December 6, 2017 § Leave a comment
Just in time for your last-minute Christmas shopping.
On Pinterest courtesy of ABA Journal.
December 5, 2017 § Leave a comment
When Mike and Kim Smith were divorced in 2011, both of them lived in the Tupelo area. In 2012, Kim relocated near Atlanta with the children, and the parties agreed to meet for visitation exchanges in Leeds, Alabama, a point approximately half-way.
Mike customarily travelled to Kentucky for work or play, and the parties agreed for a time to meet in Chattanooga, which was more convenient for Mike. Kim, however, found the Chattanooga exchange unacceptable, and insisted on the Leeds exchange location. Mike filed a petition to modify visitation to require the Chattanooga location.
Following a hearing, the chancellor denied Mike’s petition to modify the visitation exchange point. Mike appealed. In Smith v. Mull, decided November 7, 2017, the COA affirmed. Judge Lee wrote for the unanimous court, Tindell not participating:
¶14. Mike also argues that the chancellor erred in failing to modify the exchange location from Leeds to Chattanooga when he is working or visiting in Kentucky. In doing so, Mike asserts the chancellor “gave no cogent reason” for her decision. We disagree.
¶15. This Court has articulated the relevant principles regarding modifications of visitation: When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. The chancellor has broad discretion to determine the specific times for visitation. H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). With these principles in mind, we find the chancellor’s decision to deny Mike’s request for modification was supported by substantial credible evidence.
¶16. In his motion, Mike sought to have the exchange location modified to “the most convenient location for . . . the minor children.” He argued that when he is working or visiting in Kentucky, Chattanooga should be the court-ordered exchange location, as it is a slightly shorter distance (approximately 143 miles) from Kim’s home than Leeds (approximately 152 miles). He further argued that the chancellor’s failure to modify the
exchange location was not in the best interests of the children because it requires approximately 150-160 additional miles per exchange when he is in Kentucky. He alternatively sought to have Kim meet him at a different location so long as it did not exceed the 152 miles that Kim would normally drive from her home. Kim testified that Leeds was “very systematic, very structured, it’s what we’re used to, we know the safe places, we know all that stuff.” Kim also testified that, although Chattanooga may be a shorter overall distance from her home, it took longer to travel there than to Leeds.
¶17. To prevail, Mike needed to show that “the prior decree for reasonable visitation [was] not working and that a modification [was] in the best interest[s] of the child[ren].” Id. After hearing testimony from both parties, the chancellor found: “[M]odification of the place of exchange, while perhaps more convenient for [Mike] when he elects to travel out of state, would disturb the children’s routines with which they have become comfortable and which complies with the prior decrees.” The chancellor further stated: “I don’t buy into [Mike’s] argument . . . that the court is inconveniencing the children, because, as their father, [Mike] ha[s] to make whatever decision works for [himself]in their best interest[s].” The chancellor ultimately held that Mike failed to show that visitation was not working to serve the best interests of the children. Upon review of the facts before us, we do not find the chancellor erred by declining to modify the visitation-exchange location. This issue is without merit.
This is actually a somewhat familiar fact situation in chancery court. One or both parties relocate, throwing visitation into controversy. In these cases, I often hear it said that the test is whether the prior order for visitation is working or workable. But that is an incomplete statement. The test is actually whether the prior order for visitation is not working … and whether modification is in the best interest of the child or children. That latter consideration is what tripped Mike up in this case. It’s not what is more convenient for either or both parents; it’s what is in the best interest of the child or children.
December 4, 2017 § 2 Comments
As I write this Congress is in the throes of crafting revisions to the federal tax code that will have far-reaching impact on domestic litigation. For instance, I have heard that the child-dependency exemption is being considered for elimination, and even deductibility of periodic alimony has been on the chopping block. Whether or not those particular provisions end up being affected, there are hundreds of others that could be, and that could directly impact your clients.
We not only do not know what substantive changes will be made, but we do not know when they will go into effect, and we do not know how existing contracts and judgments will be affected.
This might be a good time to suggest to your clients to put the brakes on negotiating divorce terms until the dust clears. Then, it would be prudent to sit down with a competent CPA to get some guidance about what difference changes in the law will make in your advice to your clients. It might also be a good idea to come up with and insert some disclaimer language in your PSA’s in which your clients acknowledge that the advice you have given is against the backdrop of a possibly drastically changing legal landscape.
Or, it may prove to be yet another Washington chimera. Just pay attention.
December 1, 2017 § 1 Comment
“I am sure I have always thought of Christmas time, when it has come round — apart from the veneration due to its sacred name and origin, if anything belonging to it can be apart from that — as a good time; a kind, forgiving, charitable, pleasant time: the only time I know of, in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts freely, and to think of people below them as if they really were fellow-passengers to the grave, and not another race of creatures bound on other journeys. And therefore, uncle, though it has never put a scrap of gold or silver in my pocket, I believe that it has done me good, and will do me good; and I say, God bless it!'” — Charles Dickens, A Christmas Carol.
“There’s nothing sadder in this world than to awake Christmas morning and not be a child.” — Erma Bombeck
“In the old days, it was not called the Holiday Season; the Christians called it ‘Christmas’ and went to church; the Jews called it ‘Hanukkah’ and went to synagogue; the atheists went to parties and drank. People passing each other on the street would say ‘Merry Christmas!’ or ‘Happy Hanukkah!’ or (to the atheists) ‘Look out for the wall!'” — Dave Barry