Reprise: The Futility of Objecting to the Form of the Question

October 17, 2014 § 1 Comment

Reprise replays posts from the past that you might find useful today.


September 14, 2011 § 2 Comments

One of the most baffling objections is “Object to the form of the question.” It’s baffling because it doesn’t tell the judge what the real problem is.

It’s actually a lazy objection because it is several objections in one. Problems with the form of the question arise from nine distinct sources, each of which is a separate objection in its own right.

These are the real objections to the form of the question:

  • Leading. MRE 611(c) says that “Leading questions should not be used on the direct examination of a witness except as may be used to develop his testimony.” Which means that the judge may grant some leeway in order to ensure that testimony is developed. Leading is, of course, permitted on cross examination, for hostile or adverse witnesses, and for preliminary matters.
  • Compound question. You can ask only one question at a time. Often the witness answers only one of multiple questions, not always making it clear which one she is answering.
  • Argumentative and Harrassing. This is really two different things. A question is argumentative when it is merely a comment on the evidence, or a legal argument, or an attempt to get the witness to adjudge his own credibility. A question is harassing when the probative weight of the information sought is outweighed by the embarassment to the witness or its outrageous nature. UCCR 1.01 states that “The counsel, parties, and witnesses must be respectful to the court and to each other,” and “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.”
  • Asked and answered. You enjoyed the answer so much the first time that you just can’t resist doing it again.
  • Assumes facts not in evidence. You have broad scope within the bounds of relevance to develop new facts, but not by framing your questions in such a way that they take as true facts that have not been established. In chancery, with no jury, this is a touch-and-feel objection that the judge may overrule and then disregard the answer.
  • Ambiguous and confusing. A question is ambiguous when it is susceptible to more than one interpretation. A question is confusing when it is phrased in such a way that it can be misunderstood.
  • Misleading. Misstatement of the witness’s or another witness’s prior testimony.
  • Narrative. The question calls for a recitation of the whole story, which may or may not include objectionable material.
  • Repetitious. You already made that point. Move on to something else.

Unless you’re objecting just to hear yourself talk, you want your objections to accomplish something for the benefit of your client. General objections like “Object to the form of the question” are an objectionable waste of time. Your chances of getting your objection sustained go up when you make a specific objection.

Retirement and Modification of Alimony

October 16, 2014 § Leave a comment

Leo and Gracie Russell were divorced in 1978. Leo was ordered in the divorce to pay Gracie $2,500 a month in periodic alimony.

In 2006, Leo filed a petition to terminate or reduce his alimony obligation, which the chancellor dismissed without prejudice.

In 2011, Leo filed again to terminate or reduce alimony. In May, 2012, the chancellor reduced Leo’s obligation to $1,533, based on the fact that Gracie was receiving $947 a month in Social Security benefits based on Leo’s earnings. After hearing all of the evidence, the judge found that Leo had failed to prove a material change in circumstances or inability to meet his alimony obligation. Leo appealed.

The COA affirmed the chancellor’s ruling in Russell v. Russell, handed down October 7, 2014. Judge Carlton, writing for the majority, said this:

¶5. In his first assignment of error, Leo argues that the chancellor erred by denying his petition to terminate or modify his monthly alimony payments. Leo asserts that the chancellor erroneously found no material change in his circumstances and that his retirement and reduction of income were foreseeable at the time of the parties’ divorce.

¶6. With regard to our review of a chancellor’s award of alimony, this Court has previously stated:

An award of alimony, if allowed, should be reasonable in amount, commensurate with the wife’s accustomed standard of living, minus her own resources, and considering the ability of the husband to pay. The amount of an alimony award is largely within the discretion of the chancellor. Unless the chancellor is in manifest error and abused [his] discretion, we will not reverse.

Peterson v. Peterson, 129 So. 3d 255, 256-57 (¶5) (Miss. Ct. App. 2013) (internal citations and quotation marks omitted).

