Reprise: Child Support that Isn’t

May 17, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

CHILD SUPPORT AS A MIRAGE

August 21, 2012 § Leave a comment

Any agreement that provides for child support must be found by the judge to be adequate and sufficient, and it must be definite and specific enough to be enforceable.

Most agreements meet those requirements. You won’t go far astray if the child support is within the statutory guidelines and the language awarding it is clear and unambiguous as to how it was calculated, the exact amount to be paid, the due dates, and its duration (e.g., “until further order of a court of competent jurisdiction,” or “until the minor child is emancipated by operation of law or order of this court,” etc.).

These requirements don’t stop lawyers from presenting some pretty fanciful child support arrangements that sometimes make chancellors scratch their heads. Here are some that have been proven not to be allowable under Mississippi law, that you should avoid:

  • An unspecified amount. In Lowrey v. Lowrey, 919 So.2d 1111, 1112 (Miss.App. 2005), the court rejected a provision that the mother would pay child support in the form of buying clothes for her children “in an amount that she can afford.” The provision is so indefinite as to be unenforceable. It also violates the fundamental principle that a person can not be held in contempt for failure to comply with a court order that is too vague or ambiguous to be understood. The court in Lowrey said at ¶33, “As it stands, a finding of adequacy and sufficiency depends upon enforceability of the child support provisions contained in a property settlement agreement.”
  • Percentage child support. A provision that “husband shall pay 14% of his adjusted gross income as child support” is unacceptable. In Hunt v. Asanov, 975 So.2d 899, 902 (Miss.App. 2008), the court stated, “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself … leaving open no matter or description or designation out of which contention may arise as to meaning’”  [Citations omitted]. In order to determine what the father’s obligation might be or might have been, the court must look beyond the four corners of the judgment to extraneous earnings data and other information that in all likelhood is in controversy. The argument may be made that the case of Rogers v. Rogers, 919 So.2d 184, 188-89 (Miss.App. 2005) is contra. In that case, the COA held as unambiguous a provision that the husband would pay “14% of his adjusted gross income or $600 a month.” The argument raised by appellant there was that the apparent dichotomy betweeen 14% and $600 created an unresolvable ambiguity. The court rejected that argument and found the language clear, as did the chancellor. Rogers, however, did not directly address the problem of enforceability created by the need of the trial court to consider extraneous evidence to make a complete judgment, and the court pointed out that the $600 amount specified was clear enough to give the appellant an idea of his obligation. I do not see Rogers as an endorsement of percentage child support.
  • Amount tied to unspecified return. In Rudder v. Rudder, 675, 678 (Miss. 1985), the court found a provision that the husband would pay any income or divident received from “any investments in the name of the child” was too “indefinite in amount, type, whereabouts, and the name of the holder.” The court held that the award was worthless, as a practical matter, to the custodial parent for enforcement. This type of support order is a subspecie of percentage child support. It requires the court to look to material extraneous from the four corners of the judgment in order to enforce it.
  • Lump sum. In Pittman v. Pittman, 909 So.2d 148, 153 (Miss.App. 2005), the court reversed a chancellor’s award of $26,000 in residential equity as additional child support that he said was more ” … in the nature of child support than accumulated assets.” The COA held that the chancellor has no authority to make an award of lump sum child support. If the chancellor lacks such authority, then I am certain that a chancellor lacks authority to approve such an agreement between the parties. Note: Professor Bell says that the statute authorizing guardians to settle claims on behalf of wards has been held to allow lump sum settlements in paternity actions. Bell on Mississippi Family Law, 2d Ed., §11.06[2][b], p. 321.

The kinds of alternative child support provisions that lawyers come up with is only limited by the imagination. It is the court’s duty, however, to make sure that the provisions are adequate and sufficient for the support and maintenance of the child. The further you stray from statutory guideline child support the more likely it is that you will be sent back to the drawing board.

When you draft an agreement you want it to produce tangible benefits for your client. The last thing you should want is for a court to find that language you threw together heedlessly is no more than an illusory mirage or an insubstantial chimera.

Dispatches from the Farthest Outposts of Civilization

May 10, 2019 § Leave a comment

April 23, 2019 § Leave a comment

Judges’ Spring Conference

Next post April 29, 2019

April 19, 2019 § Leave a comment

Holiday.

Courthouse closed.

 

Fool’s Gold

April 1, 2019 § 3 Comments

Pondering the imponderable on April Fool’s Day …

“The foolish have us far more in their power than the wise.”  —  Jean Ingelow

“Those who wish to appear wise among fools, among the wise seem foolish.”  —  Quintilian

“What a fool believes he sees, no wise man has the power to reason away.”  — Doobie Brothers, What a Fool Believes

“A common mistake that people make when trying to design something completely foolproof is to underestimate the ingenuity of complete fools.”  —  Douglas Adams

“Foolery, sir, does walk about the orb like the sun; it shines everywhere.”  — Shakespeare, Twelfth Night, II, v

“A fool sees not the same tree that a wise man sees.”  —  William Blake

“Let a fool hold his tongue and he will pass for a sage.”  —  Publilius Syrus

“No creature smarts so little as a fool.”  —  Pope

“He that trusteth in his own heart is a fool.”  —  Proverbs 28:26

“A learned fool is more foolish than an ignorant one.”  —  Molière

 

 

Reading

March 29, 2019 § 2 Comments

Their Eyes Were Watching God, by Zora Neale Hurston. An African-American woman looks back on her metamorphosis through the 1920’s from naive girl to teen to marriage and ultimately independent widowhood, surviving racial oppression, hurricane, violence, and sexism. Hurston is controversial, but her writing is full of humanity and insight. Fiction.

