A NOTE ON COMMENTS

October 25, 2012 § 2 Comments

This blog certainly welcomes comments. Thoughtful and thought-provoking comments about trial experience, insights into the law and its application, and the practice of law are encouraged.

The focus of this blog, though, is to be a help to lawyers and judges. Non-lawyers who happen upon this site need to be aware that the information here is of only limited use unless you have the training, background and experience to understand and apply it. And it represents only one individual’s interpretation, which may or may not carry the day in any given case with any particular judge.

Lately I have received comments that I have not published because they are clearly by laypersons seeking legal advice or wanting to trash lawyers or judges or the law in general. Those kinds of posts will never be published here, so you needn’t waste your time writing them.

Likewise, if your comment is unaccompanied by a valid email address I will not publish it (the email address will not appear on the published comment; it’s for my use to determine your bona fides and standing as a member of the legal profession).

ID DIVORCES IN DISTRICT 12

October 24, 2012 § Leave a comment

‘Way back in June, 2010, I posted the requirements in this district to present an irreconcilable differences divorce.

As I explained back then …

The chancery judge in an irreconcilable differences (ID) divorce is required by law to make a determination about the sufficiency of the provision for support of the minor children. Different chancellors approach the task in different ways. Some judges require a complete Rule 8.05 financial statement from each party. Some judges take the word of the attorney or litigants.

In District 12, we do not require an 8.05, but we do require that the property settlement agreement (PSA) must include certain information about the income and deductions of the paying parent. Here are our requirements:

  • The property settlement agreement must include information showing gross income and deductions for taxes, Medicare and social security for year to date for the paying party, in the form of a pay stub attached to the agreement or a recitation of the actual figures, including monthly and year-to-date figures, in the body of the agreement; or, in the alternative, a statement satisfactory to the court as to why such information is not available. If the pay stub is attached, the agreement itself must include a provision that both parties have seen and are satisfied with the accuracy of the document. If the required information is not included, the agreement will not be approved.

We also have a requirement that the 8.06 disclosures either be in the PSA itself, or that the parties file it with the clerk simultaneously with entry of the divorce judgment. This policy is a recognition of the fact that 99.9% of parties do not file their 8.06 informantion as required in the rules. UCCR 8.06 mandates that the current names, addresses and telephone numbers of both parents must be disclosed and filed in the court file.

We also require at least one of the parties to appear and testify. The witness establishes the jurisdictional facts and answers two questions about the PSA: is it the entire agreement, so that there are no side agreements or unwritten deals; and does it settle all of the marital issues between the parties? If the other party is unrepresented, it would be a good idea to have that party appear also to be available to answer any questions or to make any changes in the PSA that are directed by the court.

WINNING TACTICS FOR CHILD SUPPORT MODIFICATION

October 23, 2012 § 3 Comments

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

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

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

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

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

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

So here are a few tactics that may help:

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

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

ANOTHER ALBRIGHT SCORECARD CASE FAILS

October 22, 2012 § Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

(6) emotional ties of parent and child;

(7) moral fitness of the parents;

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

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

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

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

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

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

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

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

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

WHAT COULD THESE ADD TO YOUR LIFE?

October 19, 2012 § 1 Comment

… and the lives of those who come into contact with you …

“But the fruit of the Spirit is

  • Love
  • Joy
  • Peace
  • Patience
  • Kindness
  • Goodness
  • Self-control“

Galatians 5:22

AND MORE RE FRAUD ON THE COURT

October 18, 2012 § Leave a comment

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

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

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

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

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

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

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

NAVIGATING IN THE BACKWASH OF THE BEST EVIDENCE RULE

October 17, 2012 § 1 Comment

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

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

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

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

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

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

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

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

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

WHO HAS PRIORITY TO SERVE AS CONSERVATOR?

October 16, 2012 § 2 Comments

Conservatorships are becoming more commonplace as we baby-boomers and those at the end of the previous generation age.

With the increase in numbers of conservatorships we are seeing more disputes over who gets to serve as fiduciary for the ward. Should it be the neighbor who has always been there while the uncaring children were doing their thing in Phoenix and Chicago? Should it be the only living brother who has a questionable past? Should it be the sister who lives on the other side of town and has visited the ward every day, or should it be the sister who lives in the county and sees the ward every day, or both? Or should it be someone named by the ward before she slid off into incapacity?

Family members often have competing interests. There may be an honest difference of opinion as to what is best. Or there may be bad blood. Or there may be ulterior motives. Any combination of these and other undertones can lead to a court confrontation.

The latest case comes out of Madison County.

Caryn Quilter filed a petition to be named conservator for her aunt, Medora Weaver. Caryn had begun visiting Medora at her home in Houston, TX, after Medora’s husband died. Caryn heard from neighbors that aunt Medora wasn’t doing well, so she moved her to an assisted-living home in Riddgeland, MS, near where Caryn lived.

Caryn filed a petition with the chancery court, supported by the proper physicians’ affidavits. But Caryn’s father, John Salter, filed a counterclaim, asking that he be appointed conservator, since he was the older brother of Medora. In his pleading he admitted that a conservatorship was necessary, he just did not agree that Caryn should serve in that capacity. He also said that Medora requested that he, not Caryn, serve as her conservator.

