Same-Sex Divorce Order

The Mississippi Supreme Court issued an order located here yesterday into the pending same-sex divorce case.  The court asked for supplemental briefing on the rational basis for denying a same-sex couple a divorce in light of the State's policy prohibiting same-sex marriage.  Two justice dissented from additional briefing and opined that the statutes are unconstitutional such that no further briefing is necessary.  They appeared to adopt several of the arguments from my brief on the topic along with the briefs submitted in the Mississippi federal case. 

Recusal

Recusal of judges is always a sensitive topic.  If you want to see how complicated the issue can be, there is a case pending in the appellate courts that illustrates this on multiple levels.  In the case of Toulman Boatwright Jr v. Grace Boatwright, five justices of the appellate judges recused themselves in a pending appeal to determine if now deceased Chancellor Ed Roberts should have recused himself in a matter.  Apparently the Court of Appeals needs six for a quorum so the Mississippi Supreme Court appointed Hollis McGehee to sit as a sixth Court of Appeals Justice on the case. See the Order here.  The Boatwrights divorced in 2004 and have been litigating various matters arising out of the divorce ever since.  I have reviewed some of the pleadings on the website and there are good arguments by all parties in the matter. 

Supersedeas Bond

Supersedeas bond is governed by Rule 62 of the Mississippi Rules of Civil Procedure and Mississippi Rule of Appellate Procedure 8.  Normally, you have to ask the trial court to set a supersedeas bond prior to asking the appellate court.  The bond is 125% of the total judgment.  This can be used on domestic cases to appeal various money awards.  The main reason to use supersedeas bond is where there would be no relative way to recover the funds once paid to the opposing party if the case is reversed on appeal. 

Punitive Damages and Attorney's Fees

The law in Mississippi provides that if one recovers punitive damages, they are also entitled to an award of attorney's fees.  To me, the award of attorney's fees is a separate damages apart from the punitive damages award.  The potential legal issue that can arise here is whether attorney's fees are a part of punitive damages or separate damages as I believe they are.  This is important because of the statutory caps of Mississippi Code Annotated 11-1-65.  In theory, the award of attorney's fees could easily exceed the capped amount of a punitive damages award. 

Depositions to Establish Foundational Facts

A while back, I discussed using requests for admissions to establish foundational facts for a case.  Likewise, depositions can be used for that purpose.  I like to use depositions to establish facts regarding documents.  This can be used to authenticate them and get admissions that the opposing party is not aware of any material alterations to the documents. This can make it really hard for the other side to undermine the document later when they admit it is accurate in a deposition. 

Preserving Error

In order to preserve error on appeal, you normally have to object.  This is not the case with child custody issues though because of their bearing on the best interests of the minor children involved.  Natural Father v. United Methodist Children’s Home, 418 So. 2d 807, 809 (Miss. 1982) (Explaining that in “case[s] where the basic issue involves the rights and destiny of small children” this Court relaxes “[t]he general rule . . . that questions not raised at the trial level will not be considered . . . as grounds for reversal”).  The problem of this was illustrated in Gateley v. Gateley located decided by the Mississippi Supreme Court last week located here.  In Gateley, no objections were made to a post-trial guardian ad litem recommendation that the father have custody.  The case was affirmed by the Mississippi Supreme Court.  They noted that the issues were reserved for appeal because child custody was involved however, applying the familiar substantial evidence rules, they affirmed the chancellor because there was not substantial evidence that the decision of the chancellor was wrong.  Apparently neither attorney cross-examined the GAL regarding any deficiencies.   I sometimes get a hard time from other people for some of the things I do at trial in order to make sure everything is covered and correct.  However, this case illustrates why that is often necessary. 

Book of Interest

I recently received The Art of Advocacy by Noah Messing in the mail.  A copy can be purchased from Amazon here.  This is one of the best books I have seen on brief writing with tons of practical examples.  Too many law books are abstract with no examples but that is not the case with this one.  Highly recommended. 

Termination of Parental Rights

Termination of parental rights in Mississippi (TPR) had a curveball thrown yesterday.  The Mississippi Court of Appeal decided Farthing v. McGee located here.  A number of commenters, myself included, felt that termination of parental rights could only be considered in the context of a pending adoption petition based on several recent court cases.  The Court of Appeals yesterday dated stated that was not a prerequisite to a termination of parental rights and that a separate cause of action does exist for it.  I expect this case to go up on cert if one is filed.

The same case also had some useful language about guardian ad litems having to be able to personally verify everything in their report.  This may be some helpful language where many guardian ad litem unfortunately rely on third parties to do investigations. 

Building Forms

In practicing law, you have to build a form bank at some point. For some reason, many people think the wheel has to be reinvented in making forms.  Truth be known, the way I started is by taking pleadings from other people and building upon them.  I still look at pleadings of other people many times and use them to get ideas of how to make my own and tweak them also.  Even today, I go back and change language on pleadings I have been using for years. 

