2018 Chancery Election Results

November 30, 2018 § Leave a comment

These are, of course, uncertified, and are the best information I have available to me today (new chancellors names in bold):

District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union).

Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Brad Tennison.

Unopposed were Chancellors Bailey, Malski, and Mask.

District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II)

Robert M. Logan, Jr., unopposed

District Three (Desoto, Grenada, Montgomery, Panola, Tate, and Yalobusha)

Unopposed were Daniels, Lundy, and Lynchard.

District Four (Amite, Franklin, Pike, and Walthall)

Unopposed were Halford and Smith.

District Five (Hinds).

Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Crystal Wise Martin.

Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Tiffany Grove.

Unopposed were Owens and Thomas.

District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston)

Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Kiley Kirk.

Unopposed was Kilgore.

District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica)

Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Willie J. Perkins, Sr.

Unopposed were Farris-Carter and Sanders.

District Eight (Hancock, Harrison, Stone)

Place 3. Incumbent Chancellor Sandy Steckler def. by Margaret Alfonso.

Unopposed were Bise, Persons, and Schloegel.

District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)

Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard, unopposed.

Sub 9-2 Incumbent Chancellor Jane R. Weathersby def. by by Debra M. Giles.

Unopposed was Barnes.

District Ten (Forrest, Lamar, Marion, Pearl River, Perry)

Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Sheila H. Smallwood.

Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Chad Smith.

Unopposed were Gambrell and Sheldon.

District Eleven (Holmes, Leake, Madison, and Yazoo)

Unopposed were Brewer, Clark, and Walker.

District Twelve (Lauderdale, Clarke)

Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith.

Unopposed was Primeaux.

District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith)

Place 1. Incumbent Chancellor David Shoemake def. John Allen Bufington.

Unopposed was Martin.

District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)

Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Rodney Faver (appears to have won; affidavit ballots are still being counted).

Place 2 (being vacated by retirement of Chancellor H. James Davidson) Joseph N. “Joe” Studdard.

Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis.

District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten)

Joseph Durr.

District Sixteen (George, Greene, Jackson)

Place 2 (being vacated  by retirement of Chancellor Jaye A. Bradley) Tanya Hasbrouck.

Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) Mark A. Maples.

Unopposed was Harris.

District Seventeen (Adams, Claiborne, Jefferson, and Wilkinson)

Unopposed were Davis and Ward.

District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah)

Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Lawrence L. Little.

Unopposed was Whitwell.

District Nineteen (Jones and Wayne)

Unopposed was McKenzie.

District Twenty (Rankin)

Place 2 (being vacated by retirement of Chancellor John S. Grant) Troy F. Odom.

Unopposed were McLaurin and Roberts.

Special Thanks to Beverly Kraft of the Supreme Court for helping fill in the information gaps.

Runoff Results

November 28, 2018 § 4 Comments

Please post a comment with any information that you have about results in the judicial election runoffs.

Election Day

November 27, 2018 § 5 Comments

It’s runoff day, please go vote.

Tomorrow, if you have info about results in any of the judicial runoff races, please post a comment with your info.

 

The Effect of Failure to File an 8.05

November 26, 2018 § 2 Comments

Trey Speights did not bother to appear at his divorce trial, even though he was properly summoned and he did file a contest to the complaint. The chancellor granted a divorce on the ground of habitual drunkenness and equitably divided the marital estate. Trey appealed.

The COA affirmed the granting of a divorce and rejected Trey’s argument that the chancellor erred in allowing Trey’s parents to attempt to represent his interests at trial. The court reversed and remanded the equitable distribution, however.

The court’s opinion on the reversed issues in Speights v. Speights, rendered September, 18, 2018, was penned by Judge Barnes:

¶21. Trey contends that it was error for the chancellor to attempt to distribute the marital estate without requiring both parties to file financial disclosure forms under Uniform Chancery Court Rule 8.05. Trey contends that because of this failure, there was no information upon which the court could make a determination of marital and nonmarital assets, and a subsequent equitable division of the marital assets. We agree.

