July | 2015 | The Better Chancery Practice Blog

Lay Opinions

July 15, 2015 § Leave a comment

Back in the day, before the MRE, lay opinion testimony was objectionable on the basis that opinions are not facts, and the fact-finder is able to draw its own inferences and conclusions

Nowadays, however, MRE 701 specifically allows lay opinion testimony if three elements are present:

The testimony is rationally based on the perception of the witness; and
It would aid the fact-finder in understanding the witness’s testimony or the determination of a fact in issue; and
It is not based on scientific, technical, or other specialized knowledge within the scope of MRE 702.

In family law, we customarily hear the grandparent asked something like, “Who do you think is the better parent?” followed swiftly by a dreary objection, which should be overruled if the grandparent had the opportunity to observe. The weight of that kind of testimony is most often light as a mote of dust, but it is nonetheless admissible.

But what about the fact that the grandparent is being asked to comment on the ultimate issue? That was verboten in the common law. MRE 704 abrogated that rule, and testimony otherwise admissible is not objectionable now merely because it embraces an ultimate issue to be decided by the trier of fact.

Of course, the chancellor may always exclude lay opinion testimony on the ground that it would not be helpful, but I think it’s better to let it in and give it the weight that it deserves.

Lay opinion testimony is a subject we’ve touched on here in a previous post. As a practice matter, your best approach is to limit lay opinion testimony and focus your case on developing facts. Facts, after all, are what you need in the record to provide a substantial basis for the chancellor’s ruling. Some lay opinion testimony, however, can be mighty powerful. For instance, you are representing the father in a custody case, and the parents of the mother testify that, in their opinion, based on what they observed, the children would be better off with the father. That can be pretty persuasive.

What Your Adoption Decree Should and Should Not Include

July 14, 2015 § Leave a comment

DO include …

An adjudication that the six-month interlocutory, or waiting, period is not necessary or required for the benefit of the court, if that is waived by the judge.
If a home study is ordered, specify a date to return to court for completion of the adoption.
If an interlocutory order is entered, spell out its terms. [MCA 93-17-11]
That the child shall inherit from and through the adopting parent(s) and their children, and they shall inherit from the child, all as if the child had been born to the adopting parties.
That the child, adopting parents, and kindred are vested with all rights, duties, and obligations as if the child had been born to the adopting parents.
If the name of the child is to be changed, the name that will appear on the new birth certificate.
That the natural parents and natural kindred of the child shall not inherit from the child, except as to a parent who is the spouse of the adopting parent. The right of the child to inherit from the natural parents is not required to be terminated.
That the parental rights of the natural parent(s) are terminated, except as to a natural parent who is the spouse of the adopting parent. [All per MCA 93-17-13]

Do NOT include …

The name of the natural parent or parents who are giving up the child.
The original name of the child. [Both per MCA 93-17-27]
And while we’re at it, never list the name of the child or natural parent(s) in the style of the case; refer only to “the child named in the petition.” Only the names of the petitioners should be in the style of the case. [MCA 93-17-27]

All of the above is summary, shorthand language for the specific statutory mandates. As always, you should track the language of the statutes in your decrees to ensure that you meet their requirements.

Medicaid and the “Made-Whole” Rule

July 13, 2015 § Leave a comment

In Mississippi, an insurer is not entitled to equitable subrogation unless and until the insured has been fully compensated. It’s known as the “made-whole” rule. Hare v. State, 733 So.2d 277, 284 (¶26) (Miss. 1999).

Can a chancellor rely on the made-whole rule to deny Medicaid’s claim of subrogation in a minor’s settlement?

A chancellor did deny Medicaid’s right of subrogation that would have left Javas Pittman, a minor, with only $6,000 from a $25,000 settlement. Javas had been seriously injured when he was riding on the hood of a car that was involved in a crash. There is no explanation in the record for the reason why the child was on the hood of a moving automobile. If his medical bills are any indication of the gravity of his injuries, they must have been severe, because they totaled more than $170,000, of which Medicaid paid around $66,000. The judge relied on Hare to deny Medicaid’s claim.

The COA reversed the trial court ruling in the case of Medicaid v. Pittman, handed down June 30, 2014. Judge Maxwell wrote for the court:

¶14. Unlike Hare, here there are no “issues of unilateral contracts and bargaining power in negotiations.” Miss. Ins. Guar. Ass’n v. Brewer, 922 So. 2d 807, 812 (¶23) (Miss. Ct. App. 2005). Instead, we are faced with a statute creating a clear right to reimbursement. Miss. Code Ann. § 43-13-125. [Footnote omitted] And according to the supreme court, when the “right of reimbursement ‘exists by virtue of statute,’” the equitable made-whole rule does not apply. Federated Mut. Ins. v. McNeal, 943 So. 2d 658, 661 (¶¶13-14) (Miss. 2006) (quoting Miss.Food & Fuel Workers’ Comp. Trust v. Tackett, 778 So. 2d 136, 143 (¶27) (Miss. Ct. App. 2000)). Instead, the existence of this right “must rise or fall strictly as a matter of statutory interpretation.” Id. at (¶13).

