April 24, 2014 § Leave a comment
Spring Judges’ Meeting.
April 23, 2014 § Leave a comment
Spring Judges’ Meeting.
April 22, 2014 § 2 Comments
I think it’s fair to say that in most districts up to now, chancellors have customarily looked at the paying party’s income and set child support at the statutory percentage, unless there is proof to support a deviation.
In most of the case law between the 1989 adoption of the guidelines, it has been held sufficient for the chancellor to address the steps in MCA 43-19-101, followed by an analysis of any deviation criteria, and a conclusion of the amount of child support.
The MSSC decision in Huseth v. Huseth, an imputed income case handed down April 10, 2014, re-emphasizes some criteria that the trial court must address. The court ruled that, although the chancellor did apply the guidelines, she failed to take into account Mike Huseth’s lack of available funds and other pertinent factors bearing on his ability to pay. Here is how Justice Kitchens explained it in his opinion:
¶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. [Bold added in text]
[Note: the phrase " ... imputed the living expenses as income" refers to the fact that Mike's parents were giving him money to live on, which funds he applied to his expenses.]
Gillespie is the case that first set out the concept that the child support guidelines are merely guidelines, and it is still up to the judge to determine the need and support required. Many cases in the 25 years since the guideline statutes took effect, however, have treated the guidelines as mandates requiring accurate arithmentic and rigid adherence to the letter of the statutes.
Does Huseth signal a return to a more Gillespie-like approach? Huseth is, after all, a MSSC decision. The Gillespie court said that the award of child support is a matter within discretion of chancellor, and it will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.
It will be interesting to see how this plays out in the appellate courts.
In the meantime, you’d better look at those Gillespie factors and make sure your record includes adequate proof to support your client’s side of the issue.
April 21, 2014 § 2 Comments
It often happens that one of the parties in a divorce has side income. By “side income” I am referring to extra income, usually in cash, received for services separate and apart from one’s primary employment.
Some examples could include cash that a party: receives for doing weekend painting; is paid as a part-time, fill-in clerk at a country store; earns for child care or sitting; takes in for yard work. The list is endless.
There is no question that when the proof shows that there is that additional income, it should be taken into consideration in calculating alimony or child support. The hard part is how exactly is the court supposed to quantify it? It’s the hard part because the proof usually ranges on from almost entirely lacking to at best vague and inconclusive. After all, it’s cash with no evidence trail.
That was the problem facing the chancellor in Burnham v. Burnham, decided April 8, 2014, by the COA.
The chancellor found that Matthew Burnham was earning some side income from farming, which was in addition to adjusted gross income from his primary employment at Jones County Community College in the count of $2,618.04. The judge ordered child support in the amount of $600 a month, which he explained was guideline support for the two children, plus an additional sum to account for the farming income.
Matthew appealed, complaining that the support, by guideline, should have been no more than $523.61, a difference of $76.39 a month.
Judge James, for the COA, found the chancellor in error:
¶18. The record indicates that Matthew’s adjusted gross income from Jones County Junior College is $2,618.04 per month. The trial court found that Matthew receives additional income from farming operations. However, there is no documentation that provides for the amount per month he receives from farming. It is also unclear whether Matthew still receives this supplemental income from farming.
¶19. Matthew argues that the appropriate amount for his child-support obligation for the two minor children is $523.61; which is twenty percent of his net income. The trial court ordered Matthew to pay $600 per month. The trial court based the child-support award on the net income Matthew receives from Jones County Junior College and cash received from the farming operation. However, there is nothing in the record to establish the amount of income received from the farming operation. The trial court imputed an undetermined amount of income to Matthew.
¶20. Matthew argues that a deviation from the child-support guidelines requires a written finding on the record explaining the need for such deviation. Miss. Code Ann. § 3-19-101 (Supp. 2013). The criteria for finding an appropriate deviation are as follows:
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
Miss. Code Ann. § 43-19-103 (Supp. 2013).
¶21. “The child support award guidelines are ‘ rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.’” Grove v. Agnew, 14 So. 3d 790, 793 (¶7) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 43-19-103 (Rev. 2004)). Thus, “[i]n the absence of specific findings of fact to support a deviation from the child support guidelines, the chancellor’s award is not entitled to the presumption of correctness under the statute.” Osborn v. Osborn, 724 So. 2d 1121, 1125 (¶20) (Miss. Ct. App. 1998).
