Visitation

Yesterday, the Mississippi Court of Appeals decided Carter v. Escovedo located here.  This was a case I got involved in post trial.  Ultimately, the Court of Appeals agreed with my contention that the visitation award was inadequate and even agreed that my client should potentially be awarded someone midweek visitation also. 

The Court stated: 

"On remand, the chancellor shall award at least five weeks of summer visitation to
Carter.  See Crowson v. Moseley, 480 So. 2d 1150, 1153 (Miss. 1985) (“[C]hildren at the
least are entitled to the company of their mother two full week[]ends a month during the
school year, with the visitation to terminate late Sunday afternoon as opposed to Sunday
morning, and a five-week period during summer vacation.”).  Since Carter usually works
weekends, on remand, the chancellor shall also revisit whether more time should be awarded
Carter during the week and if more holiday time should be awarded."

Alienation of Affection and Free Speech

I am working on a memorandum for a case I am defending.  It is rare I am the defense attorney.  The issue is whether free speech concerns bar a claim for alienation of affection.  The argument is going to be that the courts cannot be used even in a civil context to deter free speech of a private consensual nature.  The only way, in my opinion, to create civil liability in this context is if there is a claim for defamation and/or slander.  I will publish the motion on here once it is on public record with the court. 

Mental Health Privilege

There is a common belief for some reason that mental health records are always discoverable in a custody case.  This is not the case.  Rule 503 of the Mississippi Rules of evidence states that the records are not privileged related to custody.  However, the records may not be relevant.  The comments provide that under  subsection  (d)(4),  when  determining  whether  records  are  relevant  to  a custody,  termination,  or  adoption  action,  some  of  the  factors  courts  should  consider    include whether:  (1)  the  treatment  was recent  enough  to  be  relevant;  (2)  substantive  independent evidence of serious impairment exists; (3) sufficient  evidence is  unavailable elsewhere;  (4) court  ordered  evaluations  are  an  inadequate  substitute;  and  (5)  given  the  severity  of  the alleged disorder, communications made in the course of  treatment are likely  to be relevant.

Affidavit of Records Custodian Form

I have made a form for an affidavit of records custodian that may be useful.  A link to it is here. 

Ticket Impeachment

The Mississippi Court of Appeals decided Owens v. Kelly on Tuesday located here.  The issue dealt with whether the giving of a ticket was proper impeachment.  The Court of Appeals affirmed finding it was.  The relevant language of the case states:

"On appeal, the plaintiff argues that the trial judge erred by allowing Wilburn to be cross-examined about, and other limited references to, the fact that she was cited for failure to yield and paid a fine rather than contesting the citation. We conclude that Wilburn’s payment of the ticket was proper impeachment of her testimony, in which she generally sought to blame Taylor for the wreck. Therefore, the judge did not abuse his discretion by allowing Wilburn to be cross-examined on the subject. In addition, considered in the context of all the evidence at trial, and given that Wilburn’s payment of the ticket was proper impeachment, any other mention of the ticket during the course of trial was harmless, even assuming that it was error. Accordingly, we affirm."

I can see a bunch of plaintiff and defense attorneys begin to use this in various ways. 

Review of Jury Instructions on Appeal

Below is a summary of the law on appealing jury instruction which may be helpful.

 

“The giving or refusal of jury instructions by a circuit court is reviewed under an abuse-of-discretion standard.”  Howell v. Equip. Inc., 170 So. 3d 592, 599 (¶16) (Miss. Ct. App. 2014).  “[T]his Court does not review jury instructions in isolation; rather, they are read as a whole to determine if the jury was properly instructed.”  Mitchell v. Barnes, 96 So. 3d 771, 775 (¶9) (Miss. Ct. App. 2012) (quoting Burton ex rel. Bradford v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)).  “Defects in specific instructions do not require reversal where all instructions taken as a whole fairly—although not perfectly—announce the applicable primary rules of law.”  Id. (internal quotation marks omitted). 

 

“However, if those instructions do not fairly or adequately instruct the jury, we can and will reverse.”  Id. "When analyzing the grant or refusal of a jury instruction, two questions should be asked: 

 

Does the instruction contain a correct statement of law and is the instruction warranted by the evidence?”  Mitchell, 96 So. 3d at 775 (¶9) (quoting Beverly Enters. Inc. v. Reed, 961 So. 2d 40, 43 (¶8) (Miss. 2007)).  With respect to the latter question, a “defendant is entitled to have jury instructions given which present his theory of the case” when there exists a “foundation in the evidence” for the instructions.  Coho Resources Inc. v. McCarthy, 829 So. 2d 1, 23 (¶69) (Miss. 2002) (quoting  Higgins v. State, 725 So. 2d 220, 223 (Miss. 1998)).

