Affirmative Defenses in Divorces

December 9, 2014 § Leave a comment

MRCP 8(c) requires that you plead in your responsive pleadings any matters that constitute “an avoidance or affirmative defense.” Specifically listed in the body of the rule are matters such as statute of limitations, accord and satisfaction, res judicata, etc.

Some of those listed defenses may be available in chancery matters such as contract disputes, land matters, and business dissolution, but they have no application in divorce, as I posted here before; nonetheless, some lawyers plead them in mechanical fashion, raising some humorous implications.

In a divorce case, there are some well-established affirmative defenses to grounds for divorcethat are not listed in R8, but that need to be pled in order to invoke them. They include:

  • Prior knowledge. This applies where the spouse knew, for instance, that the wife was pregnant by another man when he married her, and yet married her anyway. Or that the wife knew before the marriage that the husband was a drug addict, and went ahead with the marriage despite the knowledge.
  • Ratification and condonation. Two closely related concepts. A party gives up a ground by continuing to live with the other after knowledge of fault. These defenses have somewhat limited application in HCIT.
  • Recrimination. An archaic defense no longer favored in our law, by which the proponent may be denied a divorce if he is guilty of a ground for divorce.
  • Reformation. Applicable primarily in habitual drunkenness and drug use cases, where the accused party has quit abusing the substance.
  • Connivance and collusion. Where the parties have conspired either for one to allow the other’s wrongful conduct so as to create a ground, or where the parties have agreed to perjure themselves to do so.
  • Res judicata. Same parties and same issues in a previous matter that was reduced to a final judgment.

A comprehensive look at these and several lesser-known defenses is found in Professor Bell’s Mississippi Family Law, 2d Ed., § 4.03, pp. 99-104. If you practice any family law, and you don’t have a copy of her definitive treatise, you need to get one asap.

The clear and obvious thread running through the affirmative divorce defenses listed above is that they each are “an avoidance or affirmative defense” to a ground for divorce.

If you fail to plead affirmative defenses to grounds for divorce on behalf of your client, the only way you may present them at trial is if they are tried by consent. If, on the other hand, the other side objects, the judge will have to sustain the objection and exclude the testimony.

In the case of Lee v. Lee, decided by the COA on November 25, 2014, Nikki Lee charged her husband, Chris, with habitual drunkenness. He did not plead any affirmative defenses, but at trial he attempted to put on proof that Nikki knew when she married him of his drinking habits. Nikki objected, and the chancellor excluded the evidence, ruling that Chris had waived the defense by not pleading it affirmatively. Chris appealed.

Judge Griffis, for the unanimous court:

¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27) (Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).

¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).

¶17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled:

“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.

¶18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.

¶19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v. Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’” Id. (citation omitted).

The court went on to analyze the record, and concluded that the issues had not been tried by implied consent, and the chancellor’s ruling was affirmed.

Next time you represent a Chris in a case similar to this, be sure to assert in your responsive pleading every matter you feel may raise a legitimate affirmative defense. I say legitimate because it seriously detracts from your credibility to plead things like accord and satisfaction, or assumption of risk, or injury by fellow servant in your answer to a divorce complaint. But it makes perfect sense to spell out with whatever label you apply that the other party had pre-marriage knowledge, or that he condoned the conduct, or any other matter that legitimately constitutes “an avoidance or affirmative defense.” You are not limited to the classic defenses, but the matter must be an actual, arguable defense.

If you represent a Nikki, object vociferously to any attempt to put on proof of unpled defenses. Protect your record. In this case, Nikki’s attorney protected her record, and the outcome was favorable to Nikki.

The Missing Link

September 22, 2014 § 6 Comments

Here’s a typical trial scenario with inexperienced lawyers:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?

Stop right there. What did L1 not do that he should have done?

If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.

In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”

MRE 103(a)(2) covers the point:

(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: We ask that this document be marked for identification purposes only.

That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.

Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.

That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.

Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.

This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.

If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.


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