CORROBORATION PROBLEMS = DIVORCE PROBLEMS
January 11, 2011 § 3 Comments
I posted here about how crucial it is for the proof of grounds in fault-based divorces to be corroborated.
In Ladner v. Ladner, decided December 14, 2010, the court of appeals again emphasized the strength of the corroboration rule. The court stated at ¶ 10 the familiar principle that “The corroborated testimony must show conduct that ‘endangers life, limb, or health, or creates reasonable apprehension of such danger, rendering it impossible for [the other] spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.'”
Deborah Ladner charged her husband Philip with habitual cruel and inhuman treatment She testified that Philip had been abusive toward her and assaulted her. She offered into evidence two police reports and two rpotective orders, which both the trial judge and the court of appeals found not to be corroborative because all of the information they contained was provided by Deborah. The appellate court also found uncorroborative a statement in a police report that the parties’ son was afraid of his father, and that Philp had broken his daughter’s door in anger because those showed only a troubled relationship with the children and did not corroborate Deborah’s testimony about violence directed at her. The court reversed the chancellor’s decision granting Daborah a divorce on the ground of habitual cruel and inhuman treatment.
Justice Carlton in her dissent would have found the testimony adequately corroborated to grant Deborah a divorce on habitual cruel and inhuman treatment. She quoted from Professor Bell’s treatise that the corroborating evidence need not be sufficient in itself to establish the ground, but only needs to be enough for the court to conclude that the plaintiff’s testimony is true.
An interesting twist in this case is that the chancellor granted both parties a divorce. He granted Deborah a divorce on the ground of habitual cruel and inhuman treatment, and he granted Philip a divorce on the ground of adultery. Philip had raised the issue that it was improper for the chancellor to grant dual divorces, but the court of appeals held that issue to be moot, based on its reversal of Deborah’s divorce.
There are several points chancery practitioners need to come away from this case with:
- No corroboration = no divorce. The requirement of corroboration is alive and well, and you need to be sure you have a corroborating witness or two lined up to support your case.
- Self-corroboration will not work. The information Deborah submitted to corroborate her claims that she generated was found not to be corroboration, and that makes perfect sense. It’s easy for a party to generate police reports and file charges to build a case. Those kinds of documents are nothing more than her own statements, so they corroborate nothing.
- The corroboration has to be linked to the conduct charged. Deborah’s proof about her son and daughter was not tied to conduct directed at her. Maybe the result would have been different if the son had testified that he was afraid of his dad because the son saw him threaten or physically mistreat the mom; if the door-breaking incident had been tied to a rampage in which Philip manhandled Deborah, that may have been the link she needed.
The easiest thing in the world is to tell your client, “Be sure to bring a witness to court who can back up your testimony about how he mistreated you.” That’s a ticket to failure, though. You need to investigate and identify who are the witnesses and what is the competent evidence that will make your client’s claim. It is no less important than discovering the value of that securities account or uncovering that hidden bank account.
“COURT HOUSE CLOSED”
January 10, 2011 § Leave a comment
That’s the sign on the door as I walked up this morning. Winter weather is to blame, although I zipped right into downtown with nary an icy patch to deter me.
The only advance notice we had of the closure was that “Only essential personnel should report to work.” Naturally, my ego would not let me admit to the possibility of non-essentiality. If only essential personnel did report, that’s scary because there are only three of us in the building. The entirety of Lauderdale County is a heavy load of responsibility for three people.
Oh, well, I guess I can find something to do here as well as I could at home.
For all the rest of you … enjoy your icy day.
BASQUE BRAISE LOUIS
January 9, 2011 § Leave a comment
If you were abducted by aliens and dumped blindfolded at the door of Louis’ Basque Corner, you would swear once inside that you were in the Faubourg Marigny in New Orleans in one of those gritty, working-class neighborhood hangouts where leathery topers linger over drafts in the front saloon and families enjoy incredible cuisine in the back dining rooms. There’s a smoky haze that clings to the mismatched, outdated furniture and the souvenirs left behind by satisfied customers. Ray Charles wails on the juke box, and there is a happy chattery buzz punctuated by a raucous laugh from time to time.
The thing is, Louis’ is in Reno, Nevada, of all places, on a side street blocks away from the glittery casinos and showplaces. It’s the renowned restaurant of Louis and Lorraine Erreguible, who will serve you delectable Basque specialties from that region of the Pyrenees between Spain and France. Here’s a video of Guy Fieri of the Food Channel at Louis’ that will give you an idea of the quality of the cuisine as well as the simple ambience.
