Thursday, July 31, 2014


The Mississippi Court of Appeals decided Rodrigue  v. Rodrigue located here.  One of the key issues in the case was the lack of tax considerations by the chancellor.  The court cited some language in the case of interest from another case:

“Chancellors must consider the estimated amount of income taxes the respective parties must pay on their incomes when determining the provisions of a divorce agreement. Parsons v. Parsons, 678 So. 2d 701, 703 (Miss. 1996). It was incumbent for Leigh and Herb to rely upon their tax advisor or attorney to advise them of the tax consequences of the divorce agreement.”

The Court of Appeals ended up reversing the trial court for failure to consider the tax consequences of the transaction which essentially allowed the husband to get all the money he paid under the temporary order back.  If you look through the opinion, it is a good idea to advise the client to get the advice of an accountant.  My property settlement agreements have express disclaimer language to that effect in there.  It may even be worth a motion to reconsider if you can get an accountant to go through the order of the court to address the tax consequences post trial.  

Wednesday, July 30, 2014

Random Legal Issue

Was taking a look at a legal issue on a matter and thought this might help someone.  There is a ton of farm litigation in various forms in Mississippi.  What happens to the unharvested crop when a party dies?  It appears to be an estate asset by statute based on my reading of the below.

§ 91-7-169.
Growing crop
 The court or chancellor may, on the application of an executor or administrator, decree the sale of the crop growing at the time of the death of the testator or intestate, upon such terms and in such manner as may be deemed best. If the interest of the estate would be promoted by the cultivation and completion of the crop, on application therefor by the executor or administrator, it shall be so ordered by the court or chancellor; and in such case the executor or administrator shall take charge of the farm and manage the same until the crop be completed and gathered, retaining for that purpose so much of the property thereon as may be necessary. The proceeds shall be assets in his hands, the necessary expenses being first deducted; and, in either case, the executor or administrator shall render a true account of the crop. In case of the sale of the growing crop, the purchaser thereof may at all reasonable times enter upon the lands to cultivate and gather the same.

Tuesday, July 29, 2014

Proof the Court Can Consider

The Court of Appeals decided an interesting issue in Pruitt v. Pruitt located here.  The case came out earlier today.  The opinion dealt with whether a chancellor can do an investigation beyond the proof presented in a divorce case regarding valuations.  The Court of Appeals said today they cannot and that this was error.  The opinion more or less stated that the Court was bound by the proof of valuations provided by the parties and cannot speculate to determine what the chancellor believes the valuation to be.  From reading the case close, it seems to me that a fair and narrow reading of the case is that the chancellor can use their experiences and maybe some investigation of their own to determine valuations, however, they must have support in the record of some kind regarding what amount they determine that to be.

Monday, July 28, 2014

Admissibility of Electronic Evidence

Today, there is a ton of evidence dealing with emails and the discovery of electronic data.  Located here is Lorraine v. Markel from the federal court in Maryland.  It deals with the admissibility of the evidence and the laying of the proper foundations on the evidence.  At 101 pages, it does a pretty detailed job in explaining it and giving you the background needed to lay the proper foundation.

Tennessee Medical Bills

The law in Tennessee regarding the recovery of medical bills in a personal injury claim is a little different than Mississippi.  In Mississippi, the client can largely testify to past bills by statute.  In Tennessee, it has to be testimony by the doctor.  Located here is an article regarding Tennessee law on the issue.

Thursday, July 24, 2014

Mental Health and Substance Abuse

This week has been a little bit emotionally draining for me.  Many of the current custody cases I am working on deal with issues where a parent has severe dependency issues and/or mental health issues.  These are areas a court has to probe into in a custody case or even a regular divorce case without children at times in order to prove grounds for divorce.  Unfortunately, many times these problems get progressively worse than better.  This unfortunately leads to problems down the road for children of these individuals and other issues for the individual themselves.  If you have a family member with these type problems, get them help.  If they refuse, in Mississippi visit with the chancery clerk in your county to see about getting an involuntary commitment of the individual.  Many counties, including DeSoto County now have an attorney paid by the county who handles these for individuals.   It can be the difference between life and death for the individual.  It can also prevent the cycle from repeating itself with children of these individuals. 

Wednesday, July 23, 2014

FLSA Counterclaims

The Mississippi Court of Appeals decided Tolley v. Good located here.  The issue in the case was whether counterclaims are appropriate in FLSA claims.  The court stated no with the only exception where wages have been prepaid.  I have a little bit of a hard time reconciling with cases where you have a counterclaim which is arguably a compulsory counterclaim if it arises out of the same transaction.  I think this may be the right ruling under the facts of the case only.  

Tuesday, July 22, 2014

Best Evidence Rule

The best evidence rule is hard to grasp for some people.  Mississippi Rule of Evidence 1002 states:  To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law. [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original.  Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004).  It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter. I have heard of some defense attorneys trying to make a best evidence objection at trial with a party testifying about how much they lost in wages or the amount of medical bills.  If a party has personal knowledge of the matters, the best evidence rule does not come into play.  If they do not have personal knowledge and are only testifying as to what the documents say, the documents need to be produced.  

