September 17, 2018 § 2 Comments
Out and about in the world.
Next post October 5, 2018.
September 14, 2018 § Leave a comment
Reprise replays posts from the past that you may find useful today.
PERILS OF PROCESS BY PUBLICATION, EPISODE THREE
June 27, 2011 § 8 Comments
MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.
Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.
The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:
- “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
- “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
- “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
- “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
- In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
- This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
- “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”
So here’s what you need to take away from this case:
First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.
Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.
Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.
This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.
September 12, 2018 § Leave a comment
Inability to pay is often asserted as a defense in contempt actions. All too often, though, it fails for insufficient proof.
The burden of establishing inability to pay is on the one claiming the defense. It must be shown “with particularity, and not in general terms.” That is the phrase used by the MSSC in McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), in which the court said:
¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make … child support payments as ordered, because of his inability to pay … his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, [Fn omitted] and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278. [Fn 3]
[Fn 3] While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For “[o]nce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).
¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.
Financial difficulty does not constitute inability to pay. As Professor Bell points out, ” … [C]ontempt may be avoided only on proof that the payor lived economically, paid only bare living expenses, and used all remaining funds to satisfy the support obligation.” Bell on Mississippi Family Law, 2d Ed., § 14.05[a]. In Lane v. Lane, 850 So.2d 122, 125-126 (Miss. 2002), the court addressed the appellant’s proof at trial of inability to pay:
¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.
¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.
Notice the language ” … absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie … .” That’s what it takes to establish inability to pay.
As Jimmy Lane also learned in his unsuccessful trial and appeal, liability for other debts does not excuse non-payment of support. In the ancient case of Kincaid v. Kincaid, 213 Miss. 451, 466-467, 57 So.2d 263, 265 (1952), the court laid out the rule, which is still good law 66 years later:
In Amis on Divorce and Separation in Mississippi, Section 206, the rule is stated that a husband may not ask for modification of the original decree without showing that he has performed it or that its performance has been wholly impossible, and in Section 279 the author discusses the rules laid down in Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712 on which both parties here rely, and points out that if the husband undertakes to exonerate himself because of his inability to pay his proof must conform to those rules, namely: ‘That he earned all he could, that he lived economically and paid all surplus money above a living on the alimony decreed to the wife. And such proof must be made with particularity and not in general terms. In such a case he must show what his earnings were and what his living expense was, including that of those legally dependent on him, but not of any other person. The payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because the wife’s right to alimony is a prior and paramount claim on his earnings. Nor will the fact that his earnings were insufficient to support himself and pay alimony exonerate him if he has other money or property which he could sell or encumber to get money with which to make the payments, even though it may be exempt.’ See also Millis v. State, 106 Miss. 131, 63 So. 344, and Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113. The foregoing views are not in conflict with what was said in Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368, on which appellant relies and which case is clearly distinguishable from the case at bar.
Whether the obligation was child support or alimony, the rules for proving inability to pay are the same.
Keep in mind the US Supreme Court’s ruling in Turner v. Rodgers, about which I posted at this link. You must put the contempt defendant on notice that his ability to pay may be an issue at the hearing, and you must provide a template (such as an 8.05 form) for him to provide the information necessary to his defense. And the court must make a finding of ability to pay before imposing incarceration.
September 11, 2018 § 1 Comment
Many family lawyers complete their entire careers without filing an action to revoke a divorce. Most, like I, have handled a couple.
You can find the provision to revoke in MCA § 93-5-31. Here it is in its entirety:
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
So, all that is required is a joint petition and evidence satisfactory to the court that the parties have reconciled. I emphasized “required” because the language of the statute leaves a lot to the imagination.
- What does “under such regulations and restrictions it may deem proper to impose” mean?
- What evidence is “satisfactory?
- Is a record required?
Most chancellors nowadays have enough to do without concocting arcane regulations and restrictions. I think it’s safe to assume that you can file that joint petition, set it for hearing, and put your parties on the stand for brief testimony to the effect that they have resumed living together and want to be restored to all of the benefits and emoluments of marriage. But that might not be enough for your favorite chancellor. You should inquire about the kind of evidence the judge wants to hear. Satisfactory evidence is in the eye and judgment of the beholder, and the appellate courts will give the judge’s ruling “great deference.”
