MIXED ATTORNEY’S FEES
May 21, 2013 § 1 Comment
The COA decision in Tidmore v. Tidmore, decided May 14, 2013, underscores the mixed attorney’s fee, a fairly common phenomenon in chancery court. It happens when one brings an action combining two or more different causes of action. It could be a contempt and modification, or a divorce with an allegation of contempt of the temporary order, or a suit seeking injunctive relief and sanctions.
In reversing the chancellor’s award of attorney’s fees assessed against Nicole Tidmore in favor of her ex-husband, Michael, the COA, by Judge Irving, said this:
¶10. Nicole argues that the chancellor erred in awarding attorney’s fees to Michael since some of the attorney’s fees were incurred in pursuing a modification of custody. We note that “attorney’s fees are not normally awarded in child custody modification actions.” Mixon v. Sharp, 853 So. 2d 834, 841 (¶32) (Miss. Ct. App. 2003). However, it is well established that “[a] chancellor may award attorney’s fees as the result of a contempt action” in a domestic-relations case. Id. “One of the purposes for awarding attorney fees [in a contempt action] is to compensate the prevailing party for losses sustained by reason of the defendant’s noncompliance.” Durr v. Durr, 912 So. 2d 1033, 1040 (¶25) (Miss. Ct. App. 2005). Thus, “[n]o showing as to the McKee factors is required” where there is a finding of contempt. Patterson v. Patterson, 20 So. 3d 65, 73 (¶26) (Miss. Ct. App. 2009).
¶11. Additionally, Mississippi Code Annotated section 93-5-23 (Supp. 2012) requires the chancellor to impose attorney’s fees for unsubstantiated allegations of abuse:
If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.
(Emphasis added).
¶12. In this case, the chancellor ordered Nicole to pay Michael’s attorney’s fees and the GAL fees as follows:
With regard to [Michael’s] claims for attorney’s fees, the [c]ourt finds that the allegations made by [Nicole] are without foundation and furthermore that she was found in contempt . . . . As such, all the [GAL] fees are hereby [assessed] to [Nicole]. [Nicole] shall pay the [GAL] her remaining fees in the amount of $1,200.00 along with reimbursing [Michael] the [GAL] fees he initially paid in the amount of $1,500.00 within sixty (60) days of September 26, 2011.
After examining the [McKee factors], the [c]ourt finds that [Michael] is entitled to attorney’s fees in the amount of $8,076.01[,] which the [c]ourt finds were reasonable and necessary in prosecuting the contempt case against [Nicole], and further in defending the unsubstantiated allegations of abuse and/or neglect[,] and a judgment is hereby entered for the same. As such[,] a total judgment is hereby entered against [Nicole] in the amount of $9,733.91 in favor of [Michael], which shall be paid within sixty (60) days of September 26, 2011[,] along with the remaining $1,200.00 in [GAL] fees[,] which shall be paid directly to the [GAL] within sixty (60) days of September 26, 2011[.]
¶13. We cannot say that the chancellor abused his discretion in awarding attorney’s fees to Michael for his successful prosecution of the contempt charges against Nicole or for his defense against the baseless allegations of abuse. We also find that the chancellor did not abuse his discretion in ordering Nicole to pay the GAL fees. The chancellor found Nicole in contempt for claiming the children as dependents on her 2008 tax return and for withholding one of the children from Michael on one occasion. The chancellor did not find Michael in contempt for any of the claims asserted by Nicole. Additionally, the chancellor determined that Nicole’s allegations of abuse against Michael were unsubstantiated. The chancellor’s order was clear that the fees were awarded because of the unsubstantiated abuse allegations and because of Nicole’s contemptuous conduct.
