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 …
- The original is lost or destroyed, and not due to a bad-faith act of the proponent; or
- The original is not obtainable by any available judicial process; or
- 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
- 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
WHAT DOES IT TAKE TO TRIGGER RELIEF FROM FRAUD ON THE COURT?
October 10, 2012 § 4 Comments
Basically, all you have to do is bring it to the court’s attention, and the judge can do the rest. That’s what the COA decision in Finch v. Finch, handed down October 2, 2012, says.
But before we talk about Finch, let me remind you of the MSSC decision in Trim v. Trim, which held that “the intentional filing of a substantially false Rule 8.05 statement is misconduct that rises above mere nondisclosure of material facts to an adverse party,” and constitutes fraud upon the court. There is no time limit to when that issue can be raised. So to allow your client to submit a false 8.05 is to allow the judgment always and forever to be vulnerable to possibly fatal attack, as was the case in Trim.
Only two months ago the COA held in Rogers v. Rogers that if you are going to claim fraud on the court, you will have to prove all of the classic elements of fraud, or you will fall short.
Now we have Finch, further defining the scope of fraud on the court. In Finch, Rosemary and Stewart, no longer love birds, got an irreconcilable differences divorce in which the special chancellor awarded Rosemary alimony based on financial proof submitted by the parties, including Rosemary’s claim that she was paying certain marital debts that she claimed she had been paying throughout the marriage.
The special chancellor’s appointment expired, and a newly-elected chancellor took the bench and assumed responsibility for the case.
In post-divorce litigation, Stewart asked the court to find Rosemary in contempt and to modify the alimony to take into consideration that Rosemary had “falsely represented” to the court that she had been paying the marital bills. He claimed and proved that she had failed to pay an American Express account, forcing Stewart to borrow some $38,000 to pay it. Also, she had not disclosed other family debt in the divorce that affected Stewart.
The chancellor found that Rosemary’s actions were a fraud on the court, and she decided that the fraud permitted her to reduce the alimony under MRCP 60(b). Stewart had not filed a 60(b) motion, had not specifically requested any 60(b) relief, and did not specifically plead or charge fraud. Rosemary appealed, claiming that it was error for the chancellor to grant 60(b) relief sua sponte, which had the effect of setting aside and doing away with issues to which the parties had agreed and settled before the original trial.
Judge Ishee’s opinion for the court states:
¶18. While Stewart did not file a Rule 60(b) motion, he did allege fraud in the petition for contempt and modification. Furthermore, “[t]he chancery court is vested with broad equitable powers with which it is able to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief from the judgment under Rule 60(b) and may do so upon its own motion.” Tirouda v. State, 919 So. 2d 211, 214 (¶7) (Miss. Ct. App. 2005) (citing Edwards v. Roberts, 771 So. 2d 378, 386 (¶28) (Miss. Ct. App. 2000)).
Rule 60(b) even states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.” Accordingly, the chancery court did not err by finding fraud upon the court and altering the final divorce decree without Stewart filing a Rule 60(b) motion.
Rosemary also tried to claim that the fraud, if any, was on Stewart and not on the court, which argument the COA rejected, based on Trim. She argued in addition that there was inadequate proof in the record of the elements of fraud, which the COA likewise rejected, based on the proof in the record and the findings of the chancellor.
To return to my initial point: all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”
RECIPES FOR INDIRECT CONTEMPT
October 9, 2012 § 2 Comments
We talked here before about the distinction between indirect and direct criminal contempt. Indirect contempt is also called constructive contempt.
Here are some examples where the courts have found it proper to proceed for indirect criminal contempt …
- Acts committed outside the presence of the court that hamper its functioning. In Hinton v. State, 222 So.2d 690, 691 (Miss. 1969), the court found that defense counsel’s failure to disclose to the DA (and, presumably, to the court) that he represented a juror’s wife was constructive criminal contempt.
- Acts that hinder or prevent service of process, with or without force. Aarons v. State, 105 Miss. 402, 62 So. 419 (1913).
- Published materials that address pending court matters and tend to prejudice potential jurors may be punished for constructive contempt; however, there are free speech ramifications that must be carefully weighed by the court. See, Jeffries v. State, 724 So.2d 897, 899 (Miss. 1998).
- Abuse of process. In Higgins v. State, 218 Miss. 883, 891, 56 So.2d 61, 63 (1952), the filing of 58 suits for the purpose of harassing the Rankin County Sheriff was found to be constructive criminal contempt.
- Contemptuous language in a motion. Wood v. State, 227 So.2d 288, 290 (Miss. 1969).
- Contacting or attempting to influence jurors. Young v. State, 230 Miss. 525, 527 (1957). Even a request to bribe a juror, which was not actually attempted despite the request, has been found to be indirect contempt. Brewer v. State, 176 Miss. 803, 809, 170 So. 540, 541 (1936).
- Filing false affidavits of return of process with the court clerk. Corr v. State, decided September 20, 2012, and In re McDonald and Cheshire, decided October 4, 2012, both by the MSSC.
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.
