April | 2018 | The Better Chancery Practice Blog

Charging for Medical Records

April 11, 2018 § Leave a comment

Jane’s Law Blog reports that there is a petition for interlocutory appeal before the MSSC filed by Neurospine LLC, a medical provider, from sanctions assessed by Jasper County Circuit Court for overcharging for medical records. You can read the details at this link.

Although the case reported is from a circuit court, it is of interest to chancery practitioners as well, since medical records play a role in many chancery proceedings. Are you (or your client) being overcharged? Read the authority cited in Jane’s post and judge for yourself.

Jane Tucker’s blog is a helpful resource to keep up with decisions of the appellate courts, as well as filings, pending issues, and interesting oral arguments and briefs.

Doing Away with Alimony: Two Routes

April 10, 2018 § 4 Comments

Adam Lewis filed a complaint to terminate alimony against his ex-wife, Karen. Adam contended that Karen was cohabiting or in a de facto marriage with her boyfriend, Dobel, since the parties’ 2002 divorce. There was a lot at stake, since the parties’ divorce agreement provided that Adam would pay Karen $15,000 a month in periodic alimony.

Following a trial, the chancellor dismissed Adam’s case per MRCP 41(d). Adam appealed. The COA affirmed the dismissal in In the Matter of the Dissolution of the Marriage of Lewis, decided March 20, 2018. You can read the facts as developed at trial for yourself. Here is how Judge Wilson addressed Adam’s arguments on cohabitation and de facto marriage:

A. Cohabitation

¶17. “Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶6) (Miss. 1997). “[C]ohabitation creates a presumption that a material change in circumstances has occurred. This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support . . . .” Id. at (¶7) (citation omitted).

¶18. In the present case, Adam did not prove cohabitation and failed to prove any mutual financial support. Adam admitted that Karen and Dobel maintain separate homes and do not spend the night at each other’s homes. Adam also admitted that he had subpoenaed Karen’s financial records but had found no evidence that Dobel financially supported Karen or vice versa. On this record, the chancellor did not clearly or manifestly err by finding that Adam failed to meet his burden of proving cohabitation or mutual financial support.

B. De Facto Marriage

¶19. “In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a ‘de facto marriage.’” Hughes, 186 So. 3d at 400 (¶18). “A de facto marriage may be proven in two ways.” Id. “First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony.” Id. (citing Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999)). “Second, a de facto marriage can be found . . . if the alimony recipient and another person have ‘so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.’”
Id. (quoting Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002)).

¶20. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple consistently told friends that they planned to marry “next year.” Id. Moreover, on cross-examination, Linda “admitted . . . that she and Anderson had not married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate residences, but Anderson’s was a “small . . . efficiency apartment,” while Linda’s was a “luxurious home.” Id. at 1133, 1136 (¶¶6, 15). Anderson had a key to Linda’s home, spent the night at her home a few times each month, ate meals at her home regularly, ran errands for her, and did yard work and other household chores. Id. at 1133 (¶6). In addition, Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothes and cosmetics from the store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).

¶21. On appeal, this Court affirmed the chancellor’s finding that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id.

¶22. In contrast, in Hughes, supra, the chancellor found that the alimony payor failed to prove that his ex-wife, Mariel, had entered into a “de facto marriage” with her boyfriend, Darrell. Hughes, 186 So. 3d at 396 (¶3). Mariel and Darrell had been in an exclusive dating relationship for four years, and Mariel wore a diamond ring that Darrell had given her. Id. at 398-99 (¶¶11, 13). They maintained separate residences, but they spent the night at each other’s homes once a week or more. Id. at 398 (¶11). They also traveled and vacationed together, and Darrell had exhibited one of his Corvettes at the National Corvette Museum with a plaque stating that the car was on loan from “Darrell Hill & Mariel Hughes.” Id. at
399 (¶13). Mariel and Darrell denied that they had discussed marriage or planned to get married. Id. at (¶14). However, there was testimony that Mariel once “said that marrying Darrel would ‘mess things up’ in some unspecified way.” Id. at 401 (¶22).

