THE SYMPTOMS OF PROBLEM ESTATES
August 30, 2012 § 2 Comments
Arizona courts pioneer in a lot of ways. The latest accomplishment involves monitoring of probate matters.
That state requires that probate cases be classed as minimum risk, moderate risk, or maximum risk. Each file is evaluated to classify it based on certain factors or indicators. Insted of our one-size-fits-all system, the level of reporting and monitoring in Arizona is tailored to meet the needs of the particular case. Each category requires court personnel to meet periodically with the ward or beneficiaries. Minimum risk cases involve a telephone interview every other year, moderate risk require an annual visit, and maximum risk call for a variety of measures including case compliance audit or even forensic investigation. Each level is prescribed meaures of accounting appropriate to the risks inovlved.
I found the risk indicators used by the court to be quite interesting. In fact, I have seen cases where multiple risk indicators were present in cases before our courts. There are 39 used in Arizona. Here are some of them:
- No family members.
- Large estate.
- Dispute among the parties.
- Late or no inventory or accountings.
- Inaccurate or no record keeping.
- Unacceptable accounting practices.
- Disproportionate or unusually large transactions.
- NSF checks and bank charges, late payment charges, payment of interest or penalties.
- Use of ATM’s or gift cards.
- Health, business or personal problems of the fiduciary.
- Financial problems of the fiduciary, such as tax liens, judgments or bankruptcy.
- Difficulty in obtaining a bond or failure to renew it.
- Attorney with a history of neglecting or mishandling probate matters.
- Fiduciary with limited experience (especially where the estate is large or complex).
- Poor or no supervision of fiduciary by the attorney.
- Ignoring requests of court and show cause court orders.
- Pattern of rebuffing reqquests for information by attorneys and court.
- Unauthorized gifts or loans.
- Pattern of complaints against the fiduciary.
- Transfers between bank accounts, particularly when close in time to inventory or accounting dates.
- Lack of contact between guardian of the estate or conservator and the ward.
These are what the courts look at to decide whether a fiduciary should be removed, or whether some other action should be taken to protect the interest of the ward or beneficiaries, but many of these you should monitor yourself in carrying out your role as attorney for the fiduciary. These are the symptoms of an ailing probate matter that require your immediate therapeutic attention. Some of them can be fatal. And if you fail to act promptly, some of them can cost you money.
[The information here comes from Future Trends in State Courts, 2012, published by the National Center for State Courts]
NEW FACTORS FOR UPWARD OR DOWNWARD DEVIATION IN CALCULATING CHILD SUPPORT
August 29, 2012 § Leave a comment
Significant amendments to the child support guidelines went into effect May 22, 2012, and I don’t think most attorneys are aware, because I don’t hear any proof addressing them in cases I try.
The amendments were to MCA 43-19-103, which sets out the bases that the court may use to deviate from the statutory child support calculation guidelines.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
So if you represent a payee, you need to highlight those daycare expenses necessary for employment, have your client talk about its impact on her budget, and have her ask specifically for the court to take it into account in calculating child support. And disability of the payee is now a factor.
Also look at subsection j. It can be used by either payer or payee. Many families have significant debt incurred for the household, and the party who will have to pay it can look for some relief under this provision.
While you’re at it, check out all of the deviation factors. I hear a lot of cases where I never even hear any of them mentioned.
THREE ACTS THAT DO NOT CONVERT SEPARATE PROPERTY TO MARITAL
August 28, 2012 § 1 Comment
Any asset value accumulated through the work efforts of one or both parties to a marriage during the marriage is a marital asset subject to equitable distribution in a divorce case. See, Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994).
Marital assets are subject to equitable distribution and may be divided between the parties in a divorce, applying the factors in Ferguson vs. Ferguson, 639 So.2d 921, 928-9 (Miss. 1994).
Any assets attributable to a party’s separate estate prior to the marriage, or acquired separately during the marriage, as by gift or inheritance, by one party, are the separate property of that party, and is not subject to being divided in equitable distribution. Hankins v. Hankins, 866 So. 2d 508, 511 (¶13) (Miss. Ct. App. 2004).
