MEDIATION THAT WORKS, PART I: DON’T BE AN ADVOCATE
November 13, 2012 § Leave a comment
This is Part I in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
DON’T BE AN ADVOCATE
What are the “to dos” of being an effective counsel in a mediation setting?
As lawyers, we have been taught advocacy, and advocacy has a part in mediation. But zealous advocacy does not.
Instead of advocating for our client in a mediation setting, step back and consider why our client has chosen to mediate (or why the judge has demanded we mediate) and, within those parameters, how we can be most effective.
Mediation is a different animal from litigation and we must recognize this in order to be effective for our client. In many ways, becoming an effective counsel in a mediation setting is a paradigm shift. In our heads, we must see our client and the opposite party as joint problem-solvers, not adversaries. We must coach them to work together to reach a wise and workable decision. We must encourage them to be open about their interests and look for win-win opportunities.
This is difficult. It is not in our adversarial nature to lead our client to such rational behavior. And it certainly is not the mindset of the client during the course of a lawsuit. But we must lead our client to rational behavior, sensitive behavior and nuanced attention to detail in order that we, together – client and attorney – can get the best result in mediation.
A BANKRUPTCY BUGABOO
November 1, 2012 § 1 Comment
Bankruptcy, particularly Chapter 7 liquidation, used to be such a complicating factor in chancery court. Divorce trials were held up for years while one or both parties pursued their arcane remedies in the alchemy of bankruptcy. Contempts and modifications were brought to a screeching halt. Everyone knew and feared the “automatic stay,” even if most did not even understand its scope and reach.
And so it was that Ian Garcino, attempting to collect a divorce-related debt from his ex-wife, Amanda Noel, encountered the buzzsaw of bankruptcy and unwittingly suffered its bite.
In 2008, the chancery court awarded Ian a judgment against Amanda in the sum of $16,278, which the court ordered her to pay within 60 days. Amanda not only did not pay, but she filed a Chapter 7 bankruptcy petition.
Now, 11 USC § 523(a)(5), (15) excludes debts to spouses, ex-spouses, and children from the list of dischargeable matters. So Ian, no doubt out of an abundance of caution, penned a handwritten letter to the bankruptcy court advising the court that the debt in question arose out of a divorce property settlement between him and Amanda, and concluding that “Under applicable present bankruptcy laws this debt should not be discharged.”
The bankruptcy court treated Ian’s letter as a pleading initiating an adversary proceeding. That’s because, since 2005, the bankruptcy laws no longer require a party in Ian’s position to do anything, since the debt is in and of itself not dischargeable. When Ian filed his letter, he in essence put something into controversy that would have been beyond controversy had he done nothing.
Belatedly, Ian learned from a bankruptcy lawyer (who might have been able to give Ian some advice before he wrote the ill-fated letter) the folly of what he had done, but before Ian could take any action the bankruptcy court entered its order dismissing Ian’s proceeding due to his inaction.
Later, when Ian tried to execute on the judgment in chancery court, the chancellor granted a stay of execution finding that the debt was adjudicated to be discharged in bankruptcy court. Ian appealed.
In response to the appeal, Amanda raised two issues: One, that the chancery court lacked jurisdiction to adjudicate dischargeablility; and Two, that the bankruptcy court’s decision was res judicata on the issue of dischargeability, and was binding on the chancery court.
Judge Maxwell’s opinion in Garcino v. Noel, decided by the COA October 23, 2012, is one you should read for its exposition on the law of Chapter 7 bankruptcy vis a vis chancery practice. Here’s how the court disposed of the jurisdictional argument:
¶22. [Amanda’s] first suggested reason—that the chancery court lacked jurisdiction to make such a determination—is clearly wrong. “It is well established . . . that ‘bankruptcy courts and state courts maintain concurrent jurisdiction to decide exceptions to discharge arising under [section] 523(a)[.]’” Marvin v. Marvin, 659 S.E.2d 579, 581 (Va. Ct. App. 2008) (quoting Monsour v. Monsour (In re Monsour), 372 B.R. 272, 278 (Bankr. W.D. Va. 2007)). “Although only the bankruptcy court can decide whether to grant a discharge in bankruptcy, the effect of such a discharge may be determined by any court in which the issue is properly raised.” Burns v. Burns, 164 S.W.3d 99, 103 (Mo. Ct. App. 2005) (citing Timmons v. Timmons, 132 S.W.3d 906, 915 (Mo. Ct. App. 2004)); see also Rogers v. McGahee, 602 S.E.2d 582, 586 (Ga. 2004) (holding that “a general discharge in bankruptcy does not deprive the state court of its jurisdiction to determine whether certain debts of the debtor former spouse are exempt”) (citations omitted). [Footnote omitted]
The COA found, however, that the res judicata argument was dispositive. The court held that the four identities required for res judicata were present because Ian brought the same claim, that the debt had not been discharged, against the same party in both the chancery court and in the bankruptcy court. The court held at ¶ 26 that the bankruptcy court’s adjudication was one on the merits, making it binding on other courts.