¶7. “The general rule has been that periodic alimony terminates upon death or remarriage.” Skinner v. Skinner, 509 So. 2d 867, 869 (Miss. 1987) (citing Wray v. Wray, 394 So. 2d 1341, 1344 (Miss. 1981)). When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether “an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Peterson, 129 So. 3d at 257 (¶7) (citing Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002) (“The change in circumstance must not be anticipated by the parties at the time of the original decree.”). If no unforeseeable and material change has occurred, then a modification of the alimony award is improper. Id. However, where a substantial unanticipated change has occurred, the chancellor should consider the Armstrong factors to determine the proper amount of alimony. Id. at (¶8).

¶8. In the present case, Leo argues that his retirement and the resulting reduction in his income were unanticipated at the time the parties divorced in 1978. In his brief, Leo asserts the following:

[T]hough it may have been anticipated that at some time in the future [he] might retire and discontinue working, such an event is not an event that the [c]ourt can hold [him] to with respect to [the] same being a “foreseeable future event” that will preclude a termination of alimony or a reduction of alimony at the time of retirement.

¶9. In denying Leo’s petition to terminate or reduce his alimony payments, the chancellor found that retirement, by itself, proved insufficient to justify a modification. Although Leo had retired since the parties’ divorce, the chancellor found that Leo still possessed sufficient assets and income to satisfy his alimony obligation. The chancellor noted that Leo’s living expenses were approximately $10,000 a month and that Leo bought a new home about seven years earlier. Other than the remaining home payments, the chancellor found that Leo had finished paying all other significant debt.

¶10. The chancellor also noted that Leo’s other financial obligations resulting from the divorce, such as child support, had long since been fulfilled. In addition, the chancellor stated that Leo had received proper credit for the Social Security benefits Gracie received from his past employment earnings. Therefore, based on the evidence presented by the parties, the chancellor found that Leo failed to demonstrate a substantial and material change in his circumstances.

¶11. The chancellor also discussed whether any changes in Leo’s circumstances were unanticipated, stating, “There was no mention [made] at the time [of the parties’ divorce] . . . of what would transpire when one or the other party retired. Certainly it was foreseeable that [Leo] would retire, [but] it’s not mentioned.” As the record reflects, Leo retired in 2010 after turning seventy-five. Although he found that Leo’s retirement was a reasonably foreseeable event at the time the parties divorced, the chancellor still considered the Armstrong factors. Concluding his analysis, the chancellor stated:

There has been no substantial and material change. The fact that [Leo] is retired was foreseeable. And even if you do a—well, it’s impossible to do much of an analysis because we don’t have beginning information [for 1978,] . . . but if you do an analysis under Armstrong and you look at the assets and the income[s] of the parties, not only today but over the years, no reduction in alimony is warranted.

¶12. After reviewing the record and relevant caselaw, we find no abuse of discretion by the chancellor’s denial of Leo’s petition for modification of his alimony payments. See Peterson, 129 So. 3d at 256-57 (¶5). The chancellor found that no material change occurred and that Leo possessed sufficient financial resources to continue paying his monthly alimony obligation. The chancellor also found that no unanticipated event occurred since Leo’s retirement was reasonably foreseeable at the time of the parties’ divorce. Because the record contains substantial evidence to support the chancellor’s findings, we find no merit to this assignment of error.

The outcome should shock no one because retirement is always foreseeable. The real issue is what financial impact the retirement has on the ability to pay. And that latter statement is the unspoken, hidden issue in the question of foreseeability: isn’t it reasonably foreseeable that there will be a reduction in income resulting from retirement? That is something the cases just don’t seem to address in any meaningful way.

There was no baseline in this case for the judge to go back to in the 1978 judgment. The judge could not tell from the previous judgment what the parties’ situations were in 1978 compared to 2012 (34 years later). In my opinion, it’s always a good idea to include that kind of information in your PSA’s. This case illustrates one major reason why that is a good idea.

