WINNING TACTICS FOR CHILD SUPPORT MODIFICATION

October 23, 2012 § 3 Comments

There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.

In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

So here are a few tactics that may help:

  • Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
  • See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
  • If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
  • Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
  • Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
  • Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention. 

Plan your modification case for success. Remember that you can use summaries and compilations to present your evidence. And the clearer and better your 8.05’s are, the greater you chances of success.

ANOTHER ALBRIGHT SCORECARD CASE FAILS

October 22, 2012 § Leave a comment

Back in July, in a post entitled “Quibbling with Albright,” I questioned the wisdom of attorneys who at trial and on appeal concentrate their efforts on a scoresheet-type approach to the child custody factors. As I said there:

Albright is not a mathematical formula or a scorecard. It is a matrix for the trial judge to use in making sure that all factors that bear on the best interest of the child in a custody case are considered, and in turn used by the appellate courts to evaluate whether the chancellor did her job properly. If all of the Albright factors that apply in a given case are considered and addressed by the chancellor, and there is substantial evidence to support the chancellor’s decision, then the chancellor’s decision should be affirmed. Any quibbling about this one factor or that, or trying to readjust the “scoresheet,” should be brushed aside on appeal.

In O’Briant v. O’Briant, decided by the COA October 16, 2012, Judge Maxwell hammered the point home better and with more authority than I can muster. The case involved a custody dispute between Jonathan and Olivia O’Briant in Madison County Chancery Court. Here’s what Judge Maxwell said:

¶14. Jonathan argues the chancellor misapplied Albright because she miscalculated one of the factors and failed to weigh the evidence properly. Because the chancellor is to use Albright as a guide, not a formula, and weigh the evidence as she sees fit, we find no reversible error.

¶15. “Determining custody of a child is not an exact science.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Instead, it “is one of the most difficult decisions that courts must make.” Brewer v. Brewer, 919 So. 2d 135, 141 (¶21) (Miss. Ct. App. 2005). In Albright, the Mississippi Supreme Court gave a list of factors to consider to help chancellors “navigat[e] what is usually a labyrinth of interests and emotions.” Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). The Albright factors provide chancellors guidance, not a mathematical formula. Id. “[E]ven when the trial judge sensitively assesses the factors noted in Albright and [its] progeny, the best the judiciary can offer is a good guess.” Love v. Love, 74 So. 3d 928, 932 (¶17) (Miss. Ct. App. 2011) (quoting Buchanan v. Buchanan, 587 So. 2d 892, 897 (Miss. 1991)).

¶16. Jonathan argues the chancellor committed legal error because she “recast” one Albright factor into two—causing the factor to favor Olivia. Jonathan analogizes this perceived error to an umpire botching the number of outs in an inning. But unlike baseball, an Albright analysis is not premised solely on a scoring system to determine which parent “wins.” Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012) (citing Lee, 798 So. 2d at 1288 (¶15)). “Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before she reaches a decision.” Id. And our review for manifest error is not a mechanical check on the chancellor’s score card to see if she “tallied” each parent’s score correctly. See id. Instead, we ask whether the chancellor considered all relevant facts, giving deference to the weight she assigns each factor.

¶17. Here, the chancellor considered all the relevant facts by applying each Albright factor:

(1) age, health, and sex of the child;

(2) a determination of the parent that has had the continuity of care prior to the separation;

(3) which has the best parenting skills and which has the willingness and capacity to provide primary child care;

(4) the employment of the parent and responsibilities of that employment;

(5) physical and mental health and age of the parents;

(6) emotional ties of parent and child;

(7) moral fitness of the parents;

(8) the home, school and community record of the child;

(9) the preference of the child at the age sufficient to express a preference by law;

(10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Lee, 798 So. 2d at 1288 (¶15) (citing Albright, 437 So. 2d at 1005). While Jonathan takes issue with the chancellor addressing the stability of each parent’s employment when considering their employment responsibilities, then later in her order, assessing the stability of their respective home environments, he cannot argue the chancellor failed to consider these relevant factors. Thus, we find no “misapplication” of Albright occurred.

