CONSTITUTION WEEK

September 18, 2012 § 2 Comments

It was 225 years ago this week, on September 17, 1787, that the Constitution of the United States was adopted and sent to the various states for ratification. It would take three years after that to achieve ratification by the requisite nine states.

The convention, which met in secret in the Pennsylvania State House, took 100 days to produce what is the organic law of our nation. That three and a half months was filled with drama, rancor, conflict, backroom negotiations and masterful compromise.

Of the fifty-five delegates who were elected to the convention 34 were lawyers, 8 had signed the Declaration of Independence, and almost half were Revolutionary War veterans. The remaining members were planters, educators, ministers, physicians, financiers, judges and merchants. About a quarter of them were large land owners and all of them held some type of public office (39 were former Congressmen and 8 were present or past governors).

Of the 55 elected delegates, only forty-two attended most of the meetings, and of those thirty-nine actually signed the Constitution. Nineteen of the members who were chosen to represent their state never attended a meeting, some because their state would not or could not pay their expenses, some due to health, and some for political reasons. Patrick Henry, although elected, refused to attend because he “smelt a rat.”  Three members, Edmond Randolph and George Mason of Virginia, and Elbridge Gerry of Massachusetts refused to sign, primarily due to the lack of a bill of rights.

The durability of the Constitution is itself a marvel. It has been effect for more than 220 years, longer than any other instrument of its kind. And its original form has proven durable as well. Although more than 11,000 amendments have been introduced in Congress, only thirty three have gone to the states to be ratified and only twenty seven have received the necessary approval from the states to actually become amendments to the Constitution.

The genius of the Constitution’s balance of powers and protection of individual rights has long been recognized. Many states and foreign governments emulate the Constitution in their own organic law.

To me, though, the genius of the Constitution lies in how it came about. It was the product of intensive negotiation and clever compromise. No one who came into the convention left with all he wanted to achieve, and everyone had to give some ground. The crafting of this greatest article of law is a model for the way that all law coming in its wake should be crafted.

If you’re looking for an entertaining read on the subject, I recommend David O. Stewart’s The Summer of 1787, a brilliant account of the proceedings and the personalities of the participants.

REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT

September 17, 2012 § 4 Comments

In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.

As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly. 

Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:

” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.”   … 

¶25. When awarding Patricia attorney’s fees, the chancery court stated:

‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”

I’ve made the point here before that …

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factors and documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.

Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.

 

 

DICTA

September 14, 2012 § Leave a comment

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #2

September 13, 2012 § 2 Comments

This is the ninth 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 will be 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 #2 …

Understand the theory of your case, and be able to communicate it to the judge.

Most chancery matters are straightforward, and the issues are fairly easily framed. A divorce on the ground of habitual cruel and inhuman treatment, for instance, requires certain elements to be proven, as does equitable distribution or alimony. Modification of child custody has its own framework of proof.

But when you stray into unfamiliar areas, you need to be able to explain to the judge where you are going and why, and what your authority is on which you rely. A few examples:

  • If you are defending on the basis that the court lacks jurisdiction because of the UCCJEA, or because of forum non conveniens, make that clear in your pleadings, and have chapter and statutory verse ready to cite, along with a case or 2 that supports your position.
  • If you are pushing a novel theory of law, can you distinguish the cases against you, and can you cite some persuasive authority to get the judge thinking your way?

Don’t forget that a major component of your job at trial is to persuade: to persuade the judge not only of the legal viability of your client’s position, but also to persuade the judge to rule in your client’s favor. Nowithstanding that, I swear that I have, more often than I’d like, sat on the bench scratching my head trying to figure out exactly what it was that counsel was wanting me to do, not only unpersuaded, but also mystified.

As I said, there are many fairly straightforward issues in chancery trials, but some, like undue influence or lack of capacity, or adverse possession, can be challenging not only for the lawyer, but also for the judge. If you can’t present your proof and your authority in a way that the trial judge can understand, expect to fail.

This Tip may appear so obvious that it’s a waste of your time to read it. But take a minute and think back to a trial or motion hearing where you floundered about helpelessly and ineffectively. Might that have been because you never got clear for yourself exactly what it was you were trying to get across or never found an effective way to communicate it?

In one of my first days of classes in law school, the late professor Harry Case in Contracts called on a student to brief a case. The student stammered and stuttered, his frustration made worse by Case’s prodding, until he blurted out, “Well, I know what I am trying to say, but I just can’t put it into words.” Professor Case glowered at the young man and hissed sarcastically, “Well, you had better learn how to do just that, Mr. _____, because that is exactly what a lawyer is hired to do.”

