The Effect of Harris v. Harris

August 21, 2019 § 1 Comment

Back in February, 2018, I posted about the MSSC’s ruling in Harris v. Harris, which overruled Spalding v. Spalding, regarding the impact of Social Security (SS) retirement benefits on alimony. Spalding had held that the alimony-paying party is entitled to a credit against alimony in the amount of the other party’s receipt of SS benefits derived from the alimony-paying party’s work record. Harris held that receipt of SS does not automatically trigger modification. Here is a link to my post.

In Alford v. Alford, a July 23, 2019, COA case about which I posted yesterday, Judge Greenlee wrote a specially concurring opinion raising some concerns about Harris and how it will be applied:

¶37. I concur with the majority. However, because I am concerned about the effect Harris v. Harris, 241 So. 3d 622 (Miss. 2018), may have in this case and other cases, I specially concur.

¶38. Our supreme court’s decision in Harris has the potential to greatly impact those in our population who are aging and under a court-ordered duty of support. For our citizens who earn their wages through compensation from work for others, there comes a time that many should at least consider retirement, if retirement is not required or decided for them. The litigants in this case, if not retired, are rapidly approaching retirement.

¶39. In such cases, the problem chancellors face is in reliably predicting the impact of retirement upon the earnings of the parties. Harris should not mean that once retirement occurs to one or both of the parties (although foreseeable at the time of the initial support order) that the parties are foreclosed from asking the court for a modification based on a material and substantial change in circumstances. See Plummer v. Plummer, 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (modification of alimony requires proof of a material and substantial change in circumstances since the date of the prior judgment). If the application of our law is to foreclose a litigant’s request for a modification of periodic alimony upon that party’s retirement, such could mean that in order to meet the amount required, that party must not retire. If that is the case, has our law not imposed a servitude upon a citizen until death? Retirement is a substantial change to an individual’s circumstances, and Harris should not be allowed to hinder such a change from being brought before the chancellor for consideration.

This is a conundrum I have never seen directly addressed by our appellate courts: retirement is reasonably foreseeable and even necessary at some age. Retirement almost always results in a downward shift in the retiree’s income. How does that foreseeability affect the right to request modification? I think Judge Greenlee makes a valid point.

No Attorney’s Fees for You After All

August 20, 2019 § Leave a comment

Nat Alford and his wife Linda consented to a divorce on the ground of irreconcilable differences, leaving it up to the chancellor to adjudicate several issues, including whether Linda should be awarded attorney’s and expert-witness fees. Linda testified that she had been “struggling” to make monthly payments against the more than $24,000 billed by her attorney.

The chancellor ordered Nat to pay $5,000 toward Linda’s attorney’s fees, and $6,000 toward expert witness fees. Nat appealed, and one issue he raised was that the award was erroneous.

The COA reversed and rendered in Alford v. Alford, decided July 23, 2019. Judge Jack Wilson wrote for the majority:

¶31. “An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay.” Gray v. Gray, 745 So. 2d 234, 239 (¶26) (Miss. 1999). “The party seeking attorney’s fees is charged with the burden of proving inability to pay.” Riley v. Riley, 846 So. 2d 282, 287 (¶23) (Miss. Ct. App. 2003) (citing Jones v. Starr, 586 So. 2d 788, 792 (Miss. 1991)). “It is well settled in Mississippi that if a party is financially able to pay an attorney, an award of attorney’s fees is not appropriate. Furthermore, if the record is insufficient to demonstrate the wife’s inability to pay the attorney’s fees, then an award of the fees is an abuse of discretion.” Gray, 745 So. 2d at 239 (¶26) (citations omitted).

¶32. At trial, Linda offered a list of invoice amounts prepared by her attorney that showed that he had billed her a total of $24,572.94, which included the trial. Linda also requested expert witness fees (for Paris) in the amount of $6,000. Linda and her attorney both testified that she had been paying $1,000 per month in attorney’s fees, although neither of them could say how much she had paid in total. Linda also testified that she had been paying $500 per month to Paris’s firm, although she did not state how much she had paid or how much was left to pay. Linda testified that she had been able to make her monthly payments to her attorney and expert, although she said that she had “been struggling to” do so. Linda’s attorney testified regarding his time and fees and Linda’s ability to pay. On cross examination, he was asked whether the equitable distribution of the marital assets would provide Linda with sufficient “financial resources to pay [her fees].” In response, he stated, “I would certainly hope that the [c]ourt awards [Linda] what [she] requested, which is 50 percent of the marital assets. If that occurs, then she certainly would have the money to pay me at that time. I would agree with that.”

