Trial Factors aka “Checklists”
March 6, 2018 § Leave a comment
The MSSC threw down the gauntlet in 1983 in Albright v. Albright, mandating that trial judges must make findings of fact as to certain specific factors when making an award of child custody.
Since then, the number of factor-driven cases has multiplied. There are 13 now, by my count.
I call it “Trial by checklist” because you can reduce every list of factors to a convenient checklist that you can use at trial. I suggest you copy these checklists and have them handy in your trial materials. Build the outline of your client’s case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that, because failure to make findings with respect to the applicable factors is cause for remand — an expensive do-over. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
I try to remind folks twice a year about the importance of using checklists in making your cases.
Can Supersedeas Stay a Child-Support Order?
March 5, 2018 § Leave a comment
Kasey Hamp sued Bernardrick McKinney through DHS for paternity and child support. McKinney, a professional NFL player, was adjudged to be the father of Hamp’s child and was ordered to pay child support. Later, after McKinney received a signing bonus and increased income, Hamp filed for modification.
Following a hearing, the chancellor ordered an increase in child support and a lump-sum back-payment. McKinney appealed and posted a supersedeas bond. On advice of counsel, he continued paying the pre-modification amount of child support and Hamp filed a contempt action. In his defense, McKinney asserted the supersedeas bond. The chancellor found that the bond was not effective to stay the contempt proceeding because: (a) the ongoing child-support obligation was not a money judgment as provided in MRAP 8(a); and (b) McKinney’s bond was for $28,434.73, which the judge found to be some $8,000 less than the rule’s 125% requirement. McKinney appealed.
On the issue whether a supersedeas bond stays an ongoing obligation to pay child support, the MSSC held that it does not in the case of McKinney v. Hamp decided February 8, 2018. Justice Maxwell wrote for the majority:
¶37. This Court has held that “[t]he amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal.” In re Estate of Taylor, 539 So. 2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved, execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey, 219 Miss. 720, 723, 69 So. 2d 844, 844-45 (1954).
¶38. In a judicial-performance case, this Court has made very clear that a supersedeas bond stays execution of a child-support-modification order. Miss. Comm’n on Judicial Performance v. Littlejohn, 172 So. 3d 1157, 1160 (Miss. 2015). Indeed, this Court found a chancellor abused his power and committed misconduct by holding a parent in contempt for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor was suspended without payor disregarding “the clear wording” of Rule 8(a) and this Court’s application of it in Lindsey. Littlejohn, 172 So. 3d at 1160, 1163.
¶39. There is, however, a significant distinction between Littlejohn and this case. That distinction is the difference in the type of child-support payments appealed. In Littlejohn, a child-support order was modified and the father was required to pay $15,000 for an automobile for his child and $1,750 in attorney’s fees—together, a definitive money judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule 8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a definitive money judgment. And this Court has never squarely addressed whether prospective, monthly, child-support obligations can be stayed by a supersedeas bond under
Rule 8(a).
¶40. This Court has, however, recognized the need for continued, monthly, child-support payments to provide support for the child during the pendency of an appeal. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960). In Petersen, the chancellor entered a decree awarding monthly, child-support payments but stated that such payments “should remain in effect pending the appeal with supersedeas . . . .” Petersen, 238 Miss. at 198-99, 118 So. 2d at 304. And this Court held the chancellor was clearly justified in requiring continued, monthly, child-support payments pending an appeal with supersedeas. Id. But until today, this Court has not addressed whether prospective, monthly child-support
payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure 8(a) supersedeas bond. [Fn 8]
[Fn 8] The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord, 94-CA-00947-COA, 94-CA-01158-COA (Miss. Ct. App. Sep. 17, 1996).
¶41. Under Mississippi law, child-support payments become fixed and vested when the payments become due and unpaid. Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986). And as each payment comes due, it becomes “a judgment” against the noncustodial parent. Id. (citations omitted). Once fixed and vested, those judgments cannot be modified. See Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980); see also Cunliffe v. Swartzfager, 437 So. 2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive, one-time, child-support payments can be reduced to money judgments, a Rule 8(a) supersedeas bond can protect an appellee. But that is not necessarily the case for prospective,
monthly, child-support obligations. We find these are not money judgments and cannot be stayed by a Rule 8(a) supersedeas bond.