The chancellor’s action in reducing alimony to take into account the wife’s receipt of Social Security benefits is pretty much common practice when the benefits are based on the alimony-payer’s earning history. See, e.g., Spaudling v. Spaudling, 691 So.2d 435, 439 (Miss. 1997). I am not aware of any case law supporting a reduction or termination of alimony based on the ex-spouse’s receipt of Social Security due to that spouse’s earnings history.

How to Address the GAL Report

October 15, 2014 § 2 Comments

There are three types of cases in which a chancellor is required to appoint a guardian ad litem (GAL):

  • MCA 93-5-23 requires appointment of a GAL “when a charge of abuse or neglect arises in the course of a custody action.”
  • MCA 93-15-107 requires a GAL for the child(ren) in termination of parental rights (TPR) cases.
  • MCA 93-17-8 requires a GAL for the child(ren) in a contested adoption.

In other cases the court may appoint a GAL whenever the court deems it necessary to protect the interests of a child or vulnerable adult.

The chancellor is never required to follow or adopt the recommendations and findings of a GAL, but when she does not do so there are certain requirements that the judge must meet in rendering her opinion.

In the October 9, 2014, MSSC case, Borden v. Borden, Chief Justice Waller, for the unanimous court, spelled it out:

¶11. In child-custody cases where there are allegations of abuse or neglect, courts must appoint a guardian. Miss. Code Ann.§ 93-5-23 (Rev. 2013); Floyd v. Floyd, 949 So. 2d 26, 28 (Miss. 2007). And when the appointment is mandatory, chancellors, in their findings of fact, must include at least a summary of the guardian ad litem’s recommendations. Id. While a chancellor is not bound by the guardian ad litem’s recommendations, “if the court rejects the recommendations . . . , the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.; S.N.C. v. J.R.D., Jr., 755 So. 2d 1077, 1082 (Miss. 2000).

¶12. In the current case, Mary Jane raised her concerns that the children might have been sexually abused. Accordingly, the chancellor appointed a guardian ad litem. The guardian ad litem conducted an investigation into the child-abuse claims and prepared a recommendation regarding custody of the children. The guardian ad litem found no evidence of abuse, and after an Albright analysis, determined that Mary Jane should be awarded custody.

¶13. When the guardian ad litem’s appointment is mandatory, as in this case, the chancellor must include a summary of the guardian ad litem’s recommendations in his or her findings of fact and conclusions of law. S.N.C., 755 So. 2d at1082. And “when a chancellor’s ruling is contrary to [that] recommendation . . .” the court must state “the reasons for not adopting the . . . recommendation . . . in the findings of fact and conclusions of law.” Id. While the chancellor in the current case acknowledged the guardian ad litem’s recommendation, he did not provide a summary of the report or a summary of his reasons for rejecting the guardian ad litem’s recommendation. Therefore, we find the chancellor erred in failing to do so.

The court reversed on this and another ground, and remanded the case for proceedings consistent with the opinion.

If you have a case involving a GAL, and the judge rules contrary to the GAL’s recommendations, be sure that the court’s findings include both a summary of the GAL’s findings and the court’s reasons for not following the GAL’s recommendations. Whether the appointment was mandatory or not, I think it’s the best practice. If the judge neglected to do that in his opinion, file a timely R59 motion and ask the court to add his findings. Don’t do it and you might just get a free pass for a retrial after a brief detour to the COA.

No Judgment of Modification = No Modification

October 14, 2014 § Leave a comment

You’re going to have to read for yourself the MSSC’s decision in Shumake v. Shumake, handed down September 18, 2014. It’s a dizzying scenario involving a divorce judgment ordering payment of alimony, bankruptcy, petition to modify, contempt hearing, a temporary reduction of alimony, and subsequent contempt. The Special Chancellor ultimately found that ex-husband Leslie Shumake owed his ex-wife Katarina Shumake $58,550, plus interest, in alimony arrearage. Leslie appealed.

