DON’T LOOK NOW, BUT I THINK THAT BOOMERANG IS HEADED BACK THIS WAY
December 22, 2011 § 1 Comment
Actual courtroom proceedings collected from hither and yon over the years …
Toxic voir dire
Q: You indicated that you knew one of the attorneys. Which attorney do you know?
A: I know you. You represented me in a personal injury claim I had.
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Q: You have heard me ask about the distinction in burden of proof. What do you think of that?
A: I think you have about beat that horse to death.
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Q: Ma’am, I am having trouble reading your writing. It says that you are manager at a hotel?
A: Yeah, it does. I thought you said you had trouble reading my writing.
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Q: Does it make any difference to you in this case that I prosecuted you a while back in another case?
A: Not really, since I won the case.
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Object Lessons
Atty: I object under the “who cares” principle.
Court: Sustained.
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Atty: I prophylactically object to the question.
Court: Prophylactically?
Atty: I am not talking about contraception, judge. I am talking about preventing a line of questioning that would …
Court: Your prophylactic objection is premature.
Atty: Then I withdraw it.
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Atty 1: Objection, irrelevant.
Court: Sustained.
[Later in the trial …]
Atty 2: Objection, irrelevant. What’s good for the goose is good for the gander, judge.
Court: Sustained.
[Later in the trial …]
Atty1: Objection.
Court: What’s the ground for your objection?
Atty 1: That goosey-gander thing.
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All in the Family Law
Q: Have you and your wife equitably divided all of your personal property?
A: Yeah. I went by and picked up what she throwed out.
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Q: She has Chanel? Is that the name of the dog?
A: Yes, and I want half.
Q: You want half? How do you expect that to work?
A: I want the front half. I will feed it. She can have the other half.
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Mens Rea in Corpore Insano
Prosecutor: Mr. Sheriff, when you pulled over the defendant, was she drunk?
Defense atty: Objection. Calls for a conclusion.
Court: Sustained.
Prosecutor: Mr. Sheriff, when you stopped the defendant were your blue lights flashing?
High Sheriff: Yes, sir.
Prosecutor: Did the defendant say anything when she got out of her car?
High Sheriff: Yes, sir.
Prosecutor: What did she say?
High Sheriff: “What disco am I at?”
ANOTHER OBJECT LESSON IN PSA DRAFTSMANSHIP
December 21, 2011 § 2 Comments
What does the following language in a divorce property settlement agreement (PSA) mean?
The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].
That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.
Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.
Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.
Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.
The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.
In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.
This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”
A few suggestions:
- As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
- Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
- Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection.
- Here are five suggestions for improving your PSA’s.
- And here are five more.
- Here is a post about a nightmare scenario in draftsmanship.
- Kicking the can down the road, and why it’s not a good idea in your PSA’s.
- And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.
Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.
ANOTHER ASPECT OF IMPUTED INCOME
December 20, 2011 § Leave a comment
We’ve discussed imputed income here before. In essence, income can be imputed where the payor claims reduced income or incapacity in certain situations.
Another situation for imputed income arises where the judge finds that the payor has greater income than is reported on the financial statement and in the testimony. Such was the case in Brooks v. Brooks, decided by the COA on December 13, 2011.
In Brooks, at ¶ 9, the COA upheld the trial court’s decision not to accept the husband’s testimony about his income. The husband, Brandon, was a self-employed attorney who reported fluctuating income. The chancellor relied on Brandon’s 2007 income tax return to determine income because that was the only tax return he provided; he did not offer his 2008 or 2009 returns into evidence. In the absence of the two subsequent returns, the COA ruled, it was reasonable for the court to rely on and draw conclusions from the information submitted.
Brandon also contended that his income was insufficient to pay alimony to his former wife, Dawn, in the amount ordered, but the COA rejected that argument, at ¶ 22:
The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:
“. . . Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.”
From the payor’s standpoint, the more accurate and credible evidence you offer the court to establish income, the better off your client will be. Explain and document discrepancies and inconsistences, or run the risk that the court will construe them against your client.
From the recipient’s standpoint, attack income information and don’t take it at face value. You might persuade the judge to find that there is more income there than is being reported.
NEWLY DISCOVERED EVIDENCE, NOT NEWLY MANUFACTURED EVIDENCE
December 19, 2011 § Leave a comment
MRCP 60(b)(3) provides that a court may grant relief from judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).”
The Mississippi Supreme Court in the case of Moore v. Jacobs, 752 So.2d 1013, 1017 (Miss. 1999), pointed out that “A motion for a new trial based on new evidence is an extraordinary motion, and the requirements of the rule must be strictly met.” The decision set out five criteria that must me met in order for the trial court to grant relief:
- The evidence was discovered following the trial;
- There is proof, or it may be inferred, that the movant exercised due diligence to discover the new evidence;
- The evidence is not merely cumulative or impeachment;
- The evidence is material;
- The evidence is such that a new trial would probably produce a new result.
