Ethics and Social Media
August 19, 2013 § 3 Comments
Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.
Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.
Are there ethical implications to that advice?
Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:
A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.
Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.
Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.
Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.
As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.
The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.
It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.
Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.
I don’t have an answer. I only have the question.
An earlier post on introduction of all forms of electronic evidence is here.
Thanks to attorney Marcus D. Evans.
Speculation About Undue Influence Will Not Win the Case
August 8, 2013 § 1 Comment
We’ve talked here before about what one needs to prove to make out a case of undue influence in a will contest. It’s not an easy case to make, and the proof must be clear and convincing
In the COA case of Estate of Strong: Johnson, et al. v. Washington, handed down July 16, 2013, contestants Johnson, Foster, Miller and Wright claimed that their father, Rev Strong, had been subjected to undue influence when he executed a will in 1986. Washington came to be appointed executrix of the contested will.
Under the terms of the will in question, Rev. Strong left $10,000 to Miller, and bequeathed some real property to Wright. All of the residuary estate went to his wife, Earnestine, who was the step-mother of the contestants. Johnson and Foster were disinherited.
The parties engaged in discovery, following which Washington filed a motion for summary judgment.
The contestants filed three affidavits in oppositiion to the motion, alleging that Earnestine had been controlling, and that Rev. Strong had stated on many occasions that he regretted marrying her. They averred that Earnestine would not even allow the contestants into the home to visit their father. The contestants admitted that their father had testamentary capacity at the time he executed the will, and that he was of sound mind, They emphasized that Rev. Strong was a private person who handled his own financial and business affairs. There was no proof that Rev. Strong was in poor health or suffered from any condition that made him dependent on Earnestine. The record also established that Earnestine was not present when Rev. Strong executed the will, and that he kept it in a safe deposit box to which Earnestine did not have access.
If the contestants made a triable issue for a jury, then, it turned on their allegations that Earnestine was overbearing and controlling. Did they make a case sufficient to get by MRCP 56?
The chancellor ruled that they did not, granted summary judgment, and the contestants appealed.
Here is how the COA addressed the issues, per Judge James:
¶12. The only evidence the Contestants have to support their assertion of undue influence is the three affidavits alleging that Earnestine was overpowering and controlling toward Rev. Strong. However, not one of the affidavits contains specific facts showing that Rev. Strong was improperly influenced by Earnestine during the execution of the disputed will. The Contestants’ blanket allegations do not pass muster to show a triable issue. “The trial court should only submit an issue to the jury when the evidence creates a question of fact over which reasonable jurors could disagree.” In re Last Will & Testament & Estate of Smith, 722 So. 2d 606, 611 (¶17) (Miss. 1998) (citing Vines v. Windham, 606 So. 2d 128, 131 (Miss. 1992)). Here, the evidence does not formulate a factual question over which reasonable jurors could disagree.
¶13. “A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will.” [In re Last Will and Testament of] Smith, 722 So. 2d [606] at 611-12 (¶18) (citing Simm v. Adams, 529 So. 2d 611, 615 (Miss. 1988)). However, the existence of a confidential relationship, alone, does not automatically raise a presumption of undue influence. [In re Estate of] Laughter, 23 So. 3d [1055] at 1064 (¶37) (citing Wright v. Roberts, 797 So. 2d 992, 999 (¶21) (Miss. 2001)). There must be circumstances where the beneficiary in the relationship took some active part in preparing the will. Id. (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959)). There is no evidence of undue influence here. As previously mentioned, there is nothing in the record to suggest that Rev. Strong was dependent upon Earnestine in any capacity. According to the Contestants, Rev. Strong was very independent and handled his own financial affairs. Earnestine was never granted power of attorney during their marriage. Furthermore, there is no evidence that Earnestine actively participated in the will’s preparation or was present during its execution.
