FOR LAW STUDENTS … EVIDENCE HELP
August 27, 2012 § 6 Comments
This post is only for the law students who read this blog. I know that there are plenty of you, based on comments I see posted and hear personally, and that you zero in on the evidence posts.
For those (handfull) of you who are taking evidence, I recommend you get a copy of COURTROOM EVIDENCE HANDBOOK by Steven Goode and Olin Guy Welborn, III, 2012-2013 Student Ed. The book costs around $44 in paper, and there is an online edition for $31. If this book is not among the books you already have to aid you with evidence, I encourage you to consider buying it.
The book is divided into four sections: The FRE; The FRE with the author’s commentary and citations; A compendium of common objections and responses; and Checklists and foundations.
As you would probably guess, my favorite section is the one on checklists and foundations. Here you will find step-by-step guidance on how to get various types of evidence into the record, and how to overcome objections to them. Checklists make your job so much easier, and take a lot of the worrying and guesswork out of the task. Here is the checklist to lay the foundation for admission of a public record or report (Rule 803(8)), for instance:
- The document is a cerified copy of a record or report of a public office or agency.
- The document sets forth either (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (C) factual findings resulting from an investigation made pursuant to authority granted by law.
Each checklist is preceded by a sample interrogation of a witness to illustrate the questions and answers needed to lay the foundation, and some are followed by helpful comments.
The authors’ commentary on the FRE is also extremely helpful. The comments include references to case law that you can use for authority.
I know you are studying the FRE in law school, and that some of you will move on to other jurisdictions, but for those of you who remain in Mississippi, this book, along with the Mississippi Rules Annotated, published cooperatively annually by the Litigation Section of the Mississippi Bar, Mississippi Law Institute, and Mississippi College School of Law, will be a helpful resource for Mississippi practice, since the MRE is based on the FRE.
A copy of the Goode-Welborn book was among the bale of material distributed to us judges at the National Judicial College, which we are required to attend within one year of taking the bench. I have actually found it useful on a few occasions when dealing with some obscure points of law, and it occurred to me that you students might find it helpful as you bend your mind (sometimes painfully) around the more counterintuitive aspects of the courtroom art.
Now, as I said, this post is limited strictly to law students. But if you know a lawyer who might find this useful, it’s okay to pass it on. Even old warhorses who think they know it all can use a good tip now and then.
“QUOTE UNQUOTE”
August 24, 2012 § Leave a comment
“History fades into fable, fact becomes clouded with doubt and controversy, the inscription molders from the tablet, the statue falls from the pedestal. Columns, arches, pyramids — what are they but heaps of sand, and their epitaphs but characters written in the dust?” — Washington Irving
“The past is no further away than the last breath you took.” — Robin Hobb
“The past is never dead. It isn’t even past.” — William Faulkner
FIGHTING THE TIDE THAT WOULD SWEEP AWAY DECORUM
August 23, 2012 § 4 Comments
UCCR 1.01 says that “All proceedings in the Chancery Court … shall be conducted with due formality and in an orderly and dignified manner … The dignity and respect of the Court shall be preserved at all times.” The rule also bans ” … drinks, food, gum or smoking …” and “Bickering or wrangling … Applause or demonstration … and the use of profane or indecent language.”
Courtroom decorum is one of those things that varies widely from district to district, depending on the personality of the chancellor and his or her tolerance level for various forms of behavior.
In my district, I try to make sure that the formality of the courtroom is preserved, that all proceedings are conducted with the attention and gravity that they deserve so that litigants can see that we take their business seriously.
Despite our best efforts, though, philistinism encroaches even into our courtrooms. A few examples:
- The woman who dropped the “f-bomb” repeatedly in the course of a Clarke County hearing until I had her dragged off in handcuffs to do 30 days in jail. This was after she had assaulted another witness in the hall before court was convened, resulting in her having to sit through her trial in manacles between 2 burly deputies.
- The man in the same trial who flipped off the judge. That cost him 5 days in jail.
