Evidence | The Better Chancery Practice Blog

AN MRCP 56 CAUTION

March 14, 2012 § Leave a comment

The first thing you should do when confronted with a motion for summary judgment is to read the rule. I know, I know, you’re busy and it takes time, but for Pete’s sake, it might just save you some trouble and embarassment, and it might save your malpractice carrier some $$$.

In the COA case of Estate of Farr v. Wirick, decided February 21, 2112, the trial judge excluded from evidence two affidavits that were submitted on the day of hearing. The COA ruled that ” … the chancery court properly excluded the cerificates under [MRCP] Rule 56(c), which requires that affidavits in opposition to a motion for summary judgment must be served ‘prior to the day of the hearing’.”

You have at least ten days’ notice of a motion for summary judgment per MRCP 56(c), and you must file your counteraffidavits prior to the day of the hearing.

So what do you do if you can’t scrape together counteraffidvits in time? MRCP 56(f) allows the court to grant additional time to obtain them, or to grant a continuance to do additional discovery, or to “make such order as is just.” The court can also simply refuse the application for summary judgment.

You can also ask the judge, per MRCP 56(e) for leave to supplement your affidavits or to submit further affidavits.

And don’t overlook this crucial language at MRCP 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. [Emphasis added]

MAKING CHILD SUPPORT RETROACTIVE

March 13, 2012 § Leave a comment

Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.

That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.

In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:

“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]

The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:

“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”

It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.

Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.

WRITING YOUR WAY TO A WIN

February 28, 2012 § 12 Comments

Imagine you have concluded a grinding trial in a hotly contested case. The chancellor turns to you and says, “You write the opinion. Stick to the facts in the record, recite the applicable law, analyze the factors, and rule in your client’s favor.” After pinching yourself to make sure you’re not dreaming, you’d jump at the chance, wouldn’t you?

There is actually a tool available for you to do that very thing, and, interestingly, few attorneys voluntarily avail themselves of it.

It’s called Proposed Findings of Fact and Conclusions of Law (PFFCL).

Typically when PFFCL are called for, it is at the behest of the judge, and more often than not they are called for in complex cases. But there is no good reason why a lawyer may not request it, and there is no good reason to limit its application to complex cases only. I can not think of a single type of chancery case where PFFCL would not work.

I have seen good PFFCL and bad. The good read like a trial court opinion that would be affirmed on appeal: findings of fact are supported by evidence in the record; the applicable law is set forth; factors are analyzed and conclusions reached; rulings are set out clearly and distictly, resolving every issue in dispute. The bad are, well, bad: facts are injected that never made it into the trial; the law is inapplicable or misapplied; factors are not addressed, or they are not properly addressed; the rulings have no basis in fact or law.

The traditional rule in Mississippi was that if the trial judge adopted your PFFCL verbatim, the appellate court would give the trial court ruling less deference or subject it to heightened scrutiny. In Rice Researchers v. Hiter, 512 So.2d 1259, 1266 (Miss. 1987), the court said:

In our view, the matter of whether a trial court may adopt verbatim, in whole or in part, the findings of fact and conclusions of law of a party is within the court’s sound discretion. See 54 A.L.R.3d 868, supra. Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.

The rule was tossed out only last year in Bluewater Logistics v. Williford, 55 So.3d 148, 157 (Miss. 2011), where the Mississippi Supreme Court ruled that it would continue to apply the “familiar abuse-of-discretion standard” to review of chancery court decisions, even where the chancellor adopted one party’s PFFCL verbatim.

My little opening vignette is unrealistic in one sense: the judge will always allow all parties to submit their own PFFCL. But the judge can pick and choose elements of all that were submitted, or simply adopt one, or use them as a template to do his own, or ignore them.

So there you have it. As long as the findings are supported by substantial evidence in the record and the law is properly applied, the trial court ruling will be upheld. And you can be the one to write it.