¶42. But this does not necessarily mean McKinney could not have sought a supersedeas bond. However, to do so, he would have had to make an application to the chancellor for a stay under Mississippi Rule of Appellate Procedure 8(b). [Fn omitted] And the chancellor, not the clerk, would have to decide whether to approve the bond, in light of an opposing party contesting the bond.
¶43. Turning to this case, we find the chancellor’s order modifying the monthly child support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to make the increased, monthly, child-support payments. But, as to the retroactive child-support award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas bond would adequately protect Hamp, and ultimately K.M., during the appeal.
¶44. We therefore affirm the chancellor’s ruling that prospective, monthly, child-support obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond. However, we reverse and render the chancellor’s decision that a Rule 8(a) supersedeas bond could not stay execution on the retroactive child support.
The court went on to reverse the chancellor’s contempt findings based on McKinney’s belief that he was protected by the supersedeas bond.
Some highlights:
- This case confirms what most chancellors have considered MRAP 8 to mean: that ongoing child support obligation is not stayed by supersedeas.
- This case also confirms what most chancellors have considered MRAP to mean vis a vis money judgments for a fixed sum: that a supersedeas bond will, indeed, stay judgment.
- If there is no agreement between the parties over the amount of the bond or whether it should be granted at all, the matter must be resolved by the chancellor. The clerk’s approval of a bond in that circumstance would be ineffective (See ¶42, above).
- Don’t put too much stock in the majority’s reversal of the contempt finding in this case. There were some particular facts that led to that conclusion (See ¶¶45-48). Justice Beam’s dissent (¶¶54-65) eloquently spells out the ample authority that casts considerable doubt on the defense of “I was Only Relying on my Attorney’s Advice.”
“Quote Unquote”
March 2, 2018 § 1 Comment
“Patience, n. A minor form of despair, disguised as a virtue.” — Ambrose Bierce
“There is, however, a limit at which forbearance ceases to be a virtue.” — Edmund Burke
“It is easy finding reasons why other folks should be patient.” — George Eliot
The Need for Findings
February 28, 2018 § 1 Comment
There’s not a whole lot of meat on the bone in the COA’s decision of November 7, 2017, in Sullivan v. Sullivan.
Janice and Wayne Sullivan agreed to a divorce on the ground of irreconcilable differences, with the chancellor to decide equitable distribution and alimony. Following a trial, the judge rendered an oral ruling, but there was no transcript of it. The final judgment did not reference the court’s ruling, and it did not mention the Ferguson or Armstrong factors.
On appeal the COA reversed and remanded for the court to analyze the proof through the Ferguson factors, and to clarify whether an alimony award was lump-sum or periodic.
It didn’t have to be that way. Here are some preventative steps you can take in a scenario such as this:
- If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
- If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
- If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
- Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”
Visitation Behind Bars
February 27, 2018 § 1 Comment
Nolana Griffin, a school teacher, was convicted of having sexual relations with several of her teenaged students, and was sentenced to Parchman. After a couple of years, her husband, Chad, sued for divorce and, following a contested trial, he was granted both the divorce and custody of the parties’ four daughters, one of whom had Asperger’s Syndrome. The children ranged in age from 15 to 7. The chancellor also found that regular visitation with Nolana was not in the children’s best interest. The chancellor offered five bases for his decision:
- All of the visitation would have to occur at Nolana’s prison;
- The prison is 4 1/2 hours distant from the children’s residence;
- Any visit would require that all parties, including the children, would have to be searched before entering;
- The visitation area is open and may expose the children to violent offenders;
- The best interest of the children would not be served by exposing them to these conditions.
Nolana appealed.
In Griffin v. Griffin, a MSSC decision dated February 1, 2018, the court affirmed. Justice Maxwell for the unanimous court:
¶14. We have never addressed head-on the impact of a noncustodial parent’s incarceration on his or her right to visitation. The issue was raised but not reached in Christian v. Wheat. Christian, 876 So. 2d at 346. In dicta, however, we did note that “[j]urisdictions which have reached the question of visitation rights of incarcerated parents generally express that incarceration, alone, is not sufficient to preclude visitation.” Id. [Fn omitted] See also, e.g., Davis v. Davis, 648 N.Y.S.2d 742, 743 (N.Y. App. Div. 1996) (“It is generally presumed to be in a child’s best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate.”). Today, we follow those jurisdictions and hold that incarceration, in and of itself, is not sufficient to overcome the presumption that a noncustodial parent is entitled to visitation.