- The woman who appeared for a hearing in my courtroom in Meridian who wore a t-shirt that read “If you f-ing think I am f’ing going to do what you tell me, m’f”er, you are f’ing crazy.” I sent her home with instructions not to return to the courthouse property until she changed her attire. (By the way … all the f-words cited here were spelled out fully … you can fill in the spelling for yourself).
- Judge Mason had a hearing recently in which a matronly grandmother appeared wearing a t-shirt with a similar message, although not as graphic as mine.
- The man who enters the courtroom in the middle of a trial and calls out loudly to some witnesses, “Lawyer said y’all can come sit out in the hall; y’all come on out here with me.”
- The select few (all women) who came to court for child support enforcement cases wearing pajamas, and in one case pajamas with fluffy slippers. I don’t know about where you live, but it’s not that uncommon to see folks traipsing about in pajamas in this outpost on the edge of civilization, but I think wearing them to court crosses some kind of line.
Of course, the foregoing are merely a few more blatant examples. We have all seen and heard cell phones blaring, courtroom observers blurting out answers to questions or other “helpful” information, and other disruptions by laypeople who I guess don’t know any better. But the problem is not limited to laypeople.
Lawyers can be insensitive to the demands of decorum, too. Shortly after I took the bench, before I banned beverages from my courtroom altogether, I had to ask a lawyer to stop repeatedly shaking a large (2-liter?) convenience-store mug of ice while counsel opposite argued a motion. On another occasion I asked a lawyer to set aside a Dr. Pepper she swigged out of through her cross-examination of a witness.
Those are fairly obvious assaults on decorum. A less obvious example is when several lawyers highjack the hearing with banter and joviality to the extent that the sense of the proceeding is lost completely. Everyone enjoys an injection of a soupçon of humor into a tense trial every now and then, but I reviewed a record once for a trial conducted by another chancellor where the banter and kidding went on for 22 pages. That’s too much, and it sends the message to the parties that their business is trivial.
When I practiced, I always advised my clients to come to court dressed appropriately. And I instructed them in how to behave: no displays of dismay or approval; never interrupt a question or the judge speaking; no gum; no hats; no beverages; show respect for opposing counsel and the judge; and so on and so forth. I think most attorneys do the same, but it’s obvious that the thought has still not occurred to some.
I think preserving decorum in our courts is important. For one thing, it keeps emotion-charged proceedings from getting out of hand. For another, it conveys the message that what is transpiring is serious and taken seriously by the bench and bar. And it sets the courtroom experience apart from the living room where everyone speaks at the same time over the cacophony of the tv.
8.05 FINANCIAL STATEMENTS: “THE GOLD STANDARD” OF PROOF
August 22, 2012 § 6 Comments
This just in: Rule 8.05 financial statements are the “gold standard” of financial proof in chancery court. That’s what Judge Fair said in the COA case of Collins v. Collins, decided August 21, 2012, beginning at ¶34:
This case highlights the role of the income and asset disclosures required by Rule 8.05 of the Uniform Chancery Court Rules. Rule 8.05 mandates prescribed forms for such disclosure and also requires:
(B) Copies of the preceding year’s Federal and State Income Tax returns, in full form as filed, or copies of W-2s if the return has not yet been filed.
(C) A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of divorce, whichever is applicable.
¶35. Compliance with the rule is mandatory, for obvious reasons. If both parties put down identical values for marital property and properly disclose their income and expenses, supported by the required federal and state tax returns and earnings history, a court can adjudicate property and money issues expeditiously and in accord with the law. Noting the importance of Rule 8.05 disclosures, in Trim v. Trim, 33 So. 3d 471 (Miss. 2010), the supreme court has ruled that filing a substantially false Rule 8.05 financial disclosure statement constitutes fraud on the court.
¶36. Though there may be contrary misinterpretation of some decisions, which properly [fn 1] apply only when conflicts between forms conflict,1 Rule 8.05 disclosures should not be evidence of last resort. Rather, they should be the gold standard, requiring other evidence only when there are legitimate disputes as to valuation. [Emphasis added]
[fn 1] “Chancellors may rely on these statements to value property when the parties fail to offer any other evidence as to value.” Kimbrough v. Kimbrough, 76 So. 3d 715, 721 (¶28) (Miss. App. 2011) (quoting Studdard v. Studdard, 894 So. 2d 615, 618-19 (Miss. Ct. App. 2004)). “To the extent that further evidence would have aided the chancellor in [his] decision, the fault lies with the parties and not the chancellor.” Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003).