¶14. While Michael is certainly entitled to an award of attorney’s fees for the contempt and for his defense against the abuse allegations, it is not clear that the total amount of $8,076.11 is only for the contempt and defense against the abuse allegations. In fact, an exhibit shows that at least part of the fees awarded were for the modification-of-child-custody proceedings. As such, the court erred in awarding the full amount of the attorney’s bill. Although there may be difficulty in allocating the attorney’s fees, the chancellor should nonetheless make that determination. Therefore, the amount of the award of attorney’s fees is reversed and this issue is remanded to the chancellor for a determination of the amount of attorney’s fees that should be awarded to Michael for the contempt proceedings and defense against the baseless abuse allegations.
So another attorney’s fee award bites the dust for lack of an essential finding. It’s not clear from the opinion whether the chancellor had all the information he needed to make the allocation of fees as lucid as it could or should have been.
Remember to give the judge all the essential information he or she needs to make a decision that would stand up if there is an appeal. All the judge needed here was time records or testimony to show how the hours devoted to the case by the attorney were spent as to each issue. There is no one who knows that better than the attorney who did the work. Naturally, there will be some judgment calls as to how to categorize various activities, but that is what cross examination is for, isn’t it?
While we’re on the issue of attorney’s fees, the COA touched on Michael’s request for an appellate attorney’s fee:
¶15. Michael also asks this court to order Nicole to pay his attorney’s fees on appeal. “When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded [by the chancellor].” Carroll v. Carroll, 98 So. 3d 476, 483 (¶26) (Miss. Ct. App. 2012) (citing Lauro v. Lauro, 924 So. 2d 584, 592 (¶33) (Miss. Ct. App. 2006)). However, because Nicole prevails on this issue, Michael is not entitled to attorney’s fees on appeal.
THE IMPORTANCE OF THE SPONSORING WITNESS
April 23, 2013 § 2 Comments
The COA case of Estate of James D. Hodges, Deceased: Hodges v. Hodges, decided March 12, 2013, stands for the important proposition that, merely because you have an appraisal report, it does not mean that the judge can consider it.
The case involved a property dispute in an estate between Daniel, son of the decedent, and his step-mother, Susan. At a hearing in 2010, the then-sitting chancellor ordered Daniel to obtain appraisals of property in controversy, and that, if Susan was unhappy with the appraisal she could obtain her own. Daniel hired an appraiser, Livingston, to do the work. Susan, however, never got her own appraisals.
At trial in 2011, before another chancellor who replaced the original chancellor, Susan objected to admission of the appraisals on the ground that Daniel did not call the appraiser to sponsor and be cross examined about them. The judge ruled that they were admissible because the first chancellor had ordered them. No doubt he also pointed out that Susan could have gotten her own appraisals if she were not satisfied with Daniel’s, per the first judge’s explicit order. Susan appealed.
Judge Lee, for the court, stated:
¶8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So. 3d 724, 730 (¶12) (Miss. Ct. App. 2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”
¶9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
¶10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] . . . must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So. 2d 942, 946-947 (¶14) (Miss. 2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.
¶11. In order to determine reliability under the second prong of the Daubert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So. 2d at 947 (¶16). The trial judge may look to factors including:
“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field. Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).
¶12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.
¶13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216, 221 (Miss. 1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the case. For this reason, we reverse the decision of the Simpson County Chancery Court.
A few points:
- When Daniel got the appraisals he could have propounded requests for admission to Susan to get her to admit to the authenticity and accuracy, etc. of the appraisals so that he did not have to call a sponsor. If Susan denied the request, causing Daniel to incur expense to call the witness who did establish the authenticity and accuracy, then he could petition the court to order Susan to reimburse his expenses.
- I would bet that the first chancellor’s order that Susan could obtain her own appraisals if she did not agree led everyone, second judge included, to believe that the burden was on Susan to do something if she did not agree. When she did not, it appeared that she had waived any objection. Only problem is, the first judge’s ruling did not relieve anyone from complying with the MRE.
- Judge Lee’s analysis is a great template for how you need to evaluate proof you will need to establish some points at trial.
