Friday, January 31, 2014

Legislative Bills of Interest

Below are several bills that are working their way their the legislature this session which could have a significant impact on family law in Mississippi. 

HB 218:  Uniform Laws; create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

HB 692:  Divorce; create additional ground after five years of unsuccessful attempts at a joint complaint for irreconcilable differences.

HB 710:  Child Custody; clarify noncustodial time during the summer break.  

HB 812:  Child witness Bill of Rights.  

HB 1058:  Guardian Ad Litem;  clarify duties and appointment.  

HB 1224:  Uniform Laws;  create Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. 

SB 2042:  Youth Court Records;  revise confidentiality.
You can keep track of what all is going on with each bill with the website located here. 

Thursday, January 30, 2014

Stipulations in Divorce

Stipulations in a divorce case can save you a lot of time and make the court run much easier.  Some facts are normally not opposed to stipulation, (i.e. date of marriage, date of separation, etc.).  Additionally, at times a stipulation on grounds to divorce may be beneficial.  If there is no question on adultery by a client and the other side will not agree to irreconcilable differences, a good decision is to stipulate to the grounds.  If accepted, it has the additional effect of making completely irrelevant any of the assorted details of the same. 

Wednesday, January 29, 2014

Need for Temporary Relief

In lots of divorce cases, there is no real need for temporary relief.   The parties are still living together, all the bills are getting paid, and there is no domestic violence issues.  In this situation, many times the court declines to grant the parties any temporary relief.  The is often a situation where the parties may reconcile or agree to a divorce on irreconcilable differences at some point.  As such, there are times to weigh whether temporary relief is necessary in a case.

Tuesday, January 28, 2014

Sperm Donor Contracts

A man in Kansas recently got more than he bargained for in answering a Craig's list ad.  The story is located here.  The short version of the story is that a man responded to an ad on Craig's list by a lesbian couple seeking a sperm donor.  The man responded and the parties signed paperwork without getting an attorney to review them.  The couple later broke up and the biological mother of the child filed for welfare benefits.  After filing, the Kanas Department for Children and Families sued the man for support.  The trial court found that the agreement did not comply with Kansas law and as such the man owed back child support and support going forward.  Currently, Mississippi has essentially no law on this issue.  This is an issue the legislature needs to look at as I see this issue coming to Mississippi courts in the near future.    

Monday, January 27, 2014

Focus Groups and Legal Malpractice

Focus groups for jury trials are becoming the norm now.  For years, they were seen as something to use for a large, high stakes trial.  Focus groups are generally used by attorney's to test out opening statements, how members of the public feel about certain portions of a case pretrial, etc.  I learned over the weekend that several legal malpractice providers are now writing into their policy that any case taken to a jury trial without at least one (1) focus group being done, voids coverage for any alleged malpractice.  This is an area to watch as focus groups may be the new standard of care in the legal profession in a few years. 

Friday, January 24, 2014

Wedding Insurance

I was doing some reading this morning on "wedding insurance."  Apparently this is getting to be a big item in large weddings.  The insurance covers losses if the wedding is cancelled, damages if the facility closes, etc.  It is not a bad idea.  I have heard some discussion of divorce insurance also.  My understanding is that they can be a one time large fee or possibly some payments over time.  This is another item that may be interesting to see how it develops. 

Thursday, January 23, 2014

Book of Interest

Thomson Reuters has put out a new book of interest for jury trials in Mississippi.  I received a copy of Mississippi Plain Language Model Jury Instructions - Civil in the mail a few days ago.  The same is located here.   The instructions offered are an attempt to clarify what the law is to jurors and make them easier to understand.  From what part I have read thus far, the book is wonderful in explaining items in simple terms that I believe most anyone of average intelligence can understand.  I expect the instructions in the book to start becoming the new standard for civil cases in Mississippi in the upcoming year.    

Tuesday, January 21, 2014

Batson Challenge Based on Sexual Orientation

Smithkline Beecham Corporation v. Abbott Laboraties  out the 9th circuit was an antitrust suit relating to a licensing agreement and pricing of HIV drugs.   This is the first case I am aware of dealing with sexual orientation as a preemptory challenge ground.  In the case, the 9th circuit overturned a 3.5 million dollar verdict and remanded for a new trial because the only openly homosexual juror was struck.  The 9th circuit ruled that under the facts as presented in the case this was a Batson violation for systematically striking jurors based on sexuality.   I expect this issue to be litigated more in the future.