Yes, 8.05’s are the gold standard of proof to a chancellor trying to root enough information out of the record to make a decision about equitable distribution and alimony. But some lawyers treat them like fool’s gold. Their 8.05’s do not include tax returns, figures are contradictory and incomplete, valuations are lacking, and there is no employment history.
In Collins, Mr. Collins included no tax returns, and he contradicted himself in his testimony, admitting that his 8.05 was incorrect and inaccurate. As a result, the chancellor relied on her own best judgment and calculated what she believed to be his income, resulting in an impressive $1,300 a month child support obligation.
The chancellor also accepted Ms. Collins’ valuations of real property in the absence of proof offered by Mr. Collins. Ouch.
Some parties offer tables of personal property with some pretty incredibe valuations. In one case I had the husband wanted the riding lawn mower, which he valued at $800. The wife — I am not kidding — valued it at $15,000. Husband testified that he had bought it several years before for $1,600 at Sears. I found his valuation more credible. What was the wife thinking when she tagged the item with that value? Did she think I’d bite on that? Where was her attorney when that table was prepared before trial.
Many lawyers and their clients adopt the extremely unhelpful tactic of valuing everything at near zero that they expect to get, and assigning astronomical values to everything the other party expects to get. For example, wife has the green couch, and she wants to keep it, so she values it at $50; husband opines that it is worth $2,750, and he does not want it. Give me a break.
Most people can not afford to hire a personal property appraiser to value their near-worthless pile of stuff. So lawyers toss it into the chancellor’s lap to flip a coin and make a call as to what the values might be. That’s a cop-out. Lawyers should be more professional than that.
If you try many financial-issue cases in chancery, I encourage you to read Collins. It’s the latest illustration of how parties shoot themselves painfully in the foot when they do a less-than-adequate job in prepping their 8.05’s, and it just might give you some ideas how an on-the-ball attorney can help his or her client avoid that kind of disaster.
CHILD SUPPORT AS A MIRAGE
August 21, 2012 § 1 Comment
Any agreement that provides for child support must be found by the judge to be adequate and sufficient, and it must be definite and specific enough to be enforceable.
Most agreements meet those requirements. You won’t go far astray if the child support is within the statutory guidelines and the language awarding it is clear and unambiguous as to how it was calculated, the exact amount to be paid, the due dates, and its duration (e.g., “until further order of a court of competent jurisdiction,” or “until the minor child is emancipated by operation of law or order of this court,” etc.).
These requirements don’t stop lawyers from presenting some pretty fanciful child support arrangements that sometimes make chancellors scratch their heads. Here are some that have been proven not to be allowable under Mississippi law, that you should avoid:
- An unspecified amount. In Lowrey v. Lowrey, 919 So.2d 1111, 1112 (Miss.App. 2005), the court rejected a provision that the mother would pay child support in the form of buying clothes for her children “in an amount that she can afford.” The provision is so indefinite as to be unenforceable. It also violates the fundamental principle that a person can not be held in contempt for failure to comply with a court order that is too vague or ambiguous to be understood. The court in Lowrey said at ¶33, “As it stands, a finding of adequacy and sufficiency depends upon enforceability of the child support provisions contained in a property settlement agreement.”
- Percentage child support. A provision that “husband shall pay 14% of his adjusted gross income as child support” is unacceptable. In Hunt v. Asanov, 975 So.2d 899, 902 (Miss.App. 2008), the court stated, “Before a party may be held in contempt for failure to comply with a judgment, ‘the judgment must be complete within itself … leaving open no matter or description or designation out of which contention may arise as to meaning’” [Citations omitted]. In order to determine what the father’s obligation might be or might have been, the court must look beyond the four corners of the judgment to extraneous earnings data and other information that in all likelhood is in controversy. The argument may be made that the case of Rogers v. Rogers, 919 So.2d 184, 188-89 (Miss.App. 2005) is contra. In that case, the COA held as unambiguous a provision that the husband would pay “14% of his adjusted gross income or $600 a month.” The argument raised by appellant there was that the apparent dichotomy betweeen 14% and $600 created an unresolvable ambiguity. The court rejected that argument and found the language clear, as did the chancellor. Rogers, however, did not directly address the problem of enforceability created by the need of the trial court to consider extraneous evidence to make a complete judgment, and the court pointed out that the $600 amount specified was clear enough to give the appellant an idea of his obligation. I do not see Rogers as an endorsement of percentage child support.