¶23. On those facts, we affirmed the chancellor’s finding that the alimony payor failed to prove the existence of a de facto marriage. We concluded that Martin was distinguishable because there was no outright admission or other clear evidence that Mariel “was avoiding remarriage solely to continue her alimony payments.” Id. at 401 (¶22). In addition, the evidence was, at best, conflicting as to whether Mariel and Darrell had “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Id. at 403 (¶26) (quoting Pope, 803 So. 2d at 504 (¶12)). They were in a long-term, exclusive relationship, she wore a diamond ring that he gave her, they traveled together frequently, and they spent the night together regularly. However, they maintained separate homes and had no access to one another’s financial accounts. Id. at 402-03 (¶26). Therefore, there was evidence to
support the chancellor’s finding that the long-term, exclusive relationship was not a scheme to avoid remarriage to continue alimony payments or a de facto marriage. Id. We emphasized, as we had in a prior case, that “[t]he most important distinction” in our precedents on de facto marriage “is the finding of the chancellor.” Id. at 403 (¶26) (quoting Burrus, 962 So. 2d at 621 (¶15)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id.

¶24. We reach the same conclusion in the present case. Karen and Dobel obviously are in a long-term, serious relationship. However, unlike Martin, there is no outright admission or any other clear or direct evidence that Karen is avoiding remarriage just to continue receiving alimony. Adam testified that he believes that is what Karen is doing. However, Adam did not call Karen or Dobel as an adverse witness. In addition, although Adam apparently deposed Karen prior to trial, he did not seek to introduce any part of her deposition into evidence. See M.R.C.P. 32(a)(2) (“The deposition of a party . . . may be used [at trial] by an adverse party for any purpose.”); Fred’s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820, 827-28 (¶¶39-44) (Miss. Ct. App. 2011) (Maxwell, J., concurring in part and in result) (explaining that a plaintiff may introduce a defendant’s deposition during the plaintiff’s case in chief). Moreover, as in Hughes, Karen and Dobel maintain separate residences and separate finances. As noted above, Adam admitted that he had found no evidence that Dobel supports Karen financially or vice versa. Therefore, as in Hughes, we cannot say that the chancellor manifestly or clearly erred by finding that Adam failed to prove a de facto marriage.

¶25. To reiterate, a trial judge’s ruling on a Rule 41(b) motion to dismiss “is, for purposes of appeal, treated like any other finding of fact. In other words, [her] decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357. On such a motion, the trial judge is entitled to weigh the credibility of the plaintiff’s evidence as if “making findings of fact and rendering final judgment.” Id. at 1356-57. Thus, to the extent that Adam offered circumstantial evidence that could have permitted an inference of a de facto marriage, the chancellor was “not required to look at the evidence in the light most favorable to [Adam],” nor was she required to give him “the benefit of all favorable inferences.” Mitchell v. Rawls, 493 So. 2d 361, 362 (Miss. 1986) (quoting Davis v. Clement, 468 So. 2d 58, 61 (Miss. 1985)). The chancellor was entitled to judge the credibility of the evidence and make findings of fact. And we will reverse her decision only if she would have been “obliged to find for [Adam] if [Adam’s] evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369. Adam’s evidence was not so compelling as to oblige the chancellor to find in his favor. Therefore, we affirm.

Voilà, a textbook statement of the law on modification of alimony.

Some observations:

Cohabitation and de facto marriage are the two main avenues to termination of alimony.
Mutual support is the key characteristic of cohabitation. That will require financial proof. Discovery and use of subpoenas duces tecum are what it will take to develop your proof.
As far as de facto marriage is concerned, try to get an admission of avoiding marriage to preserve alimony. Friends may provide admissions of the principals against interest. Living and financial arrangements are crucial evidence. As with cohabitation, commingled finances and mutual support may create circumstantial evidence.

The Effect of Interpleader on a Counterclaim

April 9, 2018 § Leave a comment

We posted previously about the COA’s decision in Pulliam v. Alfa Ins. Co. and Nance, in which the court upheld a chancellor’s decision that C.D. Pulliam had no authority to change the ownership and beneficiary of a life insurance policy owned by his deceased daughter.

Another issue raised by Mr. Pulliam on appeal is whether the chancellor erred in ruling that his counterclaim was rendered moot when the court approved the interpleader by Alfa. The question is whether the trial court’s granting of the request to interplead funds operates as a release of the interpleader’s liability as to the funds. C.D. had claimed that the litigation, including the interpleader, was made necessary by Alfa’s own negligence and misconduct. Did the interpleader act to absolve Alfa of any wrongdoing?

