A COSTLY LESSON IN PSA DRAFTSMANSHIP
July 21, 2011 § 3 Comments
What does this fairly commonplace paragraph from a PSA mean:
School and Extracurricular Expenses. Husband and Wife shall each be responsible for one-half (1/2) of all school and extra-curricular expenses incurred by the minor child including but not limited to the cost of books, activity fees, lab fees, school uniforms, tuition, and sports equipment.
Does that provision refer to private elementary and/or high school? Or does it refer to college? Is the language ambiguous?
In McLeod v. McLeod, decided July 19, 2011, by the COA, those questions were presented squarely to the appellate court.
Judge Griffis wrote the opinion that held the language above to encompass all levels of education, and rejected both the arguments that the language was ambiguous and that private elementary and high school expenses are usually included in child support as the court had held in Southerland v. Southerland, 816 So.2d 1004 (Miss. 2002), and Moses v. Moses, 879 So.2d 1043 (Miss. App. 2004). The opinion distinguished the two cases from the facts in this case. The COA decision is worth a read, and I will not rehash it further here.
The point I want to make is how important it is to be aware of precision in your draftsmanship. It would have been a simple matter for the husband’s attorney to clarify the language to specify that it pertained to college, if that was, in fact, the agreement.
Some PSA’s lack clarity. The meaning is hidden behind a cloud of words. That was not the problem in this COA case, but it’s a common problem nonetheless. You can read some ideas for clearer draftsmanship here.
Mostly, though, it seems that we sometimes get in too much of a hurry. The client may be pressing or you put off tending to it until you had no more time to spare. Haste is the enemy of precision.
Make time to set aside what you have drafted for at least a few hours or a couple of days. Then pick it back up and look at it through fresh eyes. Put yourself in the role of a judge who is reviewing it. You know what you meant to say, but will that judge looking through different eyes see it the same way? Are there more precise words that could be used? Is what you have written susceptible to more than one interpretation? Is there something there that can come back and bite your client?
You want your PSA’s — and everything you draft, including pleadings, contracts, briefs — to say exactly what you mean to say and to promote the best interest of your client. Take your time on draftsmanship. Haste is the enemy of precision.
THE DISAPPEARANCE OF MARRIAGE
July 7, 2011 § 1 Comment
In its issue of June 25, 2011, The Economist offers some arresting insights into the state of marriage in our nation that bear reflection by lawyers and judges who deal with family issues. Some of the article’s points:
- Married couples, for the first time, now make up less than half (45%) of all households.
- In every state the numbers of unmarried couples, childless households and single-person households are growing faster than those comprised of married people with children, according to the 2010 census. Married couples with children comprised 43% of households in 1950; they now account for just 20%.
- Traditional marriage has evolved over the past 50 years from a near-universal rite to a luxury for the educated and affluent. In 1960, only four percentage points separated the wedded ways of college and high-school graduates (76% versus 72%). The gap has since widened to 16 percentage points, according to the Pew Research Center. A Census Bureau analysis released this spring found that brides are significantly more likely to have a college degree than they were in the mid-1990s.
- The divorce rate has been declining as the marriage rate has been declining. The National Marriage Project at the University of Virginia in Charlottesville has studied the phenomena and concluded that both declines are due to the fact that marriages are becoming more and more selective. The project also found that divorce rates for couples with college degrees are only a third as high as for those with a high-school education.
- Americans with a high-school diploma or less (who account for 58% of the population) tell researchers they would like to marry, but do not believe they can afford it. Instead, they raise children out of wedlock.
- Only 6% of children born to college-educated mothers were born outside marriage, according to the National Marriage Project. That compares with 44% of babies born to mothers whose education ended with high school. “Less marriage means less income and more poverty,” reckons Isabel Sawhill, a senior fellow at the Brookings Institution. She and other researchers have linked as much as half of the income inequality in America to changes in family composition: single-parent families (mostly those with a high-school degree or less) are getting poorer while married couples (with educations and dual incomes) are increasingly well-off. “This is a striking gap that is not well understood by the public,” she says.
