Hybrid Alimony With a Bite

June 13, 2017 § Leave a comment

Brian and Ruth’e Korelitz were in negotiations to settle their divorce case in 2006. When it came time to address the alimony issue, one of them produced a proposed provision that required Brian to pay Ruth’e periodic alimony in reducing amounts in three-year increments until Brian’s retirement. In the course of negotiations, however, the parties agreed to some handwritten deletions and insertions so that the alimony provision ended up looking like this:

A. Periodic Alimony. [Brian] agrees to pay unto [Ruth’e] as periodic alimony  the monthly sum of $2,850.00 per month, beginning the first day of the month immediately following execution of this Agreement for a period of thirty-six (36) months, reducing to $2,600.00 for a period of thirty-six (36) months, [and] reducing to $2,100.00 for a period of thirty-six (36) months. Periodic [A]limony shall then reduce to $1,750.00 until September 1, 2019, or [Brian’s] retirement, whichever occurs later, whereupon periodic alimony shall cease. Said periodic alimony shall be payable one-half on the 1st and one-half on the 15th of each month. In addition, such periodic alimony shall cease upon the remarriage of [Ruth’e] or upon the death of either party[,] whichever occurs first. The payments shall be deductible by [Brian] and includable as income by [Ruth’e], both for state and federal income tax purposes. [Handwritten addition as follows:] Said payments are further non-modifiable, except as set forth herein above.

All of the strikeouts and handwritten language were initialed by the parties. The agreement was approved by the court, and the parties were divorced.

In 2014, after Ruth’e had taken up with another man, Brian filed for modification to terminate based on the relationship. He also contended that he had suffered a reduction in income.

It should not surprise you that the chancellor denied his request, concluding that the agreement not only prohibited modification on its face, but also that it created a form of lump-sum alimony, which is unmodifiable anyway, so that neither Ruth’e’s relationship nor Brian’s income were relevant.

Brian appealed, and it should not surprise you that the COA affirmed. You can read Judge Ishee’s opinion in the case of Korelitz v. Korelitz at the link.

This case highlights several points:

  • Hybrid alimony can be a tricky thing. The language above, with its edits, clearly shows the parties’ intent that these payments were not intended as periodic alimony, even though they were to cease on remarriage or death, and were deductible to Brian and income to Ruth’e. Often, though, the intent is not so clear, and if you leave it murky you are putting it into the hands of a judge who might not see it the same way you and your client did. A case in point is at this link.
  • Keep in mind that the default setting for alimony is periodic. In other words, if the court can’t make out what kind of creature was intended, it must consider it to be periodic.
  • I wonder whether Brian understood, when he initialed that handwritten language, that he was signing away his right to ask the court to do the very thing he took Ruth’e back to court to do? I’m sure the lawyer has a letter from Brian in her file documenting that she explained it thoroughly to him before he signed, and that she advised him not to agree to it.
  • I guess Brian’s argument at trial was that the agreement does say that the alimony was terminable on Ruth’e’s remarriage, so if the relationship is tantamount to marriage, then that clause should be invoked. Once the judge determined that it was lump-sum alimony, however, that boat sank.

What, Me Jury?

June 12, 2017 § 1 Comment

We all know that the chancellor is required to impanel a jury when requested to do so in a will contest, and that the jury’s verdict in such a case is binding unless the court directs a verdict otherwise or grants a new trial. At one time the same was true in paternity suits, but that was changed.

Not long ago a lawyer jokingly told me that he was going to request a jury trial in a divorce case. That got us wondering whether the old “advisory jury” that predated the MRCP was still available in cases other than will contests.

Well, actually, it is. MCA § 11-5-3 says that “The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried and made up in writing.” In modern parlance, that translates into “the chancery court may impanel a jury in a case pending before it.” The cases have broadly interpreted that “necessary and proper to be tried to a jury” language to extend to a wrongful death action in chancery via pendant jurisdiction, an action for accounting by a bankruptcy trustee, partition, and “conflicting claims to realty.”

The catch is that the chancellor is not bound by the jury’s verdict, and the verdict is purely advisory. As Griffith explained, “Because … (1) of the delay, (2) of the additional public expense, and (3) because the verdict of a jury in chancery is purely advisory and the chancellor may disregard it, such a submission in an equity case is seldom allowed or desired.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 597. Griffith goes on to point out that, if the chancellor accepts the verdict and incorporates it into a decree, on review the decree is regarded by the appellate court as if it were the findings of the chancellor, just as if there had been no jury.

An interesting wrinkle is MCA § 11-5-5, which states that, if the request for a jury trial is granted and afterward there is a change of venue, then the receiving court is required to impanel a jury to try the case.

Now, I am not advocating for or encouraging anyone to make routine demands for jury trials in chancery, particularly since they are advisory only. I just thought that all the law nerds out there would enjoy this tidbit of really trivial trivia.

