Foundation of Evidence

I believe one of the overlooked areas in family law and most other litigation is laying a proper foundation of certain testimony.  Rule 602 of the Mississippi Rules of Evidence provides that a witness cannot testify to evidence they have no personal knowledge of.  Several attorneys get pretty upset with me when I start objecting in trial to their clients testimony as lacking foundation.  Once they start to try to lay the foundation, it turns out the only thing the witness knows is from what someone told them which is hearsay and a whole other evidentiary can of worms.  Nothing like getting the judgment to sustain six (6) objections in a two (2) minute period which happened in a case I had a while back.  Lay some foundation of personal knowledge regarding certain testimony and plan ahead.  If not, you can really get burned on this issue. 

Twombly Pleading

Currently, Mississippi is still a notice pleading state.  However, there is a trend and now requirements for heightened pleadings.  I expect this to start to trickle down to state court more in the future although most state judges have not been too receptive as of yet.  In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court held that heightened pleadings are required in  Federal civil cases which require plaintiffs to include enough facts in their complaint to make it plausible — not merely possible or conceivable — that they will be able to prove facts to support their claims.  The United States Supreme Court later in Ashcroft v. Iqbai 556 U.S. 662 (2009) confirmed that this standard applied to all civil actions in federal court. 

The Court in Ashcroft also provided guidance as to how lower courts should apply the Bell Atlantic Corp. v. Twombly test:

"Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. ... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal con­clusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach."

As such, you need to be really detailed in pleading your cause of action in federal court.  Thus far, some states have embraced the decision and applied it.  Tennessee where I also practice has rejected it.  Thus far, Mississippi has not addressed the issue either way.  Based on the current trends regarding medical malpractice cases in Mississippi in particular, I would suggest heightened and specific facts be alleged particularly if the statute of limitations is close in order to not be the first test case.

Separate Maintenance

Separate maintenance is still available in Mississippi.  I have several extremely religious clients ask about it when their spouse leaves.  Essentially, it is an equitable remedy created by the court for the spouse who leaves to either resume cohabitation with their spouse or pay them sufficient support as they would as if they are still living together.  There are all kinds of little quirks in this such as the spouse seeking it cannot be materially at fault for the separation and the spouse has to be willing to take back their spouse if they wish to return with certain caveats.  The law in this area is real tricky and has not been discussed much in recent years.

Yesterday, the Mississippi Court of Appeals handed down Jackson v. Jackson, 2011-CA-01882-COA.  This is the longest opinion regarding separate maintenance I have seen in a good while and goes through most of the relevant law on the issue.  The Court of Appeals in this case reversed and rendered the judgment of the Itawamba County Chancery Court.  Without getting into all the details, the decision was reversed mainly due to the proof presented showed that Ms. Jackson was materially at fault for the separation of the parties.  The Court seemed to base part of their opinion on the fact that Ms. Jackson appeared to commit fraud on the trial court also in certain 8.05 financial disclosures she made.  The opinion is well worth a read if you are going to attempt to prove a case for separate maintenance that will hold up on appeal. 


http://courts.ms.gov/Images/Opinions/CO84329.pdf

Book Review

Read a pretty good family law book over the holiday weekend.  The book is "The Family Law Trial Evidence Handbook" by Steven N. Peskind.  You can get a copy from the ABA bookstore.  It is pretty good and gave me some new ideas on certain evidentiary issues.  A lot of the book seems to be more of a copy and paste of the Rule of Evidence and then a brief discussion of some examples of how to use the rules in the family law context.  The book is a little pricy and in my opinion needed more substance to it as far as examples.  However, it will make you think more about trial preparation and how the rules may affect your trial preparation. 

Daubert and Family Law

In family law, I see a lot of attorneys attempt to use "experts"  for a variety of purposes.  The most typical one is some form of counselor to say that one parent is better than the other one.  In several cases I have been involved in, the "expert" is no more qualified to give an expert opinion on the matter than I would be.  In Daubert v. Merrell Dow Pharmaceuticals, Inc., 508 U.S. 579, 589-91 (1993), the U.S. Supreme Court set up standards that are virtually mirrored in every state including Mississippi regarding when expert testimony may be admitted at trial.  Without getting into a long Daubert discussion, the main issue is that the expert must offer testimony that is generally accepted in the scientific community using generally accepted methods of testing.  I have unfortunately seen individuals attempt to offer expert testimony that when analyzed closely has no methodology behind it nor any way to verify their opinion.  Chancellors lots of times say that goes to the weight of the evidence.  However, my response was always that if the methodology is flawed, the evidence is not reliable, therefore it cannot be relevant.  If it is not relevant, the rules of evidence prohibit it from being used.  Daubert motions to disqualify opposing parties' expert witnesses are not utilized enough in my opinion to the determinant of both the kids and the parents. 