A FEW POINTERS ON EXPERTS

February 27, 2012 § 3 Comments

In a few trials lately, I’ve been surprised at the relatively relaxed approach lawyers have taken to identifying the expert witness in discovery, responding to the standard expert witness interrogatories, and even qualifying the expert to testify at trial. If you get lazy with how you present your expert you are inviting error into the record.

Here are a few reminders:

If you are asked in discovery to identify your expert, UCCR 1.10 requires that you must do so not less than 60 days in advance of trial, or you will not be allowed to call the expert.
If you are asked in discovery to provide the information set out in MRCP 26(b)(4)(A)(i) as to the subject matter, ths substance of facts and opinions, and a summary of the grounds for opinions, you must provide a substantial enough answer to give the other side a reasonable idea of what the expert’s opinions will be and what it is that the expert uses as a basis for the opinion. If you do not timely provide that information, the testimony may be excluded, or you may be severely limited by a skimpy answer. This is important, and may be crucial to your case. If you don’t have a system in place to remind you to update and supplement your discovery well in advance of trial, you’d better come up with one for your survival’s sake.
At trial, you must qualify the witness. Here is the process, in a nutshell:
1. Identify the witness.
2. Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
3. Tender the witness as an expert to the court, which will allow the other side to voir dire the witness on qualifications. Remember that you must tender the witness as an expert in a specific field. For example: “I tender the witness as an expert in the field of child psychology and behavioral disorders,” or ” … in the field of surveying,” or ” … in the field of counseling with an emphasis on identifying and treating victims of child abuse and domestic violence,” etc., etc., etc.
4. Address any objections to qualifications.
5. Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
6. Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
7. Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
8. Develop the expert opinion.
You can find some more detailed information about the process at this earlier post.

It’s your case. Try it as you like, but remember that no matter how satisfactory the outcome at the trial level, it’s only as good in the long run as the record you made.

JUDGE, JURY … AND INTERROGATOR

February 14, 2012 § 2 Comments

Lawyers frequently refer to the fact that chancellors are “judge and jury” because the chancellor makes findings of fact as well as conclusions of law in the case.

But there’s another legitimate role of the chancellor … developer of the facts. It’s a duty of chancellors long recognized in our jurisprudence, as this passage from the venerable case of Moore v. Sykes’ Estate, 167 Miss. 212, 219-221, 149 So. 789, 791 (1933), illustrates:

“Ever since our chancery court system has been in operation in this state, going back to the earlier days of our judicial history, it has been an established and well-recognized part of that system that one of the important obligations of the chancellor is to see that causes are fully and definitely developed on the facts, and that so far as practicable every issue on the merits shall be covered in testimony, if available, rather than that results may be labored out by inferences, or decisions reached for want of testimony when the testimony at hand discloses that other and pertinent testimony can be had, and which when had will furnish a firmer path upon which to travel towards the justice of the case in hand. The power and obligation reaches back into the ancient days of chancery when the chancellor called the parties before him and conducted a thorough and searching examination of the parties and the available witnesses and decreed accordingly. And, while now this duty of calling the witnesses and the conduct of their examination is placed in the first instance and generally throughout on counsel, the power and duty of the chancellor in that respect is not thereby abrogated; and while to be exercised only in cases in which it is fairly clear that the duty of the chancellor to intervene has arrived and is present, when that situation does arise and is perceived to be present, the duty must be exercised and is as obligatory as any other responsible duty which the constitution of the court imposes on the chancellor.”