The case was first assigned to the COA. The court noted some confusion arising from language that the special chancellor had used in effecting a temporary reduction in alimony while bankruptcy payments were being made. In its November 23, 2013, opinion, the COA held, among other things, that on the unique facts of this case, it ” … would be fundamentally unfair to charge Leslie with a $58,550 arrearage …” and reversed and rendered that part of the judgment.

The COA granted cert and reversed the COA. Here’s what Justice King said for the unanimous court (Lamar not participating):

¶11. Originally, the chancellor ordered Leslie to pay Katarina $5,750 per month in periodic alimony. Leslie never met this obligation. Instead, he paid Katarina $650 per week in alimony. Katarina filed a contempt complaint asking the chancellor to require Leslie to comply with the divorce judgment. In response to Katarina’s contempt complaint, Leslie requested a modification, claiming that his extreme economic hardship had resulted in a substantial and material change in his circumstances. The chancellor then entered an order requiring Leslie to transfer his interest in the marital home to Katarina to cover part of the arrearage at that time. Leslie was to pay the remaining amount of the arrearage from cash. Of particular note, the chancellor did not modify the alimony or specifically address Leslie’s request for modification. Moreover, the order states that the chancellor “reserves the right to make a ruling regarding any arrearage and/or future arrearage . . . .”

¶12. According to the parties, the chancellor entered another order in November 2010 which required Leslie to pay Katarina $750 per week. This order is not in the record, although it was discussed at length at an April 2011 hearing, and the docket reflects that the chancellor entered an order at that time. At the hearing, Leslie argued that the November 2010 order temporarily modified the alimony. Katarina, on the other hand, maintained that Leslie was still required under the divorce judgment to pay $5,750 per month in alimony. Thus, Katarina claimed that Leslie owed $58,550 in arrears.

¶13. The [special] chancellor, who was not the chancellor who entered the divorce judgment or prior orders in the case, ultimately found that the previous chancellor never entered an order permanently modifying the original divorce judgment which required Leslie to pay $5,750 per month in alimony. Thus, the chancellor found that Leslie was in arrears for $58,550 to Katarina. The chancellor ordered that Leslie, upon completion of his bankruptcy payments, pay Katarina for the arrearage in monthly payments of $1,500.

¶14. After reviewing the record in today’s case and considering our law with respect to alimony modification, we cannot find that the chancellor abused his discretion. An alimony payment vests on the day it is due. Bowe [v. Bowe], 557 So. 2d [793] at 794 [(Miss. 1990)]. And a court order is required to modify alimony. Id. Because no order expressly modified Leslie’s alimony obligation, the [special] chancellor in today’s case did not abuse his discretion in ordering Leslie to pay the arrearage.

¶15. Further, the Court of Appeals’ statement that it would be “fundamentally unfair and unjust” to require Leslie to pay the arrearage is supported by neither our caselaw nor the chancellor’s order. The order considers – and provides some allowance for – Leslie’s bankruptcy by allowing him to pay the arrearage when the bankruptcy is complete. Our caselaw addressing the effect of bankruptcy on alimony payments is consistent with this approach. See Varner, 666 So. 2d at 497-98. Finally, the chancellor’s decision not to punish Leslie through contempt does not absolve Leslie’s arrearage. See Hand, Mississippi Divorce, Alimony, and Child Custody § 14-6 (“If the responding party is found to be in contempt and refuses or fails without justification to pay the arrearages as previously required by the court, he may be punished by civil or criminal sanctions, or both.”) (emphasis added). Put simply, Leslie’s alimony payments vested on the day they were due and the record does not support a finding that the vested payments were or should have been modified. The chancellor did not abuse his discretion in ordering Leslie to pay the arrearage. [Emphasis added]

There is a handful of lessons here:

  • Never walk away from a case until you are sure that every order that should have been entered has gotten entered. You can not rely on opposing counsel to agree with you to the terms of a missing order so as to reconstruct it. Even if counsel opposite wants to “do the right thing,” memories fade with the passage of time, and two honest people can remember the same event in quite different ways.
  • Without an order in which to rely, your client has no cover for his actions. That November order might have saved Leslie a lot of money because alimony payments become vested when they are due, and they can not be modified except by express order of the court.
  • Note the language about bankruptcy. In ¶10, the court points out that bankruptcy does not in all cases rise to the level of substantial change in circumstances that would warrant modification.