Fordlandia, by Greg Grandin. Who knew that Henry Ford in the 1920’s bought a tract of land three times larger than Rhode Island in the Amazon jungle with the goal of establishing an American-clone utopia and, at the same time, raising rubber trees to avoid Britain’s monopoly? This is the true story of his spectacular failure, its huge cost, and the people who unsuccessfully fought nature and natives for Mr. Ford. Non-fiction.

The Half has Never Been Told, by Edward E. Baptist. A compelling argument that the meteoric rise of the US economy in the nation’s first fifty years and after was directly due to slavery, in both the north (until abolition) and the south. He attacks the widely held notion that slavery was unprofitable and inefficient, explaining how the system worked and produced massive wealth, and supports his position with facts and figures. Baptist weaves in stories of particular slaves and areas to illustrate his points, along with economic data. This well-written book will hold your attention. Non-fiction.

Things Fall Apart, by Chinua Achebe. The fictional story of Nigerian Igbo tribal leader Okonkwo, his rise in power, his downfall, and the ultimate disaster of his tribe’s traditions and culture brought about by the arrival of white European missionaries. Achebe’s portrayal of tribal ways, religion, mysticism, and customs skillfully immerses the reader in a primitive culture that is unexpectedly sophisticated and complex. Fiction.

Prisoners of Geography, by Tim Marshall. Geopolitics for Dummies. Marshall explains why certain historical events are not only shaped by, but also are made inevitable by, geography. Non-fiction.

The Romanovs, 1613-1918, by Simon S. Monterfiore. History of the Tsars of Russia during the Romanov dynasty. The author draws not only on historical sources, but also on rumor and gossip, which makes for a juicy and spicy stew of back-room entertainment. Extravagant, despotic, autocratic, vicious, enlightened, powerful, psychopathic, murderous, generous, venal, adulterous, paranoid, patrons of the arts, vulnerable, militaristic, and more, the Romanovs held the immense expanse of their nation together for more than 300 years. Mostly non-fiction.

Devil in the Grove, by Gilbert King. In Groveland, Florida, in 1949, four young black men are falsely accused of raping a white woman, and young lawyer Thurgood Marshall comes to their defense for the NAACP. This distressing tale tells of Marshall’s valiant efforts, and the white power structure that sought to thwart him at every turn. The toxic blend of murder, violence, racism, and poverty in the pre-civil-rights era is on full display, along with vignettes of similar injustices in neighboring states. Non-fiction.

Sing, Unburied, Sing, by Jesmyn Ward. Exploring the lives and interrelationships of a poor, rural family on the Mississippi Gulf Coast. It becomes an episodic novel of a black woman’s journey to meet her white husband at Parchman on his release, told from different points of view of various characters, as well as that of a dying grandmother and her spirit, and the spirit of a long-dead prisoner. Fiction.

War and Peace, by Leo Tolstoy. Okay, this is more of a victory lap than a review. On my fifth try I made it through all 1,450 pages. Bravo for me. Fiction.

Reprise: Handling the Insolvent Estate

March 22, 2019 § Leave a comment

Reprise replays posts from the past that you might find useful today.

INSOLVENT ESTATES

January 13, 2011 § 4 Comments

When the debts and expenses of the estate exceed the value of its assets, the estate is said to be insolvent, and there is a procedure for adjudication of insolvency, satisfaction of creditors, and payment of administration expenses that is spelled out in MCA § 91-7-261 through -268.

The estate is insolvent when its debts and the expenses of administration exceed the value of the real property and the other property that is not exempt.  You can find out more about exempt property here.

Either the administrator or a creditor may petition the court to adjudicate its insolvency.

MCA § 91-7-261 sets out the procedure to determine insolvency.  The administrator is required to “take proper steps speedily to ascertain whether the estate be solvent or insolvent.”  If the administrator finds that the estate is insolvent, she files a “true account” itemizing all of the personal estate, assets of every description, the land of the deceased, and all of the deceased’s debts.  Notice is given to the devisees or heirs, and the matter is presented to the court for hearing.  If the court determines from the account that the estate is indeed insolvent, the chancellor will order that the assets be sold and that the expenses of ” … the last sickness, the funeral, and the administration, including the commissions …” are first paid out of the proceeds,” and that any remaining proceeds be divided among the creditors ” … in proportion to the sums due and owing them respectively …”

The procedure for distribution of remaining proceeds among the creditors is provided in MCA § 91-7-269.  After the time to probate claims has elapsed, a notice is published for three consecutive weeks in a newspaper published in the county that the claims against the estate will be taken up by the court on a day and at a time certain, that any and all claims not required by law to be probated shall be filed with the clerk by a stated date, and that all creditors may attend.  A hearing is held at which the administrator may object to any claim, evidence is presented pro and con, and the court may either allow it in whole or in part, or reject it in whole or in part.  The administrator may file a verified application to be reimbursed for claims paid prior to the adjudication of insolvency, and the court shall treat them as if they had been properly probated.

