Another Death Bell on Failing to Respond to Requests for Admissions

The Court of Appeals yesterday slammed another case for failure to respond to requests for admissions.  This is why I am paranoid about them and want them gone as quickly as possible with confirmation they were sent.  I previously discussed requests for admissions here.  In Rainer v. Walmart located here, the Court of Appeals affirmed a grant of summary judgment by the trial court on a personal injury matter for failure to respond to the requests for admissions.  The trial court is given a lot of discretion to withdraw the admissions but the appellant's counsel appears to have not offered much of an explanation to the trial court as to his failure to respond.   As such, the grant of summary judgment by the trial court was affirmed. Cases like this should make any practicing attorney nervous and calendar up the dates carefully on discovery on receipt.  Phillip Thomas in Jackson has started an excellent blog on Legal Malpractice located here.  In one of the recent articles he discussed missing deadlines as one of the leading causes of malpractice claims.  Take note or your former client along with your insurance carrier will be having long discussions about you over dinner. 

Fair Credit Reporting Act

A jury in Oregon has awarded a woman eighteen million dollars against Equifax for violations of the Fair Credit Reporting Act.  This is the largest verdict ever from my understanding in this type of case.  A link to the story is here.  The Fair Credit Reporting Act allows a consumer to get a free copy of their credit report from the big three credit bureaus once a year.  It also has various statutory penalties for failure to correct the credit report once they are notified of certain errors.  As far as legislation goes, this one is pretty well written and certainly has some teeth.   

Temporary Order as Permanent Order?

You have to be careful not to let a custody case drag on for too long especially if you are on the losing end at the temporary hearing.  If the order sits for too long, our appellate courts have held that may be seen as the final order of the Court and necessitate a finding for modification in order to change it.  Temporary orders that acquire "incidents of permanency" become permanent orders for the purpose of assigning the burden of proof in child custody modification cases. Swartzfager v. Derrick, 942 So.2d 255, 258 (¶ 10) (Miss. Ct. App. 2006); Thompson v. Thompson, 799 So.2d 919, 926-27 (¶ ¶ 29-30) (Miss. Ct. App. 2001). The passage of time - -four years in Thompson and almost three years in Swartzfager - -was sufficient to provide the temporary orders with "incidents of permanency," thereby creating a permanent order of the temporary order and shifting the burden of proof to the non-custodial parent to demonstrate a need for a change in custody by a showing of a material change in circumstances adversely affecting the child. See Swartzfager, 942 So.2d at 258 (¶ 10); Thompson, 799 So.2d at 927 (¶ 30).

Cases drag on for years on occasion for a variety of reasons.  This line of cases is something to be aware of.  Logically, the same analysis could potentially be used regarding alimony although there are no current cases on it I am aware of. 

Physical Exam

In a divorce case, I have gotten where I encourage my clients to get a physical exam prior to the divorce being final.  There are all kinds of reasons.  First is the obvious one if one party has had an extramarital relationship, a physical needs to be done to make sure no STD has been given to the party.  Additionally, on occasion a party may learn from a physical they have some form of cancer.  This can make a huge difference in the amount of alimony a party may have to pay, receive, or may be a factor justifying the payment of no alimony. 

Alternative Collection of Support

There are alternative means of collection in Mississippi for child support and alimony in Mississippi.  Attached is a letter that was shared with me last week written by Kermit R. Cofer who is a former Mississippi Supreme Court Justice.  It is attached here.   It discusses alternatives to collection via contempt petition.  Contempt is usually the fastest way to collect unless you have a party evading service.  In that case, some of the methods discussed here may be helpful.  The letter was written in 1975 but the statutes and old case law still allows for collection this way.  Your biggest battle may be convincing the court to issue garnishments and such without an order from the Court. 

Cigarettes and Custody

Cigarettes are bad for your health.  The Mississippi Court of Appeals in a few recent opinions is taking it a little further now.  Cigarettes may be a basis for modification of custody.  Yesterday in Powe v. Denmark located here, the Court of Appeals affirmed a chancellor's modification of custody based in part on the children's exposure to cigarette smoke.  The Court found that the cigarettes in conjunction with other factors in the Mother's home was a sufficient basis to modify custody to the Father.  Earlier this year in Tidmore v. Tidmore located here the Court of Appeals found that cigarette smoking in the presence of a child can weigh against a parent in an Albright analysis of custody.  As such, a smoker now has issues with his health and potentially retaining custody of his or her children if the smoking is affecting the kids.