Effect of an Appeal from Justice Court to County or Circuit Court

Justice Court in Mississippi is good for handling small claims where the claim does not exceed $3,500.00.  However, what happens when the case is appealed?

Mississippi Code Annotated §11-51-91 provides that appeals from justice court to circuit court are to proceed by trial de novo. See, e.g., Franklin Collection Serv. v. Stewart, 863 So.2d 925, 929(¶ 10) (Miss.2003); Walker v. Benz, 914 So.2d 1262, 1267(15) (Miss.Ct. App.2005) (citation omitted)); see also URCCC 5.01 ("Direct appeals from justice court and municipal court shall be by trial de novo."). The appeal proceeds in the circuit court "as if a complaint and answer had been filed...." URCCC 5.07.   Further, the proceedings on appeal to the circuit court are "governed by the Mississippi Rules of Civil Procedure, where applicable...." Id.

In Lucedale Commercial Co. v. Strength, 163 Miss. 346, 352-53, 141 So. 769, 769 (1932), the Mississippi Supreme Court held:

"When a cause is removed to the circuit court on appeal from a justice of the peace          court, the jurisdiction acquired by the circuit court is not in any proper sense appellate. The circuit court, in such cases, has no authority to merely review and affirm or reverse the judgment of the justice of the peace, but the case must be tried anew as if it were originally instituted in the circuit court, with the single exception that written pleadings are not required. And the jurisdiction to consider such cases de novo on appeal, and, decide them according to the law and the evidence, independent of the rulings and judgment of the lower court, is original and not appellate."

What this really amounts to is a whole new ballgame.  The rules of civil procedure apply, the pleadings may be amended to include new claims, and any other relief may be available as provided for by statute and the Rules of Civil Procedure.   As such, a small claim can get very expensive to litigate. 

Brady Act and Domestic Violence

Clients and attorneys both must be aware of the consequences of an order of protection.  I find way too many times that attorneys fail to advise and clients are not aware of the consequences a domestic order of protection has with gun rights. This is particularly important in Mississippi where virtually everyone or their family members own a firearm. 

If an individual has a domestic violence retraining order issued against them after the person charged has a hearing, they are disqualified from owning a firearm under the Brady Act.  If they are found in possession of a firearm after that, it is a felony.  The interesting issue is that it does not apply to ex parte restraining orders, it only applies where the other side has appeared or the opportunity to appear and a hearing has occurred. 

Too many times I have seen cases where these restraining orders are abused to get a tactical advantage in a divorce case.  Later once an attorney is involved, an agreed order is entered to place permanent retraining order or a mutual restraining order is issued which affects the gun rights of both parties.  This can be easily avoided.  The easiest solution to keep the status quo in place and to the prevent anyone from losing their guns is to have the ex parte order continued to give everything a chance to calm down without having a hearing.  This gets around the Brady issue and hopefully gives time for a solution to be reached. 

How Important are Pleadings?

Sometimes, I people say in Court that it does not matter what the pleadings say as long as you are asking for relief.  I disagree with that and note that if an objection is properly made, a party should not get relief outside the pleadings.  That a look at McMurry v. Sadler, 846 So.2d 240, 244 (Miss. Ct. App. 2002).  In that case a chancellor properly dismissed a petition before any evidence was put on by anyone for failure to properly plead the test for modification.  Scary stuff and shows the importance of words.  

How much does it really cost to enforce the Court's order?

Lots of times in enforcing the Court's orders, contempt has to be filed against an opposing party. It requires lots of work at times on dealing with the what is necessary to enforce the Court's order but inevitably issues that also have to be addressed at the same time. The Mississippi Supreme Court held a while back that fees awarded for contempt should not exceed the expense incurred as a result of the contemptuous conduct. Hanshaw v. Hanshaw,55 So.3d 143, 148 (¶17) (Miss. 2011). A number of appellate opinions including one of my own have been reversed for the trial court to determine the amount of the fee necessary just for enforcing the Court's order as opposed to other issues which were also necessary to address outside of the contempt issue. The trend seems to be for stricter findings on the amount of attorney's fees that fit within the areas where attorney's fees can be awarded that I have previously discussed on here. 

My suggestion now is to itemize out and do separate attorney's fees affidavits for each area (i.e. contempt, modification, etc.). I predict Mississippi may start to do as a number of judges in Tennessee do now and require your affidavit to list each of the applicable attorney's fees factors (i.e. McKee in Mississippi, Wright v. Wright in Tennessee) and how they apply to your case. I am crafting a form in line with that for Mississippi to include in the final book draft I am working on.

Form Book

I have gotten several requests for forms.  I am in the process of compiling a forms book for Mississippi domestic practice to look at submitting to a publisher.  I had the majority of it done for a while but have been putting off finishing it.  I am hoping to have it completed in roughly three (3) months with any luck.  My goal is to have a set of forms for divorce, paternity, custody, and related issues in Mississippi so that someone could literally open a law office on day one from scratch if they need to.  Depending on scheduling issues, hope to have finished by end of July.  Will keep everyone posted. 