- Amount tied to unspecified return. In Rudder v. Rudder, 675, 678 (Miss. 1985), the court found a provision that the husband would pay any income or divident received from “any investments in the name of the child” was too “indefinite in amount, type, whereabouts, and the name of the holder.” The court held that the award was worthless, as a practical matter, to the custodial parent for enforcement. This type of support order is a subspecie of percentage child support. It requires the court to look to material extraneous from the four corners of the judgment in order to enforce it.
- Lump sum. In Pittman v. Pittman, 909 So.2d 148, 153 (Miss.App. 2005), the court reversed a chancellor’s award of $26,000 in residential equity as additional child support that he said was more ” … in the nature of child support than accumulated assets.” The COA held that the chancellor has no authority to make an award of lump sum child support. If the chancellor lacks such authority, then I am certain that a chancellor lacks authority to approve such an agreement between the parties. Note: Professor Bell says that the statute authorizing guardians to settle claims on behalf of wards has been held to allow lump sum settlements in paternity actions. Bell on Mississippi Family Law, 2d Ed., §11.06[2][b], p. 321.
The kinds of alternative child support provisions that lawyers come up with is only limited by the imagination. It is the court’s duty, however, to make sure that the provisions are adequate and sufficient for the support and maintenance of the child. The further you stray from statutory guideline child support the more likely it is that you will be sent back to the drawing board.
When you draft an agreement you want it to produce tangible benefits for your client. The last thing you should want is for a court to find that language you threw together heedlessly is no more than an illusory mirage or an insubstantial chimera.
CHOOSING NOT TO PLAY CATCH-UP, PART DEUX
August 20, 2012 § 2 Comments
I posted before about Mississippi’s refusal to play catch-up with the rest of the South (and the rest of the US, too) in providing pre-k education for our children.
Turns out I’m not alone. Here’s Sid Salter’s column “No Early Childhood Ed an Obstacle” that appeared in newspapers across Mississippi, including the Meridian Star, this past Sunday.
The point of his column, as I posted before, is that other southern states are investing in early childhood education, and it is paying dividends in elevation of test scores and later school performance, with resultant greater attention from outside investment.
And this is important: Investors interested in locating industries in the South don’t care to put their money into backwaters that have low levels of education and don’t want to show any competitive edge. Those industries need a trainable, educable work force. Investors want to put their money where it will maximize their chances of profitable return. They don’t care to invest in losers.
It’s been proven that the more we invest in education of our workforce, the more we will reap in industry, jobs, and economic development.
The converse is true: the more we refuse to invest in our children, the bigger and more insuperable advantage Alabama, Louisiana, Arkansas and Tennessee will have over us.
Oh, and by the way. Those neighboring southern states I named are already at their own disadvantage to other states that got ahead of them. So we are behind the states that are already behind.
Here’s the bottom line: We can stand pat and fall further and further behind, or we can take action and get in position to move ahead.
Even Sid Salter agrees.
These children are our future. They are our treasure. Why are we so loath to invest in them?
Come on, Mississippi. You know it’s right. Let’s do it.
DICTA
August 17, 2012 § Leave a comment
- The Mississippi Law Journal online has an interesting Comment, authored by Jeffrey Brown, about the struggle of LGBTQ (lesbian, gay, bisexual, transgender, or questioning) for a harassment free education.
- Are law journals of much benefit to practitioners? Law commentator Walter Olson in the Atlantic says no, in an article entitled Abolish the Law Reviews!
- In a paper cited by Olson, Professor Ross Davies argues for a return to helpful legal scholarship.
