Reflections on the Shooting of a Judge

March 20, 2020 § 10 Comments

Last Monday my fellow chancellor in the Twelfth District, Charles Smith, was ambushed and shot after exiting his pickup to enter the courthouse for the work day. He suffered extensive injuries, and was in critical condition until yesterday, when he was taken off the ventilator. His femoral artery was clipped, and Meridian surgeons had to operate to stop the bleeding. Only after they did that was it possible to transport him to University of Mississippi Medical Center in Jackson, where he has been since and will be for the foreseeable future. He is improving, but still may have to undergo multiple surgeries (he has had 4 already), although we actually got an optimistic report yesterday that damage to his pelvis may not be as bad as originally thought, and that he may not need as many surgeries as they thought at first.

It appears that this was a sniper-type rifle attack. No handgun could inflict that much damage unless at point-blank range; from everything we know, Judge Smith never saw his assailant.

Charlie, as he has been known to us, is an affable, easy-going, kind, considerate person. He’s a family man involved in his church. It’s hard to imagine what he could have done to incite such a savage blow.

And that’s the most troubling aspect. Every one of us — lawyers and judges alike — have handled cases where one party, could be your client, is crazy. By crazy, I mean irrational and even violent. You are lying to yourself if you haven’t thought at some point, even deep down, that you could be in danger from someone you represented, or was on the other side, or was in your court room.

An FBI agent visited my law partner, Tom, back in the 90’s to tell him that a former client he had represented in a criminal case had made a statement that if no one else was willing to kill Tom, the former client would do it himself. Thank goodness it never materialized. A former circuit judge told me of a time when a SWAT team spent the weekend in his home because of credible death threats they had learned of. I’ll bet most of you could relate similar experiences of your own or abut which you’ve heard.

I hope that this atrocity will get public officials to start paying serious attention to courthouse security. Judges should not feel that their lives are in jeopardy at their workplaces. Lawyers should not have to walk through courthouse crowds where some are wielding handguns waiting to intimidate, threaten, or even kill them.

The Declaration of Independence, our American Creed, which predates the Bill of Rights by 11 years, states that each citizen has the unalienable Rights to “Life, Liberty, and the pursuit of Happiness.” Life is the first and foremost right, eclipsing all others. Without life, all those guarantees of the Bill of Rights are meaningless. The Declaration goes on to say that governments are instituted “to secure those rights.” Government must do whatever is necessary to ensure that the lives of lawyers, court personnel, and judges are preserved and protected. It’s our unalienable right.


Desertion and its Proof

March 18, 2020 § Leave a comment

The COA’s decision in a recent case is a reminder that overcoming the natural-parent presumption requires clear and convincing evidence.

Judge Tindell wrote the 9-1 opinion that reversed the trial court ruling in Owens v. Owens, handed down December 17, 2019:

¶6. In child-custody cases, the best interest of the child is the paramount concern. Burge v. Burge, 223 So. 3d 888, 899 (¶37) (Miss. Ct. App. 2017). “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (¶8) (Miss. 2012)). Thus, a “third party must first clearly rebut the natural-parent presumption or preference” to receive custody. Smith, 97 So. 3d at 46 (¶8). As our caselaw establishes:

[T]he natural-parent presumption may only be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.

In re Waites, 152 So. 3d 306, 311 (¶14) (Miss. 2014) (internal quotation marks omitted). Where a third party successfully rebuts the presumption, the chancellor must conduct an Albright analysis to determine if third-party custody serves the child’s best interest. Smith, 97 So. 3d at 46 (¶8).

¶7. Here, the chancellor concluded that clear and convincing evidence demonstrated Farrah had deserted Tiffany. “Desertion is defined as for[]saking one’s duty as well as a breaking away from or breaking off associations with some matter involving a legal or moral obligation or some object of loyalty . . . .” Neely, 194 So. 3d at 156 (¶21) (internal quotation mark omitted); see also Smith, 97 So. 3d at 48 (¶16) (explaining that desertion occurs when one forsakes “a person, institution, cause, etc., having a moral or legal claim upon one” or “forsake[s] one’s duty, one’s post[,] or one’s party”).