¶15. Applying this holding, we find no reversible error in the chancellor’s decision. Contrary to Nolana’s assertion, the chancellor did not base his visitation decision solely on the fact Nolana is incarcerated. Instead, with the “paramount concern” in mind, he found that, based on the circumstances, the presumption in favor of visitation had been overcome and that court-ordered, every-other-week visitation with Nolana was not in the children’s best interest. He supported his decision with substantial evidence that judge-mandated visitation may be physically and emotionally harmful to the girls. The chancellor was swayed by a variety of factors. One was the physical distance the girls would have to travel twice each month (eight to nine hours round trip). Others included the requirement of a pat-down physical search, the location of the jail visits (in a communal room where potentially violent offenders were also visiting family), the oldest daughter’s social disability (Asperger’s Syndrome), and the fact Nolana’s daughters had not seen their mother since her arrest and much less that she was even incarcerated.
¶16. We note the chancellor’s decision is in line with other courts that have denied prison visitation in similar circumstances. Recently, a New York family court—after emphasizing that the law presumes visitation is in the child’s best interest, even when the noncustodial parent is incarcerated—denied an incarcerated father visitation with his son with autism, a social disorder related to Asperger’s Syndrome. E.A. v. R.A., 56 N.Y.S.3d 815, 820 (N.Y. Fam. Ct. 2017). The court found the presumption in favor of visitation had been rebutted by evidence of social stress the prison visit may have on his son, the fact the child may be stripsearched, the four-hour drive, and that the son had not seen his father since his incarceration. Id. See also Davis, 628 N.Y.S.2d at 743 (affirming the family court’s decision to deny an incarcerated father visitation based on the “militating evidence” prison was three-and-a-half hours away and child had medical condition making it unwise for him to travel away from
home frequently).
¶17. In Louisiana, an incarcerated father was likewise denied visitation. Davis v. Davis, 494 So. 2d 1315, 1318 (1986) (La. Ct. App. 1986). The father had been sent to prison in Texas for sexually assaulting his children’s twelve-year-old babysitter. Like Nolana, he requested Saturday morning visitation, twice monthly, but was denied. On appeal, the Louisiana Court of Appeals agreed that bi-weekly visitation with their father “would prove traumatic for children of their tender years,” especially considering the distance to be traveled (as in this case, a four-and-a-half hour drive one way), the recentness of the conviction, the security measures the children would undergo, and the children’s relationship to their father’s victim. Id. Thus, the court could not “say that the trial court abused its great discretion in concluding that at this time the children’s best interests would not be served by allowing such visitation.” Id.
¶18. The Louisiana court, however, was quick to caution that it “d[id] not mean to imply that the father has forfeited his right of visitation.” Rather, it viewed the trial court’s ruling “more akin to a suspension of the father’s visitation privileges until such time as it would be easier for the children to cope with the strain inherent in this situation.” Id. “In denying visitation at this time, but allowing the father to correspond with the children,” the appellate court believed the “trial judge has attempted to provide a means for the father to re-establish a relationship with the children gradually.” Id. The hope was to work toward a situation “where limited visitation will prove acceptable.” Id.
¶19. The chancellor here similarly provided a means for Nolana to maintain her relationship with her daughters with the eventual goal being visitation. He granted Nolana substantial phone visitation. She was also to be kept informed by Chad of the goings-on in her children’s lives. And the chancellor encouraged Chad to allow his daughters to visit their mother if and when Chad determined it appropriate.
¶20. This Court has recognized “that children of divorced parents should be encouraged to have a close, affectionate and, under the circumstances, as normal as possible a parent-child relationship.” Cox, 490 So. 2d at 870 (emphasis added). And based on the facts before him, that is what the chancellor tried to do. The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest. See Harrington, 648 So. 2d at 545. Therefore, the chancellor’s
decision is entitled to the “great deference” this Court typically gives chancellors when determining visitation. Newsom, 557 So. 2d at 515.
¶21. Because of this deference, we affirm the divorce decree, which included no court ordered visitation with Nolana.
The only rule that can be drawn from this is that every parent is presumptively entitled to visitation, and incarceration alone does not overcome that presumption. To limit visitation with a jailed parent, there must be facts, as here, that support a finding that the conditions of visitation are against the best interest of the children and warrant limitation or suspension of visitation. There can be no one-size-fits-all solution. Each case will depend on the conditions of incarceration, the procedures for visitation involving the children, distance and travel conditions, and the children’s specific needs.