Monday, July 21, 2014

Void Provision

The Mississippi Supreme Court handed down Ravenstein v. Hawkins last week.  A copy of the opinion is located here.  It is a good read on the responsibility of a parent to support a disabled child.  The law still seems to remain at the time that there is no duty to support an adult disabled child and the court does not have the authority to order it beyond age twenty-one (21).    Larry Primeaux wrote an excellent discussion on this topic located here.  To me, one interesting side issue in this deals with the ability to attack a void provision in a prior court order.  This case seems to indicate that even if the provision is void, it still must be attacked within a reasonable time.  This appears to overturn some earlier cases that say a void provision of a prior court order can be attacked anytime.  See McManus v. Howard, 569 so.2d 1213, 1216 (Miss. 1990) and Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991).   It appears the ability to set the provision aside will hang on what is a "reasonable" time.  

Friday, July 18, 2014

Psychology and Young Children

I spent most of yesterday afternoon in a psychologist deposition in an ongoing custody case.  Without discussing the case itself, I learned a lot from the doctor's deposition.  The psychologist discussed how many mental traumas are the result of activities that often occur prior to age six (6) in a child.  As a result of certain traumas from that age, an individual often has ongoing mental health issues for the rest of their life which can require intense years of treatment.  This is why it is particularly important to get individuals with mental health issues treatment particularly when they are parents.  Without it, the children of these parents end up being patients in the future with a vicious cycle that carries on for generations. 

Thursday, July 17, 2014

Marital Home

On Tuesday, the Mississippi Court of Appeals decided Sims v. Sims located here.  The main issue in the case was whether the martial home of the parties should be considered martial property since it was previously a gift from her parents.  The chancellor found it to be martial since the parties had taken out a mortgage on the property after the gift was given.  I would presume that the family-use doctrine played a part in this also.  The trial court ordered the wife to pay the husband $18,000.00 prior to the parties minor child turning 21.  The Court of Appeals affirmed even though the husband was incarcerated at the time of the hearing.  This case further illustrates the issue that fault is only a factor and does not mean that the party not at fault gets everything despite general public belief to the contrary.  

Wednesday, July 16, 2014

Model Witness Examinations

I have been preparing for several cases involving expert witnesses in the past few days.  Model Witness Examinations 3rd ed. by Paul Mark Sandler and James K. Archibald has been very helpful.  It also has several nice sets of questions to lay evidentiary foundations.  A copy is available on Amazon if you need one.  

Tuesday, July 15, 2014

Premises Liability

Many times individuals are harmed by the lack of adequate security on a premises.  This was the issue today in Bennett v. Highland Park Apartments located here.  The trial court originally granted summary judgment to the Defendant.  The Court of Appeals reversed finding there were genuine issues of fact regarding the danger on the premises and the Defendant's knowledge of it.  The Court of Appeals seemed to pick on the fact that there was an expert witness combined with several eyewitnesses which made summary judgment inappropriate.  The expert witness seemed to help establish that if proper security had deem provided, the Plaintiff would not have been injured.   This is a good case to file away.

Monday, July 14, 2014

Manager Liability

I was reading an interesting article last week regarding whether a property manager can be liable for injuries that happen on property owned by someone else.  The answer in Mississippi seems to be a definite maybe. The Mississippi Supreme Court has stated that “the owner, occupant, or person in charge of premises owes to an invitee or business visitor a duty of exercising reasonable or ordinary care to keep the premises in reasonably safe and suitable condition or of warning [the] invitee of dangerous conditions not readily apparent which [the] owner knows or should know of in the exercise of reasonable care.”  Mayfield v. The Hairbender, 903 So. 2d 733, 735-36 (Miss. 2005) (en banc) (quoting Wilson v. Allday, 487 So. 2d 793, 795-96 (Miss. 1986)) (quotations omitted) (emphasis added) (alterations in original).  The term "person in charge of premises" has been construed to include a manager in one case I am aware of.  Smith v. Petsmart, Inc. , 278 Fed. Appx. 377 (5th Cir. 2008).  This was a sufficient enough ambiguity to keep a premises liability case to remand a case from federal court to state court in Smith.     

Friday, July 11, 2014

Threshold Dangerous

The Mississippi Court of Appeals decided Dickinson v. Vandenburg, et. al located here on June 24, 2014.  The issue in the case was whether a threshold of a door which has two inches higher than the sidewalk was unreasonably dangerous.  The trial court granted summary judgment and the Court of Appeals affirmed.  It is useful to read the briefs on this case.  It looked like to me the Plaintiff had a pretty good case because there was an expert that said the threshold was in violation of building codes.  This case seems to stand for the proposition that until the property owner has an actual knowledge that a threshold is dangerous, an undamaged threshold by itself cannot be deemed unreasonably dangerous for premises liability purposes.

