Friday, March 9, 2018

Moving and Child Support

Moving to another state can have effects on child support.  Normally as long as one party stays in the state that issued the child support, the court there continues to have jurisdiction over it.  However, what happens when everyone moves to another state?

(1)  "In Mississippi, petitions to modify foreign child support orders are

governed by Mississippi's version of the Uniform Interstate Family Support Act," codified in Mississippi Code Annotated sections 93-25-1 through XX-XX-XXX (Rev. 2004). Nelson v. Halley, 827 So.2d 42, 44(¶ 8) (Miss.Ct.App.2002).  The UIFSA governs the question of subject matter jurisdiction, it may be raised at any point during the proceedings. See Esco v. Scott, 735 So.2d 1002, 1006(¶ 14) (Miss.1999).

The Mississippi Supreme Court, in Nelson, set forth the basic

framework of the UIFSA:

The first step under the proceedings authorized by this state's version of UIFSA is to file the foreign judgment in an appropriate chancery court. Once the judgment is registered, the subject matter of this state's jurisdiction on that foreign judgment depends on the residences of the individuals affected. The subject matter is alterable by consent. Regardless of consent, the judgment can be enforced much more readily than it may be modified.

Id. at 45(¶ 10).

           Child support provisions are governed by Mississippi Code Annotated section 93-25-101 of the UIFSA, which states the following:

(1) If Section 93-25-107] does not apply, except as otherwise provided in Section 93-25-108, upon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that:

(a) The following requirements are met:

(i) Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;

(ii) A petitioner who is a nonresident of this state seeks modification; and

(iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or

(b) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

(2) Modification of a registered child support order is subject to the same requirements, procedures and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.

(3) Except as otherwise provided in Section 93-25-108, a tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the order of support. If two (2) or more tribunals have issued child support orders for the same obligor and the same child, the order that controls and must be so recognized under the provisions of Section 93-25-21 establishes the aspects of the support order which are nonmodifiable.

(4) In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor's fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.

(5) On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.

Miss.Code Ann. § 93-25-101 (emphasis added).

            To put the issue simply, if the parties to a child support order move to different states, the payor must seek modification in the payee’s state of residence.   See Patterson vs. Patterson, 20 So.3d 65, 69-71 (Miss. Ct. App. 2009)(California no longer had exclusive jurisdiction to modify after a mother and child moved to Mississippi and the father to Maryland.  Maryland, not Mississippi was the state with jurisdiction to hear the mother’s petition to increase child support.)  Ironically, if the payee is seeking modification, they must go to the payor's state.  This is a very complicated area. 

Wednesday, March 7, 2018

Tennessee Issue of Interest

Tennessee Attorney General Opinion 15-14 states that an ordained minister of the Universal Life Church is not considered a valid marriage under Tennessee law.  The ministers are essentially ordained online with no requirements.  The opinion is located here. The opinion points to Tennessee Code Annotated  § 36-3-301 which provides in the pertinent part, as follows: "In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act. Tenn. Code Ann. § 36-3-301(a)(2) (emphasis added).  I think that last part of the statute may be an area of litigation in Tennessee and Mississippi.  Some churches truly have ministers but there is no formal ordination process. 

Wednesday, February 28, 2018

Sword and Shield of Attorney Client Privilege

A party cannot normally assert attorney advice and a defense and then turn around and claim privilege whenever the matter is discussed in more detail.  A good summary of the law in Mississippi is located in a recent 5th Circuit opinion located here.

Monday, February 19, 2018

Case of Interest

On February 8, 2018, the Mississippi Supreme Court decided McKinney vs. Hamp located here.  There were a number of issues of first impression of interest in the opinion listed below.

(1) Supersedes bond is not available on prospective child support.  It is still available for money bond on past due child support.   From my reading on this, I think there is a good argument alimony is likewise not subject to bond.  I have assisted attorneys in the past in asking for supersedes bond on alimony and they have been denied the same in some unpublished opinions. 

(2) "This Court has looked to our statutory law and has held that “‘[a]n upward retroactive
modification may be ordered back to the date of the event justifying the upward
modification.’” A.M.L. v. J.W.L., 98 So. 3d 1001, 1018 (Miss. 2012) (citing Miss. Code
Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original).  Section 43-19-34(4) still provides
the same today.  See Miss. Code Ann. § 43-19-34(4) (Rev. 2015).  But we have also
suggested that “the better rule is to allow modification amounting to an increase in support
as of the date of the petition to modify or thereafter, within the sound discretion of the trial
court.”  Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss. 1991).  This is a discretionary
This is the first case I am aware of to look at 43-19-34(4).  However, the opinion gives no guidance on what would constitute an abuse of discretion in this context of the statute. 

(3)  "...the chancellor failed to consider the factors laid out in Louk when considering the tax
issue.  See Louk v. Louk, 761 So. 2d 878, 883-84 (Miss. 2000).  But in truth, this Court has
not established a specific test for allocating child tax exemptions, though we have discussed
some suggested considerations.".  Id.

Apparently, the Louk case is not a test but factors to consider.  My reading is that the court has to consider the factors in some way on the record before determining who is to get the deduction. 

(4) Advice of counsel may prevent a finding of willful contempt.  However, the Court hinted that this may not always be a defense. I am not sure how to interpret the hinting language.  My guess would be that there has to be good faith reliance on the advice. 

Friday, February 9, 2018

Footnote of Interest

Last Tuesday, the Mississippi Court of Appeals decided Dixon v. Dixon located here.  There is an interesting footnote in the opinion of interest.  The Court found in a footnote that deposition testimony may be taken as substantive proof and found more credible than trial testimony.  The footnote 9 stated:

9 It is true, as the partial dissent points out, that Tracy contradicted himself at trial. However, the chancellor, as the finder of fact, was entitled to find Tracy’s deposition testimony more credible than his trial testimony.  See Henson v. City of Dundee, 682 F.2d 897, 908 n.16 (11th Cir. 1982) (explaining that if a party’s trial testimony contradicts his prior deposition testimony, and the deposition testimony is “read . . . to” and “acknowledged” by the party at trial, the fact-finder may then consider and rely on the deposition testimony “as substantive evidence”).

Thursday, February 8, 2018

Damages for Vulnerable Adults

Came across the following when working on a civil suit to recover money for a vulnerable adult:

Mississippi Code 11-7-165 (1)

(1) In a civil action where it is proven that a person took property having a value of Two Hundred Fifty Dollars ($ 250.00) or more belonging to a vulnerable adult by conversion, embezzlement, extortion, theft or fraud without the owner's consent, or obtained the owner's consent by intimidation, deception, undue influence or by misusing a position of trust or a confidential relationship with the owner, then whether the action is to recover the property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property embezzled, converted or otherwise stolen, in addition to any other damages.

The statute appears to authorize the award of three (3) times the damages which can make an easy multiplier on the case.  

Friday, February 2, 2018

Divesting of Title

Learned this little tidbit today on title in chancery for title insurance purposes.  If title is divested by Court order, the title insurance companies will not insure it if the order does not have the language that title is vested in one party and divested from another.  The order also has to specifically state that the title is divested pursuant to Rule 70 of the Mississippi Rules of Civil Procedure. 

Normally a quit claim deed would prevent any of these issues.  In the rare case a court order is all there is, the above will have to be used.