MSSC’s Covid-19 Order
March 16, 2020 § Leave a comment
Last Friday afternoon after business hours the MSSC published an emergency administrative order directing the courts in conducting business amidst the coronavirus outbreak.
To sum it up as far as chancery is concerned: courts remain open subject to authority of individual judges to control their own dockets; only parties, witnesses, court personnel, lawyers, and other necessary persons as determined by the court are allowed in the courtroom during court proceedings; no gatherings of 200+. For those of you who do jury trials, there are some restrictions of which you need to be aware.
Nothing earth-shaking here. It’s a reminder that we need to stay aware and alert.
The Supreme Experience
March 13, 2020 § 5 Comments
Last week, if you checked in on this blog, you were greeted by a cryptic message that I was “out a few days.” I took that time to meet up with my daughter Aimée, who lives in Maryland and works in D.C., for us to attend a session of the US Supreme Court.
Some of you have argued cases before that court, and some may have sat in on argument. I had done neither, so when she suggested we do that, I agreed readily.
On Monday, March 2, we set out early for the Capital. Aimée had learned from a frequent visitor to the court that we needed to get there early. We got in line at 7:00, a.m. Court did not start until 10, but we were already at the end of the block in a line that kept building behind us. Some people at the head of the line had slept there in sleeping bags. We found out later that we were number 78 and 79 in the line. The recurring topic among line-standers was whether we would get in to hear an entire case, or whether we would be shunted to the 3-5 minute line, in which visitors are whisked in, allowed to stand and gawk for 3-5 minutes, and then ushered out to make room for the next group.
Before going on, I need to note that the temperature was in the low 40’s with a 20-mph wind. I was glad to have worn my wool sweater and wool car-coat. Some unfortunates in line had apparently paid more attention to the forecast predicting 60’s by 2:00 that afternoon, and were comparatively — and uncomfortably — undressed for that early morning weather.
Around 8:30, the first 50 in line were taken up on the plaza in front of the building and issued gold-colored tickets. Again, we speculated whether those were the ones who would get to see the main show while we would get a revolving-door peek.
About this time an officer came to police the line and proclaimed that “Everyone here for Wednesday’s case needs to move here.” That’s when we learned that the folks in the sleeping bags had been there since Saturday holding place in line for Wednesday’s case, which involved a challenge to Louisiana’s abortion law. They would sleep over until they got their golden ticket to the Wednesday session, which they would then sell to a pre-arranged buyer who would walk up and take their place in line.
Around 9 we were called up onto the plaza and stood there waiting. An officer explained that they were deciding how much room they had for our group, which by then had grown. We wondered whether we would get to hear even one case.
Around 9:45, an officer began handing golden tickets out to our group, and we were directed to a basement door, through airport-type metal detectors, and lined up on stairs, where we were instructed on court-room etiquette (no cheering, no demonstrations, no speaking, no nonsense) and as to what items were permissible in the court room. Essentially, all you can take in is a pen or pencil and pad of paper. No cell phones, no jackets or coats, no metal of any kind, nothing that can beep — not even an Apple Watch. Then we were loosed on some lockers and coat check area to stow our stuff. From there we went through another metal detector and lined up at the entrance to the court room where we learned for the first time that we were definitely getting to stay for either or both cases set for hearing that morning. An attendant came and collected our gold tickets which would have made great mementos.
And then we were led by an attendant into a vestibule, around a corner, and into the court room at 10:20. We had missed the opening of court, and arguments were in progress. This was the first of two immigration cases to be argued today.
Seated behind the long bench were the nine Justices. From left to right: Gorsuch, Sotomayor, Breyer, Thomas, Roberts, Ginsburg, Alito, Kagan, and Kavanaugh. Immediately in front of them, across from Roberts, close enough for Roberts to hit him with a well-aimed spitball, was a podium where stood counsel for the appellant arguing as best he could among a continuous barrage of questions. In the span of the two cases every Justice but Thomas asked at least one question. Breyer was the most prolific questioner. At one point Sotomayor had to tell the lawyer to quit interrupting her, something none of the lawyers had the nerve to ask the Justices to do.
