BLOG
Child Support: Agreeing to Pay No Support and Modifying
Unlike child custody, where the chancellor looks at the best interest of a child, the amount of child support is set by the Mississippi legislature using percentages. These percentages are set between 14 to 26 percent based on the number of children.
When there is a fault-based divorce, the chancellor will calculate the amount owed, if any. When there is a divorce based upon irreconcilable differences, the divorcing spouses may decide in the property settlement agreement the amount payable to the spouse with physical custody subject to the approval of the chancellor.
One issue that occurs with some frequency is when the divorcing spouses agree that no one pays child support. There may be times when the parents have reached the point where they just want to be divorced that they are willing to renounce any child support payments. They then sign the property settlement agreement and submit it to the chancellor for approval along with their order and decree of divorce. The Mississippi Supreme Court, however, has held that the child support paid to the custodial parent is for the best interest of the child. As such, the child’s rights to their parent’s support cannot be contracted away. This is one example of why it may be important to consult with an attorney when child support and custody are issues.
Another problem that frequently occurs is when one of the parents wants to change the amount of child support. Child support may be increased or decreased when there has been a material change of circumstances. There is a laundry list of factors the chancellor may use to determine if there has been a material change in circumstance. For example, if the custodial parent seeks to increase the amount of child support, the chancellor will look at 3 factors: a substantial increase in the noncustodial parent’s income; inflation; and an increase cost of raising older children.
If you have or may have a situation concerning a claim of a material change in circumstances, it is best to consult with an attorney before you proceed on your own in court.
DUE PROCESS AND COLORADO’S PRESUMPTION OF GUILT
April 19, 2017, was a good day for individual due process rights thanks to the 7-1 decision handed down by the United States Supreme Court in the case of Nelson v. Colorado. In this case, a Colorado jury found Shannon Nelson guilty on two felony and three misdemeanor charges. As a result , the trial court ordered Nelson to pay $8,192.50 in court costs, fees and restitution. Nelson then appealed and the convictions were later overturned. At the conclusion of a second trial, Nelson was acquitted on all charges.
Most people would probably assume that after the acquittal, the State of Colorado quickly refunded Nelson’s money. However, that was not the case. Instead, Colorado said that in order for Nelson to get his money back — he had to file a civil suit and prove by clear and convincing evidence that he was actually innocent. This requirement pretty much annihilated the presumption of innocence while creating a difficult and expensive process for recovering forfeited money.
Fortunately for Nelson, we still have due process rights under the 14th amendment. In analyzing this situation, the Supreme Court concluded that the presumption of innocence was restored when the conviction was erased. Therefore, it was violation of due process for Colorado to impose an obligation on Nelson to prove his innocence. More specifically, the presumption of innocence means that a person who can’t prove his or her “actual innocence” isn’t any less innocent than one who can. Accordingly, the Due Process Clause prohibits a state government from making a person who was not convicted go through “anything more than minimal procedures” to get their money or property back.
In doing so, the Supreme Court rejected Colorado’s argument that the “presumption of innocence applies only at criminal trials,” and not a civil action to recover fines or restitution wrongly paid. According to the majority, a person “who has not been abjudged guilty of any crime may not be punished.”Hopefully this decision will help establish a firewall that protects individuals against abusive government forfeiture practices.
Perhaps the only negative to come out of this opinion is the fact that it was not unanimous. Justice Clarence Thomas dissented based on what we see as some pretty dubious reasoning. While he agreed that if the petitioners had never been convicted, Colorado could not have required them to pay the money at issue — it was his opinion that once the state has taken the money, it was Colorado’s money and there was no right to due process.
SENSIBLE IMMIGRATION POLICY (THE MIDDLE WAY)
WYAB Studio
Today, our immigration attorney, Emilia Ayala, had the opportunity to appear as a guest on the Mike Madison radio show (WYAB 103.9 FM). During a one hour interview she was able talk about some of the misinformation and fake news that actually gets in the way of our country’s ongoing efforts to address immigration in a reasonable and cost effective way.
From an economic standpoint, the setting of immigration policy will always involve trade-offs — and as with most public policy decisions, there are always winners and losers. But even though our immigration problems remain extremely complex, there are real solutions that make economic sense. The problem at this point is that those solutions are unlikely to occur in today’s polarized political climate.
In our view, sensible immigration reform should include:
- The creation of an an entry-exist system that monitors immigrants both when they come into the U.S. and when they leave. Such a system would most effectively address the problem known “visa overstays” — which include those who simply disappear after overstaying the time limit of their visas.