The primary driving force behind all of the foregoing is that it is the chancellor’s exclusive province to judge the weight of the evidence. Judge Maxwell’s opinion continues:

¶18. Jonathan also contests the chancellor’s findings as to which parent demonstrated the continuity of care prior to the separation, which has the best parenting skills, and which has the willingness and capacity to provide primary child care, as well as her findings on the physical and mental health and age of the parents. He specifically claims the chancellor ignored evidence of his good parenting skills and Olivia’s bad parenting skills, “penaliz[ing]” rather than crediting him for having his mother next door to help with Maguire. He also suggests the chancellor put too much weight on the three months he was committed to the Mississippi State Hospital at Whitfield in 2000. These challenges are premised on the chancellor’s evidentiary and credibility assessments.

¶19. In our narrow review we give deference to the chancellor’s factual findings, asking if they were supported by substantial evidence. See, e.g., Wilson v. Wilson, 53 So. 3d 865, 867-68 (¶¶7, 10) (Miss. Ct. App. 2011). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.” Johnson v. Gray, 859 So. 2d 1006, 1014 (¶36) (Miss. 2003) (quoting Chamblee v. Chamblee, 637 So. 2d 850, 860 (Miss. 1994)). “‘[T]he chancellor has the ultimate discretion to weigh the evidence the way she sees fit’ in determining where the child’s best interest lies.” Blakely, 88 So. 3d at 803 (¶17) (quoting Johnson, 859 So. 2d at 1013-14 (¶36)).

The court found that the chancellor’s decision was supported by substantial evidence and affirmed it.

This is yet another example of a mistaken approach to Albright. The danger in tailoring your Albright proof to try to prevail on the scoreboard is that you will lose sight of the larger picture, which is what is actually in the best interest of the child. One parent may prevail in more categories than the other and yet not prevail on the issue of custody. When you plan how to present your case, don’t focus on trying to “win” more factors; focus instead on what will convince the court that the best interest of the children lies in being in your client’s custody. Each judge has his or her own ideas of the factors that are most important. Learn what your chancellor’s preferences are, and design your case accordingly.

AND MORE RE FRAUD ON THE COURT

October 18, 2012 § Leave a comment

Only last week I posted here about what it takes to trigger relief from fraud on the court. There was yet another case dealing with fraud on the court handed down by the COA last week, and it’s one you need to add to your notes on the subject.

Dogan v. Dogan, decided October 9, 2012, by the COA, is an involved equitable distribution/alimony case that covers many familiar financial issues that arise in the course of a high-dollar divorce. David Dogan was a partner in a law firm and had earnings as much as $35,000 a month. The firm lost a major client, Durabla, to bankruptcy, though, which negatively impacted his earnings. The chancellor wrestled with calculation of David’s income and concluded that it was $19,000 a month. David’s wife, Barbara, charged that David committed a fraud on the court because, although he reported the lower income figure on his 8.05 statement, he had filed a home loan application stating his income as $35,000. Keep in mind that, under the general principle of Trim, knowingly submitting a false financial statement to the court is fraud on the court.

The COA, by Judge Roberts, beginning at ¶14, upheld the chancellor’s decision as to David’s income:

In Mississippi, the general rule is that fraud will not be presumed but must be affirmatively proven by clear and convincing evidence. See Hamilton v. McGill, 352 So. 2d 825, 831 (Miss. 1977); Taft v Taft, 252 Miss. 204, 213, 172 So. 2d 403, 407 (1965). Further, on appeal, there are four requirements to vacate a decree due to fraud:

(1) that the facts constituting the fraud, accident, mistake or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made; (2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved; (3) the facts must not have been known to the injured party at the time of the original decree, and (4) the ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.

Manning v. Tanner, 594 So. 2d 1164, 1167 (Miss. 1992). Barbara has failed to meet these requirements. First, the chancellor did not make his decision solely on David’s Rule 8.05 financial statement; therefore, the amount in his statement was not a controlling factor in the decree as is required under the first prong. Barbara also fails under prongs three and four because, assuming the discrepancy on the Rule 8.05 financial statement and loan application to be true, Barbara was aware of it at the time of the original decree. Additionally, the chancellor addressed the discrepancy and found that the amount of the loan application was an average of the last two federal tax returns and did not take into consideration the bankruptcy of Durabla and its financial impact on the firm.

Thus the COA continued to flesh out how Trim will affect our case law. Before you cry “Fraud” to the trial court, make sure you can support your claim with proof in the record of the four Manning factors.

