“Quote Unquote”
January 6, 2017 § 2 Comments
“Democracy is like a tambourine — not everybody can be trusted with it.” — John Oliver
“[America] is where the experiment is unfolding. This is really where the races confront one another, where the classes, where the genders, where even the sexual orientations confront one another. This is the real laboratory of democracy.” — Leonard Cohen
“Fascism is a more natural governmental condition than democracy. Democracy is a grace. It’s something essentially splendid because it’s not all routine or automatic. Fascism goes back to our infancy and childhood, where we were always told how to live.” — Norman Mailer
Can You Garnish SS Benefits for Child Support and Alimony?
January 5, 2017 § 7 Comments
Conventional wisdom is what is generally accepted as the truth when no one has bothered to research the actual truth. Conventional wisdom has long dictated that you can’t garnish Social Security benefits to collect child support or alimony.
But here’s a direct quote from the Social Security Administration (SSA) FAQ site on the point:
Can my Social Security benefits be garnished for alimony, child support or restitution?
We can withhold Social Security benefits to enforce your legal obligation to pay child support, alimony or restitution. State laws determine a valid garnishment order. By law, we garnish current and continuing monthly benefits. We do not make retroactive adjustments.
You cannot appeal to Social Security for implementing garnishment orders. If you disagree with the garnishment, contact an attorney or representative where the court issued the order.
From that, I take it that: (1) the garnishment is limited to current benefits, and lump-sum payments for past benefits are apparently not garnishable; (2) the garnishment is done according to state law, and is subject to the federally-imposed limits (which are high for child support, as pointed out below); and (3) if you think the garnishment order is wrong procedurally or substantively, your remedy is in the state court that issued it, and Social Security will decline to help you with that.
Side note: I wonder whether a lump-sum benefit expected but not yet received is subject to garnishment? In other words, SSA will not reach back and retroactively “adjust” a lump-sum benefit already paid, which is understandable; but if that lump-sum payment is in process but has not yet been paid, may it, too, be garnished?
It’s not stated above, but I understand that neither alimony nor child support may be taken from an SSI check.
Federal law limits garnishment in most cases to 25% of disposable income. When it comes to child support, though, garnishment may be as much as 50-60%. A previous post discussing child-support garnishment is at this link.
In a recent case in another district, the ex-husband did not appear for his divorce hearing, and was ordered by the chancellor in the divorce judgment to pay $200 a month alimony to his ex. The wife’s attorney had the court enter an “Order for Withholding” contemporaneously with the judgment. The withholding order specifically directed that the alimony be withheld from the husband’s SS benefits. It also directed withholding by “any payer of the obligor.” A certified copy of the order was sent to SSA.
Two weeks later SSA sent a letter to the attorney documenting that the amount directed was to be withheld from the husband’s SS benefits, effective in the following month. Although the SSA did agree to withhold the amount directed by the court, it did point out that the amount withheld is limited by federal law. What that means to you is that the 25% limitation for alimony, and 50-60% limitation for child support, may mean a smaller recovery for you in relatively big-dollar cases.
Note that the lawyer in this case prepared and presented a withholding order rather than a formal writ of garnishment, and SSA honored it. That tells me that if you obtain a court-ordered withholding order in any form SSA will honor it. It’s up to the obligor to complain to the state court about the procedure that was used.
Oh, and for those of you who haven’t dealt with SSA recently, their response time in my experience is lightning-fast in all but disability cases, and accurate. It’s a far cry from even 10 years ago when SSA took forever to respond with inaccurate and confusing information that would take months to correct. Your experience may vary.
Here is yet another avenue available to you to make your clients happy. Remember: when you save or make your clients money, they love you; when you cost them money, they hate you. Whether they love or hate you, they will tell all their friends and relatives about it. You get to decide what kind of news they spread around about you.
Thanks to Attorney Christopher Tabb of Brandon for the factual information; the editorial comments are my own
New Supreme Court Web Site
January 4, 2017 § 2 Comments
The MSSC has redesigned its web site. The new site is at this link.
The new site is allegedly mobile-friendly. I say “allegedly” because I have not checked that out myself.