Who Gets the House?

The marital home or residence is often the largest marital asset many families have.  Many times it is not reasonable, fair, or financially sound for one or either spouse to retain the marital home after divorce. And ultimately, it is up to the chancellor in the divorce proceeding to determine who gets what in a divorce, including who gets the house.  In Mississippi, chancellors have vast discretion in awarding certain marital property to either divorcing spouse. Johnson v. Johnson, 650 So. 2d 1281, 1288 (Miss. 1994) (citations omitted); Boykin v. Boykin, 445 So. 2d 538, 538-39 (Miss. 1984) (“there is no reason why a chancellor, under the broad discretion granted him, cannot in his decree award possession of the marital residence to either party.”). As it pertains to awarding the marital home to either spouse, chancellors generally consider the equitable distribution factors laid out in Ferguson and they also “consider all the awards to the payee[recipient] spouse and the concomitant burden placed upon the payor spouse.” Brooks v. Brooks, 652 So. 2d 1113, 1124 (Miss. 1995) (referring to Brendel v. Brendel, 566 So. 2d 1269 (Miss. 1990)); see generally Ferguson v. Ferguson, 639 So. 2d 921 (1994). Essentially, when awarding the marital home to either spouse, chancellors are charged with determining what is fair as well as assessing whether an award of the marital home to one spouse will place an unreasonable burden (usually an unreasonable financial burden) on the awarding spouse. Thus, if a spouse is going to fight to keep the marital home in a divorce, he or she should have a good reason to do so and should make sure that he or she can afford to keep the house.

Clerk Default

There is a big difference in a clerk's default and a default judgment.  With a clerk's default only, there is an extremely liberal standard in setting it aside. Rule 55(c) of the Mississippi Rules of Civil Procedure draws a clear distinction between setting aside an entry of default and setting aside a judgment of default. The Mississippi Supreme Court previously has held "there is a more liberal standard for setting aside a default than the standard for setting aside a default judgment." Windmon v. Marshall, 926 So.2d 867, 871 (Miss.2006) (quoting King v. Sigrest, 641 So.2d 1158, 1162 (Miss.1994)).   They further stated, "`[G]ood cause shown' ... requires the moving party to provide an explanation for the default or give reasons why vacation of the default entry would serve the interests of justice." Id. (quoting Allstate Ins. Co. v. Green, 794 So.2d 170, 179 (Miss.2001) (Waller, J., concurring)).

My reading of this is that more or less any reasonable excuse is pretty good.  However, the standard is a lot higher with an actual default judgment already entered.  In that instance, you need a really good excuse and normally a good faith colorable defense.  Absent that, the default normally stands. 

Waiver of Affirmative Defense

The Mississippi Supreme Court yesterday decided Hanco v. Goldman located here.  The issue was whether the exclusivity of the worker's compensation statute can be waived?  The Mississippi Supreme Court found that the Defendant waived it by actively litigating the case and failing to raise the issue.   

Attorney's Fees

Yesterday, I discussed Branch v. Branch located here.  One of the issues was the payment of attorney's fees by the Ms. Branch's parents.  In Paragraph 61, the Court of Appeals noted:
"The chancellor did not, however, address the payments of Lauren’s attorney’s fees by
her parents and Curt’s ability to pay the fees.  In determining attorney’s fees, the chancellor
must determine the parties’ relative abilities to pay.  McKee, 418 So. 2d at 767.  Despite this
omission in the findings, the chancellor accurately relied on the financial position of Lauren
and correctly awarded her attorney’s fees."

The last sentence to me is what is interesting.  It is unclear to me if you can only consider the individual parties' ability to pay themselves or if you can consider the ability of a party to get the funds from alternate sources.    From reading the opinion, it seems to imply that you are not to consider the payment of attorney's fees by a third party. 

Travel Expenses

The Mississippi Court of Appeals decided Branch v. Branch yesterday located here.  One of the issues in the case was the travel expenses of the noncustodial parent to exercise visitation.  This case has probably the most detailed discussion of the issue I am aware of.  Ultimately the trial court affirmed the noncustodial parent being responsible for all transportation costs despite the fact it was a twelve (12) hour round trip.  The Court of Appeals left open however that a modification may be appropriate which is largely why it was being affirmed.  Based on the ages of the children and the locations to an airport, I think they could get plane tickets from Jackson to Nashville cheaper than driving.  A total of twenty-four hours driving on a weekend for visitation is too much for a parent and a child both. 

Website of Interest

For those interested in the civil justice system, Tort Deform is a good site to visit located here.  The website discusses the politics and other aspects of tort reform along with the dangers of it. 

