DICTA
February 24, 2012 § 5 Comments
- A bill pending in the Mississippi legislature may have far-reaching consequences for the people of Mississippi who need access to courts, as well as for the legal profession. It’s a bill that describes itself as “An Act to Provide for the Payment of Costs and Expenses Incurred by a Prevailing Defendant in a Civil Action …” What that means for chancery court, I believe, is that if a party in good faith seeks modification of custody to rescue a child from an abusive situation, and that party loses, he or she will have to pay the other side’s attorney’s fees and expense. You can imagine what effect that law would have on the willingness of people to risk bringing an action to have that addressed. Philip Thomas has a post here on the subject, with a link to the bill itself, and another post here, and here. This is really important to your clients and the legal profession. You need to educate yourself about this and talk with your legislator.
- The formidable Garry Wills, a Catholic himself, skewers the church’s position on contraception and health insurance in this acerbic article, Contraception’s Con Men, in the New York Review.
- So, which is the best language to learn? Robert Lane Greene opines in More Intelligent Life. Hint: Il n’est pas le Mandarin des Chinois.
- You can read the entire publication, William Faulkner and the Tangible Past: The Architecture of Yoknapatawpha, by Thomas S. Hines, online, complete with illustrations.
- The classic American dream: a home and a college education. Now that the housing dream has faded, is higher education next? The Christian Science Monitor thinks so.
- Nobel-prize-winning economist Joseph Stiglitz has a 4-point plan for reducing the deficit and restructuring the US economy.
ALIMONY IS NOT FOR EQUALIZING THE DIVISION
February 22, 2012 § Leave a comment
What is the proper role of alimony vis a vis equitable distribution? In Williamson v. Williamson, decided by the COA on January 10, 2012, Judge Carlton’s opinion stated:
¶21. The record reflects that in equitably dividing the marital property, the chancellor erroneously applied the Armstrong factors by awarding Mary alimony in order to create equalization of the parties’ incomes. The chancellor then ordered Will to pay Mary $594 per month to be applied toward the mortgage on the marital home; and, in addition to that amount, the chancellor awarded Mary $200 per month in periodic alimony, for a total of $794, or approximately $800, until the former home sold. [Footnote omitted] As evidenced by the chancellor’s findings, the chancellor accomplished the ordered equitable division of the marital property by aid of an award of periodic alimony in favor of Mary in order to make the parties’ financial situations “equalized.” The record shows, as set forth in the excerpts herein, that the chancellor had not completed an equitable division of the marital property prior to considering alimony. In accordance with precedent, the equitable division of the marital property must be completed prior to determining if either spouse suffers a deficit in the division of the marital estate warranting an award of alimony. The record in this case shows, however, that the chancellor used alimony to equalize the parties’ future incomes instead of awarding alimony based upon need existing after completion of an equitable division of the marital property.
¶22. Mississippi now embraces the process of equitable division of the marital property. In applying the “equitable” division of the marital property in accordance with the Ferguson factors, alimony fails to serve as the primary method to equalize property division. See Lowrey, 25 So. 3d at 292 (¶44) (“[A]limony has become a secondary remedy to property division . . . . ‘One of the goals of adopting equitable distribution was to alleviate the need for alimony.’”). Alimony, instead, assists in the event the chancellor determines that a need exists by a spouse after the completion of the equitable division of the marital property. See id. at 293 (¶44) (“If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.”); George v. George, 22 So. 3d 424, 428 (¶7) (Miss. Ct. App. 2009) (“[A]n award of periodic alimony is based upon need.”).
The proper procedure follows this sequence:
- Determine which assets are marital and which are non-marital;
- Adjudicate the values of both marital and non-marital assets;
- Apply the Ferguson factors to the proof in the record to determine whether there should be an equitable division of the marital estate, and, if so, how it should be accomplished;
- If the equitable division of the marital estate, considered with each party’s non-marital property, leaves a deficit for one party, then the court should analyze the evidence in light of the Armstrong factors to determine whether alimony should be awarded.
