TRIAL BY CHECKLIST: UPDATED ALIMONY FACTORS

September 24, 2012 § Leave a comment

The 12 Armstrong factors have long been the decisive authority to be applied by the court in making its determination as to the type, amount, and reasonability of alimony. In the recent COA case of Pecanty v. Pecanty, decided September 18, 2012, however, Judge Fair’s opinion cited (at ¶25) to the 2002 Davis v. Davis case, 832 So.2d 492, 497, where the MSSC laid out 17 factors. Here’s the pertinent language from Davis:

In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider “not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living.” Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).

The Davis factors expand on the Armstrong factors in several significant ways:

  • In addition to “the reasonable needs of the parties,” the court is to consider the reasonable needs of the child. This is significant because it opens the door to evidence about the impact that a child has not only on the expense and availability of child care, as set out in Armstrong, but also to the other needs of the child above and beyond child support, and how those needs impact the alimony recipient’s living expenses.
  • In addition to the Armstrong “tax consequences of the spousal support order,” Davis directs the court to consider the amount of income taxes the respective parties must pay on their incomes. Under Davis, the trial court must address not only the tax consequences, such as deductability, but also the availability of refunds, deductions, exemptions and other factors that influence income taxes upward or downward.
  • The fact that “the wife” (read “payee”) has free use of the home, furnishings and automobile is included as a factor. Granted, it has long been the law in Mississippi that those items are considered as part of the spousal support package, but the inclusion as a factor to be considered promotes it to a higher level of consideration.

It can be argued that Davis does not really add anything new to Armstrong. That may be so, and most attorneys, in presenting their Armstrong proof cover the same bases (except for income tax proof, which lawyers rarely touch on) for the most part. Still, I think it’s worth adding these to your portfolio of useful checklists. After all, in affirming the chancellor in Pecanty, Judge Fair noted with favor that she ” … addressed the seventeen factors set out in Davis … ” If he (and the rest of the COA) considered them noteworthy, we would be wise to do the same.

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:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

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.

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 3 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  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 an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE

March 16, 2011 § 15 Comments

A practice tip about trial factors is here.

I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.

Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.

In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  3. The fee customarily charged in the locality for similar legal services;
  4. The amount involved and the results obtained;
  5. The time limitation imposed by the client or by the circumstances;
  6. The nature and length of the professional relationship with the client;
  7. The experience, reputation and ability of the lawyer or lawyers performing the services; and
  8. Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).

 In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate.  The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination. 

If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.

A CHECKLIST OF CHECKLISTS

December 15, 2010 § Leave a comment

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.

Here are the checklists I’ve posted (you can click on the links to get to them):

Attorney’s fees.

Adverse possession.

Child custody.

Grandparent visitation.

Equitable distribution.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Income tax dependency exemption.

Those are all of the checklists of which I am aware.  If you know of others, please let me know and I will add them to the list.

I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.

ONCE AGAIN ON THE IMPORTANCE OF CHECKLIST PROOF

November 24, 2010 § Leave a comment

I’ve talked before here about how important it is to develop your proof at trial based on the various lists of factors — I call them “checklists” — that have been handed down by the appellate courts. 

The Court of Appeals on November 2, 2010, reversed a Chancellor’s decision granting grandparent visitation for failure to address the Martin v. Coop factors.  In the case of Conerly v. Davis, the court stated that ” … the grandparent-visitation statutes simply give a grandparent … standing to file a request seeking visitation rights. It is then within the chancellor’s discretion to award or deny visitation after reviewing the Martin factors and considering the best interest of the child. Therefore, we vacate the chancellor’s judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.”

The Martin v. Coop factors are here.

A guide to the intricacies of grandparent visitation is here.

The retrial in this case may be due to a simple oversight on the judge’s part.  Or, it may be that neither party at trial developed any evidence that would have supported findings under the appropriate factors.

When representing a client in any case where proof of trial factors is required to support the chancellor’s decision, be sure you present evidence to establish each and every one.  If you do not have proof on every factor, develop as many as you can.  If the judge renders an opinion at the conclusion of the case and does not address the applicable factors, ask her to adress them or to render a supplemental opinion doing so.  If the judge renders a written opinion and/or judgment, file an MRCP Rule 59 motion immediately, but not more than ten days after the judgment is entered, asking the court to address the factors based on the proof in the record.

You are setting the stage for a remand and a second, costly trip to court for your client if you don’t.

TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION

October 11, 2010 § 9 Comments

A practice tip about trial factors is here.

The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support. 

If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do.  In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award.  They are:

  1. The value of the exemption at the marginal rate of each parent;
  2. The income of each parent;
  3. The age of the children and how long the exemption will be available;
  4. The percentage of the cost of supporting the children borne by each parent; and
  5. The financial burden assumed by each parent under the property settlement agreement in the case.

In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth:  the value of the non-economic but valuable contributions made by the custodial parent.

Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1. 

It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 20 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed. 
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

TRIAL BY CHECKLIST: SEPARATE MAINTENANCE

September 20, 2010 § 8 Comments

A practice tip about trial factors is here.

In the case of Shorter v. Shorter, 740 So.2d 352, 357 (Miss. 1999), the Mississippi Supreme Court stated that six criteria must be considered in setting awards of separate maintenance: 

  1. The health of the husband and the wife;
  2. Their combined earning capacity;
  3. The reasonable needs of the wife and children;
  4. The necessary living expenses of the husband;
  5. The fact that the wife has free use of the home and furnishings; and
  6. Other such facts and circumstances.

Also seeHonts v Honts, 690 So.2d 1151, 1153 (Miss. 1997).

While an award of separate maintenance should provide for the wife as if the couple were still cohabiting, the allowance should not “unduly deplete the husband’s estate.” Kennedy v. Kennedy, 662 So. 2d 179, 181 (Miss. 1995) (quoting Thompson v. Thompson, 527 So. 2d 617, 622 (Miss. 1988)).

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