Another HCIT Spousal Domestic Abuse Case

March 25, 2020 § Leave a comment

Yesterday we visited the 2017 amendment to MCA 93-5-1 that added “spousal domestic abuse” as a form of HCIT. In that case the chancellor had denied a divorce, finding that the proof was not sufficient.

In another case dealing with the 2017 amendment, the COA affirmed a chancellor’s finding that the evidence did support award if a divorce to the injured wife. The decision is in the case of Williams v. Williams, decided March 17, 2020. You can read Judge McCarty’s opinion for yourself.

I agree that the chancellor’s decision was supported by substantial evidence. I doubt any chancellor would have found differently. Most importantly, the chancellor specifically found the plaintiff-wife’s evidence credible. Remember, and this is vital, that the statute requires credible evidence. It’s crucial for the chancellor to make a finding of credibility so as to avoid the corroboration requirement. If your chancellor renders an opinion in a case with no corroboration, and has not made such a finding, file a timely R59 motion and ask that she do so.

Overcoming the Notarial Presumption

March 23, 2020 § 1 Comment

Michael Matthews’s name, along with his wife’s, appeared on notes and deeds of trust against the family home. The loans purported to provide cash flow for Michael’s petroleum business.

But Michael claimed that he did not know anything about the notes or deeds of trust, even though his notarized signatures appeared on them. He denied that he had ever signed any of them, and that they were forgeries. The bank filed suit for declaratory judgment that the documents did bear his signature.

Following a trial, the chancellor ruled against Michael, and he appealed.

On August 27, 2019, the COA affirmed in Matthews v. Whitney Bank, et al. Judge Jack Wilson wrote the court’s opinion:

¶22. “When a party challenges the validity of a properly-acknowledged deed, that party must overcome several presumptions favoring the legitimacy of the document. The first presumption provides that, where a deed is properly acknowledged, the instrument is presumed to be authentic because the certificate of acknowledgment infers verity and presumptively states the truth.” Mapp v. Chambers, 25 So. 3d 1096, 1101 (¶22) (Miss. Ct. App. 2010) (citation omitted). As our Supreme Court has stated, “[i]t is presumed that the [notary] making a certificate of acknowledgment has certified to the truth and has not been guilty of a wrongful or criminal action. The presumption has been stated to be one of the strongest in the law.” Sapukotana v. Sapukotana, 179 So. 3d 1105, 1114 (¶26) (Miss. 2015) (quoting Nichols v. Sauls’ Estate, 250 Miss. 307, 165 So. 2d 352, 356 (1964)) (emphasis added). “This presumption can be overcome only by clear and convincing evidence.” Mapp, 25 So. 3d at 1101 (¶22). In this case, the chancellor found that the 2008 deed of trust was properly acknowledged and that Michael did not overcome the notarial presumption of validity by clear and convincing evidence.

¶23. Michael argues that the chancellor should not have applied the presumption of validity because “both notaries abandoned their acknowledgments and admitted their departure from proper notarial procedure.” However, Michael’s claim that Deborah Estes “abandoned” her acknowledgment of the 2008 deed of trust is not supported by the record, and we find no error in the chancellor’s application of the notarial presumption.

¶24. Deborah Estes notarized the 2008 deed of trust. She testified at trial that she did not have a specific recollection of notarizing the deed, but she had no reason to believe that she would have departed from her standard practices. In other words, she believed that Michael signed the document in her presence. Estes testified that people sometimes asked her to sign documents that they had already signed. Estes testified that her usual practice would be to insist that the principal sign the document again in her presence. On cross-examination, Estes seemed to concede that she might have, at some point in the past, notarized a document that was not signed in her presence—but only if the principal personally presented the document to her. Estes went on to testify that she would not notarize a document if it was signed outside of her presence by someone other than the person who presented it to her. Estes testified that she could not recall ever notarizing a single document under those circumstances.

