Thursday, August 17, 2017

Triggering the Appointment of a Guardian Ad Litem and Attorney's Fees

When is a guardian ad litem required in a custody case?   When is a party entitled to attorney's fees for having to defend and allegation of abuse and/or neglect?  The answers to these questions appear in Carter v. Carter 204 So.3d 747 (Miss. 2016) located here.  The allegations have to be of the type to trigger the jurisdiction of the Youth Court.  As such, mere allegations of bad parenting are not enough.  With that being said, if the allegations are not sufficient to trigger the provisions of 93-5-23, there is no basis to award attorney's fees for having to defend the allegations. 

Friday, August 11, 2017

Stacking

In Mississippi uninsured and underinsured (UM) stacking is permitted for “Class I” insureds (named insureds and resident relatives), generally, and more limited for “Class II” (permissive drivers and guest passengers).  Meyers v. American States Ins. Co., 914 So. 2d 669, 674 (Miss. 2005).  Class II insureds can only stack the accident vehicles’ coverage with any of his or her own personal coverage (i.e. other coverage he or she qualifies as an “insured” on).  A Class II insured does not have the right to stack an employer’s uninsured motorist coverage unless policy language provides otherwise.  Deaton v. Mississippi Farm Bureau Cas. Ins. Co., 994 So. 164, 167 (Miss. 2008).  Anti-stacking provisions in policies are void.  I have been able to use this in the past to stack coverages for Mississippi clients involved in accidents in other states using conflict of laws regarding contracts.

Tuesday, August 8, 2017

Enforcing Tennessee Settlements

Some good language to file away if a party in Tennessee tries to back out of an agreement:

Tennessee courts "now uniformly hold that if the terms of a settlement are announced to the court or memorialized in a signed, enforceable contract, a judgment may be entered thereon, even if one party later repudiates."  Grigsby v. Harris, 2012 Tenn. App. LEXIS 860, *8 (Tenn. Ct. App. Dec. 12, 2012) (citing In re Estate of Creswell, 238 S.W.3d 263, 268 (Tenn. Ct. App. 2007)).

Thursday, August 3, 2017

Exhaustion of Insurance Coverage

In Mississippi, if an insured does proceed to obtain the liability or other UM proceeds, he or she is generally not required to fully exhaust those limits.  The Mississippi Supreme Court in Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320 (Miss. 1986) held that in interpreting a requirement that an insured first obtain other “available” insurance, the term essentially implies a substantial exhaustion (i.e. having in mind the nature and extent of injuries, liability, settlement offered, and discounted by the costs and risks of seeking a greater sum).  What this means is that the failure to get full policy limits does not mean that you cannot get proceeds from the underinsured motorist policy. 

Tuesday, July 25, 2017

CLE Tomorrow

I am speaking at a Family Law CLE in Olive Branch tomorrow.  A link is here.

Wednesday, July 19, 2017

Reduction of Alimony

On Tuesday, the Mississippi Court of Appeals decided Plummer v. Plummer located here.  One of the issues in the case was the termination of alimony based on the recipient's increase in earning ability.  The Court of Appeals affirmed the chancellor reducing the alimony as the ex-wife was making more.  There was a lot of ideas floating around that only a decrease or change in the payor could justify a reduction.  This case says otherwise and is good to file away.       

Thursday, July 13, 2017

Time and the Rules



Got this info today and thought it was useful from the Federal Rules of Civil Procedure.  It deals with how "Next Day” is defined in FRCP 6(a)(5).


If your deadline is thirty days after an event (i.e. 20 days after a complaint is filed), and that date ends up on a weekend or holiday, your due date is the next business day counting forward (Monday, for example, if a weekend).


HOWEVER, if the deadline is thirty days before an event (i.e. thirty days prior to trial), you count backwards from the event and, if that date ends up on a weekend or holiday, your date is the next business day COUNTING BACKWARDS (that’s a Friday).

Monday, July 10, 2017

CFPB Rule Bans Using Arbitration Clauses To Bar Class Actions

The Consumer Financial Protection Bureau on Monday issued a final rule banning companies from using arbitration clauses to bar consumers from filing class action lawsuits, setting up a fight with banks, credit card and other companies and potentially the Trump administration.

The CFPB said that mandatory arbitration clauses with class action litigation bans serve as a break on consumers recovering on small dollar disputes with credit card companies and other lenders. As a result, many consumers think they are unable to pursue small-dollar disputes or do not think that the ultimate payout would be worth the trouble, allowing companies to wrong consumers with little consequence, the CFPB said.