In Ory v. Ory, 936 So. 2d 405, 411 (¶13) (Miss. Ct. App. 2006), the court recognized the general rule that assets may lose their separate status as such if the party commingles the asset with marital property or uses [it] for familial benefit” (citing Johnson v. Johnson, 650 So. 2d 1281, 1286 (Miss. 1994).
So what are the actions that can make property lose its separate character? That was the question before the COA in the case of Marter v. Marter, decided by the COA August 7, 2012. In Marter the court considered and rejected the appellant-husband’s three arguments that the wife’s separate property had been converted from separate to joint property.
- Plantation and maintenance. The proof was uncontradicted that the husband had maintained the property and participated in planting trees on it. The opinion stated: “At some point during the marriage, the Marters planted 49 acres of pine trees and 32 acres of hardwood trees on the property. The Marters enrolled in a Conservation Resource Program (CRP) with the federal government whereby they receive rental payments for the trees. However, the rental payments have always been directly deposited into [the wife’s] separate checking account.” The husband also did bush-hogging and maintenance. The COA cited Hankins, at 1286-87 (¶¶14-15) (Miss. 1999), and Ory, at 411, which held that the fact that husband cleared a portion of the land, hauled dirt onto the property, and had a large number of seedlings planted on the property did not operate to convert the property to marital property. The court also held that the husband’s contributions to maintenance were de minimis.
- Joint titling. The Marters had conveyed the property to themselves in joint ownership, and the husband argued that the joint title made the property lose its separate character and converted from separate property to marital. Citing Pearson v. Pearson, 761 So. 2d 157, 163 (¶16) (Miss. 2000), the court rejected his argument, pointing out that the MSSC has rejected the “title theory”, and has stated that “[t]he issue in divorce is which property is ‘marital property,’ subject to equitable distribution, and that determination proceeds absent any presumption based on title.”
- Payment of Taxes. The parties paid the taxes on the property from their joint account, and the husband argued that that converted the property to marital. Not so, answered the COA. The court said: ” … this Court has previously held that property-tax payments are traceable and do not transmute separate property into marital. Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005).
So there are three lines of argument for transmutation that have been found wanting by the appellate courts. What it takes to convert separate property is beyond the narrow scope of this post.
I encourage you, if you have a case either attempting to establish commingling or transmutation, or defending against it, that you carefully research the case law. There are many cases on this issue, and you will find authority all over the ballpark. If you show up in court without some authority, and the other side has its cases in hand … well, don’t expect to come out too spiffy.
FOR LAW STUDENTS … EVIDENCE HELP
August 27, 2012 § 6 Comments
This post is only for the law students who read this blog. I know that there are plenty of you, based on comments I see posted and hear personally, and that you zero in on the evidence posts.
For those (handfull) of you who are taking evidence, I recommend you get a copy of COURTROOM EVIDENCE HANDBOOK by Steven Goode and Olin Guy Welborn, III, 2012-2013 Student Ed. The book costs around $44 in paper, and there is an online edition for $31. If this book is not among the books you already have to aid you with evidence, I encourage you to consider buying it.
The book is divided into four sections: The FRE; The FRE with the author’s commentary and citations; A compendium of common objections and responses; and Checklists and foundations.
As you would probably guess, my favorite section is the one on checklists and foundations. Here you will find step-by-step guidance on how to get various types of evidence into the record, and how to overcome objections to them. Checklists make your job so much easier, and take a lot of the worrying and guesswork out of the task. Here is the checklist to lay the foundation for admission of a public record or report (Rule 803(8)), for instance:
- The document is a cerified copy of a record or report of a public office or agency.
- The document sets forth either (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (C) factual findings resulting from an investigation made pursuant to authority granted by law.
Each checklist is preceded by a sample interrogation of a witness to illustrate the questions and answers needed to lay the foundation, and some are followed by helpful comments.
The authors’ commentary on the FRE is also extremely helpful. The comments include references to case law that you can use for authority.
I know you are studying the FRE in law school, and that some of you will move on to other jurisdictions, but for those of you who remain in Mississippi, this book, along with the Mississippi Rules Annotated, published cooperatively annually by the Litigation Section of the Mississippi Bar, Mississippi Law Institute, and Mississippi College School of Law, will be a helpful resource for Mississippi practice, since the MRE is based on the FRE.