Thursday, July 10, 2014

Constitutionality of Alienation of Affection

I received a copy of an interesting opinion yesterday.  A judge in North Carolina has ruled that the tort of alienation of affection is unconstitutional.  A copy of the opinion is located here.  The opinion is based largely on the premise that you cannot create a civil penalty for private consensual  sexual contact which the U.S. Supreme Court found to be protected activity in Lawrence v. Texas.  I actually raised this issue in a case a few years back but the case resolved prior to addressing the constitutional issue.  It sounds like a little bit of a stretch until you read the opinion.  The argument is pretty compelling.

Wednesday, July 9, 2014

Global Support Order

I keep having this issue come up so I thought it is time to write a little something about it.  Many times a court does what is commonly called a global support order for kids (i.e. $500.00 per month total for three kids with no set amount per child).  There appears to be a common misconception that when one child is emancipated, this reduces the support amount.  That is not the case.

If the order has a set amount per child, the parent can safely reduce the support amount once a child is emancipation by the set amount in the order.  (i.e. $100.00 per child with three kids, one child emancipated, support reduces to $200.00 automatically).  Ligon v. Ligon, 743 So.2d 404, 408 (Miss. Ct. App. 1999). If the order is global, a court order is needed.  Evans v. Evans, 994 so.2d 765, 769-70 (Miss. 2008).  On the global order, there is some authority floating around allowing a court ordered credit and there is authority that reaches the opposite conclusion.  That is why it is best to get a court order to avoid possible contempt issues.

Tuesday, July 8, 2014

Procedural Bar

Unfortunately, I get hired many times as damage control after a case as gotten way off track for whatever reason.  Sometimes I get hired post-trial for appeal purposes and have been hired once in the middle of trial. When a case goes up on appeal, you have to be aware of the procedural bar if an issue is not raised in the trial court.  This is based on the idea that the trial court has to have a chance to address the issue first.  However, does that prevent you from addressing a new argument regarding an issue that was raised at the trial court?  The answer seems to be no.

“It is well settled Mississippi law that there is a procedural bar to considering issues not first raised at trial.  Scott v. State, 878 So.2d 933, 963 (Miss.2004) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)). However, this procedural bar clearly applies only to an issue never raised below, which is not the same as a different argument pertaining to the same issue.” Brown v. Thompson, 927 So. 2d 733, 738 (Miss. 2006).  This can be a very fine line issue.  It is better to overkill on a motion for a new trial but this authority can be helpful if not.  

Monday, July 7, 2014

Tax Deductions

There are a number of factors the Court has to look at in order to determine who gets the income tax deduction in a custody matter.  
1. The value of the exemption at the marginal rate of each parent;
2. The income of each parent;
3. The age of the children and how long the exemption will be available;
4. The percentage of the cost of supporting the children borne by each parent; and
5. The financial burden assumed by each parent under the property settlement agreement in the case.
6.  The value of the non-economic but valuable contributions made by the custodial parent.
Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), and Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001).

This is one area where it may be helpful to hire an accountant.  I had a case recently where the parties figured out with the help of some financial resources that letting the noncustodial parent claim the deduction and then splitting the refund was the best economic decision for both of them.  

Thursday, July 3, 2014


Rule 803 (8) and (9) specifically excludes from hearsay public records and report along with records of vital statistics.  Currently, under the federal No Child Left Behind statutes, states are required to maintain certain statistics regarding school performance and such.  As this is a requirement of law, several state agencies maintain really nice records where school districts can be compared which can come in handy in custody cases concerning where a child may go to school if one parent has custody over another.

Wednesday, July 2, 2014

Agent Orange VA Claims

I am in the process of getting my certification in order to do VA claims.  It is not terribly complicated.  A link to an article with what all is required is located here.  There has been some recent information that has shown a number of Vietnam veterans who were exposed to agent orange have developed a number of long term health issues that do not manifest themselves until many years later.  This has made a number of Vietnam veterans eligible for a number of benefits and has also helped explain some health issues they have had which were originally going untreated due to misdiagnosis.      

Tuesday, July 1, 2014

Fifth Amendment Protection

The Fifth Amendment generally protects a party from incriminating themselves in a criminal case.  However, what application does it have in a civil case?  The law is pretty clear that a witness can invoke the privilege in a civil case.  In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the Mississippi Supreme Court set out the ground rules on page 828 that (1)  The witness must take the witness stand; (2) The witness must invoke the privilege on a question-by-question basis; (3) The claim of privilege is determined by the court, and not by the witness; and (4)  An inference may be drawn against the witness.  The fact that an inference can be taken often has many consequences.  I was involved in a case this week where a party could not legitimately answer a number of extremely relevant questions on a custody case without severely incriminating herself.  Result, settlement reached with custody to the Father.