The court also quoted from In re Estate of Pigg, 877 So.2d 406, 412 (Miss. App. 2003) as to what the contestants need to show to make a jury issue:
[¶10] … Those contesting a will need not present sufficient evidence to prove undue influence. The contestants, however, must at least raise sufficient question to cause jurors to conclude that the proponents failed to prove that the will was free of improper influence[.] . . . The jurors had to decide if the inferences of undue influence made the quantum of evidence in support of due execution less than a preponderance. The best evidence on the issue was the testimony of the subscribing witnesses and others who were present during the execution. From no one contemporaneously involved . . . was there any suggestion that Mrs. Pigg was unaware of what she was doing or that her personal desires had been overwhelmed by someone else. Doubts about due execution that arise solely from speculation are insufficient. That would be too light a counterweight to the evidence of proper execution. [Emphasis in original].
The counterweight sufficient to overcome evidence of proper execution is clear and convincing evidence that the the dominant person in the relationship was in a position to exercise undue influence due to the other’s weakness of mind or body, or due to trust, and it has to be proven by clear and convincing evidence. It’s not necessarily whether the dominant person did or did not exercise dominant influence; rather, the issue is whether he was in a position to do so. If the answer to the inquiry is that there is clear and convincing evidence that the dominant person was indeed in a position to exercise undue influence, the presumption arises, and the burden shifts.
In this case the contestants’ proof fell short because they could only speculate that their father acted against his true wishes, and they had no proof that Earnestine was actually in a position to exercise undue influence. The mere facts that she was domineering and even alienating were not enough.
Another Non-Family-Use Case
August 7, 2013 § 2 Comments
I’ve mentioned here before that I am no big fan of the “family-use” doctrine that morphs separately-owned property into marital merely because it was used by the family.
There are some exceptions to the rule, however, as I have posted about. Here is a post where the COA refused to apply it. Here is another post where I pointed out cases holding that neither plantation and maintenance, nor payment of taxes, nor even joint titling convert separate property into marital.
The latest case, Renfro v. Renfro, decided by the COA on July 30, 2013, is yet another where the appellate court did not agree with the chancellor’s application of the concept.
Claudia and Johnny Renfro married in 1987, and had no children. In January, 2011, they separated after Claudia discovered that Johnny was involved in an adulterous affair, and Claudia sued for divorce.
At issue in the divorce was equitable distribution. The parties had accumulated the usual marital things, including cars, retirement accounts and other financial assets, a residence. In addition to all of the other assets, there was a 140-acre tract of unimproved land that Claudia’s mother had deeded to her in 2007.
Following a trial, the chancellor adjudicated all of the assets, including the 140-acre tract, to be marital property subject to division. She allocated one-half of the assets, which totalled in value nearly $600,000, to each party. In her opinion, the chancellor found as to the 140 acres as follows:
The testimony and evidence is substantial that the management of the property, including its enrollment in government programs, planting of trees, leasing for hunting purposes, construction of gates and roads, spraying and paying of taxes was solely at the control of [Johnny]. Further, and perhaps most importantly, [Claudia] indicated that the development and management of the property as a tree farm was for the purposes of providing income for the parties’ retirement. As such, the court finds that the normally non-marital character of the property was changed by the family[-]use doctrine, Algood [v.] Algood, 63 So. 3d 443 (Miss. [Ct.] App. 2011), as well as by conversion by implied gift, Algood, supra, such that the property lost its non-marital nature and now must be considered marital property subject to equitable distribution.
Claudia appealed, complaining primarily that the 140 acres was not marital property subject to division, and that the chancellor had misinterpreted the evidence.
In its opinion, penned by Judge Carlton, the COA found that there was inadequate evidence to support the judge’s finding that the tree farm on the property had been developed as part of the parties’ retirement plan.
