Hearsay

The Rules of Evidence apply to a family law matter despite some people's assertion to the contrary.  The biggest thing is hearsay.  “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Miss. R. Evid. 801(c).  Easiest way to explain this generally is as someone once put it "Don't tell me what someone else said, if you want me to believe it is true."  That being said, statements are often used for other purposes such as merely showing a party is on notice or merely that a statement is said.

"If the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay.” Harris v. State, 970 So. 2d 151, 155 (¶ 12) (Miss. 2007) (quoting Mickel v. State, 602 So. 2d 1160, 1162 (Miss. 1992)). See Brown v. State, 969 So. 2d 855, 861 (¶ 16) (Miss. 2007) (“[A]n out-of-court statement is not hearsay unless the party offering the statement is attempting to prove that the statement is true.”

This area is incredibly complex and you can have a statement admissible for one purpose and not another depending on what it is being offered which often creates confusion. 

Interjurisdictional Custody

Being right on the stateline of Tennessee and Mississippi can create some interesting legal disputes on custody.  Mississippi is what I call a free for all on custody, i.e. absent a court order to the contrary either natural parent has the right to the child and whoever has them, has them.  Tennessee is a little different as there is a statute dealing with nonmarial children where absent a court order to the contrary, custody is with the natural mother.  Withholding the child can result in a charge of custodial interference in Tennessee.  The interesting issue develops when mom runs to Tennessee with no court order and the child has previously lived in Mississippi.   This inevitably leads to an interjurisdictional conflict where the courts have to confer with each other to determine jurisdiction.  These cases can get terribly complicated and expensive.  On the flip side, withholding the child may have an effect on the parenting skills of a parent in a custody analysis which I have had courts go along with in the past. 

Book Review

Over the weekend, I finished reading The Inner Jury:  Winning Trials with Strategic Psychology, Modern Trial Science, and Solutions to Common Dilemmas by Bruce B. Whitman.  A copy can be purchased from Amazon.  It is one of the better books I have read on jury issues.  It gives a nice overview to get one started on modern trial theory.  It is reasonably priced at around $35.00 too.  If one is into the Reptile Books by Ball and Keenan on trial theory, this book would be a good one to read before reading those books.  It helps to tie the Reptile theory of juries in with other issues such as polarizing the case by Rick Friedman.  The book could have been a little more in depth in some area but I still give it my highest recommendation for those interested in jury issues. 

Motion to Substitute

The Mississippi Supreme Court decided Burch v. Illinois Central Railroad located here.  This case illustrates why it is necessary to file a motion to substitute a party after one party dies.  Harold Burch worked for Illinois Central Railroad and died in 2006.  He was diagnosed with asbestosis and lung cancer.  In 2009, his widow filed a wrongful death suit against the defendant for exposure to those items.  The widow died  in 2011,  but the plaintiff’s attorneys did not file a motion to substitute within 90 days as required by Rule 25 of the Mississippi Rules of Civil Procedure.  The trial court dismissed the case without prejudice and the heirs re-filed a short time later.  The second case was dismissed based on the statute of limitations as the first case being filed did not toll the statute because it was dismissed for failure to prosecute.  The Mississippi Supreme Court affirmed the dismissal for this reason. 

Child Hearsay

Statements made by a child are hearsay unless the child is willing to get on the stand in court and testify to them.  This was illustrated today in Darnell v. Darnell located here.  The case dealt with a number of hearsay statements regarding alleged sexual abuse.  The Mississippi Supreme Court ultimately ruled that two of the statements were not hearsay and two were.  The case also has an interesting discussion of what an expert can rely on in stating their opinion.   The legal analysis in here is worth filing away for future reference. 

Supplemental Citiation on Appeal

Lots of times cases come down while an appeal is pending that directly affects the issues briefed.  So how do you supplement once the time for a reply brief has passed?  This was an issue dealt with also in Huseth v. Huseth located here.  One option is to file a motion to supplement authority which would allow you to argue the case a little more.  The second option is to supplement it under Rule 28(k) of the Mississippi Rules of Appellate Procedure. 