The corrolary to this Tip is what I call THE GOLDEN RULE OF CHANCERY PRACTICE, which is

 “The easier and clearer you make it for the judge to analyze, the more likely it is that you will succeed.”

DISCOVERY OBJECTIONS THAT WASTE EVERYONE’S TIME

September 12, 2012 § Leave a comment

Most lawyers propound an interrogatory or two that seek the substance of the other side’s case and what witnesses there are. The query looks something like this:

“State each and every fact, circumstance and event upon which you base the claim in Paragraph 4 of your Complaint for Divorce that the dfendant has been guilty of habitual cruel and inhuman treatment, stating for each the date, time and place of occurrence and each witness thereto.”

Some lawyers, I guess to buy more time, file a response that looks like this:

“Objection. Overbroad and unduly burdensome.”

Or

“Objection:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Or, worse:

“Objection.”

Too often these inadequate and lazy objections wind up on a busy judge’s desk, and the judge is called upon to order the lawyer to do what he or she should have done in the first place.

MRCP 33(b)(4) requires that each objection be stated with specificity. In Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss. 2007), the MSSC said that “General objections applicable to each and every interrogatory … are clearly outside the bounds of this rule.”

Not only that, but the rule specifically says that an objection does not necessarily relieve you of the duty to respond. It says that if the request is only partially objectionable, you must state the extent to which it is objectionable and the reason for the partial objection, and then you must proceed to respond to the unobjectionable part.

If you take the position in good faith that you should object to going back through thirty years’ worth of events, then state your objection and state that you are providing the requested information for, say, the past five years because it is the most relevant period, and it is unduly burdensome to go back any further. The specific language of Rule 33(b)(4) requires exectly that.

If you object that your client cannot remember every minute detail, but that you are providing as best you can the dates and identification of the events, say that. Don’t just make a blanket objection.

If you think it’s unreasonable to provide 360 bank statements (that’s 30 years’ worth) because it’s too burdensome, say so, and offer to provide what you think is a reasonable number. That is what the rule contemplates.

So what do you do if you’re confronted with those kinds of objections? Well, you don’t want to get to trial and face the argument that the other side should be able to proceed unfettered because you never asked the court to rule on the objections. I would file a motion to compel and ask the judge to rule on them and set reasonable parameters (I would also make more reasonable requests in the first place, but that’s another story).

I wonder whether all those boilerplate objections that have no conceivable application in chancery are sanctionable. It would be interesting to hear the argument on that.

THE EFFECT OF AN APPEAL ON A JUDGMENT

September 11, 2012 § 2 Comments

After Van and Myria Strickland were divorced on October 15, 2010, and after Van had filed an appeal, the chancellor entered an “Order Clarifying Judgment” on December 20, 2010. The order awarded the parties the passive-growth increase in the value of asset accounts that had been divided in equitable distribution and had the effect of adjusting and changing the parties’ respective shares.

In the case of Strickland v. Strickland, decided by the COA August 28, 2012, the court vacated the order, holding that the chancery court lacked jurisdiction to enter the December order. The court said:

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted). “On the other hand, when an appeal has a supersedeas bond it effectively suspends the judgment.” Id. (citing In re Estate of Moreland v. Riley, 537 So. 2d 1345, 1348 (Miss. 1989)). As such, “enforcement of the rights declared by the decree are suspended until the appeal is determined.” Id. “When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” Id. (citation omitted). See generally M.R.C.P. 59(e) (“A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.”). See also McNeil v. Hester, 753 So. 2d 1057, 1075 (¶68) (Miss. 2000); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358, 362-63 (¶7) (Miss. Ct. App. 2007).

¶20. Van filed his notice of appeal on November 9, 2010. Myria responded by filing her notice of appeal on November 23, 2010. On December 20, 2010, the chancery court entered an order that altered the judgment of divorce by changing the division of the property regarding the increase in value of the asset accounts to the date of the distribution, rather than the date of the temporary order. Because the chancery court’s December 20, 2010 order impermissibly broadened and amended the previous judgments of the court, subsequent to the filing of Van’s notice of appeal, we find that the December 20, 2010 order must be vacated as null and void. See Corp. Mgmt., 23 So. 3d at 460 (¶13) (“When a trial court’s order broadens, amends, modifies, vacates, clarifies, or rehears a decree, ‘it must be vacated as null and void because it exceeds the subject matter jurisdiction of the lower court.’” (citation omitted)). The chancery court lacked jurisdiction to enter such an order. See id. We further find that the May 27, 2011 order, which was before the chancery court on the motion of Myria seeking to enforce the December 20, 2010 order, is also null and void.

