Wednesday, December 30, 2015

Reply Briefs

I still do a good bit of appellate work.  The article located here has some good has some good advice on writing reply briefs.

Tuesday, December 29, 2015

Good Online Trial Material

Some really good online trial material is located here.  The articles are in the context of criminal trials but the same principals apply to any trial. 

Monday, December 28, 2015

College Support

“A chancery court may adjudge that one or both parents provide the means for a college education for their children." Baier v. Baier, 897 So.2d 202, 205 (¶ 16) (Miss. Ct. App. 2005) (citing Pass v. Pass, 238 Miss. 449, 458, 118 So.2d 769, 773 (1960)). "When the father's financial ability is ample to provide a college education and the child shows an aptitude for such, the court may in its discretion, after hearing, require the father to provide such education." Id. "The parental duty to send a child to college is not absolute, however, but is dependent upon the proof and the circumstances of each case." Id. (citing Hambrick v. Prestwood, 382 So.2d 474, 477 (Miss. 1980)).          

 Should this support be set on a young child?  In Harmon v. Yarbrough, 767 So.2d 1069, 1071 (¶ 6) (Miss. Ct. App. 2000), the Court of Appeals addressed a somewhat similar issue. In reaching its decision, the Harmon court noted that, according to the Mississippi Supreme Court, it is improper to impose an obligation to pay college expenses on a parent in a divorce proceeding until the following showing is made: 

The duty of a father to send a child to college, under the circumstances of this case, is not absolute. It is dependent, not only on the child's aptitude and qualifications for college, but on whether the child's behavior toward, and relationship with the father, makes the child worthy of the additional effort and financial burden that will be placed on him. Sending children to college is expensive and can cause much sacrifice on the part of parents. It cannot ordinarily be demanded, but must be earned by children through  967 So.2d  85  respect for their parents, love, affection and appreciation of parental efforts, none of which are present in this instance.   Id. (quoting Hambrick, 382 So.2d at 477).          

The Harmon court then found that "Since the duty is dependent upon several factors, including the child's suitability for college and his or her relationship with the supporting parent at the time of the expenditures, it would normally be improper to impose that obligation when the child is only three years old." Id.   What is a little strange is that there is some caselaw that appears to indicate this same showing is not needed in the context of a paternity case.  As such, it appears to be easier to get college support for a nonmartial child and during a divorce proceeding. 

Wednesday, December 23, 2015

Article on Damages Caps

Here is an excellent law review article dealing with damages caps in Mississippi and why they are wrong.

Tuesday, December 22, 2015

Beware of Throwing Too Many Grenades

Many times in family law cases, both sides get carried away with throwing too many grenades at the other side.  The problem is that this can sometimes create the Cold War issue of mutually assured destruction.  No matter how bad the parties dislike each other, on some level they will have to work together.  Additionally, throwing too many grenades can sometimes result in a finding that both of the parents are not fit for custody resulting in the Department of Human Services obtaining custody. 

Monday, December 21, 2015

MRCP 81 vs. MRCP 40

I was reading on some cases last night while working on a number of briefs I have due.  In reviewing a case a notice there appears to be some conflict with Mississippi Rule of Civil Procedure 81 and Mississippi Rule of Civil Procedure 40.  Rule 81 provides that certain matters have to be tried on a day certain or continued to another date.  However, Rule 40 provides that trials may be set by agreement.  The question then comes does Rule 81 override Rule 40 or does Rule 40 override Rule 81?  This normally comes up after both parties get an attorney and agree to set the matter for a trial later once discovery is complete.  My gut says that a trial set by agreement acts as a waiver.  However, there is an argument that Rule 81 is jurisdictional which can be attacked whenever. 

Thursday, December 17, 2015

Legal Malpractice Claims

I am one of the few people who handle legal malpractice claims for Plaintiffs regularly.  There are a few quirky areas where claims are starting to arise that attorneys need to be aware of in order to prevent a claim.  The following are a few of those areas to evaluate:  (1) failure to conduct discovery; (2) negligent supervision of employees of firm; (3)  failure to communicate settlement offers;  (4) failure to respond to requests for admissions within thirty (30) days; (5) failure to communicate deadlines to client and trial dates; (6) failing to properly finalize settlements.   