Rule 28(k) of the Mississippi Rules of Appellate Procedure provides that:

"(k) Citation of Supplemental Authorities. When pertinent and significant

authorities come to the attention of counsel after the party's brief has been filed, or after oral

argument or decision, the party may promptly advise the clerk of the Supreme Court, by
letter with a copy to all counsel, setting forth the citations. There shall be a reference either
to the page of the brief or to a point argued orally to which the citations pertain, but the letter
shall, without argument, state the reasons for the supplemental citations. Any response shall
be made promptly and shall be similarly limited."

The way this is typically done is to simply write a letter to the court clerk advising them of the new case, stating what are of the brief including page numbers in your brief that it applies to, and the reason for the supplemental citation.  To me the confusing part of this is where it says to state the reasons for the supplemental citation but without argument.  The best educated guess I have on how to interpret this is to simply state why the case is relevant for a particular issue without any detailed analysis regarding the particular facts of your case.  In Huseth, the Appellate had a supplemental brief struck because leave of court was not obtained.  The Appellee had filed a motion to strike it but then filed a 28(k) letter to make the court aware of the same case.   

New Criteria in Child Support

I think child support may have just gotten a lot more complicated in Mississippi.  The Mississippi Supreme Court decided Huseth v. Huseth, No. 2012-CA-01576-SCT (Miss. April 10, 2014) a few weeks ago located here. 

The case ultimately reversed a trial court's setting of child support for failure to make certain findings on the record.  The opinion held that there are certain factors the trial court must address in setting child support.  Justice Kitchens explained it in his opinion at the relevant parts:

“¶30. The chancellor granted child support in the amount of $988, as that is fourteen percent of the income of $7,058 the chancellor imputed to Mike … Additionally, the chancellor’s computation of child support based upon a percentage of Mike’s imputed income, using only the statutory guidelines, did not properly reflect Mike’s ability to pay the child support. In awarding child support, the chancellor should consider

1. The health of the husband and his earning capacity.

2. The health of the wife and her earning capacity;

3. The entire sources of income for both parties;

4. The reasonable needs of the wife;

5. The reasonable needs of the child;

6. The necessary living expenses of the husband;

7. The estimated amount of income taxes the respective parties must pay on their incomes;

8. The fact that the wife has the free use of the home, furnishings, and automobile, and

9. Such other facts and circumstances bearing on the subject that might be shown by the evidence.

Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992) (emphasis added) (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955)).

“¶31. “When entering a child support decree, the chancellor should consider all circumstances relevant to the needs of the children and the capacities of the parents.” Tedford v. Dempsey, 437 So. 2d 410, 422 (Miss. 1983) (second emphasis added). Here, the chancellor imputed the living expenses of Mike as income, without offsetting those same expenses in her determination of the money Mike had available to pay child support. She did not consider the necessary living expenses of the husband in computing the amount of child support. Additionally, as noted previously, she failed to outline how much of Mike’s imputed income was based upon his earning potential, and upon what his earning potential was based. Therefore, we reverse the chancellor’s child support award and remand for a determination of child support in which all of the facts and circumstances, including what Mike actually can pay, are taken into account.”

The bold and underlined section is what really sticks out to me.  From my reading of it, the court now has to consider the Gillespie factors on the record also in setting an amount of child support.  I have discussed in the past that any kind of factor tests that is required to be done must be done on the record.  In Lowrey v. Lowrey, 25 So. 3d 274, 280-281 (Miss. 2009), the Mississippi Supreme Court ruled that factor tests such as provided in Ferguson for property division, McKee for attorney’s fees, and Armstrong for alimony, must be considered on the record in every case.  These factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Id. Following these guidelines reduces unintended errors that may affect the court's ultimate decision. Id. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.  Id.   Failure to make an on-the-record Armstrong analysis is manifest error. See Henderson v. Henderson, 703 So.2d 262, 266 (Miss.1997); Armstrong, 618 So.2d 1278, 1280 (Miss. 1993). 