I read the authority to mean that, after the time for reconsideration has passed under the MRCP, and once jurisdiction has been acquired by the appellate court, the chancery court can take no action to alter, amend, clarify, modify, or even enforce the judgment. I have had modification cases and contempts filed on judgments that were appealed. The authority cited by Judge Carlton in Strickland makes it clear that as long as the appellate court has not disposed of the appeal the trial court has no jurisdiction to entertain those kinds of actions.

So this is something you need to factor in when deciding whether to appeal. Can your client wait two to two-and-a-half years for a modification or to enforce the judgment while judgment wends its way through the appellate courts?

YET ANOTHER MILITARY DIVORCE POTHOLE

September 10, 2012 § 2 Comments

Representing military parties in a divorce case got a little more difficult a couple of weeks ago, and you need to pay attention or you might unwittingly victimize a client.

The problem lies in the intersection between state divorce law and federal statues governing military benefits.

The latest case is Mallard v. Burkart, decided by the MSSC on August 30, 2012. The parties were divorced in 2001. A significant part of the financial settlement that Burkart received was 40% of Mallard’s “disposable military retirement pay” for ten years. The language of the PSA to effect this division was as follows:

 Pursuant to the Uniform Services Former Spouses Protection Act (“USFSPA”), 10 U.S.C. §1408, the Court makes the finding followings of fact:

(A) That the Husband is currently an active duty service member in the United States Air Force.

(B) That Husband’s rights under the Soldiers and Sailors Civil Relief Act have been observed in these proceedings.

(C) That Wife and Husband were married for at least ten (10) years during which Husband performed at least ten (10) years creditable service, making Wife eligible for involuntary military deductions under The USFSPA at such time [a]s Husband becomes entitled to retirement pay.

(D) Wife is awarded 40% of Husband’s disposable military retired pay for ten (10) years unconditional. Wife shall continue to receive 40% of Husband’s disposable military retired pay after ten (10) years if she does not remarry or has not lived with someone for a cumulative of sixty (60) days. Payments shall continue until Wife remarries or lives with someone for a cumulative of sixty (60) days upon which time payments shall cease. It is Wife’s responsibility to notify the Defense Finance and Accounting Service and Husband of any change of eligibility for payment.

(E) The Husband voluntarily consents to the exercise of jurisdiction to the State of Mississippi, County of Forrest for division [of] military retired pay.

That would appear to me to be a competently drafted provision that invokes every element needed for Burkart to cash in on her prpoperty settlement. It would also appear to give Burkart a full 40% of Mallard’s retirement pay. But things are not always as they appear, are they?

At some point after the divorce, Mallard elected to take a 60% disability rating as part of his retirement pay. By doing so, under federal law, he reduced his “disposable military retired pay,” dollar for dollar, by 60%. He reduced his payments to Burkart by a corresponding amount, limiting his payments to his ex-wife to the non-disability portion of his retirement. Due to the election, his payments to Burkart fell from $571 a month to between $80 and $120.

When Mallard sued Burkart for modification on some custody issues that are not part of this appeal, Burkart counterclaimed for contempt, based on Mallard’s payment of reduced retirement benefits. She charged that Mallard had improperly structured his retirment so as to defeat her contractual rights in the PSA. The chancellor found for Burkart, awarding her a judgment for $21,213.57, and Mallard appealed.

The MSSC stated the issue before it: ” … today we must determine whether federal law preempts state law, thus precluding state courts from treating as property divisible upon divorce, military retirement pay waived by the military spouse in order to receive military [veterans’] disability benefits.” Justice Carlson’s opinion noted that this was a case of first impression in Mississippi.

The court held that the issue was disposed of in the US Supreme Court case of Mansell v. Mansell, 490 US 581 (1989), in which the high court held: “In this appeal, we decide whether state courts, consistent with the [USFSPA], may treat as property divisible upon divorce military retirement pay waived by the rtetiree in order to receive veterans’ disability benefits. We hold that they may not.”

Another post highlighting a similar preemption problem with military life insurance beneficiary designation is here.

A few observations:

  • The MSSC opinion points out that it is unclear when Mallard was determined to be disabled. In my opinion, if the determination had predated the divorce, there is a fraud question in connection with the PSA.
  • Considering the minefield of federal law and regulation dealing with retired service members, you might want to define your client’s settlement in terms of alimony and property settlement in set figures as opposed to percentages. I know that percentages are a good way to make sure your client is not short-changed, and I know that alimony can terminate, but wouldn’t Ms. Burkart have been better off with an agreement that Mallard would pay her $571 a month in alimony, or that same sum as a division of her property rights in his military retirement? Then it would have been Mallard’s problem to figure out how to pay it.
  • What business do you have representing military parties — either husband or wife — if you don’t keep up with and fully grasp all the ins and outs of federal law and regulations governing military retirement?