This braise recipe creates a sauce that is a base for any number of departures. You can use it to cook chicken seasoned with tarragon and sage and mushrooms, or lamb with rosemary, or rabbit with fennel. I had sweetbreads cooked in this sauce, and they were divine. Experiment with your own taste buds. I have tweaked this recipe from versions I found on the internet. As with all braises, you should tweak it your way and make it your own.
And if you’re ever in Reno, be sure to experience Louis’.
BASQUE BRAISE LOUIS
½ Cup vegetable oil
1 ½ Lb. meat of your choice (chicken, lamb, rabbit or any other suitable meat)
Salt and pepper
3 Medium onions, chopped
2 Green bell peppers, chopped
4 Carrots, sliced
2 Stalks celery, sliced
6 Cloves garlic, minced
2 Shallots, minced
¼ Tsp. red pepper flakes
2 Cans (24 0z.) whole tomatoes
½ Tbsp. flour
2 Cups dry white wine and more as needed
Seasonings of your choice for the meat
Salt and pepper to taste
Preheat oven to 350 degrees.
In a large braising pan, heat oil over medium high heat until a clean wooden spoon inserted in it bubbles. Season the meat with salt and pepper and brown on all sides. Remove the meat from the pan and set aside.
Add onions, bell pepper, carrots, celery, garlic and shallots to the oil and sauté until wilted.
Add tomatoes and pepper flakes, and cook on medium high heat for 5 – 10 minutes.
Sprinkle the flour and mix in as a roux. When the flour is well blended, add the white wine and bring just to a boil. Reduce the mixture on low heat or place in the oven until sauce has thickened to a tomato-paste consistency. Remove from stove or oven.
Season the meat with the seasonings of your choice, add the meat to the sauce mixture, and stir in. Cover and return to oven, stirring occasionally. Add wine as necessary to keep moist. Bake 1 to 1 ½ hours or until meat is tender.
STUNG TO DEATH BY SINGLE BEES
January 7, 2011 § Leave a comment
He got into a restless habit of strolling about when the cause was on, or expected, talking to the little shopkeepers, and telling ’em to keep out of Chancery, whatever they did. ‘For,’ says he, ‘it’s being ground to bits in a slow mill; it’s being roasted at a slow fire; it’s being stung to death by single bees; it’s being drowned by drops; it’s going mad by grains.’
— from Bleak House, by Charles Dickens
LEGAL REASONING RUN AMOK
January 7, 2011 § 5 Comments
This is a faux Canadian appellate case that I remember studying in law school and ran across recently. It was actually written by a law professor as a parody of legal reasoning, but, scarily, it could easily be mistaken for the real thing.
IN THE SUPREME COURT
REGINA
V.
OJIBWAY
Blue, J. August, 1965
This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c. 724, s. 2. The facts are not in dispute. Fred Ojibway, an Indian, was riding his pony through Queen’s Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused’s misfortune was further heightened by the circumstance of his pony breaking its foreleg. In accord with Indian custom, the accused then shot the pony to relieve it of its awkwardness. The accused was then charged with having breached the Small Birds Act, s. 2 of which states: “2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.” The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.
In light of the definition section my course is quite clear. Section 1 defines “bird” as “a two legged animal covered with feathers.” There can be no doubt that this case is covered by this section.
Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but this is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.
Counsel also contended that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.
Counsel for the accused also argued that since there was evidence to show accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously, this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.
Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no consequence to this court.
Counsel relied on the decision in Re Chicadee, where he contends that in similar circumstances the accused was aquitted. However, this is a horse of a different colour. A close reading of that case indicates that the animal in question there was not a small bird, but, in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.
Counsel finally submits that the word “small” in the title Small Birds Act refers not to “Birds” but to “Act”, making it The Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O. 1960, c. 725 is just as small. If pressed, I need only refer to the Small Loans Act, R.S.O. 1960, c. 727 which is twice as large as the Large Birds Act.
It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two-legged, feather-covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals with feathers as well. Counsel submits that having regard to the purpose of the statute only small animals “naturally covered” with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase “naturally covered” would have been expressly inserted just as “Long” was inserted in the Longshoreman’s Act.
Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and a fortiori, a pony with feathers on its back is a small bird.
Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?
Appeal allowed.
FINAL DECISION-MAKING AUTHORITY IN JOINT LEGAL CUSTODY
January 6, 2011 § 3 Comments
MCA § 93-5-24 provides that the joint legal custodians shall “share the decison-making rights, the responsibilities and the authority relating to the health, education and welfare of a child,” and “An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with each other in the exercise of the decision-making rights, responsibilities and authority.”
