“Quote Unquote”

October 7, 2016 § 1 Comment

“The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.” – Lord Acton

“I call that mind free, which jealously guards its intellectual rights and powers, which calls no man master, which does not content itself with a passive or hereditary faith, which opens itself to light whencesoever it may come, which receives new truth as an angel from heaven. I call that mind free, which sets no bounds to its love, which is not imprisoned in itself or in a sect, which recognizes in all human beings the image of God and the rights of his children, which delights in virtue and sympathizes with suffering wherever they are seen, which conquers pride, anger, and sloth, and offers itself up a willing victim to the cause of mankind.” – William Ellery Channing,

“What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, our army and our navy. These are not our reliance against tyranny All of those may be turned against us without making us weaker for the struggle. Our reliance is in the love of liberty which God has planted in us. Our defense is in the spirit which prizes liberty as the heritage of all men, in all lands everywhere. Destroy this spirit and you have planted the seeds of despotism at your own doors. Familiarize yourselves with the chains of bondage and you prepare your own limbs to wear them. Accustomed to trample on the rights of others, you have lost the genius of your own independence and become the fit subjects of the first cunning tyrant who rises among you.” – Abraham Lincoln

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No Fraud, No Foul

October 6, 2016 § Leave a comment

A couple of days ago we discussed a case in which a natural mother falsely and fraudulently claimed not to know who was the father of her child, which led a chancellor to enter an adoption judgment that later had to be set aside for fraud on the court.

Fraud on the court was the issue in a recent COA case, but the result was different than that in the adoption case.

Ronald and Belinda Betts were divorced in 2011. Belinda later sued Ronald for contempt several times. In one of those proceedings, Ronald had omitted a debt on his financial statement, and the chancellor noted that such an omission “can amount to a fraud perpetrated on the court and contempt.

When Belinda filed a third contempt action against Ronald, he borrowed a page from the chancellor’s earlier admonition and claimed in defense that the divorce judgment entered the previous year should be set aside per R60(b)(6) because Belinda made a false representation to the court in her divorce-action financial statement by omitting her interest in some property she inherited jointly with her sister. Belinda countered that she did not know or believe the land to be her property at the time.

The chancellor overruled Ronald’s motion and found him in contempt for non-payment of amounts he was ordered to pay under the divorce judgment. Ronald appealed.

In Betts v. Betts, handed down September 13, 2006, the COA affirmed. Judge Griffis wrote for a unanimous court:

¶11. Ronald argues that Belinda’s failure to list the property on her Rule 8.05 financial statement constituted an intentional filing of a substantially false statement and fraud upon the court. Belinda contends that Ronald’s unclean hands bar him from relief.

¶12. Rule 60 provides in part:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the
following reasons:
. . . .

(6) any other reason justifying relief from the judgment.

“Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted in
exceptional and compelling circumstances, such as for fraud upon the court.” Trim v. Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010).

¶13. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Id. at 477 (¶15). “[S]imply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. There must be a finding that the disclosure was intentional.” Finch, 137 So. 3d at 235 (¶23).

¶14. “[A] party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court.” Trim, 33 So. 3d at 478 (¶17). And “no time limit constrain[s] the chancellor’s ability to modify the divorce judgment to remedy the fraud on the court.” Id.

¶15. The following elements constituting intentional or fraudulent representation 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) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Id. at (¶19) (citing McCord v. Healthcare Recoveries Inc., 960 So. 2d 399, 406 (¶17) (Miss. 2007)).

¶16. The chancellor declined to set aside or modify the divorce decree after finding that Belinda did not intentionally mislead the court and that Ronald came to court with unclean hands after failing to disclose certain property rights on his Rule 8.05 financial statement. “[T]he trial court is best able to determine whether a fraud has been perpetrated upon it. As a result, the chancellor’s determination of the issue is entitled to great weight.” Tirouda v. State, 919 So. 2d 211, 216 (¶12) (Miss. Ct. App. 2005). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of fact.” Trim, 33 So. 3d at 479 (¶20).

¶17. The testimony from Belinda supports the chancellor’s conclusion that she did not know of her false representation to the court. She simply did not consider the property her own. She had not paid for the property, and she was not using the property for any purpose. The testimony showed that her mother currently or previously lived on the property, and Belinda considered it her parents’ land. Intentional or fraudulent representation requires that a representation be made, which the speaker knows to be false, with the intent that it should be acted on by the hearer. Fitch, 137 So. 3d at 235 (¶23).