NAVIGATING IN THE BACKWASH OF THE BEST EVIDENCE RULE

October 17, 2012 § 1 Comment

We visited MRE 1002, the so-called “Best Evidence Rule,” in this post. It can be confusing and a pitfall for attorneys and judges alike. To put it concisely, the rule requires that you produce the original of a writing if you are trying to prove its contents.

So you’re cruising through cross-examination of the opposing party and the other side makes an objection based on the Best Evidence Rule, which the judge sustains. The problem for you is that you don’t have the original; all you have is the copy you had started questioning the witness about. What do you do now?

That’s where MRE 1003 and 1004 come in. They point possible ways past your dilemma.

MRE 1003 says that you can use a duplicate unless there is a “genuine question” as to its authenticity, or where it would be unfair to admit the duplicate in place of the original. In the case of Ellzey v. James, 970 So.2d 193, 195 (Miss.App. 2007), the court upheld a chancellor’s finding that the duplicate was not admissible where it was only a partial copy, and there was an issue of possible alteration. Some cases in which the trial court’s findings of authenticity supported use of a duplicate include: Trull v. State, 811 So.2d 243, 246 (Miss.App. 2000); Foster v. Noel, 715 So.2d 174, 182 (Miss. 1998); and Seals v. State, 869 So.2d 429, 433 (Miss.App. 2004). In DeLaBeckwith v. State, 707 So.2d 547, 602-3 (Miss. 1998), the court held that copies of 1964 trial transcripts were properly authenticated as judicial records, and affidavits of attorneys who were present at the 1964 proceedings to the effect that the transcripts were inaccurate were not adequate to impeach the authenticity of the judicial records.

MRE 1004 offers several other ways out of the trap. The original is not required, and the court may admit other evidence of its contents if …

  1. The original is lost or destroyed, and not due to a bad-faith act of the proponent; or
  2. The original is not obtainable by any available judicial process; or
  3. The original is in possession of the opponent who has not produced it after being put on notice that it will be at issue at trial; or
  4. It is not closely related to a controlling issue.

It’s up to you, once the judge has ruled, to satisfy him or her that one of the exceptions applies. That usually will require some evidence unless counsel opposite concedes the point.

Some other exceptions to the Best Evidence Rule recognized in Mississippi case law:

  • When a sound recording is enhanced to eliminate background noise, and the conversations on it are not changed in any way, the recording is admissible as an original. Cook v. State, 728 So.2d 117, 121 (Miss.App. 1998). 
  • Writings used to refresh a witness’s recollection need not be admissible in evidence, so the Best Evidence Rule does not apply. Hunt v. State, 687 So.2d 1154, 1162 (Miss. 1997).
  • Because the contents of a letter were not related to the issues before the court, the Best Evidence Rule did not apply. Farris v. State, 906 So.2d 113, 117-8 (Miss.App. 2004).
  • Where the document is offered merely to prove that it exists, and not to prove its contents, the Best Evidence Rule does not come into play. Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).
  • A true copy of a handwritten note was admitted over the original handwritten note in a case where an insurance agent was shown to have altered the original handwritten note, and the copy showed it before alteration. Dixie Insurance Co. v. Mooneyhan, 684 So.2d 574, 581-2 (Miss. 1996).  

MARITAL FAULT AS SOMETHING ELSE

October 8, 2012 § Leave a comment

I’ve talked here before about how lawyers on appeal often argue that the chancellor’s decision should be reversed on the basis that he or she used custody as a sanction for marital misconduct. And there is case law that supports that argument. Brekeen v. Brekeen, 880 So.2d 280, 287 (Miss. 2004); Smullins v. Smullins, 77 So.3d 119, 129 (Miss.App. 2011); Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983).

The thing is that custody may not be used to punish the misconduct, nor may the misconduct be the sole basis, but misconduct may properly be considered as one among the other several applicable Albright factors, and it may be considered as proof of several other factors.

In the case of Collins v. Collins, decided by the COA on October 2, 2012, the chancellor had proof of Kim Collins’ adulterous relationship with a man (Haley) other than her husband, Jarrad. The evidence was that she took trips to rendezvous with the man, leaving her son Conner with someone else, presumably her husband. She spent dozens of hours talking on the phone with her paramour and texting him. Judge Russell’s opinion says:

¶18. It appears from the record that Kim’s adultery was important to show how her behavior with the minor child changed during that period. There was testimony that since her involvement with Haley, Kim appeared to be gone more often and was not around Connor as much as Jarrad. Jarrad’s mother testified that Kim had not been a good mother the last two years because Kim put her relationship with another man before her son.

