UCCR 8.05, AMENDED
December 5, 2011 § Leave a comment
The Mississippi Supreme Court approved an amendment to the financial reporting form requirement on December 1, 2011. You can read the entire, amended rule here.
The amendment adds the following language:
The disclosures shall include any and all assets and liabilities, whether marital or non-marital. A party is under a duty to supplement prior disclosures if that party knows that the disclosure, though correct when made, no longer accurately reflects any and all actual income and expenses and assets and liabilities, as required by this Rule.
The amendment adds two significant provisions: (1) The duty to disclose both marital and non-marital financial matters; and (2) the duty to supplement.
Both of the added requirements clarify the duty of disclosure and give the courts clearcut authority when called upon to address less than candid financial reporting.
If I were practicing nowadays, I would create a handout for my clients detailing the duty of disclosure and the duty to supplement, and I would have my client sign a receipt for the handout to keep in my file. It could come in handy when the client gets burned to a charred ember for false or inadequate disclosure, and the client tries to point the finger of blame at the attorney.
I would also take great care with my 8.05’s. I would go over them with my clients to make sure they are complete and accurate.
If you still aren’t convinced of the importance of adequate, timely, up-to-date and supplemented 8.05 statements, I invite you to read yet again about the disastrous (for the non-disclosing party) case of Trim v. Trim. Fair warning, however: don’t read Trim right before bed time; it might keep you awake.
I’ve tried to stress on this blog just how crucial it is to your case to present a well-prepared financial statement. Here are some links:
“QUOTE UNQUOTE”
December 2, 2011 § 1 Comment
“There is no earthly reward for our spiritual efforts. There isn’t even a connection. The payoff for turning to God is more God, not more world.” — Hugh Prather
“I have only a small flickering light to guide me in the darkness of a thick forest. Up comes a theologian and blows it out.” — Denis Diderot
“That you need God more than anything you know at all times in your heart. But don’t you know also that God needs you — in the fullness of his eternity, you?” — Martin Buber
RIP BILL WALLER
December 1, 2011 § Leave a comment
Gov. Waller at work
Former Mississippi governor (1972-1976) and distinguished member of the bar, William Lowe Waller, Sr., died November 30, 2011. He was 85.
He was a champion of the people, and was ahead of his time on civil rights issues. As a District Attorney, he unsuccessfully attempted to prosecute Byron De La Beckwith for the murder of Medgar Evers. He did away with the state’s spy agency, the infamous Sovereignty Commission, by vetoing its appropriations. He opened state government jobs to African Americans, appointing many to fill positions. His son, William L. Waller, Jr., is Chief Justice of the Mississippi Supreme Court.
Philip Thomas’s reminiscence of the governor as adverse counsel is worth a read.
ELOQUENCE FROM THE GRAVE
December 1, 2011 § Leave a comment
We all have had a client or two who wished to wax eloquent in his or her will. You know what I’m talking about: a sermonette; a poem; an admonishment; a reproof; or even a love note. It happens, and you accommodate the client, blending the proffered language into your more prosaic will form, tucked strategically in among the bequests and devises.
I came across a rather extreme example in the blog Futility Closet, and decided to share it with you:
At a dinner for law alumni of New York University in 1907, Walter Lloyd Smith of the New York Supreme Court read “the most remarkable document that ever came into his possession” — the will of an inmate of the Cook County Insane Asylum at Dunning, Ill.:
I, Charles Lounsbury, being of sound mind and disposing memory, do hereby make and publish this, my last will and testament, in order as justly as may be to distribute my interest in the world among succeeding men.
That part of my interest which is known in law and recognized in the sheep-bound volumes as my property, being inconsiderable and of no account, I make no disposal of in this my will.
My right to live, being but a life estate, is not at my disposal, but these things excepted all else in the world I now proceed to devise and bequeath.
Item: I give to good fathers and mothers, in trust for their children, all good little words of praise and encouragement, and all quaint pet names and endearments, and I charge said parents to use them justly and generously, as the needs of their children may require.