Judge Wilson wrote the COA’s unanimous opinion on the issue:

¶13. Mississippi Rule of Civil Procedure 22 permits a plaintiff to file a complaint for interpleader and join as defendants “[p]ersons having claims against the plaintiff . . . when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” M.R.C.P. 22(a). “Any party seeking interpleader . . . may deposit with the court the amount claimed, . . . and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money . . . .” M.R.C.P. 22(b). Interpleader protects a stakeholder subject to competing claims to identifiable funds “from being obligated to determine at his peril which claimant has the better claim.” M.R.C.P. 22 cmt. “[A]nd, when the stakeholder himself has no interest in the fund, [interpleader] forces the claimants to contest what essentially is a controversy between them without embroiling the stakeholder in the litigation over the merits of the respective claims.” Id. “The primary test for determining the propriety of interpleading the adverse claimants and discharging the stakeholder is whether the stakeholder legitimately fears
multiple vexations directed against a single fund.” Id.

¶14. “Ordinarily, interpleader is conducted in two ‘stages.’” Id. In the first stage, the court determines “whether the plaintiff is entitled to interplead the defendants,” and in the second stage, the court determines who is entitled to the interpled funds. Id. Alfa has admitted from the outset of this litigation that the beneficiary of the subject life insurance policy is entitled to its proceeds, which Alfa deposited with the chancery court. And Alfa’s complaint only asked the chancery court to identify the proper beneficiary or beneficiaries under the policy. Therefore, Alfa emphasizes that its role should be limited to the “first stage” of the interpleader action.

¶15. We have no difficulty affirming the chancery court’s determination that Alfa was entitled to interplead the defendants. Indeed, this case presents a common, well-recognized scenario in which interpleader is appropriate. See, e.g., Jeffrey Jackson & Jason D. Childress, Mississippi Insurance Law and Practice § 19:12 (3d ed. 2017) (“A life insurer that is uncertain regarding to whom policy proceeds should be paid may interplead the competing claimants and tender the policy proceeds to the court.”); 7 Charles Alan Wright, Arthur R. Miller et al., Federal Practice and Procedure § 1705 (3d ed. 2001) (“Typical examples involve multiple claims against a life-insurance company for the proceeds of a policy that
focus on an attempted change of beneficiary . . . .”). Alfa legitimately feared multiple liability based on competing claims to the same life insurance proceeds. Therefore, interpleader was appropriate. See M.R.C.P. 22(a) & cmt.

¶16. On appeal, C.D. argues that interpleader is not appropriate because Alfa has “unclean hands.” By “unclean hands,” C.D. means that Alfa’s alleged tortious conduct is responsible for the failure of his attempt to change the ownership and beneficiaries of the policy—or perhaps that Alfa induced him to pay premiums on a policy that he did not own. However, C.D.’s allegations—even if true—are not a defense to Alfa’s interpleader complaint.

¶17. C.D.’s argument harkens back to the “historical requirements” for “equitable interpleader.” First Nat’l Bank of Vicksburg v. Middleton, 480 So. 2d 1153, 1155 (Miss. 1985). “Historically”—that is, prior to the adoption of the Mississippi Rules of Civil Procedure—“equitable interpleader ha[d] four requirements,” one of which was that the party seeking interpleader “must have incurred no independent liability to either of the claimants.” Id. (quoting V.A. Griffith, Mississippi Chancery Practice § 23 (2d ed. 1950)). However, our Supreme Court held that “Rule 22 of the Mississippi Rules of Civil Procedure . . . terminated the historical requirements for interpleader in the chancery courts,” including the no
independent-liability requirement. Id. at 1155, 1156-57. The Court explained that Rule 22 was “designed to eliminate the technicalities which formerly limited the use of interpleader, and thereunder interpleader is available to cover any situation of exposure to multiple liability under the procedure outlined in the rule.” Id. at 1156 (emphasis added) (quoting 48 C.J.S. Interpleader § 5, at 125-26 (1981)). Rule 22 is to be applied “liberally” and not subjected to “technical” limitations, “and any doubts should be resolved in favor of permitting an interpleader action to lie.” Id. Rule 22 “interpleader is a procedural device” “directed toward increasing the availability of interpleader.” Id. Its availability is not subject
to the equitable doctrine of unclean hands. Because interpleader was appropriate, and because Alfa deposited the full amount of the life insurance proceeds with the court, the chancery court appropriately released and discharged Alfa from any liability under the policy and as to the interpled funds. See M.R.C.P. 22(b) & cmt.