¶33. Following the trial, the chancellor found that Linda had the ability to pay some but not all of her attorney’s fees. The chancellor then ordered Nat to pay her $5,000 for attorney’s fees and $6,000 for expert witness fees.

¶34. We conclude that the award of attorney’s fees and expert witness fees was an abuse of discretion because “the record is insufficient to demonstrate [Linda’s] inability to pay.” Gray, 745 So. 2d at 239 (¶26). Linda testified that she had been able to pay her attorney’s fees and expert witness fees in monthly installments of $1,000 and $500, respectively, and she failed to show how much she had already paid or what she still owed. In addition, Linda was awarded bank accounts with a combined balance of approximately $17,000, a Merrill Lynch account with a balance of $134,115.06, and retirement accounts with a combined balance in excess of $375,000. Linda received nearly half of the marital assets, which her attorney agreed would be sufficient to allow her to pay her attorney’s fees. There is nothing in the record to show that Linda would have been required to liquidate any significant part of her savings to pay her attorney or her expert. Indeed, as stated, the record does not even show what Linda owed at the time of trial. On these facts, Linda failed to meet her burden of establishing an inability to pay her fees. See, e.g., Dauenhauer v. Dauenhauer, 271 So. 3d 589, 601 (¶51) (Miss. Ct. App. 2018) (holding that award of attorney’s fees was an abuse of discretion where the spouse had already paid part of his fees in installments and had sufficient assets to pay the balance). Accordingly, the award of attorney’s fees is reversed and rendered.

” … [S]he failed to show how much she had already paid or what she still owed.” So how could one expect the chancellor to make an accurate ruling? I will reiterate what I have said here many times: if you expect to get your client an award of attorney’s fees you have to put some time and thought into what it will take to prove entitlement to that award. Close will not get the cigar. Slapdash won’t even come close.

The chancellor clearly concluded that Linda should have help with some of her attorney’s and expert fees. What the chancellor was not given to support her conclusion, however, was: (1) the amounts Linda had paid; (2) the remaining balances; (3) more detail about the financial strain the fees had imposed on her; and (4) what financial impact it would have on her equitable distribution to have it reduced by attorney’s fees.

I also thought it was interesting that Linda’s attorney was allowed to testify, apparently without objection, to Linda’s ability to pay. That, to me, is a fact issue in the case, and attorneys are not allowed by ethics to be fact witnesses except as to what they are owed in attorney’s fees. I have stopped attorneys in situations like that and directed them to limit their testimony to how much is owed, what services were rendered, what has been paid, and the employment contract. Maybe that’s just me.

Law of the Constructive Trust

August 19, 2019 § Leave a comment

In his partially concurring and partially dissenting opinion in White v. White, a COA case decided May 21, 2019, Judge McCarty spelled out the law of constructive trusts. It’s something you may be able to use in court.

¶27. “A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property.” Presbytery of St. Andrew v. First Presbyterian Church PCUSA of Starkville, 240 So. 3d 399, 405 (¶27) (Miss. 2018). As the Supreme Court has held, this “is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.” McNeil v. Hester, 753 So. 2d 1057, 1064 (¶23)
(Miss. 2000).

¶28. The remedy is broad:

A constructive trust is one that arises by operation of law against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Id. at (¶24).

¶29. In modern times, four elements must be met before a constructive trust will be imposed: “(1) a confidential or fiduciary relationship which must normally be shown; (2) a promise by defendant; and (3) transfer by plaintiff to defendant in reliance on defendant’s promise (4) under circumstances that constitute unjust enrichment.” James W. Shelson, Mississippi Chancery Practice, § 41:11 (2018). Without a confidential relationship, there can be no constructive trust. See Bond v. Bond, No. 2017-CA-00599-COA, 2018 WL 5603679, at *1 (¶5) (Miss. Ct. App. Oct. 30, 2018) (A claim “to a constructive trust” will be “foreclosed upon by [the] failure to show that a confidential relationship existed.”). Likewise, if there is a confidential relationship but “no abuse of confidence,” the court cannot create a trust. In re Estate of Hood, 955 So. 2d 943, 949 (¶22) (Miss. Ct. App. 2007).