And where the attorneys have failed to develop the proof necessary, the chancellor may reopen the proof, or leave the record open to acquire the necessary proof, so as to be able to adjudicate the case. In In re Prine’s Estate, 208 So.2d 187, 192-93 (Miss. 1968), the court said:

“More than a half century ago our Supreme Court in Beard v. Green, 51 Miss. (856) 859, expressly pronounced upon the obligation and responsibility mentioned, and in that case said: ‘The power of the chancery court to remand a cause for further proof at any time before final decree, and in some cases after it, either with or without the consent of parties, is one of the marked characteristics distinguishing it from a court of law, and is one of its most salutary and beneficent powers. It should always be exercised where it is necessary to the ascertainment of the true merits of the controversy.’ And the court went on to say that it was immaterial as to how the necessity of the action by the court arose, whether through inattention or misapprehension or misconception by counsel or litigants, and that none of these or the like should be allowed to prevent the doing of justice. And the duty of the chancellor in this respect was again declared in a later case, McAllister v. Richardson, 103 Miss. (418), 433, 60 So. 570, 572, wherein it was pointed out that the duty, and this of course carries the power, is not only to remand to rules, but includes the obligation on the part of the chancellor during the hearing to see ‘that all proper testimony was introduced to enable him to render a decision giving exact justice between the contending parties’-to conduct the hearing in such manner ‘that all testimony which will throw light upon the matters in controversy is introduced,‘ and that he is within his privileges and duties in aiding to bring out further competent and relevant evidence during the examination of the witnesses who are produced.”

The ancient practice is incorporated in MRE 614, which expressly provides that “The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.” The rule goes on to say that the court may itself interrogate any witness called by anyone, and objections to the court calling or interrogating a witness in chancery should be contemporaneous.

Imagine a case where only one side puts on proof of the Albright factors in a child custody case with horrific allegations. The neglectful side is represented by counsel who is not quite up to the task. Should the chancellor allow the best interest of a child to be determined on lopsided proof? Or should she let the better-represented side play “gotcha!”? Neither. As Albright itself reiterates, the polestar consideration is the best interest of the child. In her role as the child’s superior guardian (Carpenter v. Berry, 58 So.3d 1158, 1163 (Miss. 2011)), the chancellor has the duty to make sure that there is adequate proof in the record before making a decision. Rule 614 and the judge’s authority to reopen or leave the record open are the tools that the judge can put to good use.

It goes without saying that this considerable power should be exercised with discretion. There is the well-worn tale of the chancellor who interrupted counsel’s questioning of a witness and proceeded into his own lengthy cross examination. The attorney asked to approach the bench and told the judge, “Your honor, I don’t mind you questioning my witness, but please don’t lose the case for me.” So, a judge can be too fond of the sound of his own voice. The balance, perhaps, was laid out best by the Mississippi Supreme Court in Bumpus v. State, 166 Miss. 267, 144 So. 897 (1932): “It is true that ‘an overspeaking judge is no well-tuned cymbal,’ but, in language somewhat similar to that of Mr. Justice McReynolds, in Berger v. U. S., 255 U. S. 43, 41 S. Ct. 230, 65 L. Ed. 489, neither is an aphonic dummy a becoming receptacle for judicial power.”

NOT A MATHEMATICAL FORMULA

February 8, 2012 § Leave a comment

Some lawyers approach the Albright factors like some kind of score card. I remind you, however, that “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So.2d 251, 258 (Miss. App. 2006); Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001).

In Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003) the COA said:

In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion. Shepherd v. Shepherd, 769 So.2d 242, 245(¶ 11) (Miss.Ct.App.2000). In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in her decision for child custody. Id at (¶ 10). See also Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995). We found that it is not enough for the chancellor to simply state that she considered these factors. Hamilton, 755 So.2d at 530-31; Hayes, 658 So.2d at 865. If substantial evidence exists to support the chancellor’s finding of fact, broad discretion is afforded her determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

In Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003), the supreme court said:

… a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else. ‘Above all, in ‘modification cases, as in original awards of custody,’ we never depart from our polestar consideration: the best interest and welfare of the child.’ ” Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996) (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)) (citing Marascalco, 445 So.2d at 1382). See also Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001).

Johnson also stands for the proposition that the chancellor must also take into account the credibility and demeanor of witnesses, and weight of the evidence.