From a pratice standpoint, then, here is what you need to give the chancellor so that she or he can do the job:
- An itemization of all assets, showing which your client claims to be marital and which your client claims to be non-marital. The best way to present this itemization is through lists introduced into evidence, rather than just a narration by your client. Have your client testify as to her basis for putting each asset into either category.
- Assign values to each asset. In advance of trial have your client assign values to each asset. Real property, heavy equipment, leaseholds, buildings, fine art and jewelry, business operations and interests, and other assets other than automobiles and ordinary personal property should have values established by appraisals. Again, this should be done by lists and documentation as much as possible, although experts may be needed as to some items.
- Offer proof as to each Ferguson factor. Have a copy of the factors to use as an outline as you develop testimony at trial. You might also want to look at the Cheatham factors for lump-sum alimony.
- Whether your client is trying to get alimony or trying to resist it, put on proof as to the Armstrong factors. Have a copy of the factors to use as an outline as you develop testimony at trial.
In my opinion, one of the chief causes of failure on appeal is that the lawyers do an inadequate job of making a record that the chancellor can use in making a decision. This forces the trial judge to have to patch something together in an attempt to cover everything, and the result is a flaw that the COA will find reversible. Make your record as airtight as the truth allows.
DID COLLEGE SUPPORT JUST GET BIGGER?
February 21, 2012 § 2 Comments
Teresa and Charles Zweber got an irreconcilable differences divorce by consent in 2006. A special master heard their case, and the chancellor entered a judgment of divorce. Charles got custody of the parties’ daughter, Lindsey, and Teresa was awarded custody of the son, Daniel. Paragraph 9 of the judgment addressed the parties’ college support obligation. It reads in part:
“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.”
When Lindsey reached college age, she opted to attend Delta State University (DSU) and enrolled in that school’s commercial aviation program. The degree curriculum requires that the student take flight-training courses, most of which are at the student’s own expense. The expense is considerable: the university’s own published figures state that students can expect to spend around $55,000 for all of the required flight-training courses. Of course, as with all college students, Lindsey spent money in addition for books, tuition, pencils, paper, gasoline for her car, pizzas, makeup, hamburgers, hairdos, laptops and related paraphernalia, etc., etc., etc.
Charles sent Teresa a bill for her share of Lindsey’s college expenses. Included were the usual dorm and meal plan expenses, along with the charges for the flying instructions. Teresa deducted the flight instruction costs and began remitting a monthly payment to Charles for her share.
At trial the chancellor found that the flight-training expenses were necessary for Lindsey’s college degree, and ordered Teresa to pay up. Teresa appealed, claiming that the chancellor was in error due to the specific language of the college expense provision of the divorce judgment, which Teresa read to limit each party’s liability.
In a decision rendered February 14, 2012, in Zweber v. Zweber, Judge Griffis, writing for the majority of the COA, pointed out that the requirement of flying lessons and their cost were spelled out in the DSU catalog, and that they were required to complete the degree. In a masterful understatement, Judge Griffis observed at ¶ 17 that “Indeed, it does make sense that a student would have to learn to fly before he or she could graduate from a commercial aviation program.”
The opinion goes on to state:
In Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991), the supreme court held: “Though college expenses are not technically ‘child support,’ a parent may be ordered by the court to pay them. A parent may also be ordered to pay some portion of the resulting expenses of college, in addition just to tuition.” (Citing Wray v. Langston, 380 So. 2d 1262, 1264 (Miss. 1980)). Today, the cost of a college education is not simply limited to meals, tuition, books, and room. Instead, all related fees and expenses of the child’s college education must be considered. This includes the direct expenses charged by the college or university (i.e., tuition, on-campus housing, fees, books, or other related expenses), as well as indirect expenses that are necessary for the child to live as a college student (i.e., offcampus housing, meals, transportation, insurance, computers, clothing, and personal expenses). Indeed, all of these costs are required for the child to complete successfully his or her college education. We recognize that not every parent can afford to pay these costs. The law provides that the chancellor, not this Court, is in the best position to make this determination. Based on our de novo review, we determine that the chancellor’s decision on this issue was correct. We therefore affirm the chancellor’s judgment.