- A Calif. US Dist. Ct. judge ordered Oracle and Google, opposing parties in an intellectual property dispute, to disclose all financial ties to any bloggers who might have written about technical aspects of the smartphones in dispute between them. In the interest of full disclosure, I have no financial ties to anyone other than my wife and our financial accounts, my children and grandchildren, and, on the recipient side, to the State of Mississippi which deposits a paycheck into my account every month. Just sayin’.
- Are judges’ expectations of lawyers as officers of the court too burdensome? Lonnie T. Brown, Jr. of the UGA School of Law thinks so in this research paper you can download.
- The gradual disappearance of win-win thinking and its impact on our culture. A column by Bill Crawford.
YOU CAN TAKE THIS TO THE BANK
August 16, 2012 § 6 Comments
Many more years ago than I care to think about, when I could not have been more than ten years old, my sainted grandfather (paw-paw Walter, we called him) took me in tow and we walked hand in hand out of his appliance store, across South State Street in my little home town of Abbeville, LA, into First National Bank.
First National Bank of Abbeville was a serious place where adults went to perform esoteric rites beyond the ken of youngsters. It was a place of “business” where no childish frivolity was allowed. We entered together. There were the tellers in their crisp, short-sleeved white shirts and clip-on ties (all men), their pomaded hair and balding pates glistening in the fluorescent light. There were the marble-topped tables with brass fixtures and chained pens that patrons used to inscribe bank forms with the runes of commerce. There was an air of solemnity in the little walnut-panelled bank. People conducted their business in a sort of sacramental hush, as if the money and paper passed between them was a kind of commercial communion.
We went into a bank officer’s splendid office and sat in the leather-upholstered chairs facing him across his uncluttered, massive desk. A muted clock tocked out of view. Tasseled drapes hung across the window, obscuring the view of the whitewashed courthouse across the street, but allowing an afternoon splash of light. Some words were exchanged between the adults that I did not understand, but the officer smiled, reached into a drawer and pulled out a page of paper that my grandfather signed. My grandfather handed the man a couple of bills, whereupon the bank officer wrote something on an impossibly tiny book and handed it to me. From what little I understood of cursive writing at the time, I could make out my name on the cover of the book.
Back across the street in his store, my grandfather explained that I now had a savings account with a few dollars in it. The transaction had taken only a few minutes, but it made me feel like I had entered, or at least gotten a glimpse into, the mysterious realm of adulthood. I proudly took my passbook home and put it in as safe a private place as I could, considering the tribe of siblings I grew up with.
Fast forward more than fifty years.
I have had a miniscule savings account at a local bank for several years. The bank required me to open it with only $300 when I opened a home improvement line of credit, now paid off. Why this was required, I don’t know. But the money has languished there, earning pennies every quarter.
Or so I thought. I discovered that the bank has been charging my savings account an “account maintenance fee.” Now, I don’t know about you, but I had thought the deal was that, in return for the safekeeping of my money as long as I left it there, the bank would pay me an almost vaporous amount of interest and have nearly free use of it to earn money for itself.
Nope. They have been charging me a fee to “maintain” something that requires no maintenance as far as I can discern. They also unauthorizedly paid my safe deposit box rent out of the account, depriving me of the documentation I need to include that on my 1040. Then I discovered that they had even charged my account for a payment against the line of credit, which caused the little account to dip below some line of tolerance, costing me a few more farthings. By the way, I was dinged for the extra charge despite the fact that the loan was paid off in full that month and the bank even had to send me an overpayment refund of several hundred dollars. My miserable little account was being nibbled to nothing by the ducks of banking.
I went to the bank and sat down with an 11-year-old “vice president” (okay, I concede he probably was older, but danged near everybody who doesn’t yet have gray hair looks that age to me). I brought with me five checks totalling several thousand dollars, aiming to create an escrow account for a property my wife and I own, and I told the youngster that if we could reach an agreement whereby the bank would let me “save” my money there, instead of pilfering my account whenever the bank needed petty cash, I would deposit those checks into the existing savings account. Alas, to make a long story short, the “vice president” and I could not reach an understanding, and I approached the teller with a “memo advice” from the “vice president” to give me my few remaining dollars. The teller at first told me that there would be a $10 charge to close the account. I told her just to take whatever else the bank felt it needed of my money and give me what few dollars might be left so that I could get out of there before it disappered altogether, or, worse, before they calculated that I owed them money. Her supervisor reversed that closing charge, which made me deliriously happy to be able to escape with an additional $10 of my own money.
