Overnight Guest vs. Cohabitation

On October 30, 2018, the Mississippi Court of Appeals decided Bruton v. Bruton, No. 2017-CA-00124-COA (Miss. Ct. App. Oct. 30, 2018) located here.  One of the interesting issues in the case was that the Court of Appeals found the chancellor erred in holding a party in contempt for having a member of the opposite sex not related by blood or marriage stay overnight when the children were present.  The Court found  that the individual Mr. Burton was living with he was cohabitating with.  As such, she was not an "overnight guest."  The Court reasoned that the caselaw distinguishes from cohabitation and overnight guests.   This drew one of the funniest dissents I have seen where Judge Barnes noted "Further, as only "guests" are prohibited under the majority's analysis, Chuck would not have been in contempt of the order had he hired a prostitute to spend the night with the children present. She would, of course, have been an "invitee" rather than a "guest."  The moral of the case is that language in the order must be abundantly clear or a finding of contempt is not proper.

Modification of Child Support

A trial court may award retroactive child support dating back to the time in which the
motion for modification is filed.   See Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss.
1991).

Taxability of Personal Injury Settlements

The IRS has a guide on when personal injury settlements may be taxed and when they are not located here.

Reopening A Divorce

On November 20, 2018, the Mississippi Court of Appeals decided Nelson vs. Nelson located here.  One of the issues in the case was whether a trial court could reopen a divorce where an asset was not disclosed.  In this case, the Court of Appeal determined the trial court can because the asset was intentionally hid during the divorce.

Jury Instructions on Appeal

Jury instructions “are to be taken collectively rather than be given individual consideration.  So long as all the instructions read together adequately and properly instruct the jury on the issues, an individual instruction given to the jury will not constitute reversible error.”  Detroit Marine Eng’g v. McRee, 510 So. 2d 462, 467-68 (Miss. 1987).

Appellate Jurisdiction

“Filing a notice of appeal transfers jurisdiction from the trial court to an appellate court, thereby removing the trial court’s authority to amend, modify, or reconsider its judgment.” Corp. Mgmt. v. Green County, 23 So. 3d 454, 460 (¶13) (Miss. 2009). “In other words, the appeal removes the case ipso facto to the appellate courts.” Id. A party may execute on the judgment if an appeal has no supersedeas bond; however, “the [chancery] court cannot ‘broaden, amend, modify, vacate, clarify, or rehear the decree.’” Id. (citation omitted).

In most suits, the trial judge loses all jurisdiction once a case is appealed. McNeil v. Hester, 753 So.2d 1057, 1075-76 (Miss.2000). A chancellor, however, may modify child support, custody and visitation while a case is on appeal if a proper basis for doing so is shown. The court may re-examine the question of custody or support at anytime on showing a change of conditions, regardless of the pendency of an appeal. It may, and sometimes does, require many months to determine a case on appeal.  Smith v. Necaise, 357 So.2d 931, 933 (Miss. 1978), quoting DeSimone v. DeSimone, 392 S.W.2d 68, 68-69 (Ky.1965).

The Mississippi Supreme Court says an appeal with supersedeas does not vacate the judgment appealed from; it merely suspends the enforcement of the judgment pending the determination of the appeal. If on that determination the judgment is affirmed, the effect thereof is to establish or confirm the validity of the judgment from and as the date of its rendition in the court of original jurisdiction. See also Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705, 708. The Court said: "Clearly the judgments of the trial court were the effective adjudications of plaintiffs' rights. Their effect was suspended during appeal with supersedeas to the Supreme Court, but our judgment simply affirmed the validity of the judgments of the circuit court" See also Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349, 30 So.2d 91; Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289.

A party may execute on the judgment if an appeal has no supersedeas bond; however, "the [chancery] court cannot `broaden, amend, modify, vacate, clarify, or rehear the decree.'" Id. (citation omitted).  

Contractor Attorney's Fees in Tennessee

• In Tennessee, a contractor may recover attorney's fees under Tennessee Code 66-34-602.  The statute provides that. 
• • 
    
• • (1) A contractor who has not received payment from an owner, or a subcontractor, materialman or furnisher who has not received payment from a contractor or other subcontractor, materialman or furnisher, in accordance with this chapter, shall notify the party failing to make payment of the provisions of this chapter and of the notifying party's intent to seek relief provided for within this chapter.
  • (2) The notification shall be made by registered or certified mail, return receipt requested.
  • (3) If the notified party does not, within ten (10) calendar days after receipt of such notice, make payment or provide to the notifying party a response giving adequate legal reasons for failure of the notified party to make payment, the notifying party may, in addition to all other remedies available at law or in equity, sue for equitable relief, including injunctive relief, for continuing violations of this chapter, in the chancery court of the county in which the real property is located.
  • (4) The failure to make the only payment due under the contract may be considered to be a continuing violation under this chapter.

• (b) Reasonable attorney's fees may be awarded against the nonprevailing party; provided, that such nonprevailing party has acted in bad faith.

• (c) A bond in double the amount claimed or ordered to be paid shall be filed with good sureties to be approved by the clerk prior to the issuance of any injunctive relief.