Book Review

I just finished reading Trial by Human by Nicholas Rowley and Steven Halteman which can be purchased from Trial Guides.  This is one of the better trial books I have read on personal injury.  It includes a CD of a number of transcripts to show how the methods in the book are applied.  Very few books live up to the hype, but this one is an exception.  This is one of the absolute best books I have read on trial practice in recent years and required reading if you are doing a jury trial.  The transcripts included are extremely valuable and it is well worth the investment.   

Timelines

Preparing a timeline can be extremely helpful in nursing home cases and also divorce cases.  It can be used to explain sequences of events and gives a good visual for the judge and/or jury to visualize the story of what is happening.  These can be made in Microsoft Word fairly cheaply.  A link to a site to show you how is here.  These can then be blown up to Exhibit size at OfficeMax or another provider relatively cheaply. 

Tennessee Parenting Plan Change

Well, I decided to throw in a second post today for the Tennessee side of my practice.  I have been having to venture across the stateline more and more recently.  On July 1, 2013, the parenting plan form has changed yet again for Tennessee.  The new form is located here.  A colleague of mine pointed out the changes to me.  Some of the changes in Tennessee include  shortening the move distance that trip the move away statute from 100 miles to 50 miles and the removal of the prohibition of others speaking badly of the other parent in the child's presence.  Some of the Tennessee judges have raised the issue that the form is jurisdictional and that failure to use the actual form may make the divorce void.  I am not sure that is the case but I am going to use the current form anyway as to not find out. 

Reverse Mortgage as Settlement Tool

Lots of times there are issues where home equity in a divorce needs to be paid out or alimony payments A reverse mortgage can be an effective tool to structure these payments.  A reverse mortgage allows a homeowner to draw the mortgage principal in a lump sum, receive monthly payments over a specified term or over their lifetime as a revolving line of credit, or some combination thereof.  This can be a good option to give divorcing spouses financial security and additional payment options in dealing with a wide scope of financial issues.  This is definitely something to look into in the right circumstances. 

Effect of Relocation on Child Support

I had previously talked about the effect of relocation on custody here.  However, can it affect child support?  Answer seems to be yes to some degree. Take a look at Garcia v. Garcia,   97 So.3d 109 (Miss.App. 2012) located here.  In this cause, the Court of Appeals affirmed a chancellor in declining to increase child support because of the travel expenses the father had in going to see the minor child after a move.  Mississippi Code Section 43-19-103 provides a number of areas where a chancellor may deviate from the child support guidelines when equity dictates.  Deviation criteria is one of the most heavily under litigated areas in family law.  If you have a good reason that sounds fair, it is worth taking a shot under the deviation criteria as the father in Garcia found out.  If you don't ask, the answer is always no. 

Rule 81 Mess

The Court of Appeals in Mississippi threw a big curve ball yesterday in Curry v. Frazier.  A link to the opinion is here.   If the Mississippi Supreme Court does not take up the issue, from my reading of the opinion you may now have to issue a Rule 81 summons and serve the other party on a counterclaim.  Potentially to me the facts are distinguishable.  To me it looks like the issue was that the original petitioner had only issued a Rule 4 summons. As such, there was no attachment of jurisdiction over the parties to decide a Rule 81 matter. My opinion has been that jurisdiction attaches to both parties on a Rule 81 matter since equity does not occur in halves and that a counterclaim can be heard at the trial of the original Rule 81 matter with Rule 5 notice to the opposing party.  This is a potential mess the Rules Committee needs to look at.  I think the dissent had the right idea that you waive the issue if you participate in the hearing.  Might be worth updating the office forms to add a waiver provision for serve of process on a counterclaim in an order setting a matter for trial.

Spoliation of Evidence

It always amazes me how quick evidence can disappear when you finally get close to the smoking gun in a case.  Spoliation of evidence is a severe problem in both personal injury and domestic cases.  Bank records disappear, Facebook items disappear, and all other sorts of items.  This is an issue that often times needs to be pushed.  They are a multitude of remedies for spoliation including striking experts, entry of a default judgment against other party, and jury instructions that the evidence would be favorable to the other party. 