Admissions to Establish Foundational Facts

Requests for Admissions have a number of purposes.  I have started using them to establish foundational facts on a number of cases.  I have started using them to establish facts such as identity of the defendant, scope of employment, venue, and admissibility of documents.  The purpose of admissions is to narrow issue for trial.  These can be used in such a manner as to almost turn the admissions into the trial.  I have one case pending where a party through admissions has stipulated to their contempt.  That turns the issue into about a 3 minute hearing on that issue with the only proof needed being the introduction of the admissions. 

Recent Award

I just found out recently I received one of the Top Ten awards from the National Association of Personal Injury Attorneys.  The information is still in the process of being uploaded for the 2015 year to their website.  A link to their site is on the right side of this page.  The logo will be updated to 2015 once the uploads are completed. 

Offsetting Child Support

Many times, the amount of child support to be paid is a little more complex.  In Mississippi, the amount of child support is a straight rebuttable percentage of adjusted gross income.  However, this can be offset some.  In the summer, the non-custodial parent often has the child most of the time.  This can be an area where it can be argued that the custodial parents should pay child support during those months.  As a result, this can be used to potentially lower the base amount of child support per month or even sometimes eliminate it when there is a great difference in income. 

Preparing for Trial Early

I am a fan of preparing early for trial to the extent possible.  I try to prepare what I plan to present a week or so before the discovery deadline.  Many times I have found that I need to add a witness, get some more documents, or supplement additional discovery responses.  For some reason, many attorneys think they can show up with stuff at trial that has not been disclosed or send it the day before.  I have successfully had a whole bunch of adversary evidence excluded that way including an expert witness who had been brought in on a high retainer.  There is no harm in preparing too early, but too late can get you burned.

New Legal Issues with Payment of Attorney's Fees

I am in the process of working on a couple of new issues in payment of attorney's fees by a trial court.  One is a domestic case and one is a non-domestic which are both on appeal.  The issue is whether the court has the authority to order the payment of attorney's fees within a set time period as opposed to reducing the matter to judgment.  The legal theory is that the court is circumventing the collection of judgments as provided by statute and thus there is no authority to order the payment of attorney's fees in a set time frame (i.e you shall by by x date or face contempt).  From a preliminary look, it appears there is some rational and possible caselaw in doing this on domestic matters but nothing on non-domestic cases.  Looks like may be time to find out what the law is going to be.   

Social Security Disability

Social security cases have been getting more difficult in recent years.  Last time I remember, the national approval rating for claims is at around 24%.  Lots of this has to do with pressure on congress and thus pressure on the SSA to reduced the number of social security claimants.  It is now almost necessary to overkill on medical records to have a shot at these claims.  Additionally, it certain cases it is almost necessary to discuss with a client whether retaining an outside vocational expert may be helpful. 

Visitation BIlls of Interest

The Mississippi Legislature has two (2) bills of interest related to visitation.  HB 707 would propose to revise the grandparent visitation statute to include great-grand parents.  This is in response to a case from last year where the appellate court ruled that great grand parents do not fit within the scope of the grandparent visitation statute.  HB 2090 allows third party visitation under certain limited circumstances.  I suspect this will have a constitutional challenge at some point if the bill passes. 

Divorce Ground Legislation

House Bill 185 seeks to amend Mississippi’s divorce statute to add language that says that a divorce on habitual cruel and inhuman treatment may be granted where there is “excessive verbal, mental, psychological or emotional abuse.” This would clarify a few things.  However, from a practical standpoint under the caselaw, one can already get a divorce under this ground by proving those things.  To me the interesting issue would be how to interpret the word excessive.  Can one be a little abusive, just not excessive?  What is excessive?  I have my doubts the bill passes because any attempts to amend the divorce statute have been unsuccessful in prior years. 

Legal Humor

There is a great legal humor site called Lower the Bar.  If you have never seen it, a link is here.  It shows the lighter side of law practice.  If you want a good laugh, go to the pleadings library.  There are all kinds of actual motions in there.  My personal favorite is the notice of appeal to insult the trial judge along with the motion for fist fight. 

Developing a Theory

In medical malpractice cases, a theory of liability needs to be developed quickly.  In many cases, a good understanding of what you believe the doctor did wrong will go a long way in determining the merits of a case.  I have had several cases I have received that other attorneys turned down that ended up being very good cases where a working theory of liability is developed prior to sending the matter to an expert for review.  This lets the expert pinpoint the issues quickly to determine merit.

QDRO and Child Support Arrearages

Qualified Domestic Relations Orders are a good way to take care of child support arrearages.  Last week, I had to deal with this issue in a post-divorce matter.  The ex-spouse had a substantial child support arrearages.  There was no real dispute that there was no bank accounts or anything to pay it off with.  However, there was a substantial retirement account.  We ended up preparing a Qualified Domestic Relations Order (QDRO) to remove the amount of the arrearages from the retirement account to satisfy it.  Ultimately, this ended up being a good outcome for all parties as the arrearages were satisfied and the ex-spouse was no longer in danger of incarceration.