There are several lessons you can take from this case: One is that you don’t need to blunder into bankruptcy court unless you know what you are doing and know the possible effects of your actions; Two, the burden now is on the Chapter 7 bankruptcy petitioner to convince the bankruptcy court to stay the judgment, not vice versa, so you may proceed in chancery as if there were no impediments; and Three, res judicata has teeth.
PS … as Judge Maxwell’s opinion points out, this post is relevant to Chapter 7 bankruptcy, but it has limited applicability, if at all, to Chapter 13 and other forms of bankruptcy.
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.
PINNING DOWN THE MEANDERING LINE OF DEMARCATION
October 15, 2012 § 2 Comments
You might recall that I whined back in July about the Cuccia case from the MSSC that sent a case back to the chancellor to establish the line of demarcation for accumulation of marital equity. There was a temporary order in Cuccia, which under the case of Pittman v. Pittman, 791 So.2d 857, 864 (Miss.App. 2001), would have seemed to settle the question. Not so, said the high court, and sent it back.
So, with Cuccia and Pittman in mind, let’s look at this scenario: You represent the husband who at the time of the separation in 2004 has around $120,000 in a 401(k) account, and $270,000 in a pension fund, some of the latter of which is pre-marital. The parties file divorce pleadings in 2005, and continue legal sparring, but neither brings any request for temporary relief before the court.
In March, 2011, the chancellor adjudicated the case, dividing the 401(k) account as of the date of the divorce, and dividing other marital assets, including the pension, as of the date of the separation.
Your client is unhappy with the facts that (a) all of the other assets except the 401(k) were divided using the date of separation, and (b) the chancellor included the entire 401(k) value in the division, since it had appreciated by about $85,000 in the seven years from the separation to the final judgment, without any direct or indirect contribution by his wife. He tells you to appeal.
The above is what happened in Welch v. Welch, decided by the COA October 9, 2012.
As for the inconcistency in division dates among the assets, the COA brushed that argument aside by pointing out that Mr. Welch (Henry) had not contested the division of the pension, and, without saying so, that if he had he would have been even more unhappy because he might have lost even more ground to his wife (Susan). Judge Irving’s opinion explains why:
¶13. Based on the above, it is clear that the chancery court used the date of separation forpurposes of classifying the marital and separate portions of Henry’s pension. However, Henry does not challenge the court’s classification of his pension; instead, he argues that the same approach should be applied to his 401(k). Therefore, according to Henry, the chancery court should have found that any appreciation in the balance of his 401(k) account following the couple’s separation on December 23, 2004, was his separate property.
¶14. However, because there was no temporary-support order or separate-maintenanceorder entered in this case, the end date for the tallying of marital property was the date of the final judgment of divorce. Henry points out the inequity of awarding Susan one half of the entire value of his 401(k) given the Welches’ lengthy separation prior to divorce. However, this Court has previously held that a husband’s investment accounts were marital even though both accounts were opened after the couple separated and the husband was the sole contributor to the accounts. Stone v. Stone, 824 So. 2d 645, 647 (¶6) (Miss. Ct. App. 2002). This Court noted that even though the Stones were “separated and living apart prior to the divorce, [they] did not seek any order of separate maintenance[.]” Id. at 648 (¶7). Consequently, there was “no clear line of demarcation” after which the couple’s assets stopped being marital other than the date of the judgment of divorce. Id.
¶15. In Stone, the parties had been separated for over five years when the chancery court granted their divorce. Id. at 646 (¶¶1-2). Nonetheless, this Court held that property acquired during the separation was marital. While the Welches were separated for over seven years, we do not find that the length of their separation warrants a departure from our holding in Stone or existing supreme court precedent. As all of Henry’s contributions to the 401(k) account and its appreciation in value occurred during the marriage, the chancery court did not err in classifying the entire balance as marital property. This issue is without merit.