¶30. “Clear and convincing proof is necessary to establish a constructive trust.” McNeil, 753 So. 2d at 1064 (¶25). It “is a question of law” whether this legal remedy should be applied “to the set of facts at hand.” Id. at (¶26). As with any case involving an allegation of a confidential relationship, this remains a fact-intensive inquiry, and can only be reached once a chancellor has taken proof on the existence of a confidential relationship. Id. at (¶27).

¶31. Many years ago the burden to create a constructive trust was stated plainly: “There must be conduct influential in producing the result, and but for which such result would not have occurred amounting, in the view of a court of equity, to fraud in order to save the case from the Statute of Frauds.” Lipe v. Souther, 224 Miss. 473, 483, 80 So. 2d 471, 475 (1955).

The Spirit of Moderation

August 16, 2019 § 2 Comments

From an address by Judge Learned Hand (1872-1961) at the proceedings of the 250th anniversary of the Supreme Judicial Court of Massachusetts, November, 1942:

And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of “right and wrong — between whose endless jar justice resides.” You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say.

What will be left of these principles? I do not know whether they will serve only as counsels; but this much I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon its courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens — real and not the factitious product of propaganda — which recognizes their common fate and their common aspirations — in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigor within themselves to withstand the winds and weather of an indifferent world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived.

Quoted in The Practical Cogitator, Charles P. Curtis, Jr. and Ferris Greenslet Eds., Houghton Mifflin 1962.

Note: The phrase “right and wrong — between whose endless jar justice resides” is from Shakespeare’s Troilus and Cressida: ““Force should be right; or rather, right and wrong, between whose endless jar justice resides, should lose their names, and so should justice too. Then everything includes itself in power, power into will, will into appetite;and appetite, an universal wolf, so doubly seconded with will and power, must make perforce an universal prey and at last eat up himself.”

In Loco Parentis and the Natural Parent Presumption

August 14, 2019 § 1 Comment

Most all of us who spend time in chancery court are familiar with this melancholy scenario or something similar: mom and dad are using drugs and are living a shiftless existence; they leave their baby with grandparents; then, after a while, the parents — or one of them — get cleaned up and appear suddenly demanding to reclaim the baby. A courtroom fight ensues, with hard feelings and injured relationships.

We know from Davis v. Vaughn, 126 So. 3d 33, 36 (Miss. 2013) that the mere fact that the grandparents have stood in loco parentis is not enough to defeat the claim of the natural parent. In Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012), the court said, ” … grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption is first overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.”

The latest case on point came down from the COA on June 25, 2018, in Seale v. Thompson. It won’t take you long to read Judge McCarty’s succinct six-page opinion that cites only two cases (Davis and Smith) in the body and Albright in a footnote. The decision affirms the chancellor’s ruling that the grandfather had overcome the natural-parent presumption by establishing his son-in-law’s unfitness due to drug abuse. It’s a sad and all-too-familiar scenario for those of us who toil in chancery.

The Drop-Dead Deadline to File a Rule 59 Motion

August 13, 2019 § 3 Comments

A motion to alter or amend a judgment per MRCP 59(e) must be filed within ten days of the date when the judgment is entered or it is untimely.

The COA’s decision in Barbaro v. Smith, about which we posted yesterday, includes this reminder:

¶62. Rule 59(e) of the Mississippi Rules of Civil Procedure states that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e) (emphasis added). “This ten-day requirement is absolute, and the court is not permitted to extend this time period.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190-91 (¶11) (Miss. 2008) (quotation marks omitted). A motion is “filed” when it is received by the clerk—not when it is placed in the mail. Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So. 3d 1242, 1250 (¶16) (Miss. Ct. App. 2018). Barbaro’s motion to alter or amend the judgment was filed twenty-two days after the judgment was entered. Therefore,
the chancellor correctly held that it was untimely.

Two crucially important points: (1) the judge cannot extend the time to file; and (2) the motion is not filed until it is actually received by the clerk.

