Reprise: Making an Effective Record
August 29, 2013 § 3 Comments
Reprise replays posts from the past that you might find useful today.
BROKEN RECORD
December 12, 2011 § Leave a Comment
Do you ever stop to think about what kind of record you are making as you try a case?
When I first took the bench, I was called upon to judge a case that had been tried two years before, but had never been decided. I was asked by counsel for both parties to read a 200-page trial transcript to determine whether I could adjudicate the case based on it, or whether a trial date needed to be set, all as provided in MRCP 63(a). The attorneys were all experienced and skilled trial lawyers.
It did not take many pages to discover that the record was in woeful shape. Here are some of its problems:
- The first 22 pages consisted of banter among the lawyers about a hunting camp, a weekend cookout, and exchange of good-natured barbs. That’s 22 pages, not a page or two.
- When the first witness was called, the questioning was interrupted repeatedly by jokes among counsel.
- When objections were made, they degenerated into exchanges back and forth among the lawyers.
- Witnesses were asked questions like, “Let me show you this paper,” followed by questions without a clue as to what the paper might have been.
- Many of the questions lacked context: “Can you tell us what he was doing when you saw him there?” Who was doing what and where?
There were other flaws, but the coup de grace came in the last pages of the transcript where the then-chancellor announced that the trial would be continued to another day (it never was), so I decided they would just have to start over, given the passage of time and the state of the record. I ordered a new trial.
As a lawyer, you have to realize that putting on your case in a way to persuade your judge is only part of your job. It’s also critically important that you make an effective record for review. That means at least that you need to:
- Keep banter and comments to an absolute minimum.
- Confer with counsel opposite off the record or aside at counsel’s table with permission of the court and record any agreements or stipulations with a coherent announcement affirmed on the record by the other side.
- Before you begin announcing a stipulation, make sure you have an agreement on every point, and on the wording of every point. Even better: your stipulations should be in writing, even if it means asking for a recess to hammer out the language.
- Always make sure your questions are clear, which means either limiting the number of pronouns and indefinite descriptives or being quite precise in defining them.
- Make sure that any document, photograph or other item referred to by a witness is clearly identified for the record.
- If the witness’s response is unclear or confused, ask the witness to restate it or clarify.
- Don’t interrupt someone else who is speaking, and don’t speak over someone else. Don’t let your witnesses do it.
I try to make sure that the record is free of interruptions, clear of colloquy between attorneys, uncluttered with thinking out loud and other particles of nebulae, any and all of which can obscure the record, even to the point of being unintelligible. But I’m not always 100% successful, and it’s the duty of the attorneys to make their own record.
FYI, here are links to a few posts on trial techniques that can help you make a better record:
A few pointers for more effective chancery trials
Making sure the chancellor sees what you want him or her to see
Where Do the Children’s Vehicles Go?
August 28, 2013 § 4 Comments
The parties have complied with the court’s order to produce at trial a consolidated list of all the marital assets. There, among all the end tables, pots, pans, what-nots, and nick-nacks, is the 1994 Honda auto — worth $15,275 — that was purchased for the daughter to transport herself to and from college. Husband says wife should get it in equitable distribution, and wife says husband should get it. Whoever winds up with it gets a $15,275 bump in the asset column.
Those were the essential facts in the COA case of Terrell v. Terrell, decided July 16, 2013.
In that case, Robert Terrell had purchased the car for his daughter, Catherine, titled it in her name, and transferred ownership to her. The chancellor nonetheless included the vehicle in wife Mary Terrell’s share of equitable distribution. Mary appealed, arguing that the asset value of the car erroneously inflated her allocation of the marital estate.
The COA agreed with Mary, reversing and rendering:
¶17. We agree that the vehicle should not have been deemed a part of the marital estate. While it was purchased during the course of the marriage, it is not marital property, nor is it separate property. Rather, it was a gift from Robert and Mary to Catherine, who was a third-party recipient. Catherine has retained physical custody of the vehicle and has been the legal title holder of the vehicle since it was purchased. It was not an asset of Robert or Mary either jointly or separately. Accordingly, we reverse and render this issue specifically for the elimination of Catherine’s automobile from the marital estate.