I may be wrong, but I don’t recall the appellate courts setting out a more expansive definition of college education expenses before now.
There are implications here for your PSA’s. In essence, what the COA is telling you is that, unless you specifically carve categories of expenses out of the definition of college support, your client may face some additional expenses that never occurred to you in drafting it. That could be unpleasant to have to explain to the client after the expenses were incurred.
What about where the non-custodial parent is paying college education support and child support? It would be prudent, for example, to spell out that the child support will go toward your client’s share of “Junior’s transportation, off-campus housing and all other living expenses while at college,” or some such language that covers your situation.
In any case, you should specifically carve out and allocate those living expenses, such as “Husband will be responsible to pay the cost of Junior’s automobile, including maintenance not to exceed $1,000 per year, and gasoline and oil not to sxceed $200 a month, and wife shall be responsible to pay the off-campus apartment rent and utilities,” or something like that. If you don’t, the sky’s the limit.
There are a couple of other aspects of this case that deserve your attention. I recommend that you read it. After you read it, I urge you to consider the language in your PSA’s addressing that college support obligation and whether you are adequately protecting the interests of your client.
“QUOTE UNQUOTE”
February 17, 2012 § 2 Comments
“This is what you shall do: love the earth and the sun, and animals; despise riches; give alms to everyone that asks; stand up for the stupid and crazy; devote your income and labor to others; hate tyrants; argue not concerning God; have patience and indulgence towards the people; take off your hat to nothing known or unknown, or to any man or number of men; go freely with the powerful uneducated persons, and with the young, and mothers, of families; read these leaves in the open air every season of every year of your life; re-examine all you have been told at school or church, or in any books; and dismiss whatever insults your soul.” — Walt Whitman
“Do your little bit of good where you are. It’s those little bits of good put together that overwhelm the world.” — Bishop Desmond Tutu
“Preach the gospel always, and if necessary use words.” — Attributed to St. Francis of Assisi
THE BOOMERANG STRIKES HOME
February 16, 2012 § Leave a comment
Still more actual courtroom proceedings collected from hither and yon over the years …
Ask a Stupid Question …
Q: Sir, it says on your jury questionnaire that you are retired. What do you do in your spare time?
A: I smoke pot.
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Q: Can you tell me about your job?
A: Very boring.
Q: More boring than this voir dire proceeding?
A: Oh, no. Not this boring.
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Plaintiff’s lawyer: This case involves an automobile accident in which my client’s car was struck and he was severely injured. If there is anyone here who does not have a valid driver’s license, would you please raise your hand?
[At which the jury panel and courtroom in general erupt in laughter. Counsel for plaintiff wheels around to see that his client is the only person in the courtroom with a hand raised.]
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Defense Lawyer: Now, about the motorcycle accident you were in, did you suffer any injuries?
A: Yes, a broken neck, leg, and arms, abrasions all over.
Defense Lawyer: Just answer yes or no, please. Did your injuries cause you any lingering problems?
A: Yes. Arthritis, daily pain. Pain all the time. Can’t sleep for the pain. Throbbing in my head. Walk with a limp. Hurt so much I can’t get comfortable, whether I sit, stand or lie down. Ruined my sex life. Don’t enjoy doing nothing anymore. I used to hunt and fish, but I can’t no more. Can’t even go to the movies. Sometimes I just cry from hurting so bad. I’m in pain right this minute.
Defense Lawyer: [Sarcastically] Thank you very much for being so forthcoming, sir.
A: Just trying to be honest.
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Q: What would you decide if you were in the jury room deliberating and you thought that the defendant was innocent?
A: Oh, about two years.
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Objective Case
Atty: Objection, Judge, this is just an attempt to make me look like a fool by going into this.
