Checklists | The Better Chancery Practice Blog

MORE ABC’S OF GRANDPARENT VISITATION

May 8, 2012 § Leave a comment

We’ve talked here and here about who are the necessary parties in a grandparent-visitation case under MCA 93-16-3. Here is a link to a post on the ins and outs of grandparent visitation.

After the petitioner has established entitlement to grandparent visitation under the statute, the chancellor must apply the factors set out in Martin v. Coop, 693 So.2d 912, 916 (Miss. 1997). The Martin v. Coop factors are here, in checklist form.

In the recent COA case of Bolivar v. Waltman, decided April 3, 2012, Judge Maxwell outlined the decision-making process:

Once the statutory criteria are established, the chancellor must apply the following Martin factors to determine appropriate visitation:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.

2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.

3. The age of the child.

4. The age, and physical and mental health of the grandparents.

5. The emotional ties between the grandparents and the grandchild.

6. The moral fitness of the grandparents.

7. The distance of the grandparents’ home from the child’s home.

8. Any undermining of the parent’s general discipline of the child.

9. Employment of the grandparents and the responsibilities associated with that employment.

10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Townes v. Manyfield, 883 So. 2d 93, 95-96 (¶17) (Miss. 2004) (quoting Martin, 693 So. 2d at 916). The Mississippi Supreme Court has explained that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” Id. at 97 (¶29) (quoting T.T.W. v. C.C., 839 So. 2d 501, 505 (¶12) (Miss. 2003)). Because of the “integral” nature of these findings, our supreme court specifically instructs that “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue.” Id. (emphasis added).

¶11. There is additional general guidance regarding the amount of visitation that should be awarded. “The visitation granted to a grandparent should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming[ly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. at 96 (¶21). And in cases where “a chancellor finds . . . a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Id. at 97 (¶29).

¶12. Further, we note that the grandparent-visitation statute and the Martin factors apply whether the grandparent is seeking visitation from a natural or adoptive parent. T.T.W., 839 So. 2d at 503-06 (¶¶1-2, 7, 10, 17) (finding grandparent-visitation statute and Martin factors applicable where maternal grandparents adopted children, and paternal grandmother sought visitation); see also Woodell v. Parker, 860 So. 2d 781, 785-86 (¶15), 789-90 (¶29) (Miss. 2003). Thus, we find it logical that both the grandparent-visitation statute and the Martin factors should similarly apply to the present situation where a grandparent is seeking visitation rights from the children’s legal guardians. See Townes, 883 So. 2d at 97 (¶29) (instructing that Martin factors must always be applied where grandparent visitation is at issue).

¶13. Because chancellors are required to make specific findings on the Martin factors in every case involving grandparent visitation, the supreme court has vacated grandparent visitation awards unsupported by such findings. Townes, 883 So. 2d at 97-98 (¶30); T.T.W., 839 So. 2d at 506 (¶17); Morgan v. West, 812 So. 2d 987, 992 (¶14), 997 (¶38) (Miss. 2002).

On remand, the chancellor should fully discuss his findings concerning the grandparent visitation statute and Martin factors. Failure to do so may amount to reversible error. See Townes, 883 So. 2d at 97-98 (¶¶28-30).

If your opinion or judgment does not include findings on the Martin factors, file a timely MRCP 59 motion asking the court to make such findings. That assumes, of course, that you put on enough evidence for the court to make such findings. As Judge Maxwell so clearly states, every grandparent vissitation case pivots on the Martin factors. They are vital to your case. Question the witnesses using them. Make your record, and make sure the chancellor addresses them in the ruling.

Only last week the MSSC unanimously upheld the constitutionality of Mississippi’s grandparent visitation statute and application of the Martin factors. We’ll talk about that later.

REVISITING TRIAL CHECKLISTS

November 22, 2011 § 2 Comments

Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.

I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.

Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 5 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE

March 16, 2011 § 15 Comments

A practice tip about trial factors is here.

