Importance of a Post-Trial Motioin

Absent a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict (JNOV), an appellant has waived the sufficiency error on appeal. Darnell v. State, 202 So. 3d 281, 285 (¶13) (Miss. Ct. App. 2016). Additionally, “[t]he matter of evidentiary weight is waived by the failure to move for a new trial.” Stewart v. State, 879 So. 2d 1089, 1095 (¶24) (Miss. Ct. App. 2004).

Recovery of Overpayment When Overturned on Appeal

When payment of financial awards are not stayed pending appeal, repayment may be required.  After alimony was reversed on appeal, a chancellor properly ordered a wife to reimburse her husband for alimony payments received during the period of appeal.  Henderson v. Henderson, 757 So. 2d 285,294 (Miss. 2000). 

Deposition Exhibits

A few years ago, I was taking a deposition where the opposing party kept putting documents in front of my client asking her to read them.  He essentially was trying to make it sound like she was testifying to certain things as facts instead of reading the documents.  I asked him to attach the items to the deposition as it came up and he refused.  We ended up having to stop the deposition and get the Judge on the phone as a result.  The answer is very straight forward in Rule 30 (f)(2) which provides that:

"(2) Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition, and may be inspected and copied by any party.  Whenever the person producing materials desires to retain the originals, he may substitute copies of the originals, or afford each party an opportunity to make copies thereof."

After the opposing attorney was tongue lashed by the judge and threatened with sanctions, the deposition ended about ten (10) minutes later because he was so thrown off by the incident.  

Same Sex Divorce and Paternity

On November 29, 2017, the Mississippi Supreme Court heard the case of Christine Strickland v Kimberly Jayroe Strickland Day involving a finding of parentage where the couple’s child was conceived with sperm from an unknown donor.  Christina and Kimberly were in a relationship beginning in 1999.   They adopted a son in 2000  but because of restrictions against adoption by same sex couples. Kimberly was the one who legally adopted E.J.  In 2009 they married in Massachusetts. They then had another child in 2010 by having Kimberly carry a baby  whose father was an anonymous sperm donor (the egg was Kimberly’s).

They eventually split up and filed for divorce.  The trial court held that Christina acted in loco parentis to E.J. and awarded her visitation rights.  With respect to Z.S. the court held that  Z.S. was born during a valid marriage but created a distinction between children born “during” a marriage and children born “of” a marriage and held that Z.S. was born during the marriage, not of the marriage,” “wherein both parties are not considered.” The court held that the anonymous sperm donor constituted “an absent father”, that  he “may never be known, and probably won’t be, [] he is still a father.” This being so, the court concluded, that the donor’s legal parentage precluded a determination that Christina was Z.S.’s legal parent but held that Christina acted in loco parentis to Z.S., and awarded her visitation rights. Christina appealed and argues that she should have been recognized as the parent of Z.S.

The briefs are below.  I have predicted for a while this would be the next big issue in family law.

Christine Strickland’s brief
Kimberly Day’s brief
Strickland’s reply brief
(There are also various amicus briefs)
Watch the argument here

Tax Code Changes and Modification

Most people are aware that there are several potential changes in the U.S. Tax Code with regard to family law floating around.  The final bills have not passed yet.  The two main issues of interest are the lack of deductibility of alimony and the removal of the child tax deduction.  The issue I am seeing on the horizon if these become law is whether this is a basis for modification of financial obligations.  Countless divorce degrees where negotiated across the country in good faith with these tax benefits taken into consideration.  Currently, I think the change is foreseeable.  Six months ago, not so much.  Timing may be a critical issue in these cases.  The legal issue  of whether a change in the tax code is a substantial change in circumstances is going to be one of the next big issues to consider.