Here are a few points to ponder:
- I am sure Henry and his lawyers were delighted when Susan did not press for temporary support. After all, paying money to an estranged wife is like buying oats for a dead horse, isn’t it? But look at what the non-entry of a temporary order in this case wound up costing Henry in terms of his 401(k), and could have cost him had the chancellor applied the judgment date to division of the pension and other assets. It could be that Henry saved money over the long (seven year) run, or maybe he didn’t. We’ll never know for sure. But the holding in this case is something you need to discuss with your client before taking the bait and letting the case go ahead sans a temporary order.
- Read Cuccia, Godwin, Pittman and Welch and get an appreciation for how important it is to set a demarcation date. The trend seems to be away from discretion in the chancellor, and toward bright-line rules, but if there’s any wiggle room, exploit it for the benefit of your client. Try to persuade the judge to set the line where it will do your client the most good.
- This case did not address the propriety of the chancellor using different demarcation dates for different assets. Is that kosher? We don’t know for certain, because the COA did not take it on directly due to the way Henry framed his issues on appeal. My guess is that, unless the chancellor has a really well-reasoned, substantial reason, it’s not a good idea to use different demarcation dates.
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.
TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #1
October 4, 2012 § 2 Comments
This is the tenth and last 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 are 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 #1 …
Be Professional. Safeguard your reputation with the court.
Being professional is a combination of a lot of traits that include preparation, punctuality, competence, and a professional demeanor. Here is a bulleted list of some things to bear in mind:
- Be on time. It is rude in the extreme to keep the court and everyone else waiting while you mosey your way to the court house. Some judges hate it so much that they treat it as contempt. UCCR 1.05 specifically says, “When any civil action has been set for, or adjourned to, a particular hour, all officers, parties , witnesses and solicitors [ed.’s note: solicitor is the old-fashioned term for a practitioner in chancery court] whose presence is necessary for the trial shall be present promptly at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.” Even if you aren’t found in contempt, why start off on the wrong foot with your judge?
- Avoid histrionics. You are not in chancery to impress a jury with your dramatic skills or oratorical flourishes. Most judges I know find that sort of showboating to be off-putting.
- Be respectful of the court. Even when the tide is flowing strongly against you, be courteous and respectful to the judge. When you show disrespect, you are acting contrary to your role as officer of the court. UCCR 1.01 states that “The dignity and respect of the court will be preserved at all times.”
- Be prepared. Have your exhibits ready, your trial notes in order, and your witnesses on hand and briefed. have any statutes or case law in shape to present at the appropriate time.
- Be courteous to opposing counsel. Sometimes this is easier said than done, I know, but make the effort.
- Observe all of the requirements of UCCR 1.01.
Safeguard your reputation with the court as if it were a cache of precious gold. Your reputation with the court is in essence how the judge assesses your truthfulness, reliability, candor, competence and integrity. It is a treasure built up over time in your dealings with the court. Some lawyers squander their treasure by making false excuses or misleading statements to the court, by levelling false accusations against opposing counsel, by missing court appearances, by doing sloppy, unprepared work in pleadings, discovery and trial, and by being unprofessional as spelled out above. Don’t misspend your treasure that way.
Keep your promises. If your word is not your bond, you really should consider finding another line of work. When you tell the judge you are going to do something, do it. And if it becomes genuinely impossible, let the judge know right away. Don’t tell opposing counsel a case is settled unless it is, and don’t make promises you can’t keep or have no intention to keep.
Never even suggest anything improper to a judge. I can not think of any more instantaneous way to destroy — probably irreparably — your credibility with a judge than to make even a suggestion of impropriety. A hint of a quid pro quo, an ex parte suggestion for a favorable ruling or criticism of the other party or attorney, and the like are poison for your reputation with the court.
Your work product speaks volumes about your competence. If your pleadings are sloppily done and make no sense, your arguments are incoherent, and your witnesses make no sense, you have no one to blame but your own sloppy self when the judge turns her nose up at them. Take pride in your work. Make sure it’s right and well-presented. Make a favorable impression on the court. I can assure you that it is a true pleasure to take the bench and try a case that is well-presented by capable lawyers who know what they are doing and have given the court clear pleadings, authority and testimony on point. And I can equally assure you that it is agony to try a case where the lawyers fall considerably short of that mark.
APPROACHING ZERO TOLERANCE
October 2, 2012 § 7 Comments
If you have gotten the impression that many chancellors are tightening down on the handling of fiduciary matters, it’s not just your imagination or overactive paranoia glands. More and more chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.
There are several reasons for this. One, and perhaps paramount, is that it is the judge’s job. But here are several others:
- There is the case of attorney Michael J. Brown, of Hinds County, who helped fritter away hundreds of thousands of dollars of a ward’s account.
