DICTA

June 24, 2011 § 3 Comments

  • The Legal Ethics Forum has a thought-provoking post about a study in Minneapolis in which lawyers were called upon to define professionalism by identifying lawyers they considered exemplars, and by identifying the traits they displayed.  ” … [T]hese exemplars talked about a way of being, of acquiring habits of reflection and soul searching, of questioning their personal assumptions about how to be an effective lawyer, or how to lead other lawyers.”  It’s an interesting addition to the concept of professionalism.
  • Do lawyers have a First Amendment or Fourteenth Amendment-due process right to wear baseball caps and jeans when appearing in court?  So far, the answer is no, as the First Amendment Center explains.
  • The increasingly negative cost-benefit ratio of a law degree has been the subject of much reporting over the past couple of years. Law grads entering the work force with massive student-loan debt have not been successful in finding jobs adequate to retire their debt.  Now, the WSJ Law Blog reports that some law schools are shrinking their enrollment in recognition of the fact that lawyer supply exceeds demand. Is it a trend or a bump in the road?
  • Ever wonder what the real numbers are behind all the budget debates in Jackson, in your county, your school systems, and in your city? See the Spending documented here. You will have to enter some info to “sign up.”
  • 380 free movies online here.
  • It will take you a couple of hours to read, but these 1980’s interviews and manuscripts of Sam Bowers, Jr., predating his conviction for the murder of Vernon Dahmer, will give you some insight into the mind of a murderous Klan leader and racist.
  • If you’re old enough to remember when music came on LP’s and cassettes (or 8-track), long before mp3 and iTunes, and even before CD’s, you will enjoy this article about how Columbia House made billions by giving you 10-12 tapes in return for your membership and commitment to buy some music.

    Such a deal

PARING DOWN YOUR LEGAL PROSE

June 23, 2011 § 2 Comments

The importance of being Ernest

Nobel Prize-winning author Ernest Hemingway worked as a reporter for the Kansas City Star newspaper in 1917.  The sparse, compact language of journalism proved to be ideally suited to his writing skills, and he adopted it as his style.  The minimalist prose that resulted became his trademark.

Here are excerpts from the paper’s style sheet:

  • Use short sentences. Use short first paragraphs. Use vigorous English. Be positive, not negative.
  • Eliminate every superfluous word, as “Funeral services will be at 2 o’clock Tuesday,” not “The funeral services will be held at the hour of 2 o’clock on Tuesday.” “He said” is better than “He said in the course of conversation.”
  • Avoid the use of adjectives, especially such extravagant ones as “splendid,” “gorgeous,” “grand,” “magnificent,” etc.
  • Be careful of the word “also.” It usually modifies the word it follows closest. “He, also, went” means “He, too, went.” “He went also” means he went in addition to taking some other action.
  • Be careful of the word “only.” “He only had $10″ means he alone was the possessor of such wealth; “He had only $10″ means the ten was all the cash he possessed.
  • A long quotation without introducing the speaker makes a poor lead especially and is bad at any time. Break into the quotation as soon as you can, thus: “‘I should prefer,’ the speaker said, ‘to let the reader know who I am as soon as possible.’”

“Those were the best rules I ever learned for the business of writing,” Hemingway told a reporter in 1940. “I’ve never forgotten them. No man with any talent, who feels and writes truly about the thing he is trying to say, can fail to write well if he abides with them.”

There’s something for lawyers to chew on here. Is your writing clear, concise and direct? Does it make your point in the first sentence, or in the first few words, or do you make the reader meander through prolix piles of prose? Does it read like nineteenth-century legal jargon, or does it state your client’s position in easily comprehensible language?

Take a few minutes to read your pleadings. Take a few minutes to review your motions and briefs. Does your writing do the job for your client, or does it get in the way?

When a judge reads your pleadings, motions or briefs, can he or she get right to the point, or does it take laborious digging to get there? And when the judge finally gets to the point, is it clear exactly what the point is?

