Oral Arguments

Oral arguments are set for Monday on the same sex divorce case I have.  Right before the holiday, there was an interesting development that is now on public record.  The parties reached a settlement on their pending divorce issues right before the holidays.  The only issue remaining will be the constitutional challenge as to whether the court can deny a now uncontested and unopposed divorce between a same sex couple.  The State of Mississippi has intervened to block the granting of the divorce citing the statutory bans on same sex marriage. 

Holiday Visitation

Holiday visitation is nerve racking for both custodial and non-custodial parent alike.  The custodial parent does not like their child being away from them on the holidays and visa-versa.  My experience has been that once the parents adjust to it, things get better over time particularly with the custodial parent.  The custodial parent gets some rest which eases tension over a number of issues.

Adverse Affect on Abuse Allegations

On Tuesday, the Mississippi Court of Appeals handed down James v. James located here.  The Court made note of one issue that is important to note.  During the case, there were all kinds of abuse allegations which turned out to be false against Mr. James.  As a result in part, Mr. James sought custody of the minor children which the chancellor denied.  The main issue that was affirmed by the Court of Appeals was that there was no proof of adverse affect on the children as a result of the false allegations.  The father was the only one adversely affected and not the children.  To me, this sets up some potential bad situations which I have seen first hand unfortunately where one parent will make these allegations to gain leverage in a custody case or to seek modification.  Even after the allegations are proven false, it still leaves a stink which can harm the innocent party. 

Alimony

Last week, the Mississippi Court of Appeals handed down Peterson v. Peterson located here.  This case has probably one of the best discussions on the proof needed to modify alimony post divorce.  Ultimately, the Court of Appeals in this case ruled that the modification of alimony under the facts presented was reasonable.  However, the case was remanded on cross-appeal because the trial court failed to make any findings on the record that Mr. Peterson had the ability to pay the amount ordered. 

Same-Sex Marriage Part III

On Friday, my office filed the reply brief to the State's brief on the ongoing same-sex divorce case I have.  The reply brief is located here.  We pulled a lot of resources from various articles and briefs in order to have it fit the facts of this case.  The constitutional issue of what is required by Full Faith and Credit seems to be what most everything hinges on.  We spent a lot of time going through the framer's intent in the brief on the issue.  The case has big potential issues far outside of the family law context. 

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) provides certain protections to workers regarding the minimum amount of pay and when overtime must be paid.  There are a lot of exceptions in the statutes, but typically a worker must be paid time and a half for any hour over forty worked in a week.  This is useful to know if you are dealing with construction clients in particular.  Lots of times you can pick up a second case against their employer for violating the FLSA which provides numerous penalties for violating it, including reasonable attorney's fees. 

Agreement Immediately Enforceable

Larry Primeaux wrote a good article today on various clauses for property settlements in Mississippi located here.  He talks about the execution of property settlements and whether they are immediately enforceable.  Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) stated that “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.”

I have always put a clause to allow the settlement to be revoked during the 60 day waiting period particularly where custody is involved.  A number of years ago,  I had a set of parties who came in and agreed on a property settlement and then signed it.  One party waived rather large pension claims and alimony to get the divorce over with.  The other party had apparently talked to an attorney before hand and waited until day 59 of the 60 day waiting period to file a revocation.  He tried to argue the with an attorney now that the property settlement was all contractual and he was here to litigate child custody now that the spouse had waived her claim to the pensions since custody always has to be approved by the Court.  Luckily, the settlement provided the whole thing was void if consent was withdrawn which apparently he did not read.   The client still ended up with custody, portions of the pension with additional support.  One thing to consider is whether entering an agreed temporary order with the entry of the property settlement would be beneficial and may discourage this. 

Firearms and Mental Illness

Occasionally, a person will be declared incompetent in a divorce proceeding or as part of a conservatorship.  One thing to be aware of is that disqualifies them from being able to get a license to carry firearms pursuant to Mississippi Code Annotated 45-9-101.  Additionally, under
18 U.S.C. § 922(d), it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution.”   As such, there are certain ramifications you need to go over with someone if they are mentally ill even if they are going to voluntarily seek treatment. 

