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.

EXPERT OPINION TESTIMONY: SOME BASICS

September 19, 2011 § 5 Comments

Experts often testify in chancery. They address child custody, business valuations, property appraisals, surveys, tax issues, handwriting, competency, medical and health matters, and many other subjects almost too varied to imagine. MRE 702 allows you to call a qualified witness who has “scientific, technical, or other specialized knowledge” that will assist the chancellor in understanding the evidence or to determine a fact in issue. 

The catch is that the witness must be (a) qualified, and (b) have scientific, technical or specialized knowledge that will assist the court in adjudicating the case. It’s up to you to make a record that your witness meets the criteria of the rule. 

You won’t get off the starting line, though, if you haven’t done your pre-trial work vis a vis your expert. Remember that if you are asked in discovery to identify your expert(s), you must do so not less than 60 days in advance of trial, per UCCR 1.10, or run the extremely likely risk that you will be denied the opportunity to call that witness as an expert. Merely including the name of an expert in a general witness list is not enough to meet the requirement of the rule. And if you are asked to provide the expert information required in MRCP 26(b)(4), you must timely provide it — all of it, in a responsive manner — or you may be left expert-less in that trial.

Calling an expert as a witness at trial is a two-phase process:

First, you must qualify the expert and tender the witness as an expert, at which point the other side will be given the opportunity to voir dire the witness as to qualifications to testify as an expert. The court will then hear any objections to the qualifications. If the court rules that the witness does have expert qualifications, you move to the next phase.

Second you take the expert testimony itself. Before you get into the substance of that testimony, though, you must establish that the expert’s opinions will be reliable, using the factors set out in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993).

Here is the process, step by step:

  1. Identify the witness.
  2. Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
  3. Tender the witness as an expert.
  4. Address any objections to qualifications.
  5. Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
  6. Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
  7. Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
  8. Develop the expert opinion.

Some factors you might want to consider in developing whether the expert applied the principles and methods of his field reliably to the facts in your case:

  • Have the principles and methods used been tested, or can they?
  • Have the principles and methods been subject to professional critique, peer review, and publication?
  • What is the known error rate for the principles and methods, and what are the means to control or reduce the error rate? What measures were taken to control the error rate in this case?
  • What is the extent to which the principles and methods have been accepted in the field?
  • Is the opinion based on research or study that the expert did independent of the litigation?
  • Has the expert adequately addressed and accounted for alternative or contradictory explations? How did the expert rule them out?
  • Did the expert employ the same standards and techniques in reaching the opinion in this case that he does in the normal course of his professional work?
  • Is there a discrepancy between the data and the conclusions reached by the expert? How does the expert explain the discrepancy and rule out other conclusions?
  • How does the expert’s opinion tie in to the facts in this particular case?

Obviously the way you develop your expert’s testimony will depend both what is at issue in the case and the expert’s field of expertise. A child psychologist in a custody case will require a different approach than, for example, a handwriting expert in a will contest.

With respect to qualifications, it’s a good idea always to get the expert’s CV (curriculum vitae) and offer it into evidence. Once it gets into evidence, it may prompt counsel opposite into stipulating that it does, in fact, state the witness’s proposed qualifications, which may eliminate lengthy testimony. With no jury to impress, there’s no need to put on a show about the witness’s impressive credentials.

The court always has the discretion whether to allow an expert’s testimony at all. If the court finds that the subject matter of the opinion is not sufficiently scientific, technical or otherwise specialized, the court can rule that an expert need not be called. For example, if the judge or any other lay person can determine that the ground became wet after a rain, it is not necessary to have expert testimony on the point. Likewise, an expert on the law is unnecessary and superfluous because the trial judge is the expert on the law of the case (at least until the COA reviews it).

TRIAL BY CHECKLIST: ATTORNEY’S FEES IN AN ESTATE

March 16, 2011 § 15 Comments

A practice tip about trial factors is here.

I previously posted here about what it takes to comply with the UCCR to document your claim for attorney’s fees in an estate.

Ordinarily, attorney’s fees claims are governed by the factors in McKee v. McKee, but in an estate, the factors are slightly, but significantly, different.

In estate matters, the proper factors to consider in determining reasonable attorney’s fees are:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  3. The fee customarily charged in the locality for similar legal services;
  4. The amount involved and the results obtained;
  5. The time limitation imposed by the client or by the circumstances;
  6. The nature and length of the professional relationship with the client;
  7. The experience, reputation and ability of the lawyer or lawyers performing the services; and
  8. Whether the fee is fixed or contingent.

