Three Cases of Note
June 30, 2014 § Leave a comment
The MSSC handed down three decisions in the past year or so that will significantly change your practice. You need to take note of each of them and study how you can use them to your client’s advantage or defend against their operation in cases you are handling.
The first case is Collins v. Collins, handed down May 9, 2013. This is the case that said, once and for all, that the demarcation line for valuation of assets in a divorce is to be determined by the chancellor, based on the facts in the case.
Why is this case significant? Because it expressly overrules the COA decision in Pittman v. Pittman that laid down the rule that entry of the temporary judgment was a bright line where accumulation of marital asset value ceased.
How can you use this case to your client’s advantage? Look at values and find the date to your client’s advantage, and then have your client testify why the judge should select the preferred date. For example, if your client’s 401(k) has greatly appreciated in value over the course of the litigation, pick an early point and develop proof about why that is the most equitable date. And vice versa for the other side.
The second case is Sanford v. Sanford, decided October 31, 2013. Sanford finally puts an end to the practice of dictating into the record consents to divorce and property settlement agreements in irreconcilable differences divorces. MCA 93-5-2 specifically requires written agreement, and a verbal acquiescence, even on the record, will not do the job.
Why is this case significant? It marks the demise of Bougarde v. Bougarde, the lone case in which the practice had been okayed. Bougarde gave rise to uncertainty among many judges and lawyers as to whether and when a settlement announcement might pass muster as a final agreement.
How can you use this case to your client’s advantage? Bring a laptop computer to court with you and be ready to capture a settlement in the form of a written agreemment. You get to do the drafting, which means that you get to choose the language. You will have the advantage over the dinosaurs who still don’t know what a laptop (computer) is.
The third case is Huseth v. Huseth, rendered April 10, 2014. In this case, the MSSC returned to the principle that the child support statutory guidelines are just that — guidelines — and that it is up to the chancellor to set child support after first addressing the factors set out in Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss. 1992).
Why is this case significant? In a long line of cases since 1992, our appellate courts have applied the child support statute as mandatory, and cases that deviated without the proper finding of basis for deviation were reversed. Huseth says that before looking to the statute the chancellor must first consider and address the Gillespie factors. The statute then supplies a guideline for the judge to apply his or her discretion. As a practical matter, I think most judges will follow the guidelines. But that’s not a sure thing post-Huseth.
How can you use this case to your client’s advantage? Be sure to put on proof of the Gillespie factors. Make sure your client’s 8.05 is credible, because it’s unlikely that chancellors are going to take it at face value that your client really is going $800 in the hole every month so that he can’t afford to support his children. You might hear the judge advise your client to quit smoking and drinking, sell his truck, and cut off his cable and internet service so that he can pay child support.