¶25. Michael claims that his signature was forged on the 2008 deed of trust and that he was not present when Estes notarized the document. Estes, however, testified that it would have been contrary to her standard practices as a notary to notarize a document under such circumstances. By the time of trial, nine years after the fact, Estes did not have a specific recollection of notarizing the deed of trust. But her testimony as to her standard practices as a notary is competent evidence that she acted in conformity with those practices on this particular occasion. M.R.E. 406 (“Evidence of a person’s habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit . . . . The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”). Estes has been a notary since 2000, and she testified that it has always been her practice to require the principal’s physical presence. Her testimony was sufficient “to base an inference of systematic conduct and to establish [her] regular response to a repeated specific situation.” Hooker v. State, 716 So. 2d 1104, 1111 (¶24) (Miss. 1998) (applying M.R.E. 406) (quotation marks omitted). The chancellor did not clearly err by finding that Estes notarized the document and, therefore, that the notarial presumption of validity applied. See Wallace v. State, 264 So. 3d 1, 6-7 (¶¶22-25) (Miss. Ct. App. 2018) (Wilson, J., concurring in result only) (concluding that an attorney’s testimony that he always communicated plea offers to his clients was sufficient to support the trial court’s finding that he communicated a plea offer on a particular occasion).

¶26. Estes did admit that she failed to record her notarization of the deed of trust in her notarial register. Her failure to do so was contrary to Mississippi Code Annotated section 25-33-5, which provides that “[e]very notary shall keep a fair register of all his official acts[.]” Miss. Code Ann. § 25-33-5 (Rev. 2018). However, a mere “failure to strictly follow form” does not render an acknowledgment invalid when, as in this case, “the acknowledgment contains all the necessary information.” Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 931 (¶21) (Miss. 2003). The statute requiring the notary to keep a register “does not indicate that a notarization not properly recorded in the notary’s log book is void. Nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure.” In re Jefferson, Case No. 11-51958 (Adv. No. 11-05059), 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (citing Estate of Dykes, supra). The failure to maintain such a register could result in suspension of the notary’s commission. See Miss. Admin. Code § 1-5-7.2 (“The Secretary of State may suspend a notary commission for actions contrary to the Mississippi Notary Law . . . .”). However, it does not invalidate an otherwise proper acknowledgment. In this case, there was sufficient evidence for the chancellor to find that Estes properly acknowledged the deed of trust. Therefore, the chancellor did not clearly err by applying the notarial presumption of validity.

Some thoughts …

  • Does your office staff follow proper recording procedures? Or, let me ask it this way: is your office staff’s notary record sufficient to get you out of a bind if there is a dispute over what took place in your office? Is the recordation sufficient to keep you from having to pay a settlement or judgment? Isn’t it your responsibility to train your staff or see to it that they are trained?
  • It’s true that failure to record properly does not necessarily render the acknowledgment void, but why open yourself up to the controversy?
  • This case illustrates how, in a swearing contest, a presumption can — and usually will — decide the case.
  • MRE 406 habit evidence may not be the strongest evidence, but when it comes to instruments such as deeds, wills, and the like, often it’s the best available. I’ve seen two cases, both will contests and one a jury trial, in which habit evidence carried the day. It takes strong evidence to overcome credible habit testimony.

Forgery and its Proof

March 17, 2020 § Leave a comment

Yesterday we visited the appeal of Michael Matthews from a chancellor’s adverse decision that he had not overcome the notarial presumption in his case where he claimed that he had not executed various notes and deeds of trust.

Another claim Michael made unsuccessfully at trial was that the signatures were forgeries. When the chancellor ruled against him, Michael appealed raising that issue also.

The COA affirmed on August 27, 2019, in Matthews v. Whitney Bank, et al. Again, Judge Jack Wilson wrote the 9-0 opinion, Tindell not participating:

27. Michael also argues that the chancellor clearly erred by finding that the deed of trust and loan documents were not forged. Michael argues that the chancellor ignored “obvious” differences between the allegedly forged signatures and his true signature. He also argues
that his testimony was corroborated by Beth’s testimony and assertion of her Fifth Amendment privilege against self-incrimination.

¶28. In his opinion, the chancellor found:

The documentary evidence introduced at trial purportedly signed by Mr. Matthews each contains a similar signature. Mr. Matthews introduced exemplars of what he purports to be his genuine signature. While there was no lay witness or expert witness offered by either side concerning the bank signatures, none was required. This Court finds it could determine that the
contested signatures were forged if the purported genuine signatures and the purported forged signatures were obviously different. The Court finds . . . that, while the signatures are not exactly similar, they are not so dissimilar as to make the purported forged signatures obvious forgeries.

The chancellor also noted that Michael testified that he did not sign the documents, while Beth “refused to testify” on the subject.