There are implications here that reach far beyond mere economic considerations. Are we witnessing the degeneration of the American Middle Class, with its credal optimism grounded in family, economic opportunity, improvement, education and hard work? The American mantra at least since the 1930’s has been that the next generation will be better off than this one, and so on and on to infinity; the data suggests that principle is dead or dying.
Single parents have less income at their disposal than do married couples living together. Single mothers often live at or near poverty level. Children raised in poverty or near poverty have fewer opportunities to better themselves, and are more likely to pass their accustomed way of life on to their children.
The negative impact on children of being fatherless has been well documented.
The sociology behind these developments is beyond the scope of this blog. It’s important, however, for us to be aware of the forces that affect the lives of those who pass through our courts.
Q & A ON SOCIAL SECURITY’S INTERACTION WITH CHILD SUPPORT
June 28, 2011 § 2 Comments
Q: Father’s child support obligation is $300 a month, and the child begins receiving $250 a month from social security due to the father’s disability. What is the effect of social security on the father’s obligation?
A: The father is entitled to a credit up to the amount of his support obligation. Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982). In this case, since the social security benefit is less than the support obligation, the father will receive credit for the $250 social security payment and will owe the $50 monthly difference.
Q: Father’s child support obligation is $300 a month, and the child begins receiving $350 from social security due to the father’s disability. What is the effect of social security on the father’s obligation?
A: The father is entitled to a credit up to the amount of his support obligation, and any amount in excess is a gratuity to the child. Mooneyham at 1074.
Q: Father’s child support obligation is $300 a month, and the child begins receiving $350 from supplemental security income (SSI) due to the child’s disability. What is the effect of the SSI on the father’s obligation?
A: None. Receipt by the child of SSI payments does not reduce the parental support obligation. Hammett v. Woods, 602 So.2d 825, 828 (Miss. 1992). The same result should apply to any form of benefit received by the child that is generated by the the child or someone other than the child-support-obligated parent.
An interesting twist on this principle appeared in the case of Bradley v. Holmes, 561 So.2d 1034 (Miss. 1990). The father began receiving social security and requested the mother to file for the child to receive benefits on his account. The mother instead filed for and received benefits for the child through the child’s step-father’s account because the benefits were higher. The father petitoned the court to eliminate his child support payments because the mother could have used his account to pay the support, but she elected to use another’s entitlement. The supreme court agreed an held that the father’s obligation was extinguished because the step-father-derived benefits exceeded the amount of the father’s child support obligation.
Q: Father has an arrearage in child support in the sum of $2,000 that accrued after his disability date, and the child receives a lump-sum payment from social security based on the father’s disability. What is the effect of the lump sum payment on the father’s obligation?
A: Chapman v. Ward, 3 So.3d 790, 799 (Miss. App. 2009), and Keith v. Purvis, 982 So.2d 1033, 1038 (Miss. App. 2008), addressed this issue. Read in combination, they appear to hold that the father may have no credit, but the legislature might have altered that rule. Here is what the legislative drafting office provided us at the Judges’ Spring Conference about an amendment to MCA § 93-11-71, to take effect July 1, 2011: “Section 93-11-71 is further amended to provide that the parent who is in arrears on child support payments and who receives Social Security Disability insurance benefits for the support of that child or children will receive credit on the arrearage if it accrued after the date of the disability.” Rooting that principle out of the chapter laws, or even the express language upon which the statement might be based, has been an insuperable challenge for me so far, so I will withhold a categorical statement as to what the new law might provide, so I will withhold jumping in until I receive my advance sheets. In the meantime, if you have this issue come up after July 1, I urge you to do your own research to protect your client’s interests.
Q: Father has an arrearage in child support in the sum of $2,000 that accrued before his disability date, and the child receives a lump-sum payment from social security based on father’s disability. What is the effect of the lump sum payment on the father’s obligation?
A: It would appear both from the case law and the revised statute that the father has no protection or relief in this circumstance.