As for the other indicia of family use relied upon by the chancellor, the COA said:
[¶16] … We also find error in the chancellor’s determination that Johnny’s actions of enrolling the land in government programs, planting trees, leasing the land for hunting purposes, constructing gates and roads, spraying the land, and paying taxes on the property constituted sufficient evidence to convert the land into a marital asset. See Hankins [v. Hankins,] 729 So.2d [1283]at 1286-87 (¶15); Ory [v. Ory], 936 So. 2d [405] at 411 (¶15). This Court has held that property-tax payments are traceable and do not transmute separate property into marital property. Brock v. Brock, 906 So. 2d 879, 888 (¶50) (Miss. Ct. App. 2005) (quotation omitted) (“[T]he key to determining when there has been transmutation [from separate property to marital property] by commingling is whether the marital interests can be identified, i.e., can be traced.”). We also find no evidence submitted by Johnny to show how the land increased in value during his marriage to Claudia, or that an agreement existed between Claudia and Johnny that Johnny’s actions of managing the land would give him an interest in the property.
¶17. As acknowledged, nonmarital assets may lose their status as such if the party commingles the asset with marital property or uses the assets for the benefit of the family. Johnson, 650 So. 2d at 1286. However, Claudia testified that she and Johnny never used the land for any family purposes. Significant to our analysis, we recognize that in the recent and similar case of Marter v. Marter, 95 So. 3d 733, 737-38 (¶¶14-16) (Miss. Ct. App. 2012), this Court held that evidence that the husband maintained the property inherited by the wife, paid the property taxes, and planted some trees on the property did not convert the property to marital property by virtue of commingling.
¶18. Accordingly, we find the chancellor erred in classifying the 140 acres as marital property. The record fails to show that the real property at issue was converted to marital property through the family-use doctrine, since the property was not used for a family purpose. Additionally, Johnny’s testimony only showed a potential intended purpose for the property in the future. See Deborah H. Bell, Bell on Mississippi Family Law § 6.04 (2005). The record also fails to contain evidence that Claudia commingled the property or used it as collateral for family purposes. See Bell, § 6.04[2]. Also, insufficient evidence exists in the record to show that Johnny contributed anything of significance to the improvement of the property. The record shows little, if any, contribution by Johnny, and shows that Claudia owned the property for only three years while she cohabited with Johnny. For the foregoing reasons we reverse the judgment of the chancery court on the matter of equitable division of the property — specifically, the classification of the 140 acres as marital property — and remand to that court for further proceedings consistent with this opinion.
That is a template you might be able to use in extricating your client’s property from the grasping tentacles of the family-use doctrine.
It’s still beyond me that activities like infrequent use of a beach condo, or fishing in a lake, or use of an antique chair, would convert separate property to marital, while plantation and maintenance would not. But, hey, I’m not complaining. Any exception to this rule is gratefully welcomed by me!
The Power to Bind the Client
July 30, 2013 § 5 Comments
When you accept the responsibility to represent a client and enter an appearance or otherwise hold yourself out as representing a party, the court will presume that you have the authority to speak for and bind that party.
That principle came into play in the COA case of Williams v. Homecomings Financial Network, Inc., handed down July 23, 2013.
In that case, Samuel and Carolyn Williams retained a law firm to sue their mortgage company for fraud. They were two of a group of 16 plaintiffs with similar claims. Their attorney, Martin, signed the complaint initiating the suit, holding herself out as counsel for the Williamses. Another attorney in the firm, Nelson, participated.
Terms of settlement were reached, and the attorney signed an agreed judgment of dismissal without prejudice. All of the plaintiff signed the settlement documents except Samuel and Carolyn Williams, who refused to sign. Their attorney withdrew from representation.
Homecomings filed suit to enforce the settlement agreement, and the chancellor ruled in favor of the mortgage company, whereupon the Williamses appealed.
The main point raised by Samuel and Carolyn on appeal was the admission into evidence of the deposition of their former attorney, which they argued contained inadmissible hearsay. For our purposes, though, it’s the authority of counsel and the power to bind the client that concerns us. Here are some points from Judge Carlton’s COA opinion, which affirmed the chancellor:
- ¶13. [From the chancellor’s opinion] “There is a long-standing principle in [the] law that settlements are contracts which are enforceable according to their terms. An attorney is presumed to have the authority to speak for and bind his client. Parmley v. 84 Lumber [Co.], 911 So. 2d 569 (Miss. Ct. App. 2005). Whether or not an attorney has agreed to a settlement on behalf of his client is a question of fact. Id.