I left the bank and went to a credit union down the street. After waiting a tad, I was directed into the offices of the “Member Services” representative, a stern woman who obviously took her duties quite seriously. Her first pleasantries to me were “Driver’s license and Social card,” with her hand out palm up. After which she typed at a computer uninterrupted for several minutes. Our conversation next ventured into home address, mailing address, home phone, work phone, my employer, what the account was for (so she could figure out what kind of account I needed, I guess), and on and on, each question punctuated by a couple dozen computer keystrokes. At some point, I meekly interrupted to inject that I needed my wife to be on the account, which she brushed aside with the statement that “She will need to come here personally to do that.” I pictured my wife taking off work for an hour or so to provide the exact, same information that I was already providing.
Accessibility was the reason that I had wanted an account at the nearby bank or credit union in the first place. I imagined what a convenience it would be to have the money within a block or two of work. At that point, though, as the “Member Services” representatives clacked away on her computer, it dawned on me that the mind-numbing bureaucracy of dealing with these once-neighborly financial organizations cancelled out any perceived advantage of geography. Sitting there while being processed with no greater care than a chicken gone to glory being packaged for a meat rack at Winn-Dixie, it occurred to me that my wife and I already had a joint CMA account at a local brokerage, and I really didn’t need all this. Sure, the CMA account was not conveniently within walking distance, but it was, definitely, a mere phone call away from a transaction. I halted the credit union process, took my DL and SS card, picked up my sheaf of checks, thanked the lady for her trouble, and retreated out of doors into the breathtaking sauna that is Mississippi in August, but that seemed to me to be the fresh air of sanity.
Mulling over my experience, I wondered when and just how we transitioned from the friendly banker who could take a moment out of his busy day to open a tiny savings account for a little boy who might one day grow into a profitable customer, into the grasping, impersonal institutions we have to deal with today. My first impulse was to blame it on the financial meltdown and the resultant spasm of regulation, or maybe it was the nearly irrational fear of terrorism and its possible use of our banking system for all manner of dastardly deeds, or maybe the banks were scrambling for a few bucks in the deflated economy like everone else.
But then I thought back several years ago when I was in practice, and several years before financial collapse. I had had a trust account at Deposit Guaranty since the 70’s, always with impeccably unobtrusive, silent service. DG’s successor at first did fine. Then they were taken over by a financial conglomerate out of Nashville, and started imposing service charges on my trust account. I was able to talk to the few officers remaining from the DG days, all of whom were local, to get the practice stopped. Soon after they were all retired or moved on to other businesses, though, the practice started up again. My secretary got it corrected yet again, for a few months, and then it started up again and could not be changed.
So I took time out of my day to travel downtown to the marble-halled mega-bank and met with an efficient young (no gray hair, so I guess she was around 11) female corporate representative wearing a gold plastic conglomerate name plate. The young lady was nice enough, I suppose, but there was a disconcerting air about her, a hint of what you might see on the Military Channel when they depict a Nazi prison camp with its smiling but insistent matron-in-charge who addressed any disagreement with a painful snap of the crop. I explained to her as tactfully as I could that the law did not allow me, or any other lawyer, to earn any interest on a trust account, and that other banks did not charge a service charge. The advantage to her bank, I tried tactfully as I could to lay out for her that the bank could use the funds free of charge until I needed to do a transaction. She responded through glazed eyes that her mega-bank generally dealt with large corporate accounts, and that they were really not equipped to deal with (read “not interested in dealing with”) these “small accounts” like my little $30,000 trust account. I pointed out that $30,000 was a lot of money to me and my clients, and that I would prefer to have it in a local bank that would not find my little sum too much of a bother … and would not charge me a service charge. I walked out of there with a check and opened a new trust account at another bank.