- Think these things through. Instead of just stumbling into the court room on the date set for hearing, think ahead. Call opposing counsel and ask whether she is going to require you to call the expert. If she tells you that won’t be needed, and you get to trial and the other side reverses field, ask for a continuance to get the witness you need. In this case, I think counsel for Susan could easily have gotten a continuance for that purpose on the basis that the first judge’s ruling confused everyone.
TWENTY-FIVE WAYS YOU CAN IMPROVE YOUR CHANCERY TRIAL PRACTICE
April 10, 2013 § Leave a comment
Twenty-Five Ways You can Improve Your Chancery Trial Practice, published in the Mississippi Law Journal’s online edition Supra. Click on the .pdf link.
WHEN THE JUDGE STICKS HIS NOSE INTO IT
March 4, 2013 § Leave a comment
Judges can be nosy. When no one is asking the question that the judge wants to know the answer to, you might just hear the judge start asking her own questions. I’ve talked about it in a post here before.
In the COA case of Knights’ Piping, Inc. and Knight v. Knight, et al., decided December 11, 2012, the appellant took issue with the chancellor’s frequent and vigorous interrogation of witnesses. The COA, by Judge Irving, found nothing improper in how the judge approached it:
¶14. Benny asserts that the chancery court erred in its interrogation of witnesses during trial. Under Rule 614(b) of the Mississippi Rules of Evidence, “[t]he court may interrogate witnesses, whether called by itself or by a party.” However, “it is grounds for reversal if the trial judge abuses the authority to call or question a witness by abandoning his impartial position as a judge and assuming an adversarial role.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001) (citation omitted).
¶15. While the chancery court interjected numerous times during the trial, we do not find that the court abused its discretion or abandoned its impartial position. Generally, the court’s questions were intended to clear up confusing testimony or encourage testimony from recalcitrant witnesses, which our supreme court has recognized as appropriate circumstances under which a trial judge may question witnesses. See id. at 248-49 (¶30). Additionally, the court gave the attorneys the opportunity to ask further questions of witnesses, if necessary, based on the court’s questions. This issue is without merit.
Lawyers in this district will tell you that I frequently ask questions to clarify or to get the information I feel that I need to make a decision. I always give the attorneys an opportunity to ask questions based on what I asked. Judge Mason, on the other hand, seldom asks questions. It’s a matter of personal discretion and style. In my years of practice, I can say that I saw about every variation on this theme that one could imagine, from active participation in the trial to stony, sweat-inducing silence.
Chancellors will tend also tend to get involved when they become convinced that the witness is being untruthful, or evasive, or that there is some other kind of chicanery taking place. In Knight, the chancellor became so impatient with evasive and non-responsive answers that he began deeming certain answers as admitted. The appellant again took issue, and the COA again rejected his argument:
¶16. Benny argues that the chancery court erred in deeming his alleged non-responsive answers to certain questions as admitted. For example, during cross-examination, the following exchange occurred between Benny and Harold’s attorney:
Q: And, of course, you indicated yesterday that Harold missed 30 days [of work] and so that’s—that’s why you fired him?
A: He also told me—
[THE COURT]: The answer is—for the witness—the witness is being evasive—is that is why he fired him because Harold missed 30 days. That’s the answer. Ask your next question.
Q: When you changed the locks, you denied Harold access to his property, correct?
A: I did not.
Q: Did you give him a key?
A: Couldn’t locate him.
[THE COURT]: The answer is—
[THE WITNESS]: No.
[THE COURT]: —he did not give him a key.
¶17. Based on our review of the record, the chancery court admonished several witnesses regarding non-responsive answers—not just Benny. Furthermore, Benny’s answers to the questions he complains about on appeal were evasive. Therefore, the chancery court did not err in presuming that the true answers would be unfavorable to Benny’s position and deeming his non-responsive answers as admissions. This issue is without merit.
Taking answers as admitted is an extreme measure, but it’s one that can be merited in a situation like the one in Knight, where the witnesses are not forthcoming.