- ¶17. In this case, as previously noted, Martin expressed on the record through deposition testimony that he had the authority to bind the Williamses to the terms of the settlement upon learning from Nelson of the Williamses’ alleged acceptance of the proposed settlement. As also previously noted, the record reflects that Martin signed the complaint against Homecomings on behalf of the Williamses. We thus find that the record provides substantial evidence supporting Martin’s authority as counsel of record to bind the Williamses to the agreement. We also find substantial evidence exists to support the chancellor’s order enforcing the settlement agreement. See Parmley, 911 So. 2d at 573 (¶19). Furthermore, Martin’s testimony that he possessed authority as the Williamses’ attorney to accept the settlement terms, coupled with Martin signing the complaint on behalf of the Williamses, demonstrates that Martin indeed possessed the authority to enter into a settlement and bind the Williamses to the terms of any such agreement with Homecomings. Fairchild, 254 Miss. at 265, 179 So. at 187.
In other words, when you sign the pleadings and act like a lawyer with authority to act in a case, the court is going to presume that you have that authority.
And what are the evidentiary implications of that presumption when the court is called upon to make that finding of fact? Here is what the COA said as to the issues in this particular case:
- ¶16. Mississippi Rule of Evidence 801(d)(2)(C) provides that a statement is not hearsay if “[t]he statement is offered against a party and is . . . a statement by a person authorized by him to make a statement concerning the subject[.]” Our supreme court has held that “[a]n attorney is presumed to have the authority to speak for and bind his client.” Parmley, 911 So. 2d at 573 (¶19); see also Pace v. Fin. Sec. Life of Miss., 608 So. 2d 1135, 1138 (Miss. 1992); Fairchild v. Gen. Motors Acceptance Corp., 254 Miss. 261, 265, 179 So. 2d 185, 187 (1965). Additionally, we recognize the determination of “[w]hether or not the attorney has agreed to a settlement on behalf of the client is a question of fact.” Parmley, 911 So. 2d at 573 (¶19).
So, when you speak on behalf of the client under color of the client’s authority, your statements will be admissible as non-hearsay. Attorney-client privilege obviously restrains the scope of admissibility, but does not proscribe it.
You can help avoid factual disputes over the scope of your authority by using representation agreements that clearly define it. As the case progresses, document key discussions with your client via followup letters. Get your client to sign off on orders and agreements that will affect the outcome of the case.
Equitable Distribution of Hidden Assets
June 26, 2013 § 2 Comments
What do you do when one party hides assets she claims are separate, and refuses to divulge their whereabouts? You divide them anyway. At least that is what happened in Wilson v. Wilson, decided June 11, 2013, by the COA.
Penny and Gregory Wilson had the kind of financial arrangement that one sees from time to time in a divorce case. Penny made most of the income, apparently, and the parties maintained completely separate banking and finances. Gregory paid Penny a sum that they agreed was one-half of the household expenses, and some extra money when he worked odd jobs or when Penny wanted to go on vacation. One might say that Gregory was renting his marriage.
Penny was quite the financial wizard. She had managed to accumulate more than $200,000 in a credit union account, but she withdrew the money before trial and, according to the COA opinion, she ” … declined to reveal where she had placed the funds from that account” (¶ 4). She also managed to squirrel away some cash in several CD’s, but she cashed those in also, and when asked where the cash was, she ” … refused to reveal its location to the chancery court” (¶ 6).
Now, let’s stop right there.
What exactly is any self-respecting chancellor to do when confronted with a party who blatantly and wantonly refuses to comply with the express dictates of UCCR 8.05?
Rule 8.05(a) requires these disclosures:
A detailed written statement of actual income and expenses and assets and liabilities, such statement to be on the forms attached hereto as Exhibit “A”, copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed; and, a general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable …
There is no exception for separate property, or what one claims to be separate, or any other financial information. The rule specifically requires disclosure of actual income and expenses, as well as assets and liabilities, without exception.
The rule also states that:
The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties.