* * *

¶20. As in Smullins, the chancellor expressed concern over Kim’s involvement with another man because of its impact on her relationship with Connor. Thus, the chancellor’s findings “were not a sanction against an adulterous parent . . . .” Smullins, 77 So. 3d. at 129 (¶46).

When you present your child custody case, don’t put all your eggs in the adultery or other misconduct basket without adding how you want the judge to fit that testimony into the other Albright factors. For instance, when your client testifies about the misconduct, ask why that behavior concerns him or her vis a vis custody, and prepare the witness to address continuity of care, stability, parenting skills, demonstrated willingness and capacity to provide care for the child, physical and mental health, emotional ties, and any other conceivable relevant factors. Only after you have done that should you harp on the moral fitness factor.

in Collins, the chancellor had an ample basis to find that Kim had undercut her own case for custody by choosing to put her relationship with the other man ahead of her attention for her son. When the chancellor put it in those terms, the COA had no way to go but to affirm.

TRIAL BY CHECKLIST: UPDATED ALIMONY FACTORS

September 24, 2012 § Leave a comment

The 12 Armstrong factors have long been the decisive authority to be applied by the court in making its determination as to the type, amount, and reasonability of alimony. In the recent COA case of Pecanty v. Pecanty, decided September 18, 2012, however, Judge Fair’s opinion cited (at ¶25) to the 2002 Davis v. Davis case, 832 So.2d 492, 497, where the MSSC laid out 17 factors. Here’s the pertinent language from Davis:

In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider “not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living.” Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).

The Davis factors expand on the Armstrong factors in several significant ways:

  • In addition to “the reasonable needs of the parties,” the court is to consider the reasonable needs of the child. This is significant because it opens the door to evidence about the impact that a child has not only on the expense and availability of child care, as set out in Armstrong, but also to the other needs of the child above and beyond child support, and how those needs impact the alimony recipient’s living expenses.
  • In addition to the Armstrong “tax consequences of the spousal support order,” Davis directs the court to consider the amount of income taxes the respective parties must pay on their incomes. Under Davis, the trial court must address not only the tax consequences, such as deductability, but also the availability of refunds, deductions, exemptions and other factors that influence income taxes upward or downward.
  • The fact that “the wife” (read “payee”) has free use of the home, furnishings and automobile is included as a factor. Granted, it has long been the law in Mississippi that those items are considered as part of the spousal support package, but the inclusion as a factor to be considered promotes it to a higher level of consideration.

It can be argued that Davis does not really add anything new to Armstrong. That may be so, and most attorneys, in presenting their Armstrong proof cover the same bases (except for income tax proof, which lawyers rarely touch on) for the most part. Still, I think it’s worth adding these to your portfolio of useful checklists. After all, in affirming the chancellor in Pecanty, Judge Fair noted with favor that she ” … addressed the seventeen factors set out in Davis … ” If he (and the rest of the COA) considered them noteworthy, we would be wise to do the same.

THE PRICE OF FAILING TO GIVE A COMPLETE ANSWER TO THE EXPERT INTERROGATORY: $3,603,712

September 20, 2012 § 4 Comments

What is the price of numerous discovery violations, including failure to make timely disclosure of the substance of the expert’s expected testimony and failure to supplement seasonably?

In Ballard Realty, et al. v. Ohazurike, et al., decided September 6, 2012, the MSSC reversed a jury verdict of $3,602,712 for those very failures on the part of the plaintiffs to designate their expert properly and give a complete answer to the expert witness interrogatory.

The Ohazurikes had designated a witness, Dr. Glover, and answered the rest of the usual expert interrogatory that their expert was …

 expected . . . to testify to all things in her evaluations and opinions regarding the valuation of the lost income of the Plaintiffs and as to other things regarding the present value calculations and potential economic value and profitability of Plaintiffs company Upstart Games and the lost value of Plaintiff’s damages intellectual property board games.

The Ohazurikes attached a copy of the expert’s curriculum vitae (CV) as an exhibit to their designation of experts and added that “[a] copy of Dr. Glover’s report will be forwarded once it is received.” It was not until only five days before trial, on morning of the day that the expert was to be deposed that the report was received by opposing counsel. That report for the first time disclosed that the expert expected to project damages in excess of $15 million.

