“Quote Unquote”

December 6, 2019 § Leave a comment

“It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.”  —  James Baldwin

“And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it.”  — G. K. Chesterton

“Power concedes nothing without demand. It never did and never will.”  —  Frederick Douglass

Attorney’s Fees in Modification Cases

December 4, 2019 § Leave a comment

Can the court award attorney’s fees in a modification of child support case?

The COA dealt with that question in the case of Blevins v. Wiggins, decided November 5, 2019. Judge Corey Wilson penned the opinion:

¶17. Amy [Blevins] asserts that the chancery court applied an erroneous legal standard to deny her request for attorney’s fees. She contends that Monty’s counterclaim was not filed in good faith because Monty [Wiggins] “did not allege that a material change in circumstance had occurred which had an adverse impact on the children.” Amy further contends that Monty filed the counterclaim to financially harass her and that the chancery court failed to consider her inability to pay attorney’s fees.

¶18. “The standard for an award of attorney[’s] fees on a motion for modification of support is basically the same as that applied in an original divorce action.” Setser v. Piazza, 644 So. 2d 1211, 1216 (Miss. 1994). “Attorney fees are not awarded in child support modification cases unless the party requesting fees is financially unable to pay them.” Id. However, “[t]he question of attorney fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court,” and we are generally “reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and of the amount of [any] award.” Ferguson v. Ferguson, 639 So. 2d 921, 937 (Miss. 1994); Geiger v. Geiger, 530 So. 2d 185, 187 (Miss. 1988).

¶19. Further, Mississippi Code Annotated section 11-55-5(1) (Rev. 2012) provides that

in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment . . . .

(Emphasis added).

¶20. Here, the chancery court considered the relative financial condition and earning capacity of the parties—specifically, Amy’s and Monty’s financial declarations and monthly incomes and expenses— and concluded that “[u]nder the facts of this case, the law requires that each party pay their own attorney fees.” Regarding Amy’s inability to pay attorney’s fees, the chancellor heard the testimony, considered the financial evidence offered by the parties, and determined that an award of attorney’s fees was not warranted. Consequently, we decline to disturb the chancery court’s ruling with regard to attorney’s fees.

¶21. Furthermore, based on the record, we cannot find that Monty’s counterclaim for custody was filed without substantial justification or was interposed for delay or harassment such that the chancery court erred in declining to award Amy attorney’s fees under section 11-55-5(1). At trial Monty testified that he was seeking custody of the children “[b]ecause I would love [for] them to live with me. They have been with [Amy] ever since we have been divorced and, you know, I mean, why shouldn’t I have the opportunity to raise them as well.” Monty also testified that, in his opinion, receiving custody “would [put an end to] a lot of the fighting [over] the money because I wouldn’t be asking for any money.” Effectively, Monty’s counterclaim involved the same issues raised in Amy’s petition for modification such that the same evidence and issues were to be tried whether Monty asserted his counterclaim or not. We cannot conclude that the chancery court erred in denying Amy’s request for attorney’s fees.

More often than one would expect, the only evidence I have of inability to pay is an assertion. Sometimes I have 8.05’s to substantiate the claim. Quite often neither party has ability to pay. In that situation it is erroneous to award attorney’s fees. Masino v. Masino, 829 So. 2d 1267, 1274 (Miss. Ct. App. 2002).

Failure to Serve Process Within 120 Days in a Rule 81 Case

December 3, 2019 § 1 Comment

MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.

But that’s Rule 4. How does that apply in Rule 81 actions?

In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:

¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.

¶12. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(Emphasis added). Rule 81(a)(9), however, states in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures, . . . [including] Title 93 of the Mississippi Code of 1972.

(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that

upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added).

¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).

¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).

¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.

¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.

A few observations:

  • It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
  • Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
  • I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
  • In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
  • You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.