“A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial, and that it was not owing to a want of diligence on his part that it was not discovered sooner.” Sullivan v. Heal, 571 So.2d 278, 281 (Miss. 1990). “[F]acts implying reasonable diligence must be proved by the movant.” NLRB v. Decker & Sons, 569 F.2d 357, 363-4 (5th Cir 1978).
The decision of the chancellor to deny such a motion may only be reversed if the appellate court finds abuse of discretion. United Serv. Auto Assoc. v. Lisanby, 47 So.3d 1172, 1176 (Miss. 2010).
All of the authority cited above is extracted from Judge Griffis’s opinion in the COA case of Smullins v. Smullins, decided on rehearing November 29, 2011.
Shellie and Bradley Smullins battled over a divorce and custody of their son Devinn, who was age seven at the time. Neither party was an all-star parent. There was substantial evidence that each of them engaged in behaviors that called their parenting skills into question.
On August 8, 2008, following the trial, the chancellor issued a fifty-page opinion that included a detailed Albright analysis. He awarded Bradley sole physical custody of Devinn and granted the parties joint legal custody.
On August 9, 2008, Shellie and Devinn submitted to a DNA test, and on August 12, 2008, Wendle Hunt did the same. The test result established a 99.999996% probability that Hunt was the natural father.
On September 6, 2008, the chancellor entered the judgment of divorce, which was approved as to form by Shellie’s attorney.
On September 26, 2008, Shellie filed a motion for a new trial (reconsideration under MRCP 59) on the basis of newly discovered evidence. The motion included the following assertions: Devinn was conceived prior to the parties’ marriage, and they knew before the marriage that it was possible that Bradley was not the father; the DNA test shows that Wendle Hunt is the natural father; Wendle Hunt is ready, willing and able to act as the child’s father; and Wendle is “disturbed to learn that his son is being raised by a second generation alcoholic drug addict.”
At hearing, Shellie testified that she always knew that there was a possibility that Bradley was not Devinn’s natural father. She had offered a DNA test before the marriage, but Bradley had refused. Wendle did not know that he had fathered a child by Shellie.
The chancellor overruled the motion, and said:
“The new evidence regarding the paternity of [Devinn] was not discovered until after the trial but was known to [Shellie] prior to entry of the judgment. [MRCP] 58 states that, “a judgment shall be effective only when entered.” Therefore, the paternity of Devinn Wayne Smullins was known prior to the divorce being final but was not disclosed to this court.
Due diligence on the part of the movant to discover the new evidence is required. ‘A party can not fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial.’ [citing Goode v. Synergy Corp., 852 So.2d 661, 664 (¶12) (Miss. Ct. App. 2003) …]”
The judge found that Shellie had failed to exercise due diligence and overruled her motion for reconsideration.
The COA affirmed, saying at ¶35:
Just like the chancellor, we fail to see how the paternity test results can be newly discovered evidence if she knew of the possibility of that very fact prior to the commencement of this legal action. Had Shellie alleged that, upon information and belief, Bradley was not Devinn’s biological father, then that very issue could have [been] tried to the chancellor and considered in the final judgment. But she failed to do so.
Another avenue that Shellie could have taken to try to avoid running into this brick wall would have been to file a motion to reopen her case before the judge entered the judgment. It’s still unlikely she would have been granted any relief given what she testified that she knew, but that would have given her another shot.
So here is an important distinction to draw from this case: Although it is true that the DNA test results did not exist until after the trial, Shellie and Bradley both knew, or had strong reason to believe, that Bradley was not the father. Thus, the DNA results were mere verification of evidence that the parties knew of and could have developed at trial.
Genuine cases of newly discovered evidence that come within the rule are indeed rare. When the situation does arise, however, you have to analyze it within the express requirements of the rule.
IT’S OFFICIALLY FAIR
December 15, 2011 § Leave a comment
Here’s the text of Gov. Barbour’s announcement:
GOV. BARBOUR APPOINTS FAIR AS STATE APPELLATE COURT JUSTICE
JACKSON – Gov. Haley Barbour today announced the appointment of Chancellor Gene Fair of Hattiesburg as a justice on the Mississippi Court of Appeals. Fair replaces Justice William Myers, who will retire from the bench on Dec. 31.
Fair will hold the District 5, Position 1 seat on the state’s second highest court. The district includes Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry, Stone and parts of Wayne counties.
“Judge Fair brings extensive legal experience to the bench and will be an excellent jurist for the district,” Gov. Barbour said. “I appreciate Judge Fair’s commitment to serve in this new role.”
The Governor’s Judicial Appointments Advisory Committee reviewed applicants and recommended Fair to serve the remainder of Myers’ term in accordance with Executive Order 914. The 31-member committee includes a chairman and 10 attorneys from each of the state’s Supreme Court Districts.
