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.
The Better Chancery Practice Blog 
Then shouldn’t a chancellor protect his record by explicitly finding that the parties made no proof of, say, the source of the asset? That should give either party contemplating an appeal a major waiver / error preservation problem.
What’s really frustrating to me is the occasional chancellor (none I appear before, of course) who will do a rote recitation of multiple factors the way a police officer recites the indicies of intoxication while testifying in a city court DUI case. In other words, not really engaging with the factors, more an incantation to keep away the evil spirits of reversible error.
I had to laugh at the image of a black-robed chancellor holding bell, book, and candle, murmuring gnostic aphorisms before an incense-wreathed alter of the law.
How each judge addresses the phenomenon of the incomplete record is a matter of individual judgment. We don’t have a guidebook (other than appellate decisions). I have stopped trials and said we would not continue until the parties went out and had assets appraised or gotten other necessary proof.
I don’t know how the appellate courts would react to your suggestion, which makes perfect sense to me. But the Collins case, decided May 9 of this year, was one where the chancellor took incomplete and inadequate proof of business income, and simply adjudicated what she thought was reasonable based on that proof. The MSSC reversed, saying that th chancellor should have delved through all that pile of records and made an analysis of it. As I said in my post on the case, I would have ordered the parties to do it, or, in the alternative, appointed a CPA as special master at the sloppy party’s expense.
It’s a frustrating problem.