¶18. However, C.D.’s counterclaims against Alfa present a different issue. To begin with, it is clear that counterclaims are permissible in an interpleader action. See Robertson v. La Linda Inc., 548 So. 2d 1308, 1311-12 (Miss. 1989); Middleton, 480 So. 2d at 1156-57; M.R.C.P. 22 cmt. (explaining that counterclaims by a claimant against the party that initiated the interpleader may be litigated in the second or third stage of an interpleader action); James W. Shelson, Mississippi Chancery Practice § 17:3 (2017) (“All . . . counterclaims . . . are appropriate for a resolution in the course of the interpleader proceedings, and the court will be in error if it refuses to entertain and decide all claims.”); see also Kentucky Cent. Life Ins. v. Vollenweider, 844 S.W.2d 460, 461 (Mo. Ct. App. 1992) (interpleader action to determine rights to proceeds from life insurance policy; one claimant counterclaimed against insurer for misleading the insured “on how to go about changing ownership of the policy”; the appellate court noted that the counterclaim had been stayed pending appeal).

¶19. In this case, Alfa’s motion for summary judgment in the chancery court did not directly address C.D.’s counterclaims. Rather, Alfa’s motion addressed the availability of the interpleader procedure and Alfa’s liability under the insurance policy as to the interpled funds (the proceeds of the policy). Moreover, it is clear that the chancery court’s order granting summary judgment to Alfa did not address the merits of C.D.’s counterclaims. The court’s order expressly stated that C.D.’s countercomplaint was “dismissed as moot.”

¶20. C.D.’s independent claims against Alfa for negligence, fraud, and other torts may or may not have any merit. No court has addressed that issue, which is not before us on appeal. However, C.D.’s counterclaims are not “moot.” They are separate and independent tort claims against Alfa. Moreover, Alfa’s discharge from liability under the terms of the insurance policy did not terminate or bar C.D.’s tort claims. C.D. properly asserted these claims as counterclaims in the interpleader action, and the chancery court’s refusal to entertain the claims was in error. See supra ¶18.

¶21. On appeal, Alfa argues that C.D.’s counterclaims involve distinct issues of fact and law and, thus, are only “permissive counterclaims,” not “compulsory counterclaims.” Alfa also predicts that C.D. “would likely seek discovery as to Alfa and its agents were [he] to proceed on [his] negligence claim.” Alfa argues that, for these reasons, C.D.’s counterclaims “were properly dismissed as moot.” However, characterization of the counterclaims as “permissive” or “compulsory” is irrelevant to the issues in this appeal. Even assuming (solely for the sake of argument) that the counterclaims were not compulsory, that does not render the claims “moot.” Again, C.D. was entitled, under Mississippi Rules of Civil Procedure 13 and 22, to assert counterclaims against Alfa in this interpleader action. That being the case, it was error for the chancery court to dismiss the claims as “moot.”

¶22. In summary, with respect to Alfa, we affirm the judgment of the chancery court insofar as the court permitted Alfa to interplead the defendants and discharged Alfa from liability under the policy and with regard to the interpled funds. However, we reverse and remand the judgment of the chancery court insofar as it dismissed C.D.’s counterclaims against Alfa as “moot.” …

The court, then, goes on to affirm the chancellor’s ruling that C.D. had no authority to change ownership or the beneficiary of the policy. Does that not render His counterclaim moot, since it charged

” … breach of contract, breach of the duty of good faith and fair dealing, negligence, gross negligence, bad faith failure to adjust and pay an insurance claim, tortious breach of contract, and punitive damages. C.D.’s countercomplaint generally alleged, among other things, that he
had paid all premiums on the policy after Annie’s death, that Alfa’s agents or employees had filled out the change-of-ownership forms for him, and that any mistake in making the change of ownership and designation of new beneficiaries was the result of Alfa’s tortious conduct.” (¶7)?

If C.D. had no power to change ownership or the beneficiary, how was he injured by Alfa’s negligent or even willful failure and refusal to allow him to do so?