New Year’s Revolution
January 3, 2017 § 1 Comment
The new year. A time when one chapter is closed and another is opened, with 365 glorious blank pages on which you can write the next installment of your life. It’s a time when you can change the plot, add and subtract characters, and even make your hero (you) even more phenomenal.
Most people think in terms of New Year’s resolutions. Those are the seldom-kept self-promises that most people think will somehow turn their lives around.
Why not think instead in terms of a New Year’s Revolution. Declare your independence from some of the old ways of doing things and adopt a new constitution that spells out better, more effective ways.
Here is a handful, just to get you started:
- Be more efficient. Stop putting everything off until you have an insurmountable mountain of work deadlines all coming due at the same time, usually when you can least afford to deflect attention from even more important tasks. Delegate non-essential and repetitive tasks to your staff. Implement a file diary system and follow it diligently. Remember that the only way to eat an elephant is one spoonful at a time. Likewise, you will find your life easier if you break complex tasks down to their component parts, address the parts in order of importance, and let your staff help you. That does not mean that you sacrifice attention to detail. A juggler who pays attention can keep may objects flying at once; a juggler who does not pay attention breaks a lot of plates and loses a lot of paying customers.
- Keep up with your probate practice. Make it your goal in 2017 to be one of those attorneys who file inventories and accountings on time and correctly, who keep up with fiduciaries and wards, and who never let things spin out of control. It takes some attention and the will to create workable systems to manage a probate practice, but it can be done with some effort. It’s not rocket science. Look around you; some of the most ineffective lawyers in other areas somehow manage to stay on top of their probate matters, while even brilliant lawyers get summoned to show cause for not keeping theirs in line. All it takes is the determination to come up with a systematic approach, and then to stick to it.
- Make time for your life. The law is not your life; it’s only a part of your life. If you are being smothered by the demands of your caseload, you probably (1) are not being efficient (see above); or (2) are not doing a good job deciding which cases to accept and which to turn away, so you are overloaded. You need to have leisure time to share with family and friends, to hunt and fish, or take a walk, or work out, or read a good book, or listen to music, or go to a movie.
- Be more professional. The new year is a perfect opportunity to evaluate your professionalism. Ask yourself whether your pleadings and other filings look like they were prepared by a top-notch lawyer, or were slopped together by a hobo. Ask yourself whether the way you greet and interact with your clients reflects sincerity, knowledge, and concern for the client’s best interest, or impatience, sloppiness, and overriding concern for fees. Ask yourself whether your interaction with judges, clerks and courtroom staff is courteous and empathetic, or whether you come across as an arrogant, demanding jackass. Ask yourself whether you treat opposing counsel and party with respect and professional courtesy, or whether you treat them like an enemy to be destroyed. The positives can be polished and improved on. The negatives need to be eliminated.
- Be on time. If lack of punctuality is your vice, take the opportunity of the new year to change your ways. When a lawyer is late in my court, I take it that the lawyer is telling me and everyone else there that whatever she was doing when docket call or hearing started was far more important to her. Being late is being unprofessional. Clients recognize it as such, and so do the other lawyers. Judges certainly do, and unprofessional lawyers find it much more difficult and time-consuming to have their matters concluded by the judge because the judge feels that she has to check to be sure that every i is dotted and every t is crossed. If you are chronically late, you need to come up with some strategies for being timely. Whenever you are late, whether for the first time or twentieth, you need to apologize to the judge and others who were inconvenienced by your tardiness, and give a brief explanation of what held you up.
That’s a meager few, but if you can’t come up with some on your own, they are at least a starting point.
Oh, and every day is another start to the rest of the year. So if you fall short one day you can recover the next.
Every day is an opportunity to be a better person, spouse, parent, lawyer, friend.
Judicial Election Malfunction
December 20, 2016 § 2 Comments
Only last week I posted about some of the vicissitudes of judicial elections. Then I ran across this on the Lowering the Bar blog:
… in Illinois a woman who is currently under indictment for allegedly impersonating a judge was elected Tuesday to be a real judge. The state supreme court had already ruled that Rhonda Crawford could not take the bench if she won, but she got over 74,000 votes anyway.