It is What it is

December 2, 2019 § Leave a comment

When it comes to contract interpretation, the first rule is that, if the language is unambiguous, the judge is bound by the language in the four corners of the document. The language there is what the parties agreed to, and that is what will be enforced. Settlement agreements incorporated into divorce judgments are contracts subject to the rule.

Jerry Collado and his wife Jennifer (now Tyndall) got an irreconcilable differences divorce. Their settlement agreement included this language:

“Husband agrees to continue to pay for the minor children’s private school education, so long as the parties jointly agree for the children to be enrolled in private school, including tuition and registration fees, continuing through each child obtaining a high school diploma … “

When Jerry decided that he no longer agreed for all of the children to attend private school, Jennifer filed a petition to modify seeking an order requiring Jerry to continue to pay private school expenses for all of the children. At hearing, Jerry testified that he had agreed to the language in the agreement because he wanted to pay the private school expenses as long as he was able, but overtime had become uncertain and his expenses had increased, so that he suggested only the two older children finish at the private school.

The chancellor ruled that the children had always attended the private school, Jerry had always paid, and his financial statement did not support his claim that he was financially unable to pay. He ordered Jerry to pay, and Jerry appealed.

In Collado v. Tyndall, decided October 8, 2019, the COA reversed and rendered. Judge Jack Wilson wrote the opinion for a unanimous court:

¶6. On appeal, Chris argues that the chancellor erred by modifying the clear and unambiguous terms of the parties’ child custody and property settlement agreement. He argues that the chancellor should have applied principles of contract law to the agreement and should not have considered his ability to pay. In contrast, Jennifer argues that a provision requiring a party to pay private school tuition is in the nature of child support and therefore is subject to modification.

¶7. We will affirm a chancellor’s findings of fact as long as they are supported by substantial evidence and are not clearly erroneous. Campbell v. Campbell, 269 So. 3d 426, 430 (¶13) (Miss. Ct. App. 2018), cert. denied, 258 So. 3d 285 (Miss. 2018). Our standard of review on pure issues of law is de novo. Id.

¶8. When, as in this case, the parties have complied with the irreconcilable differences divorce statute, their agreement concerning matters of custody, support, alimony, and/or property division “becomes a part of the final decree for all legal intents and purposes.” Switzer v. Switzer, 460 So. 2d 843, 845 (Miss. 1984). With respect to the division of marital property, the agreement “is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” East v. East, 493 So. 2d 927, 931-32 (Miss. 1986). Therefore, “when parties in a divorce proceeding have reached an agreement that a chancery court has approved, . . . we take a dim view of efforts to modify [provisions regarding the division of property] just as we do when persons seek relief from improvident contracts.” Ivison v. Ivison, 762 So. 2d 329, 334 (¶14) (Miss. 2000).

¶9. However, provisions of the agreement regarding child support are treated differently. A court-approved agreement to pay child support is subject to modification, and the rules governing its modification “are the same as if the chancellor had made a support award after a contested divorce trial.” Tedford v. Dempsey, 437 So. 2d 410, 417 (Miss. 1983). That is, the party seeking a modification of the agreement to pay child support bears the burden of proving “a material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch v. Finch, 137 So. 3d 227, 237 (¶33) (Miss. 2014).

¶10. Jennifer is correct that “private-school tuition is considered part of child support.” Bruton v. Bruton, 271 So. 3d 528, 534 (¶16) (Miss. Ct. App. 2018) (citing Southerland v. Southerland, 816 So. 2d 1004, 1006 (¶11) (Miss. 2002)); accord, e.g., Gunter v. Gunter, No. 4 2017-CA-01767-COA, 2019 WL 1529265, at *2 (¶11) (Miss. Ct. App. Apr. 9, 2019); Elkins v. Elkins, 238 So. 3d 1204, 1211 (¶21) (Miss. Ct. App. 2018); Moses v. Moses, 879 So. 2d 1043, 1048 (¶14) (Miss. Ct. App. 2004). Therefore, provisions of a settlement and judgment concerning the payment of private school tuition are subject to modification.