Item: I leave to children inclusively, but only for the term of their childhood, all and every, the flowers of the fields, and the blossoms of the woods, with the right to play among them freely according to the customs of children, warning them at the same time against thistles and thorns. And I devise to children the banks of the brooks, and the golden sands beneath the waters thereof, and the odors of the willows that dip therein, and the white clouds that float high over the giant trees. And I leave the children the long, long days to be merry in, in a thousand ways, and the night and the moon and the train of the Milky Way to wonder at, but subject nevertheless to the rights hereinafter given to lovers.
Item: I devise to boys jointly all the useful idle fields and commons where ball may be played; all pleasant waters where one may swim; all snowclad hills where one may coast, and all streams and ponds where one may fish, or where, when grim Winter comes, one may skate; to have and to hold the same for the period of their boyhood. And all meadows with the clover blossoms and butterflies thereof, the woods and their appurtenances, the squirrels and the birds, and echoes and strange noises, and all distant places which may be visited, together with the adventures there found. And I give to said boys each his own place at the fireside at night, with all pictures that may be seen in the burning wood, to enjoy without let or hindrance and without any incumbrance of care.
Item: To lovers I devise their imaginary world with whatever they may need; as the stars of the sky; the red roses by the wall; the bloom of the hawthorn; the sweet strains of music, and aught else by which they may desire to figure to each others the lastingness and beauty of their love.
Item: To young men jointly, I devise and bequeath all boisterous, inspiring sports of rivalry, and I give to them the disdain of weakness and undaunted confidence in their own strength, though they are rude; I give them the power to make lasting friendships, and of possessing companions, and to them exclusively I give all merry songs and brave choruses, to sing with lusty voices.
Item: And to those who are no longer children or youths or lovers, I leave memory, and I bequeath to them the volumes of the poems of Burns and Shakespeare and of other poets, if there be others, to the end that they may live over the old days again, freely and fully, without tithe or diminution.
Item: To our loved ones with snowy crowns I bequeath the happiness of old age, the love and gratitude of their children until they fall asleep.
The original, it turns out, was written by Williston Fish in 1897 and published in Harper’s Weekly the following year. He had intended it as a poetic trifle, but newspapers around the country had picked it up and run it as fact, often embellishing the language, until, Fish wrote in 1908, “this one of my pieces has been translated into all the idiot tongues of English.” Charles Lounsbury was the name of an old relative of his — “a big, strong all-around good kind of man,” but not, evidently, insane.
MANIFESTLY NOT IN ERROR
November 30, 2011 § 3 Comments
In several recent cases the COA affirmed chancellors where the trial court’s conclusions were supported by substantial evidence and were in line with the applicable law.
In Love v. Love, decided November 15, 2011, the court upheld the chancellor’s award of custody to the mother, Jennifer, over the father, Aaron, in spite of Jennifer’s less-then-stellar behavior. Judge Maxwell’s opinion stated at ¶36:
“The cold record, Aaron argues, is fraught with examples of Jennifer’s alleged misconduct and neglect. But the chancellor had an important hands-on benefit that we lack—her personal assessments of Jennifer’s and Aaron’s credibility—both at the custody hearing and post-trial hearing. Based on these interactions, the chancellor discounted some of the negative testimony about Jennifer, accepted much of it, and evaluated all of the testimony against the evidence of Jennifer’s care for Tommy. The chancellor ultimately found Jennifer had slightly better parenting skills and that it was in Tommy’s best interest that Jennifer be awarded custody and Aaron liberal visitation. Admittedly, this is a close case. But because the chancellor supported her decision with substantial evidence, we find our deferential standard requires us to affirm.”
Love highlights an important consideration in chancery cases: that the trial judge is in the best position to weigh the credibility of the witnesses. The cold record simply does not convey the way a witness presents himself or herself, the tone of voice, the hesitations, the body language, the facial expressions. In a close case credibility can hinge on how the witness presents himself or herself. A defensive, hostile witness who snaps answers off in a sarcastic tone will come across as less worthy of weight and credibility than one who presents herself as open, honest and matter-of-fact with nothing to hide. And yet the trial transcript will present both witnesses in the same light.
