Marital Fault

I came across this in an opinion and found it helpful in determining when fault should be considered by the trial court.  Marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship." Bond v. Bond, 69 So. 3d 771, 773 (¶6) (Miss. 2011) (citing Carrow v. Carrow, 642 So. 2d 901, 904 (Miss. 1994)). Where the only evidence of adultery occurred after the couple's separation; it is not error in refusing to give weight to this factor as there was no evidence that it harmed the marital relationship.

Contractual Changes to Child Support

The Mississippi Court of Appeals decided Campbell vs. Campbell today located here.  The general facts were that the father was extremely high income and the parties signed a property settlement agreement that had a per child support order. (i.e. $1,250.00 per child).   The Father was also paying way below the child support guidelines.  The Court of Appeals reversed the chancellor raising the child support to the guideline amounts as the parties had contemplated emancipation of the children on a per child basis.  As such, the trial court could not modify the support to increase it since the emancipating was contemplated by the agreement.  My reading of this case also is that the parties can agree to pay less than the statutory amounts of child support as part of a package divorce deal. 

The child support provision is as follows:    "The Husband agrees to pay to the Wife as child support the sum of $1,250 per month per child, beginning June 1, 2010 and continuing on the first day of each month thereafter until said children attain the age of 21, marry, join the armed services or are otherwise fully emancipated according to law, whichever occurs first. The parties acknowledge and agree that the Husband's current monthly gross income is $66,666.67."

Save the Date

I'll be speaking at a CLE next month on Advanced Trial Techniques on July 27, 2018 in Southaven.  A link to the information is here. 

Changing Gender on Birth Certificate in Mississippi

Mississippi will issue an amended birth certificate upon receipt of "a certified court order, a medical statement that attests to the reassignment, and the required fee." Miss. Admin. Code 15-5-85:3.21. Mississippi Vital Records will issue an amended birth certificate with the legally updated name and sex as a "marginal notation", meaning the birth certificate will show both names and both genders. To apply for an updated birth certificate the applicant should submit the court ordered name change, the court ordered gender change, the medical statement and the applicable fee to Mississippi Vital Records, 222 Marketridge Dr. Ridgeland, MS 39157. 

Discovery and Experts

What happens if you do not do discovery of expert witnesses in a case?   Mississippi Rule of Civil Procedure 26 is to be strictly interpreted and should be rigidly enforced. Hudson v. Parvin, 582 So.2d 403, 412‑13 (Miss.1991).   M.R.C.P.  26(b)(4)(A)(i) states, “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial.”  “When requested, parties must disclose the opinions of expert witnesses and the underlying grounds of opinions.” Peterson v. Ladner,785 So.2d 290 (Miss. Ct.App. 2000).  (Emphasis added).  The 60 day notice mandated in Uniform Chancery Rule 1.10  does not apply unless opposing counsel makes a discovery request to designate experts.   Jackson v. Perry, 764 So.2d 373, 384 (Miss. 2000).   As such, you can get blindsided by experts and other people by failing to conduct written discovery.     

Mississippi Tort Claims Act

The Mississippi Supreme Court decided  Wilcher v. Lincoln County Board of Supervisors today located here.  This arguably makes it easier to sue the State in some contexts now.

Foreign Object

On April 26, 2018 the Mississippi Supreme Court decided Doretha Thompson v. Baptist Memorial Hospital-DeSoto, Inc. and James E. Fortune, M.D. This case has one of the best summaries I know of dealing with the law where a foreign object is left in someone.   The case involved a defense verdict where a sponge was left in a patient.    On appeal, the Court reverses because of the trial curt’s refusal of two instructions that would have told the jury that if they found that a sponge was left in Thompson’s abdomen, then a presumption of negligence is raised that must be rebutted.