In Mississippi, some courts have concluded that only the intentional spoliation of evidence by a party will give rise to an inference that the evidence destroyed was unfavorable to the party responsible for the destruction. Tieken v. Clearing Niagara, Inc., 1997 WL 88180 (N.D. Miss. 1997) (stating that such an inference arises “only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth . . . .”) (citing Wilson v. State, 661 So. 2d 1109, 1115 (Miss. 1993)(Smith, J., dissenting) (quoting Washington v. State, 478 So. 2d 1028, 1032 (Miss. 1985)); Stahl v. Wal-Mart Stores, Inc., 47 F. Supp. 2d 783, 786 (S.D. Miss. 1998). Accord Estate of Perry v. Mariner, 927 So. 2d 762, 767 (Miss. App. 2006); Mississippi Dept. of Transp. v. Trosclair, 851 So. 2d 408, 415 (Miss. App. 2003) (citing Stahl and finding that intentional conduct is necessary for an adverse inference); Cox v. State, 849 So. 2d 1257, 1266 (Miss. 2003) (criminal case).

However, a showing of intentional misconduct and bad faith should not put too heavy a burden upon a litigant seeking an adverse inference instruction.  As explained by the Mississippi Supreme Court:

“Requiring an innocent litigant to prove fraudulent intent on the part of the spoliator would result in placing too onerous a burden on the aggrieved party.  To hold otherwise would encourage parties with weak cases to “inadvertently” lose particularly damning evidence and then manufacture “innocent” explanations for the loss.  In this way, the spoliator could essentially destroy evidence and then require the innocent party to prove fraudulent intent before the destruction of the evidence to be used against it.”

  Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). See DeLaughter v. Lawrence County Hosp., 601 So. 2d 818, 822 (Miss. 1992) (stating that when medical record is unavailable due to negligence, "an inference arises that the record contained information unfavorable . . . and the jury should be so instructed”); Young v. Univ. of Miss. Med. Center, 914 So. 2d 1272, 1277 (Miss. App. 2005) (“finding of spoliation may be supported by intentional or negligent destruction of evidence”).  On that same note, a court cannot simply take spoliators at their word that there was nothing of consequence on a piece of destroyed evidence.  Doing so would create a rule that evidence be viewed in the light most favorable to the spoliator.  The law does not require this.  Further, doing so would give litigants an incentive to destroy evidence. 

 

As someone once told me, no one losses favorable evidence.  Several cases I have had resolved quickly once spoliation issues came to light.  Logically if an adverse inference instruction can be given to the jury in these circumstances, a chancellor should be allowed to make an adverse inference in a domestic case if information is lost under similar circumstances. 

Adultery

One of the more common questions I get in a custody case is how does my extramarital relationship hurt my chances for custody?  How the issue is to be legally addressed was stated by the Mississippi Supreme Court in Carr. v. Carr, 480 So.2d 1120 (Miss.1985). In Carr, the chancellor found both parents fit to have custody, but ultimately awarded physical custody to the father based on the mother's adultery. The Mississippi Supreme Court held: " [T]he fact of adultery alone does not disqualify a parent from custodianship[,] but ... the polestar consideration in original custody determinations is the best interest and welfare of the minor child." Carr, 480 So.2d at 1121. However, the supreme court nonetheless upheld the chancellor's decision stating: " It is apparent that the analysis considered adultery as but one factor in the overall consideration." Id. at 1123. 

What this amounts to is that adultery is a fact the Court has to consider.  The better question from my experience concerns more of how the affair did or did not affect the ability of the parent to care for their children and where the children were when the acts were taking place?    From a practical standpoint I have noticed that chancellors seem to give more weigh to women having affairs than men.  Right or wrong, the logic seems to be that typically with homemaker spouses that they were presumably neglecting the children and the performance of certain household duties in order to have the affair. 

