A MATTER OF INTEREST FOR CHILD SUPPORT CASES
February 7, 2011 § Leave a comment
MCA § 75-17-7 provides:
All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by the judge to be fair but in no event prior to the filing of the complaint.
It is error for the trial court to fail to award interest on the amount adjudicated to be owed for arrearage in child support. Ladner v. Logan, 857 So.2d 764 (Miss. 2003).
Although the statute expressly states that pre-judgment interest may not extend back prior to the filing of the complaint, the rule does not apply to due and unpaid child support. That is because each payment in arrears is vested when due and becomes an automatic judgment against the obligor. Pope v. Pope, 803 So.2d 499, 501 (Miss. App. 2002). Each unpaid monthly installment begins to accrue interest at the legal rate, not from the time it may subsequently be reduced to judgment by a court, and it is error for a chancellor to reduce or eliminate the interest. Dorr v. Dorr, 797 So.2d 1008, 1015 (Miss. App. 2001). Amounts paid by an obligor in arrears are applied first to the interest obligations, and then to extinguish the principal amount of the oldest outstanding child support payment, and then the next oldest, and so on. Brand v. Brand, 482 So.2d 236, 238 (Miss. 1986).
The appellate courts have allowed the trial judges deference in setting the rate of interest. Rates from three pecrent (Brawdy v. Howell, 841 So.2d 1175, 1180 (Miss. App. 2003)) to eight percent (e.g., Houck v. Ousterhout, 861 So.2d 1000, 1003 (Miss. 2003)) have been upheld.
There is no prohibition that I know of for a property settlement agreement to provide a contract rate for interest on unpaid child support or other obligations such as alimony, but I have never seen a property settlement agreement with such a provision. The rarity is due, I am sure, to the difficulty of getting an agreement. An advantage would be that the court would be bound to the contract rate. See, e.g., Tower Loans, Inc. of Mississippi v. Jones, 749 So.2d 189, 190 (Miss. App. 1999), where the court of appeals reversed a circuit judge’s imposition of eight percent interest where the contract called for a 34.71% rate, and the contract rate was not usurious. Another advantage would apply to alimony and other non-child-support obligations in that it would allow pre-judgment interest back to the filing of the complaint for enforecement; a nice perk if you can get it. Finally, setting an interest rate at least for non-child-support obligations might be prudent in view of the authority that, if the court does not impose interest on a judgment it renders for non-child-support obligations, it is presumed that the judgment does not earn interest. Aldridge, August 28, 1998, A.G. Opinion #98-0507.
A CHECKLIST OF CHECKLISTS
December 15, 2010 § Leave a comment
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist.
Here are the checklists I’ve posted (you can click on the links to get to them):
Modification of child support.
Periodic and rehabilitative alimony.
Income tax dependency exemption.
Those are all of the checklists of which I am aware. If you know of others, please let me know and I will add them to the list.
I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.
A MILITARY LIFE INSURANCE POTHOLE
December 10, 2010 § 2 Comments
You have tried your divorce case to a conclusion and your client, the wife, is awarded custody and statutory child support. The husband, an active-duty member of the Navy, is ordered to maintain his Serviceman’s Group Life Insurance (SGLI) policy for benefit of the minor child. It would appear that everything is peachy-keen. Your client is on cruise control, right?
Not so fast, my friend. Your client’s limo is headed for a major pothole. Consider the following:
Richard and April Ridgway were divorced in 1977 in the State of Maine. They had three children at the time.
In the divorce judgment, the trial court ordered Richard to maintain his SGLI policy in the face amount of $20,000 with April as beneficiary for benefit of the three minor children.
Richard later married Donna and changed the designation of the beneficiary to provide that the proceeds would be paid as specified “by law,” which under federal law means that it would be paid to his widow, who would be Donna. Richard died and both April and Donna filed claims to the proceeds.
April filed suit in Maine courts seeking imposition of a constructive trust for benefit of her children. Donna joined the suit seeking payment to herself based on the designation of beneficiary by Richard.
The case wended its way to the U.S. Supreme Court, and in Ridgway v. Ridgway, 454 US 46 (1981), that court held that due to the supremacy clause, a state court ruling must yield to federal law that gives a serviceman the unfettered right to designate his own SGLI beneficiary, and for such policies to be exempt from attachment, execution and other process for collection.
What all this means is that the state trial court judge’s rulings vis a vis the SGLI is essentially meaningless.
So what can you do? One solution may be to ask the court to take judicial notice of the Ridgway decision (and provide the judge a copy), and have your client testify that she insists that the husband obtain and maintain a private policy of life insurance with the children as sole named beneficiary. If you put all your client’s eggs in the SGLI basket, she may find it empty when egg-gathering time arrives. And she just might look to you to make things right.