¶8. In Smith, the Mississippi Supreme Court considered a chancellor’s award of primary physical custody of a minor boy to his maternal grandmother and step-grandfather. Smith, 97 So. 3d at 44 (¶1). The Smith court concluded the record supported the chancellor’s finding that the mother’s desertion of her son had overcome the natural-parent presumption. Id. at 49 (¶17). Following the son’s birth in June 2003, he and his mother lived with the maternal grandparents in Mississippi. Id. at 45 (¶3). Over the next three years, the mother attended college. Id. The mother “sometimes visited” her son on weekends during the first three years of his life, but her visits eventually grew more infrequent. Id. In April 2006, the mother got married and moved to Washington D.C. to live with her new husband. Id. About a month later, the son also moved to Washington D.C. to live with his mother and her new husband. Id. In June 2006, however, the mother and her new husband separated, and the son returned to Mississippi. Id. Over the next few months, the son spent time in both Washington D.C. and Mississippi until he permanently returned to Mississippi in November 2006. Id. In 2007, the mother “sporadically” visited her son in Mississippi, and in April or May 2007, she gave the grandparents medical guardianship over her son. Id. In 2008, the mother’s visits with her son continued to grow “more infrequent,” and in March 2009, she moved to Arizona with a man she later married. Id. In granting third-party custody to the grandparents, the chancellor in Smith stated that the mother “had ‘failed to exercise her parental rights and fulfill her parental responsibilities’ by her ‘long and continuous absences’ from . . . [her son]. Consequently, the Smiths [(the grandparents)] had raised . . . [the grandson] virtually his entire life . . . .” Id. at 46 (¶4).

¶9. Citing Smith, the chancellor in the present case found that Farrah’s actions also constituted desertion. Specifically, the chancellor here stated:

Farrah’s long and continuous absences, especially in the context of a baby as young as the one in the instant case, along with her [(Farrah’s)] failure to exercise her parental rights, failure to financially support and care for the child[,] and her failure to fulfill her parental responsibilities, caused the child’s grandparents [(the Owenses)] to step in as primary caretakers.

¶10. Upon review, however, we conclude that the record in the present case fails to support a finding of desertion by clear and convincing evidence. At the time the Owenses filed their February 9, 2017 emergency petition for guardianship, Tiffany was only four months old and
had only lived in the Owenses’ home for two months. In addition, evidence reflected that until the Owenses received temporary custody of Tiffany, Farrah had been constantly present in her daughter’s life and had consistently contributed to Tiffany’s care and well being.

¶11. When the chancellor held the two-day hearing in November 2017 on the Owenses’ guardianship petition, Tiffany was one year old. Farrah testified about how often she had visited her daughter since her parents had received custody of Tiffany eight months earlier. Farrah stated that her parents initially allowed her to move back to their house following the February 2017 court hearing until they kicked her out a few weeks later. After leaving her parents’ home, Farrah stated that she visited with Tiffany around twenty times before she again moved back into her parents’ home in August 2017. During the time she lived with her parents in August 2017, Farrah testified that she was able to see Tiffany on a daily basis and that she “took care of Tiffany the whole time . . . [she] was there . . . .” According to Farrah, she was the one who mostly “fed . . . [Tiffany], bathed her, put her to bed, [and] fixed her breakfast.”

¶12. Farrah stated that her parents once again kicked her out of their home in September 2017 after they learned she had hired an attorney to represent her in the guardianship proceedings. Farrah testified that she still tried to visit Tiffany but that her parents refused to let her visit their house during weekdays while her father was at work. As a result, Farrah stated that she only visited with Tiffany once in the month leading up to the November 2017 hearing. Farrah also stated that she constantly tried to call and text her parents to request phone visits with Tiffany and pictures and videos of Tiffany. Farrah claimed, however, that her parents usually failed to answer her phone calls and text messages.

