August 15, 2018 § Leave a comment
In days of yore, mobile homes really were truly mobile. The wheels stayed on them, right there underneath in the cool dirt where Fido sleeps and lost yard toys go to be seen never more. Even then, though, mobility became more of a concept than reality as years scrolled by, tires dry-rotted, and the “trailer” settled into rust and decay.
In more modern times, mobile homes came to be settled on more permanent foundations, sans wheels, and even became affixed to the land. The legislature even passed laws allowing one to elect whether to treat the so-called mobile home as personal property, like an auto, or as a fixture on the land. Only problem, as you will know if you ever got tangled up in that kind of litigation, the law was not clear about how and when one made that election.
To the rescue came the Mississippi Legislature, which adopted HB 827, signed by the governor on March 19, 2018, and to take effect January 1, 2019. It offers an alternative process that may simplify the process.
Here is a summary of the new law from material presented by Senator Gray Tollison to Summer School for Lawyers:
This bill deals with the manner in which ownership of a manufactured or mobile home (manufactured home) is to be legally recorded as real property and as personal property. The bill authorizes the present system to remain in place for those homeowners, lenders, title insurers and retailers who prefer to use the current procedures in place today. It creates a new process that will be preferred and followed by other homeowners, lenders, title insurers and retailers.
Manufactured homes are generally personal property and are titled similar to motor vehicles by certificate of title; however, under certain circumstances a manufactured home may be so permanently affixed to the land that the law treats it like a site-built house as an improvement to real estate. Whether a manufactured home is personal property or real estate is very important to the homeowner, lender and title insurer. This bill contains specific provisions as to when a manufactured home is considered real estate for both ad valorem tax and bankruptcy law purposes. These provisions respond to questions raised by some lenders and title insurers as to whether a manufactured home should be considered real estate or personal property. This will assist lenders in perfecting security interests. It will also allow title insurers to rely upon a more specific procedure for addressing issues concerning the ways in which manufactured homes may be real property or personal property.
This bill authorizes the homeowner to elect to:
Declare at the time of registration that the manufactured home is to be classified
as real estate for ad valorem tax purposes only as authorized under current law, or
To permanently retire the title to the manufactured home by filing an affidavit of
If the homeowner elects to permanently retire the title to the manufactured home, the manufactured home becomes a part of the real estate for all purposes until an affidavit of severance or affidavit of destruction is filed of record. If the homeowner files an affidavit of severance, the manufactured home is retitled and treated as personal property.
Attorneys or title companies closing these transactions will examine the liens reflected on the certificate of title (for personal property) and in the land records (for real property) to insure priority of liens.
August 14, 2018 § 5 Comments
It was back in 2012 that I reported the death of Evidence as a required course at both the Ole Miss and MC law schools. You can re-visit that post at this link, if you care to.
Among my several points bewailing that Evidence was no longer a required course was this:
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
Well, the worm has, so to speak, turned. In her address to the Ole Miss law alumni at the Mississippi Bar Convention last month, Dean Susan Duncan reported that Evidence is returning to the OM Law curriculum as a required course. A legislator with whom I visited told me that MC Law is following the same path.
I would not want to take my ailments to a doctor who has not studied Human Anatomy. Evidence is the Human Anatomy of the legal profession.
August 13, 2018 § 3 Comments
Elle Adams filed a federal suit against the chancellor in her custody/contempt case, and, on the eve of trial filed an “emergency motion” for recusal, reasoning that the judge would be biased against her because of the suit. Elle also made other accusations against the chancellor.
In its June 12, 2018, decision in Adams v. Rice, the COA by Judge Barnes rejected Elle’s arguments. Since the opinion is a nice précis on the law of recusal, I am excerpting it here:
¶15. Elle argues that the chancellor should have recused herself because Elle had filed a federal lawsuit and judicial complaint against her alleging bias, discrimination, and misconduct. [Fn omitted] Elle reasoned that her legal actions against the chancellor would make her “even more biased” and “incapable of making appropriate decisions”; thus, recusal was necessary.
