Bound by the Record

June 5, 2014 § 4 Comments

It’s axiomatic that if you don’t introduce evidence to support a particular claim, your trial judge can not grant your client that relief.

It’s also axiomatic that, if you don’t make a record on a given point, you may not raise it for the first time on appeal.

Those two principles are what tripped up Donald Ainsworth in his attempt to reverse a chancellor’s ruling that based child support on all of his income, including annual bonuses and commissions from vehicle sales. Judge Carlton, writing for the COA in its opinion in Ainsworth v. Ainsworth, issued May 27, 2014, explained:

¶16. Donald argues the chancellor erred in determining his income for child support. Donald claims his yearly bonus and income from vehicle sale are not regular income for purposes of calculating child support. We first note Donald failed to raise the issue of his yearly bonus in his motion for reconsideration. It is well settled that an issue raised for the first time on appeal is barred from our review. See Ory v. Ory, 936 So. 2d 405, 409 (¶9) (Miss. Ct. App. 2006). Thus, we will only review Donald’s argument concerning income from vehicle sales.

¶17. The chancellor calculated Donald’s adjusted gross monthly income to be $4,562, which consisted of his salary, his bonus, and profits from vehicle sales. Following the statutory guidelines in Mississippi Code Annotated section 43-19-101(1) (Supp. 2013), the chancellor ordered Donald to pay $912.40, or twenty percent of $4,562, per month in child support. The chancellor noted that Donald admittedly failed to report income from any vehicle sales on his Rule 8.05 financial statement. The chancellor also noted Donald had failed to comply with her temporary order of December 2, 2010, which required Donald to report the sales of any vehicles to Melanie and to deposit the money from the sale of these vehicles into the registry of the court. During trial, Donald admitted that he made a small profit 3 from vehicle sales but purposefully did not report the sales of these vehicles, either to the chancery court or to the state or federal government for income-tax purposes. Donald also claimed he had no documentation by way of receipts or invoices for the sale of these vehicles. Donald testified he intended to continue selling vehicles and anticipated similar profits.

¶18. With respect to the chancellor’s finding, this Court cannot find the decision to include Donald’s profits from vehicle sales in her calculation of child support to be clearly erroneous. “The chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is the sole authority for determining the credibility of the witnesses.” Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993). Accordingly, we find this issue to be without merit.

The court also swatted aside: (1) Donald’s argument that the chancellor erroneously ordered him to pay a share of the children’s extracurricular activities; and (2) the court’s award of the tax exemptions to his ex-wife. Both arguments were rejected because he “failed to raise this issue in his motion for reconsideration.”

A few comments:

  • A R59 motion is the vehicle you need to employ to bring to the chancellor’s attention matters on which you offered proof at trial, but were not addressed by the judge. Unless it is crystal clear from a reading of the trial transcript that you offered proof to support a given claim, you can not assume that the appellate court or the trial judge will view it that way. In this case, for instance, Donald may have thought that admitting his tax return into evidence was enough to preserve the tax exemption claim, but that evidence goes to many points in a contested divorce trial. File a R59 motion and specifically point to the proof in the record that supports your claim, and give the judge a chance to rule on it. That preserves the point for appeal.
  • If you don’t offer any evidence at trial to support a claim, it won’t do you any good to file a R59 motion because the judge has to have evidence in the record to support her findings.
  • If you don’t offer any evidence at trial to support a claim, you not only lose that point at trial, but you also are barred from raising it for the first time on appeal. I am constantly amazed at how many attorneys simply do not put on proof in support of their claims. A good example is the request that a child support payor maintain a life insurance policy. Usually the only evidence is a witness saying that she wants him to have a policy. There is no testimony about the cost, or whether the payor is insurable, or anything else that would influence me one way or the other.
  • The only exception to the above is where there is newly discovered evidence that could not have been discovered in time to file a R59 motion. In that case, you need to file a R60(b)(3) motion.

I’ve mentioned here before that there is no “motion to reconsider” in our practice. That terminology is usually used to describe a R59 motion, but a R59 motion is actually for rehearing, or a new trial. Actually, though, there is such a thing as a motion to reconsider. Can you find it? [Hint: check out R60(c)].

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§ 4 Responses to Bound by the Record

  • […] I have said here before, your primary job as a trial lawyer is to make a comprehensible […]

  • asakalarios says:

    As well when the Chancellor decides to award custody and child support to one party rarely do you find a Chancellor who considers that the filing status as a result of the divorce is determined as of 12-31 of that year for the entire preceding year. Therefore the change in filing status from married to single and the loss of one or more exemptions results in a higher tax rate and a greater withholding from weekly wages. Therefor in each case there should be an adjustment in the determination of guideline support. The idea of such being prospective in nature is a false assumption since the IRS rules relate back to January 1 of each year based on your tax status 12-31 of that same year.

    • Larry says:

      I don’t disagree with your observation, but you are making a huge mistake if you are leaving up to the judge to make that adjustment without evidence in the record to support a determination how, by how much, and by what authority it should be made. Oftentimes, lawyers overlook putting such proof in the record, and assume the judge is going to do his own investigation or fact-finding to make the lawyer’s case for him. Aside from the fact that that would be judicial misconduct, it’s not the way judges do business. It’s up to the attorneys to make a record.

  • thusbloggedanderson says:

    54(b) says an interlocutory order is “subject to revision at any time” before final judgment. So maybe it’s “motion for revision”?

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