¶13. Farrah also testified that in September 2017 she obtained a job at a produce and firewood business. Farrah stated that she worked at the business the first part of the day and then babysat her bosses’ four children in the afternoons. Farrah testified that she had secured housing for herself and Tiffany and that she had just finished decorating Tiffany’s bedroom. If granted custody of Tiffany, Farrah testified that her employers had agreed to allow her to take Tiffany to work with her.

¶14. Unlike in Smith, the present record fails to show that Farrah forsook her duty to Tiffany through “long and continuous absences,” a “failure to exercise her parental rights,” or a “failure to fulfill her parental responsibilities.” See Smith, 97 So. 3d at 48 (¶16). Evidence instead reflected that Farrah consistently was or attempted to be present over the first year of Tiffany’s life. The record also contained evidence that during the periods when Farrah lived under the same roof as Tiffany,she helped to care for Tiffany and to provide for Tiffany’s needs. And during the times when she did not live under the same roof as Tiffany, Farrah testified about her repeated attempts to visit with her daughter. In addition, by the time of the November hearing, Farrah had not only obtained a job to financially support herself and Tiffany but had also obtained housing and arranged childcare. Based on such evidence, we conclude the chancellor manifestly erred by finding that the Owenses rebutted the natural-parent presumption with clear and convincing proof of desertion.

Forgery and its Proof

March 17, 2020 § Leave a comment

Yesterday we visited the appeal of Michael Matthews from a chancellor’s adverse decision that he had not overcome the notarial presumption in his case where he claimed that he had not executed various notes and deeds of trust.

Another claim Michael made unsuccessfully at trial was that the signatures were forgeries. When the chancellor ruled against him, Michael appealed raising that issue also.

The COA affirmed on August 27, 2019, in Matthews v. Whitney Bank, et al. Again, Judge Jack Wilson wrote the 9-0 opinion, Tindell not participating:

27. Michael also argues that the chancellor clearly erred by finding that the deed of trust and loan documents were not forged. Michael argues that the chancellor ignored “obvious” differences between the allegedly forged signatures and his true signature. He also argues
that his testimony was corroborated by Beth’s testimony and assertion of her Fifth Amendment privilege against self-incrimination.

¶28. In his opinion, the chancellor found:

The documentary evidence introduced at trial purportedly signed by Mr. Matthews each contains a similar signature. Mr. Matthews introduced exemplars of what he purports to be his genuine signature. While there was no lay witness or expert witness offered by either side concerning the bank signatures, none was required. This Court finds it could determine that the
contested signatures were forged if the purported genuine signatures and the purported forged signatures were obviously different. The Court finds . . . that, while the signatures are not exactly similar, they are not so dissimilar as to make the purported forged signatures obvious forgeries.

The chancellor also noted that Michael testified that he did not sign the documents, while Beth “refused to testify” on the subject.

¶29. To overcome the notarial presumption, it was Michael’s burden to prove forgery by clear and convincing evidence. Mapp [v. Chambers], 25 So. 3d [1096,] at 1101 (¶22) [(Miss. Ct. App. 2010)]. “Clear and convincing evidence is such a high evidentiary standard that it surpasses even the standard of overwhelming weight of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016) (quotation marks omitted). As an appellate court, we must “bear in mind” this high standard in determining whether there is sufficient evidence to support the chancellor’s findings. Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Id. Stated differently, the quantum of evidence necessary to affirm the chancellor’s findings “is less than it would be if the preponderance of the evidence rule applied.” Id.

¶30. The chancellor did not clearly err by finding that Michael failed to meet his burden of proof. Although Michael denied signing the document, the Mississippi Supreme Court “has long been committed to the doctrine that the testimony of parties in interest is not
sufficient to overturn such a certificate.” Bowers v. Fields, 148 So. 358, 358 (Miss 1933) (citing Mallory v. Walton, 119 Miss. 396, 81 So. 113, 114 (Miss. 1919)).