¶18. Belinda’s conduct was not shown to be “the most egregious misconduct, . . . ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Trim, 33 So. 3d at 477 (¶15). And even though she failed to list the property in her Rule 8.05 financial statement, “simply failing to disclose essential facts to the proceedings to the adverse party or to the court does not rise to the level of fraud.” Finch, 137 So. 3d at 235 (¶23). “[A] party is not entitled to relief [under Rule 60(b)] simply because he is unhappy with a judgment.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013).

¶19. Furthermore, Ronald himself failed to list mineral rights in his possession on his Rule 8.05 financial statement, leading the chancellor to find that Ronald came to court with unclean hands. “Mississippi’s chancery courts are courts of equity, and under the clean[-]hands doctrine, anyone that comes before ‘a court of equity . . . must do equity as a condition of recovery.’” Dill v. Dill, 908 So. 2d 198, 202 (¶11) (Miss. Ct. App. 2005). “This doctrine, in effect, prevents a complainant from petitioning the court to modify an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Id. The chancellor noted: “Just as Belinda failed to disclose an asset at the time of their divorce, so did Ronald.”

¶20. This Court finds that the chancellor did not abuse his discretion in denying Ronald relief under Rule 60(b). As such, the substantial evidence supports the chancellor’s discretionary ruling as the fact-finder.

Before you wade off into the shark-infested waters of R60 on a raft of fraud, make sure it is stout enough to support your case.

Not every omission of evidence amounts to a fraud on the court. This case is a good recitation of the law on the point. You should file it away for future reference.

Attorney’s Fees in Contempt Actions

October 4, 2016 § Leave a comment

It’s pretty much a given that, if you are found to be in contempt of a court order, you will be assessed with the other side’s reasonable attorney’s fees.

The point was brought home again recently in the COA case of Dupree v. Pafford, decided September 6, 2016.

In that case, Stephanie Dupree had been found in contempt of court orders for discovery in a contempt/modification action, and for her denial of visitation. Unhappy with the trial court’s rulings, Stephanie appealed. Two of her contentions were (1) that there was no proof that the father of her child, Patrick, was unable to pay his attorney’s fees, and (2) that the court did not adequately address the reasonableness of the fees that were assessed. Judge Fair wrote for the majority:

¶8. Next, Stephanie contends that the chancellor erred in finding the fees to be reasonable. She makes two distinct arguments here, and the first is easily disposed of: Stephanie contends that the chancery court was required to find that Patrick was unable to pay his own attorney’s fees. This is simply not required when a finding of contempt has been made:

When a party is held in contempt for violating a valid judgment of the court,
attorney’s fees should be awarded to the party that has been forced to seek the
court’s enforcement of its own judgment. The award may be assessed against
the offending party without regard to the recipient’s inability to pay.

Caldwell v. Atwood, 179 So. 3d 1210, 1217 (¶26) (Miss. Ct. App. 2015) (citations and
internal quotation marks omitted).

¶9. Stephanie next contends that the chancellor failed to adequately determine the
reasonableness of the fees claimed by Patrick’s attorney. The record reflects that the
chancellor expressly found the fees to be reasonable. While Stephanie faults the chancellor for not going into detail, detailed findings are not required if the award of fees is, in fact, reasonable. West v. West, 88 So. 3d 735, 747 (¶¶57-58) (Miss. 2012). On that point, Stephanie offers nothing other than her assertion that many of the fees were “generated by totally needless litigation” resulting from Patrick’s motion for custody modification, which, according to Stephanie, delayed the hearing on the contempt issue and resulted in multiple contempt motions being filed.

¶10. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the
sound discretion of the trial court. Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal .” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (internal citation and quotation marks omitted). Stephanie has failed to show an abuse of discretion regarding the reasonableness of the attorney’s fee awards.

That’s pretty straightforward. As a practical matter, however, it may just be a lot of sound and fury signifying nothing, because the COA sent the case back to the trial court because the chancellor had found Patrick not to be in contempt despite a history of non-payment of child support. The COA held that Patrick’s history of non-payment and late payments should have resulted in a contempt adjudication. That will likely cost him something in attorney’s fees, which will offset — in whole or in part — the award against Stephanie.