Oh, and keep in mind that if you file a R59 motion later than 10 days after entry of the judgment, it will be treated as a R60 motion, which does not have the effect of tolling the time to appeal.

The Price of Making Up a Story

August 12, 2019 § 1 Comment

Should the custodial mother lose custody because she: (1) planted drugs in the father’s truck and had him arrested; and (2) fabricated a drug screen on her minor son that purported to show that the father had given the child drugs?

The chancellor thought so in the modification case between Tamara Barbaro and her ex, Coty Smith, and modified custody. Barbaro, aggrieved, filed an appeal.

In Barbaro v. Smith, handed down July 16, 2019, the COA affirmed. The facts and procedural history alone extend to 18 1/2 pages, so you might want to check them out. Here is how Judge Jack Wilson addressed Barbaro’s argument that the chancellor erred in finding that there had been a material change in circumstances that adversely affected the child:

¶72. A party who requests a modification of child custody “must prove by a preponderance of evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996) (quoting Ash v. Ash, 622 So. 1264, 1265 (Miss. 1993)) (emphasis omitted). The chancellor must  consider the “totality of the circumstances” to determine whether such a change in circumstances has occurred. Id. (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1996)). “[I]f such an adverse change has been shown, the moving party must show by [a preponderance of the] evidence that the best interest of the child requires the change of custody.” Id. (quoting Ash, 622 So. 2d at 1266).

¶73. The chancellor found that Barbaro’s participation in a scheme to plant illegal drugs in Smith’s truck and her tampering with Will’s drug test had resulted in a material change of circumstances. The chancellor also found that Barbaro’s actions had necessitated restrictions on visitation and an abrupt, emergency change in custody, which adversely affected Will—as shown by his being more clingy and insecure. Finally, citing Riley, supra, the chancellor found “that there could have been [additional] adverse harm to [Will] had Barbaro’s actions been successful” because the “father-child relationship would have been severed.”

¶74. Barbaro argues that the chancellor erred because the evidence generally showed that she was a fit parent and even a good mother and because Will had not yet suffered harm. She further argues that even if she did help plant drugs or falsified a drug test, the charges against Smith were ultimately dropped, and the “alleged threat of harm is moot.”

¶75. Barbaro’s argument takes too narrow a view of the concept of a material and adverse change in circumstances. In addressing this issue, the chancellor must consider the “totality of the circumstances.” Riley, 677 So. 2d at 743 (quoting Tucker, 453 So. 2d at 1297). “The concept [of a material change in circumstances that adversely affects the child] is intended to encompass its broadest possible meaning in order to protect children,” including but not limited to changes that adversely affect the “child’s mental and emotional well-being.” Marter v. Marter, 914 So. 2d 743, 748-49 (¶14) (Miss. Ct. App. 2005) (citing Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997)).

¶76. In Riley, the Supreme Court held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley, 677 So. 2d at 744. The Court held that a change in custody may be warranted “even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Id. The Court stated that “[t]he test . . . for custody  modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Id. at 745.

¶77. As we have explained above, there is substantial evidence to support the chancellor’s factual findings that Barbaro participated in a scheme to plant drugs and tampered with Will’s drug test. The chancellor further found that Barbaro’s extreme conduct threatened harm to Will because, if successful, it would have resulted in Smith’s imprisonment and likely severed the father-child relationship. The chancellor concluded that this clear threat of harm to Will was a material and adverse change in circumstances—even though, thankfully, Barbaro was not successful, and the specific threat to Will was averted. We cannot say that the chancellor clearly erred or abused his discretion by applying the Supreme Court’s decision in Riley to the facts of this case. Riley recognizes that a parent’s conduct that threatens harm to a child may rise to the level of a material and adverse change in circumstances even if the child “somehow appears to remain unscarred.” Id.; accord Johnson v. Gray, 859 So. 2d 1006, 1014 (¶39) (Miss. 2003).

¶78. Moreover, there is substantial evidence to support the chancellor’s finding that Will had already been adversely affected by Barbaro’s conduct. Barbaro’s conduct necessitated restrictions on Smith’s visitation and then an abrupt, emergency change of custody and restrictions on Barbaro’s visitation. These events would not have occurred but for Barbaro’s misconduct. Furthermore, witnesses testified, and the chancellor found, that these changes caused Will to be more clingy and insecure.