The lawyers sat at tables behind the podium. Behind and around them were members of the SCOTUS bar. Behind them was a bronze railing set before the general admission area. We were in the third row, in the left section of three sections of long, solid, cushioned pews, 15 in all. A chair was placed at the end of each pew for additional seating, and it appeared that every seat was taken. A guard in a black suit stood facing the onlookers, scanning the crowd repeatedly from one side to the other. Another guard spelled him after a half hour, and they alternated that way for the duration.
The crowd was attentive and quiet. Both cases involved technical interpretation of statutes and the first case even touched on the interplay between habeas corpus and deportation hearings, a dimension that both liberal and conservative justices appeared to latch onto in support of their positions. And yet, for all of its dry technicality, I found the audience intent on trying to follow the argument, rapt even.
When the first case concluded, Roberts simply said, “Case is submitted,” and the attorneys for the next case took the places of those from the first case. Roberts nodded and they commenced their argument.
What struck me was the simplicity and practicality of the proceeding. It was at its heart not much different from a motion hearing one might stumble into in a rural courthouse. Not a bunch of pomp and circumstance or pretension, just lawyers arguing their positions, judges hearing them out and having the lawyers answer the questions they need to have answered before they can make up their minds. Yes, it is the highest court in the land, but it is, after all, just a court doing court business the same as is done thousands of times every day in every county in every state.
That is the majesty of the law in our nation, where the law is sovereign. It does not need external trappings or ritual to lend it gravity and power. Its authority is bestowed on it by our Constitution and by case law. It is paramount in the most modest, rustic courtroom, the same as it is in the United States Supreme Court, and in the very same way in each place.
Philip Thomas’s Long Good-Bye
March 11, 2020 § 3 Comments
As I forewarned in a previous post, Philip Thomas’s blog, Mississippi Litigation Review & Commentary, shut down last week. Philip’s eponymous Last Post, lengthy and replete with personal references, is at this link.
On one level, Philip’s post is a meditation on how the practice of law has changed over the past 25 years, and decidedly not in favor of civil litigation practitioners. He discusses the insane stress that lawyers experience from the practice, the procedures, the office, family, and financial. He muses over other ways to make a living that allow one to be more human, and he relates his experience of the curative powers of wilderness hiking.
On another level, it’s one more disappearance from the Mississippi legal blogosphere that was once more satisfyingly populated, as I pointed out here before.
Between the lines Philip seems to say that we are in the twilight of the law as we have known and practiced it. Changes are curdling the edges of the practice: more ADR; settlement lawyers; mediation; arbitration. Lawyers tell me that clients are more insistent that their cases get settled, and soon, to avoid litigation costs and just get on with their lives. Lawyers who savored the joust and prolonged litigation for their enjoyment are not favored so much any more. Even in chancery, where 15 years ago there were two or more contested hearings a week, the number of actual trials is down, and the number of settlements and agreed judgments is way up.
So here’s a toast to Philip for your thoughtful and thought-provoking posts that spanned 11 years. May your adversities and the jarring demands of the law subside like the turn off of a busy highway onto a peaceful trail sloping gradually through a conifer forest on a cool, breezy day, until you reach a peaceful summit where, reclined against a sun-warmed rock, you view the beauty of the world below, far removed from its clamor.
Peace.
Upward Modification of Child Support
March 10, 2020 § Leave a comment
A recent COA decision reminds of us of what the chancellor is supposed to consider when deciding whether an increase in child support is warranted.
In Best v. Oliver, decided February 11, 2020, the court affirmed a chancellor’s decision to increase child support. Judge McCarty wrote for the unanimous court, Carlton not participating:
¶8. Charles argues the increased expenses associated with K.O.B.’s advanced age and his increased income do not constitute a material change in circumstances warranting modification. He contends Kimberly failed to provide sufficient evidence of the increased expenses, and therefore the increase must be reversed.