¶22. After careful review of the record, we find no specific finding of fact to support deviation. Instead there is merely an order for Matthew to pay a seemingly arbitrary amount of $600. The ordered amount of support is almost twenty-three percent of his net income. There is no mention of any extraordinary circumstances that would warrant a departure from the child-support guidelines. Although the children attend private school, the maternal grandparents agreed to pay the tuition. Accordingly, we find that the trial court erred in deviating from the child-support guidelines without specific on-the-record findings.
I can’t quibble with the conclusion here that specific, on-the-record findings are necessary to support a deviation from the guidelines. Under this case, it appears that those findings would necessarily include not only why and how one or more deviation factors applies, but also what are the specific findings of the court as to how the additional sum is calculated.
I do have a minor quibble with the bold language above. If there is proof in the record that Matthew receives some farming income, even if it is unclear, doesn’t the chancellor’s finding that it exists resolve that issue? It is the judge’s job to make that call based on what he finds to be the credible evidence.
When you have a case such as this where the chancellor has not fleshed out his findings, file a R59 motion and ask the judge to support his findings in the record. Post-trial motions were filed in this case, but it is not clear whether that particular request was made.
Also, if you represent the party trying to benefit from the side income, always make sure you put some proof in the record to quantify it. Ask questions on cross examination to get a number or a range. Look at tax returns and get them into the record; sometimes people report at least part of side income to avoid IRS problems. Get youor client to testify to her experience (e.g., “When we lived together he would give me hundred dollar bills a couple of times a month for groceries, and he would peel them off of a thick wad of hundreds that he carried around.”)
April 18, 2014 § 4 Comments
The anniversary of the Boston Marathon bombing has brought with it reruns of those horrific hours. We have borne witness again to that cataclysmic moment when the explosion ripped Boylston Street, followed in only a minute or two by a second blast within feet of the first. Victims are fallen and bleeding, there is shattered glass and shards of metal. People are dying, bleeding out, gasping for life, in shock, limbs torn off. Chaos is everywhere.
Within seconds of the explosions we see people throwing twisted barricades aside off of the victims, applying tourniquets, comforting, calling for help, picking up broken bodies and running with them to find aid. They did all this with the uncertainty whether they might be in danger from even more blasts.
There was a news report this week from the west coast in which a young father, hanging out with some friends, intervened to stop a group of men from roughing up a homeless person. For his trouble, the young man, only 39, was stabbed in the chest and killed. His wife said that he was only ” … trying to help somebody who needed help.”
I heard a minor’s settlement a few days ago that arose from the Deepwater Horizon disaster. It was the last claim from among those of the eleven workers who were killed. The evidence was that this particular worker, a crane operator, was not killed by the first blast, but he turned back from the rescue boats and climbed up into his crane, repositioning and “cradling” it so that the rescue boats could get away. As he scrambled down from the crane, there was a second explosion, and he was blown off the ladder and killed.
In each of these events, people ran toward danger when any sane person would have run away. What impels them to do this?
Some might say it is simple heroism. Others may attribute it to extreme courage that most people don’t possess. Still others may see in their actions the hand of God, or destiny, or fate, or karma, or predestination, or any number of motivating factors. There are as many possibilities as there are possible human actions.
To me, though, the evidence lies in the testimony of the witnesses who knew these people best. In the aftermath of a catastrophe, relatives, neighbors and friends often reminisce that the person who ran toward was an ordinary person who led an ordinary life, doing all of the ordinary things that folks like you or I do every day.
I believe that’s because those people who run toward danger are really no different than you or I. I believe that each of us carries inside the gene for courage and selflessness that impels us to lay aside our first instinct for self-preservation in favor of an overriding desire to help, or to rescue, or to avert a greater disaster with full knowledge that we may not come through it alive or intact.
Still, the question remains: what makes these people act on what that gene drives us to do, while others do not. Why do some run toward, while some run away? It’s hard to know what any of us would have done in those fearsome and fatal events. If you’re like me, you’d like to believe that you would be one who ran toward, not away. But we can’t be certain until we are ourselves faced with a similar situation, God forbid.
Most times, I am sure, running toward is a spur-of-the-moment, reflexive decision made when there simply is no time for rational thought or reflection on the pros and cons. The individual’s character structure and personality, then, influence whether one allows the courage and selflessness impulse to trump the survival instinct.