¶31. Moreover, the chancellor was not required to infer forgery from Beth’s assertion of her privilege against self-incrimination. In a civil case, an adverse inference may be drawn from a defendant’s assertion of the privilege—i.e., it is “permissible” for the fact-finder to draw such an inference. Morgan v. U.S. Fid. &Guar. Co., 222 So. 2d 820, 828 (Miss. 1969). However, the fact-finder is not required to do so. In addition, the rule permitting an adverse inference “has only been applied in Mississippi to the actual parties to a civil action.” Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004). In this case, Beth settled and consented to the entry of judgment against her prior to trial. She was not a party at trial. Finally, the chancellor could have been persuaded that an adverse inference was not warranted on the particular facts of this case. Beth and Michael are still married, and Michael is seeking to prevent foreclosure on the marital home. Under these circumstances, a plausible inference is that Beth thought that she could help Michael’s case and save their home by “pleading the Fifth.” In any event, it is sufficient to say that the chancellor was not required to draw any particular inference from Beth’s assertion of her privilege. The chancellor did not clearly err by declining to infer forgery.

¶32. Michael also argues that the chancellor erred by not appointing a handwriting expert to opine on the authenticity of the signatures. The possibility of a court-appointed expert was discussed briefly at a pretrial hearing; however, Michael took no further action on the issue. He did not file any motion requesting a court-appointed expert and also failed to designate an expert of his own. Indeed, in his answer and again in his opening statement at trial, Michael specifically argued to the court that a handwriting expert was unnecessary. Michael waived this issue by failing to raise it in the trial court. City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (holding that “it is not sufficient to simply ‘discuss’ or mention an issue at a hearing”—the issue is waived unless it is specifically “presented to [the trial judge] for decision”).

¶33. Moreover, the Supreme Court and this Court have stated that “[t]he appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert’s testimony would be
helpful to the trier of facts.” Heigle v. Heigle, 771 So. 2d 341, 349 (¶29) (Miss. 2000) (quoting Trilogy Commc’ns Inc. v. Thomas Truck Lease Inc., 733 So. 2d 313, 317 (¶10) (Miss. Ct. App. 1998)). We review a trial judge’s decision to appoint or not appoint an expert for abuse of discretion. Id. at 749 (¶¶28-30); Trilogy Commc’ns, 733 So. 2d at 317 (¶10). We cannot say that the chancellor abused his discretion by not appointing an expert sua sponte.

¶34. There is sufficient evidence in the record to support the chancellor’s finding that Michael failed to meet his burden of proving forgery by clear and convincing evidence. Estes’s testimony was competent evidence that Michael did, in fact, sign the 2008 deed of
trust. In addition, there was other evidence from which the chancellor could have inferred that Michael was aware of the loans from Whitney Bank and that Michael’s denials were not credible. For example, the Matthewses’ tax returns, which Michael admittedly signed,
showed mortgage interest deductions and attached mortgage interest statements from Whitney Bank. Sidney Rice also testified that he confirmed with Michael that he had signed the 2007 deed of trust. Although Rice’s notarization of the 2007 deed of trust was deficient
(see supra note 2), Rice’s testimony nonetheless rebuts Michael’s claims that he knew nothing about any of the loans at issue. Based on the totality of the evidence, the chancellor could have determined that Michael’s testimony was not credible. At a minimum, the chancellor could have determined that Michael’s testimony was insufficient to meet his high burden of proof.

