THE COST OF DOING BUSINESS
October 31, 2012 § Leave a comment
It’s no secret that the rates of alcoholism, depression and suicide are twice as high for members of the legal profession than they are for the general population.
I don’t have to tell you that the stress, pressures and high stakes that lawyers deal with daily take their toll. And no lawyer, whether sole practitioner or big firm, whether trial practice or office practice, whether newly-minted or gray-bearded Yoda (or Yodette), is immune.
We’ve all seen lawyers who can no longer conceal the stress-cracks: neglected business; missed appointments; irrationality; substance abuse. None of it is pretty, and when a lawyer falls down in representing a client, it is not only the client who suffers, but also all of us in the profession.
What should you do if you feel that one of your colleagues is showing signs of substance abuse, or physical, emotional or mental disabilities? Or what if you recognize the need for help with some of your own behavior?
Make a confidential call to the Mississippi Bar’s Lawyers Assistance Program at 601-948-0989, or by email at firstname.lastname@example.org. Chip Glaze is the director of the program, and he will talk you through it. More importantly, his program can intervene, and, on its own, or with the backing of local judges, get the individual on the right track. The process is informal and non-disciplinary.
Some lawyers think that when they are confronted by other professionals and the bench with issues about their substance abuse, or emotional problems, or mental health concerns, that their career is threated. That would be wrong. The fact is that not dealing with those issues is what threatens the lawyer’s career.
Oh, and judges are just as susceptible to these same problems as are lawyers. The program can deal with the judiciary, too.
WHEN VISITATION GOES BAD
October 30, 2012 § 1 Comment
It’s becoming more customary for the parties to provide in custody settlements for the non-custodial parent to have more visitation than the usual “standard visitation” (i.e., every other weekend, split of holidays, and some summer). Sometimes it works splendidly. When it does not, it can be a mess.
The latter is what happened in the COA case of Goolsby v. Crane, decided October 23, 2012. In that case, Michael Goolsby and his ex-wife, Angela Crane, agreed that Angela would have sole physical custody, and Michael would have visitation with his daughters every other weekend, and, in addition, from Monday afternoon to the return to school on Wednesday morning in non-weekend-viaitation weeks. After a while the parties agreed to deviate from the schedule to move Michael’s mid-week visitation to Wednesday-to-Friday-morning.
Things began to unravel when Angela filed pleadings to get an increase in child support and a family master increased it by $171 a month and ordered Michael to pay DHS $250 in attorney’s fees.
Michael filed a Rule 59 motion and then filed a counter-petition to modify custody and child support. He wanted the custody changed to joint physical due to the extent of his visitation, and he wanted the child support reduced based on the amount of time he had the children with him.
At trial the chancellor rejected the modification, finding that there was no proof of a material change in circumstances that adversely affected the children to the extent that custody should be changed. He did, however, find that the visitation schedule was not working, and he modified it to conform more to “standard” visitation, eliminating the mid-week visitation. His findings were based primarily on the testimony of the testimony of the 13-year-old daughter, who said that it interfered with her school work and made her uncomfortable for some other, personal reasons. The chancellor also increased the child support, although he recalculated it and found a figure somewhat less than that determined by the family master.
Michael appealed. His arguments and the COA’s conclusions:
- The court rejected the argumant that it was error for the chancellor to refuse to modify custody, and then to modify visitation. The COA pointed out that there was a substantial basis to support both decisions. All that needs to be shown to change custody is that the visitation schedule is not working, and there was ample proof here.
- The extent of visitation that was agreed did not amount to a relinquishment of control or abandonment of responsibility by Angela that would amount to a material change. The cases cited by the court beginning at ¶ 22 are cases you need to have in your repertoire of important modification cases, particularly Arnold v. Conwill, 562 So.2d 97, 100 (Miss. 1990), a case I’ve discussed here before.
- And, finally, the COA rejected (beginning at ¶ 29) Michael’s argument that liberal visitation by the non-custodial parent is tantamount to joint legal custody.
When you craft an agreement incorporating visitation that extends beyond the usual, make sure the language leaves no doubt as to who has what form of custody. Don’t swap around terms like “visitation” and “custodial time.” Instead of simply going along with what your client is proposing for visitation, play devil’s advocate and tease out some of the possible pitfalls that you’ve experienced and that your client may not even have thought of. Are there other ways to provide more time for the non-custodial parent that might not be so disruptive as they proved to be in Goolsby? One size does not fit all.
