Mississippi Family Law Blog

Multi-million dollar divorce--just in attorney fees

Wed, 07 Jul 2010 20:40:18 -0600

Over 35 million dollars in attorney fees for Australian divorce

For those of you who think your attorney charges you a lot of money in fees, read this story. It will add some perspective. A couple divorcing in Australia have spent over 35 million dollars in legal fees. Now the wife is complaining about the attorney fees she owes only after having already paid over 9 million. Wonder why she didn't complain after the first couple million in fees. What the article does not explain is how much the couple's estate was worth. It better have been a lot for having spent this much money on attorneys.

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Domestic violence in Mississippi

Mon, 05 Jul 2010 13:33:22 -0600

Domestic violence in Mississippi--get help before it's too late

Two recent news events highlight the dangers associated with domestic violence. A Jackson, Mississippi man is headed to prison for 20 years after shooting his estranged wife. Prior to the shooting, he had threatened her, her children, and her family. Read the story here. Then on Thursday, a man was arrested for the shooting death of his girlfriend.

I have previously posted where victims of domestic violence can get help. You can read that post here. If you are a victim of domestic violence, get help now.

Is Divorce Contagious?

Thu, 24 Jun 2010 08:10:10 -0600

Divorce more likely if others in social network are divorcing

A fellow attorney posted an interesting study, using data from the famous Framington Heart Study, that showed divorce was more likely if others in your social network were divorced or divorcing. You can read about the study here.

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Recent Mississippi Supreme Court opinion reads like a U.S. Supreme Court opinion

Sun, 20 Jun 2010 15:21:36 -0600

What can a Guardian Ad Litem testify to in a hearing in Mississippi?

For over twenty years in reading modern U.S. Supreme Court decisions, many times I find it necessary to chart out the Court's opinion to see how many justices agreed with each portion of the opinion. What at first blush might be considered a majority opinion turns out only a majority for Part I and II of the decision, while the concurring or dissenting opinion carries a majority on the remainder of the opinion. In that respect, an opinion handed down by the Mississippi Supreme Court on Thursday is reminiscent of a U.S. Supreme Court decision.

In a child custody case out of Rankin County, Mississippi, the Mississippi Supreme Court wrestled with the normal issue of whether the Chancellor made the proper decision on which parent should have custody of the children. However, the more interesting aspect of the opinion concerns the Guardian Ad Litem.

The Guardian Ad Litem in the case testified during the hearings concerning his findings, which included testifying to what third-party witnesses told him during his interviews. Usually, testifying in court to what someone told you is hearsay--an out of court statement offered for the truth of the matter asserted. Courts do not allow a witness to testify what some third party said to them unless an exception to the hearsay rule applies. The reason is that such evidence is not reliable and trustworthy unless it is subject to cross-examination. While the attorney can cross-examine the person testifying, the attorney is robbed of the ability to cross-exam the third party whose statements are being repeated in court by the witness.

That was the complaint in this case. The Guardian Ad Litem had interviewed several witnesses (who did not testify at the hearing) and in his testimony he testified as to what certain third parties told him about the children. The question was whether a Guardian Ad Litem should be allowed to testify in court as to what third-party witnesses told him. While the "majority opinion" appears to rule that the issue was moot or the complaining party failed to object at the time of the hearsay evidence was offered, a closer look at the opinion shows this section of the opinion is not the majority. Rather, the concurrence by Justice Dickinson was joined by Justices Carlson, Randolph, Lamar and Chandler, making Justice Dickinson's concurrence the majority opinion on this issue. So what is the rule? In Justice Dickinson's great verbiage,

"Chancellors should not decide the fate of children based on pure, rank, un-cross-examined hearsay."

While he agrees that Guardians may rely upon hearsay evidence to formulate their opinion, given they are qualified as experts under the Rules of Evidence, it does not give them the green light to testify as to what some third-party told them out of court.

Justice Dickinson's greatest line comes at the end when he said,

"And if we believe enforcement of the rule against hearsay is appropriate and necessary to protect the rights of murderers, rapists, and pedophiles, surely we think it necessary to protect the rights and interests of children and their parents."

So what can attorneys and judges take from this part of the decision. I think a majority of the Court agrees that Guardian Ad Litems are akin to expert witnesses and can rely on hearsay evidence to formulate their opinions, but a Guardian Ad LItem cannot testify to what a third party said to them unless there is an exception the the hearsay rule that applies.

You can read the opinion here.