The outcome here is pretty clear, but there are all kinds of permutations of this fact scenario, in my experience. Robert could have kept the car titled in his name, for insurance purposes. Or the car could have been titled in Mary for the same reason. Some parents want the car titled in either or both names solely as a control mechanism. Sometimes the car is titled in one parent’s name until the child pays some consideration for it. The possibilities are limited only by one’s imagination.
I have put the child’s auto in the column of a parent who testified that he had the car titled in his name, and did not know whether he would continue to provide the child with a vehicle. It seems to me that where the car goes depends on the particular facts of the case. In general, however, I think it’s safe to say that if the car is clearly going to stay with the child, it should be kept out of equitable distribution, and if it is really only a chattel that a parent is going to exercise control over, it should go with that parent.
I do the same with the children’s furniture and moveables.
One final point. There is plenty of case law that says if one part of the determination of assets-equitable distribution-alimony triangle is disturbed, the chancellor must look at it again and redo the whole ball of wax. Here, the appeal result is to reduce Mary’s distribution by $15,275, a not inconsiderable chunk of change. I just wonder why this was rendered and not remanded.
A Primer on Termination of Alimony
August 27, 2013 § 2 Comments
The chancery court always retains jurisdiction to modify an award of alimony. For many years, Mississippi law was that periodic alimony was terminable upon a showing that the recipient had cohabited or engaged in a sexual relationship. That rigid rule has softened over the years.
In the COA case of Pritchard v. Pritchard, handed down October 23, 2012, Judge Griffis penned as good a synopsis of the law on termination of alimony as you will be likely to find. Here it is:
¶20. The supreme court has found “that cohabitation creates a presumption of mutual support.” Scharwath v. Scharwath, 702 So. 2d 1210, 1210 (¶2) (Miss. Ct. App. 1997). The presumption shifts “the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage.” Id. at 1211 (¶7).
¶21. In Scharwath, the ex-wife, recipient spouse, had a sexual relationship with another man and provided him a truck and rent-free home. Id. at 1211 (¶¶5-6). The man, in turn, provided support around the house when he built a deck, retiled the basement, moved furniture, cut the grass, washed the car, and carried out the garbage. Id. at (¶6). “In kind” services must be assigned monetary value. See Tedford v. Dempsey, 437 So. 2d 410, 422 n.11 (Miss. 1983). The supreme court in Scharwath held that the chancellor erred when he did not consider the mutual support. Scharwath, 702 So. 2d at 1211 (¶6).
¶22. Periodic alimony may be terminated based on cohabitation or a de facto marriage. In her book, Professor Deborah H. Bell summarized this principle as follows:
Cohabitation and presumed support. In 1997, the supreme court discarded the fact-based test for determining whether an alimony payee’s cohabitation involves mutual financial support. The court reasoned that an alimony payor lacks the necessary information to prove mutual support between cohabitants. Accordingly, the court adopted a presumption that cohabitation is accompanied by financial support. . . . [Scharwath, 702 So. 2d at 1211; see Alexis v. Tarver, 879 So. 2d 1078, 1082 (Miss. Ct. App. 2004).]
A short period of cohabitation may not trigger the presumption. A chancellor properly refused to reduce alimony to a recipient whose friend and two sons moved into her house for five weeks after a hurricane. Her friend did not share her bedroom, bought groceries only once, and moved when his home was repaired. [Tillman v. Tillman, 809 So. 2d 767, 770 (Miss. Ct. App. 2002).] In a factually unusual case, a chancellor properly conditioned an award of rehabilitative alimony on the wife’s moving from her boyfriend’s home and establishing her own residence. [Alexis, 879 So. 2d at 1082.]
. . .