A Tragic Fraud on the Court

October 3, 2016 § 1 Comment

It’s hard to imagine a legal proceeding more tragic and heart-wrenching than the setting aside of an adoption. Most chancellors go to extremes to ensure that there are no flaws in the proceeding that might jeopardize the finality of an adoption judgment.

In the recent MSSC case, Doe v. Smith, decided September 22, 2016, the chancellor entered an adoption judgment based on the natural mother’s statement in the Consent and in her sworn testimony that she was unaware of the natural father of her child, Matthew. Stan, the natural father, however, learned of the adoption and filed a R60(b)(6) motion to set the judgment aside for fraud. At the hearing on that motion, the natural mother, Katy, admitted on the witness stand that she had lied, the chancellor set aside the adoption judgment.The adoptive mother appealed. One of her grounds was that the chancellor erred in setting aside the judgment. Justice Maxwell, writing for a unanimous court, addressed the argument this way:

¶14. A fraud upon the court is an intentional misdeed that “vitiates a judgment” because “the court is misled and deceived” about the facts it relies upon when administering the law. Trim [v. Trim], 33 So. 3d [471,]at 477 (¶ 15) [(Miss. 2010)] (quoting Brown v. Wesson, 74 So. 831, 834 (Miss. 1917)). Rule 60(b)(6) gives judges broad authority to set aside judgments entered, resulting from such fraud. Trim, 33 So. 3d at 475 (¶ 7) (citing M.R.C.P. 60(b)(6) and Tirouda v. State, 919 So. 2d 211, 214 (Miss. Ct. App. 2005)). However, to qualify as “fraud upon the court,” there must be exceptional and compelling circumstances and the deceptive act(s) must be material and extreme. Not just any falsity or misstep, even if intentional, is enough for relief.

¶15. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” [Fn13] Wilson v. Johns-Manville Sales Corp., 873 F. 2d 869, 872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F. 2d 1332, 1338 (5th Cir. 1978)). Mere nondisclosure of pertinent facts to the court “does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim, 33 So. 3d at 477-78 (¶ 16) (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n.8 (5th Cir. 1980)). Furthermore, the fraud must be proved by clear and convincing evidence. Moore v. Jacobs, 752 So. 2d 1013, 1017 (Miss. 1999) (citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)).

[Fn 13] See also In re Guardianship of McClinton, 157 So. 3d 862, 870 (¶ 17) (Miss.
2015) (Rule 60(b)(6) is a “catch all” provision for exceptional and compelling
circumstances) and Roberts v. Lopez, 148 So. 3d 393, 399 (¶ 12) (Miss. Ct. App. 2014) (the substantial misrepresentation of facts on which a judgment is based constitutes a fraud on the court).

¶16. Here, the chancellor found Katy’s deceptive acts and omissions—which she admitted she knowingly made—met these high marks. Katy had filed a voluntary, sworn joinder and consent to Matthew’s adoption.[Fn 14] And in it, she represented she was unaware of Matthew’s biological father’s name, identity, or address. But under oath at the April 21, 2015, hearing, Katy admitted to lying about Matthew’s father’s identity in her consent. She also admitted she lied when testifying at Matthew’s adoption proceeding. She said she did so because she knew Stan would be a poor parent and caregiver.

[Fn 14] Under Mississippi Code Section 93-17-5, Katy was required to either provide her consent to the adoption or appear and contest it. Miss. Code Ann. § 93-17-5(1), (4) (Rev. 2013).

¶17. We have held that the effective administration of justice requires our chancellors have accurate financial information to distribute marital assets during divorce. See Trim, 33 So.3d at 477-78 (¶¶ 16, 17) (finding a party who filed a substantially false, statutorily required Rule 8.05 statement committed a fraud upon the court). So certainly, an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent [Fn 15] to an adoption undermines the effective administration of justice.

[Fn 15] See Miss. Code Ann. § 93-17-5(1), (4) (Rev, 2013).

¶18. The chancellor found that Katy knew who Matthew’s father was after the first
paternity test excluded her husband. And she withheld this information from the court and all parties involved. He held that Katy knowingly had misled the court and all parties through her testimony, affidavit, and nondisclosures regarding Matthew’s paternity.