¶15. Melissa [Javas’s guardian] argues McNeal’s holding is narrow and only applies to the specific statute addressed in that case, Mississippi Code Annotated section 71-3-71 (Rev. 2011), which is part of the workers’ compensation act. But what distinguished the subrogation rights in McNeal from the rights in Hare was not workers’ compensation. Rather, the key distinction in McNeal was the fact the insurer’s subrogation rights “do not spring from a contractual agreement as in Hare, but rather are conferred by [s]ection 71-3-71.” McNeal, 943 So. 2d at 661 (¶13); see also Brewer, 922 So. 2d at 812 (¶23) (distinguishing legislatively established subrogation rights from the contractual rights subject to the made-whole rule in Hare). In other words, it was the source of the subrogation right—statute versus contract—that made the equitable made-whole doctrine inapplicable. McNeal, 943 So. 2d at 661 (¶¶13-14); see also Proulx, 121 So. 3d at 223-24 n.1 (acknowledging Medicaid’s statutory right to impose a lien on a settlement that did not make the injured party whole).

¶16. Here, Medicaid’s right to reimbursement did “not spring from a contractual agreement” but rather was conferred by section 43-13-125. McNeal, 943 So. 2d at 661 (¶13). Thus, the chancellor “erred when [he] applied the equitable made-whole doctrine to [this] statutory right[.]” Id. Like section 71-3-71,7 section 43-13-125(2) “unambiguously provides the method for distributing proceeds when, as here, an injured [Medicaid recipient] recovers from a third party.” McNeal, 943 So. 2d at 661 (¶14). So like section 71-3-71, the clear directive of section 43-13-125(2) could not be disregarded. See McNeal, 943 So. 2d at 661 (¶¶13-14).

¶17. Under section 43-13-125(2), “Any amount recovered by a recipient or his or her legal representative shall be applied,” first, to the recipient’s attorney’s fees and legal costs of recovery, second, to the amount of Medicaid’s interest, and, last, to the recipient, should there be “any excess.” While the chancellor recognized Javas’s attorney’s right to a priority payment of $8,640.89 for legal fees and expenses, the chancellor improperly ordered that Melissa could receive the excess on Javas’s behalf without first reimbursing Medicaid $10,308.40.

¶18. The chancellor based his decision not to follow section 43-13-125(2)’s directive by asserting Medicaid’s $10,308.40 recovery would unfairly leave Javas with a little over $6,000—a “neglible [sic] sum,” as he put it. While this may be true, “a chancellor, despite his broad equitable powers, is not free to disregard the clear guidance of a pertinent statute simply because he concludes that it would be unfair on the particular facts of the case to apply the statute according to its terms.” McNeal, 943 So. 2d at 661 (¶13) (quoting Tackett, 778 So. 2d at 143 (¶27)). Further, were Melissa to comply with the order and receive the settlement proceeds without first reimbursing Medicaid, she would be in clear violation of section 43-11-125(2), which in turn would jeopardize her and Javas’s Medicaid-eligibility status. See Miss. Code Ann. § 43-13-307 (Rev. 2009). [Footnote omitted]

¶19. Though the Mississippi Constitution vests chancery courts with subject-matter jurisdiction over equitable matters involving minors [Footnote omitted], such jurisdiction does not permit exceptions to clear statutes because they apply to minors. “[E]quity follows the law,” and “courts of equity cannot modify or ignore an unambiguous statutory principle in an effort to shape relief.” In re Estate of Smith, 891 So. 2d 811, 813 (¶5) (Miss. 2005) (citing In re Estate of Miller, 840 So. 2d 703, 708 (¶14) (Miss. 2003)). Because the order approving the minor’s settlement contained a condition that conflicts with the clear statutory principle that Medicaid shall recover its interest from the settlement, the order cannot stand. We have no option but to reverse the chancellor’s judgment and remand this case back to the chancery court to oversee a settlement that both takes into account Javas’s best interest and Medicaid’s unambiguous statutory right to reimbursement from the settlement.