Third Amendment Suit

I was reading an interesting article this morning located here.  The article deals with a suit by a family for violation of their Third Amendment rights under the United States Constitution which deals with the quartering of soldiers without the homeowner's consent.  The case alleges that police officers without the homeowner's permission occupied their home in order to monitor a neighbor.  These suits are extremely rare on Third Amendment grounds.  Most of these personal injury type suits against police entities deal with excessive force and other civil rights violations.  This will be an interesting case to watch.    

Relocation

One issue I have clients come to see me about on a regular basis is what affect relocation has on a prior custody order.  A relocation in and of itself is not enough to change custody.  See

Cooley v. Cooley, 574 So.2d 694, 699 (Miss. 1991) (frequent moves within a short period of time, including move to Japan, insufficient to warrant change in custody) (overruled on other grounds); Spain v. Holland, 483 So.2d 318, 321 (Miss. 1986) (move to England does not require change in custody); Pearson v. Pearson, 458 So.2d 711, 713 (Miss. 1984) (move to Hawaii no per se basis for interfering in custody); Brocato v. Walker, 220 So.2d 340, 344 (Miss. 1969) [(move to San Antonio, Texas, not a material change in circumstances). See also Stevison v. Woods, 560 So.2d 176, 180 (Miss. 1990) (move to Alaska, along with split custody and poor relationship with child were "unusual circumstances" warranting change in custody). As stated in Spain v. Holland, 483 So.2d 318 at 321, "we close our eyes to the real world if we ignore that ours is a mobile society. Opportunity and economic necessity transport perfectly responsible adults many miles from their homes."

 

With the economy like it is, people are moving a lot as of late creating more litigation concerning custody.  The relocation itself is not enough and you have to still show the traditional standard for modification of custody.  In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

 

The best analogy in these cases is the relocation plus something else affecting the child to give the best shot at changing custody.  The best advice is if one is moving who has custody, file before the move to modify visitation previously discussed here.   If one is the noncustodial parent, look for something besides the move itself which adversely affects the child.   

 

Judical Notice

Judicial notice is one of those things that is not used enough to me in some cases.  I am always paranoid and want to get as much as possible admitted into evidence prior to a formal trial.  In post-divorce cases, this lots of times involves showing that the prior orders of the court were violated, vague, etc.   The means normally getting certified copies of the divorce pleadings or proving what the Court previously ruled.  The Court can take judicial notice of documents in the Court file for evidentiary purposes for trial which is permitted by Peden v. City of Gautier, 870 So.2d 1185 (Miss. 2004).  This can be done pretrial or in an emergency you can ask the Court to take judicial notice of the prior court orders.  I have never had a judge as of yet deny a request for judicial notice of the prior court orders even in the middle of trial since they are part of the court record and not subject to actual dispute as to their authenticity. 

Temporary Relief

I recently talked about the Frazier case here that was recently decided by the Mississippi Court of Appeals and the potential need for temporary relief.  I came across some language in the same opinion that is helpful to know.  In Paragraph 17 of the opinion, the Court of Appeals noted:

"¶17. The Supreme Court of Mississippi, in Bailey v. Bailey, 724 So. 2d 335, 339 (¶12) (Miss. 1998), held that temporary reduction in child support, as occurred in this case, is not only within the power of a chancellor – it is required under appropriate circumstances. In Bailey it was held:

Where the reason for modification is temporary in nature, the trial court should order a temporary reduction in child support. See Nichols v. Tedder, 547 So. 2d 766, 781-82 (Miss. 1989). The chancellor’s order permanently reducing Sandra’s child support obligation is reversed, and this case is remanded for further findings on a reasonable temporary reduction in child support.

Id. (emphasis added)."

I started thinking about this.  If temporary relief is required in certain circumstances, it stands to reason that errors in the temporary order are appealable with the entry of the Final Order in the case.  Mississippi has long held that temporary orders are not appealable.  Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995).  See also Miss. Code Ann. § 11-51-3 (Supp. 2006).  However, the reason they have been held unappealable is that there is no final judgment on the case in accordance with Rule 54 of the Mississippi Rules of Civil Procedure.  As such, if you raise the issues regarding errors at the Final trial on the merits and potentially in a post trial motion, it stands to reason that the errors would ultimately be able to be corrected on appeal.  The biggest issue is making an adequate record of any errors on a temporary basis as many times there is no court reporter. 