The Valuation Bugaboo — Again

October 13, 2014 § 2 Comments

It’s a never-ceasing source of wonderment to me how some lawyers devote so little attention at trial to valuation of assets when that proof is crucial to the outcome of the equitable distribution.

The latest object lesson on point is in the COA’s decision in Ilsley v. Ilsley, decided October 7, 2014. In that case, Susan and Timothy were in the throes of a divorce. Mediation had failed, and the two unhappy spouses appeared at trial as the only two witnesses.

The main equitable distribution battle ground was over an ING account with 21,225 vested (and some additional unvested) shares that Timothy had as part of his employment compensation with the Isle of Capri Casino. The COA opinion says that the “primary testimony and evidence presented at trial regarding the value per share” was Timothy’s testimony that it was worth $7.06 per share. A few months later, in his proposed findings of fact and conclusions of law, Timothy stated the share value as $5.30.

Before we go any further, take a minute to absorb what I just laid out: the evidence that the court had to rely on came from one of the parties. No expert, no agreed statement from a stock brokerage or the plan administrator, nothing other than the testimony of one of the parties.

Now, I am not taking the lawyers in the trial to task. It may be that the figures thrown out were what was developed in discovery and no further effort was needed. The end result though, is that the two figures injected into the record were the ones upon which the judge relied.

The chancellor concluded from the proof that the value of the vested shares in the ING account was $143,089, and awarded Susan $75,000, to be paid by Timothy as lump-sum alimony. The judge did not explain the value of the shares he applied to arrive at those figures, or the total number of shares he found. Susan appealed.

Judge Roberts, for the majority of the COA, said this:

¶10. Susan first argues that the chancery court erred in valuing and classifying stocks Timothy received as part of his compensation package from Isle of Capri. As part of his compensation package, Timothy was granted shares of stock each year that vest randomly over a three-year period and, once vested, are invested in an ING account. At trial, the parties stipulated that the number of vested shares in the ING account was 21,225 shares. In addition, there were 9,511 shares that granted after the date of the temporary order, but these shares had not yet vested. The chancery court found that these shares were marital, but awarded them to Timothy, as the shares had not yet vested. Timothy testified at trial that the value per share was approximately $7.06. This was the primary testimony and evidence presented at trial regarding the value per share. In his proposed findings of fact and conclusions of law, Timothy offered the value per share of $5.30. In its corrected final judgment of divorce, the chancery court found the total value of the ING account to be $193,497, and the value of the vested shares to be $143,089. The chancery court did not include in its judgment what the total number of shares or the price per share was in determing [sic] the total values.

¶11. As explained above, the two pieces of evidence presented to the chancery court as to the price per share were $7.06 as testified to at trial, and $5.30 as contained in Timothy’s proposed findings of fact and conclusions of law submitted several months after trial. “Where parties provide inadequate proof of an asset’s value, a chancellor’s valuation with ‘some evidentiary support’ will be upheld.” Dunn v. Dunn, 911 So. 2d 591, 597 (¶17) (Miss. Ct. App. 2005) (quoting Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999)). In Dunaway, we held:

To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those efforts that would require us to reverse his valuation determinations.

Dunaway, 749 So. 2d at 1121 (¶28). Without having additional evidence provided by the parties, the chancery court was in the position to select a value for the shares and determined the total values for distribution. Additionally, the chancery court found that each party “will be entitled each to one-half of those [vested] shares.” Thus, the actual value per share fluctuates based upon the market, so the total value of the shares would vary based upon the market price.