THE PRESUMPTION OF MUTUAL SUPPORT
October 29, 2012 § 1 Comment
The COA decision in Pritchard v. Pritchard, handed down October 23, 2012, is the most recent alimony termination case in which the courts have addressed the rule that cohabitation creates a presumption of mutual support, shifting the burden to the recipient spouse to produce evidence that there is no mutual support within the de facto marriage.
You need to read Pritchard yourself to appreciate the scope of mutual support that was enough to trigger the presumption. I won’t rehash them here. But here are a few nuggets gleaned from Judge Griffis’s decision (which quotes Professor Bell’s treatise):
- Recipient-wife and another man had a sexual relationship, and she provided him a truck and lodging rent-free. In return, he built a deck, installed a floor, moved furniture, did yard work, and carried out the garbage. The trial court should have considered this mutual support. Scharwath v. Scharwath, 702 So.2d 1210 (Miss.App. 1997).
- A de facto marriage can terminate alimony, as where a couple was engaged without immediate plans to marry, solely to prolong the receipt of alimony. Martin v. Martin, 751 So.2d 1132, 1136 (Miss. App. 1999).
- A similar result in Pope v. Pope, 803 So.2d 499, 504 (Miss.App. 2002).
- Where the recipient spouse pays for her live-in’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, job materials, and motel room, and the live-in provides household services and chores such as maintenance and repair of the home, the presumption is triggered. Burrus v. Burrus, 926 So.2d 618, 621 (Miss.App. 2006).
In Pritchard, the COA found that the chancellor applied the correct legal standard, but that there was not sufficient evidence to support the chancellor’s decision that the presumption was overcome by proof of non-mutual support. The COA reversed and rendered.
CAVEAT: a brief period of cohabitation may not trigger the presumption. See, Tillman v. Tillman, 809 So.2d 767, 770 (Miss.App. 2002).
These cases are fact-intensive. Before you go thrashing off into this swamp, you would do well to study what Professor Bell has to say, and read as many cases on point that you can find. There has to be either cohabitation for more than a short period coupled with mutual support, or there must be a de facto marriage. The latter is a more elusive concept. You will likely need a substantial base of discovery or PI work to do the job.
October 26, 2012 § 2 Comments
“The right to be heard does not automatically include the right to be taken seriously.” — Hubert Humphrey
“Continue to express your dissent and your needs, but remember to remain civilized, for you will sorely miss civilization if it is sacrificed in the turbulence of change.” — Will Durant
“If nobody ever said anything unless he knew what he was talking about, a ghastly hush would descend upon the earth.” — A.P. Herbert
A NOTE ON COMMENTS
October 25, 2012 § 2 Comments
This blog certainly welcomes comments. Thoughtful and thought-provoking comments about trial experience, insights into the law and its application, and the practice of law are encouraged.
The focus of this blog, though, is to be a help to lawyers and judges. Non-lawyers who happen upon this site need to be aware that the information here is of only limited use unless you have the training, background and experience to understand and apply it. And it represents only one individual’s interpretation, which may or may not carry the day in any given case with any particular judge.
Lately I have received comments that I have not published because they are clearly by laypersons seeking legal advice or wanting to trash lawyers or judges or the law in general. Those kinds of posts will never be published here, so you needn’t waste your time writing them.
Likewise, if your comment is unaccompanied by a valid email address I will not publish it (the email address will not appear on the published comment; it’s for my use to determine your bona fides and standing as a member of the legal profession).
ID DIVORCES IN DISTRICT 12
October 24, 2012 § Leave a comment
‘Way back in June, 2010, I posted the requirements in this district to present an irreconcilable differences divorce.
As I explained back then …
The chancery judge in an irreconcilable differences (ID) divorce is required by law to make a determination about the sufficiency of the provision for support of the minor children. Different chancellors approach the task in different ways. Some judges require a complete Rule 8.05 financial statement from each party. Some judges take the word of the attorney or litigants.
In District 12, we do not require an 8.05, but we do require that the property settlement agreement (PSA) must include certain information about the income and deductions of the paying parent. Here are our requirements:
- The property settlement agreement must include information showing gross income and deductions for taxes, Medicare and social security for year to date for the paying party, in the form of a pay stub attached to the agreement or a recitation of the actual figures, including monthly and year-to-date figures, in the body of the agreement; or, in the alternative, a statement satisfactory to the court as to why such information is not available. If the pay stub is attached, the agreement itself must include a provision that both parties have seen and are satisfied with the accuracy of the document. If the required information is not included, the agreement will not be approved.