TURNER v. ROGERS DECONSTRUCTED
June 22, 2011 § 4 Comments
By Ben McMurtray
Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him. The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).” The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”
The practical effect of this ruling has actually very little to do with the right to counsel. Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court. The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant. These safeguards are:
- Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
- The use of a form (or the equivalent) to elicit relevant financial information;
- An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
- An express finding by the court that the defendant has the ability to pay (before finding him in contempt).
This list is not inclusive of all possible safeguards that a state could employ. In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”
Turner, though, is quite limited in its scope. The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead. The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney. Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se. Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.” Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.” In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.
So how does Turner v. Rogers affect one’s practice? When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing. Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay. Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing. Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.
[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]
BREAKING NEWS: TURNER v. ROGERS
June 21, 2011 § 3 Comments
The US Supreme Court yesterday ruled in Turner v. Rogers that it is a violation of the Due Process Clause of the US Constitution for the state to incarcerate a defendant for non-payment of child support when he was afforded neither benefit of counsel nor some alternative procedures, and he was not given adequate notice. I had previously posted about the case here.
I have only now gotten a copy of the opinion, and will post on it when I have a chance to read it.
Thanks to attorney Frances Stephenson.
CREDITING “UNPAID” CHILD SUPPORT
June 1, 2011 § 2 Comments
Lawyers and the courts are often called upon to clean up the mess made by the parties when they make a handshake deal to modify a judgment. Here’s a fairly common setting …
The custodial mom and son aren’t getting along. The child is a rebellious teenager who is not interested in school. He has fallen in with the wrong crowd and appears headed for trouble. Non-custodial dad agrees for the child to come live with him to finish out the school year and get him straightened out. Junior lives with dad for 10 months, does better in school, gets his head right, and returns to live with mom. During the 10 months Junior was with his father, dad did not pay the $300 a month child support ordered by the court in the divorce judgment. As soon as Junior returns home, mom files a contempt action against dad, wanting her $3,000 in child support arrearage, plus interest and attorney’s fees.
Mom claims that the law of Mississippi is that the court can not enforce a modification by the parties, and that if dad had wanted to be relieved of child support he should have gotten a court order.
Dad points to the fact that he supported the child 100% during the 10 months Junior was with him, and the money would be an unjust enrichment for mom.
Who’s right?
In the case of Varner v. Varner, 588 So.2d 428, 434 (Miss. 1991), the parties had three children with a “global” child support obligation of $600. One of the children came to live with the father for a number of years. The court said:
The law remains firm that court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which payments have been made.
The court went on to find that the father had, indeed, made the child support payments ordered by the court for Junior’s benefit. He just did not make the payments to the mom. The court cited the case of Alexander v. Alexander, 494 So.2d 365, 368 (Miss. 1986), quoting it as follows:
If we affirm the chamcellor’s back award of child support to Mrs. Alexander, we will create a situation of unjust enrichment in Mrs. Alexander. This is true because nduring the entire period of time for which Mrs. Alexander claimed support Mr. Alexander had the child in his custody, was supporting the child, and furthermore, was paying the child the $200 a month child support called for by the decree.
Under these circumstances Mrs. Alexander would have no claim to the back child support except to accept it as a conduit to pass directly to the child or back to Mrs. Alexander for the use and benefit of the child. We consider this a vain and foolish act. In our opinion, when the custodial parent received full child support during the time she had custody of the child, did not complain when the child moved in with the other parent, and accepted this arrangement for 20 months with the child support being paid directly to the child, the parent paying the child support is entitled to full credit for all child support paid to the child. He is also entitled to [credit for] any additional support which he has evinced by satisfactory proof to the trial court.
The court went on to say that the father may receive credit for having paid child support where the child lived with him for a time and he paid the support directly to, or for the benefit of, the child. The effect of Varner is that the paying parent is granted a pro rata credit for child support. In Varner (at page 434), that meant that the father received a $200 a month credit against his “global” child support obligation of $600 a month for three children; in other words, since 1/3 of the children lived with him for a time, he is entitled to a pro rata reduction of 1/3.
