Oral Arguments on Same-Sex Divorce Case

Several people have asked me about the same-sex divorce case I have on file.  Today, the Chancellor set oral arguments for December 2, 2013 at 9:00 A.M. in Hernando. 

Social Media

Social media (Facebook, Twitter, etc.) has become a staple of most people's lives.  It has also been a constant source of evidence for both Plaintiffs and Defendants in almost every kind of case.   As an attorney or a client, you cannot destroy items on your Facebook page when litigation is commenced.  Otherwise,  you run into issues of spoliation of evidence that I have talked about here previously.  An attorney accepted a five year suspension in an article by the ABA Journal published on August 7, 2013 as a result of telling a client to clean up his Facebook.  That article is here.  Something to be careful of for sure.

Recovery for Injuries in Divorce

I was thinking about an issue that is involved in a case I am working on.  I have an issue where a spouse was assaulted and incurred substantial medical bills as a result.  No civil suit was filed within one (1) year as required by Mississippi Code Annotated 15-1-35.   Parties are now divorcing.  The Chancery Court in my opinion can allocate the bills as part of the equitable distribution process even though no suit was filed.  This may be an interesting way around the statute of limitations issue to get a client some relief. 

Rule 1006 Summary Admissibility

Gardner v. Gardner decided on Tuesday of this week by the Mississippi Court of Appeals had an interesting issue in it concerning Rule 1006 of the Mississippi Rules of Evidence.  The case is located here.  The issue was that there was a Rule 1006 summary of bank account information entered into evidence and one of the parties claimed it was error.  The Court of Appeals said no it was not error since the underlying documents were made available to opposing counsel.  Here is one issue I did not see addressed in the case that I think is overlooked.  What if the underlying documents are not admissible, why should the summary be?  To me, the underlying documents have to be admissible too.  As such, if there is an objection to the authenticity of the underlying documents, the summary should logically be inadmissible too.   

Child Support Deviation

The Mississippi Court of Appeals issued an interesting decision yesterday in Marin v. Stewart located here.  In this case, the Court of Appeals affirmed a chancellor awarding 25% of a noncustodial parent's income as child support which is way above the statutory 14%.  The issue in the case seemed to turn on the fact that the Mother had significant daycare expenses and the Father was able to live with minimal living expenses of his own as he lived with his parents.   I am starting to see more cases where chancellors are deviating from the child support guidelines.  Partly, this is because Mississippi has some of the lowest guidelines in the country.  However, Mississippi also has some of the longest since they exceed to twenty-one (21) and a chancellor has the authority to order college support.  There has been a bill in the legislature for a while to change this up.  Last I heard it was still in committee. 

Rule of Evidence 703

Rule 703 of the Mississippi Rules of Evidence states that an expert’s opinion may be based off of inadmissible evidence, such as hearsay, if it is the type reasonably relied upon by experts in the particular field.  M.R.E. 703.    This is an important item to know.  Potentially, in my opinion, an expert can testify as to the substance of what he or she based his opinion which allows items that may be inadmissible (i.e. hearsay) into the record.  From a practical standpoint, this may allow various things that would not normally get into evidence to at least get in the record.  Additionally, many times even if the Court is to give them limited weight, they will still be in the mind of the fact-finder (Chancellor) in the case. 

Beware Bankrutpcy

In representing an injured party, you have to be careful of bankruptcy issues.  I have noticed lots of time that either from lack of knowledge or some other reason an injured parties’ bankruptcy attorney will fail to ask them about possible pending suits or claims they may have.  This may lead to the claim being judicially stopped.  The Fifth Circuit has identified three requirements that must be met for judicial estoppel to apply: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.  In re Superior Crewboats, Inc., 374 F.3d 330, 334-335 (5^th Cir. 2004) (emphasis added). A debtor’s non-disclosure is “inadvertent” when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.  Kirk v. Pope, 973 So.2d 981 (Miss. 2007).  In any personal injury case, it is extremely important to find out about prior bankruptcy filings and to advise clients to contact you if they find it necessary to file for bankruptcy.  Unfortunately, many times an injured party has to file bankruptcy due to the pending medical bills when they do not have health insurance.