A few cogitations:

  • The testimony of the parties alone is not sufficient to overcome a notarial certificate. In fact, relying on your client’s testimony alone is an iffy way to establish many facts or support many claims in chancery. For instance, your client testifies that he made every payment on his wife’s car from his own, personal checking account. The judge wonders where are the checks? Or the wife testifies that the police were called to the home and they saw her bruises, which the husband denies. Where is the police report? Or why was the officer not called? These are thoughts that most chancellors have as the witnesses drone on.
  • Did you know that the Fifth Amendment civil adverse inference is not mandatory? And that it is not applied against non-parties?
  • And if you take nothing else away from this case, the point in ¶33 that you must bring a matter before the judge for decision if you want to raise the issue on appeal is golden. If Michael really wanted the judge to appoint an expert, he needed to file a motion and have the judge rule on it. Merely mentioning it in a bench conference or in chambers isn’t good enough.

News Flash

March 16, 2020 § 7 Comments

Chancellor Charles Smith of Meridian was shot as he exited his vehicle at the court house this morning around 7:30. He was taken to Anderson Hospital by ambulance with considerable loss of blood and is in surgery.

Those are all the facts we have at this time.


MSSC’s Covid-19 Order

March 16, 2020 § Leave a comment

Last Friday afternoon after business hours the MSSC published an emergency administrative order directing the courts in conducting business amidst the coronavirus outbreak.

The order is at this link.

To sum it up as far as chancery is concerned: courts remain open subject to authority of individual judges to control their own dockets; only parties, witnesses, court personnel, lawyers, and other necessary persons as determined by the court are allowed in the courtroom during court proceedings; no gatherings of 200+. For those of you who do jury trials, there are some restrictions of which you need to be aware.

Nothing earth-shaking here. It’s a reminder that we need to stay aware and alert.



The Supreme Experience

March 13, 2020 § 5 Comments

Last week, if you checked in on this blog, you were greeted by a cryptic message that I was “out a few days.” I took that time to meet up with my daughter Aimée, who lives in Maryland and works in D.C., for us to attend a session of the US Supreme Court.

Some of you have argued cases before that court, and some may have sat in on argument. I had done neither, so when she suggested we do that, I agreed readily.

On Monday, March 2, we set out early for the Capital. Aimée had learned from a frequent visitor to the court that we needed to get there early. We got in line at 7:00, a.m. Court did not start until 10, but we were already at the end of the block in a line that kept building behind us. Some people at the head of the line had slept there in sleeping bags. We found out later that we were number 78 and 79 in the line. The recurring topic among line-standers was whether we would get in to hear an entire case, or whether we would be shunted to the 3-5 minute line, in which visitors are whisked in, allowed to stand and gawk for 3-5 minutes, and then ushered out to make room for the next group.

Before going on, I need to note that the temperature was in the low 40’s with a 20-mph wind. I was glad to have worn my wool sweater and wool car-coat. Some unfortunates in line had apparently paid more attention to the forecast predicting 60’s by 2:00 that afternoon, and were comparatively — and uncomfortably — undressed for that early morning weather.

Around 8:30, the first 50 in line were taken up on the plaza in front of the building and issued gold-colored tickets. Again, we speculated whether those were the ones who would get to see the main show while we would get a revolving-door peek.

About this time an officer came to police the line and proclaimed that “Everyone here for Wednesday’s case needs to move here.” That’s when we learned that the folks in the sleeping bags had been there since Saturday holding place in line for Wednesday’s case, which involved a challenge to Louisiana’s abortion law. They would sleep over until they got their golden ticket to the Wednesday session, which they would then sell to a pre-arranged buyer who would walk up and take their place in line.

Around 9 we were called up onto the plaza and stood there waiting. An officer explained that they were deciding how much room they had for our group, which by then had grown. We wondered whether we would get to hear even one case.

Around 9:45, an officer began handing golden tickets out to our group, and we were directed to a basement door, through airport-type metal detectors, and lined up on stairs, where we were instructed on court-room etiquette (no cheering, no demonstrations, no speaking, no nonsense) and as to what items were permissible in the court room. Essentially, all you can take in is a pen or pencil and pad of paper. No cell phones, no jackets or coats, no metal of any kind, nothing that can beep — not even an Apple Watch. Then we were loosed on some lockers and coat check area to stow our stuff. From there we went through another metal detector and lined up at the entrance to the court room where we learned for the first time that we were definitely getting to stay for either or both cases set for hearing that morning. An attendant came and collected our gold tickets which would have made great mementos.