A copy of the Goode-Welborn book was among the bale of material distributed to us judges at the National Judicial College, which we are required to attend within one year of taking the bench. I have actually found it useful on a few occasions when dealing with some obscure points of law, and it occurred to me that you students might find it helpful as you bend your mind (sometimes painfully) around the more counterintuitive aspects of the courtroom art.
Now, as I said, this post is limited strictly to law students. But if you know a lawyer who might find this useful, it’s okay to pass it on. Even old warhorses who think they know it all can use a good tip now and then.
“QUOTE UNQUOTE”
August 24, 2012 § Leave a comment
“History fades into fable, fact becomes clouded with doubt and controversy, the inscription molders from the tablet, the statue falls from the pedestal. Columns, arches, pyramids — what are they but heaps of sand, and their epitaphs but characters written in the dust?” — Washington Irving
“The past is no further away than the last breath you took.” — Robin Hobb
“The past is never dead. It isn’t even past.” — William Faulkner
FIGHTING THE TIDE THAT WOULD SWEEP AWAY DECORUM
August 23, 2012 § 4 Comments
UCCR 1.01 says that “All proceedings in the Chancery Court … shall be conducted with due formality and in an orderly and dignified manner … The dignity and respect of the Court shall be preserved at all times.” The rule also bans ” … drinks, food, gum or smoking …” and “Bickering or wrangling … Applause or demonstration … and the use of profane or indecent language.”
Courtroom decorum is one of those things that varies widely from district to district, depending on the personality of the chancellor and his or her tolerance level for various forms of behavior.
In my district, I try to make sure that the formality of the courtroom is preserved, that all proceedings are conducted with the attention and gravity that they deserve so that litigants can see that we take their business seriously.
Despite our best efforts, though, philistinism encroaches even into our courtrooms. A few examples:
- The woman who dropped the “f-bomb” repeatedly in the course of a Clarke County hearing until I had her dragged off in handcuffs to do 30 days in jail. This was after she had assaulted another witness in the hall before court was convened, resulting in her having to sit through her trial in manacles between 2 burly deputies.
- The man in the same trial who flipped off the judge. That cost him 5 days in jail.
- The woman who appeared for a hearing in my courtroom in Meridian who wore a t-shirt that read “If you f-ing think I am f’ing going to do what you tell me, m’f”er, you are f’ing crazy.” I sent her home with instructions not to return to the courthouse property until she changed her attire. (By the way … all the f-words cited here were spelled out fully … you can fill in the spelling for yourself).
- Judge Mason had a hearing recently in which a matronly grandmother appeared wearing a t-shirt with a similar message, although not as graphic as mine.
- The man who enters the courtroom in the middle of a trial and calls out loudly to some witnesses, “Lawyer said y’all can come sit out in the hall; y’all come on out here with me.”
- The select few (all women) who came to court for child support enforcement cases wearing pajamas, and in one case pajamas with fluffy slippers. I don’t know about where you live, but it’s not that uncommon to see folks traipsing about in pajamas in this outpost on the edge of civilization, but I think wearing them to court crosses some kind of line.
Of course, the foregoing are merely a few more blatant examples. We have all seen and heard cell phones blaring, courtroom observers blurting out answers to questions or other “helpful” information, and other disruptions by laypeople who I guess don’t know any better. But the problem is not limited to laypeople.
Lawyers can be insensitive to the demands of decorum, too. Shortly after I took the bench, before I banned beverages from my courtroom altogether, I had to ask a lawyer to stop repeatedly shaking a large (2-liter?) convenience-store mug of ice while counsel opposite argued a motion. On another occasion I asked a lawyer to set aside a Dr. Pepper she swigged out of through her cross-examination of a witness.
Those are fairly obvious assaults on decorum. A less obvious example is when several lawyers highjack the hearing with banter and joviality to the extent that the sense of the proceeding is lost completely. Everyone enjoys an injection of a soupçon of humor into a tense trial every now and then, but I reviewed a record once for a trial conducted by another chancellor where the banter and kidding went on for 22 pages. That’s too much, and it sends the message to the parties that their business is trivial.
When I practiced, I always advised my clients to come to court dressed appropriately. And I instructed them in how to behave: no displays of dismay or approval; never interrupt a question or the judge speaking; no gum; no hats; no beverages; show respect for opposing counsel and the judge; and so on and so forth. I think most attorneys do the same, but it’s obvious that the thought has still not occurred to some.