¶12. We find that the chancery court did not abuse its discretion.

In other words, if you want a shot at overcoming a bad trial result, you’d better make it your business to make an adequate record at trial. Susan in this case in essence left the judge no choice but to rely on the figures offered by Timothy, and she ineffectively argued that it cost her, because she offered no proof to the contrary.

Lawyers and Character

October 10, 2014 § Leave a comment

Somebody once said that character is how you behave when you think no one is watching. It’s the way you really are, without pretense or appearances. It can reflect nobility or brutishness, generosity or avidity, honesty or mendacity.

There are lots of ways to look at and describe character. The Inside Counsel Blog postulates Five Traits of Highly Effective Trial Lawyers: Credibility; civility; confidence; curiosity; and competitive spirit. I certainly can’t argue with those five C’s. If you will read the article, I think you will agree. But those are measures of what makes an effective trial advocate.

I am talking about the character traits that a lawyer should have. Here are my own Most Desirable Character Traits for Lawyers, all of which overlap and contribute to each other:

  • Honesty. The lawyer is scrupulously honest and candid in all her dealings with the client, the court, and opposing counsel. There is never a question of the lawyer’s integrity.
  • Professionalism. The lawyer is civil with opposing counsel, and candid and respectful of the court. All of the lawyer’s work product reflects quality and attention to detail.
  • Diligence. Filings and appearances are timely. The lawyer does what needs to be done when it needs to be done. The lawyer zealously represents the client’s interests within the bounds of ethics and the law.
  • Trustworthiness. The lawyer’s word is his bond. The court and opposing counsel can rely on the lawyer’s promises, case citations, representations in pleadings, and other statements. The trustworthy lawyer is never a liar.
  • Competence. Undertakes responsibility for cases within the scope of his or her abilities, and refers out or associates competent counsel in cases beyond his or her skill level. Studies the law and keeps current with hand-downs. Stretches his abilities via study, and seeks advice from more experienced counsel.
  • Skepticism. Questions behind the client’s representations as to the facts. Never lets the client dictate litigation strategy or tactics. Critically examines statutes and case law for new approaches. Rejects “conventional wisdom.” Does her own thinking.
  • Objectivity. Maintains enough distance from the client’s emotions in the case so that he is able to offer dispassionate advice uncolored by personal involvement.
  • Proportionate Sense of Self-Worth. The lawyer is neither an egotist nor a doormat. Maintains a realistic sense of his or her abilities, strong and weak points, and knowledge of self.
  • Devotion to the law. The lawyer is proud of the profession, and strives to uphold its highest ideals. Promotes respect for the law and the legal profession in his or her dealings with clients, judges and other lawyers, and in the community.

I am sure you can come up with some more.

My all-time favorite list of character traits, that I return to again and again, is in Galatians 5:22-23: Joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control.

Recovering Loans for the Estate

October 9, 2014 § Leave a comment

Thomas Kennedy, Sr., during his lifetime wrote twenty checks payable to his son, Timothy. The checks, ranging from $1,000 to $40,000 totaled in the aggregate $180,900. Timothy did not dispute that the checks constituted loans to him from his father.

Thomas, Sr., died, and Thomas, Jr., became executor of his father’s estate. A year and a half after opening the estate, Thomas filed a final account and petition to close the estate. In his prayer for relief, he asked that Timothy be required to repay the amounts loaned to him, or that his distributive share be decreased by that amount.

Timothy raised three defenses: (1) that filing the pleading in the estate action was not sufficient to toll the statute of limitations; (2) that the executor should have filed a collection action in circuit or county court; and (3) that collection of some or all of the loans was barred by the statute of limitations (SOL).

The chancellor found that the checks were, indeed, loans, and that, since they had no specific due dates, the general 3-year SOL applied, running from the date of each check, and that, therefore, some of the loans were barred from recovery. He calculated that Timothy owed $91,700, and that he could either repay the estate or have his share reduced by that amount. The chancellor did not buy Timothy’s argument about a separate action in a different court. Timothy appealed.