¶22. Rule 8.05 requires “each party in every domestic case involving economic issues and/or property division” to provide a “detailed written statement of actual income and expenses and assets and liabilities.” The parties must submit their income-tax returns for the preceding year and a general statement of employment history and earnings from the inception of the marriage or from the date of divorce, depending on the type of action. The rule also states that financial statements are not necessary if excused by court order for good cause shown. “It is vital to the effective administration of justice in the domestic relations arena that chancellors undertake this task while in possession of accurate financial
information.” Trim v. Trim, 33 So. 3d 471, 478 (¶16) (Miss. 2010).

¶23. At trial, no mention was made of Rule 8.05 forms. In her appellate brief, Kimberly states that the issue is without merit “because the parties had already exchanged financial affidavits during the discovery process.” Yet, no Rule 8.05 forms are in the record, and there is no indication on the chancery-court docket that any financial forms were exchanged, filed, or excused. However, Trey does not suggest, and we do not find, that there was any fraudulent intent by either party in failing to comply with this rule.

¶24. Citing Luse v. Luse, 992 So. 2d 659 (Miss. Ct. App. 2008), Kimberly argues that this issue is waived since Trey did not appear at the proceedings. We disagree. In Luse, the appellant, John Luse, argued that the chancery court erred in failing to require the parties to file Rule 8.05 statements; therefore, there was no documentation in the record regarding ownership of the property or any evidence justifying the court’s division of property. Luse, 992 So. 2d at 664 (¶16). The chancellor had stated in her findings that because child support and alimony were not at issue, and John failed to appear, the chancery court waived the Rule 8.05 disclosures. Id. at (¶19). This Court found no error in that regard, and that John, in failing to defend the suit in the chancery court, was attempting to do so on appeal, which was improper. Id. at (¶¶18-19).

¶25. However, Luse is distinguishable. While John “never responded to the complaint or entered an appearance in the court,” here, Trey took the actions of hiring counsel and timely answered the complaint, but he did not appear further. Id. at 660 (¶3). Therefore, we cannot say that Trey waived this issue. Because we are reversing and remanding on the property division, as explained below, on remand the chancery court should require both parties to complete and file Rule 8.05 financial forms.

As for the issue of the division of the marital estate, the court went on:

¶26. Trey contends that the chancery court erred in failing to make findings of fact regarding the equitable distribution of the marital property under the Ferguson factors. We agree.

¶27. “To equitably divide property, the chancellor must: (1) classify the parties’ assets as marital or separate, (2) value those assets, and (3) equitably divide the marital assets [based upon the Ferguson factors].” Anderson v. Anderson, 174 So. 3d 925, 929 (¶8) (Miss. Ct. App. 2015). Although the chancellor need not evaluate every Ferguson factor, the chancellor must consider the factors relevant to the case, on the record, in every case. Sproles, 782 So. 2d at 748 (¶25); Heimert v. Heimert, 101 So. 3d 181, 187 (¶24) (Miss. Ct. App. 2012) (citing Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009)). The policy consideration behind this requirement is “not only essential for appellate purposes,” but to provide trial courts “a checklist to assist in the accuracy of their rulings . . . [and to] reduce[ ] unintended errors that may affect the court’s ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.” Id.

¶28. Trey is correct that there were no findings of fact by the chancery court regarding the distribution of marital assets. There was no discussion about which assets were marital, and the record is devoid of any mention of the Ferguson factors. Kimberly argues that these findings were not necessary because Trey did not appear, citing Luse in support. Again, we find Luse distinguishable because Trey actually did answer the complaint and denied Kimberly’s allegations regarding accumulation and division of marital property. Although the court was entitled to proceed with trial because Trey did not appear, the court was still required to make the necessary findings for the property distribution.

It is unfortunately too frequent that lawyers show up for trial without 8.05’s in cases where there are financial issues. I had yet another not too long ago.

This case makes it clear that to do so is to plant error in the record, plain and simple. Every finding by a chancellor must be supported by ample and substantial evidence in the record. Without 8.05’s there is not ample and substantial evidence to support the judge’s equitable division. Ergo, error and reversal as here.

I sympathize with the chancellor who now wears the scarlet letters R&R. Reversed and remanded because he was loath to delay this case further by sending the lawyer back to the drawing board to do what he should have done before trial and to cancel a scheduled trial and create an idle day in a crowded docket.

November 22, 2018 § Leave a comment

Thanksgiving Holiday

Courthouse closed

Next post November 26, 2018

The Will Contest and Summary Judgment

November 21, 2018 § Leave a comment

Every will contestant has the right to a trial by jury if desired.