The Thai Monks DUI Defense

June 9, 2017 § 1 Comment

From the USA Today, June 5, 2017:

ROCHESTER, N.Y. — An embattled City Court judge was escorted Monday from judicial chambers in handcuffs.

Rochester court deputies and city police officers executed a bench warrant issued for Judge Leticia Astacio’s arrest last week after she missed a Tuesday court appearance related to an August drunken-driving conviction.

Astacio, a Rochester City Court judge, smiled and said hello to the gaggle of reporters waiting for her at the fifth floor elevator bank of the Monroe County Hall of Justice where officers marched her off to be processed at the nearby Rochester Public Safety Building. She returned later to the courthouse for an arraignment before Judge Stephen Aronson of Canandaigua City Court, who issued the warrant and is overseeing her drunken-driving case.

He ordered her held without bail in Monroe County Jail until a Thursday hearing. The reason she missed her court appearance last week was because she had been living in a temple with monks in the mountains of Thailand since May 3, she had texted to her lawyer.

“You’re doing everything to show you don’t care what happens to your public trust,” Aronson said.

In court Monday, Aronson offered Astacio a deal: Plead guilty to violating her initial drunk-driving sentence and receive 45 days in jail, two years of probation and six months on an ankle monitor. She declined and was ordered to jail.

“You’re doing everything to show you don’t care what happens to your public trust.”

On Feb. 13, 2016, Astacio was arrested around 8 a.m. ET on her way to City Court after New York state troopers were summoned to what appeared to be a one-car crash Interstate 490. She refused to take a Breathalyzer test

On Aug. 22, she was sentenced to a one-year conditional discharge that was extended to February 2018 after she admitted violating two conditions: abstaining from alcohol and not driving under the influence.

Astacio, a Democrat who was elected to a 10-year term in 2014, also was in court in March when she beat four allegations that she violated the conditions of her sentence. One alleged that she twice drank alcohol, and three others were related to the use and maintenance of her ignition interlock device, which prevents a vehicle from starting if a driver has had too much to drink.

In May, Astacio was summoned to court after her interlock device on April 29 registered a blood-alcohol-content reading of 0.0651%. A vehicle will start only if a person’s blood-alcohol content is below 0.03%.

Astacio, who worked as a prosecutor for a time in 2009 in the Driving While Intoxicated Bureau of the Monroe County District Attorney’s Office, denied consuming alcohol and contended that her daughter had registered the reading, said her lawyer, Ed Fiandach. It is not illegal for another person to drive a car outfitted with an interlock device meant for someone else.

After the reading, which Fiandach said occurred near the beginning of May, Aronson asked that Astacio take a urine test that detects ethyl glucuronide, a byproduct of alcohol, and submit the results to the court. She did not, so she was summoned to court Tuesday and did not appear because she was in Thailand.

Why Astacio had not been arrested when she returned to the United States over the weekend was not immediately clear. She had told Fiandach that she had bought a one-way ticket to Thailand and would be there until some time in August.

She returned to Rochester because her supervising judge, Justice Craig Doran of the New York State Supreme Court, had directed she attend a 9 a.m. Monday meeting in his office at the Monroe County Hall of Justice, expressing concern in a letter that her behavior constituted a “voluntary abandonment of public office” that would be deemed a breach of her judicial responsibilities if she failed to show up.

“You are self-sabotaging any chance you have to return to the bench,” Aronson said in court, telling Astacio that her attitude appeared to be contemptuous.

Though she still receives her paycheck, Astacio has been prohibited from presiding over cases since before her drunken driving conviction in August and has been barred from entering non-public areas of the courthouse since November. She has continued to receive her $173,700 salary because she remains an elected judge.

Astacio will again be working for her pay upon her release from jail — whenever that may be.

Her supervisors, state Supreme Court Judge Craig Doran and City Court Judge Teresa Johnson, told Astacio Monday that she will required to conduct research in the courthouse law library Monday through Friday, whenever court is in session.


A few thoughts:

  • Salary of $173,700 for a municipal judge. Wow. She’s definitely not in Mississippi.
  • A one-way ticket to Thailand?
  • Let me know if that “living in a temple with monks in the mountains of Thailand” defense works in any Mississippi court, will you?

When Spanking Becomes More

June 7, 2017 § Leave a comment

In the course of the divorce trial between Bridget and Scott Holman, Bridget was testifying about Scott’s treatment of one of their children:

“I mean it wasn’t just a spanking on the butt. We’re talking about up and down the back, red marks, and had I been smart enough, I would have taken a picture of that.”

The chancellor, construing her testimony to be an allegation of child abuse, stopped the trial and appointed a guardian ad litem (GAL). After an investigation, the GAL found that the allegations were without foundation. The chancellor ordered Bridget to pay Scott’s attorney’s fees related to the child-abuse allegation.