This all stems from an odd incident in August when a judge let Crawford—then a law clerk—wear her robe one day. That’s fine, but prosecutors allege Crawford also heard and ruled on three cases, which isn’t. As Prof. Steven Lubet has written, this is not quite as crazy as it sounds, because Crawford was not only seeking a judgeship at the time, she had already won the Democratic primary by then and (this being Chicago) was running unopposed in the general election. So that was basically a done deal, and apparently the judge let Crawford get in a little practice beforehand. But even though only minor traffic offenses were involved, this is just not something one can do before actually taking the bench, and the chief judge suspended both of them pending further investigation. The high court later suspended Crawford’s law license as well. Another judge decided to mount a write-in challenge, given the circumstances, and the high court barred Crawford from being sworn in even if she won.
Which she did.
According to Tuesday’s report, the state board of elections has declared Crawford the winner, but the seat will remain vacant because she cannot take office. If she were to lose her license or be convicted of a felony, then she’d be permanently disqualified and the high court could appoint someone to serve until the next election in 2018. Presumably if Crawford were to be cleared before then, she would be able to take the bench, but it isn’t clear when the ethics and criminal charges will be resolved.
It also isn’t clear whether the 74,000 voters who supported Crawford knew about all this, or knew but just didn’t care. Her opponent said she got “several thousand” write-in votes, but conceded it was not nearly enough to win. She said she was shocked by how many of the voters she talked to knew nothing about the scandal, although maybe she shouldn’t have been. “She’s not the winner,” the opponent said, “she’s just the person who got the most votes.” Well, that does make her the winner, actually, it just makes her a winner who can’t accept the job, at least for now.
This is apparently not a significant aberration for Illinois voters. As Lowering the Bar points out:
In 2012, Illinois voters elected Rep. Derrick Smith to another term in the state House although he had not only been indicted but kicked out of the House for taking a $7,000 bribe. (Bonus points: Smith was caught on tape referring to the money as “cheddar” and counting it out one bill at a time.) The House could not expel him a second time for the same offense, so he reclaimed his seat and served for two more years before losing in the next primary. In fact, he continued to serve even after he was convicted in June 2014, possibly because he was not actually sentenced until the following April, by which time he had left office.
Troubling, but it still doesn’t look like a trend. But the way things go nowadays, one never knows.
The Average Valuation Case
December 19, 2016 § 1 Comment
Three things are fundamental when it comes to equitable distribution:
- It’s incumbent on the chancellor to determine the fair market value of the assets before determining division; and
- It’s up to the parties to offer evidence of the values; and
- It’s up to the chancellor to determine the weight and credibility of the evidence.
When Chad and Catherine Potts showed up in court for their divorce in 2015, one item at issue was equitable division of the former marital residence and 40 acres of land. There was no dispute that the property was marital. Catherine presented a 2011 appraisal that valued the property at $138,000, and Chad offered an eight-month-old 2014 appraisal placing the value at $86,000. After quizzing Chad over the discrepancy between the two valuations, the chancellor averaged the two and determined the value to be $112,000.
Dissatisfied, Chad appealed, contending that the judge should have adopted his more recent value. On November 22, 2016, in Potts v. Potts, the COA affirmed. Judge Irving wrote for the unanimous court:
¶8. “Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Pursuant to Ferguson, Chad argues that the chancellor should have relied solely on the appraisal he submitted to the court because it was more recent and, therefore, a more accurate determination of the fair market value of the property at the time of the divorce. He asserts that the chancellor erred by applying an average of both appraisals that were submitted to the court rather than simply applying the most current appraised market value of the property.
¶9. Catherine responds that the chancellor was not in error in determining the value of the marital home and land by averaging the appraisals submitted by the parties. She argues that Chad’s appraisal showed a $52,000 reduction in the fair market value of the property, and no evidence was presented to the court explaining the reduction in value. In addition, she argues that the overall award in the case was fair, reasonable, and equitable.