If You Want it You Have to Ask for It
February 26, 2018 § 1 Comment
Aside from the fact that it illustrates what a forlorn and hapless task it can be to file and prosecute one’s own appeal, the COA’s decision in Elkins v. Elkins, handed down February 6, 2018, is a reminder that your pleadings must include ” … a short and plain statement of the relief to which he deems himself entitled …” and ” … a demand for judgment for the relief to which he deems himself entitled.” (MRCP 8(a)(1) and (2)).
Kimberlana Elkins, representing herself, appealed from a judgment of divorce that included an adjudication of contempt against her ex-husband, Robert. On a R59 motion, the trial judge had reduced the adjudicated contempt arrearage, and Kimberlana claimed on appeal that the reduction was error. Judge Barnes wrote for a unanimous court:
¶26. In the judgment of divorce, the chancellor found that Robert owed an arrearage of $42,604.47. He further held that Robert failed to pay sums accruing from the order of contempt; so a judgment of $65,895.96 was entered, with an interest rate of 3% annually until paid in full. Robert filed a motion to reconsider the judgment, and the court determined that because Kimberlana had not requested temporary child support in her initial complaint for divorce filed in July 2010, the court did not have the authority to order such and the temporary order was void ab initio. Therefore, the judgment was modified, and the amount of arrearage owed by Robert was decreased to $23,291.49. Kimberlana now claims the court erred in not enforcing the December 27, 2013 order, which awarded her the $42,604.47 in arrearage, and decreasing the amount of arrearage owed.
¶27. “Child support may not be awarded unless it is requested in the pleadings, tried by consent, or the court notifies the parties that the issue will be addressed.” Deborah H. Bell, Bell on Mississippi Family Law § 19.02[1][b][ii], at 468 (2005). As the chancery court noted in its order, Kimberlana’s complaint did not contain any plea for child support or maintenance. In her July 2010 complaint, Kimberlana simply requested that the chancery court grant her a divorce based on irreconcilable differences and additionally stated: “If mistaken in the relief prayed, [she] prays for such further general relief and equitable relief to which she is entitled to receive.” Furthermore, the record reflects that Robert was not provided an opportunity to object to the chancellor’s award of temporary support, as he was not present at the hearing. A month after the order was entered, Robert filed a motion to set aside the temporary order, claiming that he was not notified of the proceedings. In Massey v. Huggins, 799 So. 2d 902, 910-11 (¶¶33-34) (Miss. Ct. App. 2001), we reversed a chancery court’s award of child support, as the appellant “was not provided notice that she ‘might be required to defend a claim of child support’ nor was there a ‘suggestion in the record that support payments from [the appellant] were even being contemplated by the court on its own or asked for by’ [the appellee].” (Quoting Morris v. Morris, 359 So. 2d 1138, 1139 (Miss. 1978); but cf. Lee v. Stewart, 724 So. 2d 1093, 1095 (¶4) (Miss. Ct. App. 1998) (Although child support was not requested in the pleadings, the award of child support was affirmed, as the record indicated the father did not object to the issue at trial, “but instead elected to argue on its merits”; thus, “th[e] issue was tried with [his] implied consent.”).
¶28. We find no error in the chancery court’s findings, as child support was not included in the pleading, and there was no evidence that the issue was tried by consent.
In simple terms: Robert could not be held liable for sums that he never had notice to defend against. That’s the due-process side of the coin. And I agree in this case that the chancellor could not go back and create a retroactive obligation absent a prayer for that relief and an opportunity to defend.
To change the facts slightly, I wonder whether a claim for child custody, standing alone, is not enough to support a claim for the support and maintenance that would be in the best interest of and for the benefit of the child. Say in a divorce complaint, all that is prayed for is custody; there is no prayer for child support. May the chancellor, over objection, award child support, medical support, and maintenance? I think MCA 93-5-23 authorizes it. See also Steen v. Steen, 641 So.2d 1167, 1171 (Miss. 1994); Robinson v. Robinson, 554 So.2d 300, 304 (Miss. 1990).
Reprise: No Child Support is a No-No
February 23, 2018 § 4 Comments
Reprise replays posts from the past that you may find useful today.