¶16. Mississippi Rule of Appellate Procedure 48B explains the proceedings on a motion to disqualify the trial judge. If a trial judge denies a motion seeking his or her recusal, the movant may seek review of the judge’s action by the Mississippi Supreme Court. Id.
¶17. The day before the hearing, Elle filed a pro se emergency motion to recuse the chancellor before the supreme court, making many of the same allegations as on appeal. Additionally, she argued that the chancellor’s “hostile acts” infringed upon her civil rights because she was denied a Spanish interpreter at the March 31, 2016 hearing. Further, she claimed the chancellor and her attorney had “ex parte communication” which was “disparaging and inappropriate,” questioning her ability to understand English, among other matters. The Mississippi Supreme Court dismissed the motion the same day, without prejudice, because Elle had failed to first seek recusal from the chancellor herself before asking for the supreme court’s review and failed to serve the chancellor with the motion. [Fn omitted]
¶18. The rule concerning disqualification of a judge is contained in Canon 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. It states that “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances . . . including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party . . . .” The Mississippi Supreme Court has held “that the objective reasonable person knowing all of the circumstances is the proper standard” to determine if a judge should have recused herself. Dodson v. Singing River Hosp. Sys., 839 So. 2d 530, 532-33 (¶9) (Miss. 2003). “[R]ecusal is required when the evidence produces a reasonable doubt as to the judge’s impartiality.” Id. at 533 (¶13). However, it is presumed that judges are qualified and unbiased. Id. at (¶10). The appellate court applies a manifest-error standard when reviewing a judge’s refusal to recuse. Sullivan v. Maddox, 122 So. 3d 75, 81 (¶15) (Miss. Ct. App. 2013) (citing Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss. 1997)).
¶19. Elle claimed the chancellor made disparaging comments about her and her family in open court and “ex parte communication” with one of Elle’s numerous attorneys before the chancery court. Also, apparently because of the chancellor’s unfavorable ruling, Elle claims that the chancellor had an “unconscious bias” against her as exhibited at the March 31 hearing (which Elle did not attend). Further, Elle argues that the chancellor could not be impartial knowing that Elle had filed a federal lawsuit and state bar complaint against her. Elle requests the judgment against her be reversed due to the alleged evidence of bias.
¶20. At the March 31, 2016 hearing, the chancellor acknowledged for the record that while she had not been served with a federal lawsuit, she was aware that Elle had filed one in Alabama against her, John, and the cities of Starkville and Columbus, Mississippi. The chancellor stated for the record that she read the complaint but found it proper to move forward with the hearing.
¶21. After reviewing the transcripts, we do not find that the chancellor made any disparaging personal comments about Elle. Nor did the transcript indicate any evidence of bias towards Elle, who failed to attend two hearings; one on motions that she filed on March 22, and the final hearing on March 31. However, the chancellor did find Elle’s “attempts to manipulate the judicial system . . . appalling.” We cannot say that it was disparaging or prejudicial that the chancellor reprimanded Elle on the record for not pursuing her own defense. Moreover, Elle did not file a motion to recuse the chancellor in the chancery court even after the Mississippi Supreme Court entered its order. Accordingly, the issue is barred.Further, there is no evidence that the chancellor’s impartiality might be reasonably questioned; therefore, the issue is also without merit.
Not mentioned in the opinion is Uniform Chancery Court Rule 1.11, which spells out the procedure required to move for recusal:
Any party may move for the recusal of a judge of the chancery court if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.
Elle never filed such a motion in the trial court.
In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.
It’s troubling to me when litigants try to manipulate the system to their advantage by making attacks on the judge assigned the case. Here, Elle tried to create grounds for recusal by filing the federal lawsuit and the judicial-performance complaint. The chancellor rightly characterized the efforts as “appalling.” I could not agree more.
It’s troubling to me when anyone, seeking to advance their own agenda, attacks the judge and the ruling and tries to negate it rather than pursuing appeal.
August 10, 2018 § Leave a comment
In a post I titled Running Toward, back in 2014, I called attention to those at the Boston Marathon bombing who ran to help the injured, oblivious to the danger, instead of running away. There had already been two bombs that sprayed the crowd with deadly shrapnel. Who knew how many more there were?