What the chancellor chose to do here was to divide the assets between Penny and Gregory, over Penny’s protestation that Gregory had not contributed to their accumulation, and that they were separate. In affirming the chancellor’s ruling, the COA pointed out that the burden was on Penny to prove the non-marital character of the assets (¶ 14), which she failed to do.
I guess that the chancellor decided that Penny had, in fact, disclosed the assets as required in UCCR 8.05, to the extent that she subjected them to adjudication, and her attempt to conceal them would not shield them from execution. Still, I find it troubling that a party could take the stand and expressly refuse to be candid and forthright about her assets, for a couple of reasons:
- There already exists a “fudge factor” in most financial statements. It’s not uncommon for parties to overestimate their expenses, overlook overtime and bonuses, and minimize self-employment income. When a party takes the stand and professes to be hiding assets, that kicks it up to an entirely different level.
- When one hides assets, no one knows for sure exactly how much money or value we are dealing with. Penny disclosed that there was $217,000 in the credit union account, but if she divulged the institution and account number, discovery might have found the real balance to be more like $300,000. And there is nothing in the COA opinion to show that Penny ever told the balance that had been in the CD’s.
I can’t say that I would have overlooked Penny’s intransigence.
I also don’t understand how Gregory’s lawyer did not raise cane before trial over the secretion of more than $200,000 in cash and CD’s. Gregory had a substantial stake in establishing their true value. The chancellor awarded him 40% of the credit union money. There is a big difference between 40% of 200,000 and 40% of $300,000.
Pitfall in Proving Parentage Produces a Pratfall
June 25, 2013 § 1 Comment
The COA decision in Ivy v. Ivy, decided December 11, 2012, is a tour de force analysis of the hearsay rule and the parentage presumption. It’s far beyond the scope of this humble blog to break the 30-page majority and 10-page dissenting opinions down in detail, but the case bears mentioning for a few points:
- If you intend to offer a document into evidence that pertains to a material fact and is circumstantially trustworthy but not within any of the specific hearsay exceptions, it may not be admitted unless you first comply with MRE 803(24), which requires you to give the other side notice of it and an opportunity to “prepare to meet it.”
- Even self-authenticated documents under MRE 902 require prior notice to opposing counsel before they may be admitted at trial.
- The majority opinion’s analysis of the confusing welter of statutes for acknowledgment of paternity may be helpful to you, particularly in a wrongful-death setting as was the case here.
In Ivy, the battle was to determine who were the heirs at law and wrongful-death beneficiaries. There was a lot at stake, because the decedent had been killed in a car-train collision in Kemper County, which had the potential to produce a lucrative verdict or settlement.
The chancellor admitted into evidence an affidavit and DNA test that supported the conclusion that the decedent’s mother and siblings were the only heirs and wrongful-death beneficiaries. The COA ruled, after detailed analysis, that the chancellor should not have admitted the affidavit and DNA report into evidence. The case was remanded for “further proceedings consistent with this opinion.” To me, this means that the parties are headed for a do-over, with the COA majority opinion as a road map to a proper conclusion.
LAWYERS AS WITNESSES
June 12, 2013 § 5 Comments
On two occasions this year I have seen lawyers take the witness stand and, with absolutley no objection from the other side — not even a quiver of objection — have proceeded to testify as to the merits of the matter at hand. In neither case was the testimony dispositive.
That flies in the face of my preconceived notion that lawyers who are representing a party in a case are not supposed to testify in that case, except as to attorney’s fees and, possibly purely procedural matters.
So I checked Jeffrey Jackson and Donald Campbell’s excellent Professional Responsibility for Mississippi Lawyers, MLI Press, 2010, and — voila! — here is what they say at § 25: 8, p. 25-10:
At trial, a lawyer is an advocate, and not a witness. A lawyer who is in the position of being a material witness would usually be disqualified from representation under [Mississippi Rules of Professional Conduct] Rule 3.7, which seeks to avoid jury confusion over the lawyer’s advocate and witness roles. If a lawyer acts as an advocate, she should not assert personal knowledge of facts at trial. Such assertions of personal knowledge are prohibited under [Mississippi Rules of Professional Conduct] Rule 3.4(e) except when the lawyer is otherwise properly testifying as a witness. [Footnote omitted]
The text alludes to juries, but I think it is applicable also to bench trials also where the lawyer takes the witness stand and acts as a material witness. The lawyer intends for the testimony to be taken as substantive and given probative weight, when the witness was — or should have been — disqualified from testifying in the first place.