Same-Sex Marriage Part II

I previously talked about here the case I have pending on whether a same-sex couple can get a divorce in Mississippi.  The State of Mississippi through the attorney general's office has responded with the brief located here.  I will be filing a reply brief in the next ten (10) days or so.  To me, the big issues are going to be:  (1)  whether DOMA section 2 is to be read as broadly as the state contends and (2) the distinction between a marriage going forward and a divorce.  The reply brief my office is working on will address that.

Forgotten Prong of Modification

In Mississippi, the traditional test for child custody modification is well established. Ferguson v. Ferguson, 782 So.2d 181, 183 (¶ 5) (Miss. Ct. App. 2001). In order to modify a child custody decree, the party seeking modification must first show that, since entry of the decree sought to be modified, there has been a material change in circumstances which adversely affect the welfare of the child. Creel v. Cornacchione, 831 So.2d 1179, 1183 (¶ 15) (Miss. Ct. App. 2002) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss. 1995)). Second, the party must show that the best interest of the child requires a custody modification. Id.   Not every change in circumstances is so adverse that it warrants a custody modification; the chancellor must consider the totality of the circumstances. Ash v. Ash, 622 So.2d 1264, 1266 (Miss. 1993). "In all custody cases, the polestar consideration is the best interest of the child." Id.(quoting Sellers v. Sellers, 638 So.2d 481, 485 (Miss. 1994)).   "[A] material change in circumstances . . . requires proof of a serious material change in the home of the custodial parent." Deborah H. Bell, Bell on Mississippi Family Law § 12.11(5)(a) (2d ed. 2011) (emphasis added).

Traditionally, Mississippi law has held that, "a change in the circumstances of the non-custodial parent does not, by itself, merit a modification of custody." Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996). In Riley, the supreme court created a narrow exception to this principle. Id. This exception applies if the custodial parent's home environment is found to be contrary to the child's best interest and the non-custodial parent's home environment has improved and surpassed that of the custodial parent, so that it is now in the child's best interest to live with the non-custodial parent. Id.

The Supreme Court further defined part one of the modification test by stating that "[a]n isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change of custody. Before custody should be changed, the chancellor should find that the overall circumstances in which a child lives have materially changed and are likely to remain materially changed ...." Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss. 1984).

To me, the last part is what is not focused on as much as it should be.  The proof requires a showing that the change in circumstances is likely to continue.  This is one area that a little bit of developing the record and potential improvement by a client can prevent a modification of custody. 

Indian Child Welfare Act

I previously discussed the Indian Child Welfare Act here.  If you read the statute, it almost appears that even if the statute is non-applicable you must file an affidavit regarding it or the adoption is not final.  Located here is a form that can you add to the adoption file to assist with this.  Ironically, last week's episode of the television show The Good Wife dealt with this issue and the fact that an adoption fell through due to tribal objection. 

Pets and Divorce

There are all kinds of emotional issues in divorce.  One that has not made it to the Mississippi Appellate Courts as of yet that I am aware of is "custody" of the family pet.  Most people, myself included, consider their pet a member of the family.  When a couple divorces, how is "custody" of the pet treated?  There is no law in Mississippi I have located.  Some states have treated this issue as standard property division.  Other states have started doing a "best interest" analysis similar to custody.  Court have been hesitate to do this until recently because giving one party "custody" and the other "visitation" with the family pet has been viewed as more or less the equivalent of swapping a television or other property around every few weeks.  If I were to make an educated guess on how this would be handled in Mississippi, I suspect a hybrid Ferguson analysis with the use of a "best interest" analysis under the other factors portion of Ferguson would be used.  People maintain joint ownership of property all the time during divorce with each party benefiting from it being maintained.  Why not Fido too?

Uninsured/Underinsured Coverage

One simple marketing tool I am experimenting with on PI cases is at the close of a case to advise the client about getting uninsured/underinsured coverage.  Sometime after that, I am going to try to start following up with a letter or email.  For only a few hundred dollars extra a year on coverage, a party can secure a policy for at least $500,000 if not more.  Many of the cases I get unfortunately are high damages with low insurance amounts.  Many times a higher limit policy if the difference in everyone being satisfied with the result and a neverending fight with lienholders.  For any of my clients and colleagues reading this, contact your insurance agent to discuss.  It can make a world of difference. 