Do you have a reliable style book you can pull out and check from time to time? I like Strunk and White’s Elements of Style. It’s timeless without being stuffy, and at a mere 85 pages, it’s packed with easy-to-find gems. The chapters include rules of usage, principles of composition, commonly misused expressions, matters of form, and an approach to style. There’s a lot here that is easily digestible and quite useful.

Give your writing a little thought. It’s one of your most potent tools to advance your client’s interest. And consider that muddled writing is symptomatic of muddled thought; if you can’t find a way to express it in writing, you may not be able to say it at all.

Thanks to Futility Closet for the Hemingway material.

TURNER v. ROGERS DECONSTRUCTED

June 22, 2011 § 4 Comments

By Ben McMurtray

Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him.  The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”  The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”

The practical effect of this ruling has actually very little to do with the right to counsel.  Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court.  The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant.  These safeguards are:

  1. Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
  2. The use of a form (or the equivalent) to elicit relevant financial information;
  3. An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
  4. An express finding by the court that the defendant has the ability to pay (before finding him in contempt).

This list is not inclusive of all possible safeguards that a state could employ.  In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”

Turner, though, is quite limited in its scope.  The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead.  The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney.  Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se.  Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.”   Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.”  In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.

So how does Turner v. Rogers affect one’s practice?  When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing.  Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay.  Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing.  Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.

[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]

BREAKING NEWS: TURNER v. ROGERS

June 21, 2011 § 3 Comments

The US Supreme Court yesterday ruled in Turner v. Rogers that it is a violation of the Due Process Clause of the US Constitution for the state to incarcerate a defendant for non-payment of child support when he was afforded neither benefit of counsel nor some alternative procedures, and he was not given adequate notice. I had previously posted about the case here.

I have only now gotten a copy of the opinion, and will post on it when I have a chance to read it.

Thanks to attorney Frances Stephenson.

FIVE MORE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 21, 2011 § 3 Comments

  • Sometimes the parties want the property settlement part of the PSA to be a final, binding contract regardless whether there is any contest.  If you don’t include that provision unequivocally stated, the law is clear that the court can not enforce the contract piecemeal.
  • If a payment is to be made, such as child support, specify the first payment date and the regular monthly date for payment.
  • If something is to be done, specify the date by which it is to be done.  In the alternative, include a stock provision in all your PSA’s to the effect that “If no specific date is stated by which an action in this Agreement is to be accomplished then it shall be done and completed not later than thirty days from the date of this agreement.
  • If something is to be done, specify whose responsibility it is to do it.  For instance, the provision that “All child support payments due hereunder shall be made pursuant to the Bank Plan,” was held by Judge Mason not to be clear enough that it was the payor’s responsibility to enroll in and make payments under the plan where he had been unrepresented in the divorce.  Better to say something like “Husband shall be solely responsible to do all acts and things necessary to enroll in and make all child support payments due on and after August 11, 2011, through the Bank Payment Plan.”
  • Section 71(b)(1)(B) of the Internal Revenue Code allows the parties to agree that alimony will be neither taxable nor deductible.

COMING TO GRIPS WITH McDONALD

June 20, 2011 § 7 Comments

I don’t think it’s an overstatement that the Mississippi Supreme Court’s decision in McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), set chancery court practice vis a vis guardians ad litem (GAL) on its proverbial ear.  And it’s not so much what McDonald held as what it hinted at.

Before McDonald, it was common practice to allow a GAL to investigate, file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation.  After all, most of what a GAL unearths is based on hearsay: the GAL interviews the children, neighbors, school teachers, parents, relatives, and reviews medical records and school records.  In my experience most chancellors allowed the GAL to testify to the facts disclosed in the investigation, and I don’t recall anyone ever objecting to the hearsay.  Most lawyers used the GAL’s report as a guide for what evidence would prove or disprove the case.  It was a good system that allowed a qualified person as an arm of the court to look behind the positions of the warring parties and to pierce the veil of partisanship.  I have observed on more than one occasion in contested child custody cases that the momma and dady are each zealously pursuing their own positions, but no one is looking out for the best interest of the children.  The GAL’s role as arm of the court was a perfect complement to the chancellor’s role as superior guardian of the children.  Frankly, it worked pretty well when a well-qualified and diligent GAL was involved.  When the GAL proved to be less than diligent, the chancellor was free to discount or even disregard the findings and recommendations.