The decision also includes the familiar admonishment that parties who modify a court judgment without court approval do so at their peril, and they encouraged parties to obtain a judgment incorporating their agreement before embarking on it.
A similar issue arose in Dorr v. Dorr, 797 So. 2d 1008, 1012-1015 (Miss. App. 2001), in which Houston Dorr was ordered to pay child support to his former wife, Susanne Dorr. In return, Houston was given the right to claim the child as a dependent for tax purposes. Houston failed to make consistent child-support payments from 1985 to 1994. In 1988, Houston and Susanne made an extra-judicial agreement whereby Houston relinquished his right to claim the child as a dependent for tax purposes. Susanne claimed the tax exemption from 1988 through 1994 and received a $4,300 tax benefit from doing so. Then, in 1998, Susanne filed suit against Houston for the back child support. The COA found that, although the chancellor had no authority to enforce the extra-judicial agreement, the chancellor erred by not giving Houston credit for giving up his right to the exemption. The court held:
In our view, this financial benefit to [Susanne] for the child’s benefit, though not directly derived from [Houston]’s own income, in equity ought to be considered as a credit towards [Houston]’s recurring child support obligations accruing during the same period, much in the same manner that such indirect payments as social security payments to dependent children derived through the efforts of the obligee have been allowed as credit toward child support. See , e.g., Bradley v. Holmes, 561 So. 2d 1034, 1035 (Miss. 1990).
Dorr was followed in the COA case of Potts v. Windham, decided March 1, 2011, at ¶ 8. The trial court had denied credit to the father for the amount of the mother’s income tax refund because his income was such that he would not have paid any income taxes had he filed, whether or not he claimed the child as a dependent. In reversing, the COA noted that the mother had realized a $4,300 credit by claiming the child, and that the benefit to her, not to the father, was the relevant yardstick to determine whether there would be unjust enrichment.
In the Bolton v. Bolton, decided May 24, 2011, by the COA, at ¶ 47, the following language appears:
Courts award child-support to the custodial parent for the benefit and protection of the child. Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.
In Bolton, the parties had resumed cohabitation after the divorce for a time, and the father was given credit for around $10,000 in payments that he was able to prove he had made for the benefit of the child during the time that the parties lived together. The credit reduced his arrearage in child support from around $14,000 to around $4,000.
To sum it up, your client may just be entitled to some credit for payments made for the benefit of the child in lieu of child support. The result appears to rely on a situation where there is either an actual live-in situation or an actual intended exchange of value in place of child support. Don’t expect your client, though, to get credit for birthday presents, new shoes, school supplies, or toys purchased in the ordinary course of being a non-custodial parent.
NEW GUIDELINES FOR GENETIC TESTING TO DISESTABLISH PARENTAGE
May 31, 2011 § 1 Comment
Ever since the supreme court’s ruling in Williams v. Williams, 843 So.2d 720 (Miss. 2003), that a man under a support order who is proven by DNA testing not to be the father of the child can not be required to continue to support the child, the procedure to be followed has been anything but clear. Up to now, it has been up to each chancellor or county judge to find a way.
Effective July 1, 2011, the law on this point is clarified and specified. The legislature has created a new MCA § 93-9-10, and amended 93-9-9, 93-9-28, 93-9-21, and 93-11-71, to spell out a uniform, orderly process. Here are the highlights:
- If parentage was established through a court order, and the father had been offered genetic testing and declined, he will not be granted the relief of disestablishment of parentage.
- If parentage was established by the father signing the birth certificate, he will have one year within which to request genetic testing. After that, he can not contest parentage except on a showing of fraud, duress or material mistake of fact. Current law allows only 60 days to contest parentage.
- If parentage was established because the parents were married at the time of the birth, the legal father will be allowed to petition for genetic testing so long as he did not continue to hold himself out as the father after learning that he was not the father, or if he prevented the actual biological father from asserting his parental rights. This last provision appears to reflect and cover the situation addressed in the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which was discussed in a previous post.
This is intended only to be a general summary, so you should read the actual provisions when they appear in your legislative advance sheets.
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.