NON-SUPPORT AGREEMENTS
March 25, 2013 § 1 Comment
I am regularly presented PSA’s and agreed judgments that include a provision that the non-custodial parent will not pay any child support to the custodian. I don’t like it, for reasons that I have expounded on here before.
In my opinion, such agreements are not only undesirable, they are void.
The case of Houck v. Ousterhout, 861 So.2d 1000 (Miss. 2003) may be dispositive. Timothy James Houck and his former wife, Guyolyn Ousterhout, had been involved in various modifications and contempt actions as their children moved in varying numbers from household to household. In 1996, after several inconclusive skirmishes in court, they entered into an agreed judgment that recited that “[m]aterial changes ha[d] occurred in the life of Timothy … which prevent[ed] him from being able to pay his child support as directed. They agreed that Timothy would pay Guyolyn $1,500 in exchange for her waiver of any claim to “past, present and future child support payments,” and further that they agreed “to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”
Notwithstanding the agreement, the parties found themselves yet again in litigation, in which Guyolyn asked, among other things, for nullification of the agreed order. The chancellor did void the agreed judgment as against public policy, and awarded Guyolyn a judgment against Timothy in the sum of $89,848.65. Timothy appealed.
The MSSC affirmed:
¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).
¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes ‘a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.
¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.). [Emphasis added]
To me, the principle is crystal clear: the chancellor can not approve an agreement that relieves a parent of the duty to support his or her child, either prospectively or retroactively.
What Does MRE 105 Mean in Chancery?
February 21, 2018 § Leave a comment
MRE 105 allows the trial judge to admit evidence for a limited purpose when that evidence is otherwise objectionable. Here is the entire text of the rule:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Juries are seldom a factor in chancery, so let’s focus on the rule absent that aspect. In a bench trial, you can ignore the phrase “and instruct the jury accordingly.”
Boiled down to its bench-trial essence, then, you must give the judge the opportunity on the record in the course of the proceeding to restrict the evidence to its proper scope, and you do that by making a timely request for the judge to do so.
The rule specifically requires you to request the court to limit the party or purpose. Most of the cases on point are criminal cases, but they are instructive. In Moss v. State, 977 So.2d 1201 (Miss. 2007), the court held that the trial judge is not required to give a limiting instruction sua sponte because the burden to request it is on counsel by the express language of the rule. Similar holdings have been reached in civil cases. Owens v. Kelly, 191 So.3d 738 (Miss. App. 2015); Gilmer v. Morris Goodman Builders, Inc., 131 So.3d 1203 (Miss. App. 2013). There are many other cases that reach the same result.
One civil case that I found on the rule illustrates how it could play out in a non-criminal context. In a timber trespass case, the defendant claimed that it was error for the trial court to exclude testimony of conversations between him and his father that were intended to establish that the defendant believed in good faith that he had title to the property in question. The testimony was hearsay under MRE 801 and 802 insofar as it was offered as substantive testimony to rebut the plaintiffs’ claim of ownership. It would have been admissible, however, to rebut the plaintiffs’ claim for statutory damages based on the defendant’s good-faith belief based on the conversations. Since the defendant’s attorney never made a request per MRE 105, however, the trial judge could not be put in error for excluding the evidence. Taylor v. Galloway, 105 So.3d 1160 (Miss. App. 2012).
The request to limit the scope of the evidence must be made. If you don’t, you can’t challenge the chancellor’s ruling on appeal.
How Much is Valuation Worth?
February 20, 2018 § 1 Comment
Valuation, valuation, valuation. It’s a subject I’ve talked about here often. I started to link some of my posts on the subject, but, instead, let me simply ask that you enter the word “valuation” above in the Search box and see for yourself the plethora of posts that pop up.
Most of the cases on which I have commented went up on a complaint by the disappointed party that the chancellor didn’t value assets correctly, or didn’t give proper weight to evidence presented, or whatever. The overwhelming number of cases decided on appeal say the same thing: the trial judge will do the best she can do with what evidence you present, so you’d better make a decent record.
The latest version of this old, sad tale comes to us courtesy of Mr. Timothy Benton, who appealed from a judgment assessing him with alimony and child support that he says are not supported by the evidence.
Tim and his wife, Beth were married in 2000. Tim was owner of two businesses, Tim Benton Tree Service and Benton Green, LLC, the income from which supported the family. Beth helped in the businesses from time to time, but she primarily cared for the parties’ four children.
Tim and Beth separated in 2013, and Beth filed for divorce in November, 2014, on the grounds of desertion, HCIT, and ID.