I think preserving decorum in our courts is important. For one thing, it keeps emotion-charged proceedings from getting out of hand. For another, it conveys the message that what is transpiring is serious and taken seriously by the bench and bar. And it sets the courtroom experience apart from the living room where everyone speaks at the same time over the cacophony of the tv.
8.05 FINANCIAL STATEMENTS: “THE GOLD STANDARD” OF PROOF
August 22, 2012 § 6 Comments
This just in: Rule 8.05 financial statements are the “gold standard” of financial proof in chancery court. That’s what Judge Fair said in the COA case of Collins v. Collins, decided August 21, 2012, beginning at ¶34:
This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:
(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.
(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.
¶35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So. 3d 471 (Miss. 2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.
¶36. Though there may be contrary misinterpretation of some decisions, which properly [fn 1] apply only when conflicts between forms conflict,1 Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation. [Emphasis added]
[fn 1] “Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶28) (Miss. App. 2011) (quoting Studdard v. Studdard, 894 So. 2d 615, 618-19 (Miss. Ct. App. 2004)). “To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003).
Yes, 8.05’s are the gold standard of proof to a chancellor trying to root enough information out of the record to make a decision about equitable distribution and alimony. But some lawyers treat them like fool’s gold. Their 8.05’s do not include tax returns, figures are contradictory and incomplete, valuations are lacking, and there is no employment history.
In Collins, Mr. Collins included no tax returns, and he contradicted himself in his testimony, admitting that his 8.05 was incorrect and inaccurate. As a result, the chancellor relied on her own best judgment and calculated what she believed to be his income, resulting in an impressive $1,300 a month child support obligation.
The chancellor also accepted Ms. Collins’ valuations of real property in the absence of proof offered by Mr. Collins. Ouch.
Some parties offer tables of personal property with some pretty incredibe valuations. In one case I had the husband wanted the riding lawn mower, which he valued at $800. The wife — I am not kidding — valued it at $15,000. Husband testified that he had bought it several years before for $1,600 at Sears. I found his valuation more credible. What was the wife thinking when she tagged the item with that value? Did she think I’d bite on that? Where was her attorney when that table was prepared before trial.
Many lawyers and their clients adopt the extremely unhelpful tactic of valuing everything at near zero that they expect to get, and assigning astronomical values to everything the other party expects to get. For example, wife has the green couch, and she wants to keep it, so she values it at $50; husband opines that it is worth $2,750, and he does not want it. Give me a break.
Most people can not afford to hire a personal property appraiser to value their near-worthless pile of stuff. So lawyers toss it into the chancellor’s lap to flip a coin and make a call as to what the values might be. That’s a cop-out. Lawyers should be more professional than that.
If you try many financial-issue cases in chancery, I encourage you to read Collins. It’s the latest illustration of how parties shoot themselves painfully in the foot when they do a less-than-adequate job in prepping their 8.05’s, and it just might give you some ideas how an on-the-ball attorney can help his or her client avoid that kind of disaster.
CHILD SUPPORT AS A MIRAGE
August 21, 2012 § 1 Comment
Any agreement that provides for child support must be found by the judge to be adequate and sufficient, and it must be definite and specific enough to be enforceable.
Most agreements meet those requirements. You won’t go far astray if the child support is within the statutory guidelines and the language awarding it is clear and unambiguous as to how it was calculated, the exact amount to be paid, the due dates, and its duration (e.g., “until further order of a court of competent jurisdiction,” or “until the minor child is emancipated by operation of law or order of this court,” etc.).
These requirements don’t stop lawyers from presenting some pretty fanciful child support arrangements that sometimes make chancellors scratch their heads. Here are some that have been proven not to be allowable under Mississippi law, that you should avoid:
- An unspecified amount. In Lowrey v. Lowrey, 919 So.2d 1111, 1112 (Miss.App. 2005), the court rejected a provision that the mother would pay child support in the form of buying clothes for her children “in an amount that she can afford.” The provision is so indefinite as to be unenforceable. It also violates the fundamental principle that a person can not be held in contempt for failure to comply with a court order that is too vague or ambiguous to be understood. The court in Lowrey said at ¶33, “As it stands, a finding of adequacy and sufficiency depends upon enforceability of the child support provisions contained in a property settlement agreement.”