Wednesday, December 16, 2015

Death and Divorce

Yesterday, the Mississippi Court of Appeals decided McGrew v. Estate of McGrew located here.  The issue in the case was that a divorce was granted but the property division was not final.    Before all the issues could be resolved, the husband died.  After his death, the chancellor finished dividing the property and issued a final decree. The Court of Appeals reversed and rendered finding that the death of a party while the divorce is pending terminated the proceeding. 

Tuesday, December 15, 2015

Insurance Coverage

Last week, the Mississippi Supreme Court decided Safeway Insurance v. Dukes located here.  The issue in the case was the failure to list a frequent driver of a vehicle in an insurance policy.  The Court ruled that the failure to list the additional party who drove the vehicle frequently rendered the policy void due to material misrepresentation.   

Monday, December 14, 2015

Line of Demarcation vs. Abuse of Discretion

Last year in Collins v. Collins located here, the Mississippi Supreme Court overruled a line of cases that found a temporary support order served as a line of demarcation for the accumulation of martial property.  The Court in the decision found that a chancellor may use this as the line of demarcation.  Currently, there is no real guidance on when it becomes an abuse of discretion for the chancellor to not use one date over another.  I am working on an appeal brief that should be filed by the end of the month dealing with this issue.  The issue very narrowly crafted is going to deal with whether it is an abuse of discretion to not use the date of the temporary order when substantial support outside of child support is provided to a spouse?  Hopefully some guidance will come out of the opinion. 

Thursday, December 10, 2015

Tax Deductions and Modification

On Tuesday, the Mississippi Court of Appeals decided Everett v. Burchfield located here.   The  Everetts divorced in 2013 and split custody of the four kids.  Each claimed two of the children as tax deductions.  In 2014, Everett sought sole physical custody of the children. Burchfield counterclaimed for full physical custody.  The court granted full physical custody to Burchfield and altered the parties’ property settlement agreement to allow Burchfield to include all four children as dependents on her tax forms.  Everett appealed and the Court found as follows: “We affirm the chancellor’s judgment with regard to custody. However, the parties’ property-settlement agreement was not properly before the chancery court for amendment. Accordingly, we reverse and render the chancellor’s ruling as to Burchfield’s right to claim all four children as dependents for tax purposes.”

This ruling seems kind of strange to me with all parties before the court.  It seems to me that the issue could be resolved by the trial court as part of the claims for general relief.  This case could be a signal to file more detailed pleadings and that if the relief is not specifically requested, the trial court may not grant it. 

Wednesday, December 9, 2015

PSA Provisions

The Mississippi Court of Appeals decided Voulters v. Voulters on Tuesday located here.  In this case, there was a dispute over whether a life insurance provision in a property settlement agreement was meant to terminate upon the payment of all the sum lump alimony.  The Court ruled that the settlement as written had them as two separate provisions.  As such, the obligation for life insurance continued absent a provision terminating it. 

Tuesday, December 8, 2015

Denied Motion to Compel

Discovery can get painstaking at times.  Sometimes attorneys get overzealous on filing a motion to compel.  There are penalties if a motion to compel is denied.  Rule 37 provides as follows:

Rule 37(a)(4) of the Mississippi Rules of Civil Procedure provides that:

"If the motion is denied, the court shall, after opportunity for hearing, require the moving party of the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expense unjust."

Under the rule, the awarding of attorney's fees is a double edged sword where absent some justification or other circumstances, someone is getting attorney's fees.  This is one reason judges expect the attorney's to work out these issues among themselves.  This is also why it is important to have a paper trail of the steps taken to resolve it so the court can see who is unreasonable.  Good rule of thumb is to never write sometime to opposing counsel you do not want the court to review.   

Friday, December 4, 2015

Rooted in Malpractice

The Mississippi Court of Appeals decided Moore v. Jackson Cardiology Associates, P.A. located here on Tuesday.  The issue in the case was whether a patient falling on a treadmill during a stress test constituted ordinary negligence or medical malpractice.  If it was malpractice, the statute of limitations had run.  The Court of Appeals found that because the patient fell during a medical procedure, this was medical malpractice since it was rooted in medical conduct.    As such, the complaint was not filed within two (2) years and therefore barred.

Tuesday, December 1, 2015

Medical Expert Examination

I was working on a case late last night and found a good article on examining medical experts in medical malpractice cases located here.