The defendants did file various motions with the court to try to get the expert testimony excluded, and they did object at trial based on the discovery violations, all to no avail. There was no other evidentiary basis in the record other than this particular expert’s testimony to support the $3 million-plus verdict, which the supreme court reversed.

Justice Randolph’s opinion explained:

¶14. We find that the trial court abused its discretion by allowing Glover to testify despite numerous discovery violations, including failure to timely disclose the substance of Glover’s expected testimony and to seasonably supplement discovery responses, and allowing the witness to give previously undisclosed testimony at trial. Mississippi Rule of Civil Procedure 26(b)(4) provides that “[a] party may through interrogatories require any other party to [1] identify each person whom the other party expects to call as an expert witness at trial, [2] to state the subject matter on which the expert is expected to testify, and [3] to state the substance of the facts and opinions to which the expert is expected to testify and [4] a summary of the grounds for each opinion.” Miss. R. Civ. Proc. 26(b)(4)(A)(i). Additionally, Rule 26(f) provides that “a party who has responded to a request for discovery with a response that was complete when made . . . is under a duty  seasonably to supplement that party’s response with respect to any question addressed to . . . the subject matter on which [a person expected to be called as an expert witness] is expected to testify, and the substance of the testimony.” Miss. R. Civ. Proc. 26(f). We have provided that “[t]he failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (citation omitted)

¶15. The Ohazurikes failed to comply with Rule 26. In their original designation of experts, they named Glover as an expert witness and identified the subject matter of her opinions, but failed to state the substance of the facts and opinions to which she was expected to testify or to provide a summary of the grounds for her opinions. Ohazurikes did not provide the Defendants with the substance of Glover’s opinion until the morning of her deposition, five days prior to trial. The Ohazurikes’ disregard for the rules of discovery continued to trial, when they violated Rule 26(f) by introducing for the first time a new opinion without having amended or supplemented their discovery responses. In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), we provided that, where a party had failed to amend or supplement its discovery responses with material changes to an expert’s opinion, the trial court’s refusal to grant any relief was an abuse of discretion warranting reversal, because “[w]e do not condone trial by ambush. [The defendant] was entitled to full and complete disclosure of the plaintiffs’ expert testimony. . . .” Hyundai, 53 So. 3d at 759. The introduction of an entirely new lost-profits estimate clearly was a material change to Glover’s opinion, of which the Defendants were entitled to full and complete disclosure seasonably before trial. We refuse to condone the Ohazurikes’ failure to comply with discovery requirements. Accordingly, we find that the trial court’s refusal to grant the Defendants any relief for the Ohazurikes’ failure to comply with the mandates of Rule 26 was an abuse of discretion and, combined with other errors to be discussed infra, warrants reversal.

Those “other errors” will find their way into another post.

Experts appear often in chancery. They testify to the matters like the best interest of children, parties’ and children’s mental and physical health, land lines, valuations, damages, surveys, handwriting, water flow, investments, and on and on. Usually, when an expert is involved, there is a lot at stake, either emotionally or financially, or both.

I have not seen many disputes over the adequacy and/or timing of the expert disclosures. When they happen, though, the results can be cataclysmic. And when they are not cataclysmic at trial, they can turn out to be up the line, as the Ohazurikes learned.

I have refused to allow an expert to testify who was not timely designated 60 days before trial per UCCR 1.10. I even refused to allow an expert to testify where there was no answer at all to the expert interrogatory (the actual answer was to the effect that “None at this time. Timely supplementation will be made.” It wasn’t). But I have not yet had to weigh the adequacy of the substantive questions.

Read this case closely for what it can teach you about what won’t cut it as an expert-witness response, as well as what it can teach you about how to make a record of objections that will do the job on appeal.

REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT

September 17, 2012 § 4 Comments

In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.

As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly. 

Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:

” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.”   … 

¶25. When awarding Patricia attorney’s fees, the chancery court stated:

‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”

I’ve made the point here before that …

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.

Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.

 

 

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #2

September 13, 2012 § 2 Comments

This is the ninth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #2 …

Understand the theory of your case, and be able to communicate it to the judge.

Most chancery matters are straightforward, and the issues are fairly easily framed. A divorce on the ground of habitual cruel and inhuman treatment, for instance, requires certain elements to be proven, as does equitable distribution or alimony. Modification of child custody has its own framework of proof.