To address that problem, the CFPB said that companies would no longer be allowed to put such class action bans in their arbitration clauses, allowing consumers to band together in group lawsuits when they have suffered similar problems.

“Arbitration clauses in contracts for products like bank accounts and credit cards make it nearly impossible for people to take companies to court when things go wrong," CFPB Director Richard Cordray said in a statement. "These clauses allow companies to avoid accountability by blocking group lawsuits and forcing people to go it alone or give up.”

However, the rule does not ban arbitration clauses, which allow companies to take consumers into binding legal settlements with arbitrators paid for by the company. Consumer advocates had hoped the CFPB would take that step.

However, the rule does make changes to the arbitration process for individuals by forcing companies to submit information about individual cases to the bureau that would be published on the CFPB’s website. Included in the list of items companies will have to disclose are initial claims and counterclaims, answers to these claims and counterclaims, and awards issued in arbitration.

The information will be posted beginning in July 2019.


Wednesday, July 5, 2017

Keyboard of Interest

Found a cool keyboard online that may give a try out.  Apparently, there are computer keyboards designed for lawyers now.  They can be purchased here.

Friday, June 30, 2017

Bankrutpcy and Taxes


There is a common misconception that income taxes are never dischargeable in bankruptcy. In fact, you can discharge some back federal, state, and local income taxes in Chapter 7Chapter 13, and Chapter 11 bankruptcy. Moreover, the penalties and interest attached to these taxes are dischargeable as well. Determining which back taxes are dischargeable can be a complex process. Nonetheless, it is possible to discharge significant income tax debt in bankruptcy, if your tax debt fits within certain rules.

THE 3 YEARS, 2 YEARS, AND 240 DAY RULES

The Bankruptcy Code sets out specific time periods that determine if you can discharge your taxes, commonly called the 3-year, 2-year, and 240-day rules (the “3-2-240 rules”). Under these rules, you can discharge income taxes that came due three years before you file for bankruptcy, as long as it has been at least two years since you filed the tax forms and 240 days since the taxes were assessed. There are some exceptions, and these rules do not apply to other types of taxes, such as property taxes.

To discharge back income taxes, be aware that you must meet the requirements of all three rules.

1. The 3-Year Rule. This rule states that to discharge your back income taxes, they must become due at least three years before you file for bankruptcy. Bankruptcy Code §507(a)(8)(A)(i). Typically, your federal and most state income taxes become due on or around April 15th of each year. In most cases, it is simply a matter of adding three years to this due date to determine the earliest date you can file for bankruptcy and still discharge your taxes.

2. The 2-Year Rule. Under the 2-year rule, your income tax returns must have been filed at least two years before you file your bankruptcy petition. This requirement allows you to discharge your taxes even if you file your tax forms late, as long as you file the forms at least two years before filing for bankruptcy. §523(a)(1)(b)(ii).

3. The 240-Day Rule. Taxes must have been assessed by the taxing agency at least 240 days before you file for bankruptcy under this rule or not assessed at all. As a practical matter, the original date of assessment is typically on or near the date you file your income tax form (assuming the IRS or other taxing agency agree on the amount of taxes owed).

Wednesday, June 28, 2017

Book of Interest

Over the weekend, I got Electronic Evidence for Family Law Attorneys by Timothy J. Conlon and Aaron Hughes in the mail.  It is a fairly short read but has some extremely useful information on electronic evidence such as Facebook, Twitter, etc. along with how to get it.  It can be purchased here.

Wednesday, June 21, 2017

Guardian Ad Litem Fee Reporting Requirements

The Mississippi Legislature has passed Senate Bill 2673 located here.  Guardian ad litems are now required to report the amount of fees they charge in a contested proceeding when the amount exceeds $1,000.00 to the Chancery Clerk.  

Wednesday, June 14, 2017

Natural Parent Presumption

On Tuesday, the Mississippi Court of Appeals decided Bradshaw v. Moore located here.  One interesting issue in the case was that the mother's parents had guardianship of the minor child.  However, the father was never given notice of the guardianship.  Ultimately, the guardianship was set aside for lack of notice and the mother was given custody.  The father appealed and argued that he was entitled to custody since the mother had given up custody through the court.  However, the proof showed that this was done for financial reasons and was later declared void.  As such, the natural parent presumption which is normally lost by giving up custody through the court was still intact. 