As for the chancellor’s demeanor, it’s a simple fact that judges get exasperated, just like lawyers and parties do. It usually happens after a long, tedious stretch of trial where one frustration accumulates on another until the judge’s patience is exhausted, and he blows a gasket. Yes, it would be better to keep one’s cool, and calmly navigate through the perturbance, but judges are human, and they are focused on getting to the truth of what is the most equitable outcome in the case. Thwarted in that quest, they tend to get testy.
WORTHWHILE READING ON ATTORNEY’S FEES
February 20, 2013 § 1 Comment
A subject of vital interest to lawyer is, or should be, what it takes to get an award of attorney’s fees at trial. The cases on the subject are all over the proverbial ballpark, so I found the following language from Judge Fair’s specially concurring opinion to the COA’s decision in Jordan v. Jordan, handed down December 11, 2012, affirming Judge McKenzie, to be quite helpful.
¶23. I write separately to address the award of attorney’s fees by a trial judge, a subject the Mississippi Supreme Court has discussed directly only twice in the last five years.
¶24. It is not disputed by judges and practitioners that the “best practice” in awarding fees is a ruling by the trial judge in which each of the factors set out in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982), is specifically addressed.
¶25. Ronald argues that the lack of such a discussion should require mandatory reversal as is the case in other “factor determination” cases. See Lowrey v. Lowrey, 25 So. 3d 274, 280 (¶7) (Miss. 2009) (factor tests, as provided in Ferguson and Armstrong, must be considered on the record in every case); Powell v. Ayars, 792 So. 2d 240, 244 (¶8) (Miss. 2001) (holding failure of trial court to address each Albright factor in awarding custody was reversible error).
¶26. Not so, says the Mississippi Supreme Court. In West v. West, 88 So. 3d 735, 747 (¶57) (Miss. 2012), the supreme court upheld the chancellor’s award of attorney’s fees “because it was not manifestly wrong.” The court explained that “[a]lthough the trial judge did not include an analysis of the McKee factors in his judgment, his award was not unreasonable, so we affirm.” Id. at (¶58) (citation omitted).
¶27. The same standard was applied to a circuit court. In Collins v. Coppers, 59 So. 3d 582, 593 (¶35) (Miss. 2011), the court noted:
The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors . . . . The judge noted that this litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous. After considering those factors, the court’s knowledge of what is charged for legal services in the area, and all other [McKee ] factors, the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.
¶28. While I would continue to recommend an on-the-record analysis of each McKee factor to support an award of attorney’s fees, the failure to do so has not been considered reversible error.
That’s about as good a practice guide on the subject as you will find anywhere.
Remember that, in a divorce case, you must establish inability to pay before the judge can reach the issue of reasonableness. Gray v. Gray, 745 So.2d 234, 239 (Miss. 1999). After you have laid that predicate, then the question becomes whether the chancellor had sufficient evidence to support his decision on attorney’s fees, whether or not all of the McKee factors are proven or addressed. A case illustrating these points is Tatum v. Tatum, decided December 11, 2012, by the COA.
POLICE REPORTS AS EVIDENCE
February 11, 2013 § 2 Comments
Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.
A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.
The COA rejected Sheri’s argument. Judge Lee, for the court:
¶16. “Even though police reports, if offered in evidence to prove the truth of the matter asserted[,] are hearsay and the information within them may be based on hearsay, they may be admissible under the hearsay exception in [Mississippi] Rule [of Evidence] 803(8).” Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 491 (¶36) (Miss. 2010). Rule 803(8), entitled “Public Records and Reports,” states:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).
¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.
¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.
In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.
One is left to wonder whether Sheri’s objections would have been upheld if Walter had been the sponsor of the report, and if Sheri had truthfully denied the facts in the report. What do you think? Don’t overlook this statement by Judge Lee: “The report clearly contains information gathered from both Walter and Sheri.”
CORROBORATION BLUES
February 5, 2013 § Leave a comment
Tell me, how long, Judge, do I have to wait?
Can you let me know? Why must I corroborate?