Bridget appealed, contending among other claims that the chancellor erred in deciding to appoint a GAL, and in his award of attorney’s fees. The COA affirmed as to the appointment of the GAL, but reversed and remanded for a recalculation of the fees awarded. The unanimous decision in Holman v. Holman, handed down April 4, 2017, was penned by Judge Griffis:

¶23. Bridget claims she did not make an abuse allegation “but merely talked about Scott’s bad parenting” and “an incident of excessive spanking.” Pursuant to Mississippi Code Annotated section 43-21-105(m) (Rev. 2016), “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.”

¶24. Bridget asks that we find the chancellor erred in construing Bridget’s allegation of excessive spanking and her testimony that Scott spanked the child up and down his back, leaving red marks, as an allegation of child abuse. We disagree. Based on Bridget’s testimony, it was not manifestly wrong or clearly erroneous for the chancellor to have concerns since, under Mississippi Code Annotated section 43-21-105(m) (Rev. 2015), spanking must be reasonable.

¶25. Moreover, neither Bridget nor her former trial counsel objected to the chancellor’s interpretation of Bridget’s testimony, or attempted to clarify Bridget’s statements. Bridget had the opportunity to advise the chancellor at that time what she now asserts to this Court on appeal—that she did not intend to allege child abuse, but was simply discussing Scott’s bad parenting.

On the issue of attorney’s fees, Judge Griffis wrote:

¶26. Bridget next argues “the chancellor had no legal authority to award attorney’s fees.” Bridget further argues that even if it was proper for the chancellor to award Scott attorney’s fees, the attorney’s fees should have been limited to those fees actually incurred in defending the abuse allegation.

¶27. “An award of attorney’s fees will not be disturbed unless the chancellor abused his discretion or committed manifest error.” Stuart v. Stuart, 956 So. 2d 295, 299 (¶20) (Miss. Ct. App. 2006). Attorney’s fees may be properly awarded “where one party’s actions have caused the opposing party to incur additional legal fees.” Id.

¶28. The chancellor ordered Scott’s counsel to present an accounting of attorney’s fees incurred in the defense of the abuse allegation. However, Scott’s counsel submitted an affidavit and an attached itemization, which included charges for all work performed since June 2015, when the allegation of abuse was made by Bridget.

¶29. The chancellor awarded Scott $15,135 in attorney’s fees, which represented all work performed by Scott’s counsel since the child-abuse allegation was made. The chancellor explained his decision as follows:

This matter was tried almost to its conclusion as [Scott’s counsel] correctly stated, in day one, and then a revelation by [Bridget] comes about alleging abuse by [Scott]. The [chancery court], pursuant to the appropriate statute, halted the proceedings and appointed a guardian ad litem. In doing so, that not only increased the attorney[’s] fees for both parties, but also, of course, incurred the fees of the guardian ad litem. We tried the matter then on yet another day, again to its conclusion . . . . I think in all fairness and in all equity, because of the additional attorney[’s] fees incurred because of the revelation from the stand and not anywhere prior . . . in any deposition, discovery, or otherwise, it’s only proper that the party who causes another party to incur those fees should be assessed.

¶30. As the chancellor noted, at no point prior to the June 2015 trial had Bridget alleged child abuse. Indeed, the abuse allegation was made for the first time after approximately two and one-half years of litigation. Such an allegation caused additional delay and costs. Thus, we do not find the chancellor abused his discretion or committed manifest error in awarding attorney’s fees.

¶31. However, we do find the chancellor erred in failing to determine what portion of the submitted fees was actually incurred by Scott in responding to the abuse allegation. “The fees ‘should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’” Martin v. Stevenson, 139 So. 3d 740, 752 (¶40) (Miss. Ct. App. 2014) (citing Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)). Accordingly, we reverse and remand in order for the chancellor to determine the amount of attorney’s fees associated with Scott’s defense of the abuse allegation.

It seems sometimes that witnesses get carried away hearing their own voices on the witness stand, not really paying much attention to the import of what they are saying until they get hit in the face with it. It’s beyond question that the chancellor in this case was under a duty to stop the proceedings and appoint a GAL based on what Bridget said. Red marks up and down the back from a spanking are not reasonable.

As for the amount of attorney’s fees awarded, I am willing to bet that the chancellor had no proof in the record to support a finding as to how to allocate the attorney’s fees incurred in resisting the child-abuse claim.

Bill of Discovery is Viable, but …

June 6, 2017 § 1 Comment

In March, 2016, the COA all but pronounced the death of the Bill of Discovery, an ancient chancery proceeding that allowed a party to file an action solely to discover information when there is no other way to obtain it. I posted about the case at this link.