Enter McDonald.  In that case, the mother in a child custody modification case objected to the GAL’s oral testimony, ” … stating that if the teachers and others being quoted by the GAL had something to report, they should have been required to be there. The court responded that
GALs are allowed by “historical practice” to offer hearsay testimony, and overruled the objection. ”  McDonald at 884.

The Supreme Court disagreed and pointed out without expressly holding that a GAL’s oral hearsay testimony should be excluded.  Justice Dickinson’s specially concurring opinion was even more blunt when he stated that MRE 1 expressly states that the evidentiary rules do apply in chancery court.  End of dicussion for him.

The court did not extend its hearsay proscription to GAL written reports, however.  The following language, beginning on page 882, is instructive:

“Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking ‘on a role as a litigant/expert’ by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony as discussed below, the GAL was simply following the provisions of the GAL statute and the pronouncements of this Court. This Court dealt recently with a similar issue in S.G. v. D.C., 13 So.3d 269 (Miss.2009), an opinion handed down after the briefs were filed in this appeal. The S.G. Court stated the following regarding the proper role of a GAL:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.  Id. at 282.

The GAL in the case sub judice did not offer the type of testimony criticized in S.G. See id. at 274 n. 5.  This GAL reported on matters required by her appointment, and consistent with a GAL’s duties as outlined in S.G. Id. at 282.

The statute’s provision that a GAL “shall have the duty to protect the interest of a child for whom he [or she] has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest,” is consistent with the traditional roles required of a GAL, which predate the enactment of the statutes. Miss.Code Ann. § 43-21-121(3) (Rev.2009). In In the Interest of D.K.L., 652 So.2d 184 (Miss.1995), this Court held that a GAL had failed in his duties by simply deferring to a therapist’s recommendations, and not submitting his own recommendation as to the best interests of a child. Id. at 188. The D.K.L. Court stated that the GAL ‘did not have an option to perform or not perform, rather he had an affirmative duty to zealously represent the child’s best interest.’ Id. In In the Interest of R.D., 658 So.2d 1378 (Miss.1995), this Court held that “children are best served by the presence of a vigorous advocate free to investigate, consult with [the children] at length, marshal evidence, and to subpoena and cross-examine witnesses.” Id. at 1383 (quoting Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (S.C.Ct.App.1990)). See also M.J.S.H.S. v. Yalobusha County Dep’t of Human Serv. ex rel. McDaniel, 782 So.2d 737, 740-42 (Miss.2001)(GAL failed in his duty by relying on DHS records and the recommendations of a therapist and social worker). In D.J.L. v. Bolivar County Department of Human Services ex rel. McDaniel, 824 So.2d 617 (Miss.2002), this Court found no error in a GAL’s cross-examination of witnesses. Id. at 622. The Court also ’emphatically proclaim[ed] to the bench and bar that … the guardian must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent.’ Id. at 623. Therefore, the GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination.

The chancellor did not allow the GAL to usurp his role as the “ultimate finder of fact.” Id. The chancellor heard all witnesses, read all the
reports, and made his own decision based upon independent findings of fact.  Thus, we find this portion of Jennifer’s argument to be without merit.”

Footnote 7 on page 884 states:

“Hearsay testimony should not to be confused with a GAL’s written reports, which sometimes, by their very nature, will include statements, which, if offered into evidence at trial to prove the truth of the matter asserted, would be inadmissible hearsay, unless they qualify under one of the exceptions to the rule against hearsay. Any such inadmissible hearsay, however, would not require exclusion of the entire report. This issue is not before the Court this day.”