¶19. And because the heart of Katy’s actions was designed to deceive the court, by lying about and omitting material facts to trick the court into granting a supposed uncontested adoption, the chancellor properly found that a fraud was committed upon his court. [Fn 16]

[Fn 16] The requirement that fraud, misrepresentation, or other misconduct be proved by clear and convincing evidence is moot here, since Katy admitted her fraud. See Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss. 1999).

There was nothing in the record to show that either the adoptive parents or their attorney knew of Katy’s false statements.

A few observations:

  • Adoption proceedings underwent a change effective April 16, 2016. You need to familiarize yourself with those changes if you are going to handle any adoptions. This decision is under the old adoption procedure.
  • The main thing to take away here is how easy it is for parties who are unencumbered by ethical considerations to lie when it suits them. As a lawyer you should be especially diligent and inquisitive when a natural mother claims not to know who was the father.
  • This case underscores how ruinous a fraud on the court can be. Imagine the joy of the adoptive parents when they walked out of the courthouse with their new baby; and imagine their devastation when the child was taken away from them some nine moths later. That’s why lawyers should take extra care, as much as they can, to make sure that something like this does not happen.

A similar thing happened in my court. The mother signed a Consent stating that she did not know who was the natural father, and the adoption agency gave the child to the adoptive parents pending the adoption. Before the adoption could be presented, however, the natural father intervened and objected to the adoption. The adoptive parents conceded the inevitable and surrendered the child to the father.

Another issue raised on appeal was whether the natural father had standing to file a R60 motion in the case, since he was not a party. That’s a subject for another post.

Ethics in Action

September 30, 2016 § 1 Comment

Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.

For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?

A reader sent me this:

Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.

The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.

Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).

I invite your comments on how you would have addressed this situation.

Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.

If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.

Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.

This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.

__________________

Thanks to Attorney Hale Freeland

Pinning Down the Elusive “Clear and Convincing” Concept

September 28, 2016 § 4 Comments

Every ground for divorce except habitual cruel and inhuman treatment (HCIT) requires proof by clear and convincing evidence. HCIT requires proof by a preponderance of the evidence.

Where does evidence cross the line, so to speak, from preponderance to clear and convincing? When do you know you have enough.to tip the scales?

The latest pronouncement on the subject of which I am aware came in the case of Mississippi Commission on Judicial Performance v. Shoemake, handed down by the MSSC on April 14, 2016, in which the court said:

¶26. “Clear and convincing evidence” is such a high evidentiary standard that it surpasses even the standard of “overwhelming weight” of the evidence. In Interest of C.B., 574 So.2d 1369, 1375 (Miss. 1990); Moran v. Fairley, 919 So. 2d 969, 975 (¶ 24) (Miss. Ct. App. 2005), certiorari dismissed as improvidently granted. The United States Supreme Court has placed an “intermediary standard” between “mere preponderance of the evidence” and “beyond a reasonable doubt.” Addington v. Texas, 441 U.S. 418, 423-24, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In Carver, 107 So. 3d at 969-70 (¶ 20), we cited the Fifth Circuit’s “useful definition” of the “clear and convincing” evidentiary standard. Clear and convincing evidence is

[t]hat weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Id. (citing In re Medrano, 956 F. 2d 101, 102 (5th Cir. 1992) …

That’s a lot of words to throw around if you have to argue or brief the point, but when you are in that position it’s better to have more words than fewer.

Still, it seems to be a somewhat elusive concept, susceptible to second-guessing on appeal. It brings to mind the US Supreme Court case Jacobellis v. Ohio, in which Justice Potter Stewart concurred, opining that all obscenity was constitutionally protected except “hard-core pornography,” the definition of which he rendered famously thus:

“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, and the motion picture involved in this case is not that.” [Emphasis added]

Maybe clear and convincing evidence is something that we just “know it when we see it.” Like hard-core pornography. Sort of.

If you think that “clear and convincing” is somewhat touchy-feely, try to stretch your brain around “beyond a reasonable doubt.” In fact, I challenge you to find a Mississippi case that defines the concept. I once defended a client in Justice Court on a charge of malicious destruction of personal property. The State had circumstantial evidence placing my client at the scene where before he appeared the property was undamaged, and after he left it was damaged. We had an eyewitness who was there and testified he watched the defendant the whole time, and he never touched or even came near the damaged item. The judge said, “I have grave doubts that this man did it, but I find him guilty.” So a grave doubt is still beyond a reasonable doubt, I guess. Good luck finding any authority on grave doubt.