That is not to say that there is anything wrong in wanting to escape harm. Animals are hard-wired to do that very thing, to survive at almost any cost.
But the idea that some will somehow cancel their fear and run toward the chaos to try to bring help, rescue, redemption, and humanity to a situation where all those things have been torn violently away from others is an uplifting and consoling thought. It’s comforting to know that there are people like that. It’s comforting to know that we have the same ingredients within each of us.
April 17, 2014 § 2 Comments
Reprise replays posts from the past that you may find useful today.
NOTE: Some of these links have been affected by later case law and amendments to statutes. Always search for later posts and later case and statutory law before relying on these link.
A COMPENDIUM OF ESTATE POSTS
July 5, 2011 § 4 Comments
- Before you file the pleadings, ask yourself whether it is necessary to open an estate in this case.
- And here’s some more info on how to pass assets without an estate.
- Exempt property is not a part of the estate. Here’s a guide to what is exempt and what is not.
- The original will must be probated and retained by the clerk.
- Bonds in testate and intestate estates.
- Probating a will in common form.
- How to probate a copy or a lost will.
- Administering an intestate estate.
- Determining the heirs in an intestate estate.
- When can inventory and appraisement be waived?
- Oops, you filed that estate in the wrong county. Here’s why it can not be transferred.
- What happens when a testator leaves a bequest that can not be satisfied? It’s called ademption.
- And here’s how to handle lapsed legacies.
- Can you set aside an inter vivos gift between spouses? Here’s the rule.
- Contesting probated claims.
- Will contests: Undue Influence.
- Will contests: Lack of testamentary capacity.
- Five tips to improve your probate practice.
- A few random estate matters.
- What you need to know before trying to sell real property in an estate.
- Navigating your way through an insolvent estate.
- You need to know how to deal with this wrinkle in publishing process to close an estate.
- Waiving accounting.
- A checklist for an accounting.
- Reading the duties of an attorney in a probate matter might give you second thoughts about taking that case.
- Sure, you want to get paid. Here’s what you need to prove to get an award of an attorney’s fee in a probate matter.
- A checklist for closing an estate.
- Handling estate matters in District 12, Place 2.
April 16, 2014 § Leave a comment
David “Junior” Kimbrough was a world-renowned bluesman of the North Mississippi hill country. He died after suffering a heart attack in 1998. He had a will leaving his entire estate to his long-time girlfriend, Mildred Washington, and it was admitted to probate shortly after Junior’s death.
The matter languished on the docket for reasons not disclosed in the record. A will contest was filed finally some eleven years after the estate was opened. Litigation snowballed, including an interlocutory appeal, and the matter culminated in a 2012 trial.
The proof was that Matthew Johnson, an officer of Fat Possum Records and Mockingbird Music, prepared the will that Kimbrough signed at the same time that he signed record deals with Johnson’s companies. The contestants claimed that Johnson had a confidential relationship with Kimbrough, and that he exercised undue influence over the bluesman to have Kimbrough’s girlfriend named as sole beneficiary. They claimed that the will should be set aside, putting them into position to inherit Kimbrough’s estate.
The chancellor granted a R41(b) motion dismissing the contestants’ claims, and they appealed. Although they raised IX points (that’s the Super Bowl version of “nine points”), the MSSC, which kept the case, addressed only whether the chancellor was in error in granting the R41(b) motion.
In Kimbrough, et al. v. Estate of Kimbrough and Washington, handed down March 20, 2014, Justice Pierce wrote for the unanimous court (Chandler not participating).
The court first addressed the question whether Johnson had abused his confidential relationship:
¶12. In re Estate of Laughter defines a confidential relationship as “ . . . between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.]” In re Estate of Laughter, 23 So. 3d 1055, 1063 (Miss. 2009) (quoting Hendricks v. James, 421 So. 2d 1031, 1041 (Miss. 1982)). Further, this Court has identified the following seven factors to consider when determining whether a confidential relationship exists:
(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.
Laughter, 23 So. 3d at 1063 (citing In re Estate of Holmes, 961 So. 2d 674, 680 (Miss. 2007) (citing Wright v. Roberts, 797 So. 2d 992, 998 (Miss. 2001))).