¶9. A parent seeking modification of child support must show “a substantial or material change in the circumstance[s]” not reasonably foreseeable at the time of the most recent support decree. Id. at (¶6). Our Supreme Court has noted “[t]hat children’s expenses generally will increase as they get older, that the father and mother’s earning capacity will generally increase from year to year, and that inflation will continue at some level and will partially affect both the children’s expenses and the parents’ earning capacity.” Tedford v.
Dempsey, 437 So. 2d 410, 419 (Miss. 1983) (emphasis omitted).
¶10. While it is foreseeable that expenses increase with the natural growth of a child, the amount of the increase is not. Kilgore [v. Fuller], 741 So. 2d [351] at 353 (¶6). “As the Mississippi Supreme Court has recognized, rare is the child whose financial needs do not increase with age.” Id. (internal quotation marks omitted) (quoting Varner v. Varner, 588 So. 2d 428, 433 (Miss. 1991)). It would be unfair to require under the foreseeability test that the initial child-support award include anticipated future increased expenses. Id. Because it is impossible for a court to foresee in the initial support award what allowances to make for a child years into the future, we leave that for modification proceedings. Id.
¶11. When determining whether modification of child support is warranted, the chancery court may consider the factors provided in Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985). [Fn 2] “Possible factors which may constitute a material change in circumstances are
increases in the children’s expenses; a substantial increase in the financial resources of the non-custodial parent; and inflation since the original decree.” Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Evidence of a child’s increased “academic achievements and educational needs together with their extracurricular activities” may be considered in order to justify an increase in child support. Havens v. Broocks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).
[Fn 2] In determining whether a material change has occurred, chancery courts may consider “(1) the 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 health and special medical needs of the child, both physical and psychological, (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 the incomes, (9) the free use of residence, furnishings, and automobile and (10) such other facts and circumstances that bear on the support as shown by the evidence.” [Adams] Id. (citations omitted).
¶12. We are satisfied that the chancery court’s factual findings were supported by substantial, credible evidence. As evidenced in its order, the chancery court considered all of the Adams factors. The chancery court found that the combination of increased expenses
associated with raising K.O.B., Charles’ substantial increase in income, Kimberly’s changed financial position, and inflation constituted a material change warranting a modification of child support. Furthermore, the chancery court rejected Kimberly’s request for the most part, tailoring the support increase to $1,000 per month rather than the requested $3,000 per month. We find that the chancery court did not abuse its discretion. Accordingly, we affirm.
¶13. Charles also argues that Kimberly’s new husband’s income should be a factor in determining the amount of support to award. However, “[w]e know of no reason in law, morality or common sense why a father’s obligation to support his children should be
minimized because his ex-wife remarries well.” Tedford, 437 So. 2d at 420.
¶14. Because the chancery court’s decision was within its discretion, we affirm.
Some Things are Better Left Said
March 9, 2020 § 1 Comment
There’s no accounting for what a client might say on the witness stand. If you’ve done any courtroom work at all you can attest to that.
In their divorce case, Thomas and Debra Oates were locked in a dispute over the marital estate, consisting of a 39-acre parcel of land subject to a mortgage, along with the usual baggage, physical and metaphysical, that one accumulates over the span of a 13-year marriage. Debra claimed that the 39 acres were a non-marital inheritance. Thomas contended that the property, which had indeed been an inheritance, had lost its separate character. And yet …
When he took the witness stand and testified about it, after being asked what, specifically, he wanted the chancellor to award him in the case, here is what he had to say:
Q. If you could state which of those items you would like to have, what would they be?
A. My motorcycle and the apparel and my pictures, personal properties, my daddy’s stuff.
Q. Slow down. Your motorcycle?
A. My apparel, motorcycle apparel, my daddy’s stuff, and my guitars and amp.
Q. And that is all you want the judge to award you in the marital estate?
A. Yeah. I mean I’d like to have the four-wheeler, but I don’t know if it’s there or not. [My emphasis]
Does that seem rather incomplete to you? (Hint: there is no mention of the 39 acres).
The chancellor took Thomas at his word, found the 39 acres to be non-marital, awarded it to Debra, and let Thomas go forth with his stuff.