Milt Burris had filed a will contest raising issues of testamentary capacity and undue influence regarding the will of his father, Eddie Burris. The chancellor granted summary judgment in favor of Renee Sims Burris, and Milt appealed, arguing that it was error for the chancellor to adjudicate facts rather than letting a jury decide them.

In Burris v. Estate of Burris et al., the COA affirmed on September 25, 2018. Judge Irving wrote the court’s opinion:

¶7. The Mississippi Supreme Court in In re Launius, 507 So. 2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator’s execution of the will was a free and voluntary act). When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as
otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e).

(Citations and internal quotation marks omitted).

¶8. With this in mind, Milt argues that there existed genuine issues of material fact as to his father’s testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.

The court went on to analyze the trial court’s findings of fact on the issues of testamentary capacity and undue influence, finding no error, and returned to consideration of the chancellor’s role as finder of fact vs. that of a jury in a summary judgment proceeding:

¶16. The record supports Renee’s assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father’s relationship with Renee and his father’s mental health. He, as the contestant of Eddie’s will, was required to bring forth an affidavit or affidavits demonstrating “sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial.” Karpinsky v. American Nat. Ins. Co., 109 So. 3d 84, 90 (¶17) (Miss. 2013). Our perusal of the record indicates that he did not come close to meeting his burden. [Emphasis added]

¶17. Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie’s death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor’s findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.

A couple of observations:

  • Yet another case to hammer home the point that, when the other side files affidavits in a summary judgment proceeding, you must file counter-affidavits or risk an adverse ruling.
  • I wonder about that statement that the chancellor may not adjudicate facts, ” … unless the parties have agreed to dispense with a jury … .” That statement seems to contradict MCA 91-7-19, which states that, “At the request of either party [to a proceeding to admit a will to probate] an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.” [My emphasis] The court’s language is that the chancellor may not adjudicate the case unless the parties waive trial by jury. The statute requires a request, meaning that the default setting is a bench trial.

Registering a Foreign Custody Adjudication

November 20, 2018 § Leave a comment

You can register a judgment or order for custody (hereinafter referred to as a “judgment”) rendered by another state in Mississippi by following MCA §93-27-305. Here are the highlights:

  • You can register the judgment with or without a simultaneous action for enforcement (93-27-305(1)).
  • A pleading, petition, motion, or even a letter requesting registration is filed with the chancery clerk of any county in the state (93-27-305(1) and (1)(a)).
  • Two copies, including one certified copy, of the judgment, accompanied by an affidavit that to the best of the affiant’s knowledge and belief the judgment has not been modified, must also be filed (93-27-305(1)(b)).
  • The name and address of the person seeking registration, as well as that of any parent or person in loco parentis who was awarded custody in the judgment must be stated in the petition (93-27-305(c)); however, the confidentiality protections of 93-27-209 are available to persons who qualify.
  • Notice is served on the person(s) named in 1(c) to provide them an opportunity to contest the registration (93-27-305(2)(b)).
  • The notice must state that the judgment: (1) will be enforceable on the date of registration the same as a Mississippi domestic judgment (93-27-305(3)(a)); (2) a hearing to contest registration must be requested within twenty days of the date of service of the notice (93-27-305(3)(b)); and (3) failure to contest registration will result in confirmation of the judgment’s custody determination, and further contest will be barred (97-27-305(3)(c)).
  • A person wishing to contest registration must request a hearing within twenty days of service of notice (93-27-305(4)).
  • At a hearing to contest registration, the court shall confirm registration unless the contestant establishes that either: (1) the issuing court did not have jurisdiction under the UCCJEA (93-27-305(4)(a)); or the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction per the UCCJEA (93-27-305(4)(b); or (3) the contestant was entitled to notice per 93-27-108 in the originating court, but was not afforded that notice (93-27-305(4)(c)).
  • If a timely request for hearing is not filed, the court orders that the registration is confirmed as a matter of law, and all persons who were served with notice are notified of the confirmation (93-27-305(5)).
  • An order of confirmation precludes further contest of any matter that could have been contested at the time of confirmation of registration (93-27-305(6)).

In Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016), the MSSC held that chancery court, not county court, was the proper forum for registration of a foreign custody determination.