And then we were led by an attendant into a vestibule, around a corner, and into the court room at 10:20. We had missed the opening of court, and arguments were in progress. This was the first of two immigration cases to be argued today.

Seated behind the long bench were the nine Justices. From left to right: Gorsuch, Sotomayor, Breyer, Thomas, Roberts, Ginsburg, Alito, Kagan, and Kavanaugh. Immediately in front of them, across from Roberts, close enough for Roberts to hit him with a well-aimed spitball, was a podium where stood counsel for the appellant arguing as best he could among a continuous barrage of questions. In the span of the two cases every Justice but Thomas asked at least one question. Breyer was the most prolific questioner. At one point Sotomayor had to tell the lawyer to quit interrupting her, something none of the lawyers had the nerve to ask the Justices to do.

The lawyers sat at tables behind the podium. Behind and around them were members of the SCOTUS bar. Behind them was a bronze railing set before the general admission area. We were in the third row, in the left section of three sections of long, solid, cushioned pews, 15 in all. A chair was placed at the end of each pew for additional seating, and it appeared that every seat was taken. A guard in a black suit stood facing the onlookers, scanning the crowd repeatedly from one side to the other. Another guard spelled him after a half hour, and they alternated that way for the duration.

The crowd was attentive and quiet. Both cases involved technical interpretation of statutes and the first case even touched on the interplay between habeas corpus and deportation hearings, a dimension that both liberal and conservative justices appeared to latch onto in support of their positions. And yet, for all of its dry technicality, I found the audience intent on trying to follow the argument, rapt even.

When the first case concluded, Roberts simply said, “Case is submitted,” and the attorneys for the next case took the places of those from the first case. Roberts nodded and they commenced their argument.

What struck me was the simplicity and practicality of the proceeding. It was at its heart not much different from a motion hearing one might stumble into in a rural courthouse. Not a bunch of pomp and circumstance or pretension, just lawyers arguing their positions, judges hearing them out and having the lawyers answer the questions they need to have answered before they can make up their minds. Yes, it is the highest court in the land, but it is, after all, just a court doing court business the same as is done thousands of times every day in every county in every state.

That is the majesty of the law in our nation, where the law is sovereign. It does not need external trappings or ritual to lend it gravity and power. Its authority is bestowed on it by our Constitution and by case law. It is paramount in the most modest, rustic courtroom, the same as it is in the United States Supreme Court, and in the very same way in each place.

Philip Thomas’s Long Good-Bye

March 11, 2020 § 3 Comments

As I forewarned in a previous post, Philip Thomas’s blog, Mississippi Litigation Review & Commentary, shut down last week. Philip’s eponymous Last Post, lengthy and replete with personal references, is at this link.

On one level, Philip’s post is a meditation on how the practice of law has changed over the past 25 years, and decidedly not in favor of civil litigation practitioners. He discusses the insane stress that lawyers experience from the practice, the procedures, the office, family, and financial. He muses over other ways to make a living that allow one to be more human, and he relates his experience of the curative powers of wilderness hiking.

On another level, it’s one more disappearance from the Mississippi legal blogosphere that was once more satisfyingly populated, as I pointed out here before.

Between the lines Philip seems to say that we are in the twilight of the law as we have known and practiced it. Changes are curdling the edges of the practice: more ADR; settlement lawyers; mediation; arbitration. Lawyers tell me that clients are more insistent that their cases get settled, and soon, to avoid litigation costs and just get on with their lives. Lawyers who savored the joust and prolonged litigation for their enjoyment are not favored so much any more. Even in chancery, where 15 years ago there were two or more contested hearings a week, the number of actual trials is down, and the number of settlements and agreed judgments is way up.