Thomas appealed, and you have probably already guessed the outcome. Affirmed by the COA on February 18, 2020, in Oates v. Oates.
Every client is more or less unpredictable when it comes to the pressure cooker of the witness stand. Some like it hot. Some wither. All struggle to a greater or lesser degree to find the right words to say what needs to be said. You can make your client’s testimony more predictable and successful by going over some of, the most important parts in particular, in advance of trial. Remember, it’s perfectly ethical to help a client with how to tell the truth — phrases to avoid, better choices of words –, and it is unethical to help the client make up a story that will win the day. Trial preparation is in most cases critical. I wish more lawyers did it.
“Quote Unquote”
March 6, 2020 § Leave a comment
“For if we open our eyes and see clearly, it becomes obvious that there is no other time than this instant, and that the past and future are abstractions without any concrete reality. Until this becomes clear, it seems that our life is all past and future, and that the present is nothing more than the infinitesimal hairline which divides them.” — Alan Watts
“There is only one moment, and yet the moment is always giving way to the next, so that there is not even Now, there is Nothing. True, true. There is nothing, if that is the way to understand how much there is.” — M.C. Richards
“Only when one understands that we live life on the precarious edge of the present, which is a mere millionth of a second, as we rush moment by moment at warp speed into an unknown and unknowable future, can one begin to appreciate how courageous and brave is the act of living with only our memory of the accumulating past for balance.” — Daedelus
Reprise: Forget-Me-Not
February 28, 2020 § Leave a comment
Reprise replays posts from the past that you may find useful today.
RESCUING THE FORGETFUL WITNESS
February 24, 2011 § 2 Comments
It’s a familiar scene. The witness is asked a crucial question and suffers that dreaded lapse of memory. “I don’t remember,” she says, and the lawyer knows the answer is right there on counsel’s table. How do you recover?
Unfortunately many lawyers follow the “I don’t remember” response with a leading question in an attempt to suggest the answer. That provokes a series of objections to leading questions and even, “The witness has already said she doesn’t remember, so she can’t answer any questions about this!” Often the examining lawyer gives up and moves on to something else.
The solution is in MRE 612, which allows a witness to use just about anything, admissible or not, to refresh his or her recollection.
Instead of asking that suggestive question, simply ask the forgetful witness whether there is anything she could refer to that would refresh her recollection. When she says she needs to look at her calendar, or her checkbook, or her diary, or her driver’s license, hand it to her and ask her to take a moment and look it over, and then ask the question again. Any objection should be overruled because she said she needed to refresh her recollection, and she should be allowed to do so. Note that any object can be used. It may be a photograph of a loved one, or a pencil, or a cell phone. The rule does not require that it be admissible in evidence.
Whatever object is used is subject to examination and inspection by the other side. And, of course, that is the practice as to any document or object used by a witness on the witness stand. The other party has the right under Rule 612 to offer into evidence those portions relating to the witness’s testimony, and there is a procedure for objecting to portions of the document that are not relevant, and preserving for appellate review any matter not made a part of the record.
It is quite common in court for a witness to say, “I need to look at some papers on the table to answer that.” The court will routinely allow the witness to look at what he or she needs to answer.
Rule 612 is the only procedure available to refresh a witness’s recollection. It is limited to a writing or a tangible object, and does not apply to an out-of-court oral statement, which would simply be an attempt to circumvent the hearsay rule. Eastover Bank v. Hall, 587 So.2d 266, 269 (Miss. 1991).
Some lawyers apparently confuse attempts to refresh the recollection of the witness with MRE 803(5), which pertains to the admissibility of a recorded recollection in a memorandum or record in lieu of the witness’s testimony when the witness has no recollection of the facts in the record. The two rules address different problems: Rule 612 is a method to refresh the recollection of the witness; Rule 803(5) is a way to get the facts in the record via documentary proof when the witness has no recollection.
Another source of confusion for older lawyers is that Rule 612 is a departure from pre-MRCP practice. In the era before MRCP it was much more cumbersome to refresh a witness’s faulty memory. But that was then (now 28 years ago) and this is now. If you’re still playing tapes of pre-rules practice in your head after all these years, you need to get out a rule book and get up to date.