“Quote Unquote”

April 6, 2018 § Leave a comment

“Let every one of us cultivate, in every word that issues from our mouth, absolute truth. I say cultivate, because to very few people — as may be noticed of most young children — does truth, this rigid, literal veracity, come by nature. To many, even who love it and prize it dearly in others, it comes only after the self-control, watchfulness, and bitter experience of years.” — Dinah Craik

“Calmness of mind is one of the beautiful jewels of wisdom. It is the result of long and patient effort in self-control. Its presence is an indication of ripened experience, and of a more than ordinary knowledge of the laws and operations of thought.” — James Allen

“In short, honesty is more than a moral principle. It is also a major economic factor. While government can do little to create honesty directly, in various ways it can indirectly either support or undermine the traditions on which honest conduct is based.” — Thomas Sowell

April 4, 1968

April 4, 2018 § 6 Comments

Martin Luther King, Jr. was assassinated in Memphis fifty years ago today.

Rev. King’s footprints crossed Mississippi during the Civil Rights Movement. He led a March Against Fear in North Mississippi, visited Jackson, Meridian, Philadelphia , and other locales, was instrumental in “Freedom Summer,” and spread his message of nonviolent change — but unrelenting, inevitable change — across the South. He died a southerner in the South, murdered while encouraging striking garbage-workers in Memphis.

Those of us alive back then recall how he was libeled as a “Communist,” charged with fomenting Black revolution, and hated because he insisted that America’s unjust, hateful system of Apartheid must end. His message was condemned by white politicians, many of whom capitalized on fear of desegregation among white voters to feather their own political nests.

But King, a martyr to his own cause, has over time prevailed. His remarkable life and untimely death were the catalyst for much change. Much of the racial interaction and Black achievement that we take for granted today would have been unimaginable in 1968.

King was right. History has proven him right.

1968 was a devastating year. In January alone, in Viet Nam the bloody seige of Khe Sanh began, the USS Pueblo was seized by North Korea, and the Tet Offensive rocked America’s confidence in the ever-expanding Viet Nam War. Later in the year, the nation was shocked by the assassination of Bobby Kennedy and unsettled by the violent protests and police reaction in Chicago at the Democratic National Convention. Prague Spring, led by Alexander Dubcek, brought the light of hope to Czechoslovakia in January, only to have it cruelly crushed by Warsaw Pact troops in August. “The Troubles” began in Ireland when police brutally beat protesters in Northern Ireland. Lyndon Johnson announced that he would not be a candidate for reelection as President after losing to Eugene McCarthy in the New Hampshire primary.

It would have been understandable were the Civil Rights Movement to have flickered out in the face of all this trauma, but the flame that Rev. King had lit was strong, and it burned bright, consuming and defeating hate, political expediency, and bigotry in its peaceful heat.

Fifty years along, our progress toward racial peace is not as advanced as Rev. King would have wished, but we are much further along than we would have been able to be without him.

The Honor and Dignity of the Profession

April 3, 2018 § 6 Comments

Not long ago I was asked to say a few words to the Ole Miss Law students who were being sworn in for limited practice in the school’s legal clinics. Alas, I got carried away and said more than a few words, as some of us older lawyers are wont to do. I thought you might find some value in them as you toil about in your daily practice.

You may be asking yourself: Why all this folderol about taking an oath? Why don’t we just get on with it, roll up our sleeves and get to work? Well, I want to give you an idea about it.

When I entered the practice of law nearly 45 years ago, the law was known as a noble profession. A term often heard was that the law was an “honorable profession.” Since then the profession has suffered many bumps and bruises. No need to catalog them here. Misconduct and allegations of misconduct by members of the legal profession from the US Supreme Court to the level of sole country practitioner and everything in between have occurred with dismaying frequency.

Add to this that we are in a cynical era where notions like nobility and honor are openly questioned and even laughed at. So, does this mean that the law is no longer to be considered an honorable profession? Is the concept of honor to be set aside as outmoded and anachronistic?

To decide that we first have to understand what honor is.

One aspect of honor is esteem. We honor and exalt those whose merit makes them worthy of our due regard. Whether the law today still merits the respect and esteem of the public is a subject of debate and analysis beyond the scope of this little talk.

Rather, I would like to focus on the concept of the law as a rule in this nation that relies on the individual honor of its members of its profession and those who invoke it. The law as an honorable profession in the sense that its bedrock and very heartbeat is honor.

And what is honor? Pat Conroy said in The Lords of Discipline that, “I have never had to look up a definition of honor. I knew instinctively what it was. It is something I had the day I was born, and I never had to question where it came from or by what right it was mine. If I was stripped of my honor, I would choose death as certainly and unemotionally as I clean my shoes in the morning. Honor is the presence of God in man.”