 From my reading of this, just following the guidelines alone is probably not enough anymore.  I am having to file a notice of supplemental citation on a case I am working on now as a result of this opinion.  I will address how to do that in tomorrow's post. 

 

Offsetting Contempts

For some reasons, many of the cases I get have what I call offsetting contempt issues.   This is where each party is in contempt for one item or another.  Many times I see cases where one party has withheld visitation due to the other party not paying child support.  For some reason, there seems to be a lot of people who believe that if child support is not paid, visitation does not have to be given.  All this really does is render both parties in contempt and typically ensure that neither party gets an award of attorney's fees. I have seen many chancellors do this and apply the "clean hands doctrine" and they will not award anyone attorney's fees before telling each party to abide by the court order. 

Authenticating Facebook Messages

Facebook has become a treasure trove of evidence for most any kind of case.  The Mississippi Supreme Court decided Smith v. State located here which deals with what is a sufficient foundation for the admission of Facebook messages into evidence.  The Mississippi Supreme Court ruled it was error to allow the Facebook messages into evidence in the case without a sufficient foundation to authenticate that they were from the Defendant.  They however ruled that it was harmless error in light of the other evidence.  This case is worth a read on what all is required and will provide good research on both how to get the evidence in and how to keep it out.

Custody Factors

Unfortunately, on many custody cases, the trial court seems to unfortunately look at the factors as a point card (i.e. whoever wins on more factors wins the case).  That is not the law and the issues need to be reweighed at times.  The “factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So. 2d 370, 376 (¶27) (Miss. Ct. App. 2003)). Our supreme court has held that “[a]ll the [ Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36).  An example of where this might be an issue is where a parent wins on the majority of the factors but also abuses the child.  This would make parenting skills much higher in weight than the other factors.

Burden of Proof

Lack of documentation kills many a case.  On child support cases, lack of proof of payment has resulted in parties having to pay twice because the opposing party alleged payments were not made and the other party has no proof otherwise.  I tell clients many times that documentation of anything you are alleging against an opposing party is helpful.  Otherwise, a court proceeding turns into nothing more than a glorified swearing match with the judge having to pick one parties'  version of events. 

Minor's Contingent Fees

In personal injury work, many times these cases are taken on a contingent basis.   The interesting issue develops where you have to have the court approve the settlement including the attorney's fees awarded.  This is when it is important to have an itemization of your time available in case the court wishes to go into the reasonableness of the fee charged.  This also comes up in the cases of a punitive damages award.  As a result, it is a good idea to maintain time sheets even in contingent fee cases. 

Summary Judgment

I have spent most of the morning working on a response to a summary judgment motion.  You really do not want my real thoughts on the motion but here is some language that is helpful.  Where the Defendant swears to one version of events and the Plaintiff swears to an entirely different version of said events, this is sufficient to require denial of a motion for summary judgment. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss. 1990) (citing Dennis v.Searle, 457 So.2d 941, 944 (Miss. 1984)).  See also, Allison, 543 So.2d at 663; Moore Memorial, 538 So.2d at 762; Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988); and Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).   Summary judgment is appropriate only when the record is entirely, utterly, and completely devoid of evidence on a material issue. If even a shred of evidence-viewed in the light most favorable to the nonmoving party, Parker v. Harrison County Bd. of Supervisors, 987 So.2d 435, 437 (Miss.2008)-exists that might lead a jury to conclude that an allegation is more likely true than false, then summary judgment is inappropriate, and the case is rightly left to determination by a jury.   Summary judgment is not a tool by which courts distinguish between strong cases and weak cases; it discriminates only against cases that present absolutely no plausible basis in evidence.  Both parties are able to produce probative evidence to support their claims and versions of events. With disputed material facts present, summary judgment is not appropriate.  Lesson to take away, better set of facts do not entitle a party to summary judgment.  A colleague of mine had a case where the judge at a summary judgment hearing opined that the Plaintiff's case was extremely weak and denied summary judgment for the reasons as noted above.  Result at trial:  1.3 million dollar Plaintiff's verdict.  Jury did not think it was weak at all after hearing everything. 

