Post Trial Motions in Chancery

Well, after Tuesday of this week I am utterly confused about post-trial motions in chancery court in Mississippi.  The Mississippi Court of Appeals decided Ainsworth v. Ainsworth on Tuesday which is located here.  In that case, the Court of Appeals ruled that because Mr. Ainsworth did not raise certain issues in a post-trial motion, he waived them for appeal purposes.  This seems to directly contradict, Forbes v. St. Martin, et. al, located here which specifically held that no post-trial motion was necessary to perfect an appeal from chancery.  The Ainsworth cases means one of the following and I am not sure which:
(1)  You must file a post-trial motion in chancery to preserve your issues for appeal; or (2)  You don't have to file a post-trial motion, but if you do you better raise everything.  

Metadata

Metadata is certain items that are contained in word documents and other word processing software.  Lots of time, parties will exchange documents in the original Microsoft Word format to keep another party from having to retype something.  In some circumstances, this can cause the inadvertent disclosure of some information regarding revisions to the documents and other items that one may not want the other side to know about.  The metadata can be removed and still shared with another party in word format if the proper steps are follow.  Here  is a link on how the remove the metadata from a word document.

Pretrial Conference

Rule 16 of the Mississippi Rules of Civil Procedure provides a process where parties can narrow a number of issues by virtue of a pretrial conference.  The interesting part of the Rule to me is that the Rule provides that that the Court "shall" conduct one if requested by any party.  In a complex case either in tort or family law, this may be the best way to get the issues narrowed down along with getting evidentiary issues resolved.  Where judges limit the amount of time to present a case, this can be invaluable in making sure all the evidence and vital witnesses are presented at trial as opposed to spending an hour arguing over i.e. hearsay or Daubert motions.

Witness Fee Statute Changes

Mississippi has amended its witness fee statute effective July 1, 2014.  A link to the amended bill is located here.  Essentially, a party subpoenaing a witness will be required to tender the mileage rate under Mississippi Code Annotated 25-3-41which is based on the federal rate plus the amount a party would receive if they were a juror as set forth in Mississippi Code Annotated 25-7-61.  I suspect this change will catch a few people off guard.  This is going to drive the cost of litigation up to some degree.  I suspect there will be a lot less subpoenas issued for witnesses.  I normally subpoena my witnesses for trial even the favorable ones.    The reason is pretty simple, if no subpoena issued, no basis for a continuance if they do not appear.  I believe a witness may waive their fee just as they may waive process.  I am going to look at tweaking one of my waiver forms to try to reduce costs for clients and get around the statutory change. 

Sometime after the holiday, I am going to try to find out the rate for a juror in Desoto County.  Once I find out, I will post it. 

Same Sex Divorce Brief

I filed my appellate brief regarding same-sex divorce with the Appellate Court this morning.  A link to the brief is located here.  Someone asked me to make a prediction regarding the results.  Truthfully, I except the U.S. Supreme Court to issue a ruling sometime either late this year or early next year that will be dispositive one way or the other.   

Rule 35 Exam

Rule 35 of the Mississippi Rules of Civil Procedure is often underutilized in custody cases.  One of the leading causes of divorce is serious mental illness along with addiction issues.  Perhaps the main reason it is not used is cost.  A trained psychologist or counselor can easily run a few thousand dollars.  Additionally, many insurances will not cover any form of counseling or examination that is ordered by the court.  As such, you may inadvertently void coverage if the insurance company sees it is in a court order.  This may be a situation where agreement of both counsel to do an evaluation without a court order can be helpful. 

Prenupt and Homestead

Lots of couples today are executing a prenuptial agreements prior to marriage.  One issue is can you contract away your homestead rights in a prenuptial agreement?  The answer seems to be no.    In Estate of Jones: Dixon v. Jones, decided  by the Mississippi Court of Appeals on April 29, 2014, the Court found that a quit claim deed was void by failure of the wife to join in the conveyance despite the fact there was a prenuptial agreement.   The Court cited to Ward v. Ward, 517 So.2d 571, 573 (Miss. 1987):

"Our legislature has chosen to place a restriction on the transfer or encumbrance of homesteads[,] and therefore, homesteads in Mississippi may not be alienated except in compliance with those restrictions. There can be no operative conveyance or effectual release of the exemption unless the method pointed out by the statute is pursued with strictness[,] and no requirement of the statute may be waived by the husband and wife or by either of them. Chancery will not interfere to give relief where by express law there is a limitation on the power of alienation of the homestead[,] and the final relief sought is merely to relieve that limitation." (emphasis added)

The language in here stands for the proposition that a statutory right cannot be contractually waived.  There is some other helpful language in the opinion that deals with when a will acts as a revocation of a prenuptial agreement which was another issue in the case.