¶29. To overcome the notarial presumption, it was Michael’s burden to prove forgery by clear and convincing evidence. Mapp [v. Chambers], 25 So. 3d [1096,] at 1101 (¶22) [(Miss. Ct. App. 2010)]. “Clear and convincing evidence is such a high evidentiary standard that it surpasses even the standard of overwhelming weight of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016) (quotation marks omitted). As an appellate court, we must “bear in mind” this high standard in determining whether there is sufficient evidence to support the chancellor’s findings. Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Id. Stated differently, the quantum of evidence necessary to affirm the chancellor’s findings “is less than it would be if the preponderance of the evidence rule applied.” Id.

¶30. The chancellor did not clearly err by finding that Michael failed to meet his burden of proof. Although Michael denied signing the document, the Mississippi Supreme Court “has long been committed to the doctrine that the testimony of parties in interest is not
sufficient to overturn such a certificate.” Bowers v. Fields, 148 So. 358, 358 (Miss 1933) (citing Mallory v. Walton, 119 Miss. 396, 81 So. 113, 114 (Miss. 1919)).

¶31. Moreover, the chancellor was not required to infer forgery from Beth’s assertion of her privilege against self-incrimination. In a civil case, an adverse inference may be drawn from a defendant’s assertion of the privilege—i.e., it is “permissible” for the fact-finder to draw such an inference. Morgan v. U.S. Fid. &Guar. Co., 222 So. 2d 820, 828 (Miss. 1969). However, the fact-finder is not required to do so. In addition, the rule permitting an adverse inference “has only been applied in Mississippi to the actual parties to a civil action.” Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004). In this case, Beth settled and consented to the entry of judgment against her prior to trial. She was not a party at trial. Finally, the chancellor could have been persuaded that an adverse inference was not warranted on the particular facts of this case. Beth and Michael are still married, and Michael is seeking to prevent foreclosure on the marital home. Under these circumstances, a plausible inference is that Beth thought that she could help Michael’s case and save their home by “pleading the Fifth.” In any event, it is sufficient to say that the chancellor was not required to draw any particular inference from Beth’s assertion of her privilege. The chancellor did not clearly err by declining to infer forgery.

¶32. Michael also argues that the chancellor erred by not appointing a handwriting expert to opine on the authenticity of the signatures. The possibility of a court-appointed expert was discussed briefly at a pretrial hearing; however, Michael took no further action on the issue. He did not file any motion requesting a court-appointed expert and also failed to designate an expert of his own. Indeed, in his answer and again in his opening statement at trial, Michael specifically argued to the court that a handwriting expert was unnecessary. Michael waived this issue by failing to raise it in the trial court. City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (holding that “it is not sufficient to simply ‘discuss’ or mention an issue at a hearing”—the issue is waived unless it is specifically “presented to [the trial judge] for decision”).

¶33. Moreover, the Supreme Court and this Court have stated that “[t]he appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert’s testimony would be
helpful to the trier of facts.” Heigle v. Heigle, 771 So. 2d 341, 349 (¶29) (Miss. 2000) (quoting Trilogy Commc’ns Inc. v. Thomas Truck Lease Inc., 733 So. 2d 313, 317 (¶10) (Miss. Ct. App. 1998)). We review a trial judge’s decision to appoint or not appoint an expert for abuse of discretion. Id. at 749 (¶¶28-30); Trilogy Commc’ns, 733 So. 2d at 317 (¶10). We cannot say that the chancellor abused his discretion by not appointing an expert sua sponte.

¶34. There is sufficient evidence in the record to support the chancellor’s finding that Michael failed to meet his burden of proving forgery by clear and convincing evidence. Estes’s testimony was competent evidence that Michael did, in fact, sign the 2008 deed of
trust. In addition, there was other evidence from which the chancellor could have inferred that Michael was aware of the loans from Whitney Bank and that Michael’s denials were not credible. For example, the Matthewses’ tax returns, which Michael admittedly signed,
showed mortgage interest deductions and attached mortgage interest statements from Whitney Bank. Sidney Rice also testified that he confirmed with Michael that he had signed the 2007 deed of trust. Although Rice’s notarization of the 2007 deed of trust was deficient
(see supra note 2), Rice’s testimony nonetheless rebuts Michael’s claims that he knew nothing about any of the loans at issue. Based on the totality of the evidence, the chancellor could have determined that Michael’s testimony was not credible. At a minimum, the chancellor could have determined that Michael’s testimony was insufficient to meet his high burden of proof.