Pending R 59 Motion = No Appeal, Part Deux

September 27, 2016 § Leave a comment

Only a few weeks ago, we talked about the concept that if there is a pending R59 motion the trial court continues to have jurisdiction, and, until it is disposed of, any attempt to appeal will  be dismissed for lack of jurisdiction in the trial court. That post is here.

Since then, in the case of Hoffman v. Hoffman, handed down September 6, 2016, the COA again dismissed an appeal in which there was a pending R59 motion. That case involved a divorce action between Brooke and Michael Hoffman.

We don’t need to address the law on the R59 point yet again. Instead, what I’d like to highlight is the procedural tangle that birthed this confusion. Here’s how Judge James described it in her opinion for a unanimous court:

¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael filed a motion for contempt of the agreed temporary order claiming that he had been denied the opportunity to visit with his minor children.

¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt of the agreed temporary order. Also, on September 23, 2014, the trial court entered a separate order denying Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order finding her in contempt.

¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s contempt order was denied.

¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of the judgment denying the divorce, her motion has not been resolved and remains pending in the trial court, based on the record before this Court. On November 12, 2014, Michael filed a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion for contempt as well as for the defense of the divorce action. A statement of legal fees was attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.

¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule” (the “Motion to Amend”). Based on the trial-court docket, this motion has not been resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of appeal of the trial court’s judgment awarding attorney’s fees.

You can tally up for yourself the layers of judgments, orders, and motions in this case. They illustrate for me how things can spiral into a convolution of complication almost before one is aware that things ate getting out of control.

Some judges will step in and try to untie the Gordian knot before it gets untie-able. But it’s really not the judge’s duty to do that. It’s your job as attorney to make a record that is comprehensible. If you don’t, your client might just end up paying the freight for a premature appeal. And remember: when you cost your clients money, they hate you; when you save them money, they love you.

The Line of Demarcation

September 26, 2016 § Leave a comment

We have talked here many times about what I call the “Valuation Date,” and which the appellate courts call the “Demarcation Date.” It’s the date in the course of a divorce when marital asset value ceases to accrue, and the value becomes separate.

Although the method of pinning down the demarcation date has veered around through the years, the current state of affairs is that it can be any date from separation through the date of the divorce judgment, within the discretion of the chancellor.

It’s good to be reminded of that from time to time, and the recent COA case, Randolph v. Randolph, decided September 6, 2016, not only is a nice reminder, it also includes a recap of the law on the point.

At the trial level, Betty and Daniel Randolph had entered into a consent to divorce and left it up to the judge to decide equitable distribution. In doing so, the chancellor set the demarcation date at the date of separation. Betty appealed, contending that the date adversely affected her share of the equitable distribution. Judge Fair wrote for the unanimous court:

¶9. “The law in Mississippi is that the date on which assets cease to be marital and
become separate assets — what we refer to . . . as the point of demarcation — can be ‘either the date of separation (at the earliest) or the date of divorce (at the latest).’” Collins v. Collins, 112 So. 3d 428, 431-32 (¶9) (Miss. 2013) (quoting Lowrey v. Lowrey, 25 So. 3d 274, 285 (¶27) (Miss. 2009)). A chancellor may consider a temporary order as the line of demarcation between marital and separate property. Id. (citation omitted) (citing Cuccia v. Cuccia, 90 So. 3d 1228, 1233 (¶8) (Miss. 2012)). Ultimately, however, the chancellor has the discretion to draw the line of demarcation. Id. at (¶10) (overruling Pittman v. Pittman, 791 So. 2d 857 (Miss. Ct. App. 2001), on its implication that temporary orders always provide the mark for demarcation).

¶10. The beginning date in calculating the accumulation of marital assets is December 10, 1995—the date of Danny and Rebecca’s marriage. The chancellor found the point of
demarcation was November 28, 2011—the approximate day Danny and Rebecca separated. During the divorce proceedings, no temporary order was entered. In Aron v. Aron, this Court stated that the chancellor “has discretion in determining whether acquisitions made in a marriage’s dying stages qualify as marital or separate property.” Aron v. Aron, 832 So. 2d 1257, 1259 (¶8) (Miss. Ct. App. 2002). Here, the chancellor reasoned that neither party provided any monetary support to the other post-separation, except the disability benefits paid on behalf of Emely. We find the chancellor was well within his discretion to use the couple’s separation as the point of demarcation.