Line of Demarcation

On Thursday of last week, the Mississippi Supreme Court handed down Collins v. Collins.  A link to the opinion is below.

http://courts.ms.gov/Images/Opinions/CO84625.pdf

The case dealt with the issue of when does the accumulation of martial property stop in divorce?  The case essentially gives the chancellor three choices:  (1)  date of separation; (2) date of temporary order; or (3) date of divorce.  The case expressly overruled the earlier case of Pittman v. Pittman which left the impression that the Court was to always use the temporary order as the line of demarcation in the accumulation of marital property.  The Court expressly held that the chancellor must specifically and particularly state the date of demarcation in the order and why the date was chosen.  If they do not, the case is subject to automatic reversal. 

Sometime in the next few weeks, I am going to try to post of list of what I see as the current requirements in Mississippi regarding what findings the chancellor must make on the record.  From reading the current trend in opinions, the list is getting rather extensive and it is easy to overlook an issue in the middle of trial for both chancellors and attorney.

Mississippi Statute Change

MCA 43-19-101(e) has been amended, effective July 1, 2013, to provide that:

“In cases in which the adjusted gross income as defined in this section is more than One Hundred Thousand Dollars ($100,000) or less than Ten Thousand Dollars ($10,000), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.”

Right now the figures are $50,000 and $5,000.  For the most part this is not a huge change but for practical purposes makes the guidelines presumptively correct with higher income individuals where at times at the past you could occasionally get a deviation.

Martial Home

On Tuesday of this week, the Mississippi Court of Appeals decided
Palmer v. Palmer, No. 2011-CA-01199-COA.  A link to the opinion is below.  This is an interesting case where frankly I have argued both the majority opinion and the dissenting opinion in a number of cases.  The main issue in the case was whether the chancellor fully considered the fact that Mr. Palmer owned the home prior to the marriage and that the home appreciated very little during the marriage.  The Court of Appeals reversed the opinion stating that the chancellor failed to give adequate weight to the husband's premarital contributions and the lack of accumulation during the marriage.  The dissent argued that the chancellor considered all the equities of the situation and thus it was within the Court's discretion to equally divide up the value of the house under the family use doctrine among other things. 

To me the most interesting language in the opinion is the following:

"We acknowledge the clarity in our law—that equitable distribution is committed to

the sound discretion of the chancellor. However, we, as an appellate court, have oversight
responsibility, and if we could never reverse a chancellor’s decision regarding equitable
distribution, our oversight responsibility would be reduced to the ministerial act of simply
rubber-stamping a chancellor’s decision."
This among other cases seems to reflect a shift in the appellate court in Mississippi in reviewing domestic cases particularly with higher scrutiny.   

http://courts.ms.gov/Images/Opinions/CO83896.pdf

Equal Custody

Below is a good article on equal custody.  Sometimes equal custody is good, sometimes not so much. 
Some good things to think about are in the article. 

http://www.examiner.com/article/equal-custody-after-divorce-not-always-best-for-children?fb_comment_id=fbc_546819718692112_6131483_553154351391982#f33d718bb430a68

Restricting Visitation

I have had a sudden rash of inquiries about restricting visitation in Mississippi.  For some reason people have gotten the idea that is the custodial parent feels the noncustodial parent is “not being nice to them” they can ask the Court to terminate visitation.  This is not the law for sure and the standard to restrict visitation is extremely high. 

The Mississippi Supreme Court dictated in Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss. 1992), that there "must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction. Otherwise, the chancellor's imposition of a restriction on a non-custodial parent's visitation is manifest error and an abuse of discretion." Id.  Additionally see Howell v. Howell, 56 So.3d 593 (Miss.App. 2011) finding that chancellor abused discretion in ruling that Father could not have girlfriend present overnight when kids were present.  Such restriction is extremely burdensome to the Wife especially in light of her being removed from the martial home and pending potential extended summer visitation with the minor children. 

These two cases are just a handful dealing with visitation.  Absent an extremely strong reason that actually affects the minor child, visitation cannot be restricted.  Over the years our appellate court have reversed chancellors repeatedly for not allowing overnight visitation, ordering that a parent cannot have the child around a homosexual lover, and that a parent could not take a child flying. 

Strip Club Ruling

This is not a Mississippi or Tennessee case but was too funny not to share. 

http://news.yahoo.com/blogs/sideshow/texas-judge-issues-double-entendre-filled-ruling-strip-151235719.html

Befriending Your Ex

Below is a good article for both clients and attorneys.  It deals with helping parties move on after a divorce.

http://www.divorcemag.com/c/s3/?/c/s3/?Divorce_Recovery/befriending-your-ex-spouse.html