A few cogitations:

  • The testimony of the parties alone is not sufficient to overcome a notarial certificate. In fact, relying on your client’s testimony alone is an iffy way to establish many facts or support many claims in chancery. For instance, your client testifies that he made every payment on his wife’s car from his own, personal checking account. The judge wonders where are the checks? Or the wife testifies that the police were called to the home and they saw her bruises, which the husband denies. Where is the police report? Or why was the officer not called? These are thoughts that most chancellors have as the witnesses drone on.
  • Did you know that the Fifth Amendment civil adverse inference is not mandatory? And that it is not applied against non-parties?
  • And if you take nothing else away from this case, the point in ¶33 that you must bring a matter before the judge for decision if you want to raise the issue on appeal is golden. If Michael really wanted the judge to appoint an expert, he needed to file a motion and have the judge rule on it. Merely mentioning it in a bench conference or in chambers isn’t good enough.

Some Things are Better Left Said

March 9, 2020 § 1 Comment

There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.

In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …

When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:

Q. If you could state which of those items you would like to have, what would they be?

A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.

Q. Slow down. Your motorcycle?

A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.

Q. And that is all you want the judge to award you in the marital estate?

A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]

Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).

The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.

Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.

Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.

An Assertion is not Conclusive Proof

February 25, 2020 § Leave a comment

Raymond Reynolds appealed from the chancellor’s ruling on equitable distribution in his divorce case with his wife, Kay. Raymond complained on appeal that the chancellor had erred in not considering Kay’s withdrawal of $6,000 from their joint account counter to the temporary order’s injunction.

The COA affirmed 10-0 in Reynolds v. Reynolds, decided December 17, 2019. Here’s how Judge Tindell’s opinion dealt with Raymond’s claim:

¶19. Prior to distribution, the chancellor entered a temporary order on May 20, 2014, which enjoined the parties from liquidating, transferring, or changing beneficiaries for any marital assets. Raymond claims that Kay transferred approximately $6,000 from the couple’s joint checking account after this order was entered. Raymond now argues that the chancellor abused his discretion by failing to consider this transfer in his Ferguson analysis before distributing the couple’s marital assets.

¶20. The second Ferguson factor requires the chancellor to consider any dissipation of the marital assets, or “the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.” Ferguson, 639 So. 2d at 928. While Mississippi has no specific test for discerning the dissipation of marital assets, “we find it reasonable when considering if marital assets have been dissipated to look to whether the assets in question were actually wasted or misused.” Smith v. Smith, 90 So. 3d 1259, 1268 (¶37) (Miss. Ct. App. 2011).

¶21. In his final judgment, the chancellor stated that he did not find any unreasonable dissipation of marital assets by either party prior to the injunction of the temporary order or prior to trial. Raymond disagrees with this finding, arguing that he provided the chancellor with undisputed testimony that Kay took approximately $6,000 from the parties’ joint checking account in violation of the temporary order and that the chancellor failed to include this in his Ferguson analysis. However, Kay disputed Raymond’s testimony herself by testifying that Raymond actually withdrew $7,000 from the joint checking account, and she did not. She further testified that when she withdrew from the account, there was only approximately $1,000 left in the account.

¶22. Also, as Kay asserts in her brief, no evidence exists in the record establishing if or exactly when any transfers from the joint checking account would have occurred. Raymond provided no documentation of the alleged transfer to the chancellor prior to or during the trial. The only evidence Raymond used to establish this claim is his own testimony and nothing more. As such, the chancellor had no substantial evidence of Kay’s alleged transfer before him to incorporate into his Ferguson analysis. We therefore find Raymond’s argument to be without merit and find that the chancellor was well within his discretion in determining that no dissipation of assets occurred.

Every chancellor can recount from experience many times when the only evidence on a particular point is one party’s assertion opposed by the other party’s assertion, both unsupported by any other evidence. In that situation the lawyers have left it up to the judge to conclude either that (1) both are credible and the conflict simply can not be resolved, or (2) one is credible and the other is not, and the court goes with the credible one.