¶11. However, Jennifer failed to prove any “material change in circumstances” that was “not foreseeable prior to the time of the agreement.” Finch, 137 So. 3d at 237 (¶33). The only thing that changed was Chris’s position as to where two of his four children should go to school. Chris’s decision that two of his children should attend public school was a change in circumstances, but it was a change that the parties’ court-approved settlement agreement expressly contemplated. The agreement requires Chris to pay private school tuition only “so long as the parties jointly agree for the children to be enrolled in private school.”

¶12. This Court recently addressed an analogous issue in Campbell, supra. There, we held that the emancipation of one of the parties’ four children did not support a court-ordered modification of child support because the parties’ original child support agreement specifically provided for a $1,250 reduction in child support upon the child’s emancipation. Campbell, 269 So. 3d at 430-31 (¶¶14-16). We explained that when the parties’ agreement already provides for the possibility of a specific change in circumstances, that “exact situation” cannot be deemed “unforeseen” or “unanticipated”—and,therefore, cannot support a modification of support. Id. The same reasoning applies in this case. The parties’ court approved agreement specifically contemplated that Chris might decide that some or all of his children should no longer attend private school. Thus, Chris’s decision was foreseeable and is not a basis for a modification of support.

¶13. Under the terms of the parties’ agreement, Chris is not required to continue to pay private school tuition if he does not agree that his children should continue to attend a private school. The chancellor disagreed with Chris’s claim that he could not afford to continue to send all four of his children to private school. However, the parties’ court-approved agreement did not require Chris to persuade the court of the reasons for his decision regarding his children’s schooling. And Jennifer failed to prove any material, unforeseen change in circumstances that would have supported a modification of the agreement. Therefore, the chancellor erred by ordering Chris to continue to pay tuition for children that
Chris preferred to send to public school.

Can’t think of anything to add to that.

November 28, 2019 § Leave a comment

Thanksgiving Holiday

Courthouse closed

Next post December 2, 2019

R.I.P. Chancellor William Willard

November 27, 2019 § 3 Comments

Chancellor Willard of Clarksdale, was retired Chancellor of the 7th District.

Reportedly died when he suffered a heart attack while scuba diving with his family in the Caymans on November 25, 2019.

The official MSSC press release:

Retired Chancellor William G. Willard Jr. of Clarksdale died Nov. 25 while vacationing with his family in the Cayman Islands. Funeral arrangements are incomplete. Meredeth Nowell Funeral Home in Clarksdale is handling arrangements.

Judge Willard retired from the bench in December 2010 after serving 12 years as Chancellor of the 7th Chancery District that includes Bolivar, Coahoma, Leflore, Quitman, Tallahatchie and Tunica counties. He returned to private law practice in Clarksdale. Before his service as chancellor, he served for nine and one-half years as Clarksdale Municipal Judge. He also served on the Bar Complaints Tribunal.

R.I.P. Judge Billy Bridges

November 26, 2019 § 4 Comments

From the MSSC press release:

Retired Mississippi Court of Appeals Chief Judge Billy G. Bridges died on Nov. 25 at his home in Brandon. He was 85.

A funeral service will be held on Saturday, Nov. 30, at 11 a.m. at Ott and Lee Funeral Home in Brandon. Visitation will be Friday, Nov. 29, from 5 to 7 p.m. and Saturday, Nov. 30, from 9 to 10:30 a.m. Interment will be in Floral Hills in Pearl.

Judge Bridges served on the Court of Appeals for 11 years. He was one of the original members of the Court of Appeals. He was elected in 1994, and the Court of Appeals began hearing cases in January 1995. Judge Bridges served as Chief Judge from January 31, 1997, until February 17, 1999. He was named Presiding Judge on April 30, 2004. He retired Dec. 31, 2005, but did not hang up his robe. He became a senior status judge and presided over cases in the trial courts as a special judge for many years.