I have heard reactions to McDonald that just about cover the ball park.  One chancellor has said that he and the other judge in his district no longer appoint GAL’s unless they are required by statute because they feel that McDonald has rendered the GAL role ineffective and superfluous.  I have heard chancellors confess that they don’t have any idea where to go post McDonald when it comes to GAL’s.  And GAL’s have come to me and said they are now quite confused as to what they can and can not do.

The GAL system is far too valuable to chancery court to be relegated to the trash heap.  At least for the time being, chancery court maintains its historical distinction from circuit in that the chancellor has a high duty to act in the best interest of a child, and to have a greater role at trial than to be a mere referee blowing the whistle and throwing penalty flags for hearsay transgressions; the chancellor’s duty is to ensure that the best interest of a child is protected, even when the parties themselves do not do so.  The GAL has for many years given the chancellor a practical, effective way to meet his or her responsibility.

So how do we reconcile McDonald with the traditional role of the GAL?  I think it comes down to the following for the party who will make positive use of the GAL recommendations:

  1. Plan to qualify and tender the GAL as an expert.  Ask the court at the outset of trial for leave to allow the GAL to remain in the court room in her role as an expert, if the rule is invoked.
  2. Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.
  3. Finally, call the GAL as an expert witness and offer her report into evidence.  She should qualify as an expert because of her legal training and experience, plus the fact that every GAL now must undergo special training and maintain certification.  And as for her testimony, remember that, under MRE 703, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”  Moreover, with all of the factual evidence already in the record, the GAL is free to comment on it.

But, you say, this will result in more cumbersome, longer and more expensive trials in custody actions with GAL’s.  You are certainly right, but that is what the supreme court is directing us to do.

My understanding is that the GAL in McDonald was qualified as an expert.  The opinion in McDonald did not explain why Rule 703 was not an adequate basis for her hearsay testimony that ” … need not be admissible in evidence.”  So until the MSSC takes another shot at the issue, I interpret McDonald to mean that the GAL may include hearsay in his report, and may testify to it NOT to establish the truth of the matter asserted, but to establish the basis for his recommendations.  In other words, you will have to call the witnesses and have them testify, and put the documents, photos and records in via competent testimony if you want or need those facts to be established in the record.

For now that is the way I will approach McDonald.

SHARING THE HARVEST

June 18, 2011 § Leave a comment

Lisa has a knack for growing all manner of things.  Her patio garden of potted plants yields up a delicious variety of produce that finds its way into our grateful kitchen. This summer we are enjoying tomatoes and peppers galore, as well as the usual herbs. At the end of the summer we will again have a bumper crop of juicy lemons.

This year we have been sharing the harvest, but not with gladsome hearts.

You see, our little patio garden is being pillaged by 2 quarreling mockingbirds (tempting to kill them, but such is proscribed here in the south), a chipmunk with an attitude of entitlement, a sassy squirrel, and a bitchy wren who scolds as she is run off.  These little monsters gobble holes into the tomatoes and even like to nibble on the hot cherry peppers.  The netting spread over to ward them off has only set them a challenge to which they have gamely risen. This afternoon I fought hundred-degree heat to shoo most of the characters away — twice.  One of the mockingbirds, the chipmunk and the wren had all gotten underneath the netting and were feasting away on the two biggest, ripest tomatoes.  Ruined. I had to release the insanely panicked mockingbird from his frantic prison in the net — and again five minutes later.  The wren and the munk escaped unhampered, but the wren stuck around long enough to scold me stridently as I labored to loose the mocker.

The corpus delecti

The netting is now rearranged and more secure. My reassuring, “Don’t worry, they won’t want to fight this netting,” proved to be foolishly wrong.

I did set up a kind of a bird bath nearby, with fresh water, based on the theory that the little critters are actually thirsty in this miserable heat. We’ll see whether that gives some relief from the onslaught.

So it’s man against nature. Mano a mano. Will we prove to be able to outsmart these creatures? Stay tuned.

Ironically, just last week, there was another shared harvest. Our beautiful Easter-yellow daylillies bloomed in the front yard, down by the street. I noted how the dozen or so blooms trumpeted their beauty in the morning light as I left the driveway on the way to the court house.  When I returned home that evening, alas, someone had picked them all, right from our yard. The lovely blooms graced someone else’s table, I suppose.