Wednesday, June 7, 2017

Kidnapping

In 2010, Mississippi enacted the Uniform Child Abduction Prevention Act (UCAPA). This statute is designed to give the Courts the authority to prevent child abduction in parental custody/visitation disputes. This statute, in conjunction with the UCCJEA regarding interstate jurisdictional determinations, provides remedies to  prevent abduction by providing for injunctive relief upon a demonstration of a credible “risk of abduction.”   This is useful in preventing a parent from leaving the state or country with a child potentially. 

The statutes provides the following;
§ 93-29-13. Factors to determine risk of abduction.
(a)  In determining whether there is a credible risk of abduction of a child, the court shall consider any evidence that the petitioner or respondent:
(1) Has previously abducted or attempted to abduct the child;
(2) Has threatened to abduct the child;
(3) Has recently engaged in activities that may indicate a planned abduction, including:
(A) Abandoning employment;
(B) Selling a primary residence;
(C) Terminating a lease;
(D) Closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents or conducting any unusual financial activities;
(E) Applying for a passport or visa or obtaining travel documents for the respondent, a family member or the child; or
(F) Seeking to obtain the child’s birth certificate or school or medial records;
(4) Has engaged in domestic violence, stalking or child abuse or neglect;
(5) Has refused to follow a child-custody determination;
(6) Lacks strong familial, financial, emotional or cultural ties to the state or the United States;
(7) Has strong familial, financial emotional or cultural ties to another state or country;
(8) Is likely to take the child to a country that:
(A) Is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;
(B) Is party to the Hague Convention on the Civil Aspects of International Child Abduction but:
(i) The Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;
(ii) Is noncompliant according to the most recent compliance report issued by the United States Department of State; or
(iii) Lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;
(C) Poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;
(D) Has laws or practices that would:
(i) Enable the respondent, without due cause, to prevent the petitioner from contacting the child;
(ii) Restrict the petitioner from freely traveling to or exiting from the country because of the petitioner’s gender, nationality, marital status or religion; or
(iii) Restrict the child’s ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality or religion;
(E) Is included by the United States Department of State on a current list of state sponsors of terrorism;
(F) Does not have an official United States diplomatic presence in the country; or
(G) Is engaged in active military action or war, including a civil war, to which the child may be exposed;
(9) Is undergoing a change in immigration or citizenship status that would adversely affect the respondent’s ability to remain in the United States legally;
(10) Has had an application for United States citizenship denied;
(11) Has forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a social security card, a driver’s license or other government-issued identification card or has made a misrepresentation to the United States government;
(12) Has used multiple names to attempt to mislead or defraud; or
(13) Has engaged in any other conduct the court considers relevant to the risk of abduction.
(b)  In the hearing on a petition under this chapter, the court shall consider any evidence that the respondent believed in good faith that the respondent’s conduct was necessary to avoid imminent harm to the child or respondent and any other evidence that may be relevant to whether the respondent may be permitted to remove or retain the child.
Miss. Code Ann. §93-29-1 et. seq.

Friday, June 2, 2017

App of Interest

The scanning and exchange of documents has become the rule in legal matters. Many times clients do not have access to the same kind of equipment as attorneys and they struggle with how
to get documents to the attorneys. Often times, clients will take pictures of documents and send the pictures by email or text to the attorneys. This often results in documents being unreadable or
unusable. There is an app called Evernote scannable, which clients can easily use on their cell phone to scan documents and send them in a format which is readable and usable.

Thursday, May 25, 2017

Guardian Ad Litem and Hearsay

Earlier today, the Mississippi Supreme Court issued a detailed opinion finding that a chancellor cannot use hearsay as evidence from a guardian ad litem report.  A link to the opinion is here.  I generally do not comment much on my own cases. I will say that if you practice family law, it needs to be read because it addresses a lot of legal issues and creates or clarifies some new law in certain areas.

U.S. Supreme Court Retirement Case

In Howell v. Howell decided on May 15, 2017, the U.S. Supreme Court unanimously handed a victory to Air Force veteran John Howell, who was divorced from his former wife, Sandra, over 25 years ago. Although the divorce decree had ordered John to share half of his retirement pay with Sandra, John later opted to waive part of that retirement pay (on which he pays taxes) to instead receive disability benefits (which are not taxable), thereby reducing the money that Sandra received. The justices today ruled that John cannot be required to reimburse Sandra for the $125 per month that she no longer gets as a result of his choice.  This has lots of real world consequences.  A link directly to the opinion is here.