Others have said that Honor is like the eye, which cannot suffer the least impurity without damage. It is a precious stone, the price of which is lessened by a single flaw. And this is not to say that honor is easily come by. It has been said that the price of honor can never be too dear, for it is the only thing whose value must ever increase with the price it has cost us.

We think of honor as incorporating Honesty, Fidelity, Candor, Selflessness, Truthfulness, and respect both for the rule of law and the personal dignity and worth of every person, friend and foe alike, with whom we come in contact. We think of an honorable person as one who has integrity, self respect, and dignity. The honorable person is never arrogant or crafty, never seeks an unfair advantage or to lord it over others, never deviates from the truth even when a lie would be to her or her client’s benefit.

Honor is at the very core of what a lawyer and judge must be. Lincoln said

There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young person choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

If you will read the Canons of Professional Conduct – our ethical rules – every one is based on the concept of personal honor and honesty.

The founders of our republic recognized the vital importance of honor. In the very last phrase of the Declaration of Independence, they “mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” Not just honor, but sacred honor.

In the spirit of our founders lawyers and judges stand guard over and fight to protect individual rights and the Constitution that guarantees them. With the founders we stake our honor – our sacred honor – on that proposition. No other profession does, and no other group of citizens does, save the military and those who swear to preserve, protect, and defend the Constitution.

As for today’s rampant and unfortunate cynicism, C.S. Lewis noted that, “We laugh at honor and are shocked to find traitors in our midst.” Indeed, when we attack and debase the concept of honor, we should expect the vacuum to be filled with the dishonorable and dishonest. You can not scrap a virtue and not expect it to be replaced by a vice.

So that’s why in a few moments you are going to raise your hand and take an oath to represent your clinic clients well and to the best of your ability. To protect their interests and to submit your own interests to theirs. In other words, you are staking your honor on your pledge of fidelity to your client.

If you – or anyone in a legal setting – takes an oath with the intention of not backing it up with honor, then it means nothing, and the law is diminished by that act. The law and the rule of law rely exclusively on the personal honor of everyone who seeks to invoke it.

This small act, this oath, is only among the first of many hundreds, even thousands, that you will take or see being taken over the span of a career in the law. It’s easy to become jaded and complacent about it. But I urge you as you move toward your entry into the legal profession never to lose your personal honor, and never to allow the law to be dishonored.

So yes, this oath is a small thing and a bit of folderol. But it means something. It means a lot. It really, truly does. And I hope each of you believes and lives that along with the thousands of us who serve the law.

No Findings = Reversal

April 2, 2018 § 1 Comment

It’s axiomatic that the chancellor’s conclusions have to be supported by findings of fact.

A recent iteration of that rule is in Gipson v. Jackson, a COA case decided February 13, 2018, in which the court reversed and remanded a case for failure of the judge to make findings supporting an upward modification of child support in excess of the statutory child-support guidelines. Judge Westbrook wrote for the court:

¶9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase. [Fn 3]

[Fn 3] Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath, 151 So. 3d 1038, 1044 (¶16) (Miss. Ct. App. 2014); Klein v. McIntyre, 966 So. 2d 1252, 1258 (¶20) (Miss. Ct. App. 2007); Wallace v. Bond, 745 So. 2d 844, 847 (¶11) (Miss. 1999).

¶10. This Court has held that “the chancellor must apply the guidelines to make the determination that their application would be unjust.” Evans v. Evans, 75 So. 3d 1083, 1091 (¶31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:

The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [Mississippi Code Annotated section] 43-19-101 [(Rev. 2015)], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (emphasis added).

¶11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support – although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts [Fn omitted] for himself and his wife. However, the chancellor made no specific findings as to Gipson’s adjusted gross income and gave no specific reasons for deviating from the guidelines.

¶12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:

As to the modification of child support, there’s no doubt in this [c]ourt’s mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he’s got, but they belong to daddy. This [c]ourt wasn’t born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing — gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn’t believe it. I’m going to set the child support at $350.00 a month, increase it.

¶13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, “[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Dailey, 151 So. 3d at 1044 (¶16). As a result, the chancery court’s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.

As I have said here before, this do-over could have been avoided:

Here, seeing that the judge was going off on somewhat of a tangent, it might have been a good idea to ask the court for leave to develop more testimony that would have supported detailed findings by the judge. And then, at the conclusion of the proof, make a motion to conform the pleadings to the proof, since the issue was tried without objection by consent.
If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”

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