Fair has served as Chancellor for the 10th District Chancery Court since January 2007. Previously, he was in private practice in Hattiesburg. He also served as a lieutenant commander in the Judge Advocate General’s Corps in the U.S. Naval Reserve.
Fair served as vice chairman of the Mississippi Ethics Commission from 1984 to 2004, on the Judicial Nominating Committee under Gov. William Winter and on the Mississippi Supreme Court Committee on Technology. He also was board attorney for the Pat Harrison Waterway District from 1988 to 1992. He is an Eagle Scout.
Fair, who was raised in Louisville, earned a bachelor’s degree in journalism and a law degree from the University of Mississippi.
Fair and his wife, Estella Galloway, have two children, Melissa and Julia, and four grandchildren. He is a trustee, elder and Sunday School teacher at Westminster Presbyterian Church of Hattiesburg.
A CHANCELLOR ON THE COA?
December 15, 2011 § 1 Comment
Word on the street is that Chancellor Gene Fair of Hattiesburg will be announced as Gov. Barbour’s appointment to replace COA Judge Wm. Myers, who is resigning effective December 31.
No official announcement yet, and I haven’t been able to get in touch with Judge Fair, but if it’s true this is a good day for chancery practitioners throughout the state.
I’ll update this as soon as I have something more substantial.
‘NUF SAID
December 14, 2011 § 1 Comment
Following is the entire opinion rendered in the case of Denny v. Radar Industries Inc., 28 Mich. App. 294, 184 N.W.2d 289 (1970):
“The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich.App. 259, 169 N.W.2d 326. He didn’t. We couldn’t. Affirmed. Costs to appellee.”
Michigan Court of Appeals Judge J. H. Gillis deserves a medal for getting right to the point.
FINALLY, THE FINAL WORD ON FINALITY
December 13, 2011 § 7 Comments
It makes a big difference whether or not a judgment is final. You cannot appeal from a judgment unless it is a final judgment.
A final judgment resolves all issues, and requires no further action by the court. Scally v. Scally, 802 So.2d 128, 130 (Miss.App. 2001). It puts an end to the action, disposing of the entire controversy on its merits, so that there is no further question for future determination by the court, except perhaps collateral or separate questions, and there is nothing left to be done but to enforce by execution what has been determined. Fortune v. Lee, 725 So.2d 747, 750-51 (Miss.1998).
MRCP 54 says that any judgment that adjudicates less than all the claims or defenses of the parties does not terminate the action and may be revised at any time before entry of a final judgment. Two recent COA cases reiterated the point that you can not appeal from a less-than-final judgment. There is, however, an exception in that the trial judge can make a finding under Rule 54(b) that there is no reason for delay, and direct entry of a final, appealable judgment as to certain issues. For instance, the judge could in a divorce case adjudicate the divorce, custody, child support and equitable division, and enter a final judgment as to those issues while retaining jurisdiction to adjudicate alimony later, when the parties’ financial situation becomes more settled. See, McNally v. McNally, 516 So.2d 499, 502 (Miss. 1987).
MRCP 58 states that “A judgment shall be effective only when entered as provided in M.R.C.P. 79(a).” Rule 79(a) is the provision that entry occurs when the clerk enters the judgment on the General Docket. Thus, signing by the judge alone does not create a final judgment, nor does simply handing or mailing the judgment to the clerk, nor even file-stamping the judgment. MRAP 4(a) requires that an appeal must be filed within 30 days after entry of the judgment. In most counties, the clerk enters the judgment immediately or amost immediately when received, but in some rural counties where clerks are understaffed, a judgment can sit around awhile without being docketed.
Until the judgment is entered on the docket by the clerk, it is subject to revision and even reversal by the trial judge, even where the court has issued a written opinion. The court’s opinion is not equvalent to, nor does it have the same force and effect as, a final judgment entered per MRCP 79(a). See, Banks v. Banks, 511 So.2d 933, 935 (Miss. 1987).
MRCP 5(e)(1) and UCCR 2.02 allow the court to accept papers on behalf of the clerk and to mark them as filed. The rules, however, do not provide that filing of a judgment in this fashion constitues entry of the judgment. Again, until the clerk has complied with Rule 79(a), the document is not effective as a final judgment.
After the final judgment is entered on the docket, its finality is subject only to a motion to reconsider under MRCP 59, or for relief from judgment pursuant to MRCP 60.
Every now and then, a disgruntled party will attempt an interlocutory appeal from a temporary judgment. I had this experience in Clarke County. The supreme court sent me its order to respond, and I did, pointing out that the order from which the appeal was taken was a temporary hearing in a custody matter, and was therefore unappealable. I received an order dismissing the appeal the following week. The two main cases on point are Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) and McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss.App. 2002).