When I am presented with a similar situation I wonder why neither party offered the bank statements into evidence, or a series of corroborating text messages, or an admission, or something, anything, to break the tie. Most lawyers do enough discovery to foresee the conflicted positions and to anticipate a way around it. I’m not trying to criticize the lawyering in this case because I don’t know everything that transpired. I am only using this case to illustrate for you what can happen when the testimony is conflicting on a point that proves to be important in your case.

Substantial Evidence in the Record

December 17, 2019 § 2 Comments

“So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.”  Hammers v. Hammers, 890 So. 2d 944, 950 (Miss. Ct. App. 2004).

The COA, in the case of Butler v. Mozingo, decided November 12, 2019, reversed and rendered a chancellor’s decision that a material change in the custodial parent’s home had adversely affected the child. The COA held that there was not substantial evidence in the record to support the chancellor’s ruling. You can read the opinion for yourself. There is nothing particularly noteworthy about it, other than to the parties.

An understandable first reaction might be to conclude that the chancellor simply screwed up. But consider this: what if the chancellor felt strongly that the best interest of the child demanded a change in custody, but the lawyer failed to get substantial evidence of adverse effect into the record, and the chancellor went ahead and did what she believed was best for the child, substantial evidence or not. I’m not saying that is what happened here; in fact, the attorneys involved are all competent and experienced. What I am saying is that it’s on the attorneys to give the judge the proof she needs to support her findings.

Several years ago a chancellor, now retired, told me of a custody modification case in which the defendant-mother’s inexperienced attorney faced off against an experienced, highly competent family lawyer. The judge told me that he had misgivings about the plaintiff’s case, and he felt that the plaintiff’s advantage was his skillful lawyer, not his facts. The inexperienced lawyer did not even put on proof of Albright factors, perhaps because he did not even know about them. The trial had not been concluded when the chancellor told me about it, so I can’t tell you how he handled it, but that sort of situation creates a conundrum for the trial judge. On the one hand, the judge should not aid or assist either side in a contested trial. On the other hand, though, the best interest of the child is the polestar consideration. Should the judge call or examine witnesses per MRE 614 to flesh out the record? Should the judge stop the trial and appoint a GAL? Or should the judge let things play out and then rule as the judge did in Butler, above?

That’s something for you to ponder. If you want the judge to rule in your favor, you must give the judge all the ingredients she needs to do so. If you don’t your case will fail, either at trial or on appeal.

It’s not in the Record Until You Get it into Evidence

September 3, 2019 § 4 Comments

It is elementary that until you get something into evidence it is not part of the record, and it cannot be considered by the court in making a decision.

Judge Westbrooks of the COA specially concurred in the case of Almasri v. Miss. Dept of Revenue, decided August 6, 2019, to remind attorneys and judges of that very point:

¶14. I agree with the majority’s opinion and write separately only to emphasize the importance of following procedures necessary to ensure that pertinent statements and representations are eligible for consideration as evidence and thereby designated as a part of the record.

¶15. The majority opinion notes that during the hearing on the MDOR’s motion to dismiss, counsel for Almasri indicated his client was unable to pay the required bond or assessment under protest. Though officers of the court, lone “statements by attorneys are not evidence.” Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1092 (¶27) (Miss. Ct. App. 2012) (Court held circuit court erred by allowing expert witness’s baseless testimony; expert’s assertion was partially supported by lone attorney statement indicating plaintiff’s sobriety). As noted, there was no affidavit or sworn testimony supporting the attorney’s representation to the court; the lack thereof precluded Almasri’s alleged inability to pay from evidence in the chancery court, and consequently, the record this court considered on appeal.

¶16. To establish evidentiary value, it is imperative that attorneys take the opportunity to (1) reduce the statement(s) to written form by sworn affidavit or (2) provide sworn testimony to affirm any potentially relevant assertions. In instances where assertions, such as the one Almasri’s attorney made, may impact the outcome of a proceeding or appeal, the statements need to be a part of admitted (or proffered) evidence in the record. Lone statements or arguments of counsel simply are not enough.

To that very apt statement I would add that pleadings and motions are not evidence until they are admitted into evidence by the court. The same goes for exhibits to pleadings and motions. Even affidavits are not in the record until they are admitted into evidence.

I have had attorneys, while questioning a witness, pause and look over at me: “She is referring to Exhibit 2 to the complaint, your honor.” All I can do is inwardly wince.