Thanks to attorney Bill Jacob for this. I have not researched this issue for later authority, but Bill tells me it is good law.
RULE 8.05, AMENDED
November 5, 2010 § Leave a comment
The Supreme Court yesterday entered an order amending Uniform Chancery Court Rule 8.05, in part. You can read the amended rule here.
In essence, the amended rule keeps in effect the financial statement with which we are all familiar, and adds a more detailed statement as an option to be used, “By agreement of the parties, or on motion and by order of the Court, or on the Court’s own motion … ”
Check out the more detailed form. There will likely be cases where it will be more suitable for your use than the original form.
CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?
October 20, 2010 § 2 Comments
It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor. Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986).
The rule is not ironclad, however. The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:
… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.” [Emphasis added]
Caveat: The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.
ALSO: § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.
MANAGING CLIENT EXPECTATIONS
October 18, 2010 § 4 Comments
One of the challenges of being a Chancery practitioner is keeping your clients’ expectations realistic. And I’m not talking only about expections regarding outcome. I’m talking expectations about you, your firm, the court and the legal process itself.
The Pincus Family Law firm in Columbia, South Carolina has a page on its web site that may just be a home run in addressing client expectations. You may find something useful here. I’ve copied and pasted the text for you:
CLIENT EXPECTATIONS (REALISTIC OR UNREALISTIC)
ABOUT US:
We do not work on the weekends and do not provide emergency numbers for the weekends. There are times we may look at and answer your email over the weekend, but this is generally the exception and not to be relied upon by you that we are accessible on weekends.
Do not think we are perfect. We make mistakes. We are competent attorneys and paralegals, but we make mistakes. We will correct a mistake if we find it or if you point it out. Please do not yell at us, accuse us of not doing our job, or insult us over a mistake.
We will return phone calls in the order they are received and based on the priority of the situation. If you leave a message, your message will be passed on to the attorney. Calling three or four or multiple times in a day will not get your call answered any faster. Email is the quickest way to get a response from an attorney.
Attorneys work by appointments only. Please do not show up at our offices to speak with an attorney without an appointment.
Please utilize our paralegals to answer your questions and give you status reports. Our paralegals are very experienced and can, most of the time, respond to your request. We bill our paralegal time at less than 50% than what the attorneys charge so take advantage of their experience and knowledge.
ABOUT OTHERS:
You may not get any consideration from your spouse for anything you have done or will do because you are nice. You are encouraged to be nice, be cooperative, but don’t expect to get anything favorable in return for it.
Most of the research you do about your case online or the advice you get from friends will be incorrect or not applicable to your case so you should not compare what is happening on your case to what you find online or what friends or family may tell you. As your attorneys, we are the only reliable source of information regarding the process and status of your case.
The opposing attorney may be very aggravating and frustrating to you because he or she may accuse you of things you have not done, may be litigious (wanting to fight about everything), may drag his or her feet with moving the case forward, or may be non-responsive to requests from this office. It is unrealistic to expect that we can control how an opposing attorney handles his or her file or practices law.
The legal pleadings (Complaint, Answer, Counterclaim, etc.) are legal documents filled with allegations that must be pled (and some that are merely made to posture for a client). Do not expend any emotional energy (get angry or upset) on the text of legal pleadings drafted on your behalf or your spouse’s behalf. It is not worth it.
We cannot control the court’s schedule or docket. The courts schedule cases as they are processed and in line with the thousands of other cases filed. You will not be happy with the time it takes your case to get through the system. There are thousands of family law cases filed in Lexington and Richland counties each year and most contested cases take several months, sometimes more than one year, to finish.
What you can expect during a Trial (Contested Case)
COURT APPEARANCES—Bonnie and Monet generally work files together although one attorney may be your “lead” attorney. Therefore, at court appearances, it may be necessary for one to cover a court appearance for the other. We will try to give you advance notice if your “lead” attorney will not be attending a court appearance, but sometimes the scheduling decision is made at the last minute.
SUBPOENAS—the other party can send a subpoena to any third party that MAY have information about you, your spouse, your business dealings, your employment, your education, your children and the like. Banks, lenders, business partners, educational facilities, stock brokers, teachers, churches, etc. can all be issued subpoenas for any records they may have regarding you. We can do the same. There is very little we can do to stop this so be prepared to deal with the frustration you may experience. If there is a legitimate reason to try and stop the subpoena, which there rarely is, we can file a motion to do so. Unless the information is privileged in some fashion, the third party will have to disclose the information requested.