Mississippi Chancery Judge blogging

Fri, 18 Jun 2010 07:38:42 -0600

12th Judicial District Chancellor starts new Mississippi blog

Judge Larry Primeaux, Chancellor for Lauderdale and Clarke Counties, has started a blog aimed at assisting attorneys practicing in Chancery Court. What a great asset.

Mississippi Supreme Court rules on child's surname in paternity action

Tue, 15 Jun 2010 08:26:46 -0600

Madison County paternity action ends up with Mississippi Supreme Court over name

A Madison County paternity case landed in the Mississippi Supreme Court over the interpretation of Mississippi Code Section 93-9-9(1)--the child's last name in a paternity action. In Rice v. Merkich, the girlfriend became pregnant while the couple was dating. Although they originally planned to marry, the couple separated. The mother did not inform the father when the child was born and put her last name on the birth certificate for the child's surname. Within ten days of the baby's birth, the father filed a paternity action in Madison County Chancery Court. After DNA testing established Merkich was the father, the father filed for joint custody and also requested the child's name be changed to his last name. Judge Brewer agreed with the father, ordered the child's last name changed to his surname, and the mother appealed.

On appeal, the mother argued the child's surname should not have been changed to the father's. The problem was Mississippi Code section 93-9-9 (1) states,

"In the event of court-deteremined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise."

Given the statute does not specify those situations that would justify departing from using the father's surname, the 7-2 decision stated:

'in the event of court-determined paternity,' where a party to the action contends that the surname should not be 'that of the father,' then, and in that event, that party must prove by a preponderance of the evidence that it is in the child's best interest that the surname not be 'that of the father.'

The Court went on to consider the strong statutory presumption that the child's name should be that of the father especially given the evidence showed had he known of the birth, he would have been at the hospital and signed an acknowledgement of paternity. If that occurred, Mississippi Department of Health regulations required the child have the father's surname, unless both parties signed a statement otherwise. The only evidence offered by the mother was that by her and the child have different last names, it could possibly be embarrassing and confusing. This evidence was simply not enough to show the change of the child's surname was in the child's best interest.

While two justices dissented over the issue of when the best-interest-of-the-child test should be employed and whether it was employed by the Chancellor in this case, I think the majority was clear as to its application in the future. In the future, if a mother contest changing the child's surname to the father's surname in a paternity action, the mother must prove by a preponderance of the evidence that the child keeping the mother's last name is in the best interest of the child.

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Mississippi Supreme Court finds law firm not liable for partner's affair with client's wife

Sat, 12 Jun 2010 20:10:03 -0600

Law firm escapes liability for partner's affair

This last week the Mississippi Supreme Court issued an opinion reversing a Hinds County Circuit Court's ruling in an alienation of affection lawsuit involving an attorney and his law firm. You might ask how a law firm became a defendant in an alienation of affection lawsuit. Well, one of the firm's partners had an affair with the plaintiff's wife. Worse, the plaintiff said the partner was his attorney at the time of the affair. When the plaintiff found out about the affair (a point disputed in the testimony), he decided to bring a lawsuit against the attorney and his employer, the law firm.

Normally this would be a straight-forward case as the Mississippi Supreme Court has previously ruled that an employer cannot be held responsible for an affair of one of its employees. This makes sense given an extramarital affair is not in the course and scope of one's employment and does nothing in furtherance of the employer's business. And that is what the Court ruled especially given there was no evidence that anyone at the law firm knew about the affair. The Court also ruled that summary judgment was proper for the other claims against the law firm.

What made this case different is a lawyer owes his client a fiduciary duty. If an attorney violates that fiduciary duty, then the attorney can be held liable. And in some circumstances, the law firm of the attorney can be held liable. That is what the plaintiff was attempting to prove in this case. Essentially, he was arguing that the attorney breached his fiduciary duty by having an affair with his wife. The Supreme Court disagreed. One judge dissented on the fiduciary duty claim, stating it was a jury question. I agree. Two judges did not participate in the opinion.

Moral of the story: In an alienation of affection lawsuit, you are not going to be able to sue the employer of the paramour.

Reported by Robert Kisselburgh, Mississippi Divorce Lawyer

Woman sues wireless carrier for exposing affair

Thu, 10 Jun 2010 07:57:11 -0600

Woman's affair revealed by cell phone bills

A Toronto woman was having an affair. She was talking with her boyfriend on her cell phone and had the phone registered in her maiden name. Well, her husband decided to add internet service to the home and called the phone company to add the service. When the next bill came to the house, the woman's cell phone bill was included in the invoice and hubby found a number of long calls to a single number. Suspicious, he called the number and confronted the male voice on the other end of the line who confirmed he was having an affair with his wife. Husband leaves the wife and take their two children. What does the wife do? Sues the cell phone carrier for an invasion of privacy and breach of contract.