Medical Bills and Minor’s Settlements

June 4, 2019 § Leave a comment

Stacy, age 8, is injured in an automobile accident. Her medical bills are $17,000 for the hospital, $800 for ambulance and EMT, and $1,200 for miscellaneous doctors and other medical. Total is $19,000.

Whom should the judge order to pay the bills? Stacy? Her parents? Leave them unpaid? The questions seem almost absurd. Sould an 8-year-old child be expected to pay her own medical bills? Aren’t medical bills the kind of thing that parents provide for their children? But what if the parents don’t have the ability to pay? And if we leave the bills unpaid, what impact will that have on the ability of the parents to access medical care for Stacy in the future?

All of those questions are what the judge needs answered in the course of a minor’s settlement. But often those kinds of questions are left unasked. Worse … when I try to ask the petitioners (usually parents) why they want the bills to be paid out of the proceeds of a minor’s settlement, they have no clue about what I am asking. It’s obvious that the issue has never been discussed between attorney and client.

It’s been the expectation for a long time that medical bills for the child will be paid out of the child’s settlement proceeds. But that came into question after Gulfport Memorial Hospital v. Proulx, which you can read about at this link, which held essentially that medical providers do not have a statutory lien against settlement proceeds, and, therefore, they do not have the right to collect from them.

So when you ask the court to pay medical bills out of the minor’s settlement proceeds, you are asking the court to order the minor (or her guardian) to pay her own expenses.  To accomplish that you have to put some evidence in the record that it is in the child’s best interest to order that. My suggestion is that you offer proof that: (1) the parents do not have the financial ability to pay; (2) ordering the parents to pay will impose undue financial hardship on the family; (3) the bills can not be left unpaid because those medical providers may refuse service in the future because of the unpaid balances.

I usually ask questions to elicit that information if the lawyers do not because I want justification in the record. Instead, what I get is blank stares. It doesn’t have to be that way. Prepare your witness. Be ready to put justification in the record for ordering the child to pay her own expenses.

 

Rule 8.05 and Intentional Infliction of Emotional Distress

June 3, 2019 § 1 Comment

UCCR 8.05 should make everyone’s job in chancery court a lot easier. But lawyers, in their eternal ingenuity for contriving ways to complicate nearly all of creation, turn them into an implement of torture that they inflict on the court.

Chancellor Haydn Roberts of Rankin County presented this material at the Bar’s Family Law Section Hot Tips Seminar recently:

How to Confuse, Frustrate and/or Anger a Judge with an 8.05

Seriously, it happens often!

Don’t Prepare an an 8.05

Rule 8.05 states: “Unless excused by Order of the Court for good cause shown, each party in every domestic case involving economic issues and/or property division  shall provide the opposite party or counsel, if known, an 8.05 in compliance with subparts (a) and (b) of the rule

Speights v. Speights, 2016-CA-01691-COA

Prepare your client’s 8.05 in the lobby, hallway or parking lot immediately preceding trial

Most of us Judges aren’t stupid and can tell when an 8.05 is prepared in this fashion

Common errors when this happens include unsigned 8.05s, incomplete property asset listing, incomplete debt listing and amounts, confusing expenses, pages
missing,

AND MY FAVORITE – misspelled children’s names and inaccurate birthdays

Don’t Bring Copies

You need a minimum of 5 copies (6 with a GAL)

Your copy

Counsel opposite

The Court

Evidence

Copy for the witness

GAL copy

Deflate Income

Gross income – “total income from all sources before deductions, exemptions or other tax deductions

Includes wages, investment income, gifts from friends, rentals, social security, pension, child support, etc…

Overtime hours count

Be careful as the Judge may ask for a recent loan application from your client, wherein he/she must report his/her income

See, 2017-CA-1476 SCT; Tracy Marie Miles Williams v. Brent Reid Williams; affirmed 01/17/19; and Trim v. Trim 33 So.3d 471 (Miss. 2010)

Inflate Expenses

If your client’s expenses far exceed his/her income, and he/she doesn’t have much debt…SOMETHING ISN’T CORRECT

Single person in an apartment shouldn’t incur $1200/month in food and household items BUT single person raising multiple children will incur at least that much

Most client’s don’t have much “household maintenance”

Pet expenses, yard expenses, miscellaneous, entertainment should be ACTUAL and know what those items entail

Double-dip Expenses

Some insurance is listed as a deduction

Don’t use health insurance as a mandatory deduction and then also an “insurance expense”