Don’t forget that Medicaid will negotiate the amount of its lien. I have seen cases in which Medicaid has foregone its claim altogether, although I understand from one of the participants in this case that Medicaid refused to reduce its claim for some reason.

Always make sure you inquire about whether the minor for whom the settlement is sought is a Medicaid recipient. Carefully study the medical bills to see whether Medicaid paid anything. If it did, you must notify it of the settlement and get a letter specifying the amount of the lien it is claiming, and make that letter a part of the record.

The Courthouses of Mississippi

July 10, 2015 § 1 Comment

The final installment. If anyone believes I left something out, email a photo to me and I will post it.

Tunica – Lindsay Jones

Warren – Beverly Kraft

Warren Historical – Beverly Kraft

Wilkinson – Beverly Kraft

Yazoo – Beverly Kraft

Thanks to everybody who submitted photos, published or not.

Addressing the Disconnect

July 9, 2015 § 1 Comment

The MSSC is soliciting comments on an important proposed amendment to MRE 802 and the comment to MRE 804 . You can find the proposed rule and comment changes at this link.

These changes address the current inconsistency between MRCP 32 and MRE 802. MRCP 32(a)(3)(E) makes it possible to offer the testimony of a “medical doctor” via deposition instead of by personal appearance, but MRE 802 does not allow for its admissibility unless the physician meets one of the enumerated exceptions, and mere physicianhood is not one of them. The MRE prevails, though, because MRE 1103 states that “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the [MRE] are hereby repealed.”

We’ve posted about this problem here before. That previous post spells out how lawyers got caught in the gap between the two rules and wound up getting hurt. You don’t want something like that to happen to you.

BAH, Humbug

July 8, 2015 § 2 Comments

If you practice law in or around Biloxi, Columbus, Meridian, or any locale where military are among your clientele, you are no doubt acquainted with the concepts of BAH and BAS.

BAH is military-ese for Basic Allowance for Housing, and BAS is the acronym for Basic Allowance for Sustenance (i.e., groceries).

The question whether BAH and BAS should be included in income for calculation of child support has often percolated up in chancery court, and the answer has varied. Some of the confusion, perhaps has been due to the fact that BAH and BAS are not included in taxable income. The COA confronted the issue in a recent case.

In Price v. Snowden, Tim Snowden had agreed to pay 14% of his adjusted gross income (AGI) to Donna Price as child support for a child he had fathered outside marriage. When it came time to pay, Tim did not include BAH and BAS in his income for calculation of child support, apparently on advice of a CPA and after consultation with DHS. Donna sued for contempt based on underpayment. Tim took the position that BAH and BAS were not includable in his income for child support purposes.

In a decision handed down June 30, 2015, Judge Griffis wrote for the court:

¶10. Donna claims that Tim has underpaid his child-support obligation. The child-support order provides that “[Tim] will pay [Donna] child support based upon [f]ourteen [p]er[c]ent (14%) of his adjusted gross income pursuant to statutory guidelines.” The order also provides that this amount is to be adjusted annually.

¶11. We begin with the child-support guidelines. Mississippi Code Annotated section 43-19-101(3)(a) (Supp. 2014) provides that “gross income” includes the following:

[G]ross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self-employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; [the] absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an Individual Retirement Account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse[.] (Emphasis added).

¶12. When the original order was entered in 2004, Tim was an officer of the United States Navy. Tim received nontaxable federal payments for basic allowable housing (BAH) and basic allowable subsistence (BAS). Tim testified that his attorneys told him to rely on his mother-in-law, acting as his tax accountant, to calculate his monthly child-support obligation. His mother-in-law claimed she read the statute and “double-checked” with social services to determine that child-support calculations were to be based solely on taxable income.

¶13. Here, Donna and Tim agreed to an escalation clause to determine the appropriate amount of child support. Previously, this Court noted that “[t]he parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Stigler v. Stigler, 48 So.3d 547, 551 (¶9) (Miss. Ct. App. 2009) (internal citations omitted). Here, Donna and Tim both agreed to the escalation clause as written. Tim has not contested the validity or enforceability of the clause in this action. Thus, it is a valid clause in their agreement.