- Percentage child support. A provision that “husband shall pay 14% of his adjusted gross income as child support” is unacceptable. In Hunt v. Asanov, 975 So.2d 899, 902 (Miss.App. 2008), the court stated, “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself … leaving open no matter or description or designation out of which contention may arise as to meaning’” [Citations omitted]. In order to determine what the father’s obligation might be or might have been, the court must look beyond the four corners of the judgment to extraneous earnings data and other information that in all likelhood is in controversy. The argument may be made that the case of Rogers v. Rogers, 919 So.2d 184, 188-89 (Miss.App. 2005) is contra. In that case, the COA held as unambiguous a provision that the husband would pay “14% of his adjusted gross income or $600 a month.” The argument raised by appellant there was that the apparent dichotomy betweeen 14% and $600 created an unresolvable ambiguity. The court rejected that argument and found the language clear, as did the chancellor. Rogers, however, did not directly address the problem of enforceability created by the need of the trial court to consider extraneous evidence to make a complete judgment, and the court pointed out that the $600 amount specified was clear enough to give the appellant an idea of his obligation. I do not see Rogers as an endorsement of percentage child support.
- Amount tied to unspecified return. In Rudder v. Rudder, 675, 678 (Miss. 1985), the court found a provision that the husband would pay any income or divident received from “any investments in the name of the child” was too “indefinite in amount, type, whereabouts, and the name of the holder.” The court held that the award was worthless, as a practical matter, to the custodial parent for enforcement. This type of support order is a subspecie of percentage child support. It requires the court to look to material extraneous from the four corners of the judgment in order to enforce it.
- Lump sum. In Pittman v. Pittman, 909 So.2d 148, 153 (Miss.App. 2005), the court reversed a chancellor’s award of $26,000 in residential equity as additional child support that he said was more ” … in the nature of child support than accumulated assets.” The COA held that the chancellor has no authority to make an award of lump sum child support. If the chancellor lacks such authority, then I am certain that a chancellor lacks authority to approve such an agreement between the parties. Note: Professor Bell says that the statute authorizing guardians to settle claims on behalf of wards has been held to allow lump sum settlements in paternity actions. Bell on Mississippi Family Law, 2d Ed., §11.06[2][b], p. 321.
The kinds of alternative child support provisions that lawyers come up with is only limited by the imagination. It is the court’s duty, however, to make sure that the provisions are adequate and sufficient for the support and maintenance of the child. The further you stray from statutory guideline child support the more likely it is that you will be sent back to the drawing board.
When you draft an agreement you want it to produce tangible benefits for your client. The last thing you should want is for a court to find that language you threw together heedlessly is no more than an illusory mirage or an insubstantial chimera.
CHOOSING NOT TO PLAY CATCH-UP, PART DEUX
August 20, 2012 § 2 Comments
I posted before about Mississippi’s refusal to play catch-up with the rest of the South (and the rest of the US, too) in providing pre-k education for our children.
Turns out I’m not alone. Here’s Sid Salter’s column “No Early Childhood Ed an Obstacle” that appeared in newspapers across Mississippi, including the Meridian Star, this past Sunday.
The point of his column, as I posted before, is that other southern states are investing in early childhood education, and it is paying dividends in elevation of test scores and later school performance, with resultant greater attention from outside investment.
And this is important: Investors interested in locating industries in the South don’t care to put their money into backwaters that have low levels of education and don’t want to show any competitive edge. Those industries need a trainable, educable work force. Investors want to put their money where it will maximize their chances of profitable return. They don’t care to invest in losers.
It’s been proven that the more we invest in education of our workforce, the more we will reap in industry, jobs, and economic development.
The converse is true: the more we refuse to invest in our children, the bigger and more insuperable advantage Alabama, Louisiana, Arkansas and Tennessee will have over us.
Oh, and by the way. Those neighboring southern states I named are already at their own disadvantage to other states that got ahead of them. So we are behind the states that are already behind.
Here’s the bottom line: We can stand pat and fall further and further behind, or we can take action and get in position to move ahead.
Even Sid Salter agrees.
These children are our future. They are our treasure. Why are we so loath to invest in them?
Come on, Mississippi. You know it’s right. Let’s do it.
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