The problem is that the statute does not delineate exactly how final decisions will be made after the conferring is done. Common sense tells us that there can not be a committee of two. What if, for instance, the father demands that the child attend military school in Chattanooga, but the mother is just as adamant that the child attend Lamar in Meridian? Or how about if one parent believes that the child should have botox injections for cosmetic reasons and the other is opposed? Or one parent takes the position that the child should take ADHD medication, and the other is opposed to medication? Or one wants the child to have the usual childhood immunizations and the other does not out of fear of autism. The statute does not inform us how those ties or any others, some involving important decisions about the children, will be broken.
In this district, both chancellors take the position that joint legal custody is not in the best interest of the child and will not be approved unless there is some form of a tie-breaker provision.
Some lawyers try to skirt the problem by providing in a PSA that the parent with physical custody at the time will have final decision-making authority. This approach does not work, however, because the effect of life-affecting decisions like those enumerated above carry over into the other parent’s custodial time in shared physical custody arrangements.
Most PSA’s address the issue by providing that one parent or the other will have final decision-making, or tie-breaking, authority. That still means that both parents must confer, consult and participate in the decision-making process as required by the statute. Although the physical custodian is the most logical tie-breaker, I had a case once where the mother had sole physical custody and the parents shared joint legal custody of a paraplegic child. They agreed that the father would have final decision-making authority because he would continue to be responsible to transport the child to and from school, to and from all of his activities and family and church events, and to and from Birmingham for numerous and frequent medical visits.
It is okay to allocate responsibility between the parents, as, for instance, where the father is going to pay for private school, and the parties agree that he will have final decision-making authority as to the child’s education, with the mother to make final decisons as to the health and welfare. In such a case, it would be wise to define exactly what the scope of authority would be as to education, since the three realms of decison-making overlap somewhat. For instance: “Father shall have the final decision-making authority as to which school the child will attend in Lauderdale County so long as both parties reside therein; all other decisions will be finally decided by the mother.”
In cases where one parent is the sole physical custodian, the case of Clements v Young, 481 So.2d 263, 266 (Miss. 1985), offers a little help and guidance. In that case, the Mississippi Supreme Court stated:
“Our law necessarily provides that the award of custody to a parent incident to a separation or divorce vests in the custodial parent the right to make, and responsibility for making, day to day decisions regarding the care and welfare of the children. Except as otherwise agreed by the parties in writing, the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial spouse though not spelled out in detail in a separation agreement or custody decree.”
Clements does not address what happens where the parties “otherwise agree in writing,” as where they agree to joint legal custody with one to have sole custody. Have they “otherwise agreed” that the sole physical custodian will no longer have final decision authority, or is it presumed that the physical custodian will have it? Clements involved other issues and so is distinguishable on its facts. In my opinion, the best practice where one parent is the physical custodian and they share joint legal custody is simply to name the final decision-maker in the PSA.
An important reminder: I posted before about the danger of relying on the term “primary physical custody.” Designation of one parent as “primary” physical or legal custodian has no legal meaning whatsoever, and will not impart decision-making authority.
LOST WILLS
January 5, 2011 § 5 Comments
Does it ever happen to you that an heir shows up in your office and says something to the effect that “Mom says you kept the original of dad’s will. All we have is this [dogeared, coffee-stained, footprinted] copy,” and hands you a bedraggled handful of papyrus? Well, if it hasn’t, it will.
Of course, you did not retain the original [for you younger attorneys: NEVER keep the original of your client’s will]. So what will you do with this forlorn sheaf?
You will probate it. Yes, probate it. But it’s only a copy, you say; and the original will is required to be produced (See, MCA § 91-7-5, -7 and -31). True. But it is possible to probate a lost or destroyed will.
In the case of Estate of Mitchell, 623 So.2d 274, 275 (Miss. 1993), the court said:
The law regarding admission into probate of a lost will is discussed at length in Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938). Sidney’s Estate sets forth the elements necessary to probate a copy of a lost will are: (1) the proof of the existence of the will; (2) evidence of its loss or destruction; and (3) proof of its contents. Sidney’s Estate, 183 Miss. at 675-76, 184 So. at 807. A fourth element has been added: (4) that the testator did not destroy the will with the intent to revoke it. Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983). This last element, which is most central to this case, arose from the theory that when a will cannot be found following the death of a testator and it can be shown that the testator was the last person in possession of the will, there arises a rebuttable presumption of revocation.
Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi … 57 Am.Jur., Wills, § 551. Adams v. Davis, 233 Miss. 228, 237, 102 So.2d 190, 193 (1958); Phinizee v. Alexander, 210 Miss. 196, 200, 49 So.2d 250, 252 (1950); Horner, Probate Prac. & Est. § 79 (4th ed.). This presumption extends to all duplicate copies, even executed duplicates. Adams, 233 Miss. at 237, 102 So.2d at 194; Phinizee, 210 Miss. at 199, 49 So.2d at 252; Horner § 79.