- There is the case of the lawyer in jail in Rankin County who has been unable to account for fiduciary funds, and who will begin serving federal and state sentences therefor as soon as Judge Grant releases him from his civil contempt sentence — which is contingent on his accounting.
- There is the case of another lawyer in Rankin County who refuses to account for fiduciary funds, and who is likewise cooling his heels in the county bastille until he complies.
- There is the case of the lawyer on the coast who committed suicide when the questions started floating about how fiduciary matters in his charge were handled, and the last I heard the missing funds are more than $1.2 million.
The genius of our fiduciary system in Mississippi is that it creates a three-tiered system of protection for the ward or beneficiaries. The fiduciary is bonded (in most cases) and is accountable to the court; the lawyer works with the fiduciary, providing advice, guidance and oversight to see that the law is followed; and the court authorizes actions, demands and approves accounts and inventories, and scrutinizes the actions of both the fiduciary and the ward. Whenever any one tier fails, it is up to the other two to catch and fix the failed part. When judges wink at incompetent legal work in fiduciary matters we are shirking our duty to innocent beneficiaries, creditors and people who are unable to protect their own interests.
It’s not the stuff of movies and detective novels that money is stolen from fiduciary accounts. I have seen it right here in our little backwater, and I am sure it is happening and has happened in yours (not meaning that you live in a backwater).
Fraud and mishandling of funds thrive in the sloppy handling of fiduciary matters. When you leave it up to the fiduciary to go about unaccounted for and unadvised and unsupervised, you are inviting trouble. And chancellors are becoming ever more vigilant and intolerant.
IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?
October 1, 2012 § 5 Comments
Termination of parental rights pursuant to MCA 93-15-103 has long been treated, at least in this chancery district, as an independent cause of action that may be invoked whenever the criteria of 93-15-103(3) are met.
The COA decision in LePori v. Welch (discussed here in a previous post dealing with other points), decided June 26, 2012, though, calls that theory into question.
In his opinion for the court, Judge Maxwell addresses the appellant’s argument that the chancellor failed to address the “substantial erosion” factor set out in 93-15-103(3)(f). He said, beginning in ¶5:
But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:
When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1).
¶6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So. 2d 437, 445 (¶32) (Miss. 2001) … [Emphasis in original text]
The above language is not the actual holding of the case, but it is about as clear a statement that you will find interpreting the intent and purpose of 93-15-103(1), which is the threshold statute for TPR. What Judge Maxwell is saying, in my opinion, is that there is no cause of action for TPR that is independent of an adoption. TPR is done ” … in order for the child to be adopted … ,” in Judge Maxwell’s own words.
I wonder, though, what this language of the statute means in light of that interpretation: ” … and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …” What about where the court finds that adoption is not needed to secure a stable placement? Does that cancel out the TPR action if all the criteria are proven?
My emphatic answer is … I don’t know. What I do know is that nine judges of the COA joined in Judge Maxwell’s opinion, and that one concurred ” … in part and in the result without separate written opinion,” making it 99% unanimous. So the mind of the COA on the subject would appear to be clear.
I also know that this would appear to change the way we have done business in this district, and maybe in yours, too. Stay tuned for further developments.
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.
BREAKING NEWS ON MEDICAID CLAIMS
September 19, 2012 § 2 Comments
In a recent estate in this district, the Medicaid Commission took the position that if the decedent claimed homestead on a parcel of property, and was survived by a spouse, one or more children or one or more grandchildren, then Medicaid would release its entire claim, regardless whether the property is worth more than the $75,000 statutory exemption.
In this particular case, the estate’s only asset was the homestead property. The lawyer representing the administrator called the Medicaid Commission to try to negotiate a reduction of its $110,000 claim and advised the commission’s staff attorney that the value of the homestead exceeded $75,000. The staff attorney replied that if the decedent was survived as set out above then Medicaid would release its claim, regardless of the value of the homestead.
Up to now, I had understood that Medicaid would release its claim only to the first $75,000, and would pursue its claim above that amount. In the situation cited above, I would have thought that Medicaid would try to pursue its claim to the $35,000 above the homestead exemption.
If this case does, indeed, indicate a shift in policy, you can be in a position to save your clients in estate matters considerable money simply by making a telephone call to the Medicaid Commission.
CAVEAT: Don’t take this post as authority to do anything. Call the Medicaid Commission yourself and get it from them what their position is with respect to your client’s situation.
If you handle any probate matters at all, you need to be familiar with the exemption statutes and understand how they affect the matters you handle. A helpful post on the topic is here. Not claiming exemptions can cost your clients thousands. Clients love lawyers who can save them thousands.
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