All of this made me think about how the banks and credit unions, once proud to render a community service to handle your trust account, or your little estate or guardianship account, now want that business only if it’s worth millions and only if the bank stands to make lots of $$$$.
So, I’m sad that we’ve come to this, even in my little Mississippi town where I’ve lived and made my career, where there are lots more people of modest means who need honest, friendly, helpful banking services than there are multi-trillionaires with enough money at hand to buy the entire town (FYI for any of you anonymous trillionaires … I will sell you guys my residence for cash money at appraised value).
Now, I am not advocating for a return to the Andy-of-Mayberry days of my childhood banking experience. Somewhere, though, we’ve made something so easy, that could even be pleasurable, into a major travail. Am I naive and unrealistic in thinking that we should be able to do business without being so, well, business-like? Am I being unreasonable?
Maybe in my dotage I am morphing into another whiney Andy Rooney. I hope not. I try to be reasonable about most things. Just don’t get me started about air travel nowadays. See, we took this trip to Baltimore back in May, and …
RECENT AUTHORITY FOR UNEQUAL DIVISION
August 15, 2012 § Leave a comment
From the earliest days after the Ferguson case established equitable distribution as the law for division of marital estates in Mississippi, the rule has been that the division need not be equal, but it must be equitable. See, e.g., Wells v. Wells, 800 So.2d 1239, 1243-44 (Miss.App. 2001).
Over the years the concept of equitable distribution evolved at the trial court level into a concept of equal division, so that lawyers quit pushing the argument that their clients were entitled to a larger slice of the marital asset pie. But there are cases where lawyers have succeeded on the point, and you might find them helpful in your own practice.
Several cases in the past year or so offer some authority you might find helpful in achieving an unequal division:
- Cox v. Cox, 61 So.3d 927 (Miss.App. 2011). This is a case where the presumption that the wife’s “homemaker” indirect contribution to the accumulation of marital assets was rebutted by the proof. The chancellor’s award of 25% of the marital estate to the wife was upheld where the husband had made most of the direct financial contribution to acquisition of the marital assets, and she did not contribute to the husband’s business. The husband also paid the wife’s pre-marital debt, funded a business venture of hers that failed, and he paid for her to take courses in school and to otain a real estate license. The husband also paid to provide household assistance in the form of a domestic and yard help. This is one of those rare cases where the homemaker presumption was rebutted, but it reminds us that although the presumption mandates a rebuttable finding of equal contribution, it does not mandate an equal division.
- Powell v. Powell, 87 So.3d 495 (Miss.App. 2011), decided November 11, 2011, is a case we’ve discussed here before. In this case the disabled husband was awarded a greater share of the marital estate based on his greater contribution to the accumulation of wealth, wife’s greater draw during the marriage from the family business, and wife’s marital misconduct. A significant feature of this case is that the COA upheld the chancellor’s findings as to valuation despite scant evidence offered by either party on the point.
- Kimbrough v. Kimbrough, 76 So.3d 715 (Miss.App. 2011). In this Ittawamba County case, the chancellor awarded wife 24% of the marital estate. The unequal distribution resulted from the husband being awawded $166,000 in equity in the former marital residence versus the award of $4,400 in equity to the wife. The disparity was due to the fact that the home was husband’s debt-free, pre-marital asset, and the only contribution wife had made to the value was her payments against a home improvement loan. The court observed that “We do not look at the division of one asset in isolation” (at ¶19). [An interesting side note: the court’s opinion cites another case for a quite lopsided division: “See Redd v. Redd, 774 So.2d 492, 496 (¶ 15) (Miss.Ct.App.2000) (reversing on other grounds but stating that a 77% to 23% division of the marital property, standing alone, would not have been a ground for reversal).”]
- Allgood v. Allgood, 62 So.3d 443 (Miss.App. 2011), was a case in which the chancellor awarded husband 65% of the marital assets. As in Kimbrough, the unequal division stemmed from an unequal division of the equity in the former marital residence. Husband’s share of the marital estate was enhanced by $82,000 he had contributed to the home’s equity. As the court pointed out, although a party’s commingling of separate funds may transform their character into a marital asset, the trial court may nonetheless adjust the equities and award a greater share of the aset value to the party who made the contribution of separate funds.