Court: Is that the only ground for your objection?
Atty: Yes, sir.
Court: Overruled.
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Gathering Nuts from the Family Tree
Q: Ma’am, please tell the court how your first marriage was terminated.
A: By death.
Q: And whose death was that?
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Q: Please tell the court how big your work shed is at the former marital residence.
A: I would say about ‘yay wide and …
Q: If you can, Mr. Jones, please give the measurements for the record.
A: In meters or feet?
Q: Either.
A: I have no idea.
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Q: Now, ma’am, you said that your husband called you a whore …
A: Absolutely not! He would never call me a whore.
Q: I wrote in my notes that you said he had called you that. Did I write that down wrong?
A: You must have, because he never called me that.
Q: So what was it that he called you?
A: Slut. He called me a slut all the time, but he never called me a whore. He just was not that kind of person.
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[This is actually from a Jan Karon novel, but I couldn’t resist including it …]
Q: So, you have six children?
A: Yes, six. Three sets of twins.
Q: My, my. Three sets of twins! So you had twins every time?
A: Oh, heavens no! There was lots of times when we didn’t get nothing.
AMENDING BY THE BOOK
February 15, 2012 § 2 Comments
Things seem to go in phases. A motion to do thus and such is filed, finds some success, and a slew of others follow. Or a court of appeals decision makes a point, and a salvo of pleadings ensue.
Lately, a phase in pleadings is for lawyers to file successive so-called “amended” or “supplemental” pleadings and answers thereto, along with counterclaims (bearing all manner of names, such as “counter-motions,” “cross-complaints,” “counterpetitions,” etc., etc., etc.), and responses thereto, to the extent that casting the pleadings for trial is like assembling a jigsaw puzzle. Nearly always, this plethora of pleadings is filed in a willy-nilly cascade of paperwork without any leave of or input by the court. It does not have to be, nor should it be, this way.
MRCP 15 lays out an orderly process for amendments that is fairly simple if followed. Here’s the simple scheme laid out in Rule 15(a):
- You may amend at any time, without leave of court, before an answer is served.
- If your pleading is one to which no answer is permitted, you may amend without leave of court at any time within 30 days after service of process, unless the matter has been placed on the trial calendar.
- Any other amendment will require leave of court, with notice to the other side and opportunity to be heard, OR written consent of the adverse party or parties.
It’s really that simple. There are some other interesting wrinkles in Rule 15, and we’ll touch on them, but the important thing to remember is that if your pleadings don’t meet the criteria in 1 and 2 above, you must file a motion and get permission of the court to amend or get an agreed order. Note that the rule requires “written consent.” I take that to mean an agreed order of the court, not a handshake deal that is later the subject of heated dispute.
An important caveat: Rule 15 specifically says that leave to amend shall be freely given. Don’t confuse that principle with freely amending without leave of court.
The importance of following the requirements of Rule 15(a) is illustrated by what happened in Lone Star Industries, et al. v. McGraw, decided February 2, 2012. In that case, the Mississippi Supreme Court held that the circuit judge should have dismissed a second amended complaint for failure of the plaintiff to get leave of court before filing it. As a result, some plaintiffs were dismissed from the suit, and the statute of limitations (SOL) has likely run.
You can have a similarly unpleasant result in chancery, although we seldom deal with SOL. Imagine that you have unilaterally updated your modification pleadings 10 days before trial to bring up some claims that surfaced in discovery, only to face an objection at trial that you did not comply with Rule 15. The judge should sustain the objection and throw out your updated claims. In a modification case, that could be significant to your client, because the judgment that results from this trial will time bar any later claims based on acts that precede it.
So, how do you successfully update your pleadings to capture transactions, occurrences or events related to the original claim that occurred after the filing of the original pleadding? You file a motion pursuant to Rule 15(d). If you can’t get the other side to agree via an agreed court order, you should call your motion to amend up for hearing right away, because the judge can deny your request if to grant it would prejudice the other party, as, for instance where you wait until immediately before or the day of trial.