High Income, Large Marital Estate, Equitable Distribution, and Alimony
February 26, 2020 § Leave a comment
I don’t know about other chancellors, but one of the most difficult tasks for me is to figure out whether there is truly a disparity requiring alimony after equitable distribution.
In the recent COA case, Descher v. Descher, decided January 14, 2019, the chancellor ordered Jeffrey Descher to pay his ex, April, $7,500 a month in periodic alimony, even though her equitable distribution, lump-sum alimony, and even child support, were substantial. The COA affirmed. Judge Lawrence’s majority opinion on the issue is chock-full of helpful authority and rationale, so here it is:
¶25. Finally, Jeff argues that the chancellor erred by awarding April permanent periodic alimony. “Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.” Castle v. Castle, 266 So. 3d 1042, 1053 (¶43) (Miss. Ct. App. 2018) (quoting Lauro v. Lauro, 847 So. 2d 843, 848 (¶13) (Miss. 2003)), cert. denied, 267 So. 3d 278 (Miss. 2019). This Court is bound to “consider the totality of the chancellor’s awards upon the divorced parties, including the benefit to the payee spouse and the concomitant burden placed on the payor spouse.” Id. (internal quotation marks omitted) (quoting Arrington v. Arrington, 80 So. 3d 160, 167 (¶23) (Miss. Ct. App. 2012)). “Our scope of review of an alimony award is familiar and well settled. Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless the chancellor was manifestly in error in his finding of fact and abused his discretion.” Coggins, 132 So. 3d at 640 (¶8) (quoting Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993)).
¶26. Permanent periodic alimony serves an important purpose as a “substitute for the marital-support obligation.” Rogillio v. Rogillio, 57 So. 3d 1246, 1250 (¶11) (Miss. 2011). More specifically,
[t]he award of permanent periodic alimony arises from the duty of the husband to support his wife. We have also said that the husband is required to support his wife in a manner to which she has become accustomed, to the extent of his ability to pay. To update our language: Consistent with Armstrong, a financially independent spouse may be required to support the financially dependent spouse in a manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.
Castle, 266 So. 3d at 1053 (¶43) (emphasis altered) (quoting Rogillio, 57 So. 3d at 1250 (¶11)). This duty, however, is not absolute. A spouse that seeks alimony must have “a deficit with respect to having sufficient resources and assets to meet his or her needs and living expenses.” Jackson v. Jackson, 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013) (emphasis added).
¶27. Without a periodic alimony award, April would have been forced to draw on her lump-sum award for the rest of her life. [Fn 9] That is not a “sufficient resource” that Jackson anticipated. Id. April still worked for the Descher corporation at the time of trial. The most money she ever earned was when she worked for the Descher corporation. According to her Rule 8.05 statement, when April worked at the Descher corporation, she earned $3,024.00 before taxes. After taxes, April earned $2,491.25. She listed $12,784.82 in total personal monthly expenses. In addition, her children’s expenses were listed as $3,402.33 each month. Because she received the home and her vehicle free and clear of any debt, April no longer has a mortgage payment or a car note in her monthly expenses. That means April’s personal monthly expenses, after the chancellor’s judgment, was $7,199.50. Jeff, on the other hand, was able to attend what McDonald’s calls “Hamburger University” and as a result qualified
to own and manage McDonald’s restaurants. The businesses he now owns are free and clear of any interest April held. Those businesses bring in over thirty-one million dollars per year in gross revenue. While the lump-sum alimony award was $856,794.98, which is certainly a large sum to most people, it does nothing to cure the fact that there is still a “significant income disparity” between Jeff’s and April’s incomes from the businesses, which were portions of the marital property. Jeff earns over $71,000 per month after taxes. April earns $2,491.25 per month after taxes if she is even still employed with the Descher business conglomerate. The lump-sum alimony award did not address this obvious income disparity.