Some words of advice to this lady. Don't expect a jury to feel any sympathy for your case. Come on!. You were cheating on your husband, got busted by the phone bills sent to your home, and the best you can come up with is to sue to the phone company. Good luck. I imagine the wife is a bit upset that the husband has all the evidence he needs in his divorce case against the wife.

Read the story here.

Fat Mama's and the margaritas

Tue, 08 Jun 2010 13:39:55 -0600

Natchez, Mississippi trip--a stop at Fat Mama's

I was down in Natchez two weeks ago and got to spend a little time at my favorite place for margaritas. A trip to Natchez without a Knock You Naked margarita from Fat Mama's just doesn't seem right.

Divorce for retirees?

Fri, 04 Jun 2010 06:05:29 -0600

Older couples divorcing--is it ever too late?

Sparked by the recent separation of Al and Tipper Gore, both on the verge on collecting social security, a recent Time Magazine article ask whether it is too late in life to divorce. Read the article here. According to the article, "a study of post-40 divorce by the American support group for older people, AARP, found that 60 and 70-year-olds appreciate life after divorce the most of any of the ages, citing a fresh lease of life from forging a new identity."

Information provided by Robert Kisselburgh, Mississippi Divorce Attorney

Mississippi's Toughest Kids Foundation

Wed, 02 Jun 2010 15:01:10 -0600

Mississippi's Toughest Kids Foundation

Our our Rotary Club meeting today, we heard from Mary Kitchens, the director of Mississippi's Toughest Kids Foundation. What a great organization! The Foundation was established "for the single purpose of building the only fully accessible camp for children (and adults) with serious illnesses and physical, mental, and emotional challenges in Mississippi." The Foundation is currently raising money to build a permanent camp to serve the special needs children in Mississippi.

If you want to donate to this great organization, you can e-mail them at mstoughkids@yahoo.com or call them at 601-892-1117. Your efforts are surely bound to bring a smile to a needy child.

Study ranks cities on likelihood of divorce

Wed, 02 Jun 2010 08:03:51 -0600

New study ranks 100 U.S. cities most doomed for divorce

Men's Health magazine (I know, not very scientific) published its ranking of cities where couples are most likely to divorce. Among the leaders was the predictable Las Vegas, Nevada, although I think Las Vegas might cause a lot more divorces for out-of-towners. The surprising cities leading the list were Cheyenne, Wyoming, and Billings, Montana. Now, where is your marriage most likely to last? San Jose, California leads the cities of marital bliss, followed by Columbia, South Carolina and El Paso, Texas. Jackson, Mississippi came in at #77 on the list.

You can read the article, Splitsville USA, here.

Information provided by Robert Kisselburgh, Mississippi Divorce Attorney

In the News--family law issues making headlines

Tue, 01 Jun 2010 14:20:16 -0600

In the News--interesting family law issues making headlines

Facebook leads a mother to her kidnapped children 14 years after their father kidnapped the children in violation of a child custody order and took them from California to Florida. Read more here.

Al and Tipper Gore divorcing after 40 years of marriage. Strange one. Read more here.

Online dating service wordsmith for hire. If you use an online dating service, be warned that the witty and charming response you receive may not have be written by your prospective suitor. Here is a story of a guy who makes money writing for those using an online dating service who don't feel comfortable penning their own love letters. This takes outsourcing to a new level, and not in a good way.

Information provided by Robert Kisselburgh, Mississippi Divorce Attorney

Crazy Divorces

Wed, 26 May 2010 20:26:28 -0600

Wacky Divorce cases

The internet and newspapers are filled with wacky divorce cases. Here are some wackier ones I read about recently involving celebrities.

A man in Connecticut is blaming his divorce on Garth Brooks even though his wife never met Garth Brooks. Story here.

A Pennsylvania women is attempting to divorce Van Halen's David Lee Roth even though they were never married. Story here.

And of course, Jesse James cheating on Sandra Bullock. What were you thinking?

Reported by Robert Kisselburgh, Mississippi Divorce Attorney

Housework by men said to reduce divorce

Thu, 20 May 2010 19:55:29 -0600

Study says divorce will be reduced with more housework by men

A recent English study found the divorce rate lower among households were husbands performed more housework, did more shopping, and helped with the childcare. Bad news for some guys. Read the story here.

Information provided by Robert Kisselburgh, Mississippi Divorce Attorney