In Weeks v. Weeks, 989 So.2d 408, 411 (Miss. App. 2008), the court affirmed the trial judge’s Abright findings even though the chancellor did not designate which party had “won” each factor. This is because Albright is not a scorecard. It is a template for the court to make findings pertinent to the parents’ relative parenting ability and what is in the best interest of the child. Thus, one or two factors might outweigh all the others combined. For example, the mother’s recent history of psychosis alone may outweigh the fact that she prevails in every other category. But the evidence to support an award of custody based on one or two factors must be strong, and the factors themselves must be substantially related to best interest of the children.

As to how detailed the chancellor’s findings need to be, the COA in Phillips v. Phillips, 45 So.3d 684, 695 (Miss. App. 2010), stated at ¶ 37 that ” … we are not aware of any requirement that the chancellor must acknowledge all of the facts in his analysis of the Albright factors that were presented at trial. The chancellor obviously listened to the testimony at trial — negative and positive for both parties — and made his opinion accordingly.”

MAKING AN END RUN AROUND PIERCE

February 7, 2012 § Leave a comment

In Pierce v. Pierce, 42 So.3d 658 (Miss. App. 2010), the chancellor in a divorce had ordered the husband to pay the wife’s mortgage note until her child by a previous relationship graduated from high school. The COA remanded the case on other grounds, but instructed the chancellor not to tie the payment of the mortgage to any life event of the daughter, since she was not the payor’s offspring. In essence, the order amounted to an improper award of child support.

But what about where the child is the child of the payor? And what about where the payment is not any form of child support?

In Brooks v. Brooks, decided by the COA on December 13, 2011, the payor, Brandon, argued à la Pierce that the trial court had improperly converted payment of the mortgage note into additional child support when the judge tied Brandon’s obligation for mortgage payments to his youngest child’s attainment of the age of 18. He contended that the trial court’s actions were in violation of Pierce.

The COA rejected the argument that Pierce was applicable on the basis that there was no dispute that the child in question was his.

The court went beyond that point to add some significant language:

¶11. We cannot find that the mortgage payment was a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. The chancellor ordered that when the house is sold, Brandon should receive 60% of the equity, and Dawn should receive 6 40%. The chancellor reasoned that “Brandon’s larger percentage will reflect his payment of debt, taxes[,] and hazard insurance over the next sixteen or so years . . . .” The upkeep and maintenance of the property are Dawn’s responsibility, except for repairs in excess of $1,000, which are the equal responsibility of both parties. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. This issue is without merit.

The significance of this language is that it points a direction around Pierce via equitable distribution. If you can persuade your judge to consider mortgage payment as part of the equitable distribution, you can tie the payment to any life event of anyone. This can be helpful in a step-child situation as in Pierce itself, or where there are other child-related obligations not related to children of the parties. And just how do you pitch it? Offer the court through your client’s testimony a balance sheet showing your proposed equitable distribution. The judge might buy it.

CLARIFYING ATTORNEY’S FEES IN CONTEMPT ACTIONS

January 19, 2012 § Leave a comment

I’ve talked here before about some confusion (in my opinion) on the part of the COA as to the criteria to award attorney’s fees in contempt cases as opposed to other cases. The question that gave rise to the confusion was whether proof of the McKee factors and/or inability to pay would be required to support an award of attorney’s fees in a contempt action.

In Williamson v. Williamson, decided January 10, 2012, the COA set the record straight. Judge Carlton’s opinion sets it out at ¶ 28:

