Sword and Shield of Attorney Client Privilege

A party cannot normally assert attorney advice and a defense and then turn around and claim privilege whenever the matter is discussed in more detail.  A good summary of the law in Mississippi is located in a recent 5th Circuit opinion located here.

Case of Interest

On February 8, 2018, the Mississippi Supreme Court decided McKinney vs. Hamp located here.  There were a number of issues of first impression of interest in the opinion listed below.

(1) Supersedes bond is not available on prospective child support.  It is still available for money bond on past due child support.   From my reading on this, I think there is a good argument alimony is likewise not subject to bond.  I have assisted attorneys in the past in asking for supersedes bond on alimony and they have been denied the same in some unpublished opinions. 

(2) "This Court has looked to our statutory law and has held that “‘[a]n upward retroactive
modification may be ordered back to the date of the event justifying the upward
modification.’” A.M.L. v. J.W.L., 98 So. 3d 1001, 1018 (Miss. 2012) (citing Miss. Code
Ann. § 43-19-34(4) (Rev. 2009)) (emphasis in original).  Section 43-19-34(4) still provides
the same today.  See Miss. Code Ann. § 43-19-34(4) (Rev. 2015).  But we have also
suggested that “the better rule is to allow modification amounting to an increase in support
as of the date of the petition to modify or thereafter, within the sound discretion of the trial
court.”  Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss. 1991).  This is a discretionary
call."
This is the first case I am aware of to look at 43-19-34(4).  However, the opinion gives no guidance on what would constitute an abuse of discretion in this context of the statute. 

(3)  "...the chancellor failed to consider the factors laid out in Louk when considering the tax
issue.  See Louk v. Louk, 761 So. 2d 878, 883-84 (Miss. 2000).  But in truth, this Court has
not established a specific test for allocating child tax exemptions, though we have discussed
some suggested considerations.".  Id.

Apparently, the Louk case is not a test but factors to consider.  My reading is that the court has to consider the factors in some way on the record before determining who is to get the deduction. 

(4) Advice of counsel may prevent a finding of willful contempt.  However, the Court hinted that this may not always be a defense. I am not sure how to interpret the hinting language.  My guess would be that there has to be good faith reliance on the advice. 

Footnote of Interest

Last Tuesday, the Mississippi Court of Appeals decided Dixon v. Dixon located here.  There is an interesting footnote in the opinion of interest.  The Court found in a footnote that deposition testimony may be taken as substantive proof and found more credible than trial testimony.  The footnote 9 stated:

9 It is true, as the partial dissent points out, that Tracy contradicted himself at trial. However, the chancellor, as the finder of fact, was entitled to find Tracy’s deposition testimony more credible than his trial testimony.  See Henson v. City of Dundee, 682 F.2d 897, 908 n.16 (11th Cir. 1982) (explaining that if a party’s trial testimony contradicts his prior deposition testimony, and the deposition testimony is “read . . . to” and “acknowledged” by the party at trial, the fact-finder may then consider and rely on the deposition testimony “as substantive evidence”).

Damages for Vulnerable Adults

Came across the following when working on a civil suit to recover money for a vulnerable adult:

Mississippi Code 11-7-165 (1)

(1) In a civil action where it is proven that a person took property having a value of Two Hundred Fifty Dollars ($ 250.00) or more belonging to a vulnerable adult by conversion, embezzlement, extortion, theft or fraud without the owner's consent, or obtained the owner's consent by intimidation, deception, undue influence or by misusing a position of trust or a confidential relationship with the owner, then whether the action is to recover the property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property embezzled, converted or otherwise stolen, in addition to any other damages.

The statute appears to authorize the award of three (3) times the damages which can make an easy multiplier on the case.  

Divesting of Title

Learned this little tidbit today on title in chancery for title insurance purposes.  If title is divested by Court order, the title insurance companies will not insure it if the order does not have the language that title is vested in one party and divested from another.  The order also has to specifically state that the title is divested pursuant to Rule 70 of the Mississippi Rules of Civil Procedure. 

Normally a quit claim deed would prevent any of these issues.  In the rare case a court order is all there is, the above will have to be used.

Social Security and Alimony

This afternoon, the Mississippi Supreme Court decided Harris vs. Harris located here.   The case overruled an earlier case that stated social security received on account of another's work record entitled that person to credit.  In Harris, the Court overruled that case and stated a change in circumstances is needed in order to get the credit.