In re Estate of Johnson v. Moore, 735 So. 2d 231, 237 (¶27) (Miss. 1999) (quoting Moreland v. Riley, 716 So. 2d 1057, 1062 (¶16) (Miss. 1998)).

 In the case of Catchings v. Estate of McCullough, decided March 15, 2011, the COA reviewed a chancellor’s decision that reduced attorney’s fees in an estate.  The attorney claimed $88,000 in fees in connection with a $300,000 estate, but the chancellor found that the amount of work done did not warrant that amount of fees and reduced the fee award to $36,000, based on application of the Johnson factors stated above. The COA found no abuse of discretion and upheld the chancellor’s determination. 

If you have an exceptionally large claim for attorney’s fees in an estate, it would be a good idea to attach your and a fiduciary’s affidavit itemizing the time spent and addressin each of the Johnson factors.

TRIAL BY CHECKLIST: ADVERSE POSSESSION

July 12, 2010 § 11 Comments

A practice tip about trial factors is here.

Section 15-1-13, MCA, sets out a six-part test that must be applied to determine whether adverse possession has occurred. 

In order for possession to be adverse, it must be:

  1. Under claim of ownership.  The possessing party must have acted with respect to the land as if he or she owned it. Jordan v. Peters, 986 So.2d 1018, 1022 (Miss. App. 2008); 
  2. Actual or hostile.  Actual possession is effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses. Blankenship v. Payton, 605 So.2d 817, 819-820 (Miss. 1992); 
  3. Open, notorious and visible.  In order for possession to be open, notorious and visible, “An adverse possessor must unfurl his flag on the land and keep it flying so that the owner may see … that an enemy has invaded his domains, and planted the standard of conquest.” Sturdivant v. Todd, 956 So.2d 977, 982 (Miss. App. 2007);
  4. Continuous and uninterrupted for a period of ten years.   Possession may be tacked on to the possession of predecessors in title. Jordan, at 1023;
  5. Exclusive.  The law requires that the person possessing the property in question must intend to possess the land over all others and to the exclusion of all others. Sturdivant, at 992; and
  6. Peaceful.  The adverse possession must be peaceful and unchallenged by the title owner. See, Sturdivant, at 987.

The claim of adverse possession must be established by clear and convincing evidence. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss. 1992).

The adverse possession statute was enacted by the legislature to address the serious problems caused by landowners who ignore claims or encroachments over long periods of time. Clanton v. Hathorn, 600 So.2d 963, 966 (Miss. 1992).

There are various cases interpreting the adverse possession factors.  The cases cited here are only a basic introduction.

 

TRIAL BY CHECKLIST: ATTORNEY’S FEES

July 9, 2010 § 20 Comments

A practice tip about trial factors is here.

If you are expecting an award of attorney’s fees in your case, you must put on proof of the quantity of work that was done to earn the fees, as well as the amount of the fees.  In the case of McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982), the Mississippi Supreme Court set out the following factors that must be considered by the court in determining the proper amount of attorney’s fees to be awarded:

  1. The parties’ relative financial ability;
  2. The skill and standing of the attorney;
  3. The novelty and difficulty of the issues;
  4. The degree of responsibility involved in management of the case;
  5. Time and labor;
  6. The usual and customary charge in the community;
  7. Preclusion of other employment as a result of accepting the case.

If McKee factor evidence is not submitted, the court may deny your prayer for attorney’s fee, and if the trial court does award it, it may be thrown out on appeal. 

In a divorce case, an award of an attorney’s fee is properly made only to a party who proves inability to pay and there is proof of the McKee factors.  In Turner v. Turner, 744 So.2d 332, 338 (Miss. App. 1999), the trial court’s award of attorney’s fees was reversed where no itemized account was introduced into evidence, and the only testimony of fees was that the fee charged was $1,500 and that the party seeking the award was unable to pay it.

In other cases, an award of attorney’s fees may be made regardless of ability to pay where the party is found in contempt, or is found guilty of dilatory behavior or behavior that causes the other party undue expense, or for frivolous litigation, or for unfounded allegations of domestic abuse.  In such cases, the proof of attorney’s fees should be supported by proof of the McKee factors.

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