What about a record? The case of Carlisle v. Allen, 40 So.3d 1265 (Miss. 2009) is illustrative. In that case, the parties had filed their joint application, but the husband died before it could be presented. The wife went ahead with the petition, over the estate’s objection. Here is how the MSSC described the evidence that the chancellor found to be satisfactory:
¶ 4. Janet filed for reconsideration and testified to the following facts regarding her reconciliation with Charles: the two had maintained their relationship after the divorce; Charles and Janet had continued to talk and go out together; Charles had a private telephone line put in Janet’s house so he could call her; the two had spent every weekend together from March 2006 until Charles’s death in June 2006; Charles had called her multiple times a day while she was recovering from a hip injury she incurred following Hurricane Katrina; Charles had plans to sell his house and move back into the former marital home with Janet; and the couple had opened a joint banking account.
¶ 5. Janet also testified that the reason the couple initially had divorced was that Janet had become sick during the marriage and Janet’s mother, Mary Davis, had encouraged her to get divorced. Janet testified that Charles did not come into the courtroom the day they were divorced. Regarding their relationship after the divorce, Janet stated, “we were always close. It was like we were never really divorced.” Once they filed the petition to revoke the divorce, the couple both began wearing their wedding rings.
¶ 6. On cross-examination, Janet testified that Charles had paid the bills at his house, and—other than the bill for the phone line Charles had placed in Janet’s home—Davis had paid the bills at her house. After Charles’s death, his body was found at his home by his housekeeper, Beverly Slaydon. Janet was at her home and was informed of his death by Slaydon.
¶ 7. Davis testified that the coroner sent Charles’s personal effects to Davis. She said she supposed the coroner did this because of her daughter’s relationship with Charles.
¶ 8. Slaydon testified that she had met Janet while working for Charles in his home. Slaydon testified that she often had talked to Janet on the phone, but Charles would not give her Janet’s phone number because it was “just for him and [Janet].” She testified that Charles was on the phone with Janet constantly, that Janet regularly had spent weekends at Charles’s house, and Charles and Janet would hold hands, talk, and laugh. In her opinion, Charles and Janet loved each other very much. Finally, Slaydon testified that the only other woman she ever saw at Charles’s home was Janet’s personal care provider, Patricia Beard.
¶ 9. Beard cared for Janet as she recovered from a hip injury and, during that time, drove Charles and Janet to Poplarville to file the petition to revoke their divorce. She saw Charles sign the joint application and take it to the courthouse. She testified to seeing Charles three to four times per week, and said that Charles would bring Janet lunch, flowers, or presents. She stated that Charles and Janet would spend hours together on the phone. In her opinion, Charles and Janet had a very loving and affectionate relationship. It was her understanding that the couple had wanted to have their divorce revoked and that Charles had planned to return to the marital home. She stated, “[Charles] never felt that they were divorced. He wanted to be with her. He told me that she was his life partner.” Finally, Beard testified that Charles had asked her to find his wedding band, and she had seen him wearing it.
¶ 10. Carlisle testified that he was a close friend of Charles’s, and he had known him since 1969. He stated that he had prepared the application to revoke the divorce, but that it was his understanding that Charles “never intended to marry [Janet] or set aside the divorce.” He further testified that he previously had prepared four or five applications to revoke the divorce for Charles, but Charles had thrown those applications away. Carlisle thought Charles felt cheated out of the marital home in the divorce, and was using the revocation of divorce to “recover what he thought was rightfully his.”
¶ 11. Carlisle further testified that he regularly had visited Charles and that he never had noticed signs of anyone staying with him. When he visited Janet after Charles’s death, Carlisle said the first thing Janet told him was that she was not going to pay for the funeral arrangements. As a result, he made a number of the funeral arrangements personally. However, Janet testified that Carlisle volunteered to make the funeral arrangements and refused to allow her to pay for the service. Finally, Carlisle testified that Charles had a personal relationship with a female attorney before and after Hurricane Katrina. While he did not know the woman’s name, it was someone other than Janet.
That’s pretty detailed, but considering that it became contested it was helpful for the wife that it was so detailed.
A highlight of Carlisle is that death does not abate the action.
The effect of a divorce is to return both spouses to single status. Revocation of the divorce does not have the result of returning the parties to marital status during the time that the divorce judgment was in effect. “Nothing in this statute authorizes the chancellor to find that this statute revokes the prior decree to such an extent as though the parties were never divorced so that any act by either of the parties in the interim between the divorce decree and the revocation of that decree could be construed by the law to be an offense against their marital status. The purpose of the statute is to encourage the reconciliation of broken marriages, not to place the parties in the position of unknowingly giving offense to the marital status once it has been restored.” Devereaux v. Devereaux, 493 So.2d 1310, 1313 (Miss. 1986). Revocation, then, is prospective in its application even though the divorce judgment is revoked.
September 10, 2018 § 2 Comments
The National Judicial College’s Judicial Edge publication in July included some insights from around the country into common missteps by new judges. Judge Griffis posted this on his blog in July.