Supreme Court Justice Leslie D. King served together with Judge Bridges on the Court of Appeals. “We became close friends as we worked together. Billy was a very thorough and considered individual in his work. He took his time in looking very carefully at the matters before the Court. He cared a great deal about his work and the people who came before the Court,” Justice King said. “He was also concerned about the judiciary and the appearance of the judiciary to the public. Billy was a fine example of what you would want to see in a judge. He is someone whom I’m happy to have known as a colleague and a friend.”

Court of Appeals Chief Judge Donna Barnes of Tupelo also served with Judge Bridges. “It was an honor to serve with him. The vast experience he brought to Court of Appeals deliberations was truly remarkable,” she said.

Before his election to the Court of Appeals, Judge Bridges served as a chancery judge of the 20th Chancery District of Rankin County. He was district attorney for the 20th Circuit Court District of Rankin and Madison counties, and Rankin County prosecuting attorney. He served in other legal positions including board attorney for the Town of Florence, the Town of Pelahatchie, the Rankin Medical Center, and the Rankin County School Board. He spent more than 38 years in public service, not including his work as a senior status judge. He practiced law in Rankin County for 33 years. Former Supreme Court Chief Justice James W. Smith Jr. was one of his law partners in private practice.

Judge Bridges grew up in Pearl. His family moved from Simpson to Rankin County when he was two. He graduated from Pearl High School in 1952. He attended Hinds Community College before going to the University of Mississippi, where he earned a bachelor of business administration degree in 1958. Judge Bridges pursued his study of law at the University of Mississippi School of Law and was awarded an LLB degree in 1961 and a Juris Doctor in 1968.

Judge Bridges served in the U.S. Marines during the Korean War, attaining the rank of sergeant. He went to college on the GI Bill.

Judge Bridges held membership in a number of prestigious legal organizations including Who’s Who of American Judges, American College of Trial Judges, Mississippi Bar Foundation, Mississippi Municipal Attorneys Association, American Society of Hospital Board Associations, Mississippi Hospital Board Attorneys, and the Mississippi Continuing Judicial Education Committee.

He was a member of Crossgates Baptist Church in Brandon and was affiliated with Gideons International.

Power of the POA

November 25, 2019 § 1 Comment

It sometimes happens that a client comes bearing process with a complaint attached alleging that he has a POA (power of attorney) and is guilty of self-dealing. “But,” he explains, “look at the POA. It clearly says right here that I have ‘full authority to handle, in his exclusive discretion, all matters and things in which [the principal] may be interested, in either business or personal affairs.'” He looks at you almost confidently, but certainly hopefully.

That was an element of the litigation between the estate of Dorothea Kolf and her surviving husband, Peter. The couple had executed a pre-marital agreement that provided each would own and surrender any claim to the other’s assets that predated the marriage. Peter, however, acting under a broad-power POA, withdrew some money from Dorothea’s accounts after she became cognitively incapacitated. A chancellor ordered him to repay into the estate the funds he had not used expressly for her benefit, and Peter appealed.

In Kolf v. Authement, Ex Rel. Estate of Kolf, handed down October 22, 2019, the COA affirmed on the chancellor’s ruling that Peter had misused the POA. Here is what Judge Barnes had to say for the court on point:

¶12. Alternatively, Peter argues that he had authority under the general power of attorney (POA) to withdraw the IRA funds. As stated, Dorothea executed the POA on August 7, 2008, naming Peter as her attorney-in-fact for financial purposes. The POA granted Peter “full authority to handle, in his exclusive discretion, all matters and things [in] which [Dorothea] may be interested, either business or personal affairs.”

¶13. The issue before us on appeal is whether the chancery court erred in awarding the IRA funds to Dorothea’s estate. Because the funds were Dorothea’s separate property under the terms of the Agreement, thereby making them a future estate asset, any authority that Peter may or may not have had to withdraw those funds under the POA is irrelevant. Moreover, an agent’s authority under a POA “does not permit the attorney-in-fact to engage in undisclosed, self-dealing activities.” West v. Johnston (In re Estate of Johnson), 237 So. 3d 698, 707 (¶23) (Miss. 2017).