— apologies to Rev. Gary Davis “Hesitation Blues”
We’ve visited the issue of corroboration in divorce cases several times on this blog. You can find posts on the subject here, here and here. As Judge Maxwell said in the case of Smith v. Smith, “[C]orroborating evidence need not be sufficient in itself to establish [habitual cruelty], but rather ‘need only provide enough supporting facts for a court to conclude that the plaintiff’s testimony is true.” citing Jones v. Jones, 43 So. 3d 465, 478 (Miss.App. 2009).
If your case lacks corroboration, you will leave the courtroom sans a divorce.
You will find the latest example in the case of Gillespie v. Gillespie, decided by the COA January 29, 2013. I’ll let Judge Griffis’s decision do the talking:
¶13. Habitual cruel and inhuman treatment as a ground for divorce must be proved by a preponderance of credible evidence. Chamblee v. Chamblee, 637 So. 2d 850, 859 (Miss. 1994). This Court has stated:
Conduct that evinces habitual cruel and inhuman treatment must be such that it either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the nonoffending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.
Fulton v. Fulton, 918 So. 2d 877, 880 (¶7) (Miss. Ct. App. 2006) (citation omitted). Generally, the “cruel and inhuman treatment must be shown to be routine and continuous; however, a single occurrence may be [sufficient] for a divorce on this ground.” Boutwell v. Boutwell, 829 So. 2d 1216, 1220 (¶14) (Miss. 2002) (citations omitted).
¶14. In Chamblee, the supreme court addressed the requirement that the claims of cruel and inhuman treatment be corroborated by a witness. Chamblee, 637 So. 2d at 860. The court noted that the wife produced only one corroborating witness. Id. The witness simply observed the presence of bruises on the wife’s arm and had no independent knowledge of how they got there. Id. Finally, the husband denied abusing the wife. Id. For these reasons, the court determined the chancellor did not err when he denied the wife a divorce on the ground of cruel and inhuman treatment because she failed to prove her case by a preponderance of the evidence. Id.
¶15. In Fulton, 918 So. 2d at 880-81 (¶¶9-10), the wife produced three witnesses to corroborate her claim that her husband abused her. Id. at 880 (¶9). Her mother testified she observed bruises. Id. Also, a friend testified that on many occasions the wife called late at night to discuss the altercations between her and her husband. Id. Finally, a cousin testified she took pictures of the wife’s bruises and scratches in her mouth. Id. The cousin also observed tension in the household when she visited. Id. This Court determined that this evidence was sufficient to grant a divorce based on cruel and inhuman treatment. Id. at 881 (¶10).
¶16. Here, Timmy offered one witness, James Moss, to corroborate his claim of cruel and inhuman treatment. Moss observed bruises on Timmy but had no independent knowledge of how Timmy had received the bruises. Moss’s testimony was based not on his own knowledge or information but on what Timmy had told him.
¶17. Timmy also claims that Meagan observed an attack. But, Meagan did not testify to corroborate his claim.
¶18. No corroborating witness, with independent knowledge of the instances of cruel and inhuman treatment, testified to establish the claim of cruel and inhuman treatment. As a result, we find that the chancellor’s finding of grounds for a divorce due to cruel and inhuman treatment was not supported by substantial credible evidence in the record. Nevertheless, because we affirm the chancellor as to the grounds of adultery in the following section, this decision does not affect the outcome of this appeal.
The difficult corroboration cases seem to be the ones that I refer to as self-corroboration, which occurs when all that the corroborating witness knows is what he or she was told by the alleged abusee, as in Chamblee. In Smith, the only corroboration was police reports that the alleged victim had made, which were based on her own allegations and nothing else. The Fulton case, above, is a good illustration of the web of circumstantial evidence that will be found to be corroborative.
No corroboration, and you have to hesitate.
JUDICIAL NOTICE
January 31, 2013 § 4 Comments
The COA’s decision in Riverview Development v. Golding Development, decided January 22, 2013, deals with an adverse possession controversy, but I want to focus on a minor aspect of the case that is widely misunderstood: Judicial notice.