Wednesday, May 24, 2017

Class Actions in Mississippi

The Mississippi Supreme Court is currently soliciting comments to allow Mississippi to amend Rule 23 of the Mississippi Rules of Civil Procedure to allow class actions in state court.  Currently, it appears Mississippi is the only state that does not have a class action rule currently.  A link to the proposed rule is here.

Friday, May 19, 2017

CLE - Olive Branch, Mississippi

I will be speaking at a CLE in Olive Branch, Mississippi of July 26.  More detailed information and topics is located here

Wednesday, May 17, 2017

Tax Exemption and Silence of Court Order

The child tax dependency can mean a great deal of income to a parent.  Additionally, unless one gets to claim the child as a dependent, that parent cannot write off any daycare expenses also.  What happens when a court order is silent as to who gets to claim the children then?  The IRS guidelines say whoever the child lived with the majority of the year gets to claim the minor child as a deduction.  As such, if the court order is silent, you have to defer to the IRS guidelines. 

Wednesday, May 10, 2017

Free Legal Research

Located here is a useful article on how to use Google Scholar to do legal research. 

Friday, May 5, 2017

Book of Interest

I came across Client Letters for Family Lawyers by Mark E. Sullivan a few days ago and ordered a copy.  A link to it is here.  Several of the forms are useful in advising clients of various issues without have to reinvent the wheel.  A number of the items will have to be tweaked to drop into a letter but give a good base to start with.  It is reasonably priced and essentially pays for itself with the first letter sent to a client.   

Tuesday, May 2, 2017

Adverse Possession Elements

Below is a good summary on the law of adverse possession. 

To establish title by adverse possession, each of the following six elements must be proven by clear and convincing evidence.  “For possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.”  Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 669 (¶7) (Miss. Ct. App. 2013) (citing Blackburn v. Wong, 904 So. 2d 134, 136 (¶15) (Miss. 2004)).  The claimant bears the burden of proving adverse possession by clear and convincing evidence.  Scott v. Anderson-Tully Co., 154 So. 3d 910, 916 (¶14) (Miss. Ct. App. 2015).  “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not
rise to the same level.”  Massey v. Lambert, 84 So. 3d 846, 848 (¶7) (Miss. Ct. App. 2012)
(citation omitted) (citing In re C.B., 547 So. 2d 1369, 1375 (Miss. 1990)). 

1. Under Claim of Ownership

 When determining whether an adverse possessor has staked a proper claim of ownership, the relevant inquiry is “whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder on notice that the lands are held under an adverse claim of ownership.”  Hill v. Johnson, 27 So. 3d 426, 431 (¶19) (Miss. Ct. App. 2009) (citing Apperson v. White, 950 So. 2d 1113, 1117 (¶7) (Miss. Ct. App. 2007)).  “Adverse possession of ‘wild’ or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands.”  Apperson, 950 So. 2d at 1117 (¶8).  As such, “the chancellor must look to the quality and not the quantity of the acts indicative of possession.”  Id.  “A party claiming land by adverse possession . . . enclos[ing] the piece of property with a fence is a factor to be considered in determining if adverse possession occurred.”  Buford v. Logue, 832 So. 2d 594, 602 (¶23) (Miss. Ct. App. 2002). 

2. Actual or Hostile

Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.”  Roberts, 118 So. 3d at 670 (¶10).  “Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor’s deed.”  Id. (citing Wicker v. Harvey, 937 So. 2d 983, 993-94 (¶34) (Miss. Ct. App. 2006)).  “[T]he adverse possessor . . . must present some proof that [his] occupation of the record owner’s property was hostile, and that the record owner—aware of the adverse possessor’s hostile occupation—took no action to prevent adverse possession.”  Double J Farmlands Inc. v. Paradise Baptist Church, 999 So. 2d 826, 829 (¶15) (Miss. 2008).  “The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.”  Roberts, 118 So. 3d at 670 (¶10) (citing Apperson, 950 So. 2d at 1118 (¶12)). 

 3. Open, Notorious, and Visible

“In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible.”  Roberts, 118 So. 3d at 671  (¶13).  Therefore, the possessor “must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest.”  Id. (quoting Wicker, 937 So. 2d at 994 (¶35)).  “A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property.”  Dean v. Slade, 63 So. 3d 1230, 1237 (¶28) (Miss. Ct. App. 2010).   

4. Continuous and Uninterrupted for a Period of Ten Years


Mississippi Code Annotated section 15-1-13 requires continuous and uninterrupted possession of a disputed property for at least ten years.  See Miss. Code Ann. § 15-1-13. “[O]ccasional use of someone else’s property without an enclosure does not pass the test of adverse possession.  Ellison v. Meek, 820 So. 2d 730, 736 (¶21) (Miss. Ct. App. 2002).  “Sporadic use of another’s property does not constitute open and notorious possession.”  Id.