Recently I ran across this moving piece in The Sun magazine:
Early one morning several teachers and staffers at a Connecticut grade school were in a meeting. The meeting had been underway for about five minutes when they heard a chilling sound in the hallway. (We heard pop-pop-pop, said one of the staffers later.)
Most of them dove under the table. That is the reasonable thing to do, what they were trained to do, and that is what they did.
But two of the staffers jumped, or leapt, or lunged out of their chairs and ran toward the sound of bullets. Which word you use depends on which news account of that morning you read, but the words all point in the same direction — toward the bullets.
One of the staffers was the principal. Her name was Dawn. She had two daughters. Her husband had proposed to her five times before she’d finally said yes, and they had been married for ten years. They had a vacation house on a lake. She liked to get down on her knees to paint with the littlest kids in her school.
The other staffer was a school psychologist named Mary. She had two daughters. She was a football fan. She had been married for more than thirty years. She and her husband had a cabin on a lake. She loved to go to the theater. She was due to retire in one year. She liked to get down on her knees to work in her garden. . . .
Dawn and Mary jumped, or leapt, or lunged toward the sound of bullets. Every fiber of their bodies — bodies descended from millions of years of bodies that had leapt away from danger — must have wanted to dive under the table. . . .
But they leapt for the door, and Dawn said, Lock the door after us, and they lunged right at the boy with the rifle.
Dawn and Mary, Brian Doyle, August 2013
I commend The Sun to anyone who sees value in having their assumptions and preferences challenged and questioned.
August 7, 2018 § 2 Comments
Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?
That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.
In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:
¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.
¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.
The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.
I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.
As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.
August 6, 2018 § Leave a comment
Kappi Jeffers filed suit against her sister, Korri Saget, claiming that their mother had been subject to Korri’s undue influence in changing life insurance and investment account beneficiaries, and making a will.
The will contest was the subject of a jury trial that resulted in a mistrial. All parties agreed that the evidence at the jury trial was identical to that on the remaining issues, and they submitted the case to the chancellor on the record made at the trial. The chancellor ruled that the evidence did not support a finding of undue influence, and Kappi appealed.
The COA affirmed in an April 23, 2018 opinion in Estate of Saget: Jeffers v. Saget, by Judge Greenlee. Since this opinion illuminates not only the law on point, but also shows how facts in these cases typically unfold, I have quoted at length:
¶9. Kappi raises three issues on appeal. First, she argues that the chancellor erred in finding that she, as the contestant, had the burden of proving undue influence. Secondly, she argues that the chancellor erred by not finding that once a confidential relationship was found between Korri and Rae, a presumption of undue influence arose. Thirdly, she argues that the chancellor erred in applying an incorrect legal standard regarding the presumption of undue influence. Finding that the chancellor’s determination was not manifestly in error, we affirm.
¶10. “Mississippi law is well-settled regarding . . . confidential relationships and undue influence.” Wheeler v. Wheeler, 125 So. 3d 689, 693 (¶12) (Miss. Ct. App. 2013). This law applies equally to testamentary and inter vivos gifts. Id. When asserting undue influence, the initial burden is on the contestant/plaintiff to show “by clear and convincing evidence, the existence of a confidential relationship between a grantor and a defendant grantee[.]” Howell v. May, 983 So. 2d 313, 318 (¶14) (Miss. Ct. App. 2007). The supreme court has stated that such a “confidential relationship arises when a dominant, over-mastering influence controls over a dependent person or trust, justifiably reposed.” Wright v. Roberts, 797 So. 2d 992, 998 (¶17) (Miss. 2001). Once the existence of a confidential relationship is shown, a presumption of undue influence arises, and “the burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence that the gift was not the product of undue influence.” Id. at (¶16). Further, the supreme court has enumerated several factors to be considered when determining the existence of the confidential relationship:
(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.
In re Estate of Lane, 930 So. 2d 421, 425 (¶13) (Miss. Ct. App. 2005) (quoting In re Dabney, 740 So. 2d 915, 919 (¶12) (Miss. 1999)).