We also have a requirement that the 8.06 disclosures either be in the PSA itself, or that the parties file it with the clerk simultaneously with entry of the divorce judgment. This policy is a recognition of the fact that 99.9% of parties do not file their 8.06 informantion as required in the rules. UCCR 8.06 mandates that the current names, addresses and telephone numbers of both parents must be disclosed and filed in the court file.
We also require at least one of the parties to appear and testify. The witness establishes the jurisdictional facts and answers two questions about the PSA: is it the entire agreement, so that there are no side agreements or unwritten deals; and does it settle all of the marital issues between the parties? If the other party is unrepresented, it would be a good idea to have that party appear also to be available to answer any questions or to make any changes in the PSA that are directed by the court.
WINNING TACTICS FOR CHILD SUPPORT MODIFICATION
October 23, 2012 § 3 Comments
There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.
In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:
- Increased needs caused by advanced age and maturity of the children;
- Increase in expenses;
- Inflation factor;
- The relative financial condition and earning capacity of the parties;
- The physical and psychological health and special medical needs of the child;
- The health and special medical needs of the parents, both physical and psychological;
- The necessary living expenses of the paying party;
- The estimated amount of income taxes that the respective parties must pay on their incomes;
- The free use of residence, furnishings, and automobiles; and
- Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).
Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).
Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).
Remember that the keystone consideration for modification is a change in expenses of the child. You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial. Most importantly: It is not adequate to prove only that the income of the paying parent has increased.
So here are a few tactics that may help:
- Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
- See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
- If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
- Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
- Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
- Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention.
Plan your modification case for success. Remember that you can use summaries and compilations to present your evidence. And the clearer and better your 8.05’s are, the greater you chances of success.
ANOTHER ALBRIGHT SCORECARD CASE FAILS
October 22, 2012 § Leave a comment
Back in July, in a post entitled “Quibbling with Albright,” I questioned the wisdom of attorneys who at trial and on appeal concentrate their efforts on a scoresheet-type approach to the child custody factors. As I said there:
Albright is not a mathematical formula or a scorecard. It is a matrix for the trial judge to use in making sure that all factors that bear on the best interest of the child in a custody case are considered, and in turn used by the appellate courts to evaluate whether the chancellor did her job properly. If all of the Albright factors that apply in a given case are considered and addressed by the chancellor, and there is substantial evidence to support the chancellor’s decision, then the chancellor’s decision should be affirmed. Any quibbling about this one factor or that, or trying to readjust the “scoresheet,” should be brushed aside on appeal.
In O’Briant v. O’Briant, decided by the COA October 16, 2012, Judge Maxwell hammered the point home better and with more authority than I can muster. The case involved a custody dispute between Jonathan and Olivia O’Briant in Madison County Chancery Court. Here’s what Judge Maxwell said:
¶14. Jonathan argues the chancellor misapplied Albright because she miscalculated one of the factors and failed to weigh the evidence properly. Because the chancellor is to use Albright as a guide, not a formula, and weigh the evidence as she sees fit, we find no reversible error.
¶15. “Determining custody of a child is not an exact science.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, it “is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So. 2d 135, 141 (¶21) (Miss. Ct. App. 2005). In Albright, the Mississippi Supreme Court gave a list of factors to consider to help chancellors “navigat[e] what is usually a labyrinth of interests and emotions.” Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). The Albright factors provide chancellors guidance, not a mathematical formula. Id. “[E]ven when the trial judge sensitively assesses the factors noted in Albright and [its] progeny, the best the judiciary can offer is a good guess.” Love v. Love, 74 So. 3d 928, 932 (¶17) (Miss. Ct. App. 2011) (quoting Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991)).
¶16. Jonathan argues the chancellor committed legal error because she “recast” one Albright factor into two—causing the factor to favor Olivia. Jonathan analogizes this perceived error to an umpire botching the number of outs in an inning. But unlike baseball, an Albright analysis is not premised solely on a scoring system to determine which parent “wins.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (citing Lee, 798 So. 2d at 1288 (¶15)). “Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision.” Id. And our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. See id. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.
¶17. Here, the chancellor considered all the relevant facts by applying each Albright factor:
(1) age, health, and sex of the child;
(2) a determination of the parent that has had the continuity of care prior to the separation;
(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;
(4) the employment of the parent and responsibilities of that employment;
(5) physical and mental health and age of the parents;
(6) emotional ties of parent and child;
(7) moral fitness of the parents;
(8) the home, school and community record of the child;
(9) the preference of the child at the age sufficient to express a preference by law;
(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.
Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). While Jonathan takes issue with the chancellor addressing the stability of each parent’s employment when considering their employment responsibilities, then later in her order, assessing the stability of their respective home environments, he cannot argue the chancellor failed to consider these relevant factors. Thus, we find no “misapplication” of Albright occurred.
The primary driving force behind all of the foregoing is that it is the chancellor’s exclusive province to judge the weight of the evidence. Judge Maxwell’s opinion continues:
¶18. Jonathan also contests the chancellor’s findings as to which parent demonstrated the continuity of care prior to the separation, which has the best parenting skills, and which has the willingness and capacity to provide primary child care, as well as her findings on the physical and mental health and age of the parents. He specifically claims the chancellor ignored evidence of his good parenting skills and Olivia’s bad parenting skills, “penaliz[ing]” rather than crediting him for having his mother next door to help with Maguire. He also suggests the chancellor put too much weight on the three months he was committed to the Mississippi State Hospital at Whitfield in 2000. These challenges are premised on the chancellor’s evidentiary and credibility assessments.
¶19. In our narrow review we give deference to the chancellor’s factual findings, asking if they were supported by substantial evidence. See, e.g., Wilson v. Wilson, 53 So. 3d 865, 867-68 (¶¶7, 10) (Miss. Ct. App. 2011). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Johnson v. Gray, 859 So. 2d 1006, 1014 (¶36) (Miss. 2003) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). “‘[T]he chancellor has the ultimate discretion to weigh the evidence the way she sees fit’ in determining where the child’s best interest lies.” Blakely, 88 So. 3d at 803 (¶17) (quoting Johnson, 859 So. 2d at 1013-14 (¶36)).
The court found that the chancellor’s decision was supported by substantial evidence and affirmed it.
This is yet another example of a mistaken approach to Albright. The danger in tailoring your Albright proof to try to prevail on the scoreboard is that you will lose sight of the larger picture, which is what is actually in the best interest of the child. One parent may prevail in more categories than the other and yet not prevail on the issue of custody. When you plan how to present your case, don’t focus on trying to “win” more factors; focus instead on what will convince the court that the best interest of the children lies in being in your client’s custody. Each judge has his or her own ideas of the factors that are most important. Learn what your chancellor’s preferences are, and design your case accordingly.
WHAT COULD THESE ADD TO YOUR LIFE?
October 19, 2012 § 1 Comment
… and the lives of those who come into contact with you …
“But the fruit of the Spirit is
AND MORE RE FRAUD ON THE COURT
October 18, 2012 § Leave a comment
Only last week I posted here about what it takes to trigger relief from fraud on the court. There was yet another case dealing with fraud on the court handed down by the COA last week, and it’s one you need to add to your notes on the subject.
Dogan v. Dogan, decided October 9, 2012, by the COA, is an involved equitable distribution/alimony case that covers many familiar financial issues that arise in the course of a high-dollar divorce. David Dogan was a partner in a law firm and had earnings as much as $35,000 a month. The firm lost a major client, Durabla, to bankruptcy, though, which negatively impacted his earnings. The chancellor wrestled with calculation of David’s income and concluded that it was $19,000 a month. David’s wife, Barbara, charged that David committed a fraud on the court because, although he reported the lower income figure on his 8.05 statement, he had filed a home loan application stating his income as $35,000. Keep in mind that, under the general principle of Trim, knowingly submitting a false financial statement to the court is fraud on the court.
The COA, by Judge Roberts, beginning at ¶14, upheld the chancellor’s decision as to David’s income:
In Mississippi, the general rule is that fraud will not be presumed but must be affirmatively proven by clear and convincing evidence. See Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977); Taft v Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (1965). Further, on appeal, there are four requirements to vacate a decree due to fraud:
(1) that the facts constituting the fraud, accident, mistake or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.
Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992). Barbara has failed to meet these requirements. First, the chancellor did not make his decision solely on David’s Rule 8.05 financial statement; therefore, the amount in his statement was not a controlling factor in the decree as is required under the first prong. Barbara also fails under prongs three and four because, assuming the discrepancy on the Rule 8.05 financial statement and loan application to be true, Barbara was aware of it at the time of the original decree. Additionally, the chancellor addressed the discrepancy and found that the amount of the loan application was an average of the last two federal tax returns and did not take into consideration the bankruptcy of Durabla and its financial impact on the firm.
Thus the COA continued to flesh out how Trim will affect our case law. Before you cry “Fraud” to the trial court, make sure you can support your claim with proof in the record of the four Manning factors.