5. Exclusive

 “Exclusive possession means that the possessor ‘evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising [the] dominion of a sole owner.’”  Roberts, 118 So. 3d at 671 (¶15) (quoting Wicker, 937 So. 2d at 995 (¶40)).  “It does not mean that no one else can use the property.”  Id.  “Exclusivity, within the meaning of the statute, means that the adverse possessor’s use of the property was consistent with an exclusive claim to the right to use the property.”  Id. (citing Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). 

6. Peaceful

“An adverse possessor’s use of a claimed property must be peaceful.”  Scott, 154 So. 3d at 915 (¶28); see also Miss. Code Ann. § 15-1-13.  This Court has held that “expected disputes associated with the use or ownership of the property are not indicative of the possession not being peaceful.”  Roberts, 118 So. 3d at 671 (¶16).

Monday, April 24, 2017

Bankruptcy and Discrimination


Can a person be discriminated against because of a bankruptcy filing.  Section 525(a) states:  [A] governmental unit may not … deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated ….

Section 525(b) states: No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt ….

So the question to ask is, does the phrase “discriminate with respect to employment” include hiring decisions? The Third, Fifth, and Eleventh Circuits have decided it does not. These Circuits follow reasoning that if Congress desired to bar private employers from discriminating in hiring decisions then it would have included “deny employment to” in section (b) as well. “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, — U.S. —-, 129 S. Ct. 1849, 1854, 173 L.Ed.2d 785 (2009) (quotation marks omitted); Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17(1983) (same) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.2007) as cited in Myers v. Toojay’s Management Corporation. The 11th Circuit also pointed out that, “[t]he phrase ‘discriminate with respect to employment against’ is in section (a) and (b) therefore, if this phrase included hiring decisions then there would be no reason for section (a) to include the phrase ‘deny employment to.’ If ‘discriminate with respect to employment’ included the denial of employment, the words ‘deny employment’ in § 525(a) would be meaningless, pointless, superfluous.” Id.

Debtors argue that the language “discriminate with respect to employment” is broad enough to include hiring decisions. The Debtors rely on the reasoning outlined in Leary v. Warnaco, Inc., 251 B.R. 656 (S.D.N.Y.2000). In the Leary case the court reasoned that the drafter of § 525(a) was more verbose than the drafter of § 525(b) and that is one reason (b) does not include the exact same language as (a). The Leary court also saw no difference between discriminating in hiring or firing decisions, “[t]he evil being legislated against is no different when an employer fires a debtor simply for seeking refuge in bankruptcy, as contrasted with refusing to hire a person who does so,” and “that to read otherwise would contract the “fresh start” policy underlying the provision.” As cited in Rea v. Federated Investors.
This is an open area for some litigation depending on which circuit you are in.

Wednesday, April 19, 2017

Joint Custody

Some people think that joint custody automatically equals that the parents spending the same amount of time with a child.  A joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.”  See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).  But that does not necessarily mean that each parent would have to get equal time with their child.  See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).

Thursday, April 13, 2017

Case Management Software Comparsion

Here is a link comparing the leading case management software programs that the ABA recently did. 

Tuesday, April 11, 2017

Sexual Misconduct and Divorce

Sexual misconduct no longer dictates which parent receives custody. However, it does play a significant role in that determination. Moral fitness of each of the parents is one of 12 factors the Court considers when evaluating custody. Just because one of the parties has committed adultery does not automatically grant the non-offending parent the children. The Court analyzes the suitability of each parent by looking at the situation from the viewpoint of the child. Does the misconduct of the parent negatively affect the child? If so, to what extent? How does this misconduct compare in relation to that parent’s other attributes as a parent? What about the non-offending spouse - is he or she more suitable taking into account all factors? This analysis is generally the same whether the offense is adultery, cohabitation, or homosexuality.

Adultery - Mississippi courts strongly disfavor the children’s exposure to a parent’s extramarital affair. Overnight visits while the children are home can be the deciding factor in a custody battle when all other factors are equal or even slanted slightly in favor of the offending spouse. Allowing the children to be in the presence of the romantic partner will also bring into question the romantic partner's characteristics. If he or she has a criminal history or is otherwise unstable it will be very difficult for the offending spouse to obtain custody. On the other hand, an affair that is kept from the children and does not affect the parenting skills or devotion to the children is not usually pivotal in a custody determination.