Following a temporary hearing on January 12, 2015, which both parties attended, Beth was awarded custody and Tim was ordered to pay her temporary child support of $3,500 and temporary alimony of $1,500. Because neither party could produce their tax returns at the hearing, the court reset the matter for February 18, 2015, with directions to produce them then. In addition, the judge directed Tim to produce any business financial records showing his income and operating expenses. When Tim appeared on the February date, he failed to produce the records, and the court continued the matter to April 6, 2015, with the same directions.
On April 6, 2015, Tim appeared yet again without financial records as directed. His attorney withdrew from representation.
The case proceeded to trial. Beth produced an 8.05 financial statement and some bank statements. Tim had neither 8.05 nor any financial records. The judge based her findings on the meager evidence presented, concluding that Tim had more than $17,000 a month in income. She ordered him to pay $2,500 a month in child support, plus all of the expenses and tuition of private schooling and all medical expenses of the children. The chancellor also ordered Tim to pay $6,000 per month in alimony and granted other financial relief.
Tim lawyered up and filed a R59 motion claiming that he had been unable adequately to represent himself at trial and needed a new trial to present CPA evidence.
Not surprisingly, the chancellor denied the motion, stating that, ” … the burden lied at the feet of the litigants to provide the Court with sufficient evidence in which to value the marital assets … during the course of the litigation [Tim] was afforded ample opportunity and time on multiple occasions to provide supplemental evidence, which he did not do.”
Tim appealed.
In Benton v. Benton, decided January 23, 2018, the COA affirmed. On the issue of the valuation used by the chancellor, Judge Irving wrote:
¶10. Tim argues that the chancery court erred in failing to value all material marital assets, including Benton Tree Services, and in rendering decisions of alimony and child-support awards accordingly. In response, Beth argues that the court properly distributed the marital assets in light of the fact that Tim refused to comply with the court’s orders to produce financial records. Thus, Beth maintains that the court’s subsequent alimony and child support awards were proper.
¶11. The Mississippi Supreme Court has stated that “the foundational step to make an equitable distribution of marital assets is to determine the value of those assets based on competent proof.” Dunaway v. Dunaway, 749 So. 2d 1112, 1118 (¶14) (Miss. Ct. App. 1999) (citing Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994)). “Nevertheless, it is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried.” Id. “Where a party fails to provide accurate information, or cooperate in the valuation of assets, the chancellor is entitled to proceed on the best information available.” Stribling v. Stribling, 906 So. 2d 863, 870 (¶25) (Miss. Ct. App. 2005) citation omitted).
¶12. Here, it is undisputed that the chancellor did not value Tim’s businesses. However, we refuse to hold her in error because of a party’s failure to cooperate in providing the necessary documents for proper valuation, and we reiterate the applicable caselaw set forth by the chancery court in its order denying Tim’s motion for a new trial. See Jenkins v. Jenkins, 67 So. 3d 5, 13 (¶21) (Miss. Ct. App. 2011) (declining to find a chancellor in error for failing to conduct a marital-property valuation where the parties failed to provide the relevant evidence); Common v. Common, 42 So. 3d 59, 63 (¶¶12-13) (Miss. Ct. App. 2010) (holding that a chancellor was not in error for valuing marital assets solely from the parties’ 8.05 financial statements, because the parties failed to provide the necessary evidence, and further holding that the former husband could not “now complain that the chancellor’s valuations [were] unfair when no reliable evidence of the value of the property was presented at trial”); Dunaway, 749 So. 2d at 1121 (¶28) (holding that, “[f]aced with proof that was far less than ideal, the chancellor made a valuation of the marital estate that finds some support in the record,” and refusing to hold a chancellor in error due to the former husband’s failure to produce evidence). It is this Court’s opinion that the chancellor did the best she could with the little information presented to her, and that she did not abuse her discretion. Accordingly, we affirm.
Not much to add, except this:
- It is always a losing, self-destructive strategy to play cat-and-mouse games with financial proof, withholding all or some. The chancellor’s attitude and reaction in this case is about what one should expect in the face of repeated failure to present financial records, especially after having been ordered by the court to do so.
- Forgive me for repeating what I often have said here: it is up to you to make a record of financial values. It’s not the judge’s job. Don’t expect your opponent to do it for you. It’s “at the feet of the litigants,” as the learned chancellor so eloquently put it.