Joint Custody

The Mississippi Court of Appeals handed down Clark v. Clark today located here.  To me, this is a little bit of an interesting case.  The parties agreed on sharing joint legal custody but submitted the issue of physical custody of the parties' minor child to the Court.  The Court awarded custody to the Mother and the Father appealed.  The Court of Appeals reversed the case and stated that there was no finding by the Court that joint physical custody between the parties would not work.  They reversed the case to determine if joint physical custody was possible. To me, this case almost sounds like that if the Albright factors and such warrant it, the Court has to make some kind of finding on the record that joint physical custody will not work. 

Self-Incrimination

In Mississippi, adultery is still a crime.  In light of Lawrence v. Texas decided by the United States Supreme Court, the chances of it being constitutional are slim.  This may be an issue to challenge on a constitutional basis where a client has enough money and really wants the information where a party asserts a Fifth Amendment Privilege which is still common in Mississippi divorce practice.  Are there any remedies though if they refuse to answer?  The answer, like most things in the law is a definite maybe.

A party who files a divorce action waives certain rights and puts their conduct and behavior in question.  Just as in Rule 503 of the Mississippi Rules of Evidence, if a party puts their physical health in issue, the medical privilege is waived.  Identically here, the Defendant/Counter-Plaintiff, Peter Amminger, has waived his privilege.   Additionally under the legal standards for child custody (Albright v. Albright), alimony factors (Armstrong v. Armstrong), and property division (Ferguson v. Ferguson), martial fault and/or moral fitness are factors that are required to be considered by the Court.   The clean hands doctrine has long been recognized by our Courts.  “…he who comes into an equity court must come with clean hands.  One cannot use the process of that court when his conduct with respect to the transaction in question as been characterized by willful inequity, illegality, and fraud.  Griffith, Miss. Chancery Practice, (2d. ed. 1950), Section 32, 42).” While there is not Mississippi case on point, in the Missouri case of Franklin v. Franklin, 283 SW2d 483 (Mo. 1955), the Missouri Court held that a spouse certainly has a right not to answer questions regarding adultery, however by refusing to answer the same, it is justifiable to strike their pleadings.  Additionally, in a Washington Court case, Annest v. Annest, 298 P.2d 483 (Wash. 1956), the Court found that where a party refuses to answer questions regarding their adulterous relationship by asserting their 5^th amendment privilege, it is proper to strike their entire testimony.  

This seems to be the view adopted by the majority of jurisdictions.   If a spouse invokes a fifth amendment privilege regarding questions about adultery, a court is free to impose a variety of sanctions against that spouse, including the denial of affirmative relief. E.g., Anonymous v. Anonymous, 353 So. 2d 510 (Ala. 1977) (as result of wife's claim against self-incrimination, court was free to make any and all inferences against her regarding substance of questions propounded); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (after wife claimed privilege, court was free to dismiss her claim); Harwell v. Harwell, 355 S.W.2d 137 (Mo. Ct. App. 1961) (court free to make any inferences against party claiming privilege); Levin v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958), aff'd, 7 A.D.2d 995, 183 N.Y.S.2d 868, aff'd, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (1959) (court free to impose sanctions on party who invokes fifth amendment privilege); Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987) (moving party in civil action who exercises privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion); Donaldson v. Donaldson, 27 Va. Cir. 327 (Fairfax County 1992) (court free to impose noncriminal sanctions on the husband who invoked his fifth amendment privilege against self-incrimination); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970) (it was error for court not to take an adverse inference against wife who claimed privilege). See generally Annotation, Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question, 4 A.L.R.3d 545 (1965); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation, 39 Brooklyn L. Rev. 121 (1972); Madsen, Penalizing the Civil Litigant who Invokes the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541 (1972).
              