¶10. “A chancellor is responsible for determining the fair market value of the marital assets.” McKnight v. McKnight, 951 So. 2d 594, 596 (¶6) (Miss. Ct. App. 2007). It appears that the chancellor found it disturbing that the property had lost a considerable amount of its value and he attempted to obtain an explanation to assist in the determination of the property’s fair market value. The chancellor addressed this issue during the proceedings with Chad as follows:
Chancellor: Property values are about the same now as they were three or four years ago?
Chad: Yes, sir.
* * * *
Chancellor: Have you taken away a lot of the improvements to the property in the past few years?
Chad: Taken away? What do you mean?
Chancellor: Are they gone from what they were from, say, 2009 until 2014? Have a bunch of the improvements been gone?
Chad: No, I haven’t.
Chancellor: Are they deteriorated very much, or have you kept them up pretty well?
Chad: Yes, sir, I have.
¶11. There was no evidence offered to support the reduction in value as both appraisals were conducted by the same entity. In addition, Chad testified that the property values were about the same as they were at the time of Catherine’s appraisal, that no improvements had been removed, and that the property had not deteriorated. “To the extent that the evidence on which [a] chancellor base[s] his opinion [is] less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Williams v. Williams, 129 So. 3d 233, 241 (¶31) (Miss. Ct. App. 2013) (citation omitted). Chad failed to give a reasonable explanation for the diminishment in the value of the property from 2011 to 2014, even though property values generally had remained steady. The appraisals were the only evidence submitted to the chancellor to determine the value of the property. As stated, there was a considerable difference in the value arrived at by the two appraisals with no apparent explanation for the difference. The chancellor split the difference, as in his discretion he was permitted to do, to arrive at a reasonable value. McKnight, 951 So. 2d at 596 (¶7). After reviewing the record, we find nothing to suggest that the chancellor abused his discretion. This issue is without merit.
The chancellor actually did Chad a favor by giving him the opportunity to explain why his value of the property had decreased as much as he claimed in the period between the two appraisals. As you can see, Chad didn’t do much to help his cause. By the way, MRE 614 specifically allows the judge to examine any witnesses, and even to call witnesses herself. In this case, I think the appellate result would have been exactly the same whether or not the judge asked any questions.
It’s ingrained in our law that the chancellor may average values when presented with competing valuations. If you want to have a basis to challenge averaging, you have to put some evidence in the record as to why your client’s valuation is the more credible. For instance, had Chad called one or both of the appraisers to testify, that may have produced a different result. In the absence of that testimony, he may perhaps have been able to explain some deterioration of the property or some other factor affecting value negatively. Absence of that kind of proof left a vacuum which the chancellor filled with an average. And it deprived Chad of much to argue on appeal.
Should State Judges be Appointed?
December 15, 2016 § 7 Comments
Phillip Thomas addresses the question of appointed vs. elected judges in a post on his Mississippi Litigation Review and Commentary blog earlier this month. The post was based on a Clarion-Ledger article.
One point of alarm to Mr. Thomas is a survey showing that 50% of judges believed contributions to judicial candidates do influence decisions. As for me, as a state trial judge, I have never been asked to participate in such a survey, or, at least, I have never responded to such a survey if the opportunity were actually presented. So let me say for myself that I do not believe that contributions influence trial court decisions, but I do believe that they certainly do give reasonable people reason to believe that they do. The statistics reported by the Clarion-Ledger bear that out.
One of the many flaws of an elected judiciary is that it forces judges and judicial candidates to have to raise money to run. There is no such thing as a successful election campaign without adequate funds to pay for signs, advertising, and all the other trappings necessary to get one’s name out to the electorate and to energize them to vote. With money comes at least the appearance of influence. Lawyers know and understand that no judicial candidate can solicit or accept contributions directly; that must be done through an independent committee, and the candidate is not supposed to be allowed access to the financial reports. I am confident that the public, however, does not understand this. Some other drawbacks:
- Judicial candidates should only be able to promise to be fair, to be dedicated, and to follow the law. Yet, we hear candidates promising to be tough on crime and criminals, or to be friends of law enforcement, when the job of a judge may demand setting a prisoner loose, or to rule against law enforcement officers. A judge really has no friend other than the law itself when called upon to rule.