Cohabitation - When one parent resides with someone to whom he or she is not married it can weigh against them in two of the 12 custody factors. First, Mississippi courts consider cohabitation to be a negative example of that parent’s moral character. Additionally, it calls into question the stability of the home environment. A parent who is cohabiting will definitely be at a huge disadvantage in any custody dispute.

Same Sex Relationships - Mississippi courts make no differentiation between heterosexual and homosexual relationships. A homosexual relationship does not guarantee the opposing parent custody of the children. The Court will attempt to determine if the relationship has an adverse effect on the children. However, as with adultery and cohabitation, it is considered immoral and indicative of that parent’s values. It will likely weigh heavily against that parent in the custody evaluation.

Regardless of the sexual misconduct, it is not the sole determining factor in a child custody dispute and will be put into context with the overall parenting abilities of each parent.

Tuesday, April 4, 2017

Venue

Last week, the Mississippi Supreme Court decided Cleveland Smith v. Kansas City Southern Railway Company.     Cleveland Smith filed suit against his employer Kansas City R.R. for an on-the-job injury he suffered in Sibley, LA.   He filed suit in Lowndes County where he resided (pursuant to 11-11-3(1)(b) allowing suit to be filed where the plaintiff lives if the defendant is a nonresident and does not have a principal place of business in Mississippi).  Kansas City moved for a change of venue and the trial court granted it holding that, although Kansas City’s  national principal place of business was in Kansas City, Missouri, it also did business in Mississippi and that its principal place of business in Mississippi was Rankin County.  Smith filed an interlocutory appeal which was granted.  The Court reversed finding that:
"We now find that a corporation may have only one principal place of business. Holding that the Legislature intended the venue statute to apply to a corporation’s principal place of business inside Mississippi would require analyzing in each case how much of a presence a foreign business has to have in Mississippi to have a principal place of business both inside Mississippi and nationally. Additionally, if any business with an office in Mississippi can be considered to have a principal place of business inside the state, that interpretation would render Section 11-11-3(1)(b) venue in the county of the plaintiff’s residence or domicile, virtually irrelevant. If the Legislature had intended for a foreign corporation to have a principal place of business inside the state, it easily could have clearly stated that in the statute."

Friday, March 31, 2017

Audit Trails in Medical Records


Defendants and their attorneys often claim ignorance of the CFR requirements and provide a partial list of documents that avoid revealing the information you need. Look at 45 CFR 164.312, 164.316, 164.528, and 170.210(b) (stating that “[t]he date, time, patient identification, and user identification must be recorded when electronic health information is created, modified, accessed, or deleted; and an indication of which action(s) occurred and by whom must also be recorded.”).   You can get into a situation where the hospital either has the records or is not HIPPA compliant which is often a lot more expensive than the lawsuit. 

Monday, March 27, 2017

Adoption Tax Credits


Taxpayers who have adopted or tried to adopt a child in 2016 may qualify for a tax credit. Here are ten important things about the adoption credit:

  1. The Credit. The credit is nonrefundable, which may reduce taxes owed to zero. If the credit exceeds the tax owed, there is no refund of the additional amount. In addition, if an employer helped pay for the adoption through a written qualified adoption assistance program, that amount may reduce any taxes owed.
  2. Maximum Benefit. The maximum adoption tax credit and exclusion for 2016 is $13,460 per child.
  3. Credit Carryover. If the credit exceeds the tax owed, taxpayers can carry any unused credit forward. For example, the unused credit in 2016 can reduce taxes for 2017. Use this method for up to five years or until the credit is fully used, whichever comes first.
  4. Eligible Child. An eligible child is an individual under age 18 or a person who is physically or mentally unable to care for themselves.
  5. Qualified Expenses. Adoption expenses must be reasonable, necessary and directly related to the adoption of the child. Types of expenses may include adoption fees, court costs, attorney fees and travel.
  6. Domestic or Foreign Adoptions. Taxpayers can usually claim the credit whether the adoption is domestic or foreign. However, there are different rules regarding the timing of expenses for each type of adoption.
  7. Special Needs Child. A special rule may apply if the adoption is of an eligible U.S. child with special needs. Under this special rule, taxpayers can claim the tax credit, even if qualified adoption expenses were not paid.
  8. No Double Benefit. In some instances both the tax credit and the exclusion may be claimed but not for the same expenses.
  9. Income Limits. The credit and exclusion are subject to income limitations. These may reduce or eliminate the claimable amount.
  10. IRS Free File. Use IRS Free File to prepare and e-file federal tax returns for free. File Form 8839, Qualified Adoption Expenses, with Form 1040. Free File is only available on IRS.gov/freefile.

