass immigration hurts neither the economy nor public safety, and is in fact beneficial.
  • The state’s monopoly over liquor sales was a conservative attempt to regulate citizens’ liberty vis a vis the use of alcohol. It’s the system we employ in Mississippi. Jonathan Turley in USA Today calls it our traditional socialism, and calls for an end to it.
  • Meanwhile, in N.Carolina, the legislature has amended its own liquor sales law to allow the state-controlled stores to open during hours more advantageous to delegates, plenipotentiaries, pols and paparazzi who will be in attendance at the Democratic National Convention scheduled for Charlotte in September. Skoal!
  • It’s mindbending to someone like me whose sensibility is so firmly rooted in the mid-twentieth century that there could be something like 3-D copying and printing, and that ordinary people are actually using it home to produce remarkable things. But then again, my generation thought things like a watch phone (Dick Tracy), or face-to-face communication by television (or computer), or bionic prostheses and the like were things we’d only ever see in comic books and fantasic tv shows.

AN ADOPTION PUZZLER

June 21, 2012 § 8 Comments

Here’s an adoption scenario I was presented with recently:

Natural father is convicted of a felony and sentenced to a long term in Parchman. Natural mother is left at home with one child, and is struggling financially. She does not want a divorce. Paternal grandfather, 72 years old and a widower, is willing to help by adopting the child. Natural dad will sign a consent. Jurisdiction and venue are proper. The adoption will allow the child to be covered by grandpa’s health insurance, and will have the added bonus of providing SS benefits for the child in the event that gramps kicks the bucket. Mom wants to continue to be the mom, so the adoption judgment will terminate natural dad’s parental rights, substitute the paternal grandfather for the natural father, and leave the mom in her position as mom. As the lawyer helpfully points out, it’s a win-win-win situation. Right?

You’re the special chancellor. How do you rule? What’s the basis for your ruling?

Answer later.

COACHING FROM COUNSEL’S TABLE

June 20, 2012 § Leave a comment

Atty 1:   Can you tell the court why you did not call the police right away when you say that he hit you and knocked you down?

Atty 2:   Objection. The witness could not have called because her husband had broken the telephone before he hit her.

That, my friends, is a speaking objection. It’s a pernicious, baleful, noxious thing, odious to judges. So what exactly is the big problem with speaking objections? Let’s look at what predictably happens next in that trial we started above …

Judge:   Objection is overruled.

Atty 1:   Judge says you can answer my question.

Witness:   Well, I could not call because my husband had broken the telephone before he hit me.

How could one expect a different answer after her attorney told her what to say?

One of the most important functions of a chancellor is to weigh the credibility of witnesses and to determine the weight to give to their testimony. I think most chancery judges, if not all, would assign that witness’s testimony on that point almost no weight at all because it was not her testimony.

I have had to caution counsel not to make speaking objections and to limit any comment on objections to legal bases (e.g., hearsay, irrelevant, compound question, etc.).

Speaking objections actually do your case more harm than good.

JOINT CUSTODY IN THE CHILDREN’S BEST INTEREST

June 19, 2012 § 3 Comments

The case of Easley v. Easley, decided by the COA June 5, 2012, is the latest iteration of the principle that the trial court may award joint legal custody in an irreconcilable differences consent divorce even where there is no specific joint request for it by the parties.

In Easley, the parties consented to an irreconcilable differences divorce and submitted the issue of child custody to the chancellor for adjudication. The chancellor found that joint custody would be in the best interest of the children, but concluded that he could not award it because of the language of MCA 93-5-24(2), which reads, “Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.” Since the Easleys had not both applied to the court specifically for joint custody, the chancellor awarded custody to the father and the mother appealed.

The COA reversed and remanded, citing and quoting Crider v. Crider, 904 So.2d 142, 147 (Miss. 2005), as follows:

It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent. It would be the same if the parties requested that the court determine which party will receive “all marital assets.” The chancellor has the responsibility to determine how to best distribute the assets according to court-specified factors (the Ferguson factors) and must not be bound by the wording of the consent to award all marital assets to one party.

 The COA opinion goes on to reject the appellee’s argument that he prevailed slightly in trial court’s adjudication of the Albright factors, so that the award of exclsuive custody to him should be upheld. Judge Fair’s opinion cited and quoted Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), as contrary authority:

[The father’s] argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interest[]. See Phillips v. Phillips, 45 So. 3d 684, 694 (¶30) (Miss. Ct. App. 2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So. 2d 251, 258 (¶23) (Miss. Ct. App. 2006) (citation and quotation omitted).

The COA opinion closes with a remand to the trial court to consider the children’s present circumstances as well as those existing at the time of the November, 2010, trial, and closes with this language at the end of ¶11: “If joint custody remains in the children’s best interest, the chancellor should not hesitate to award it.”

A previous post focusing on Crider is here.

As for the Crider court’s reference to the term “primary custody,” you should keep in mind that the addition of the term “primary” to custody adds no legal meaning whatsoever. You can read a post on that point here.

A previous post about decision-making in joint legal custody arrangements is here.

And some general observations about joint custody are in a post you will find here.

I think Crider is clear that any time you submit custody to the court for adjudication in an irreconcilable differences divorce via consent you are opening the door to an award of joint custody, no matter what the language of the consent, and you can not word the consent in such a way as to rule it out.

FORTY-ONE DON’TS IN A DIVORCE

June 18, 2012 § Leave a comment

I could not possibly say it any better than Clinton attorney Randy Wallace, who lays out “40……make that 41 things NOT to do during your divorce” in his blog.

Where Am I?

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