Other Hearsay

Larry Primeaux wrote an interesting article this morning dealing with "other hearsay" under 803 (24) of the Mississippi Rules of Civil Procedure.  The article is located here.  The issue in the article was advanced notice of other hearsay exceptions.  I was wondering how from a practical standpoint what would be the best way to do the notice?  What I came up with was to draft up a detailed notice which follows that rule and then either file that or a notice of service in the court file.  Sometime before trial then, a hearing should be had on the record regarding the matter so that either side can prepare for it. 

App List

I got an IPad a few days ago and am still experimenting with it.  In the next week or so, I hope to put out a list of IPad apps which I have found useful.  I have until now been an exclusive Droid user.  I will say that so far Apple does have a better selection of apps especially for legal purposes. 

Failing to File Motion to Reconsider

The Mississippi Court of Appeals decided Anderson v. Anderson on Tuesday located here.  Mr. Anderson challenged the chancellor's distribution of certain retirement accounts.  The Court found that the issue had been waived by the trial court attorney failing to file a motion to reconsider.  There is still a line of cases that say it is not necessary to file a motion to reconsider when appealing a chancery judgment.  This is an issue the Mississippi Supreme Court needs to clarify at some point. 

Debt Proof

The Mississippi Court of Appeals decided Norris v. Norris yesterday located here.  The issue in the case was the chancellor awarded a $5000 judgment for debts allegedly incurred during the marriage to the wife.  The problem, there was no proof other than testimony regarding the debt.  The Court of Appeals stated: 

"Jacqueline did not introduce any documentary evidence to support her claim. Also, the  record  before  us  does  not  indicate  that  Jacqueline  filed  a  financial  statement,  as  required by Rule 8.05 of the Uniform Chancery Court Rules.  Had  she filed a Rule 8.05 statement, there may have been evidence sufficient to support the chancellor’s finding.  However, we simply  cannot  find  the  evidence  that  would support  the  chancellor’s  award  of  “$5,000  .  .  .  as equitable  distribution  of  the  parties’  debt”  in  the  record.    Indeed,  there  is  very  little  evidence of  the  marital  assets  and  debt.    Instead,  Jacqueline  estimated  that  Dwayne  should  have contributed  $3,000  for  expenses.    It  is  not  clear  why  the  chancellor  awarded  Jacqueline $5,000.

¶13. Because we conclude that the chancellor’s findings are not supported by substantial

evidence,  we  must  also  find  that  the  chancellor’s  award  of  $5,000  to  Jacqueline  was
manifestly  wrong."

 This looks to me like with no proof of the debt amount, testimony is insufficient.  I think a Rule 1006 summary of the debt with the records attached would have remedied this problem. 

New Trial

The Mississippi Supreme Court discussed last week what is necessary in order to grant a new trial in McIlwain v. Natchez located here.  “[A] new trial becomes appropriate when a trial court determines that error within the trial mechanism itself has caused a legally incorrect or unjust verdict to be rendered.” White, 932 So. 2d at 33. Courts have granted new trials “whenever convinced, from the evidence, that the jury has been partial or prejudiced, or has not responded to reason upon the evidence produced.” Beard v Williams, 172 Miss. 880, 884 161 So. 750, 751 (1935). A new trial may be necessary if mistakes were made in conducting the trial or in applying the law. White, 932 So. 2d at 33.  Ultimately, the Mississippi Supreme Court granted a new trial as to one of the Defendant after a hung jury. 

Wrongful Death - Fringe Benefit Calculations

The Mississippi Supreme Court decided McIlwain v. Natchez Community Hospital, Inc., et. al today located here.  One of the issues in the case was whether the economist could use possible fringe benefits in the calculation of the lost income of a deceased child.  The Court ruled that fringe benefits cannot be calculated into the equation unless the deceased was actually receiving them. 

Separate Maintenance

The Mississippi Court of Appeals decided Spotswood v. Spotswood yesterday located here.  The issue in the case was what authority the court had to order a party to do anything in the absence of minor children after finding no grounds for divorce or separate maintenance.  The Court of Appeals ruled that the chancery court had no authority to order the parties to do anything with no finding of divorce or separate maintenance.  The husband had originally been ordered to pay one-half the mortgage and reimburse the wife for some insurance.  This appears to be the correct result legally.  I still see the argument from a lot that people who do not want a divorce automatically think they are entitled to separate maintenance.  Does not work that way. 

IPad

Sometime in the next month or so, I am planning on starting to experiment with using an IPad at trial.  Several of the trial presentation software programs appear to be what I need for the more complex trials.  The Microsoft Surface tends to still be the most functional tablet for getting orders done and such.  However, they still have no trial presentation software.