Same with life insurance, property insurance, rental insurance, automobile insurance, personal property insurance, umbrellas

Intermingle Expenses

Use columns

Expenses could be current, past, future

Expenses could be single, family/household, and/or spouse + child(ren)

Keep it realistic even if speculative

Fail to Update

Time Lapse between temporary hearing and final may mean different information

When you update an 8.05 tell the Court

Witness/Client should know the differences and WHY there are differences

If Client has new employment, attach new pay stub

Mislabel property

Make sure personal property matches

“Grandma’s antique roll top desk” on wife’s 8.05 is the same as “desk in bedroom” on husband’s 8.05

2012 Accord on wife’s 8.05 is the Blue Honda on husband’s 8.05

Watch the models, years, makes, account numbers, bank names, creditors’ names

Mark property value/equity as “unknown”

If you list an asset or debt as “unknown” and the opposite party has a value, the Judge will likely use that value

Be prepared to give a value even if it’s an educated guess

Be prepared to discuss the other party’s value(s) and why it/they are wrong

REMEMBER – asset value as to “stuff” is garage sale value, not brand spanking new

Who Needs Statements? [i.e., Documentation]

Debts should be corroborated by statements

Helps if they are at or near date of demarcation you are requesting

Retirement accounts

Bank accounts with substantial balances

Other accounts

Church Donations

This not a way to equalize income to expenses

If client makes church donations during a court matter, they should KNOW the following:

Church’s name
Church’s location
What service time they attend
Preacher’s name

 

Some previous posts on how to improve your 8.05’s are here, here, and here. Or type “8.05” in the search box to access a plethora of posts on financial proof and 8.05’s.

Worth a Thousand Words

May 6, 2019 § Leave a comment

Chris Vandenbrook wanted photographs of the condition of the marital home to be admitted into evidence in his divorce trial, but the chancellor refused unless he could pinpoint the exact date when they were taken. Chris appealed.

His case highlights two important evidentiary considerations: First, that the foundation for admission of a photograph is simply evidence sufficient to to support a finding that it is a true depiction of what the offeror purports it to be; and Second, that you are not likely to get a chancellor reversed based on her evidentiary rulings.

Here is how Judge Carlton of the COA spelled it out in Vandenbrook v. Vandenbrook, decided March 26, 2019:

¶40. Next, Chris contends that the chancellor erred in not admitting photographs of the condition of the marital home into evidence. The chancellor refused to allow the
photographs into evidence unless Chris could state the precise date the photographs had been taken. Chris had previously testified that he began taking the photographs at the time Emma filed for divorce, but he did not have his cell phone with the photographs present, and the chancellor did allow him more time to retrieve it. He contends that he satisfied the requirements of Mississippi Rules of Evidence 1001(d) and 901(b)(l) and therefore the chancellor should have allowed the photographs into evidence.

¶41. A chancellor’s decision not to admit evidence will not be overturned unless the chancellor abused her discretion to such an extent that a party has been prejudiced. In re Estate of Laughter, 23 So. 3d 1055, 1064 (¶42) (Miss. 2009). By asking Chris to authenticate the photographs by verifying the dates they were taken, the chancellor was merely requiring that Chris produce sufficient evidence to support a finding that the photographs were what he claimed they were.

¶42. We find error, albeit harmless error, in the chancellor not admitting the photographs into evidence. Mississippi Rule of Evidence 901(a) states: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Chris testified that he started taking the photographs from the time that Emma filed for divorce, and he testified that he took all the pictures himself. He further testified that they depict the condition of the marital home during a time that Emma was living there. We find that his testimony was sufficient to satisfy Rule 901(a) and that the court should have admitted the photographs. Even so, “[i]n order for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Bower v. Bower, 758 So. 2d 405, 415 (¶46) (Miss. 2000). Although we find error, we deem it to be harmless. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶14) (Miss. 2001). With this precedent in mind, we do not find that the exclusion of the photographs would have affected the chancellor’s custody determination.

I agree with Judge Carlton that the chancellor was saying, in effect, that she was not satisfied with the foundation that Chris had laid. She may have questioned whether the photos really did show the condition at the time that Chris was claiming, and she wanted more detailed proof. Or, it could be that a difference of a day or two when the pictures were taken could have made a difference. We don’t know from the record.

A previous post about how to get a photograph into evidence is at this link.

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