- Voters in this part of the world can be swayed to vote against “liberal” judges, and to vote for “conservative” judges without really understanding what those terms imply in practice in our courts. Is a judge “liberal” because he sets aside a clearly erroneous guilty verdict? Or is he doing exactly what the law requires of him? And is she “conservative” because she denies custody to a drug-addicted mother? Or is she doing exactly what the law requires of her?
- PACS have introduced vicious attack ads into our judicial races. Lawyers view them critically and get the misleading and often false accusations. But voters pummeled with attack ad after attack ad often figure that where there’s smoke …
- Our judicial races have become non-partisan in name only. I leave it to you to consider the evidence and draw your own conclusions.
There are other flaws in the judicial election process that you can add for yourself.
So, is the solution to appoint state judges? At first blush, that would appear a viable solution. After all, it works arguably well at the federal level. Life appointment in federal court assures judicial independence. With the advice and consent of the Senate as a check, the federal judiciary remains for the most part balanced. It could possibly work the same way at the state level, but here are some concerns:
- In a one-party system such as we have in Mississippi, the governor pretty much gets to appoint whomever he chooses. A corrupt governor could turn judicial appointments into a cash cow (Note: this statement is purely hypothetical; I am not referring to any past, present, or future governor(s)).
- Favoritism and political affiliation can overrule merit and experience.
- An appointing authority with an agenda can ensure that he or she will have enough votes on the appellate court to enact it. That’s less of an issue at the trial level, but it’s a possibility.
Again, there are other flaws in an appointed system, too.
Some states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel. That does not rule out some of the negatives mentioned above.
Other states have tried to strike a medium by providing for initial election or appointment for a term, and then requiring the incumbent to stand for a “retention” election at the conclusion of the term. If the vote is more than 50% to retain, then the incumbent continues in office; if less than 50%, then he or she stands for re-election with likely opposition. An obvious negative is that it replaces one election with two, with all the concomitant equipage of elections.
Still other states have employed variations on the foregoing themes. All have admirable as well as questionable qualities.
Bottom line is that there is no clear-cut, most advantageous approach.
In 1817, when the debate first arose over what form of judicial selection would be most likely to ensure judicial independence and integrity in our Mississippi courts. The decision back then, and in every successive constitutional debate, has been to retain the elected judiciary.
Reprise: Best Ways to Destroy a Child in the Course of Litigation
December 13, 2016 § 6 Comments
Reprise replays posts from the past that you may find useful today.
TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE
April 20, 2011 § 2 Comments
If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.
Here are some of the most effective:
- Use the children as pawns. Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents. Use denial of visitation or contact as a tool to retaliate. Then tell the child it’s all the other parent’s fault.
- Use the children as spies. Nobody makes as good a spy as an insider. So what if it puts the children in the middle, or makes them feel like traitors, or makes them choose sides. As long as I get what I want, what does it matter, right?
- Deny the other parent access to the children. Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse. Utilized long enough, this tactic can completely estrange the children from the non-custodial parent. This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
- Make the children feel guilty for loving the other parent. This one is guaranteed to create maximum warpage. “Who do you love the most, me or mommy?” Some parents even punish the child for a “wrong” answer.
- Use the children as messengers. Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on. This is an effective way to put the children right in the middle, and to let them in on adult concerns. Gives them something more to worry about, and shifts the responsibility off of the parents.
- Criticize the other parent to the children. It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from? It feels super to get that off your chest — right onto the children.
- Model vindictive and spiteful behavior. “Do as I say, not as I do” is the motto of parents who engage in this behavior. Only problem is, that philosophy has never worked when raising children. But who cares? It’s worth it to take a swipe at the old ex, right?
- Ignore the children’s stress and negative behavior brought on by the litigation. Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.” None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
- Try to “win” the children over by relaxing discipline. Parents who want to be the child’s best friend, not an authority figure. Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent. The fly in this ointment is that after a while the child won’t mind you no matter what. But that’s okay as long as you’re best buds, huh?
- Use the children as targets to vent your own anger and frustration. What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex? Everything.
As lawyers, you can exercise a lot of influence over your client’s behavior. I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.
The Better Chancery Practice Blog 