Tennessee Punitive Damages Caps Found Unconstitutional

On December 21, 2018, the 6th Circuit found the statutory cap on punitive damages in Tennessee unconstitutional.  A link to the opinion is here.

Overnight Guest vs. Cohabitation

On October 30, 2018, the Mississippi Court of Appeals decided Bruton v. Bruton, No. 2017-CA-00124-COA (Miss. Ct. App. Oct. 30, 2018) located here.  One of the interesting issues in the case was that the Court of Appeals found the chancellor erred in holding a party in contempt for having a member of the opposite sex not related by blood or marriage stay overnight when the children were present.  The Court found  that the individual Mr. Burton was living with he was cohabitating with.  As such, she was not an "overnight guest."  The Court reasoned that the caselaw distinguishes from cohabitation and overnight guests.   This drew one of the funniest dissents I have seen where Judge Barnes noted "Further, as only "guests" are prohibited under the majority's analysis, Chuck would not have been in contempt of the order had he hired a prostitute to spend the night with the children present. She would, of course, have been an "invitee" rather than a "guest."  The moral of the case is that language in the order must be abundantly clear or a finding of contempt is not proper.

Modification of Child Support

A trial court may award retroactive child support dating back to the time in which the
motion for modification is filed.   See Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss.
1991).

Taxability of Personal Injury Settlements

The IRS has a guide on when personal injury settlements may be taxed and when they are not located here.

Reopening A Divorce

On November 20, 2018, the Mississippi Court of Appeals decided Nelson vs. Nelson located here.  One of the issues in the case was whether a trial court could reopen a divorce where an asset was not disclosed.  In this case, the Court of Appeal determined the trial court can because the asset was intentionally hid during the divorce.

Jury Instructions on Appeal

Jury instructions “are to be taken collectively rather than be given individual consideration.  So long as all the instructions read together adequately and properly instruct the jury on the issues, an individual instruction given to the jury will not constitute reversible error.”  Detroit Marine Eng’g v. McRee, 510 So. 2d 462, 467-68 (Miss. 1987).

Appellate Jurisdiction

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted).

In most suits, the trial judge loses all jurisdiction once a case is appealed. McNeil v. Hester, 753 So.2d 1057, 1075-76 (Miss.2000). A chancellor, however, may modify child support, custody and visitation while a case is on appeal if a proper basis for doing so is shown. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.  Smith v. Necaise, 357 So.2d 931, 933 (Miss. 1978), quoting DeSimone v. DeSimone, 392 S.W.2d 68, 68-69 (Ky.1965).

The Mississippi Supreme Court says an appeal with supersedeas does not vacate the judgment appealed from; it merely suspends the enforcement of the judgment pending the determination of the appeal. If on that determination the judgment is affirmed, the effect thereof is to establish or confirm the validity of the judgment from and as the date of its rendition in the court of original jurisdiction. See also Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705, 708. The Court said: "Clearly the judgments of the trial court were the effective adjudications of plaintiffs' rights. Their effect was suspended during appeal with supersedeas to the Supreme Court, but our judgment simply affirmed the validity of the judgments of the circuit court" See also Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289.

A party may execute on the judgment if an appeal has no supersedeas bond; however, "the [chancery] court cannot `broaden, amend, modify, vacate, clarify, or rehear the decree.'" Id. (citation omitted).