Some thoughts:

  • Be sure to have your client testify as to what demarcation date should be assigned to each asset and why. This will have two positive effects: first, it gives the chancellor some evidentiary basis for the exercise of discretion; and second, it gives you something to argue on appeal if things turn out not to suit your client. Too often, we chancellors have nothing in the record other than our own judgment on which to base such a decision. If you don’t put it in the record, you can’t complain about it.
  • The demarcation date can have a drastic effect on the equitable distribution because the value of the asset used is as of the demarcation date. When the judge selects a particular date, he is not only saying that the accumulation of marital value is cut off as of then, he is also saying that the asset’s value is what it was on that date. Think about how retirement funds can fluctuate from day to day. It is a great benefit to your client if you can persuade the judge to select a date favorable to her.
  • Remember that the trial court is not bound to select a single, omnibus demarcation date to be applied to all assets. The court can select one date for the 401(k), another for the equity in the marital home, and yet another for the securities account. Sometimes that is the only practical, reasonable approach when the 401(k) statements end at one date, the home appraisal is another date, and the securities account statements end at yet another.

Reprise: Winning Your Child-Support Modification Case

September 23, 2016 § 1 Comment

Reprise replays posts from the past that you may find useful today:

WINNING TACTICS FOR CHILD SUPPORT MODIFICATION

October 23, 2012 § 2 Comments

There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.

In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:

  1. Increased needs caused by advanced age and maturity of the children;
  2. Increase in expenses;
  3. Inflation factor;
  4. The relative financial condition and earning capacity of the parties;
  5. The physical and psychological health and special medical needs of the child;
  6. The health and special medical needs of the parents, both physical and psychological;
  7. The necessary living expenses of the paying party;
  8. The estimated amount of income taxes that the respective parties must pay on their incomes;
  9. The free use of residence, furnishings, and automobiles; and
  10. Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).

Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).

Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).

Remember that the keystone consideration for modification is a change in expenses of the child.  You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial.  Most importantly:  It is not adequate to prove only that the income of the paying parent has increased.

So here are a few tactics that may help:

  • Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
  • See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
  • If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
  • Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
  • Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
  • Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention.

Plan your modification case for success. Remember that you can use summaries and compilations to present your evidence. And the clearer and better your 8.05’s are, the greater you chances of success.

Avoiding a Desertion Glitch

September 22, 2016 § 1 Comment

MCA 93-5-1 provides that the court may grant a divorce on the ground of “Willful, continued and obstinate desertion for the space of one (1) year.”

It’s often said that desertion is the easiest ground to prove as an uncontested divorce. It’s fairly straightforward:

  1. Separation without fault on the part of the complaining party;
  2. Continued, obstinate, intentional, and unjustifiable separation for more than a year.

But there’s another element that you need to include in your proof. In the case of Lynch v. Lynch, 217 Miss. 69, 63 So.2d 657, 653 (1953), the court said:

In matter of law, a deserted party must stand ready to receive the other back, if the offer to return is made in good faith, not otherwise, at any time before the statutory period has fully run. But when the desertion has ripened into a ground for divorce, the day of repentance has ended, and the one in whom is the right may refuse.”

In 21st-century language, this means that: (a) during the one-year desertion period, the deserted party must have been willing to allow the deserter to return home if a good-faith offer to return would have been made; and (b) after the one-year period has expired, that duty expires also.

So you must ask your client in his or her testimony to this effect: “If the other party had offered to give up his paramour, and to repent of his ways and to return home in good faith, would you have taken him back?” If the answer is affirmative, you will be successful if the other elements are proven and there is corroborating testimony.

I’ve seen some uncontested divorces come unravelled because the complaining party didn’t seem to have ever heard of this concept.

Before setting off for court, sit your client down and explain this requirement. What most clients think when confronted with the question is, “Horrors, I never want to see that monster again since he left me for that other woman!” Once they understand that the willingness to resume cohabitation, if there is a good-faith offer to reconcile, applies only to that one-year period now elapsed, they relax. There is no requirement to take the deserter back after the one-year period has expired — good faith or no.

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