[Fn 9] The dissent argues that the chancellor did not consider April’s $856,794.98 lump-sum alimony award as part of her “resources and assets” available to meet her expenses. Post at (¶46). The chancellor, however, specifically stated that “[i]n view of the significant income disparity following the equitable distribution of the marital estate, the lack of April having any meaningful potential future earnings potential, the length of the marriage, the parties’ accustomed standard of living, and the [c]ourt finding that it would be inequitable to require April to live exclusively off of the moneys she is to receive as the lump-sum alimony portion of the equitable distribution of the marital assets . . . this [c]ourt finds that April is entitled to an award of periodic alimony.” That indicates the chancellor did in fact consider the lump-sum alimony award as an asset.
¶28. The question now becomes whether $7,500 per month in permanent periodic alimony is excessive. Excessive awards of alimony by the chancellor have been overturned by this Court before. In Cosentino v. Cosentino, 912 So. 2d 1130 (Miss. Ct. App. 2005) (Cosentino I), this Court held that the wife was not entitled to $7,000 in permanent periodic alimony. Id. at 1131 (¶1). This Court reversed and remanded the case to the chancery court for a proper Ferguson and Armstrong analysis. [Fn 10] Id. at 1133 (¶12). When Douglas Cosentino again appealed the chancellor’s decision after remand, we reversed and rendered judgment for failure to justify the permanent periodic alimony award when the wife had received $2,615,815 as part of the marital estate. Cosentino v. Cosentino, 986 So. 2d 1065, 1066 (¶¶1-3) (Miss. Ct. App. 2008) (Cosentino II). The instant case is distinguishable from our decisions in Cosentino I and Cosentino II.
[Fn 10] Ferguson v. Ferguson, 639 So. 2d 921, 926 (Miss. 1994) (finding that awards of alimony are appropriate if after dividing the marital property there is still inequity between the two parties); Armstrong v. Armstrong, 618 So. 2d 1278, 1280-81 (Miss. 1993) (noting the twelve factors necessary for a chancellor to consider when entering a judgment for alimony).
¶29. In Cosentino II, we found that the chancellor’s failure “to provide any justification for the alimony award” was error. Id. at 1068 (¶8). Since “[t]he chancellor did not articulate any reason why Phyllis [Cosentino] needed more than the $2,615,815 that she was awarded,” this Court found that there was no evidence of a reasonable need for additional alimony. Id. at (¶9). Here, however, the record supports the chancellor’s finding that additional, permanent periodic alimony was necessary. The chancellor noted in his amended judgment that “April’s equitable distribution share of the marital estate [was] non-income producing” and that “even under the best of circumstances [any potential investment income] is not assured and pales in total insignificance when compared to the income historically received by Jeff.” The chancellor continued:
In view of the significant income disparity following the equitable distribution of the marital estate, the lack of April having any meaningful future earning[] potential, the length of the marriage, the parties’ accustomed standard of living, and the [c]ourt finding that it would be inequitable to require April to live exclusively off the moneys she is to receive as the lump-sum alimony portion of the equitable distribution of marital assets while Jeff receives $65,913.33 in monthly gross income [Fn 11] from his share of the marital estate, the [c]ourt finds that April is entitled to an award of periodic alimony.
(Emphasis added). The chancellor was not manifestly wrong in making this factual determination and did not abuse his discretion in addressing this obvious disparity.
[Fn 11] This figure is taken from Jeff’s Rule 8.05 statement and is not the recalculated, adjusted after-tax income that the chancellor found to be $71,377.66 per month. It is not clear why the chancellor resorted to $65,913.33 for purposes of this paragraph when he found the correct figure to be $71,377.66. Be that as it may, either figure (the one used by the chancellor in this paragraph or the corrected, recalculated figure as determined by the chancellor) showed a vast disparity in income between the parties from the marital businesses.