So here’s a toast to Philip for your thoughtful and thought-provoking posts that spanned 11 years. May your adversities and the jarring demands of the law subside like the turn off of a busy highway onto a peaceful trail sloping gradually through a conifer forest on a cool, breezy day, until you reach a peaceful summit where, reclined against a sun-warmed rock, you view the beauty of the world below, far removed from its clamor.


Upward Modification of Child Support

March 10, 2020 § Leave a comment

A recent COA decision reminds of us of what the chancellor is supposed to consider when deciding whether an increase in child support is warranted.

In Best v. Oliver, decided February 11, 2020, the court affirmed a chancellor’s decision to increase child support. Judge McCarty wrote for the unanimous court, Carlton not participating:

¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his increased income do not constitute a material change in circumstances warranting modification. He contends Kimberly failed to provide sufficient evidence of the increased expenses, and therefore the increase must be reversed.

¶9. A parent seeking modification of child support must show “a substantial or material change in the circumstance[s]” not reasonably foreseeable at the time of the most recent support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).

¶10. While it is foreseeable that expenses increase with the natural growth of a child, the amount of the increase is not. Kilgore [v. Fuller], 741 So. 2d [351] at 353 (¶6). “As the Mississippi Supreme Court has recognized, rare is the child whose financial needs do not increase with age.” Id. (internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991)). It would be unfair to require under the foreseeability test that the initial child-support award include anticipated future increased expenses. Id. Because it is impossible for a court to foresee in the initial support award what allowances to make for a child years into the future, we leave that for modification proceedings. Id.

¶11. When determining whether modification of child support is warranted, the chancery court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985). [Fn 2] “Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and educational needs together with their extracurricular activities” may be considered in order to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

[Fn 2] In determining whether a material change has occurred, chancery courts may consider “(1) the increased needs caused by advanced age and maturity of the children[,] (2) increase in expenses,[] (3) inflation factor[,] . . . (4) the relative financial condition and earning capacity of the parties, (5) the health and special medical needs of the child, both physical and psychological, (6) the health and special medical needs of the parents, both physical and psychological, (7) the necessary living expenses of the [paying party], (8) the estimated amount of income taxes that the respective parties must pay on the incomes, (9) the free use of residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support as shown by the evidence.” [Adams] Id. (citations omitted).

¶12. We are satisfied that the chancery court’s factual findings were supported by substantial, credible evidence. As evidenced in its order, the chancery court considered all of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed financial position, and inflation constituted a material change warranting a modification of child support. Furthermore, the chancery court rejected Kimberly’s request for the most part, tailoring the support increase to $1,000 per month rather than the requested $3,000 per month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.

¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in determining the amount of support to award. However, “[w]e know of no reason in law, morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.

¶14. Because the chancery court’s decision was within its discretion, we affirm.

Some Things are Better Left Said

March 9, 2020 § 1 Comment

There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.

In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …

When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:

Q. If you could state which of those items you would like to have, what would they be?

A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.

Q. Slow down. Your motorcycle?

A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.

Q. And that is all you want the judge to award you in the marital estate?

A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]

Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).

The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.

Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.

Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.

“Quote Unquote”

March 6, 2020 § Leave a comment

“For if we open our eyes and see clearly, it becomes obvious that there is no other time than this instant, and that the past and future are abstractions without any concrete reality. Until this becomes clear, it seems that our life is all past and future, and that the present is nothing more than the infinitesimal hairline which divides them.”  —  Alan Watts

“There is only one moment, and yet the moment is always giving way to the next, so that there is not even Now, there is Nothing. True, true. There is nothing, if that is the way to understand how much there is.”  —  M.C. Richards

“Only when one understands that we live life on the precarious edge of the present, which is a mere millionth of a second, as we rush moment by moment at warp speed into an unknown and unknowable future, can one begin to appreciate how courageous and brave is the act of living with only our memory of the accumulating past for balance.”  — Daedelus