- The creation of a procedural pathway which would enable many of the current undocumented immigrants (who are working and do not have criminal records) to obtain legal status and work permits. Mass deportation would present many legal, ethical and moral issues in addition to the fact that it does not make sense from an economic standpoint. This would also allow law-enforcement officials to focus their resources on those who are genuine security or public-safety risks.
- Improving the existing channels for legal immigration so that they are more in line with the labor and population growth demands of the U.S. economy with a preference for those who have the background and desire to successfully integrate into our society.
Despite having a dysfunctional political system, becoming a U.S. citizen or even a legal resident is still a privilege. Accordingly, the right to immigrate to the U.S. should primarily be based on your ability and willingness to add value to the U.S. while ultimately adopting our laws and and culture.
Municipal Appeals — Time For Filing
The Mississippi Supreme Court recently revisited some of the procedural requirements for appealing municipal ordinances in the case of Pemberton Properties, LLC, et al, vs. The Mayor and Board of Alderman of Pearl, Mississippi,
In this case, the owners of several apartment complexes were unhappy with an ordinance that the City of Pearl had adopted. The property owners elected to appeal the ordinance by filing a bill of exceptions. The law in Mississippi has long been that a person wishing to challenge a city’s decision through a bill of exceptions must do so within 10 days after the decision was made. However, the property owners in the Pemberton case mistakenly thought that the 10 days did not start running until the ordinance actually went into effect (which was more than 10 days after it was adopted). Because of this mistake, the dismissal of the property owners’ appeal was affirmed by the Mississippi Supreme Court. As a result, the property owners may have been left without any remedy.
You have a number of procedural options and remedies available when it comes to challenging the legality of a municipal ordinance or action. However, this case once again illustrates the importance of finding a lawyer with significant local government law experience if you are going to successfully challenge a city’s actions. For more information on our local government law practice, click here.
WARRANTLESS COLLECTION OF DNA — MARYLAND V. KING, 133 S.CT. 1958 (2013)
One of the areas of criminal law that I have always found interesting involves the standards for warrantless searches. Today, I am revisiting an important criminal law case from a few years ago known as Maryland v. King, 133 S.Ct. 1958 (2013). In Maryland v. King, the United States Supreme Court was asked to decide if the Constitution prevented the routine collection of DNA from someone who is arrested. The challenge to collecting DNA without a warrant was based on the Fourth Amendment. As a refresher, the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment protects each of us from unreasonable searches and seizures by the government and stands as one of the pinnacles of privacy law by restricting government conduct.
The facts in Maryland v. King were rather simple. In 2003 a woman was raped. She reported the attack and a underwent a rape exam. A sample of the unknown perpetrator’s DNA was obtained and entered into a Maryland DNA database. Six years later, Mr. King, was arrested on unrelated assault charges. After his arrest, a routine warrantless DNA sample was taken by means of a cheek swab.
Mr. King’s DNA sample was run through the Maryland DNA database and matched the sample from the 2003 rape exam. Charges were then brought against Mr. King for the 2003 crime. Mr. King’s lawyers moved to suppress the DNA evidence based on the Fourth Amendment protection against unreasonable searches. The motion was overruled and Mr. King was convicted.
The United States Supreme Court ultimately weighed in on the matter. In a 5-4 decision the United States Supreme Court decided that the Maryland DNA collection law did not violate the Fourth Amendment. The close vote by the Court demonstrates a clear divide when it comes to strictly enforcing Constitutional rights.
In analyzing the case, the Court first found that the collection of DNA was a search and therefore that the Fourth Amendment analysis applied. After settling this foundational question, the Court turned to whether the warrantless collection of DNA from anyone who is arrested is an unreasonable search or seizure. The Court found that it was not unreasonable specifically stating that individualized suspicion was not needed to conduct the DNA search. A lawful arrest by itself is a sufficient basis for such a search.
In reaching its conclusion, the five justice majority balanced the various governmental interests versus the suspect’s reasonable expectations of privacy. The Court found that the government had a legitimate interest in the accuracy of identity of the arrested person, protecting the public from the dangers presented by the arrested person, eliminating flight risk, and exonerating those innocent of crimes actually committed by the arrested person. The Court concluded that these interests outweighed any reasonable expectations of privacy, especially where there was only a “minimal” intrusion, such as a check swab. The Court went on to say that DNA analysis was very similar to fingerprinting and relied on a series of cases that found fingerprinting did not violate the Fourth Amendment. As a result of this case, it is now clear that DNA is the fingerprinting of the 21st Century.