Chancellor Cynthia Brewer heard testimony from the contending petitioner and counterclaimant, as well as from Medora herself, and she considered the physicians’ affidavits. Based on the proof, she ruled that a conservatorship would be in Medora’s best interest, and that the conservator should be “an objective, non-related person,” and she appointed Arthur Johnston, Chancery Clerk of Madison County, to serve.

John appealed, claiming (1) that the chancellor was in error in determining that Medora needed a conservator, (2) that he was more suited to serve since he had experience in a similar role, (3) that Medora had designated him to serve, and (4) that he was more closely related.

In Salter v. Johnston and Quilter, rendered October 9, 2012, the COA affirmed Judge Brewer.

As for Salter’s argument that it was error to find that a conservatorship was in Medora’s best interest, the COA found that substantial evidence supported the chancellor’s decision. And, besides, the court pointed out that Salter had pled himeslf for appointment of a conservator, and Salter’s own attorney at hearing announced that his client did not dispute that a conservatorshipw as necessary in the case. The COA rejected this argument.

The court disposed of the remaining arguments as follows:

¶13. Salter alternatively contends that, if a conservatorship is needed, he is the proper party to act as conservator. He bases this contention on the fact that Weaver has requested that he act as conservator and on the fact that he has previous experience as a conservator. Salter also contends that he should be given preference as conservator because he is Weaver’s brother.

¶14. We note at the outset that our laws concerning conservatorships give no preference to an individual’s next-of-kin to act as conservator. See Miss. Code Ann. §§ 93-13-251 to -267 (Rev. 2004 & Supp. 2011). Furthermore, the chancery court determined that it would be in Weaver’s best interest if a non-relative served as conservator after hearing testimony regarding the contentious relationship between Salter and Quilter. Given these facts, the chancery court did not err in appointing Johnston to serve as conservator. This issue is without merit.

This case highlights that it is well within the chancellor’s discretion to decide whether a conservatorship is necessary, and who should be appointed to serve as fiduciary. Interestingly, the statute also provides that the chancellor shall be the one to determine the number of witnesses and quality of testimony necessary to decide the issues in the case. Here, the chancellor quite prudently allowed a full hearing at which the parties were at liberty to develop the proof that they felt was necessary to support their claims.

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.

HAVE A CRISPY FRIED DAY

October 12, 2012 § 2 Comments

These puns are better than you deserve, but I’m going to share them anyway. Supply your own rimshots.
__________________________________________________
The fattest knight at King Arthur’s round table was
Sir Cumference.  He acquired his size from too much pi.
__________________________________________________
I thought I saw an eye-doctor on an Alaskan island,
but it turned out to be an optical Aleutian.
__________________________________________________
She was only a whisky-maker, but he loved her still.
__________________________________________________
A rubber-band pistol was confiscated from an algebra class, because it was a weapon of math disruption.
__________________________________________________
No matter how much you push the envelope,
it’ll still be stationery.
__________________________________________________
A dog gave birth to puppies near the road
and was cited for littering.
__________________________________________________
A grenade thrown into a kitchen in France would
result in Linoleum Blownapart.
__________________________________________________
Two silk worms had a race.  They ended up in a tie.
__________________________________________________
A hole has been found in the nudist-camp wall.
The police are looking into it.
__________________________________________________
Time flies like an arrow.   Fruit flies like a banana.
__________________________________________________
Atheism is a non-prophet organization.
__________________________________________________
Two hats were hanging on a hat rack in the hallway.  One hat said to the other: ‘You stay here; I’ll go on a head.’
__________________________________________________
I wondered why the baseball kept getting bigger.  Then it hit me.
__________________________________________________
A sign on the lawn at a drug rehab center said:
‘Keep off the Grass.’
__________________________________________________
The midget fortune-teller who escaped from
prison was a small medium at large.
__________________________________________________
The soldier who survived mustard gas and
pepper spray is now a seasoned veteran.
__________________________________________________
A backward poet writes inverse.
__________________________________________________
In a democracy it’s your vote that counts.
In feudalism it’s your count that votes.
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When cannibals ate a missionary, they got a taste of religion.
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If you jumped off the bridge in Paris, you’d be in Seine.
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A vulture carrying two dead raccoons boards an airplane.  The stewardess looks at him and says,
‘I’m sorry, sir, only one carrion allowed per passenger.’
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Two fish swim into a concrete wall.
One turns to the other and says, ‘Dam!’
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Two Eskimos sitting in a kayak were chilly, so they lit a fire in the craft.  Unsurprisingly it sank, proving once again that you can’t have your kayak and heat it too.
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Two hydrogen atoms meet.  One says, ‘I’ve lost my electron.’  The other says, ‘Are you sure?’
The first replies, ‘Yes, I’m positive.’
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Did you hear about the Buddhist who refused Novocain
during a root-canal?  His goal: transcend dental medication.
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There was the person who sent ten puns to friends, with the hope that at least one of the puns would make them laugh.  No pun in ten did.

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