Beginning at ¶12, Judge Fair’s opinion turns to an issue of judicial notice:
Remaining at issue is Riverview’s contention that the chancellor erred in finding that Golding held record title to the disputed property, because Golding’s deraignment of title was never entered into evidence during the trial. This record title formed the basis of the chancellor’s decision to quiet title in Golding. “It is an elementary proposition of law that in a cloud suit the complainant has the burden of proving his title and may not rely on the weakness of [his] adversary’s title.” Culbertson v. Dixie Oil Co., 467 So. 2d 952, 954-55 (Miss. 1985).
¶13. It is true that the supporting deeds were not entered into evidence during the trial, but they were submitted with Golding’s pleadings and are public records. Given that the deeds were duly recorded, we find no abuse of discretion in the trial court taking judicial notice of their existence under Rule 201(b) of the Mississippi Rules of Evidence. Under Rule 201, “[a] court may look to any source it deems helpful and appropriate, including official public documents, records and publications.” Enroth v. Mem’l Hosp. at Gulfport, 566 So. 2d 202, 205 (Miss. 1990).
In Enroth, the court stated:
The question then becomes, how the Court should go about the business of judicially noting these facts?
It is a cliche of judicial notice that a fact is not judicially noticeable by virtue of being known to the judge; conversely, the mere fact that the judge happens to be unacquainted with the fact of common knowledge should not bar him from taking judicial notice of it. This situation is likely to arise when a judge sits in another district and the fact to be noticed is a matter known only within the territorial jurisdiction of that court or where some local fact is to be noticed on appeal. But even where the judge thinks that he knows the fact to be a matter of common knowledge, it would be a salutary practice to check his understanding against other sources of information when this can be conveniently done…. 21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5108 at 513-14 (1977).
A court may look to any source it deems helpful and appropriate, including official public documents, records and publications. The Court is not limited by rules of evidence otherwise enforceable in judicial proceedings. Witherspoon v. State ex rel. West, 138 Miss. 310, 320, 103 So. 134, 136-37 (1925) said:
He may resort to … government publications, dictionaries, encyclopedias, geographies, or other books, periodicals and public addresses. ( citing, inter alia, Puckett v. State, 71 Miss. 192, 195, 14 So. 452, 453 (1893)). Nothing in Rule 201 casts doubt on Witherspoon.
In the case at bar, the Court recited and listed the sources it had considered and included among those (1) numerous newspaper articles discussing the nature, operation and funding of Memorial Hospital, (2) conversations with physicians, (3) conversations with the Chancery Judge’s own niece who was an employee at the hospital, (4) conversations with a lawyer not involved with this particular case but who was familiar with the matter, and (5) the fact that, before becoming Chancery Judge and in his prior capacity as a lawyer, he had been involved in a lawsuit regarding the hospital in which its legal status had been an issue. We hold these bases adequate that the Court may judicially know the factual components of the Hospital’s status.
The scope of the extra-judicial inquiry in the now nearly 23-year-old Enroth case seems somewhat breathtaking to these twenty-first-century eyes, but there it is, and I believe it is still good law in Mississippi.
Remember, of course, that the judge is required to allow any party to present evidence or otherwise answer the evidence created by judicial notice, but that is another issue.
In Riverside, the chancellor took notice of the contents of the court file and relied on exhibits to the pleadings because, apparently, the lawyers had overlooked getting those crucial documents into evidence. Clearly, the best practice is to do it yourself, but Riverside and Enroth point another way to a solution.
WHAT TO DO AFTER THE SPECIAL MASTER REPORTS
December 5, 2012 § Leave a comment
It is my practice to appoint guardians ad litem to serve as special masters pursuant to MRCP 53. That rule vests the special master with broad powers, including subpoena powers and auhority to hold evidentiary hearings. The ultimate function of the special master is to produce a report, which is addressed in MRCP 53(g), which reads as follows:
(g) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) Acceptance and Objections. The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that a master’s finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
That provision for acceptance and objections is what tripped up the appellants in the COA case of Gettis and Montgomery v. Frison, decided October 30, 2012.