Monday, January 20, 2014

Malpractice Suit in Chancery

Take a look at Rogers v. Eaves located here when you get a few minutes.  This is a little known avenue that a legal malpractice claim can be filed in Chancery Court in Mississippi under some limited circumstances.  In this case, the issue was alleged legal malpractice which allegedly occurred during chancery proceedings.  The Circuit Court determined it was best to transfer the case to Chancery to see if what the Plaintiff alleged would have made a difference in the outcome of the case.  Using Miss.Code Ann. § 9-5-81 (1991), the Mississippi Supreme Court found that jurisdiction was proper there.  The statute provides that:
"The chancery court in addition to the full jurisdiction in all the matters and cases expressly conferred upon it by the constitution shall have jurisdiction of all cases transferred to it by the circuit court or remanded to it by the supreme court; and such further jurisdiction, as is, in this chapter or elsewhere, provided by law."
This might make an interesting avenue to get a case heard quicker in some limited contexts.  Under the statute, I don't see a reason why, if the circuit court agreed, any tort case could be heard there especially one involving minors which has to be approved there anyway.

Friday, January 17, 2014

Estate Exemptions

Mississippi has a number of state law exemptions that can be useful in doing estate work.  Mississippi Code Annotated § 91-1-19 provides in part:

“The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”
This appears to make it arguable that some of the property of an estate in the right circumstances is even part of the estate and subject to Mississippi’s exemption statutes from execution.   You can look at Mississippi Code Annotated §85-3-1 for a list of what all is exempt.  My general practice is to notice all the creditors who have filed a claim with a Rule 81 (d)(2) summons if I am filing stating the claim is insolvent or taking the exemptions.  That gives a little more protection to everyone.  The creditors rarely, if ever, appear

Thursday, January 16, 2014

Mississippi Drivers

According to a recent survey located here, Mississippi has the 3rd worst drivers in the country.  This pretty much gives attorneys who handle car wrecks like myself some job security.  In the event you are in an accident, (hopefully the other guys fault), if the vehicle is driveable, move it off the road.  Be sure to call the police and get the name, address, telephone number, of the other driver along with the name of their insurance company and policy number.  I always tell my clients to also go to the doctor whether you think you are hurt or not.  From personal experience with family, you may not feel hurt but you may have disc damage or something else that does not become apparent until later.  Take as many photos of the scene as you can.   This can be crucial evidence for both parties whether you are the party at fault or not. 

Wednesday, January 15, 2014

Case of Interest

The Court of Appeals decided King v. King yesterday located here.  The main issue in the case was the division of a retirement account.  The case does a good job discussing how certain retirements are divisible and some are not.  The trial court was ultimately affirmed in allowing Mr. King to retain his retirement account.  There are all kinds of strange issues with retirement account.  When one is involved in a case, it is extremely important to know if it is a federal plan, ERISA plan, or a state plan.  It can make all the difference in the world.   

Tuesday, January 14, 2014

Settlement Idea of Interest

I have been in court most of the day.  While there, an interesting settlement tool came to light.  Lots of times the parent who is allowed to claim the income tax deduction on a minor child ends up owing the other parent money for attorney's fees, unpaid debts, or some other monetary value. With the economy like it is, this can make it hard to come up with funds.  One idea is to allow the other party to claim the minor child as a deduction for one year to pay the debt and allow the other party to either keep the overage as interest or agree to return the overage amount to the opposing party.  It is a good idea to have your client to consult with an accountant on this, but this can be very helpful in fixing some money issue between parties. 

Monday, January 13, 2014

Blog of Interest

Attorney Jane Tucker has started a law blog which deals with recent Mississippi Court Opinions located here.  I have found this blog very helpful so far and she goes through a lot of effort to give you some actual background on the cases including cases that cert are being granted on.  I have already added the site to my favorites list. 

Friday, January 10, 2014


The Mississippi Supreme Court decided Brewer v. Holiday  located here yesterday.  The trial court held Mr. Brewer in contempt for the nonpayment of child support.  The issue was that he and his ex-wife both believed an order of modification had been entered by the Court previously and both followed that order.  Ms. Holiday later found out it was not and sought to hold Mr. Brewer in contempt for the nonpayment of child support in the full amount.  The Court of Appeals had affirmed the trial court.  The Mississippi Supreme Court found that a contempt finding was not proper as there had been no willful violation of a court order and found that a contempt finding was completely inequitable under the circumstances.  This appears to be the correct result under the facts presented. 

Thursday, January 9, 2014

Black Farmer's Settlements

I am currently doing a number of estates for the Black Farmer's Discrimination Litigation.  Unfortunately, many of the people who were due the money from the settlements have passed necessitating the opening of an estate and the determination of heirs.  This can get into a quirky issue if the deceased had a will.  Many times a will has a boilerplate clause to distribute any remainder of an estate to a certain group of family or friends.  This is the provision that many of these settlements are passing under so a detailed reading of any wills in these cases is an absolute necessity.     