¶11. In the present case, Kappi asserts that the chancellor found that the required confidential relationship existed, and, therefore, the burden shifted to Korri to prove the nonexistence of her undue influence over Rae. However, Kappi’s assertion is neither supported by the evidence nor the record. The chancellor did not make a finding that Kappi had proven the required confidential relationship existed between Rae and Korri. [Fn 5] Moreover, in her judgment, the chancellor discussed and analyzed all seven of the Lane factors. From this analysis it is apparent that there was a lack of clear and convincing evidence of the existence of the required confidential relationship.
[Fn 5] The chancellor’s “Amended Final Judgment” does not find that a confidential relationship existed nor does it explicitly state that Kappi failed to prove a confidential relationship by clear and convincing evidence.
¶12. The chancellor, in her discussion of the Lane factors, found that: (1) insufficient evidence was produced to show Rae was taken care of by others; (2) Rae and Korri had a close relationship; (3) insufficient evidence was produced to show Rae was provided transportation or medical care by others; (4) Rae and Korri maintained a joint bank account; (5) Rae was not physically or mentally weak as she “knew what she wanted and was very clear about it;” (6) Rae was in poor health; and (7) there was no power of attorney. These determinations by the chancellor were supported by substantial evidence. We further note that Korri resided in Houston, Texas and Rae continued to live in Vicksburg, Mississippi until her death—over a year after the changes were made to the investment account designations. The chancellor was correct in not making a finding that clear and convincing evidence showed that Korri had exerted the required confidential relationship over Rae. The chancellor went further, finding that there was no undue influence exerted upon Rae in changing the beneficiaries on the investment accounts.
¶13. During the hearing on the matter, the chancellor heard from several witnesses including some of Rae’s family and friends. The chancellor found that there was conflicting testimony as to whether Rae was taken care of by others and whether Rae was provided transportation and medical care by others. Therefore, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006).
¶14. While the record clearly shows that Rae was in poor health, having had numerous surgeries and health issues, the record also indicates that she was a strong-willed woman who “knew what she wanted and was very clear about it.” Several non-family witnesses who spoke with Rae on the day she made the changes to the investment account beneficiaries testified that Rae appeared neither physically nor mentally weak. One such witness, Mittie Town Warren, a close friend of Rae’s, testified that “[Rae] knew what she had” and that “[w]hen she made her mind to do something, then that’s what she was going to do and she did it.” Further, Warren testified that she would see Rae two to three times per week and that on August 23, 2012, “[Rae] knew exactly what she was doing. Nobody influenced her.” Notwithstanding the assertion of Kappi on appeal, the chancellor did not find that Korri had the required confidential relationship with Rae. Furthermore, the chancellor was correct in finding that the beneficiary changes to the accounts were valid. [Fn 6]
[Fn 6] Though appellate courts would prefer that trial court judges make explicit findings on issues we review on appeal, when chancellors make decisions based upon substantial evidence and discuss the required factors leading to informed decisions, we should not reverse for form over substance. See Spain v. Holland, 483 So. 2d 318, 320 (Miss. 1989).
Some comments next week.
August 3, 2018 § Leave a comment
“What if the catalyst or key to understanding creation lay somewhere in the immense mind of the whale? … Suppose if God came back from wherever it is he’s been and asked us smilingly if we’d figured it out yet. Suppose he wanted to know if it had finally occurred to us to ask the whale. And then he sort of looked around and he said, ‘By the way, where are the whales?'” — Cormac McCarthy
“You can change the terms, you can change the allowable limits, you can do the risk assessment — all these things — but in the end, the fact is that you and I drink that water. You and I breathe that air. You and I live here.” — Winona LaDuke
“For most of history, man has had to fight nature to survive; in this century he is beginning to realize that, in order to survive, he must protect it.” — Jacques Cousteau
August 1, 2018 § 1 Comment
Ordinarily, one must file an appeal to the MSSC from a final judgment within 30 days of the date of entry of that judgment. MRAP 4(g), however, allows the trial judge to extend the time within which to appeal.