¶14. In Bustin v. Bustin, 806 So. 2d 1136, 1139 (¶8) (Miss. Ct. App. 2001), this Court considered the language “any other form of earned income” in section 43-19-101(3)(a), containing the provisions commonly referred to as the child-support guidelines. Sue and William Bustin were divorced, and William was ordered to pay child support for two children at the statutory amount of twenty percent of his gross income. Id. at 1137 (¶2). After the divorce, William was promoted to be the pastor at his church, and was given a housing allowance of $1,500 per month. Id. William brought a motion to modify his child support obligation, for contempt, and for sanctions, while Sue responded with her own motion to modify. Id. at (¶3). The chancellor determined that William’s housing allowance should be included in the calculation of his gross income. Id. at (¶1). This Court held:

It appears from a plain reading of the text that the statute addresses the issue of income and what is included when tabulating child support. The phrase “any other form of earned income” would seem to include items in a person’s salary package. William is given that housing allowance as part of his salary from the church. If William went to a bank tomorrow and applied for a loan, he would most definitely list his housing allowance as income in order to show that he would be able to repay his loan. Salary from one’s employer is one of the key elements when estimating everything from income taxes to interest rates on a bank loan.

Moreover, computing one’s income for taxation is different than computing one’s income for child[-]support purposes. Our state must protect the best interests of the child. One of the ways Mississippi accomplishes that goal is child[-]support enforcement through statutes. Our statutes delineate what is to be considered as gross income for the purposes of computing child support. This issue is also without merit.

Id. at 1140 (¶¶10-11).

¶15. Quite frankly, this interpretation of section 43-19-101(3)(a) leads to a logical result. Uniform Chancery Court Rule 8.05(a) requires the parties to file a “detailed written statement of actual income and expenses.” The Rule 8.05 form provides for the detail of income and expense. Income is to be disclosed in section 2. Line 13, “Present Monthly Gross Income,” requires the disclosure of “[m]onthly reimbursed expenses and in-kind payments to the extent that they reduce personal living expenses such as cars, travel, gas, phone, etc.” This amount is included in the calculation for the chancellor to determine gross income. Similarly, the Rule 8.05 form provides for the expense to be deducted. Section 3, “Monthly Expenses,” requires a party to disclose “[m]onthly mortgage or rent payments.”

¶16. We find that Tim’s BAH and BAS payments are a “form of earned income” under section 43-19-101(3)(a). The United States Navy paid Tim additional income for his housing and subsistence, and these payments were earned by Tim and assisted him with the payment of his monthly expenses.

That settles that. BAH and BAS must be included in AGI for calculation of child support. That’s going to smart some for the payor, because BAH and BAS are gross sums from which no taxes are deducted. And it’s a nice development for the payee, because it’s going to result in a bigger sum of child support. For lawyers, it answers a question that has heretofore gone unanswered in Mississippi case law.

A few morsels for thought:

At Meridian Naval Air Station, two student pilots, A and B, both apply for on-base housing the same day. Pilot A is assigned the last available base house; he gets no BAS or BAH. Pilot B has no choice but to live off-base due to the unavailability of base housing, and he receives BAS and BAH as a result. Both would pay substantially different amounts in child support. Fair?
Pilot B does not pocket the BAH. He pays all of it and some from his own pocket to rent a house in Meridian. Yet he will be taxed 14% + in child support on that amount. It is a legitimate point that not everyone gets their housing paid by their employer, but the fact is that people enlisting in the military do so with the understanding that, in return for generally lower pay than in the private sector, they will be provided with amenities such as housing.
Pilot A will receive free housing and meals, yet the value of that will not show up on his paycheck stub or on his tax return so it can be quantified for child support calculation. Fair?
Both pilots A and B have their groceries subsidized at the base commissary. That benefit does not show up on a pay stub or tax return, yet it can amount to thousands of dollars a year, and it escapes child support calculation. Fair?

I don’t have any answers to those questions. I’m just laying the groundwork for someone else’s appeal, I guess.

Whose Burden of Proof is it, Anyway?

July 7, 2015 § 6 Comments

There must be a gazillion cases that stand for the proposition that the proponent of a position in a case bears the burden of proving every element of the position by competent evidence. It’s not the opponent’s job to do that. And it certainly is not the judge’s, because for the judge to step in and make sure that one party or the other is meeting his or her burden would — or should — subject that judge to sanctions by the Judicial Performance Commission. When the proponent fails to meet the burden of proof, dismissal is appropriate. That’s what R41(b) is for.

The above principle has me scratching my head over a recent COA decision.

Sharon Harris filed a complaint for a TRO and preliminary injunction against the National Oak Park High School Alumni Association, Inc. (NOPHSAA), seeking to prevent the organization from removing her as president because it had not followed its own bylaws. After reviewing legal memoranda submitted by the parties, the chancellor dismissed her complaint, relying on MCA 79-11-277(2), which authorizes a board of directors to remove any officer at any time with or without cause.

Sharon appealed, and asked the MSSC to supplement the record with the national organization’s bylaws and Roberts Rules of Order, which the court granted after the chancellor confirmed that those documents had been before him at the trial level, even though they were not made a part of the record. Nowhere in the record, apparently, were the organization’s Mississippi bylaws.