I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.

Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.

In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
The fee customarily charged in the locality for similar legal services;
The amount involved and the results obtained;
The time limitation imposed by the client or by the circumstances;
The nature and length of the professional relationship with the client;
The experience, reputation and ability of the lawyer or lawyers performing the services; and
Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).

In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate. The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination.

If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support.

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do. In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award. They are:

The value of the exemption at the marginal rate of each parent;
The income of each parent;
The age of the children and how long the exemption will be available;
The percentage of the cost of supporting the children borne by each parent; and
The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth: the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1.

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 20 Comments

_____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
_____ Oath of Executor/Administrator filed.
_____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
_____ Letters Testamentary or of Administration issued.
_____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
_____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
_____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
_____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
_____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
_____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
_____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
_____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

TRIAL BY CHECKLIST: SEPARATE MAINTENANCE

September 20, 2010 § 8 Comments

A practice tip about trial factors is here.

In the case of Shorter v. Shorter, 740 So.2d 352, 357 (Miss. 1999), the Mississippi Supreme Court stated that six criteria must be considered in setting awards of separate maintenance:

The health of the husband and the wife;
Their combined earning capacity;
The reasonable needs of the wife and children;
The necessary living expenses of the husband;
The fact that the wife has free use of the home and furnishings; and
Other such facts and circumstances.

Also see, Honts v Honts, 690 So.2d 1151, 1153 (Miss. 1997).

While an award of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not “unduly deplete the husband’s estate.” Kennedy v. Kennedy, 662 So. 2d 179, 181 (Miss. 1995) (quoting Thompson v. Thompson, 527 So. 2d 617, 622 (Miss. 1988)).

TRIAL BY CHECKLIST: LUMP SUM ALIMONY

August 31, 2010 § 9 Comments

A practice tip about trial factors is here.

The factors that the trial court must consider in making an award of lump sum alimony are:

Substantial contribution to accumulation of the marital assets by quitting work or assisting in the business;
A long marriage;
Financial disparity;
Other considerations, including payor’s assets and payor’s stability or instability.

Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss. 1988). NOTE: these factors predated Armstrong (periodic alimony) by five years, and the Armstrong factors essentially overlap these. It may be preferable to cover all of the Armstrong factors coupled with a specific request for lump sum alimony as well as periodic or rehabilitative.

TRIAL BY CHECKLIST: PERIODIC AND REHABILITATIVE ALIMONY

August 27, 2010 § 19 Comments

A practice tip about trial factors is here.

Armstrong vs. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993), sets out the factors that the trial court must consider and address in making a determination about whether to award periodic and/or rehabilitative alimony. They are:

The income and expenses of the parties.
The health and earning capacities of the parties.
The needs of each party.
The obligations and assets of each party.
The length of the marriage.
The presence or absence of minor children in the home, which may require that one or both parties either pay, or personally provide, child care.
The age of the parties.
The standard of living of the parties, both during the marriage and at the time of the support determination.
The tax consequences of the spousal support order.
Fault or misconduct.
Wasteful dissipation of assets by either party.
Any other factor deemed by the Court to be “just and equitable” in connection with the setting of spousal support.

Before the court can reach the issue of alimony, the court must first adjudicate equitable distribution and determine whether any need for alimony can be alleviated by a greater share of equitable distribution. This means that the factors for equitable distribution (Ferguson factors) must be presented in alimony cases. If, after equitable distribution, the court finds that the needs of both parties are met and there is no disparity, the court does not consider alimony.

Professor Deborah Bell in her MISSISSIPPI FAMILY LAW treatise and her annual seminars has done some important research into how length of marriage and relative income affect awards of periodic, rehabilitative and lump-sum alimony. You should become very familiar with her work if you are going to take on an alimony case.

Caveat: This is an area of the law in flux, and the cases are significantly fact-driven. You should do some research for authority supporting your position pro or con before going to trial. There is plenty of case law on both sides of the issue.

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