After the State of Mississippi had obtained an injunction against him for selling watered-down gasoline at his convenience store, Ali Almasri contested the action in chancery court proceedings. The chancellor entered a permanent injunction on November 23, 2016. On January 17, 2017, Almasri filed a motion to extend the time to appeal stating that he had been unable to “complete a personal analysis of his business” within the 30-day appeal time. On February 2, 2017, the chancellor signed the order extending the appeal time to February 6, 2017. Almasri filed his notice of appeal on January 30, 2017.
On appeal, the State argued that Almasri had failed to demonstrate excusable neglect that would justify extension of the appeal time after the time for appeal had elapsed.
In Almasri v. Hyde-Smith, decided June 12, 2018, the COA agreed and dismissed the appeal. Judge Greenlee’s opinion for a unanimous court explained:
¶13. Our appellate procedural rules require that a notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). Should a party need additional time to file a notice of appeal, the trial court may grant an extension under Rule 4(g), which provides:
The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. (Emphasis added).
¶14. In the instant case, the chancery court entered the judgment appealed from on November 23, 2016. The thirty-day appeal period therefore ended on December 23, 2016. Almasri filed his motion to file an out-of-time appeal on January 17, 2017, fifty-five days after the judgment was entered. Therefore, in order to receive additional time to file his notice of appeal, Almasri had the burden of showing that his failure to file a timely notice was a result of “excusable neglect.” Id.; Schmitt v. Capers (In re Estate of Ware), 573 So. 2d 773, 775 (Miss. 1990).
¶15. We review a trial court’s excusable-neglect determination with a bifurcated standard. Nunnery v. Nunnery, 195 So. 3d 747, 751 (¶12) (Miss. 2016). To the extent that the trial court’s excusable-neglect determination involves the determination of legal principles, we will conduct a de novo review. Long v. Mem’l Hosp. at Gulfport, 969 So. 2d 35, 38 (¶5) (Miss. 2007). “[W]hen . . . the trial judge’s decision rests upon an examination of facts, we review for abuse of discretion and to ensure the decision is supported by substantial evidence.” Nunnery, 195 So. 3d at 751 (¶12). “Which standard to apply is a decision to be made on an ad hoc basis.” Id. (citing Bennett v. McCaffrey, 937 So. 2d 11, 14 (¶8) (Miss. 2006)).
¶16. “An excusable-neglect determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Id. at 752 (¶15) (internal quotation mark omitted). The Mississippi Supreme Court has adopted the following four-part test for excusable-neglect: “(1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.” Id. (internal quotation marks omitted) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993)).
¶17. “[E]xcusable neglect is a very strict standard.” Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002) (internal quotation mark omitted). “[S]imple inadvertence or mistake of counsel or ignorance of the rules usually does not” constitute excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶9) (Miss. 2010); Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186 (¶11) (Miss. 2002). “Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166, 169 (¶13) (Miss. Ct. App. 1998).
¶18. In his motion for an extension of time, Almasri stated that “his decision [to appeal] was based upon his own personal business analysis that was not completed until after the [thirty][-]day [filing] period . . . had expired.” Further, he argued that “he at all times acted in good faith” and “his considered decision should amount to good cause . . . to grant his requested extension.” Again, a motion for an extension filed after expiration of the thirty-day filing period requires a showing of excusable neglect, rather than good cause. In re Estate of Ware, 573 So. 2d at 775.
¶19. From the record, it is unclear whether the chancellor granted Almasri’s motion based on good cause or excusable neglect. However, even assuming the chancellor used the correct standard in making his decision, we find that Almasri did not demonstrate excusable neglect. Almasri knew the entry date of the final judgment against him, and there is no assertion that he was unaware of his deadline to file a notice of appeal. Further, Almasri offers no evidence of why he was unable to complete his business analysis within the thirty-day period following final judgment or why such would be excusable neglect. We thus find Almasri’s reason for delay was within his reasonable control. And although Almasri may have acted in good faith, “[e]quity aids the vigilant and not those who slumber on their rights.” In re Estate of Winding, 783 So. 2d 707, 711 (¶15) (Miss. 2001).