The COA, in Harris v. National Oak Park High School Alumni Association, Inc., decided June 30, 2015, reversed and remanded, saying this:

¶14. The record on appeal fails to reflect what NOPHSAA’s Mississippi bylaws require regarding a quorum, voting-eligibility requirements, the Board’s meeting procedures, and the validity of telephonic meetings and telephonic voting. Accordingly, we must remand this case for the chancellor to provide findings as to whether the Board followed applicable bylaw requirements for a quorum, meetings, and voting when the Board voted to dismiss Harris in a meeting where some members attended and voted by telephone. [Footnote omitted]

Now, I may be missing something, but if the record fails to reflect what the Mississippi bylaws require, and the case turns on what the Mississippi bylaws require, is the COA saying that the judge is required to make sure that they get into evidence? That’s a novel approach as far as Mississippi jurisprudence is concerned. Indeed, it’s a novel approach as far as American jurisprudence is concerned. Anyone who has ever tried a case, or sat as a trial judge, can tell you that, in the USA, it’s up to the parties, not the judge, to make a prima facie case. That’s what the term “adversarial system” means.

The COA’s decision cites Speights v. Speights, 126 So.3d 76, 82 (Miss. App. 2013), to support the above-quoted language. Speights reversed a chancellor’s award of attorney’s fees because there was no evidence in the record of its reasonability. Using that logic, the COA should have affirmed in this case, because, if the chancellor had granted Sharon her relief, his ruling would have been unsupported by any evidence at all.

The COA noted at ¶ 12 that the chancellor “provided no factual findings for appellate review.” What factual findings are required when the proponent fails to meet his or her burden of proof? The COA’s own decision states repeatedly that the key evidence is absent from the record. So even without the judge’s findings of fact the COA was able to see clearly the failure of the plaintiff to make a prima facie case, as did the astute chancellor.

In my opinion, the chancellor did exactly what a trial judge is supposed to do: dismiss this case for failure to meet the burden of proof. Does the COA think it is the chancellor’s job to investigate and make the record complete? The COA reversed a chancellor for that very thing last year.

Oh, and just for lagniappe, Sharon now has the recipe on remand for a do-over that will get her a W at trial and on the next appeal.

I hope either the COA or the MSSC fixes this lest it become precedent.

Making Your Legal Life Easier

July 6, 2015 § 2 Comments

It’s no secret that the legal profession is one of the most stressful there is. Stress takes its toll in the form of burnout, substance abuse, failing relationships, depression, and even suicide.

The way that you practice law can add to or alleviate your stress. Here are a few things you can do to make your legal life easier:

Avoid putting yourself in difficult situations. Answer the discovery early. You can always supplement it later to make it meet your exacting standards. Don’t keep putting things off until you face three or four simultaneous, crushing deadlines. Deal with unpleasant things first, so you can give your attention to and enjoy dealing with the pleasant ones.
Forgive yourself. You are your own worst critic. If you err or even fail, pick yourself up and dust yourself off, analyze what you did wrong, fix it as best you can, and move on to the next thing. And quit beating yourself up about it.
Schedule sanely. No one can or should try a contested divorce on Monday and Tuesday, with a break for an hour Tuesday to argue a motion in county court, then a contested probated claim Wednesday morning, followed by depositions Wednesday afternoon. Then six appointments Thursday morning, with three Social Security hearings Thursday afternoon. And winding up the week with a temporary hearing and a contempt two counties distant. Give yourself some time to breathe. You are not Superman or Wonderwoman.
Let your secretaries be your shock absorbers. Don’t avoid your clients; they need to communicate with you. By all means, return your phone calls, but don’t let them interrupt you every few minutes with a barrage of what-ifs and speculation. Manage your own time; don’t let it manage you.
Underpromise and overdeliver. Temper your clients’ expectations with reality. Never promise what you know you can’t accomplish, and then blame it on the judge or that scoundrel attorney on the other side. When you tell your clients that, realistically, they have an uphill climb to modify custody, but you will give it your best shot, they not only will appreciate your candor, but, if you prevail they will marvel at your legal skill; if you don’t, they at least understand why.
Be objective. It’s your client’s battle, not yours. Don’t let it get personal. You are there to represent your client, not to be your client’s alter ego. That lawyer on the other side is your opponent in this case, not your personal enemy.
Get organized. Put systems in place to help you deal with your business in a rational manner. The more haphazard and disorganized you are, the more you will have to deal with the unexpected and overwhelming.