In Kennedy v. Estate of Kennedy, decided September 30, 2014, the COA affirmed. Here are the takeaways from this case:

  • Although Mississippi law is less than clear as to whether loans to a legatee should be treated differently than loans by the decedent to others, the COA held that they should be treated the same, and that the SOL does apply. The SOL is not interrupted by the death of the decedent. Judge Maxwell’s reasoning and authority on this point is so sound that it’s hard to imagine that the MSSC would reach a different conclusion, despite the fact that there is some old authority to the contrary. You might want to watch this case for cert if you do a lot of estate work.
  • The COA agreed with the chancellor that the SOL began to run on each transaction on the date of the check. The chancellor had analogized the checks to demand notes, which become due and payable from the date of execution, with no demand being necessary.
  • The executor was not required to file a separate collection action in circuit or county court to reduce the claim(s) to judgment. Since Timothy was an heir, his waiver of process in the estate matter made him amenable to the claims of the estate against him. The COA cited an 1870 case that said when ” … distributees are debtors of the estate there is no reason why their indebtedness should not be treated in the light of a set-off against their distributive share.” Judge Maxwell also cited one of the maxims of equity in support of his rationale. Hear, hear.

If you are representing an executor in an estate which is owed debts, keep in mind that the SOL is ticking away every day, and that your dilatoriness could cost the estate some money that you might have to find a way to repay. In my opinion, if your executor is not successful in collecting those debts from non-distributees, it would be better practice to get chancery authority to sue to collect them in circuit or county court, and to get a judgment. If the debtors are distributes, make sure you get process on them promptly in the estate action on a pleading to collect, so as to stop the SOL from running.

The Basis for a New Trial

October 8, 2014 § Leave a comment

MRCP 59(a) provides that the trial court may grant a new trial ” … in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.” In non-jury cases ” … the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings of fact and conclusions, and direct entry of a new judgment.”

On its own initiative, the court may, within ten days of entry of a judgment, order a new trial (rehearing) for any of the above reasons. And the court may, after giving the parties’ notice, grant a new trial for reasons not stated in a motion. The court must spell out the grounds for its ruling.

In the case of Bariffe v. Estate of Lawson, et al., about which we posted yesterday, Justice Coleman’s dissent adds some important insight into how R59 is supposed to be applied by the trial court [beginning in ¶50]:

… Rule 59 must be read and interpreted in light of [MRCP] Rule 61, which provides:

No error in either the admission or the exclusion of evidence and no error in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Miss. R. Civ. P. 61. Thus, a harmless error in the proceedings that “does not affect the substantial rights of the parties” is not a sufficient reason for granting a new trial. Id. Applying Rule 59, the Court has held that trial courts have discretion in granting a new trial if the judge is convinced that (1) “a mistake of law or fact has been made” or (2) “injustice would attend allowing the judgment to stand.” Mayoza v. Mayoza, 526 So. 2d 547, 549-50 (Miss. 1988). …

As we discussed in the previous post, the chancellor granted a new trial in Bariffe because he felt that he had improperly limited the parties’ presentation of their cases in the first trial by imposition of time limits on the examination of witnesses. The majority found no error in his granting of a new trial. Judge Coleman would have held it to be error based on his analysis above.

If you are going to make a R59 motion and argument, make sure you define what substantial rights were affected by the judge’s ruling, and stress that point. If you are on the receiving end of the motion, argue that the movant has failed to raise an issue cognizable under R61.


Can the Judge Time-Limit Your Case?

October 7, 2014 § 4 Comments

In this district, we impose a one-hour-per-side time limit on temporary hearings. It has proven to be an effective way to deal with the numbers of temporary hearings that, if they were not time-limited, could swamp our court system.

Rulings in temporary hearings, however, are not appealable, so the time-limitation issue does not affect record-making that might have an impact on appeal.