Rule 15(b) says that even if you have not amended, you may be able to get your amendment anyway if you present evidence that is outside the scope of the pleadings at trial and the other side does not object. The court in such a case may allow the pleadings to be amended to conform to the proof. That’s the subject of a post to come later.
Amendments relate back to the date of filing of the original pleading, if they arise out of the same conduct, transaction or occurrence set forth “or attempted to be set forth” in the original pleading. That’s what Rule 15(c) provides, and it has some important language about adding parties.
Sloppy amendment practice makes a mess out of litigation. Recently I delayed a trial and ordered the parties to file updated, consolidated pleadings where there was a train of pleadings extending back to 2008, with petitions, counterclaims, responses and answers to responses of such byzantine proportions that I could not discern what were the issues in the case. I suspect that when the case bubbles back up, many of the issues will have fallen by the wayside, and we will have a streamlined, current, sensible package of issues for adjudication. Or at least that’s what I’m hoping.
JUDGE, JURY … AND INTERROGATOR
February 14, 2012 § 2 Comments
Lawyers frequently refer to the fact that chancellors are “judge and jury” because the chancellor makes findings of fact as well as conclusions of law in the case.
But there’s another legitimate role of the chancellor … developer of the facts. It’s a duty of chancellors long recognized in our jurisprudence, as this passage from the venerable case of Moore v. Sykes’ Estate, 167 Miss. 212, 219-221, 149 So. 789, 791 (1933), illustrates:
“Ever since our chancery court system has been in operation in this state, going back to the earlier days of our judicial history, it has been an established and well-recognized part of that system that one of the important obligations of the chancellor is to see that causes are fully and definitely developed on the facts, and that so far as practicable every issue on the merits shall be covered in testimony, if available, rather than that results may be labored out by inferences, or decisions reached for want of testimony when the testimony at hand discloses that other and pertinent testimony can be had, and which when had will furnish a firmer path upon which to travel towards the justice of the case in hand. The power and obligation reaches back into the ancient days of chancery when the chancellor called the parties before him and conducted a thorough and searching examination of the parties and the available witnesses and decreed accordingly. And, while now this duty of calling the witnesses and the conduct of their examination is placed in the first instance and generally throughout on counsel, the power and duty of the chancellor in that respect is not thereby abrogated; and while to be exercised only in cases in which it is fairly clear that the duty of the chancellor to intervene has arrived and is present, when that situation does arise and is perceived to be present, the duty must be exercised and is as obligatory as any other responsible duty which the constitution of the court imposes on the chancellor.”
And where the attorneys have failed to develop the proof necessary, the chancellor may reopen the proof, or leave the record open to acquire the necessary proof, so as to be able to adjudicate the case. In In re Prine’s Estate, 208 So.2d 187, 192-93 (Miss. 1968), the court said:
“More than a half century ago our Supreme Court in Beard v. Green, 51 Miss. (856) 859, expressly pronounced upon the obligation and responsibility mentioned, and in that case said: ‘The power of the chancery court to remand a cause for further proof at any time before final decree, and in some cases after it, either with or without the consent of parties, is one of the marked characteristics distinguishing it from a court of law, and is one of its most salutary and beneficent powers. It should always be exercised where it is necessary to the ascertainment of the true merits of the controversy.’ And the court went on to say that it was immaterial as to how the necessity of the action by the court arose, whether through inattention or misapprehension or misconception by counsel or litigants, and that none of these or the like should be allowed to prevent the doing of justice. And the duty of the chancellor in this respect was again declared in a later case, McAllister v. Richardson, 103 Miss. (418), 433, 60 So. 570, 572, wherein it was pointed out that the duty, and this of course carries the power, is not only to remand to rules, but includes the obligation on the part of the chancellor during the hearing to see ‘that all proper testimony was introduced to enable him to render a decision giving exact justice between the contending parties’-to conduct the hearing in such manner ‘that all testimony which will throw light upon the matters in controversy is introduced,‘ and that he is within his privileges and duties in aiding to bring out further competent and relevant evidence during the examination of the witnesses who are produced.”