10 common mistakes new judges make—and how to avoid them
Earlier this month we emailed current and past NJC faculty asking for the most common mistakes they see new judges make and advice on how to avoid them. Submissions began pouring in almost as soon as we hit send.
We had so many, in fact, that we’re going to break them up into installments, in this month’s issue and next. Here are the first 10:
- They shy away from making decisions
“I have been a judge for 25 years. Over the years I have noticed many new judges have a difficult time making decisions. New judges come from the community and hear cases with their community lawyers. They sometimes are afraid of ruling against community lawyers. They have a hard time coming to grips with a judge’s responsibility to decide, as opposed to not ruling and hoping the case settles if the judge drags his/her feet too long.”
Judge John Lenderman
St. Petersburg, FL
- They accept every agreed order
“It is very, very tempting to new judges to sign off on agreed orders. For example, the parties will present agreed trial continuances, agreed protective orders that give them carte blanche to seal and redact, agreed briefing schedules, agreed expansions of page limits, plea bargains, and more. The solution to this problem is to not be afraid to say no. Trial date certainty is crucial to justice, and it can only be achieved if the court makes it clear that only good cause will warrant a continuance, and (usually) only once. Similarly, the court has an obligation to provide transparency: sealing and redaction defeats this goal. Nor does the court want to cede control of its calendar, including burying itself in long, late-filed reading, by signing off on parties’ agreement to change the court rules on briefing dates and page limits. And, of course, sentencing discretion is meaningless if the court simply signs off on plea agreements.”
Judge Catherine Shaffer
President, American Judges Association
- They forget to complete the record
“You have three best friends in the courtroom. They are: the record, the record, the record. Your best friends will never turn on you unless you lose your cool. The moral is, keep your cool. It is your courtroom and you get the last say. As long as you make the record, you will be fine.”
Judge Lee Sinclair
- They forget about … other important things
“Make sure your robe is on before taking the bench (I’ve been so engaged in thought I marched right into court forgetting my robe.) If you don’t have a court reporter, always double-check to make sure the recorder is on. No one likes to recreate a record.”
Judge Lin Billings Vela
Cripple Creek, CO
- They don’t go to judge school, and they don’t cut the cord
“I know this will seem self-serving, but many new judges do not take advantage of judicial education programs that will help them get started with the right mindset and skills. It also helps to sever the business and social links between a new judge and his/her former law firm. I remember my presiding judge telling me to get to the NJC during my first year on the bench. I attended General Jurisdiction. After returning, I felt better informed than ever before, and the local attorneys knew I had been through courses that would benefit everyone, including their clients. The professional distance between a new judge and those with whom a law firm connection existed is an important break, and I’ll never regret doing it through the NJC. I’m sure that all of the local lawyers appreciated knowing I was completely independent in my decision-making.”
Judge Jess Clanton
- They forget they aren’t a trial attorney anymore
“Stepping into the advocate role is a big mistake for new judges. Another mistake is failing to understand the need to create a full record and the importance of being the “conductor” of the proceedings. Those are just some of the issues we see.”
Judge Susan L. Formaker
- They place too much faith in court-appointed experts
“Newly appointed family law judges are often afraid of making mistakes that might harm children – which is important, of course. However, before relying on expert opinions, it is important to understand whether the expert has done a thorough and sufficient job of gathering data. Too often experts seem merely like stenographers who fail to get sufficient depth/breadth in their data gathering. The experts may not have not tested or considered multiple hypotheses before reaching conclusions. They may not have an adequate basis for their opinions or may be otherwise influenced by some type of cognitive or other bias(es). This is especially true when allegations of domestic violence exist in a case, in very high-conflict cases with children who refuse/resist contact with a parent, or in relocation cases.”
Forensic psychologist Philip M. Stahl
Queen Creek, AZ
- They try too hard to look dignified
“I believe many new judges are so concerned about appearing dignified that they can seem very remote and even uncaring. The solution to this is to learn and apply the lessons of procedural fairness. In reality, there is nothing undignified about being a good listener, a person who explains the neutral principles they are applying, someone who treats each party equally, or someone who speaks in plain language.”
Judge Catherine Shaffer
President, American Judges Association
- They don’t realize that…
1. “It is impossible to have equally talented and prepared attorneys on each side of every case.
2. There will be someone who will file a complaint against a judge, whether justified or not.
3. You will have no privacy. Attorneys as well as citizens expect to know where you are and what you’re doing IF YOU AREN’T IN THE COURTROOM.