“It is fundamental law that an agent owes his principal absolute good faith and fidelity, and he cannot in the exercise of his authority as agent acquire property or interest therein rightfully belonging to his principal without full disclosure and free consent of his principal.” McKinney v. King, 498 So. 2d 387, 388 (Miss. 1986). If disputed, the attorney-in-fact’s actions must be shown to be within the principal’s intent when granting the power of attorney, in the best interests and for the benefit of the principal, and in accord with the duty of good faith owed by the attorney-in-fact to the principal. Any property or interest obtained in violation of the attorney-in-fact’s fiduciary duty “thereby is voidable by, and may be set aside by the principal or his estate.” Id. In re Estate of Johnson, 237 So. 2d at 707 (¶22).

There was substantial evidence that the transfer of the IRA funds was not done with Dorothea’s “free consent.”

Unsurprisingly, the court ruled that the duty of good faith and fair dealing trumps the powers of the POA, no matter how broad and comprehensive they might be. And that’s pretty much the result that you can expect in every similar case. You can tell your client that.

Reprise: What’s in a Name … Change?

November 22, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

Naming Names

April 15, 2015 § 7 Comments

Requests for name changes are something every family practitioner encounters.

There are two general categories: (1) the change of name only; and (2) correction or change of birth certificate.

If you are seeking to change a person’s name only, without affecting the birth certificate, you proceed under MCA 93-17-1(1). Most often, this type name change is in the context or wake of a divorce action, where the woman wants her surname restored to her former name. That is an ex parte matter, since there is no other interested party. Except, however, in the context of the divorce, in which the estranged spouse may object. I represented a woman in an ID divorce once, and her husband adamantly and quixotically refused to agree to any provision in the PSA allowing her to change her name. I advised her to agree, and threw in a separate name-change action after the divorce was final.

Divorces are not the only reason for a name change. Some people simply don’t like their given name, or want to honor someone. I signed a judgment not long ago for a young man who wanted to change his surname to that of his step-father, who had raised him and was the only father he had ever known. If you are changing the name of a child, both parents must join.

In neither of the above scenarios does the birth certificate change. In order to change the birth certificate, more is required.

If you wish to change any birth fact on the birth certificate, then you proceed under MCA 41-57-23, which requires that you make the State Registrar of Vital Records a party. Typically, lawyers simply mail a copy of the complaint to the State Board of Health with a request for a response, and the agency will file an answer, most often either admitting the relief sought or leaving it up to the court. If you fail to make the agency a party, the judge will send you back to the drawing board.

Keep in mind that changing birth facts requires some proof, more than mere assertions. If you are trying to correct an incorrect name on the birth certificate, produce driver’s license, Social Security card, school records, and affidavits showing the correct information. If you are trying to correct a birth date, baptismal records, affidavits, school records, and the like will support your claim.

Another kind of birth certificate change is set out in MCA 93-17-1(2), which allows the court to “legitimize” a child when the natural father marries the natural mother. Again, you must make the State Registrar of Vital Records a party.

Name changes are fairly simple. Just keep in mind that if it’s for an adult, it’s ex parte. If it’s for a child, the parents must be joined. If it effects a change in a birth certificate, the state must be made a party. It’s embarrassing and costly to drive two counties over only to have a judge say, “Sorry, you have to make the parents or the State Department of Health a party.”

Tagged: 

§ 7 Responses to Naming Names

  • The most interesting name change I have ever witnessed was after the Saints won the Super Bowl in 2010. One day while waiting to be heard in a case, I sat through a name change in which the Chancellor changed a little boy’s middle name to Brees. His first name was already Drew, making his new name Drew Brees _____. His mother had promised him before the season started that “if the Saints win the Super Bowl,” he could change his name to Drew Brees. She made good on her promise!

