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.