Now I am not sure of the etiquette that is involved here. On the one hand, one could argue that they are God’s gift to us for all to enjoy. If that’s so, why does the person who picked them get to enjoy them selfishly? Why not leave them there by the curb for all to smile on?  And on the other hand, it’s my property, dammit. Where do you get the nerve to come on my property and pick my (or God’s) flowers?

Oh, well, I am over it. Maybe the flower-picker really needed those blooms more than I did. I’ll leave it at that.

The flowers did remind me of an incident that happened up the street several years ago.  The guy is in his house at dusk and notices two women digging in his garden where he had planted many perennials and bulbs.  He walks down the sloping driveway and greets the two women who are cordial, but intent on their task. One is snipping flowers and the other is digging up bulbs. He asks them to stop and the women are indignant. How dare he. The snipper says she is giving an engagement party for some young friends of the family and needs these flowers. Her companion points out that the daylillies need dividing anyway, and she is merely taking some of the division. All well and good, he says, but I want you off my property and don’t come back and molest my flower bed, he says. The women leave in a huff, incredulous at his insensitivity and crass indifference to their sense of entitlement.

When he told me who the women were, I knew one of them quite well, as I had represented her in a divorce a few years before. The other I knew in passing. Either woman could have whipped out a check and bought the guy’s house and flowers without any pinch in their budgets. I wonder whether they were aware that we now have florist shops that more or less eliminate the need to shop in other people’s yards for your flower needs.

And so we march into summer, which begins Monday. Ouch. Its’s not even summer yet and it’s already hot as hades. The last summer I remember like this was 2005 — the summer of Katrina.

But tomatoes like it hot, right?  And mockingbirds, squirrels, wrens and chipmunks like tomatoes. Anybody got a recipe for mockingbird, wren, squirrel and chipmunk fricasee … with tomato?

MORE ON ELVIS IN THE QUEEN CITY

June 17, 2011 § 1 Comment

I posted here, here and here about Elvis Presley’s appearance in Meridian in 1955.

Here’s a photo provided by Jim Myrick of WMOX radio showing Elvis, Ann Ray and Mae Boren Axton at Meridian Junior College Stadium on Thursday, May 26, 1955.

And a bonus … Here’s a pic of Hank Snow, Anita Rodgers Court (daughter of Jimmie Rodgers), Ernest Tubbs, Carrie Rodgers (Mrs. Jimmie Rodgers), and Johnny Cash at the Jimmie Rodgers Memorial in Highland Park during the Jimmie Rodgers Festival in 1957.

THE SMELL TEST: YOU’LL KNOW IT WHEN YOU SEE IT

June 16, 2011 § Leave a comment

Sometimes you know something ain’t right.  It doesn’t pass the smell test.

Or, as US Supreme Court Justice Potter Stewart opined, famously employing a different sense when attempting to define obscenity:  “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”  Jacobellis v. Ohio, 378 US 184, 197 (1964).

Returning to the olfactory realm, we encounter the fetid aroma of impropriety in chancery proceedings now and then.  Parties conceal assets from one another, warring child custodians grab a child and run and then lie about the whereabouts, witnesses lie under oath, 8.05 statements just don’t add up, et cetera and so on.

But is it fraud?

A finding of fraud opens the defrauded party to all manner of equitable relief.  Before you set out to claim fraud, though, there are some things you need to know.

The Elements of Fraud

The elements of fraud, which must be proven by clear and convincing evidence:

  1. A representation;
  2. its falsity;
  3. its materiality;
  4. the speaker’s knowledge of its falsity or ignorance of its truth;
  5. the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated;
  6. the hearer’s ignorance of its falsity;
  7. the hearer’s reliance on its truth;
  8. the hearer’s right to rely thereon; and
  9. the hearer’s consequent and proximate injury.