None of this is a knock on the lawyers who participated in the drafting of the PSA in this case. This was, after all, a case of first impression in Mississippi. And, apparently and presumably, no one knew at the time of the divorce that there would be a disability election. If they had known, that Mansell case would have loomed large. Very large.

DISPATCHES FROM THE EDGE

September 7, 2012 § Leave a comment

MRCP 81 NOTCHES A CURIOUS KILL

September 6, 2012 § 3 Comments

The latest case to fall prey to the predatory MRCP 81 is Pearson v. Browning, decided September 4, 2012, by the COA. We last looked at the vicissitudes of the rule in a post about Brown, et al v. Tate.

The case that brought Pearson v. Browning to the COA began when Dennis Pearson filed a pro se pleading against his ex-wife, Patricia Browning, seeking modification and contempt. Although the procedural history is not entirely clear, it appears that Patricia filed a counterclaim-like pleading charging Dennis with contempt. Both matters came up for hearing on February 2, 2009, when dennis failed to appear, and the chancellor dismissed his claims. The judge ordered that Patricia’s claims be reset for hearing for August 6, 2009. On or about June 10, 2012, however, the court administrator gave notice that the date was again reset, for November 3, 2010. There is no court order setting the November date.

Patricia’s attorney sent Dennis a letter, dated October 15, 2010, notifying him of the November 3, 2010, trial date. Dennis testified that he did not receive it until November 1, 2010, and he filed a letter complaining of the short notice.

On November 3, 2010, Dennis appeared personally pro se and protested the lack of time to prepare his defense and lack of notice of what he was being charged with. He moved for a continuance. The judge denied his motion and pressed on to hearing. On November 18, 2010, the chancellor entered a judgment against Dennis in favor of Patricia in the sum of $53,528.22.

The COA reversed. Judge Griffis’s opinion spells out the basic law of MRCP 81:

¶7. In this case, jurisdiction is governed by Mississippi Rule of Civil Procedure 81(d)(2), because it includes the “modification or enforcement of custody, support, and alimony judgments” and “contempt.”

¶8. A Rule 81 summons is necessary to begin dormant domestic actions listed in Rule 81(d). A Rule 81 summons is not a Rule 4 summons. See M.R.C.P. 4. A Rule 81 summons gives notice to the defendant of the date, time, and place to appear. It does not require a response. A Rule 4 summons requires a written response in thirty days. A Rule 4 summons and a Rule 5 notice have no effect with Rule 81 matters. Sanghi [v. Sanghi], 759 So. 2d at 1253 (¶¶11, 14) (citing Leaf River Forest Prods., Inc., 661 So. 2d 188, 194 (Miss. 1995); Powell v. Powell, 644 So. 2d 269, 273-74 (Miss. 1994)); see M.R.C.P. 5.

¶9. In a matter that requires a Rule 81 summons and does not use a Rule 81 summons, the resulting judgment is void because it is made without jurisdiction over the parties. See Bryant, Inc. v. Walters, 493 So. 2d 933, 938 (Miss. 1986); Duvall v. Duvall, 224 Miss. 546, 555, 80 So. 2d 752, 755 (1955); Roberts v. Roberts, 866 So. 2d 474, 476-77 (¶¶7-8) (Miss. Ct. App. 2003). If an action under Rule 81(d)(1) or (2) “is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). For no additional Rule 81 summons to be required, the order that continues the trial date must be signed on or before the original trial date.

¶10. In this appeal, Pearson argues that Browning failed to comply with Rule 81(d)(5). Specifically, Pearson argues that jurisdiction lapsed because a court administrator’s notice changed the trial date of January 22, 2008 to January 23, 2008; an order dated October 24, 2008 changed the trial date of September 18, 2008 to February 2, 2009; a court administrator’s notice dated June 11, 2010 changed the trial date of August 6, 2009 to November 3, 2010; and Pearson received a letter on November 1, 2010 about the November 3, 2010 trial.

¶11. Our review is limited to events that occurred after February 2, 2009. Because Pearson was the plaintiff prior to February 2, 2009, he cannot properly raise a jurisdictional issue before that date. By the fact that a plaintiff brought his claim, he consents to personal jurisdiction in that court. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 779 (1984).

¶12. Rule 81(d)(5) governs the need for additional summons on the defendant. Before February 2, 2009, Pearson simply was not entitled to a Rule 81 summons because he was the plaintiff.