4. Depending on type of judgeship, the amount of work will be unexpected. You will be placed on committees and asked to do assignments outside the description of the job.
5. There will rarely be enough time to sit and ponder the law quietly at your desk.
6. There will not be enough money to take a judicial training course outside your state. You should nonetheless volunteer to teach at Continuing Legal Ed classes. And you should know that judges are improved by taking Continuing Judicial Education courses, wherever they are held.”
Judge Cynthia L. Brewer
- They misunderstand their position
“Stay away from the phrase ‘In my court…’ It is not your court, it belongs to the people, it will always belong to the people, and you can be replaced.”
“Understand that the case before you is the most important case on the planet, and treat the people before you in that manner. Treat people the way you would want a family member to be treated if they were in court. Do not have ‘POLICIES.’ Have trust in your in-court staff. Listen more than speak. Do not rush your docket, no matter how busy it is. Take frequent breaks. Smile. Dress like a judge. Be humble. Be kind. Never show anger. Never assume anything before asking questions. Do not be afraid to say, ‘I do not know.’”
Judge Louis Schiff
Deerfield Beach, FL
September 7, 2018 § Leave a comment
“And this I believe: that the free, exploring mind of the individual human is the most valuable thing in the world. And this I would fight for: the freedom of the mind to take any direction it wishes, undirected. And this I must fight against: any idea, religion, or government which limits or destroys the individual.” — John Steinbeck
“We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.” — T.S. Eliot
“Perhaps one day men will no longer be interested in the unknown, no longer tantalized by mystery. This is possible, but when man loses his curiosity one feels he will have lost most of the other things that make him human.” — Arthur C. Clarke
September 5, 2018 § Leave a comment
I’ve seen a few agreed judgments and PSA’s lately that have provisions along these lines:
“[Father] shall maintain major medical, optical, and dental insurance covering the minor child … “
When I inquire, I am told that what the parties intended was actually a standard health-insurance policy along with the optical and dental insurance.
There’s a huge difference between a “major medical policy” and a “health insurance” or “medical insurance” policy.
The term “major medical” is a term of art in the insurance industry to specify insurance designed to cover medical expenses due to severe or prolonged illness by paying all or most of the bills above a set amount. Many major medical policies are cheaper than a regular health or medical policy. They are designed to kick in over and above what regular health and medical insurance covers.
So a major medical policy would kick in, for example, after your health insurance has paid out, say, $50,000 for cancer treatment, and only then would major medical start paying up to some contracted limit.
A health or medical insurance policy, by contrast, pays a percentage (usually 80%) of covered medical, hospital and surgical expenses. It is not limited to severe or prolonged illness, and there is no threshold coverage amount other than a deductible or co-pays.
Remember that the judge is bound by the language you use in that agreed judgment or PSA. If it says “major medical,” it doesn’t matter what the parties thought they were getting; they are bound by the terms they used.
Consider what could happen if Junior breaks his arm and spends the night in the hospital with only a major medical policy in force. The bill is $8,000. But the major medical policy covers only catastrophic illness, such as cancer, and only after the expenses are in excess of $20,000. Problem? You betcha.
And don’t expect any relief from the judge. That’s what the parties agreed to get.
Be careful with your terminology. Your client will have to live with it.
September 4, 2018 § Leave a comment
Lawyers come before us with agreed orders that read something like this: “On motion of the plaintiff ore tenus, the parties agree that …” and the order goes on to spell out some relief.
Ore tenus, of course is Latin for “by word of mouth,” which means that the motion is made orally, and not in writing.
MRCP 7(b)(1) speaks directly to this:
An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
The rule could not be any clearer. You must file a motion in writing asking for particular relief, and you may then follow it up with that agreed order. As I tell lawyers all the time: “Give me an agreed order signed off on by everyone, or set it for hearing.”
There are all kinds of reasons why this is the best practice. The chief one in my opinion is that it makes for a clear record. A motion is filed, and later there is a corresponding order. In fiduciary matters that motion signed and sworn by the fiduciary may be what stands between you and an inquiry by a reviewing court as to whether you have done something improper, as in the case at this link. The written motion also documents for the record exactly what it was that the court was called upon to do and that notice was given.
The one and only exception to the writing requirement is that the motion may be made orally in the course of a hearing or trial. The significance of that exception is that there is a record of what the court is being called upon to do, followed by the court’s immediate or even later ruling. My thinking is that the rule refers to hearings on the record, as opposed to informal hearings or discussions in chambers or even in the courtroom without a record. In those situations, the court should direct someone to file a written motion complying with R7(b)(1) and set it for hearing.
September 3, 2018 § Leave a comment