In re Estate of Law, 869 So.2d 1027, 1029 (Miss. 2004), citing Levens v. Campbell, 733 So.2d 753, 761-62 (Miss.1999). See also Spragins v. Sunburst Bank, 605 So.2d 777 (Miss.1992); Martin v. Winfield, 455 So.2d 762 (Miss.1984)

 Pleading Requirements

MRCP 9(b) states: “In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” The comment is worth reading.

A party is not entitled to relief on the basis of fraud where the complaint fails to state the circumstances constituting fraud with particularity and the parties did not try the issue by consent. Brown v. Chapman, 809 So.2d 772, 774 (Miss. App. 2002).

Fraud cannot be inferred, presumed, or charged in general terms. The specific acts of fraud must be definitely averred. Nichols v. Tri-State Brick and Tile Co., Inc., 608 So.2d 324, 331 (Miss. 1992).

This is important:  If a finding of fraud is important to your client’s case, you must plead it, identifying the specific acts you claim are fraud, and specifying for each the acts complained of.  The other party may challenge the sufficiency of your pleadings using MRCP 12(b), but if she does, the court is required to give you an opportunity to amend.  What if the other party creates a nightmare scenario for you by not going the 12(b) route and simply waiting for trial, then objecting right and left to any proof you offer of fraud, moving ultimately to dismiss for failure to plead properly?

The Badges of Fraud

The Mississippi courts have recognized ten “badges of fraud” that a court may use to consider in making a determination whether a party’s intent was fraudulent:

  1. Inadequate consideration for the transfer.
  2. Conduct out of the ordinary course of business.
  3. An absolute conveyance as security for a loan.
  4. Secrecy.
  5. The transferor’s insolvency.
  6. A transfer of all the transferor’s property.
  7. Retention of possession by the grantor.
  8. Failure to list the property covered by the conveyance.
  9. The relationship between the transferor and the transferee.
  10. Whether the transfer was to someone with no apparent use for the property.

A&L, Inc. v. Grantham, 747 So.2d 832, 843 (Miss. 1999).

FIVE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 15, 2011 § 5 Comments

I’ve had these suggestions on the stockpile for a little while, waiting for an opportune time to post them.  Considering Randy Wallace’s post about a less-than-perfect PSA yesterday, I thought now was a good time to float these. I’ll have more later.

  • If you don’t address allocation of the tax exemptions for the children as dependents, the IRS takes the position that it remains with the custodial parent.  If the non-custodial parent will get the exemption, or it will be split, you should include language that the parties agree that they will promptly complete and timely execute and deliver IRS Form 8332 in order to give effect to the provision.  That form is the one that the IRS requires to claim the exemption.
  • Stick with the traditional terms.  The IRS understands the terms periodic alimony, lump sum alimony, rehabilitative periodic alimony, and child support.  If you try to disguise those terms as spousal support or family/spousal support, or family maintenance, or something similar, you are likely sending your client off onto a collision course with the IRS.  William Wright, an attorney in Jackson, told of a case he had where  opposing counsel insisted on applying the term family support to a substantial payment that William’s doctor-client was having to pay each month.  William complied, and his client later took the position with IRS that the payments met all the requirements for alimony, so that he should be able to deduct it, and it should be alimony to the recipient.  IRS agreed, costing the recipient a whopping tax bill, and no doubt improving William’s standing in his client’s estimation.  Had the payments been allocated between child support, which is not taxable, and alimony, which is, the result would have been far different for the recipient spouse.
  • If the other party is not represented, have you made it clear in the agreement which party you do represent, and have you added language to the effect that the other party acknowledges that you have not given him or her any legal advice?
  • Name the children in the agreement.  It affects them directly.  I have read agreements that refer only to “the minor children,” without identifying them, or stating their ages or birthdates, or even how many there are.
  • Have you bothered to read the agreement?  Does it make any sense?  Here’s an actual sentence from a property settlement agreement I was presented:  “Husband to have his title and car, and wife hers.  Each to pay and hold harmless.”  I think I know what that means.  But that doesn’t make it an enforceable contract.

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