- Jenkins v. Jenkins, 67 so.3d 5 (Miss.App. 2011). In this case wife was awarded a smaller percentage of the parties’ assets. The trial court considered contributions and expenditures of each spouse to the seven-year marriage, and that husband owned the bulk of the marital assets prior to the marriage and expended pre-marital earnings on improvements to the property during the marriage, and it was wife’s addiction to prescription medications that caused marital separation. Most of the wife’s share of the marital estate consisted of her retirement account. At the time of the divorce she was unemployed, with an application for Social Security disability payments pending.
- Bond v. Bond, 69 So.3d 771 (Miss.App. 2011). This is my favorite case of the bunch, and one I’ve posted about here before. The appeal was actually filed by the husband, complaining that the chancellor was too generous in awarding the adulterous wife ten percent — you read that right, 10% — of the marital assets. He thought she should have received naught. Judge Maxwell’s exposition on marital fault and its role in equitable distribution is something you should read and digest. I am still scratching my head over why Mr. Bond filed an appeal in this case.
RULE 81 CLAIMS ANOTHER VICTIM
August 14, 2012 § 5 Comments
There are judges and lawyers who absolutely hate MRCP 81. I don’t know of anyone who really loves it. Most who don’t hate it just try to operate within its bounds, as they understand it, and go about their business.
There is a vast graveyard of legal shipwrecks on the shoals of Rule 81. The latest took a not unfamiliar, if long-delayed, route to disaster.
To make a long story short, the plaintiff filed a petition for partition in 2005, and issued MRCP 81 summons for the defendants. Some kind of proceeding took place in July after the defendants had been served, but no order was entered and no other action taken of record.
Five years later, with a different chancellor on the bench, the plaintiff awoke to the fact that the case was sitting idle. Realizing that one necessary defendant had never been served with process, the plaintiff issued process for her. She appeared in response, and the case was continued to a later date. When neither she nor any of the other defendants appeared on the later date the chancellor entered a judgment granting the plaintiff the relief he requested, a partition by sale.
The defendants filed an MRCP 59 motion arguing against the partition by sale, and complaining that they were not properly served with process. The chancellor overruled the motion, and the defendants appealed.
In Brown, et al. v. Tate, rendered August 7, 2012, the COA reversed and remanded the case because no order had been entered continuing the hearing on the the 2005 summons.
Here are a few learning points from the case you might want to consider:
- If you continue your hearing, for whatever reason, from the date set in the MRCP 81 summons, be sure that you obtain an order of the court dated the day set for hearing in the summons, continuing it to another day certain. If you fail to do this, your process is dead, and you will have to start over.
- If one or more defendants show up on the day set in the summons, make sure they sign off on your order of continuance, and make sure you give them a copy of the order.
- Instead of just reciting that the case is continued to another day, include the following information in your order: (1) that all defendants were called in the courtroom and in the corridors of the court house; (2) name the defendants who did appear; (3) name the defendants who did not appear; (4) describe what actions were taken in court, if any; (5) the date, time, and place of the next hearing; (6) a statement that each defendant who appeared was provided with a copy of the order and that each understands that a judgment may be entered against them if thhey fail to appear at the next hearing; and (7) the signature of each defendant who appeared.
- Ask the judge to add, in the continuation order, a requirement that each defendant file an answer before the date set for the continuation hearing. An answer to a Rule 81 matter is not required by the rules, but MRCP 81(d)(4) permits the court to require an answer ” … if it deems it necessary to properly develop the issues.” And “A party who fails to file an answer after being required to do so shall not be permitted to present evidence on his behalf.” By including the requirement for an answer in your continuance order, you are effectively setting up a default situation for those who do not answer.
This particular case is one that fell through the cracks and should have been scuttled by an MRCP 41(d) notice years before it resurrected itself. The doltish chancellor should have made that plaintiff’s lawyer start over when he came before the court with that old file. Oh, and lest you think I am being too harsh in referring to that judge as doltish, that judge was I.