Additional IRS Resources:

  • Tax Topic 607 – Adoption Credit and Adoption Assistance Programs

Monday, March 20, 2017

Discovery

I had an interesting discussion last week with someone regarding discovery responses.  If you look at the Rules of Civil Procedure real close, interrogatories are the only thing that has to be sworn to.  The requests for production of documents and responses to admissions only have to be signed by the attorney.  It is an interesting distinction.  On the admissions, I think the better course is to have the client sign off on them normally because many of the facts the attorney will have no clue on. 

Thursday, March 16, 2017

Save the Date

I am working with NBI to put together a CLE in Olive Branch for July 26, 2017 on family law.  Save the date.

Wednesday, March 15, 2017

Failing to Respond to Admissions

The Mississippi Court of Appeals decided Brooks v. Landmark yesterday located here.  I had previously watched the oral arguments on this case and the appeals council who was not the trial attorney did an excellent job of trying to repair this case.  Brooks filed suit against the nursing home wherein her husband resided just before he died.  She claimed that  he died as a result of negligent care and understaffing at the facility.   The nursing home sent discovery which was not responded to including the admissions.  The nursing home then filed for summary judgment based on the admissions.    Based on the deemed admissions, the court granted summary judgment.  The Court of Appeals affirmed noting that  “Even after Landmark filed a motion for summary judgment based on her deemed admissions, Brooks waited another four months to file a motion to withdraw the admissions pursuant to Rule 36(b), and Brooks never actually responded to the requests.”  Cases like this are why my office has a general policy of getting admissions done the day they come in. 

Monday, March 6, 2017

Punitive Damages

Below is a good summary of the current law on applying the punitive damages caps. 

“[P]roof of net worth is not required to award punitive damages. . . . [F]or a defendant to mitigate potential punitive damages, it is his responsibility to present proof of his net worth and financial condition.” Woodkrest Custom Homes Inc. v. Cooper, 108 So. 3d 460, 469 (¶¶41-42) (Miss. Ct. App. 2013) (citing C&C Trucking Co. v. Smith, 612 So. 2d 1092, 1102, 1105 (Miss. 1992)); accord Coleman & Coleman Enters., 106 So. 3d at 320 (¶33). Furthermore, the “evidence must be sufficient to enable the trial court to determine the defendant’s current net worth, according to generally accepted accounting principles.” In re Miss. Medicaid Pharm. Average Wholesale Price Litig. (“AWP Litig.”), 190 So. 3d 829, 846 (¶40) ( 2015) (opinion of Chandler, J., joined by Kitchens and King, JJ., affirming).

Here is one point I can take from the above.  From reading this, does this mean the Defendant must produce proof of their net worth in discovery or waive the issue?  The caselaw seems to say yes.  To me this looks like a landmine for Defendants potentially who keep opposing turning over this information in discovery or alternatively, produce nothing because no question requesting it was asked in discovery. 

Friday, March 3, 2017

Free Legal Help

The Access to Justice Commission recently put out some information to individuals who cannot afford an attorney.  It is always best to hire an attorney, but sometimes it may be impossible.  Here is a brochure of some legal resources for those times. 

Monday, February 27, 2017

Seminar of Interest

On March 15-17, Larry Rice will have his divorce CLE what he does about every two years in Memphis.  A copy of the schedule is located here.  As an attorney, this has been the most useful CLE I have been to.  I have attended his past two and will be at the one this year.  Come join me for some entertainment while learning useful and practical practice tools. 

Wednesday, February 22, 2017

Youth Crimes Jurisdiction

 Mississippi Code Annotated section 43-21-151 (Rev. 2015) provides, in the relevant part that:

(1) The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except in the following circumstances:
(a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court;
(b) Any act attempted or committed by a child with the use of a deadly weapon, the carrying of which concealed is prohibited by [s]ection 97-37-1, or a shotgun or a rifle, which would be a felony if committed by an adult, will be in the original jurisdiction of the circuit court[.]