Wednesday, January 8, 2014

Child's Activities

The Mississippi Court of Appeals decided  Jaggers v. Magruder located here.  The case mainly dealt with what to do in situation regarding extracurricular activities of minor children upon the divorce of the parents.  The parties minor children were on a traveling baseball team which no one seemed to object to and the noncustodial parent argued that it interfered with his ability to spend meaningful time with the kids.  The chancellor weighed the equities of the situation and fashioned a schedule that allowed for additional visitation if the activities interfered with the visitation.  The Court of Appeals affirmed the decision.  This opinion is good to read in order to get some ideas on how to handle this situation which comes up way too often. 

Tuesday, January 7, 2014

Medical Bills

On the link located here is about the best explanation of proof of medical bills in Mississippi that I am aware of.  It discusses the proof required and when you may or may not need a doctor to testify to it.  This can be very helpful in proving damages. 

Monday, January 6, 2014


Many people are buying new houses in Mississippi this time of year.  Additionally, many recently divorced clients bought new houses at the end of last year.  They can get their property taxes lowered on the house they live in by filing for homestead.  Here is what you have to do to file for homestead:

To apply for homestead exemption for the first time, you need to go to the County Tax Assessor between JANUARY 2nd and APRIL 1st and bring the following:

                 1)  A copy of your RECORDED WARRANTY DEED (this instrument will be mailed

to you after recording).

2)  Your Mississippi car or truck TAG NUMBERS.

3)  Your SOCIAL SECURITY NUMBER and spouse’s, if applicable.

4)  Your SETTLEMENT STATEMENT, (closing statement).

If you are over 65 years of age, bring all the above items and your proof of age, to qualify for additional tax exemption.

100% disabled individuals qualify for the tax exemption before the age of 65. You will need to bring proof of disability from the Veteran’s Administration, Social Security, or Railroad Retirement, etc Disabled American Veteran’s must also bring DAV claim number.

It is only necessary to file for homestead exemption one time, unless there is a change in the ownership of the property.

If the property is new construction, you may ask the clerk to estimate the taxes at the homestead rate. Notify your lender if your taxes are paid into an escrow account so that any necessary adjustments  can be made. (Get a letter from them with the new tax amount).


Friday, January 3, 2014

Bankruptcy and Personal Injury

Unfortunately, many times individuals have to file for bankruptcy protection after a catastrophic injury.  It is very important to ask a client if they are in bankruptcy and to have them notify you if they file for bankruptcy during the litigation.  So what happens when they don't? Kimberly Lentz over at has 5 good reasons a debtor should disclose all potential claims:

1.         The debtor will avoid prison.

2.         The willful failure to disclose assets is fraud and could result in the denial or revocation of the debtor’s discharge. In re Sholdra, 249 F.3d 380 (5th Cir. 2001); In re Beaubouef, 966 F.2d 174 (5th Cir 1992); In re Chalik, 748 F.2d 616 (11th Cir. 1984).

3.          Under the doctrine of judicial estoppel it is unlikely that the debtor will ever prevail in the pursuit of the cause of action.   Judicial estoppel operates sort of like an admission. Failure to disclose a cause of action is treated as if the debtor admitted that it did not exist.  Reed v. City of Arlington, 650 F.3d 571 (5th Cir. 2011); Kane v. National Union Fire Ins. Co., 535 F. 3d 380 (5th Cir. 2008); In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir. 2004); In re Coastal Plains, Inc., 179 F. 3d 197 (5th Cir. 1999).  (More on judicial estoppel in future posts)

4.         The debtor could receive a surplus distribution after creditors’ claims are satisfied.  Although the debtor may have scheduled numerous unsecured creditors, only creditors who file Proofs of Claim are entitled to a distribution from the bankruptcy estate.

5.         If the debtor owes taxes or has non-dischargeable debts, he will benefit from distributions made by the bankruptcy trustee.

Thursday, January 2, 2014

Notice of Child Support

Fellow blogger Larry Primeaux wrote an excellent article located here dealing with inability to find a parent in order to modify child support.  This shows why it is important to put the language in a child support order about keeping the parties address current with the court.  I have my doubts that this statute discussed in the article would survive a constitutional due process challenge but it is the law currently.   

Wednesday, January 1, 2014

Mental Health

I seem to have a lot of cases in the past few months where the opposing party has mental health issues.  By mental health issues, I am not referring to the normal divorce stress but diagnosed mental impairments that makes it hard to distinguish right and wrong.  This brings up an interesting issue. Insanity is a ground for divorce.  If the person truly cannot distinguish right and wrong it may be the only ground for divorce as most of the other grounds, in my opinion, require intent (i.e. adultery, habitual cruel and inhuman treatment, etc.).  The only other option is if the court appoints a conservator for the person who would, with court approval, agree to irreconcilable differences.