In Nichols v. Nichols, also decided November 15, 2011, the COA affirmed the chancellor’s award of custody to the father, stating at ¶11 that “We find that there was substantial evidence in the record to support the chancellor’s decision to award custody of the children to [the father].”
Only the week before, in Powell v. Powell, the COA had upheld the chancellor’s decision in equitable distribution, again finding that the chancellor had applied the law properly, and that his findings were supported by substantial evidence.
In Smullins v. Smullins, decided November 29, 2011, the COA upheld the chancellor’s Albright analysis based on a finding that it was supported by substantial evidence. The opinion was rendered on rehearing, and replaced an earlier opinion that had reversed the chancellor.
There have been other decisions along these lines dating back into 2010.
In my opinion, these cases are among a growing number of COA decisions where the court is refusing to second-guess chancellors and is limiting its scrutiny to a determination whether the chancellor’s decision was supported by substantial evidence, unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or an erroneous legal standard was applied, as the familiar introductory paragraph to every chancery court appellate decision recites.
If this continues, the bonus for lawyers and judges alike will be that there will be fewer anomalous decisions, and the proliferation of case law with which we have to deal will grow at a more manageable rate. Two trends that we all can applaud.
WHAT SETS YOU APART?
November 29, 2011 § 3 Comments
Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”
His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”
Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.
But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.
Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.
My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.
Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.
What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?
IMPUTING INCOME
November 28, 2011 § 1 Comment
In these unsettled economic times, it’s a fairly common phenomenon that the party who will be ordered to pay child support is working a reduced schedule, or has taken a job with a significant pay cut, or has lost employment. The paying parent wants child support set at the low rate, and the recipient parent wants the court to consider earning capacity.
The law is that “income will be imputed to a child support payor who, in bad faith, voluntarily worsens his financial position.” Howard v. Howard, 968 So.2d 961, 972 (Miss. App. 2007). “[A]n obligor’s financial position cannot be voluntarily worsened in an attempt to lessen his [or her] child support obligation.” Swiderski v. Swiderski, 18 So.3d 280, 286 (Miss. App. 2009). Where a chancellor is not convinced of the honesty or veracity of the parent concerning the parent’s ability to abide by his or her financial obligations, the chancellor is not precluded from factoring this skepticism in the equation when determining the amount of the child support award. Dunn v. Dunn, 695 So.2d 1152, 1156-57 (Miss.1997); see also Grogan v. Grogan, 641 So.2d 734, 741 (Miss.1994). Furthermore, “[t]he chancellor can base child support on the parent’s potential earning capacity.” Suber v. Suber, 936 So.2d 945, 949 (Miss. App. 2006); White v. White, 722 So.2d 731, 734 (Miss. App. 1998).
The key elements are bad faith and voluntariness. Bad faith involves an intent to evade one’s obligation, whether voluntarily or not. For example, it is unquestionably bad faith to ask for a job assignment that will reduce pay; that is voluntary. It is also bad faith to take a job assignment that one knows will lead to a reduction in hours or pay, even though someone else will make the pay-cut decision; that may not appear voluntary, but the intent is to place oneself in a position to evade the obligation via someone else’s decision. Voluntariness, of course, is evident from the facts.
In the case of Wells v. Wells, 35 So.3d 1250, 1260 (Miss. App. 2010), the COA rejected the custodial father’s argument that income should be imputed to the mother, finding no evidence that the mother had reduced her work hours in bad faith to reduce her child-support obligation. The chancellor had found that the mother’s intent in reducing her work hours was to spend more time with the children. The COA also pointed out that the chancellor’s decision whether or not to impute income is discretionary.
OVERHEARD
November 23, 2011 § 1 Comment
Lawyer 1: “You know, you really shouldn’t smoke; it’s bad for you.”
Lawyer 2: “My grandmother lived to the age of 97.”
Lawyer 1: “Did she smoke?”
Lawyer 2: “No. She minded her own business.”
REVISITING TRIAL CHECKLISTS
November 22, 2011 § 2 Comments
Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.
I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is a list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.
Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.
The Better Chancery Practice Blog 