¶20. Under Rule 4(g), the chancellor’s discretion to grant Almasri’s motion for an extension was limited; he only had authority to grant the motion upon a showing of excusable neglect. Almasri made no such showing to the trial court. Therefore, we hold that the chancellor abused his discretion in granting Almasri’s motion to extend the time in which to file a notice of appeal.
¶21. This appeal is dismissed for lack of jurisdiction.
I am willing to bet that, had the chancellor said something like, “This isn’t enough; you have to make a record on the elements of excusable neglect,” he would have been accused of nitpicking and met with a whining plea just to sign the order and get it over with. Sometimes, especially when the judge has many other things to tend to, it’s easier for the judge just to shrug his shoulders and say, “Okay, I’ll do it your way.”
July 31, 2018 § Leave a comment
Yesterday we visited the adoption case In re DDH: Gray and Dotch, focusing on the decision as it relates to termination of parental rights. There is another component to the decision that needs addressing: the requirement in MCA 93-17-3 that a married person seeking to adopt must be joined by his or her spouse.
In 99.9% of adoption cases, the spouses are joined in the case because they are both seeking to adopt the child. But what about where only one spouse is wanting the adoption? Does the other spouse still have to join?
In DDH, Gray, the adoptive father was married to a woman other than Dotch. Gray petitioned only in his name, presumably because it was only he seeking to adopt while keeping intact Dotch’s rights as the mother. Recall that Dotch had always acted in loco parentis toward the child because he and Dotch both believed for most of her life that he was the father. Even after they discovered that he was not, however, he continued his in loco parentis role.
In its opinion, the court addressed the question whether Gray’s wife should have joined in his petition:
¶13. The first section to consider is Section 93-17-3(4). Section 93-17-3(4) provides in pertinent part that “[a]ny person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition.” Miss. Code Ann. § 93-17-3(4) (emphasis added). The petitioners argue that Gray’s wife should not have to join the petition, and the statute “limits the rights of a married person to adopt without his/her spouse being joined as a party to the adoption.”
¶14. Section 93-17-3(4)sets out requirements for an adoption, detailing the jurisdiction and venue for adoption proceedings and detailing the petition’s requirements—such as the joinder of both spouses when married and a doctor’s or nurse practitioner’s certificate of the health of the child. Miss. Code Ann. § 93-17-3(4). The section also governs home studies for adoptions, changing the child’s name, and additional considerations for jurisdiction. Id.
¶15. Section 93-17-3 is unambiguous. The requirements are clear, and we see no reason why they should not be followed in the instant case. Simply put, Gray’s spouse must join him in his petition to adopt D.D.H. Miss. Code Ann. § 93-17-3(4). The plain language of Section 93-17-3(4) does not provide that the joinder of Gray’s spouse means that she will receive any custodial or parental rights [fn 2] or that she is adopting the child. It requires only that she join in Gray’s request.
[Fn 2] Gray’s wife would merely assume the role of step-parent.
¶16. In an adoption proceeding, the best interests of the child are paramount, and the Court reviews adoptions to ensure the chancellor considered the best interests of the child. In re Adoption of D.N.T., 843 So. 2d 690, 706 (Miss. 2003); In re Adoption of P.B.H., 787 So. 2d 1268, 1277 (Miss. 2001). The requirement to include the spouse on the adoption petition, even if the spouse is not the adopting party, enables the best interests of the child to be served. If the spouse is joined, the chancellor would then have the opportunity to consider and, if needed, question the spouse who regularly would be in the adopted child’s life as a step-parent. Further, requiring the spouse to join provides the spouse notice of the adoption petition—as the final decree could possibly affect the spouse’s rights and the inheritance rights of the spouse’s children. Therefore, Section 97-13-3(4)’s requirement to include Gray’s spouse in the adoption proceeding ensures that the best interests of D.D.H. are considered and should be followed in this case.
In Part II of its opinion (¶¶30-33), the court declined to rule on the statute’s constitutionality.