To make a long and sinuous train of events short, Gettis and Montgomery filed an objection to the special master’s report, but neither noticed it for hearing nor apparently served a copy of their objection on the judge. The chancellor entered an order adopting the report, and the objectors appealed.
The COA cited Miles v. Miles, 949 So.2d 774, 778-9 (Miss.App. 2006) for the proposition that the appellants can not complain that the were denied the right to a hearing when they did not comply with the procedural requirements of 53(g), which conditions the right to a hearing on the filing of an objection and motion and giving notice of hearing per MRCP 6(d).
If you are involved in a case where a special master has been appointed, be sure you read and comply with Rule 53 to the letter. The filing of an objection and a hearing thereon may be your only opportunity to get the report modified or tweaked for your client’s benefit, because 53(g)(2) specifically dictates that “The court shall accept the master’s findings of fact unless manifestly wrong.”
As I have said here many times: Read the rule. That hazy recollection from the last time you glanced at a part of it twelve years ago might not serve you well at all.
And a side note: In the Gettis and Montgomery case, the COA decision by Judge Irving points out several times that the appellants never filed a post-trial motionasking the chancellor to take another look at how the case had played out. The insinuation is that the judge may have relented and given them a chance to make a record, but we will never know that because they did not file a motion for rehearing. As we have discussed here before, you are not required to file a post-trial motion in chancery as a prerequisite to an appeal, but it may just give you that one more bite at the apple that you need.
THE PRESUMPTION OF MUTUAL SUPPORT
October 29, 2012 § 1 Comment
The COA decision in Pritchard v. Pritchard, handed down October 23, 2012, is the most recent alimony termination case in which the courts have addressed the rule that cohabitation creates a presumption of mutual support, shifting the burden to the recipient spouse to produce evidence that there is no mutual support within the de facto marriage.
You need to read Pritchard yourself to appreciate the scope of mutual support that was enough to trigger the presumption. I won’t rehash them here. But here are a few nuggets gleaned from Judge Griffis’s decision (which quotes Professor Bell’s treatise):
- Recipient-wife and another man had a sexual relationship, and she provided him a truck and lodging rent-free. In return, he built a deck, installed a floor, moved furniture, did yard work, and carried out the garbage. The trial court should have considered this mutual support. Scharwath v. Scharwath, 702 So.2d 1210 (Miss.App. 1997).
- A de facto marriage can terminate alimony, as where a couple was engaged without immediate plans to marry, solely to prolong the receipt of alimony. Martin v. Martin, 751 So.2d 1132, 1136 (Miss. App. 1999).
- A similar result in Pope v. Pope, 803 So.2d 499, 504 (Miss.App. 2002).
- Where the recipient spouse pays for her live-in’s psychological evaluation, car tag, attorney’s fees, clothes, cell phone, job materials, and motel room, and the live-in provides household services and chores such as maintenance and repair of the home, the presumption is triggered. Burrus v. Burrus, 926 So.2d 618, 621 (Miss.App. 2006).
In Pritchard, the COA found that the chancellor applied the correct legal standard, but that there was not sufficient evidence to support the chancellor’s decision that the presumption was overcome by proof of non-mutual support. The COA reversed and rendered.
CAVEAT: a brief period of cohabitation may not trigger the presumption. See, Tillman v. Tillman, 809 So.2d 767, 770 (Miss.App. 2002).
These cases are fact-intensive. Before you go thrashing off into this swamp, you would do well to study what Professor Bell has to say, and read as many cases on point that you can find. There has to be either cohabitation for more than a short period coupled with mutual support, or there must be a de facto marriage. The latter is a more elusive concept. You will likely need a substantial base of discovery or PI work to do the job.
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