MCA § 91-7-271 provides that the allowed claims shall be paid pro rata, and any creditor not paid within ten day of the court’s order shall have execution against the executor or administrator and the sureties on his bond.

Any suit pending against the executor or administrator at the time of insolvency does not abate, but may be prosecuted to final judgment, according to MCA § 91-7-273, but -274 bars suits from being filed after the estate is declared insolvent.  You should read -273 carefully for the effect of and payment of a judgment against the estate for suits that were pending when the insolvency is determined.

Changing Rule 81

March 15, 2019 § 5 Comments

As I did last month, I invite your comments and suggestions as to how MRCP 81 might be amended to improve its performance. Or maybe you think it’s fine as is. Please comment and let me know your thoughts.

The MSSC Advisory Committee on Civil Rules is combing through the MRCP to suggest amendments. Your thoughts as practitioners and judges will be helpful in the process.

Adequate Proof of the Thalweg

March 4, 2019 § 1 Comment

The Revettes filed suit to confirm title, and the Fergusons counterclaimed alleging ownership by adverse possession. After hearing the evidence, the chancellor ruled that the Fergusons did, indeed, have title by adverse possession. Before entering a final judgment, however, the chancellor ordered the Fergusons to obtain a survey of the disputed property. When they did so, producing a survey by Mr. Saul, the chancellor attached it as “Exhibit A” to the final judgment without further hearing. The Revettes appealed.

In Revette v. Ferguson, handed down December 11, 2018, the COA affirmed the chancellor’s decisions on the issues of adverse possession and damages, but reversed and remanded for further evidence on the survey. Judge Greenlee wrote the majority opinion:

¶29. The Revettes argue that the chancellor should not have considered the Saul survey, “Exhibit A,” in his final judgment because they did not have the opportunity to challenge that survey at a hearing or cross-examine the surveyor and it was not admitted as evidence. Although the Fergusons argue that the Revettes waived this issue, we find the Revettes preserved their objection by responding to the Saul survey and attaching their own competing survey, the Walker survey. We hold that it was error for the chancellor to consider a survey without proof being taken and upon the Revettes’ objection; therefore, we reverse and remand this issue to the chancery court. [Fn omitted]

¶30. In order to have a survey properly admitted into evidence, the surveyor needs to be called to explain and be subject to cross-examination. White v. Usry, 800 So. 2d 125, 131 (¶26) (Miss. Ct. App. 2001). In Abercrombie v. Carter, 73 So. 3d 561, 562-63 (¶¶8-11) (Miss. Ct. App. 2011), we held it was error for a chancellor to consider a survey that was properly excluded at a hearing as hearsay under Mississippi Rule of Evidence 802, noting that the parties were not allowed to challenge the survey at the hearing or cross-examine the surveyor. We find the chancellor committed error in this case for similar reasons. The Revettes did not have the opportunity to cross-examine the Fergusons’ surveyor, and the survey was not admitted into evidence for the chancellor’s consideration. Further, a comparison of “Exhibit A” with Exhibit 7, which the parties stipulated to, reveals inconsistencies. Notably, the thalweg of the Chickasawhay River and the approximate water line differ in both exhibits; as do the call lines of the land adversely possessed. We therefore reverse and remand this matter to the chancellor so that the Revettes may challenge the survey in “Exhibit A,” may cross-examine the surveyor, and may offer their Walker survey for use by the court.

For those of us who are ignorant of some nuances of property law, thalweg (pronounced “tal-veg,” from the German), according to a definition I found via Google, is “In geography and fluvial geomorphology … the line of lowest elevation within a valley or watercourse. Under international law, a thalweg is the middle of the primary navigable channel of a waterway that defines the boundary line between states.” Well, that’s a new one on me. In all my years at the bar, I have never stumbled upon that concept. But it should not surprise. It’s yet another instance of how the law can be so gnostic sometimes, especially in property law, where the Druids of Feoffments (practitioners of the alchemy of fee simple) zealously guard their esoteric spells and incantations from us generalists.

A similar case involving necessity of the sponsoring witness is the subject of a post at this link.

“Quote Unquote”

March 1, 2019 § Leave a comment

“We, each of us, need so much to be affirmed. For each of has — gnawing away at the center of our being — a sense of insecurity, some more than others. And frequently, the more insecure, the more aggressive we become. The more we throw our weight about and say people should recognize us.”  —  Desmond Tutu

“If your compassion does not include yourself, it is incomplete.”  —  Jack Kornfield

“People have a hard time letting go of their suffering. Out of a fear of the unknown, they prefer suffering that is familiar.”  —  Thich Nhat Hanh

“Some things cannot be fixed. They can only be carried.”  —  Megan Devine

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