¶30. This Court’s recent holding in Castle is more analogous to the instant facts. When distributing the marital property in Castle, the chancellor found that the husband was at a greater benefit than the wife. Castle, 266 So. 3d at 1048 (¶22). To make the parties equitable the chancellor awarded the wife a “equalization payment” of $584,608.41. Id. On top of that, the chancellor also awarded lump-sum alimony in the amount of $1,600,00.00 and $6,500.00 a month in permanent periodic alimony. Id. This Court upheld the full award because “it [was] not difficult to understand how the chancellor recognized a deficit between [the husband] and [the wife] in their projected future ability to continue living in the style to which they became accustomed.” Id. at 1054 (¶47) (emphasis added).
¶31. The same can be said in this case. The chancellor specifically stated that the share of marital property awarded to April was non-income producing. More importantly, the record indicates that thirteen of the fourteen McDonald’s restaurants that Jeff owns were acquired during the marriage. Jeff admitted this in the following testimony:
Q. All of the entities described on Exhibit C — excuse me, 30, on Plaintiff’s Exhibit 30 that’s admitted into evidence, starting with No. 1 through No. 7 were acquired during your marriage to April?
A. That’s correct.
“The law presumes that all property acquired or accumulated during marriage is marital property.” Id. at 1049 (¶28) (quoting Stroh v. Stroh, 221 So. 3d 399, 409 (¶27) (Miss. Ct. App. 2017)). “Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994). “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994). Truly, “the issues of property division and alimony are intertwined.” Ali v. Ali, 232 So. 3d 770, 774 (¶8) (Miss. Ct. App. 2017) (internal quotation marks omitted) (citing McKissack v. McKissack, 45 So. 3d 716, 723 (¶41) (Miss. Ct. App. 2010)).
¶32. If this Court were to agree with Jeff and reverse on the permanent-periodic alimony award, April would be forced to live off the lump-sum alimony award and potentially run the risk of eventually running out of funds from the lump-sum payment, while Jeff would continue to earn an estimated $71,377.67 in after-tax income each month. As the chancellor noted in his judgment,
April and the children are entitled to maintain their accustomed standard of living and the [c]ourt has attempted from the record before it not to go beyond what it believes is necessary [to] assure their accustomed standard of living. The [c]ourt further notes that Jeff’s income permits him to pay these sums and to continue his accustomed standard of living.
Every month of every year until he sells his interest in the businesses or dies, Jeff will make income from the thirteen McDonald’s restaurants and other businesses acquired during the marriage. April will make nothing. While Jeff draws income permanently, April would be forced to live on the dwindling lump-sum alimony if the chancellor had not awarded permanent periodic alimony.
¶33. The dissent complains that “Jeff’s substantial income is not, by itself, a sufficient basis for the chancery court’s award of $7,500 per month in permanent alimony.” Post at (¶48). Jeff’s “substantial income,” however, is part of, and derived from, the businesses acquired and formed during the marriage as part of the marital estate. The chancellor noted this fact in his findings of fact, and the parties agreed that it was true. Despite the fact that those assets and businesses were acquired during the course of the marriage, Jeff never associated April’s name with any of those assets or businesses. As a result of the divorce, April received $7,500 per month to alleviate the “significant income disparity” that the chancellor found to exist. The award of permanent periodic alimony was not based solely on April’s expenses or Jeff’s substantial income. The chancellor’s findings of fact with regard to the permanent periodic alimony are clearly articulated based on the evidence presented and are in accordance with the correct legal standards.
¶34. Finally, the dissent argues the chancellor abused his discretion in not considering April’s assets acquired after the divorce when he awarded her $7,500 per month in permanent periodic alimony. A review of Jeff’s income versus his monthly expenses indicates Jeff’s monthly income after taxes was $71,377.67. Jeff listed his Rule 8.05 monthly expenses at $24,829.11. At trial, Jeff admitted that $10,000 of that $24,928.11 in monthly expenses was actually paid by one of the Descher corporations he owned. Therefore, his actual out-of-pocket monthly expenses is $14,829.11. After his taxes and monthly expenses are paid, Jeff still has $56,548.56 left over each and every month as a result of the income produced by the businesses created during the marriage. The chancellor ordered Jeff to pay $7,500 a month in child support and $7,500 a month in permanent periodic alimony. After Jeff pays that court-ordered child support and alimony, as well as his monthly expenses, Jeff still has $41,548.56 left over each and every month. On the contrary, April has personal monthly expenses in the amount of $7,199.50 and presently collects $7,500 in alimony. Therefore, Jeff has $41,548.56 left over while April has $300.50 left over each month from the businesses that were part of the marital estate. [Fn 12] The chancellor attempted to lessen this disparity by his award of permanent periodic alimony coupled with the lump-sum alimony and the division of the marital estate. That finding by the chancellor is supported by the record and does not appear excessive or to be an abuse of discretion. Therefore, the order of alimony is affirmed.