The rationale for this rule was explained in Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993). In that case, the court stated: “Although a party has the right to take the Fifth Amendment against self-incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. . . . Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information.” Id. at 385; accord Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225, 227 (1974) (in civil proceedings, the courts have, in the interest of truth and justice, displayed understandable readiness to impose noncriminal sanctions for refusal to submit to pretrial discovery on the basis of the privilege; thus, where the plaintiff in a civil action refuses to testify in pretrial discovery on the grounds of self-incrimination, it is generally held that he may be subjected to some lesser noncriminal sanctions); Hackes v. Hackes, 446 A.2d 396, 399 (D.C. 1982) (when a civil litigant invokes the fifth amendment to prevent discovery, he is subject to noncriminal sanctions; the imposition of sanctions should strike the proper balance between the public and private interests in broad discovery, while preserving the purpose of the privilege; striking a pleading should be the last resort).

Additionally, the Court can draw an adverse inference from the failure of the party to answer questions.  Morgan v. United States Fidelity & Guaranty Co., 222 So. 2d 820 (Miss. 1969).  There are arguments dealing with a parties ability to conduct meaningful discovery.  This appears to be an issue ripe for review which has not been really addressed in Mississippi.   

Prenuptial and Postnuptial Consequences

Prenuptial agreements and postnuptial agreements have their good points and bad ones.  The good points is that it can contractually deal with many issues in the event of divorce.  One of the bad points is that if everything goes well, what happens if the spouse is killed in a wrongful death?  This is what happened in Tennessee in Rickman v. Rickman located here.  In that case, the Tennessee Court of  Appeals ruled that a postnuptial agreement prevented a spouse from claiming any proceeds of the husband's wrongful death claim.  The same would hold true in Mississippi depending on how the agreement is drafted.  This may be an agree to look at on these agreements when drafting them for clients.

Book of Interest

I received a new book in the mail from Amazon yesterday.  I bought the direct examination volume of Herbert Stern's Trying Cases to Win.  I started reading it this morning.  So far, it is one of the better books I have bought.  It has lots of ideas on developing witness testimony that is helpful.  I will probably order some of the other volume after I finish this one.  You can order the complete set from either Amazon or Trial Guides.

Settlement Maybe??

I think everyone has had a case where the parties settle the morning of trial and then the devil gets in the details.  The latest example of this is Sanford v. Sanford decided by the Mississippi Supreme Court last week located here.  The main issue in the case is that the parties had an agreement, changed their mind, agreed to let the court decide one or more issues, and then changed their mind again.  Ultimately, the Mississippi Supreme Court found that since neither party filed the proper consents under 93-5-2 under any section of the statute, the parties had no agreement and sent the matter back to the trial court with the parties still being legally married.  From reading the opinion, there was also a Writ of Habeas filed when the trial court put one party in jail for failure to execute the settlement agreement which the Supreme Court granted.  This is an opinion to print and file away somewhere. 

Partial Summary Judgment

Partial summary judgment is one of the least used items in family law.  Lots of times there are so many issues of genuine fact, that it is impossible to actually do summary judgment.  However, on certain limited issues, it can be helpful.  Some examples are on cases of paternity in establishing that one party is the parent of the child or on cases of whether a prenuptial agreement is valid.  This is one area I think needs to be examined more in narrowing down issues for trial.

Past History Matters

The past history of a child not before the Court often matters in a custody case.  It often goes to the parent's willingness and ability to care for a child.  Take a look at Gantenbein v. Gantenbien located here.  Under the other factors of the Albright analysis, the chancellor gave great weight to the fact that one parent had voluntarily terminated his parental rights on a child and failed to pay child support to them.  The Court of Appeals affirmed the decision.  As such, it is a good practice to ask about those other kids not before the court.  It can play a factor.

Stipulation of Liability

It is becoming more and more common for defense attorneys to offer to stipulate to liability.  This is partially because juries are still largely conservative and still indoctrinated with the idea of "tort reform."  A stipulation of liability is dangerous though.  It makes any aggravating factor of the accident (i.e. drinking, cell phone use, etc.) irrelevant and also inadmissible.  Lots of times it is better to decline the stipulation if there is any aggravating factor which may inflame the jury.