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 an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
SEASONAL VARIATIONS IN INCOME
April 18, 2011 § 1 Comment
One of the vexing questions in child support cases is how to treat seasonal variations in income.
Let’s say your client is a salesman who brings home only $2,000 per month eleven months out of the year. Every December, however, he receives a bonus that has averaged $10,000 a year over the past ten years. What can you tell him to expect about child support for his two children?
What you have here is a seasonal variation in income. For ten months guideline child support would be $400 per month, and for one month it would be $2,000.
How should you ask the court to address it?
I have heard attorneys argue that the bonus should not be counted because the client is never automatically entitled to a bonus, and he might not get it. That argument usually does not fly because of the all-encompasing language of MCA § 43-19-101 (3)(a), which defines income for child support purposes. Consider the following case:
In Alderson v. Morgan ex rel. Champion, 739 So.2d 465, 466 (Miss. App. 1999), the chancellor had based his adjudication of modified child support on total yearly income, including the bonus, divided by twelve. Using the figures above, the total yearly income, then, would be $34,000, which produces adjusted gross income of $2,833. The resulting child support would be $566. In effect, the chancellor’s decision spread the bonus over the entire year. On appeal, the court of appeals rejected the father’s argument that it was improper for the trial court to base child support on anticipated income. The court noted that it was proper in that case for the chancellor to assume the bonus based on a one-year history of a bonus.
In the alternative, you could ask the court to find that the seasonal variation in income rebuts the presumption that the guidelines are applicable, and that the court should not apply the guidelines to all twelve months equally. Your authority is MCA § 43-19-103(d), which specifies “seasonal variations in one or both parents’ income or expenses” as authority for the ccourt to find that it would be unjust or inappropriate to apply the guidelines. Applying that statute to our scenario, you could propose that the court order $400 for eleven months and $2,000 in December.
What if the bonus that you are asking to except from the guidelines varies? Say your client receives $10,000 in most years, but has gotten as little as $5,000, and has averaged $8,000. Logic would dictate that you could suggest a 20% figure of whatever the amount of the bonus might be, but the appellate courts have frowned on percentage child support. Why not propose a hybrid amount for the bonus month that would be 20% of the actual bonus, but not less than 20% of the average. In other words, you would be asking the court to rule that child support would be “Twenty percent of the actual adjusted gross income received from the bonus, or $1,600, whichever is greater.” That gives the court an actual, minimum figure to enforce, and allows the parties some leeway to bring the matter to the court if there is a dispute as to the amount.
APPOINTED ATTORNEYS FOR CHILD SUPPORT DEFAULTERS?
March 24, 2011 § 1 Comment
Is an indigent parent in default of child support payments entitled to appointment of counsel when he or she is faced with jail as a penalty? That is the issue that was presented to the Supreme Court of the US (SCOTUS) on March 23, 2011.
The majority of states do appoint counsel in such a situation. Mississippi does not. Nor does South Carolina, where the SCOTUS case originated. In this case, Turner v. Rodgers, et al., Michael Turner was jailed for a $6,000 arrearage in child support for 12 months or until he paid up, whichever occurred first. He could not pay, and so served the 12 months in jail. Turner had been jailed repeatedly for failure to pay child support.
Turner takes the position that his jailing was for being poor, and that the system amounts to a debtor’s prison. He argues that since his liberty was at stake in the court proceeding, the court should have appointed counsel for him.
South Carolina and the mother counter that it is not necessary to have a lawyer because such proceedings usually are decided on the simple issue of payment or non-payment, and the history thereof. They point out that Turner “had the key to the jail,” as the South Carolina Supreme Court ruled in the case. And they add that introducing lawyers into the proceedings would disadvantage mothers who can’t afford a private attorney to help them seek child support payments.
The Sixth Amendment to the Constitution guarantees the right to an attorney in a criminal case, and SCOTUS has long interpreted that guarantee to include state criminal courts, but not civil cases. The distinction here is the possibility of jail time.
The SCOTUS decision is expected by this summer.
The Better Chancery Practice Blog 