The ancient practice is incorporated in MRE 614, which expressly provides that “The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.” The rule goes on to say that the court may itself interrogate any witness called by anyone, and objections to the court calling or interrogating a witness in chancery should be contemporaneous.
Imagine a case where only one side puts on proof of the Albright factors in a child custody case with horrific allegations. The neglectful side is represented by counsel who is not quite up to the task. Should the chancellor allow the best interest of a child to be determined on lopsided proof? Or should she let the better-represented side play “gotcha!”? Neither. As Albright itself reiterates, the polestar consideration is the best interest of the child. In her role as the child’s superior guardian (Carpenter v. Berry, 58 So.3d 1158, 1163 (Miss. 2011)), the chancellor has the duty to make sure that there is adequate proof in the record before making a decision. Rule 614 and the judge’s authority to reopen or leave the record open are the tools that the judge can put to good use.
It goes without saying that this considerable power should be exercised with discretion. There is the well-worn tale of the chancellor who interrupted counsel’s questioning of a witness and proceeded into his own lengthy cross examination. The attorney asked to approach the bench and told the judge, “Your honor, I don’t mind you questioning my witness, but please don’t lose the case for me.” So, a judge can be too fond of the sound of his own voice. The balance, perhaps, was laid out best by the Mississippi Supreme Court in Bumpus v. State, 166 Miss. 267, 144 So. 897 (1932): “It is true that ‘an overspeaking judge is no well-tuned cymbal,’ but, in language somewhat similar to that of Mr. Justice McReynolds, in Berger v. U. S., 255 U. S. 43, 41 S. Ct. 230, 65 L. Ed. 489, neither is an aphonic dummy a becoming receptacle for judicial power.”
THE LATEST ON DISCOVERY GAMESMANSHIP
February 13, 2012 § Leave a comment
Discovery gamesmanship has been the subject of a prior post on this blog. It’s a troublesome phenomenon, not only for the lawyers who have to confront and deal with it, but also for chancellors who have to decide whether, when and how to impose sanctions.
The most recent pronouncement from our appellate courts came in the case of Williamson v. Williamson decided by the COA on January 10, 2012, at ¶¶ 29-31.
In Williamson, the appellant, Will, argued that the chancellor had improperly assessed him with attorney’s fees for failing to file complete and timely responses to the other side’s discovery requests. Judge Carlton’s opinion disposed of his claim:
¶29. Additionally, as to Will’s argument that the chancellor erred by awarding Mary attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So. 3d 517, 521-22 (¶19) (Miss. Ct. App. 2010) (citing Hayes v. Entergy Miss., Inc., 871 So. 2d 743, 747 (¶11) (Miss. 2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
¶30. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So. 2d 858, 862-63 (¶16) (Miss. Ct. App. 1999).
¶31. Accordingly, we find no merit to Will’s arguments as to chancellor’s … award of attorney’s fees to Mary.
In this district, attorneys have a long-established custom of trying to work with each other through discovery problems, but sometimes the payback for that civility is abuse of the system. The judges generally view the initial motion to compel as a warning shot resulting in an order to comply, with a second trip to court triggering sanctions if warranted by the proof. I often will impose a $25 per day fine for each day after the court-imposed deadline that a party fails to comply, and I do not limit my sanctions to that. I also use scheduling orders in almost all cases, particularly divorces, and a party who pushes the deadlines and fails to compy risks running afoul of the court on that count.
As Williamson clearly indicates, you play games with discovery at your and your client’s peril. Thankfully, most attorneys in this part of the world have grown past the gamesmanship in chancery court, and for the most part discovery proceeds in an orderly fashion with both sides able to accumulate the evidence they need to present their respective cases to the court in a complete fashion. For those who persist in non-compliance, however, read Williamson and be warned.
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