What about hearings leading to final judgments? Can the judge impose a time limit on the presentation of your case?

In the MSSC case of Barriffe v. Estate of Lawson, et al., handed down October 2, 2014, the chancellor imposed time limits on the presentation of the parties’ cases because he felt the attorneys were unprepared and had consumed an entire day questioning the first witness. After he entered judgment, he granted a new trial on a R59 motion because  he felt that, perhaps, he had been unfair in imposing the time limits.

On appeal, the majority of the court said, “We see little evidence in the record that the chancellor was unfair to either side with respect to time limitations, and we note that his threats [to cut off overtime questioning] were mostly unenforced.” The majority (5-3, with King not participating) held that the chancellor properly granted a new trial.

Justice Coleman, however, dissented, disagreeing that the chancellor was correct in granting a new trial based on the time limits. His opinion sets out the applicable law:

¶47. On the second day of the first trial, the chancellor accused the attorneys of not being prepared for trial and, after the attorneys took more than a day to question the first witness, the chancellor limited the time for questioning the remaining witnesses. Mississippi Rule of Evidence 611 provides:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Miss. R. Evid. 611(a). Rule 611 “is designed to give trial judges some measure of control over the operation of trials and the smooth flow of the litigation process.” Moore v. Moore, 757 So. 2d 1043, 1046 (¶ 14) (Miss. Ct. App. 2000).

¶48. In Moore v. Moore, the defendant claimed that his due process rights were violated because the trial judge limited the trial to one day. Id. at 1046 (¶ 11). The Court of Appeals found no merit to the claim because the defendant knew the time limit from the beginning of trial, he did not object, the defense called seven witnesses, the defendant testified, and there was “no indication in the record . . . that the time limits placed on the trial by the chancellor were problematic.” Id. at 1046 (¶¶ 12-14). The Court of Appeals said if the defendant’s “trial strategy was adversely affected, then a record outlining the adverse effect should have been preserved” for the appellate court to review. Id. at 1047 (¶ 14). The Court of Appeals recognized that defendants have “a right to introduce evidence at a hearing[,]” however, “if there is no evidence to present or no proffer as to what would have been presented, then there is no legitimate basis for complaining on appeal about the chancellor’s control of evidentiary presentations.” Id. at 1046 (¶ 13) (quoting Morreale v. Morreale, 646 So. 2d 1264, 1270 (Miss. 1994)). See also Gray v. Pearson, 797 So. 2d 387, 394 (¶ 29) (Miss. Ct. App. 2001) (court did not overturn chancellor’s ruling limiting each side to two hours of trial testimony because appellant did not make a timely objection or make a record of evidence she would have presented without the time limit).

¶49. In the instant case, although the chancellor gave time limits for three witnesses, he did not adhere strictly to the time limits he set. The attorneys were allowed to exceed the allotted time when they questioned Eugene, and although the chancellor noted the time, he did not instruct them to stop. The chancellor limited the time to ten minutes for each side when the Barriffes called David and Dwight. The Nelsons waived their time to cross-examine both David and Dwight. When the Nelsons called David, they were given forty-five minutes for direct examination; they used only twenty of the allotted forty-five minutes. No time limit was placed on Dwight for the Nelsons’ direct examination. The Nelsons did not use all of the time allotted, they did not object to the time limits, and they did not identify any evidence or testimony that they were not able to present. In my opinion, under these specific facts, the chancellor’s imposition of a time limit on three witnesses, which he did not enforce, did not amount to a violation of due process, and the chancellor acted within his discretion when he limited the time for questioning witnesses.

If your chancellor imposes a time limit in your case, and you feel that your ability to make your case is adversely impacted, you need to be sure to make a timely objection, and make an offer of proof of the evidence you would have been able to present without the time limit. Without those essential elements, you will not be able to argue the point on appeal.

But from both the majority and the dissent in this case, it seems like it would take a pretty unfair scenario for the appellate court to overturn the imposition of time limits.


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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