Furthermore, we find no merit to Will’s contention that the chancellor erred in awarding attorney’s fees to Mary due to a lack of consideration of the McKee analysis. Will’s argument fails to differentiate the chancellor’s award of attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So. 2d 486, 490 (¶13) (Miss. 2005), the Mississippi Supreme Court explained that, generally, in divorce actions, appropriate attorney’s fees are awarded in an amount to secure a competent attorney. However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id.; see also Patterson, 20 So. 3d at 73 (¶26) (stating that an award of attorney’s fees is appropriate when there is a finding of contempt, and “[n]o showing as to the McKee factors is required”); Bounds v. Bounds, 935 So. 2d 407, 412 (¶18) (Miss. Ct. App. 2006). As stated, Mary introduced an itemization of attorney’s fees into evidence at trial. Will failed to provide sufficient evidence showing that the attorney’s fees testified to by Mary were unreasonable. Therefore, we find no abuse of discretion by the chancellor in finding Will in contempt and in awarding Mary the attorney’s fees she incurred in bringing her petition for contempt. See Mabus, 910 So. 2d at 489 (¶8) (“Where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney[’s] fees and expenses should be awarded to the wronged party.”).

I think that language pretty well clarifies the law on the point. In contempt cases, contrary to other cases such as divorce, proof of the McKee factors is not required, nor is proof of inability of the wronged party to pay; however, you must put on proof to show the fees incurred and the reasonableness so that the trial judge has some objective standard to apply.

There is one often overlooked avenue for establishing the reasonableness of attorney’s fees. It’s set out in MCA 9-1-41, which reads as follows:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided, however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

In my opinion, the statute is something you can use to your advantage in a contempt case, since McKee proof is not required. But be careful in trying to apply it in other kinds of cases. In Doe v. Doe, 644 So.2d 1199, 1209 (Miss. 1994), the supreme court said:

It is true that Miss.Code Ann. § 9-1-41 (1972) allows an award of attorney fees based “on the information already before it and the court’s own opinion.” However, such discretion still requires some guidelines. Guidelines help to insure that the chancellor’s award is based on factual information and is not arbitrary. This Court accordingly holds that chancellors should grant attorney fees under Miss.Code Ann. § 9-1-41 (1972) after considering the factors for attorney fees as stated in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982).

Doe was not a contempt case. It was an action for termination of visitation rights based on allegations of sexual abuse. In non-contempt actions the rule is that you will need to put on the proof required by the case law. In divorce cases, for example, that means proof of the client’s inability to pay as well as McKee proof.

ANOTHER OBJECT LESSON IN PSA DRAFTSMANSHIP

December 21, 2011 § 2 Comments

What does the following language in a divorce property settlement agreement (PSA) mean?

The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].

That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.

Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.

Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.

Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.

The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.

In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.

This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”

A few suggestions:

As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection.
Here are five suggestions for improving your PSA’s.
And here are five more.
Here is a post about a nightmare scenario in draftsmanship.
Kicking the can down the road, and why it’s not a good idea in your PSA’s.
And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.

Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.

ANOTHER ASPECT OF IMPUTED INCOME

December 20, 2011 § Leave a comment

We’ve discussed imputed income here before. In essence, income can be imputed where the payor claims reduced income or incapacity in certain situations.

Another situation for imputed income arises where the judge finds that the payor has greater income than is reported on the financial statement and in the testimony. Such was the case in Brooks v. Brooks, decided by the COA on December 13, 2011.

In Brooks, at ¶ 9, the COA upheld the trial court’s decision not to accept the husband’s testimony about his income. The husband, Brandon, was a self-employed attorney who reported fluctuating income. The chancellor relied on Brandon’s 2007 income tax return to determine income because that was the only tax return he provided; he did not offer his 2008 or 2009 returns into evidence. In the absence of the two subsequent returns, the COA ruled, it was reasonable for the court to rely on and draw conclusions from the information submitted.

Brandon also contended that his income was insufficient to pay alimony to his former wife, Dawn, in the amount ordered, but the COA rejected that argument, at ¶ 22:

The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:

“. . . Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.”

From the payor’s standpoint, the more accurate and credible evidence you offer the court to establish income, the better off your client will be. Explain and document discrepancies and inconsistences, or run the risk that the court will construe them against your client.

From the recipient’s standpoint, attack income information and don’t take it at face value. You might persuade the judge to find that there is more income there than is being reported.

Where Am I?