The MSSC granted cert, and in Kujlis v. Winn-Dixie Montgomery, LLC, decided March 30, 2017, the court stated that “The bill of discovery is a viable equitable action and remedy in chancery court …” (¶4).

BUT … the majority opinion held that Kujlis was not entitled to discovery in chancery because her complaint pled as the basis for discovery that she had suffered a personal injury, which is a circuit court matter. In essence, the court held that the discovery has to relate to some matter within chancery jurisdiction.

Justice Dickinson, joined by Kitchens, King, and Coleman dissented, pointing out that there was no circuit court action filed when Kujlis filed her Bill of Discovery, so there was no way to invoke circuit civil discovery under the MRCP. The dissenters noted that the Bill of discovery, which long predates the MRCP, only requires a showing that the information sought can not be obtained any other way, not that it is required for a given purpose. They also point out that the majority’s holding limits chancery jurisdiction contrary to MRCP 82(a).

You need to read the opinions for yourself to get a grasp on both sides’ reasoning.

I guess the moral here is that, if you file a Bill of Discovery in chancery court, simply plead and prove that the information sought cannot be obtained by other methods, and stand on that. As the court stated in ¶8, citing a previous case, ” … a complaint for discovery has discovery itself as the substantive relief sought — ‘the sole object and end of the bill, no relief other than discovery being prayed.”

That leaves unanswered the issue of relevance. The defendant comes into court and asks, “Why should I have to take the time and trouble to gather up all this information simply because they asked for it?” Good question. And per Kujlis, when the court makes you answer it, you just might create a dismissal.

Way back in 1950, Judge Griffith said, ” … the principle has been strengthened in its operation under our practice, for it is now the thoroughly settled rule in this state that discovery is a sufficient equity to draw all features of a controversy into chancery for full, final and complete relief … it has been held and repeatedly re-affirmed by our courts that the equity of discovery is sufficient to give the chancery court power to proceed to full relief although all other relief is purely legal in nature.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 429. We’ve travelled far from that concept.


Guns and the Courtroom

June 5, 2017 § 6 Comments

There is a significant case pending before the Mississippi Supreme Court that raises some important issues of public policy and safety, constitutionality, and separation of powers. You may wish to file an Amicus brief.

The case is Ward v. Colom, et al., no. 2016-M-01072. It is before the court on a petition seeking a writ of prohibition against the chancellors of the Fourteenth Chancery Court District. The chancellors had entered an order extending the courtrooms of their courthouses out to the entrances of the courthouses, with the effect that persons carrying firearms could not come within 200 feet of the courthouse entrances. The order applied to permitted persons as well as non-permitted persons.

Ward complains that he is an enhanced-carry permit-holder, and he was denied entry into one of the courthouses of the district with his firearm. He acknowledges that judges have the right by statute to restrict firearms from their courtrooms, but argues that the chancellors did not have the authority to extend the coverage of that authority in the way that they did. He asks the high court to void the order.

On April 26, 2017, the court, by Justice King, ordered briefing on the following issues:

1) What is the authority of judges to exercise control over security issues beyond the four walls of the courtroom itself?

2) Whether the judiciary has the inherent authority to exercise control of security extending beyond the four walls of a courtroom.

3) Whether Mississippi Code Section 97-3 7-7 (2) prohibits judges from controlling courthouse security. Specifically, what is the definition of “courtrooms during a judicial proceeding,” and does that definition either allow or prohibit judges from exercising control of security beyond the four walls of a specific courtroom while court is in session.

4) If Mississippi Code Section 97-37-7(2) does prohibit judges from exercising control over courthouse security, whether it violates the separation of powers doctrine.

The order specifically allows Amicus briefs within “fourteen days of the service of the responsive briefs.” That refers to the responsive briefs of the chancellors, which are due within thirty days of May 26, 2017. That means that Amicus briefs are due within 14 days of June 26.

I encourage chancery practitioners in particular to weigh in on this issue. For myself, I know that hard feelings can spill over to violence that is not limited to the courtroom. In a case here several years ago one of the parties and her attorney were fired upon as they left the courthouse after a nasty custody battle. They were outside on the steps to the south entrance. No one was hurt, thank goodness.

Whether to ban guns entirely as the chancellors did in the Fourteenth should be a judgment call by judges on the ground who are familiar with their courthouse situations, the types of cases that they handle, and the people who come before them. In our courthouses there is adequate, well-armed security. If they are ever called upon to draw their weapons to deal with a deadly situation, I would hope that they don’t have to stop to figure out which armed people are the “good guys.” That hesitation could be fatal.

“Quote Unquote”

June 2, 2017 § Leave a comment

“Honor is the presence of God in man.”  — Pat Conroy, The Lords of Discipline

“And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”  —  Thomas Jefferson, Declaration of Independence

“”We laugh at honour and are shocked to find traitors in our midst.”  —  C. S. Lewis, The Abolition of Man





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