The proponent of the will must prove each of these elements by clear and convincing evidence. See Estate of Leggett v. Smith, 584 So.2d 400, 403 (Miss.1991); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Adams, 233 Miss. at 237-38, 102 So.2d at 194. (“The intent to revoke must appear clearly and unequivocally.” Sidney’s Estate, 183 Miss. at 676, 184 So. at 807. “The policy of the law requires such contents to be established by the clearest, most convincing and satisfactory proof.” Robert A. Weems, Wills and Estates § 7-17, p. 216 (1983).
Your petition will have to recite on personal knowledge of the petitioner, or supported by affidavits on personal knowledge, all four of the required factors.
You should probate the lost or destroyed will in solemn form. To do otherwise gives an unfair advantage to the proponent of the missing document. Probate in solemn form also seals off the protests of other interested parties and, as a practical matter, takes you directly to the hearing with notice that you will likely wind up in anyway.
At hearing, you will need to prove your four elements by clear and convincing evidence.
- Proving the existence of the will is not usually much of a problem. You will have that copy, or, if no copy is available, someone with personal knowledge can testify that the will did exist. MRE 1001-1008 would appear to govern the issue. As Rule 1008 states, the issue is for the trier of fact to determine.
- Loss of the will can be proven by testimony that the decedent kept his or her papers in a particular place and that an exhaustive search has not turned it up, or that the cabinet where the will was kept was destroyed by fire, or that it was in a repository that has now vanished.
- The “Dead Man’s Statute” has been supplanted by MRE 803(3), so proof of its contents should not be a major obstacle, so long as there is a witness with personal knowledge.
- And the same hearsay exception would apply to the testator’s destruction or intended revocation.
An interesting wrinkle appears in an ancient case, Vining v. Hall, 40 Miss. 83 (Miss. Err. & App. 1866), that is still good law. In Vining, there was conflicting and inconclusive testimony about the contents of the lost or destroyed will, but no disagreement that it included a revocation clause expressly revoking all prior wills. The court held that the revocation clause was effective despite the fact that the dispositive terms of the will could not be determined. See, Weems, Wills and Administration of Estates in Mississippi, Third Ed., § 7.15.
DO I NEED TO OPEN AN ESTATE TO DO THAT?
January 4, 2011 § 4 Comments
Seated in your office are the decedent’s adult children, asking your advice about daddy’s estate, which consisted of $5,000 in a bank account, a high-mileage car, and his last paycheck from Lockheed, which they have yet to receive. They candidly tell you that they don’t have a lot of money to pay to probate an estate.
I know what you’re thinking: “Oh, well. One more low-to-no fee estate won’t kill me.”
But hold on a minute. Take time out to check out these statutes: MCA §§ 91-7-322 and 323, and 81-5-63 and 81-12-143. You’ll see that they allow you with some simple paperwork to get your clients the money and title to the car without the necessity of opening an estate.
MCA § 91-7-322 and 81-5-63 allows the bank to pay up to $12,500 to the decedent’s “successors” as defined in the statute, with the filing of a simple affidavit. The same section would authorize issuance of title to the car.
MCA § 91-7-323 allows the former employer to pay any outstanding wages directly to the successors.
MCA § 81-12 143 authorizes a savings and loan to pay a savings account to successors without an administration, provided that they execute a bond.
THE SOUND AND THE FURY OF THE UNVANQUISHED POSTMAN
January 1, 2011 § 1 Comment
In December 1924, a postal inspector from Corinth, Miss., leveled a series of charges against the postmaster at the University of Mississippi. “You mistreat mail of all classes,” he wrote, “including registered mail; … you have thrown mail with return postage guaranteed and all other classes into the garbage can by the side entrance,” and “some patrons have gone to this garbage can to get their magazines.”
The slothful postmaster was William Faulkner. He had accepted the position in 1921 while trying to establish himself as a writer, but he spent most of his time in the back of the office, as far as possible from the service windows, in what he called the “reading room.” When he wasn’t reading or writing there he was playing bridge with friends; he would rise grumpily only when a patron rapped on the glass with a coin.
It was a brief career. Shortly after the inspector’s complaint, Faulkner wrote to the postmaster general: “As long as I live under the capitalistic system, I expect to have my life influenced by the demands of moneyed people. But I will be damned if I propose to be at the beck and call of every itinerant scoundrel who has two cents to invest in a postage stamp. This, sir, is my resignation.”
Thanks to Futility Closet.