¶13. On February 2, 2009, the chancery court dismissed all of Pearson’s claims with prejudice. The only claims left before the court were Browning’s contempt claims against Pearson. Hence, after February 2, 2009, Pearson was no longer the plaintiff.

¶14. Whether an additional Rule 81 summons was required and, thus, whether the chancery court had jurisdiction over Pearson on November 3, 2010, depends on: (1) whether Browning’s “motion” was actually a petition for contempt; (2) whether the court administrator’s notice was sufficient to substitute for the lack of a Rule 81 summons; (3) whether Pearson’s case is similar to Bailey v. Fischer, 946 So. 2d 404 (Miss. Ct. App. 2006); and (4) whether Pearson made an appearance, thereby waiving the lack of a Rule 81 summons.

The COA concluded that Patricia’s “motion” was, in fact, a petition for contempt that required Rule 81 notice, that the court administrator’s notice was not adequate to suffice in lieu of a proper MRCP 81 summons, that Bailey is distinguishable, and that Dennis had not waived the jurisdictional issues by making a voluntary appearance. The court reversed the chancery court judgment for lack of jurisdiction.

The four bases listed above for determination of the Rule 81 issue deserve further attention in one or more future posts and will not be addressed further here.

A few observations based on the foregoing:

  • I call this case curious because, once Dennis had been properly served with the counterclaim, in most districts that I am aware of, he was only entitled from that point to Rule 5 notice. This case seems to say either that a counterclaim requires a Rule 81 process, or that one must be issued if the original plaintiff’s pleading is dismissed. I have never seen this practice in my 29 years’ experience under the MRCP. I admit that I have had trouble understanding the exact procedural chronology of this case, so the problem may be mine. But if my understanding is correct, this case is a major change in Rule 81 practice that you need to study very carefully.
  • Once again, if the matter that is the subject of your Rule 81 summons will not be heard on the day specified in the summons, you must have the court enter an order on or before (caveat … as to before, see below) the day noticed for hearing continuing the case to a specific date and time in the future.
  • Although the COA said that the case must be continued ” … on or before …” the date set in the summons, in my opinion only an agreed order of continuance dated before the summons date would be effective. If you unilaterally reset the case by order before the date set in the original summons, you are depriving the defendant of notice and the opportunity to defend.
  • As long as Dennis was in the status of a petitioner (plaintiff) who had invoked the court’s jurisdiction, he was entitled only to MRCP 5 notice; after he lost his petitioner status, he became entitled to the protection of Rule 81 notice.

As a practice matter, if you were Patricia’s lawyer, you could have avoided most of the above problems had you seen to it yourself that proper continuance orders and notices to the opposing side were presented to the judge and entered in a timely fashion. It’s your case, after all, and judges and court administrators have lots on their respective plates. As I’ve said before, judges and court personnel do their best, but the bottom line is that they are not responsible for the proper handling of your case; you are.

BREAKING LOCK STEP WITH THE CHILD SUPPORT GUIDELINES

September 5, 2012 § 4 Comments

Holly and Christopher were divorced in 2007, and Holly had custody. Holly remarried and moved with the children to Pennsylvania.

Holly filed for modification in the Chancery Court of Lowndes County alleging that she was a stay-at-home mom who needed more money from Christopher to be able to pay for the children’s various expenses. She said that the $1,000 Christopher was paying was simply not enough to cover the children’s expenses, and she wanted the judge to apply the child support guidelines at MCA 43-19-101 to increase Christopher’s child support to what it should be at his increased income. 

The chancellor reviewed the parties’ financial statements, along with the other evidence in the record, and found that the statutory amount of child support payable by Christopher should be $1,400. Nonetheless, she denied Holly’s petition to modify based on the fact that Christopher had to pay the expense of visitation between Mississippi and Pennsylvania, and used that fact as a basis to depart from the statutory guidelines, pursuant to MCA 43-19-103, which sets out the critera the court is to use to justify any departure from the guidelines.

Holly appealed, and in Quinones v. Garcia, decided August 28, 2012, the Coa affirmed.

The appellate court rejected several of Holly’s arguments, including that the chancellor had improperly considered her current spouse’s income and that Christopher had manipulated his mandatory deductions, and held that it was proper for the chancellor to deviate from the statutory child support guidelines where the judge ” … makes ‘an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.'” Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005) (citing McEachern v. McEachern, 605 So. 2d 809, 814 (Miss. 1992)). The court found substantial evidence to support the chancellor’s decision.

When you are trying a child support case, don’t get in lock-step with the idea that the statutory guidelines are inflexible. Look at the deviation criteria. If one of them applies — upward or downward — in your case, use it to your advantage. Offer evidence to support your argument. In this case, Christopher’s attorney saved his client $400 a month.

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