DEPOSITIONS—the other party can issue a notice of deposition to any third party witness. This means that a third party can be required to give testimony under oath usually in one of our offices. The purpose of depositions is to find out information and to find out ahead of time what a person may testify to in court. You and your spouse could each be deposed for the same reason. We can issue notices of depositions as well. A fact witness is entitled to a fee of $25 to appear and professionals (doctors, psychiatrists, etc) are entitled to have their time paid for to appear (by the party that deposes them). A court reporter must be present and is paid to attend as well. The attorneys are paid to attend as well. Depositions are costly.
NOTHING HAPPENS QUICKLY—generally, contested cases take several months to move through the court system. A complicated custody or equitable division case can take one, sometimes two, years to complete. The courts are always full and there are several steps that have to be taken before a trial will be set, for instance, mediation, a guardian ad litem investigation, discovery, depositions, pre-trial hearings and motion hearings. It takes a long time to move a contested case through the court system and this will likely be your number one frustration. We will do all we can to move the case forward, but you will still be frustrated with the time it takes to finish a case. Please prepare yourself ahead of time and please do not take this frustration out on us or my staff. We are doing everything we can to move the case along.
DISCOVERY—this is the “formal” name for exchanging information through subpoenas, written questions (interrogatories) and request for documents. Discovery has its own set of rules and deadlines which we will inform you about during the process.
CHILDREN—Marital problems are terribly difficult for children. Do your children a favor and do not “poison” the minds of your children against their other parent. Do not speak about their parent’s faults to children. Do not complain to your children about how much child support you are paying or how little child support you are receiving. Visitation with parents is NOT a bargaining chip or game. Each parent is entitled to visitation privileges with their children. Children are not your property. They are not your pawns. They are absolutely not your messenger. They are innocent individual human beings that need both of their parents, not just the “best” parent.
ADULTERY—Do not become romantically involved with someone other than your spouse if you are still legally married (even if you are separated)! During marital litigation you should behave as though a detective and camera crew were following you and recording you and your conversations at all times.
CHILD CUSTODY CASES—You should behave as though a detective and camera crew were following you and recording you and your conversations at all times. Do not do anything that you would not perfectly happy with a Family Court Judge seeing, hearing or finding out about when the Judge is deciding your custody case.
ATTORNEY’S FEES—in a child custody case, you could spend the price of a car in attorney’s fees. Most contested custody cases run upwards of 10-20 thousand in fees paid out over the course of the case. This usually includes attorney’s fees, guardian fees, psychological fees and expert witness fees. In a complicated equitable division case, the cost can be significant and sometimes more than a custody case depending on how much property there is to value and the difficulty of valuing assets. Even a very small business can run $2,500-$5,000 to value if there is a dispute as to the value. A small equitable division case (which means there is a home, retirement, credit card debt, and other property or debts to divide) can run $5,000-6,000 in attorney’s fees over the life of the case. The most expensive part of the case is going to be trial preparation and attendance costs. That is why a trial retainer (an “up front” payment) is required in all contested cases. You will see this in your fee agreement and we reiterate here that a trial retainer is required for continued representation.
Thanks to the LegalEthicsForum.com for this.
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.
THE PARENT TRAP
September 28, 2010 § 5 Comments
We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:
“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]
Fast forward to 2009.
In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.
Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.
Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.
The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.
On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.
The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.
Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.
The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.
Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.
If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.
MORE ANECDOTAL EVIDENCE ON PRO SE PROBLEMS
September 15, 2010 § Leave a comment
In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.
Case 1. A fairly standard no-fault divorce with no children, no joint debts, no joint property. Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity. The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them. When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement. The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law. I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true: (1) Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.
Case 2. Property settlement agreement with no provision for custody at all, although a child is identified. When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed. When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience. I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”
Case 3. A well-dressed young couple approached the bench. Dad is holding a 2-year-old child, whom he is feeding with a baby bottle. I find three shortcomings in the agreement. First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority? Second, the agreement states that “both parties shall claim the children as tax exemptions.” How will that work? Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow? Sounds like another trip back to court to me. And third, there is no provision for child support for the two children, ages 2 and 4. When I ask mom about it, she says “I am not asking for any support.” Well, I can’t approve it no matter what you want because I have to watch out for the children. The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.
Neither of the cases with children had UCCJEA affidavits.
I previously posted on the problems of pro se litigation here.
PROPOSED CHANGES TO RULE 8.05
August 24, 2010 § Leave a comment
The Supreme Court has posted proposed revisions to Uniform Chancery Court Rule 8.05 and your comments are invited.
There is, arguably, no Uniform Chancery Court Rule that affects Chancery practitioners more strongly than 8.05. If you have a position on this proposal, you need to make it known before final action. The deadline is September 20, 2010.
The Better Chancery Practice Blog 