¶13. If it is determined that a confidential relationship exists, an abuse of that relationship must be shown for the Contestants to raise a proper presumption of undue influence. Costello v. Hall, 506 So. 2d 293, 298 (Miss. 1987). The existence of a confidential relationship, standing alone, does not raise a presumption of undue influence. Laughter, 23 So. 3d at 1064 (citing Wright, 797 So. 2d at 999 (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So. 2d 683, 686 (1959))); see also Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988); Matter of Will of Wasson, 562 So. 2d 74, 78 (Miss. 1990).
¶14. The person who allegedly is taking advantage of the confidential relationship “ . . . must have used that relationship for his personal gain or to thwart the intent of the testator.” Costello, 506 So. 2d at 298 (citing Croft, 237 Miss. at 723, 115 So. 2d at 686); see Barnett v. Barnett, 155 Miss. 449, 457, 124 So. 498, 500 (1929) (undue influence over the execution of a will arises when the testator’s will is replaced by the will of another); and Wasson, 562 So. 2d at 79 (undue influence results in a will reflecting the beneficiary’s wishes rather than the wishes of the testator); Matter of Will of Adams, 529 So. 2d 611, 615 (Miss. 1988) (To effectively raise the presumption of undue influence, there must be a showing that the confidential relationship was abused through dominance over the testator or by replacement of the testator’s intent for that of the beneficiary.).
¶15. Laughter reaffirmed that a presumption of undue influence arises when the following circumstances are present:
where the beneficiary has been actively concerned in some way with the preparation or execution of the will[;] or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.
Laughter, 23 So. 3d at 1064 (quoting Croft, 237 Miss. at 723-24, 115 So. 2d at 686) (internal citations omitted)).
¶16. Commonly, undue influence is exerted by a person who is a named beneficiary in the will. However, this Court has extended the doctrine to nonbeneficiaries. The extension to nonbeneficiaries is seen in Weston v. Lawler’s Estate, in which this Court stated, “Undue influence over a testator, while not exercised by a beneficiary under the will, may be done so through an agency or a third person.” Weston v. Lawler’s Estate, 406 So. 2d 31, 34 (Miss. 1981) (citations omitted); see also Wasson, 562 So. 2d at 79.
The court went on to distinguish the cases from this one, and concluded that there was no abuse of the relationship by Johnson. As Justice Pierce pointed out:
¶22. The chancellor also determined that the testimony overwhelmingly showed that Kimbrough “called his own shots.” The chancellor went on to conclude that, even though Kimbrough was uneducated, he was not ignorant, and in fact, he was an extremely intelligent man. The chancellor pointed to the testimony revealing that, since Kimbrough could not read or write, all of his songs were performed from his memory alone. He further pointed to testimony providing that Kimbrough was hardheaded and did not let others pressure him. The chancellor ultimately decided that the Contestants hadid not meet their burden of proof, because their allegations were nothing more than “a lot of suspicions.”
¶23. Lastly, it should be noted that, when reviewing a will contest, the polestar consideration is to carry out the intent of the testator. Wasson, 562 So. 2d at 79 (citing Tinnin v. First United Bank of Mississippi, 502 So. 2d 659, 667 (Miss. 1987)). During the chancellor’s ruling, he discussed that Kimbrough had a child with Washington, that Washington was the last woman Kimbrough lived with, and that he was on her couch the day before he died. Testimony provided that Washington and Kimbrough had a relationship for many years. Washington is pictured on the inside cover of his last-released album. Johnson testified that when Kimbrough became ill, he was instructed to pay Washington any sums owed to Kimbrough by his companies, because Washington was the person who took care of Kimbrough.
Aside from the fact that this case is an exposition on how the analysis of undue influence works, it demonstrates how undue influence is not limited to one who benefits from it.
The case also eloquently illustrates what I have told lawyers in my court many times: “The longer you leave open an estate, the more problems it attracts.” How much money would Mildred Washington have saved in attorney’s fees had the estate been closed ten years before the contest was filed? There may have been meritorious reasons that this particular estate stayed open for as many years as it did, but 99% of estates have no business remaining open this long.
A noteworthy aspect of this opinion is that it includes a mere single footnote consisting of a hyperlink to Fat Possum Records’ web site. Thank you, Justice Pierce for sharing your analysis in plain sight, and not in a plethora of footnotes.
April 15, 2014 § Leave a comment
The COA’s decision in Hall v. Hall, decided March 25, 2014, is not one of those milestone cases that stands out from others.