12 This figure does not include the children’s expenses or the child support payment of $7,500 that Jeff was ordered to make each month. Further, this figure would not include any other expenses that April does not have if she is still employed by the Descher corporation.
Judge Jack Wilson wrote the dissent, joined by Judge Cory Wilson.
An Assertion is not Conclusive Proof
February 25, 2020 § Leave a comment
Raymond Reynolds appealed from the chancellor’s ruling on equitable distribution in his divorce case with his wife, Kay. Raymond complained on appeal that the chancellor had erred in not considering Kay’s withdrawal of $6,000 from their joint account counter to the temporary order’s injunction.
The COA affirmed 10-0 in Reynolds v. Reynolds, decided December 17, 2019. Here’s how Judge Tindell’s opinion dealt with Raymond’s claim:
¶19. Prior to distribution, the chancellor entered a temporary order on May 20, 2014, which enjoined the parties from liquidating, transferring, or changing beneficiaries for any marital assets. Raymond claims that Kay transferred approximately $6,000 from the couple’s joint checking account after this order was entered. Raymond now argues that the chancellor abused his discretion by failing to consider this transfer in his Ferguson analysis before distributing the couple’s marital assets.
¶20. The second Ferguson factor requires the chancellor to consider any dissipation of the marital assets, or “the degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.” Ferguson, 639 So. 2d at 928. While Mississippi has no specific test for discerning the dissipation of marital assets, “we find it reasonable when considering if marital assets have been dissipated to look to whether the assets in question were actually wasted or misused.” Smith v. Smith, 90 So. 3d 1259, 1268 (¶37) (Miss. Ct. App. 2011).
¶21. In his final judgment, the chancellor stated that he did not find any unreasonable dissipation of marital assets by either party prior to the injunction of the temporary order or prior to trial. Raymond disagrees with this finding, arguing that he provided the chancellor with undisputed testimony that Kay took approximately $6,000 from the parties’ joint checking account in violation of the temporary order and that the chancellor failed to include this in his Ferguson analysis. However, Kay disputed Raymond’s testimony herself by testifying that Raymond actually withdrew $7,000 from the joint checking account, and she did not. She further testified that when she withdrew from the account, there was only approximately $1,000 left in the account.
¶22. Also, as Kay asserts in her brief, no evidence exists in the record establishing if or exactly when any transfers from the joint checking account would have occurred. Raymond provided no documentation of the alleged transfer to the chancellor prior to or during the trial. The only evidence Raymond used to establish this claim is his own testimony and nothing more. As such, the chancellor had no substantial evidence of Kay’s alleged transfer before him to incorporate into his Ferguson analysis. We therefore find Raymond’s argument to be without merit and find that the chancellor was well within his discretion in determining that no dissipation of assets occurred.
Every chancellor can recount from experience many times when the only evidence on a particular point is one party’s assertion opposed by the other party’s assertion, both unsupported by any other evidence. In that situation the lawyers have left it up to the judge to conclude either that (1) both are credible and the conflict simply can not be resolved, or (2) one is credible and the other is not, and the court goes with the credible one.
When I am presented with a similar situation I wonder why neither party offered the bank statements into evidence, or a series of corroborating text messages, or an admission, or something, anything, to break the tie. Most lawyers do enough discovery to foresee the conflicted positions and to anticipate a way around it. I’m not trying to criticize the lawyering in this case because I don’t know everything that transpired. I am only using this case to illustrate for you what can happen when the testimony is conflicting on a point that proves to be important in your case.
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