A Familiar Ring

November 19, 2018 § 2 Comments

An endearing and prevalent romantic custom is to bestow a ring on one’s sweetheart. Quite often the ring is an emblem of engagement in the expectation of marriage. When the expectation is not realized, the gift is said to be conditional and remains the property of the donor, as in the Cooley case, which we discussed at this link. When the expectation does ripen into marriage, the ring is a gift to the donee as in the Lomax and Neville cases, which we discussed here.

A recent case presents a scenario somewhere between those two.

During the time that Dr. Christopher Cummins was separated from his wife, he became romantically involved with one of his employees, Leah Jordan (later Goolsby). Although Cummins had not divorced his wife, and never did at any time relevant to this case, he and Jordan began living together, and even became engaged, which Cummins memorialized with a gift of rings. Later, Jordan broke off the engagement and kept the rings. After Jordan filed a paternity suit against him, Cummins counterclaimed for the rings that he claimed were worth $11,435. He asked the court to order that the rings be returned, or that he have a credit for their value against court-ordered child support. He argued Cooley — that the conditional gift was never completed by marriage, and so had to be returned to the donor.

The chancellor ruled that the rings were a completed inter vivos gift because Cummins had never divorced his wife, rendering the condition impossible due to the fact that he could not legally marry Jordan. Cummins appealed.

In Cummins v. Goolsby, decided October 18, 2018, the MSSC affirmed. Justice Maxwell wrote the opinion for a unanimous court (Justice Coleman specially concurring):

¶9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.’” Cooley, 200 So. 3d at 476 (quoting Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982)). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties’ getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley. He claims the third element of a completed inter vivos gift—that the gift was complete and nothing was left to be done—had not been met. So, he was entitled to the return of the rings.

¶10. But this case is not like Cooley.

¶11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternityand to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child’s father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds, 935 So. 2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell, 579 So. 2d 543, 549 (Miss. 1991)). So, even if Dr. Cummins had a right to the rings or to the rings’ value, by no means is he entitled to the ultimate remedy he seeks — a reduction in child support based on the broken engagement.

¶12. Second, and more importantly, unlike the boyfriend in Cooley, Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins’s marriage is significant because he conditioned his gift on something he legally could not do—marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition — or the failure thereof — is what entitles him to the rings.

¶13. “[O]ne of the maxims of equity is, ‘He who comes into equity must come with clean hands.’” Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g., Morgan v. Wright, 133 S.E.2d 341, 343 (Ga. 1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman, 76 A.D.3d 178, 184 (N.Y. App. Div. 2010) (“[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.”).

¶14. Because, unlike the boyfriend in Cooley, Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor’s judgment.

Justice Coleman’s specially concurring opinion, joined in part by Beam, Ishee, and Randolph, points out that the law of promise to marry in Mississippi is governed by contract law, rather than by the law of gifts. It’s worth a read.

A few points:

  • With this decision, we now have law covering the most common ring-gift situations: (1) the uncompleted gift conditioned on marriage, Cooley; (2) the gift completed by marriage, Lomax and Neville; and (3) the gift that was intended originally to be conditional, but cannot be completed due to impossibility, Cummins.
  • Kudos to the court for invoking the maxims of equity.
  • If you’re going to take up with someone else while separated from your spouse, for Pete’s sake don’t get engaged, and by all means don’t get carried away with engagement rings.

Reprise: Making Your Record Make Sense

November 16, 2018 § Leave a comment

Reprise replays posts from the past that you may find useful today.

Ten Tips for a Clearer Record

October 30, 2014 § Leave a comment

As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.

There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.

It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.

Here are ten tips to get you thinking about making an adequate record:

1.  The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.

2.  No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.

3.  What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.

4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.

5.  Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.

6.  Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.

7.  Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.

8.  Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.

9.  S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.

10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.

Six Factors for the Amount of Separate Maintenance

November 14, 2018 § Leave a comment

In the case of Daigle v. Daigle, 626 So.2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993)) the court laid out six factors that the trial court must consider in determining the amount of separate maintenance:

“There are six factors a chancellor should consider in determining the amount of separate maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has use of the marital home and furnishings; and (6) any other pertinent facts. Id.

Also cited in Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. App. 2017).

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