It does, however, include a nifty selection of legal authority that you can use as a refresher and file away for future use. It’s nothing that you don’t already know or aren’t acquainted with, but it is set out in handy, bite-sized portions for ease in serving up later.
From Judge Fair’s opinion:
¶9. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald [v. McDonald], 39 So.3d at 880 (¶37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (citing Sanford v. Arinder, 800 So. 2d 1267, 1272 (Miss. Ct. App. 2001)).
¶10. “The chancellor must consider the totality of the circumstances to determine ‘whether there was a material change in circumstances.’” Cantin v. Cantin, 78 So. 3d 943, 948 (¶15) (Miss. Ct. App. 2012) (citation and quotation omitted). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
¶15. … In his judgment, the chancellor stated that there are no facts in the record to support that Dana’s cohabitation with a romantic partner had an adverse effect on the children. The chancellor also stated that the existence of an extramarital relationship, by itself, fails to provide a sufficient basis for a finding of an adverse material change. See Sullivan v. Stringer, 736 So. 2d 514, 517 (¶16) (Miss. Ct. App. 1999) (finding that cohabitation alone fails to give rise to a material change in circumstances). However, the existence of the relationship coupled with another adverse impact on the child provides a sufficient basis to warrant a custody modification. Id. at 518 (¶20). The chancellor did not err in considering this issue in his material-change analysis.
Comment: Modification of child custody requires what I refer to as a three-legged stool of proof. You must first prove that there has been a material change in the circumstances of the child and/or custodial parent. If you have proven the material change, then you must prove that the change has had some adverse effect on the child OR, per Riley, that the circumstances are so inherently dangerous or inimical to the child’s welfare that the court can assume an adverse effect. And, third, you must prove that it is in the child’s best interest to change custody. As with any three-legged stool, if any leg fails, the whole thing falls.
¶17. “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So. 3d 342, 351 (¶28) (Miss. 2010) (citing Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶18) (Miss. Ct. App. 2001)). The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.
Comment: Many attorneys base their trial tactics on the misconception that if they can prevail on more of the factors than the other side, their client wins. Not so. Here is what Judge Fair said about that approach:
- ¶19. An Albright analysis is not a mathematical equation. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Further, 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).
Comment: As I have said here before, the judge can give much greater weight to one or more factors, depending on the facts in the case. For example, I had an original custody case where the mother prevailed on nearly every Albright factor save one: she had a history of mental illness and was actively delusional, would not take medication, and saw her children as part of her delusion. Dad got custody. That “mental health of the parent” factor outweighed all the others combined.
Even when a decision appears to be the “same old same old,” it just might be what you need to reacquaint yourself with the law on a given point.
April 14, 2014 § Leave a comment
We’ve visited the issue of modification of alimony in a previous post dealing with the COA case of Peterson v. Peterson, decided last year.
Peterson highlighted how difficult it can be, once alimony is ordered by the court, to terminate or reduce it.
That’s because the competing equities on both sides can be pretty strong.
The latest case dealing with similar issues is Cook v. Cook, handed down by the COA on March 24, 2014.
Cook, as is true with all of these cases, is quite fact intensive. I’m not going to rehash all of those facts here, but when you read Judge Carlton’s opinion affirming the chancellor’s decision to grant a 25% reduction in alimony, note how the trial judge, and then Judge Carlton following the chancellor’s analysis, seesawed their way down the factors, first favoring modification, and then not favoring, and then back, and then forth. It’s fairly representive of the way the judge has to weigh these matters.
The best way to avoid having to modify alimony is to avoid it in the first place. That can be difficult when there is a great discrepancy in income and ability to establish a decent earning capacity. Don’t forget that as equitable distribution expands, the entitlement to alimony contracts. So, given significant resources, you can advise your client to give more — sometimes much more — in equitable distribution so as to eliminate the need for alimony. It’s a strategy I used successfully when I practiced, and had used against me, too.
Cook also highlights the boomerang effect your client can suffer in asking for modification. Based on the principle that the best defense is a good offense, your petition to modify can be met with a counterclaim for contempt and upward modification. If the alimony was rehabilitative, you might even stir up a counterclaim to convert it to permanent periodic alimony. Oster v. Oster, 876 So.2d 428, 430-431 (Miss. App. 2004).