De facto marriage. Alimony may also be terminated even in the absence of cohabitation if a court finds that a payee is avoiding marriage to continue alimony. Alimony was terminated to a payee who was engaged without immediate plans to marry, even though there was little evidence of mutual financial support, on the basis that she had entered a de facto marriage. The court found significant that the couple appeared to forego marriage to obtain the benefits of alimony, stating that “equity should not require the paying spouse to endure supporting such misconduct.” [Martin v. Martin, 751 So. 2d 1132, 1136 (Miss. Ct. App. 1999).]
The de facto marriage test was restated recently to include an element of financial support. The court of appeals stated that alimony may be terminated where a recipient and another person “so fashioned their relationship, to include their physical living arrangements and their financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Applying this test, no de facto marriage existed based on proof that a woman spent several weekends with a man, that he stayed at her house overnight five or six times, and that he purchased groceries on those occasions. [Pope, 803 So. 2d at 504.]
Deborah H. Bell, Bell on Mississippi Family Law § 9.10[2][a]-[b] (2005).
¶23. In Burrus, the recipient spouse was paying for her “live in”’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, materials for his job, and motel room charges. Burrus, 962 So. 2d at 622-23 (¶18). The “live in” provided “in kind” household services and chores, such as maintenance and repair of the home. We held that there was sufficient evidence to support the chancellor’s decision there to modify alimony, child support, and custody. Id. at 626 (¶33).
The Pritchard case was the subject of a prior post on this blog that was somewhat summary. This issue can be so intricate, however, that I thought it would be helpful to set out the applicable law in a concise fashion for your use.
A History of Family Violence
August 26, 2013 § 2 Comments
A serious act or history of family violence has an impact on the adjudication of custody, and even visitation. It’s a subject I’ve posted about here, here and here.
The matter is addressed in MCA 93-5-24(9)(a)(i), which establishes a rebuttable presumption regarding family violence: ” … it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence.”
The statute does not explicitly define the term “family violence,” but it does refer to violence against ” … the party making the allegation or a family household member of either party.”
The statute goes on to say that the court may find a history if it finds either (a) one incident of family violence that resulted in serious bodily injury, or (b) a pattern of family violence. The finding is by a preponderance of the evidence.
In the COA case of Rolison v. Rolison, decided December 11, 2012, Alisa Rolison argued that the chancellor had refused and failed to apply the presumption against her ex-husband Gary in a case where there was proof in the record of what she considered to have been family violence. Judge Fair, for the majority, stated the court’s ruling:
¶6. The statute requires that if a chancellor finds a history of perpetrating family violence, the rebuttable presumption is triggered. The chancellor must then consider six factors to determine whether or not the presumption has been rebutted and make “written findings” to document his consideration. Miss. Code Ann. § 93-5-24.
¶7. The Mississippi Supreme Court has one published decision addressing this presumption, J.P. v. S.V.B., 987 So. 2d 975 (Miss. 2008). In J.P., the chancellor removed a child from his parents’ custody because the father had a history of perpetrating domestic violence, and the mother continued to reside with him. Id. at 980 (¶¶11-12). The supreme court upheld awarding custody to the maternal grandparents explaining [Fn 1]:
The applicable statute [§ 93-5-24] clearly required the chancellor to consider all of the above-listed factors in ascertaining whether the rebuttable presumption has been overcome, and the chancellor “shall make written findings to document how and why the presumption was or was not rebutted.” That being said, a chancellor in these cases must specifically address each factor, failing which reversible error may quite likely result. However, from the record before us in today’s case, we can safely say that while the chancellor did not specifically refer in writing to all the factors enumerated in her judgment, she no doubt considered those factors in making the custody determination. The chancellor made sufficient, specific findings to support her conclusion that the [parents] did not provide evidence to rebut the presumption outlined in Section 93-5-24(9)(a)(iii) and (iv). Since these findings were supported by substantial evidence in the record, we are duty-bound not to reverse on this issue. J.P., 987 So. 2d at 981-82 (¶16). [Fn1]
[Fn1] This Court [the COA] rendered a similar decision in Lawrence v. Lawrence, 956 So. 2d 251, 260-61 (¶¶33-35) (Miss. Ct. App. 2006), two years earlier and has since discussed the statute four times, most recently in Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).