The statute deals with some very narrow exceptions where a crime can be tried in Youth Court as opposed to Circuit Court.  The Court of Appeals recently vacated a jury verdict where the State skipped getting the case transferred from Youth Court.  A link to the opinion is here

Friday, February 17, 2017

Another Avenue for Attorney's Fees

Saw this note in a Mississippi Supreme Court case last week and never had thought about it much.  The Mississippi Supreme Court has held attorney’s fees may be awarded in cases where punitive damages are, or would be, proper, but are not actually awarded.  See Aqua-Culture Technologies, Ltd. v. Holly, 677 So. 2d 171, 184-85 (Miss. 1996); see also Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094, 1100-01 (Miss. 2011).  Furthermore, punitive damages are not a prerequisite for attorney’s fees, and a chancellor does not abuse his or her discretion by awarding such fees where an award of punitive damages would have been justified.  Aqua-Culture, 677 So. 2d at 184-85.

Wednesday, February 15, 2017

Misconduct in Trial

Yesterday, the Mississippi Court of Appeals decided White v. State located here.  This case has lots of useful information to be filed away.  The case deals with social media evidence in a statutory rape trial.  The Court of Appeals found multiple errors in this case and reversed it.  With regard to social media, it goes through and states how social media can be offered into evidence and that the trial court has to let a witness attempt to authenticate it.  Additionally, this case has one of the most detailed lists I am aware of regarding prosecutorial misconduct.  Anyone who does criminal defense work will want a copy of it.   It can make a really good list of potential motions in limine.

Wednesday, February 8, 2017

Bill of Interest

A bill passed by a narrow margin in the state house to abolish the collateral source rule in Mississippi.  The bill is headed to the state senate.  A copy of the bill is here

Sunday, February 5, 2017

Withdrawing Admissions

Under Rule 36 of the Rules of Civil Procedure, failure to respond to admissions automatically deems them admitted in Mississippi.  Located here is one of the best briefs I have found dealing with the current caselaw on withdrawing admissions.  The case in the brief is currently up on appeal.  This is one area that some new law needs to be established in.  To me, admissions are a little too much of gamesmanship as opposed an adjudication on the merits. 

Wednesday, January 25, 2017

Set Aside Guilty Plea

Yesterday, the Mississippi Court of Appeals decided Baker v. State located here.  This case illustrates how hard it is to set aside a guilty plea.  The general holding is that if the Court goes through all the proper steps, without some really good proof and affidavits attached to the petition, the conviction will not be set aside.  In doing some research on another matter, I think the requirements of proof are still present but that the burden may be a little lower in a practical since if the guilty plea was an Alford plea where a person maintains their innocence but agrees it is in their best interest to plea guilty. 

Tuesday, January 17, 2017

Case to Watch

The Mississippi Supreme Court has retained an interesting case located at 2015 CA-1527-SCT.  The Court is set to address two issues based on an order handed down on December 15, 2016 located here dealing with child support.  The parties have been ordered to brief the following:


"(1) Caldwell implies in dictum that children who engage in "clear and
extreme" conduct toward non-custodial parents may forfeit their right to child
support. Does the "clear and extreme" conduct mentioned in Caldwell fall
within one of Mississippi Code Section 43-19-103's criteria for finding that
the presumption in Mississippi Code Section 43-19-101 has been rebutted?

(2) If not, what authority, if any, exists for this Court to establish additional
criteria for overcoming the presumption established by 43 -19-101 ? In briefing
this question, the parties should particularly address, though not exclusively,
this Court's statement in Thurman v. Thurman, 559 So. 2d 1014,1017
(Miss.1990) that "The guidelines for child support awards as now set out in
Miss. Code Ann. §43-19-101 (Supp. 1989) must not control the Chancellor's
award of child support."
Interesting issue to watch. 

Wednesday, January 11, 2017

Bill of Discovery

Yesterday, the Mississippi Court of Appeals decided Graham v. Franks, et. al. located here.  The Court of Appeals determined that the old bill of discovery from prior to the Rules of Civil Procedure was still a valid cause of action.  To me, this opens up a whole new avenue where a party may be able to obtain discovery of items to determine if a cause of action exists prior to filing a separate suit. 

Friday, January 6, 2017

Wrongful Death

On Thursday, the Mississippi Supreme Court decided Estate of Davis et. al. v. Blaylock et. al. located here.  The first case filed in a wrongful death action is the one that proceeds.  The rest are of no effect.   The Court in its opinion noted; 

"Still, Davis contends the proper course was to consolidate her multiple actions. But when faced with a similar request to consolidate in Long, we clearly held that, because any subsequently filed actions are “of no effect and should be dismissed,” they cannot be consolidated with the first action. Id. at 174. “Consolidation of suits presupposes that there are two suits to consolidate.” Id. And because a wrongful-death claim “must be brought in a single suit, there cannot be two suits to consolidate.” Id."