The official Comment to Rule 3.7 says that, “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” The Comment adds that the opposing party has an objection whenever the combination of roles may prejudice that party’s rights in the litigation.
The provision in Rule 3.7 that lawyers who are material (the word “necessary” is used in the rule) witnesses are disqualified has the obvious purpose of prohibiting lawyers from avoiding the witness stand by taking cover behind the advocate’s role and its prohibition against testifying.
With the exception of attorney’s fees, I don’t think it’s a good idea for lawyers in a representative capacity to take the witness stand.
THE PRICE OF ADMISSION
June 11, 2013 § 5 Comments
We all know that MRCP 36 dealing with Requests for Admission (RFA) has some sharp teeth that can inflict painful, if not fatal, wounds on your case. R36(b) says that any matter admitted is “conclusively admitted,” unless the court allows withdrawal or amendment of the response.
The scope and dire effect of that “conclusively admitted” language was explored in the COA case of Aydelott v. Quartaro, decided June 4, 2013. The case at trial was one for grandparent visitation, based on a claim that the grandparents had established the statutorily-required relationship with the grandchildren and had provided support. The chancellor allowed the Quartaros to testify contrary to their admissions, which had been neither withdrawn or amended.
So, was the chancellor’s ruling an inconsequential procedural matter not rising to the level of error, or did it warrant reversal? Here’s how Judge Maxwell answered the question:
¶16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quartaros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters—and thus had never established a viable relationship—had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss. 2009); Boyd v. Boyd, 83 So. 3d 409, 416 (¶21) (Miss. Ct. App. 2011).
¶17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So. 2d 854, 858 (¶5) (Miss. Ct. App. 2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially—by allowing Shassidy’s mobile home to be placed on their land—and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions—and is silent about how and when the Quartaros could move for withdrawal or amendment—the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So. 3d at 416-17 (¶¶21-22).
¶18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So. 2d at 859 (¶¶8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So. 2d at 859 (¶9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So. 2d at 859 (¶¶8-9).
¶19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered—namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, . . . ‘it is not intended to be applied in Draconian fashion.’” Leverock, 23 So. 3d at 432 (¶28) (quoting DeBlanc v. Stancil, 814 So. 2d 796, 801-02 (¶26) (Miss. 2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error—the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.
The decision went on to say that the mere thwarted desire to establish a relationship is not enough.
This case makes clear that inattention to timely supplementation of your discovery can cost your client big, even to the extent of getting a win turned on its head. If in trial preparation or any point before you believe the prior answers to RFA’s are incorrect and too restrictive, move for leave to amend.
Also, pardon me for sounding harsh, but I think the responses to the RFA’s might have been too “cute.” For example, intead of admitting that they had not supported the children because the mother threw things away, I think it would have been quite accurate and truthful to deny it something like this: “Denied as stated. We have bought numerous things for the children, but our daughter has thrown them away.” Sometimes, in that urge to strike back, clients say things that come back to haunt them. That’s what it looks like happened here.
If you try any grandparent visitation cases, you need to be fully aware of the two major categories of cases, as well as the Martin v. Coop factors. Merely because you have grandparents who are willing to pay you a retainer to try for visitation does not mean they have a viable case.
WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE
May 28, 2013 § Leave a comment
I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.
I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?
The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.
That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).
I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:
¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.
It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.
If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.
WHEN FINANCIAL PROOF IS JUDGE ABUSE
May 22, 2013 § 10 Comments
The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.
Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.
No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.
In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:
¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.
The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.
I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.
Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.
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