¶8. Alisa contends the chancellor should have found that Gary had a history of family violence. Then, if the chancellor still intended to award Gary custody, he should have made written findings explaining why the presumption “was or was not rebutted.” Miss. Code Ann. § 93-5-24.
¶9. The record contains evidence of both parents’ actions that could be construed as perpetrating family violence. The chancellor found that at times, Gary was aggressive with the children and had a foul mouth. Alisa asserted that Gary once beat her with a “stacking stick” when she let a cow escape and that Gary spanked the children until they were bruised. Gary admitted that he disciplined his children corporally until the chancellor prohibited him from doing so during the pendency of this proceeding.
¶10. There is also evidence of Alisa’s perpetrating family violence. Alisa has bipolar disorder, borderline personalty disorder, and ADHD. She is taking medication and receiving treatment but has shoplifted at numerous stores and blamed her behavior on her medication. Alisa admitted being aggressive with the children. After a fight with one child, Alisa had to have an operation due to a spleen injury.
¶11. Both parents admitted to behaving aggressively with the children, but the only evidence of any serious injury was inflicted on Alisa by one of the children. We find that the chancellor did not abuse his discretion in refusing to apply the statutory presumption against Gary or Alisa. See Thompson v. Hutchinson, 84 So. 3d 840, 844 (¶¶15-19) (Miss. Ct. App. 2012).
In Rolison, the facts as to Gary’s violence simply did not rise to the level that would put the presumption into effect. If there were any serious episode, it was by one of the children against Alisa, requiring her to have surgery.
It’s hard to read the cases and come away with a clear picture of exactly what it is that constitues a “history” of “family violence.” Those are terms of art, but the definitions seem to be a moving target, based on the facts in the case. Sort of like US Supreme Court Justice Potter Stewart’s “I know it when I see it” definition of obscenity.
The main point to bear in mind is that, as you develop your child custody case, determine whether there are facts that might bring the statute into play. If so, peruse the statute and see whether and how it can help you prevail. Or, if you are on the downhill side of the case, look at the 6 factors the court has to consider to overcome the presumption and see how you can turn them to your advantage.
Tailoring Your Proof to Fit Your Case
August 22, 2013 § 2 Comments
Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.
All most of us know about Pelton is what we read in the opinion.
But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.
For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.
In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?
MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.
The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.
Inadequate Findings in a Factor Case = Remand
August 21, 2013 § 3 Comments
Most lawyers, when they are through with a case, don’t want to revisit it. That’s what makes a remand so detestable. Those do-overs are a pain.
The most sure-fire way to get a do-over is for the trial judge not to address the factors in a factor case. For those of you who have not been paying attention, certain kinds of cases require that the chancellor consider certain factors in making an adjudication. I have called it Trial by Checklist. When the chancellor does not tick off the items on the checklist, remand is practically automatic.
The latest example is the COA’s August 13, 2013, decision in Pelton v. Pelton, in which the chancellor did not: classify the assets as marital or non-marital; do an analysis of the Ferguson factors in making equitable distribution; or apply the Armstrong factors for alimony. Result is a do-over.
If you wind up with an adjudication in which you feel that the chancellor did not address the applicable factors, or where you feel that they were not adequately addressed, here are several suggestions to remedy the situation:
- File a timely R59 motion asking the court to make specific findings on the applicable factors. In Pelton, the parties did file post-trial motions, but the COA decision does not spell out what the parties were asking the court to do.
- If you are concerned that you did not make a good enough record for the judge to make findings on the proper factors, ask the court to reopen the proof to allow you to make a record. That would be a R59 motion, which must be filed within 10 days of the judgment.
- You can also in a R59 motion offer to do proposed findings of fact and conclusions of law.
Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
The Better Chancery Practice Blog 