But when you stray into unfamiliar areas, you need to be able to explain to the judge where you are going and why, and what your authority is on which you rely. A few examples:

  • If you are defending on the basis that the court lacks jurisdiction because of the UCCJEA, or because of forum non conveniens, make that clear in your pleadings, and have chapter and statutory verse ready to cite, along with a case or 2 that supports your position.
  • If you are pushing a novel theory of law, can you distinguish the cases against you, and can you cite some persuasive authority to get the judge thinking your way?

Don’t forget that a major component of your job at trial is to persuade: to persuade the judge not only of the legal viability of your client’s position, but also to persuade the judge to rule in your client’s favor. Nowithstanding that, I swear that I have, more often than I’d like, sat on the bench scratching my head trying to figure out exactly what it was that counsel was wanting me to do, not only unpersuaded, but also mystified.

As I said, there are many fairly straightforward issues in chancery trials, but some, like undue influence or lack of capacity, or adverse possession, can be challenging not only for the lawyer, but also for the judge. If you can’t present your proof and your authority in a way that the trial judge can understand, expect to fail.

This Tip may appear so obvious that it’s a waste of your time to read it. But take a minute and think back to a trial or motion hearing where you floundered about helpelessly and ineffectively. Might that have been because you never got clear for yourself exactly what it was you were trying to get across or never found an effective way to communicate it?

In one of my first days of classes in law school, the late professor Harry Case in Contracts called on a student to brief a case. The student stammered and stuttered, his frustration made worse by Case’s prodding, until he blurted out, “Well, I know what I am trying to say, but I just can’t put it into words.” Professor Case glowered at the young man and hissed sarcastically, “Well, you had better learn how to do just that, Mr. _____, because that is exactly what a lawyer is hired to do.”

The corrolary to this Tip is what I call THE GOLDEN RULE OF CHANCERY PRACTICE, which is

 “The easier and clearer you make it for the judge to analyze, the more likely it is that you will succeed.”

FOR LAW STUDENTS … EVIDENCE HELP

August 27, 2012 § 6 Comments

This post is only for the law students who read this blog. I know that there are plenty of you, based on comments I see posted and hear personally, and that you zero in on the evidence posts.

For those (handfull) of you who are taking evidence, I recommend you get a copy of COURTROOM EVIDENCE HANDBOOK by Steven Goode and Olin Guy Welborn, III, 2012-2013 Student Ed. The book costs around $44 in paper, and there is an online edition for $31. If this book is not among the books you already have to aid you with evidence, I encourage you to consider buying it.

The book is divided into four sections: The FRE; The FRE with the author’s commentary and citations; A compendium of common objections and responses; and Checklists and foundations.

As you would probably guess, my favorite section is the one on checklists and foundations. Here you will find step-by-step guidance on how to get various types of evidence into the record, and how to overcome objections to them. Checklists make your job so much easier, and take a lot of the worrying and guesswork out of the task. Here is the checklist to lay the foundation for admission of a public record or report (Rule 803(8)), for instance:

  1. The document is a cerified copy of a record or report of a public office or agency.
  2. The document sets forth either (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (C) factual findings resulting from an investigation made pursuant to authority granted by law.

Each checklist is preceded by a sample interrogation of a witness to illustrate the questions and answers needed to lay the foundation, and some are followed by helpful comments.

The authors’ commentary on the FRE is also extremely helpful. The comments include references to case law that you can use for authority. 

I know you are studying the FRE in law school, and that some of you will move on to other jurisdictions, but for those of you who remain in Mississippi, this book, along with the Mississippi Rules Annotated, published cooperatively annually by the Litigation Section of the Mississippi Bar, Mississippi Law Institute, and Mississippi College School of Law, will be a helpful resource for Mississippi practice, since the MRE is based on the FRE.

A copy of the Goode-Welborn book was among the bale of material distributed to us judges at the National Judicial College, which we are required to attend within one year of taking the bench. I have actually found it useful on a few occasions when dealing with some obscure points of law, and it occurred to me that you students might find it helpful as you bend your mind (sometimes painfully) around the more counterintuitive aspects of the courtroom art.

Now, as I said, this post is limited strictly to law students. But if you know a lawyer who might find this useful, it’s okay to pass it on. Even old warhorses who think they know it all can use a good tip now and then.

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