TRIAL BY CHECKLIST: UPDATED ALIMONY FACTORS

September 24, 2012 § Leave a comment

The 12 Armstrong factors have long been the decisive authority to be applied by the court in making its determination as to the type, amount, and reasonability of alimony. In the recent COA case of Pecanty v. Pecanty, decided September 18, 2012, however, Judge Fair’s opinion cited (at ¶25) to the 2002 Davis v. Davis case, 832 So.2d 492, 497, where the MSSC laid out 17 factors. Here’s the pertinent language from Davis:

In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider “not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living.” Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).

The Davis factors expand on the Armstrong factors in several significant ways:

  • In addition to “the reasonable needs of the parties,” the court is to consider the reasonable needs of the child. This is significant because it opens the door to evidence about the impact that a child has not only on the expense and availability of child care, as set out in Armstrong, but also to the other needs of the child above and beyond child support, and how those needs impact the alimony recipient’s living expenses.
  • In addition to the Armstrong “tax consequences of the spousal support order,” Davis directs the court to consider the amount of income taxes the respective parties must pay on their incomes. Under Davis, the trial court must address not only the tax consequences, such as deductability, but also the availability of refunds, deductions, exemptions and other factors that influence income taxes upward or downward.
  • The fact that “the wife” (read “payee”) has free use of the home, furnishings and automobile is included as a factor. Granted, it has long been the law in Mississippi that those items are considered as part of the spousal support package, but the inclusion as a factor to be considered promotes it to a higher level of consideration.

It can be argued that Davis does not really add anything new to Armstrong. That may be so, and most attorneys, in presenting their Armstrong proof cover the same bases (except for income tax proof, which lawyers rarely touch on) for the most part. Still, I think it’s worth adding these to your portfolio of useful checklists. After all, in affirming the chancellor in Pecanty, Judge Fair noted with favor that she ” … addressed the seventeen factors set out in Davis … ” If he (and the rest of the COA) considered them noteworthy, we would be wise to do the same.

REVISITING TRIAL CHECKLISTS

November 22, 2011 § 2 Comments

Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject. 

 I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

Many lawyers have told me that they print out these checklists and use them at trial.  I encourage you to copy these checklists and use them in your trial notebooks.  And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it. 

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.

Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.

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