Discovery of Medical Records

In both personal injury and family law, medical records are generally discoverable as long as they are related to the litigation.  In personal injury, that normally means just related to the accident in question.  In custody or other family law cases, they are generally discoverable if their are issues concerning a parties' mental status which could have a bearing on case (i.e. parent is a drug addict).  If you are involved in one of these cases, it is a good idea to get a properly drawn protective order issued under Rule 26 which prohibits the records from just floating around to anyone or the production of just anything.  This can be particularly important in preventing identity theft and if the records have no bearing on the case, prevents the disclosure of the same.

Failure to Respond to a Subpoena

I previously talked about here that the failure to respond to a subpoena can be considered contempt of court.  When you translate the word subpoena from Latin it means "under penalty".  So when a subpoena is being issued, it is literally commanding something be produced under penalty of the Court.    For some reason, people do not like to respond to subpoenas within the timeframe requested and are kind of lazy about overlooking them.  Why I do not know.  Technically, a subpoena is a court order that is issued by the clerk.  As such the failure to respond is disobeying a court order which gets you into issues involving attorney's fees, jail, fines, etc.  I am dealing with this issue on a case right now involving certain necessary records for a case.  Deep legal thought of the day, what is the appropriate remedy for a corporation's contempt of court?  Working on that issue now and may post back if this matter is not resolved in the case I have to tell you the chancellor's take. 

Child Support Cases of Interest

The Mississippi Appellate Court has had three (3) recent child support cases of interest.

(1)   Williams v. DHS, NO. 2011-CA-01742-COA (June 18, 2013).  This is a case dealing with overtime pay.  The case reaffirmed that in Mississippi it is permissible to use overtime as part of the calculation of child support as long as the amounts are consistent.  This is generally true of bonuses, commissions, and other things.  This is why it is important at times to have someone from client’s work to testify in court regarding their pay many times.

 

(2)    Stasny v. Wages, ( June 25, 2013).  This case dealt this the circumstances where the relationship a parent has with a child is so strained that it is justifiable to have child support terminated.  Most people are not even aware there are cases where child support can be terminated on this basis.   Lots of times, the child is suffering from parental alienation syndrome (PAS) from actions by the other parent to make the child do certain things to the other parent.  That is the subject of a whole other potential post.  This is one of the first cases I can remember in a while that goes through and details the law in this area very well. 

(3)    Frazier v. Frazier, June 25, 2013.  This case reaffirmed that in Mississippi you cannot get retroactive reduction of child support.  Any basis for retroactive reduction of child support is going to have to come from the legislature.  This is one area the state legislature needs to look at.  With the busy trial dockets, it can take months for a case to go to trial and many chancellors do not like to grant temporary relief on these issues.  As such, a party could not be in contempt when they seek reduction, but due to the burdens in proving inability to pay, a party may be in contempt by the time the case comes to trial.  Practice tip:  Ask the court for temporary relief and get a denial of the same on the record if the Court is not going to grant it.  What has worked well is to have the child support lowered on a temporary basis and have put in the order that if the burden of proof is not met at trial to prove a reduction, the party will owe the back amount plus interest at 8%.

Discovery of Counseling Records

For some reason, most attorneys are unaware of the inability of a martial counselor to potentially testify.  Mississippi Code Annotated 73-54-39 provides that
         
"If both parties to a marriage have obtained marriage and family therapy by a licensed marriage and family therapist, the therapist shall not be competent to testify in an alimony, custody or divorce action concerning information acquired in the course of the therapeutic relationship."

That statute appears to be limited to those with the credentials and if both parties sought/had counseling. So any inquiry under this statute requires two questions:  (1)  Is the counselor a licensed marriage & family therapist?   (2)  Was it joint counseling?  If the answer to either question is no, you may get the records. 

Sad Note on Chancellor Ed Roberts

On a sad note, I received word that Chancellor Ed Roberts died this morning.  Ed was the chancellor in Oxford, Mississippi and he covered Lafayette, Tippah, Marshall, Calhoun, and Benton County.  Ed was a wonderful chancellor who always tried to follow the law as closely as possible and explain his rulings to both parties.  He was a dear friend to many of us and will be missed terribly.