One Year of Blogging

I realize this morning that I have been blogging for one year now.  It has been interesting for sure.  Currently, I have had over 5,000 page views which is not too bad for a blog starting from scratch with no advertising.  Several attorneys have told me they have learned some now things reading it and several potential clients have stated it has been helpful also.  Thanks to everyone who has been reading. 

Child Support Case of Interest

The Mississippi Court of Appeals decided Burnham v. Burnham yesterday located here.  The Court of Appeals reversed the trial court order Mr. Burnham to pay $600.00 per month in child support.  The main issue in the case was that the chancellor made what appears to be no findings on the record to deviate from the statutory amount of  child support.  Mr. Burnham apparently had some farm income but the record showed no finding on the record of what amount this was nor a finding on the record to imput income to Mr. Burnham.  The main idea to take away from the decision is that an on the record finding is necessary for a deviation from the child support guidelines. 

Worker's Compensation

The Mississippi Supreme Court decided Smith v. Tippah County Electrical Association located here.  An electrical lineman was injured while installing electrical lines and lost both hands.  The lineman filed for worker's compensation.  The claim was denied as the employer alleged that the lineman was trying to kill himself to avoid a manslaughter charge.   The Mississippi Supreme Court reversed finding that there was insufficient proof of this and the burden was on the employer to prove this as an affirmative defense.  Ironically, the claimant is now serving a twelve (12) year prison sentence for manslaughter.  This case illustrates that mere speculation is not enough to deny the claim.

Youtube Channel

I have a Youtube Channel up now. If you look on the left side of my blog, there is  link to it.  I am still experimenting with the video software and learning how to edit it.  In the next few weeks, I will be adding some more videos.  Any feedback, suggestions, or advice is appreciated.  Feel free to email me. 

Entry of Judgments

Rule 5.04 of the Uniform Chancery Court Rules in Mississippi provides as follows:

         "In all litigated actions, the attorney who shall be directed to draw the Judgment
         shall submit the same to opposing counsel for criticism as to form only, and shall present
         the same to the Chancellor within ten (10) calendar days after being directed to draw the
         judgment unless otherwise permitted."

Lots of times the opposing party waits forever on sending the order back.  I think it is a good idea to file a certificate in the court file saying you have complied with the Rule and that the order as written will be entered in ten days if there is no response.  That is of course assuming the order is drafted up pretty quick.   

Exempt From Subpoena

I practice in both Tennessee and Mississippi.  The two end up overlapping a lot.  One issue is Mississippi residents routinely getting medical treatment in Tennessee.  There are many people who under Tennessee law are exempt from subpoenas except for deposition purposes.  This makes them "unavailable" under the Rule of Evidence in my opinion and makes their deposition with the opposing party having a chance to be participate admissions for evidentiary purposes.  T.C.A. Section 24-9-101(a) exempts the following from subpoenas to trial although they are still subject to subpoena for depositions:

•  An officer of the United States;
• An officer of Tennessee;
• An officer of any Tennessee court or municipality;
• The clerk of any court of record other than that in which the suit is pending;
• A member of the Tennessee general assembly while in session, or clerk or officer thereof;
• A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;
• A jailer or keeper of a public prison in any county other than that in which the suit is pending; and
•  A custodian of medical records, if such custodian files a copy of the applicable records and an affidavit with the court and follows the procedures provided for producing records as required by law.
• Recently also added nurse practitioners to the list. 

Civil and Criminal Contempt

There are two kinds of contempt in Mississippi:  (1)  civil contempt and (2)  criminal contempt.  Each one has different evidentiary burdens.  One issue I see is that technically most contempt petitions in chancery are for civil contempt as opposed to criminal contempt.  I think in certain circumstances, a petition for criminal contempt may be appropriate.  One has to remember though that this includes a 5th amendment claim by the opposing party where in the criminal context this cannot be held against a party but can be used to draw an inference in the civil context.