A Few Interesting points in an ID Divorce

October 6, 2014 § Leave a comment

The COA case of Massey v. Massey, handed down September 30, 2014, is a routine case for the most part, but it includes some interesting wrinkles that you might want to note.

Jennifer and Stephen Massey filed a joint complaint for divorce on the sole ground of irreconcilable differences. Later they entered into a written consent that settled a few issues and spelled out issues for adjudication by the court.

When they appeared for trial, they announced that certain of the contested issues had been settled. They agreed to joint legal and physical custody of two of their children, and to legal custody of the third, but physical custody of him, as well as support for all three children, was left for the court to decide. Attorney’s fees were also agreed, but all other contested issues were left to the court.

Following a trial, the court adopted the parties’ agreement, and awarded Stephen custody of one child. He ordered Stephen to pay child support for the children in Jennifer’s custody, but ordered no child support for the child in Stephen’s care (she was to turn 21 within six months of the judgment). The chancellor divided the marital estate so that each party got an equal share, each in excess of $750,000. He awarded no alimony to Jennifer.

Jennifer appealed. The COA affirmed.

  • One of the questions that arises often is whether a written consent in an ID divorce may be amended via an announcement on the record, as was done in this case. I have heard the question in my court, and I have heard it among judges at study meetings. The problem is that there are plenty of cases that hew strictly to the line that the consent and any PSA emphatically must be in writing, yet it is quite familiar and common practice for parties to amend their pleadings verbally at trial (e.g., “My client withdraws her claim in her complaint for custody and will proceed only on her claim for visitation, your honor”). It is interesting that no one raised the verbal amendment issue here. I am thinking that the COA has raised that sua sponte in other cases. So, does this case signal that it is okay to make a verbal amendment to a consent at trial? I am doubtful. I think I’ll continue my practice of requiring the lawyers to reduce the agreement to writing and make it part of the record; making it meet the requirements of a codicil is even better.
  • This is another of many cases in which the hoary Lauro rule applies: Alimony should be awarded if a spouse is left with a deficit after equitable division. If there is no deficit found by the court, alimony is inappropriate. Here, the chancellor found expressly that Jennifer’s award of around $750,000 would do to eliminate any deficit, and the COA found that to be within the chancellor’s discretion.
  • Jennifer tried to argue on appeal that the award of child support was inadequate and erroneous. The COA held that since Jennifer did not raise the issue specifically by way of objection at trial, or in a post-trial motion, she was precluded from raising it on appeal. I find this confusing. Was this not a contested issue at trial? When a contested issue is tried with substantial proof what objection does the party have to make at trial? Object to what? And if the issue is fully developed at a bench trial, where in MRCP 59 does it require that the issue be raised again in a post-trial motion? I think R59 does not require it. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993) [cited in the MRCP Advisory Committee Notes]. This is an issue that I wish the MSSC would address and clarify. If lawyers trying cases to a judge, without a jury, are required in essence to raise every possible issue that might be appealed in a R59 motion, despite the language of the rule, I think it is incumbent on the MSSC to tell lawyers so.
  • Jennifer argued that the chancellor erred in not finding that her husband’s payment of $30,000 to settle a sexual harassment claim against him was dissipation of marital assets. The COA did not consider it because she cited no authority. That’s unfortunate for her, because I think there’s a good argument to be made there that it was dissipation. BUT … I think the chancellor was within his discretion to find that it was not, based on the fact that it was a mere settlement, and not payment of a judgment; the settlement could be construed to be protective of the rest of the assets, and not in dissipation of them.

Those are my thoughts that percolate out of this case. Sometimes it’s helpful to read appellate court decisions critically, looking for loopholes in the arguments and reasoning of the courts (trial and appellate). That process stretches your critical-thinking processes, and adds to your ability to represent your clients.

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