  • Lou Walker

    I practice in DeSoto County, and one of the issues I have seen is a Mississippi resident trying to change a Tennessee birth certificate. courts in TN will not hear the action because they parents are not TN residents. That leaves them in the position to ask a MS court to order the TN BVS to change a birth certificate. The TN BVS does not require any notice (I have called them and asked where to send notice and they told me not to. I also am licensed in TN. I have not had a problem thus far with TN recognizing the order to change the name from the MS court and changing the name on the birth certificate, but it is with a line through the old name and the corrected name noted above.
    I am concerned about one that I have recently been asked to do. TN law provides that BVS will change the name based on a court order and they recognize the out of state order that changed the name, but the BVS requires that a court order must specifically order them to block and delete if the name should be completely removed. I now have a couple who what that done, and I am concerned that the MS court will refuse to order the TN BVS to take any action. It is one thing to declare a name changed. It is entirely another to order an agency of another state to make specific changes to a birth certificate. I will try to remember to update this when I see how that works out!

    • Lou Walker

      Wow! I need an editor to check my grammar before I hit the enter key! Sorry for the mistakes.

    • I have signed orders for other states — Alabama and Louisiana for sure (maybe more that I do not recall) to change BC’s. In each case the lawyers told me that they had contacted the agency in the other state and were advised to get Mississippi court order. I was dubious at first, but the lawyers tell me that it worked.

  • Ben Conner

    Rule 81(d)(1) says “The following actions and matters shall be triable 30 days after completion of service of process…., to-wit: ….correction of birth certificate; alteration of name….” 81(d)(3) then says, “Complaints and petitions filed in the actions and matters enumerated…shall not be taken as confessed.”

    I’ve had to name-change three elderly ladies. In each case, the Department of Public Safety had refused to renew a drivers license because the name on the DL was not identical to the name on the Social Security Card. State statute requires that their first name from their birth certificate must appear as their first name on their drivers license. Each of these ladies had been called by their middle name all their lives. Each had Social Security records using [middle name][initial][recent married name]. Department of Public Safety now insists that all identification cards reflect the same name. I think it has something to do with the Patriot Act and its progeny. DPS won’t let them adopt a different “first name”. Each lady had used multiple variations and iterations of initials, names, and multiple surnames through the years. The problem presenting to the attorney practitioner is that these ladies could not renew their drivers licenses because their names were different as between social security card and drivers license.

    They do not need to correct a birth certificate because there is no error in the record of their birth. Discrepancies arose much later. They could change their social security card name, but then all of their employment, and credit history, private retirement benefit, tax records, and property ownership records would be inconsistent with their id cards.

    The solution is a name change. Not correction of birth certificate.

    So far, I’ve had good success by reciting all of the different iterations of name used by Complainant in her lifetime. Upon presentation of proof, I ask my chancellor to make a finding that each of these names is one and the same person as the Complainant. So far, a certified copy of this Judgment has satisfied DPS, Social Security, U.S. Customs (Passports), and private investment holders. Complainant picks one of her names and is told to stick to that one.

    Procedurally, there are two obstacles. First, 81d matters cannot be confessed. There must be a record. Second, 81d matters are not triable until 30 days after somebody is served with process. If Complainant names the Bureau of Vital Statistics as a party defendant, the special assistant AG assigned to BVS will answer and refuse to amend, correct, or alter the birth certificate and offer to make a “marginal notation” of the name change on their records. This procedure satisfies Rule 81 and provides a trackable history of identity changes in conformity with DPS, BVS, and the Patriot Act.

GAP Act: Walk-Through of a Conservatorship

November 20, 2019 § Leave a comment

Continuing with our overview of the GAP Act.

At the GAP ACT MATERIALS tab you will find some helpful material presented by Chancellor Charles Smith at the Meridian GAP Act seminar earlier this month, entitled “Conservatorship — Walk Through.”