¶79. In summary, the chancellor did not clearly err or abuse his discretion by applying Riley to the facts of this case or by finding a material change in circumstances that adversely affected Will. Therefore, the chancellor appropriately proceeded to consider whether a change in custody would be in Will’s best interest. See Riley, 677 So. 2d at 743.

That’s some useful authority in ¶¶75 and 76.

What to do with No Valuation at All?

August 10, 2019 § Leave a comment

James and Shann Martin consented to a divorce on the ground of irreconcilable differences, and left custody and equitable distribution to the judge for adjudication. Following a hearing the chancellor awarded James custody of their son and ownership of 35 acres of land that had been gifted to them by James’s parents. The judge also ordered James to pay Shann $20,000 for some improvements she had made to the property. Shann appealed.

In her appeal, Shann contended that the division of the marital estate was inequitably in James’s favor.

In Martin v. Martin, handed down August 6, 2019, the COA by Judge McCarty affirmed, and in its opinion turned its attention to a significant wrinkle in the record:

¶9. Shann contends that the distribution of assets was overwhelmingly in Mitch’s favor. Yet the record does not contain financial information to support this argument. Despite numerous requests from the chancery court, neither party provided the court with a single valuation of the assets at issue. There was no testimony of the market value of the real property. Appraisals were never conducted. Both parties failed to provide an amount of the tax refunds, the amount of money which was invested into the marital home, or by whom the money was invested. Indeed, the chancery court even noted in the divorce decree that “the Court [was] perplexed at the lack of evidence concerning property values.”

¶10. It is incumbent upon the parties, not the chancery court, to prepare the evidence needed to clearly make a valuation judgment. Stribling [v. Stribling], 906 So. 2d [863] at 870 (¶25). “Where a party fails to provide accurate information, or cooperate in the valuation of assets, the [chancery court] is entitled to proceed on the best information available.” Id.; see also Messer v. Messer, 850 So. 2d 161, 170 (¶43) (Miss. Ct. App. 2003) (“This Court has held that when a chancellor makes a valuation judgment based on proof that is less than ideal, it will be upheld as long as there is some evidence to support his conclusion.”). “To the extent that further evidence would have aided the chancellor in these decisions, the fault lies with the parties and not the chancellor.” Ward v. Ward, 825 So. 2d 713, 719 (¶21) (Miss. Ct. App. 2002).

¶11. Where, as here, a chancery court “appears to have fully explored the available proof and arrived at the best conclusions that [they] could . . . we can discover no abuse of discretion in those efforts that would require us to reverse [their] valuation determinations.” Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999). The chancery court used the information provided by the parties to conduct a Ferguson analysis. “To the extent that the evidence on which the [chancery court] based [its] opinion was less informative than it could have been, we lay that at the feet of the litigants and not the [chancery court].” Id.

Bravo. The chancellor said that she was “perplexed” the lack of valuation evidence. That’s a good word. Amen.

In this district we do not allow the parties to obtain a trial date until they have presented the court with a consolidated asset list showing every asset with each party’s opinion of values and whether or not each asset is marital. If a party delays unreasonably in providing the information the court sets a deadline after which that party may not present proof of values at trial, and the other party’s values are accepted.

Dispatches from the Farthest Outposts of Civilization

August 9, 2019 § Leave a comment

Local Rules

August 7, 2019 § 1 Comment

In the divorce case between Marcus and Sumie Sanders, the parties entered an agreed order that their temporary hearing would be submitted by affidavits, without live witnesses. The parties submitted their affidavits, and the court awarded custody of the parties’ daughter to Sumie.

Following entry of a final judgment in his case, Marcus appealed. One issue he raised was that the court in his district required submission of temporary issues by affidavit, which amounts to an unapproved local rule that prejudiced him in the ultimate outcome of the case.

Judge Jack Wilson’s opinion in Sanders v. Sanders, a May 14, 2019 COA decision, addressed the issue:

¶39. On appeal, Marcus argues that the Fourteenth Chancery Court District enforces a local rule requiring temporary custody hearings to be decided by affidavits only. He argues that the rule is invalid because the Mississippi Supreme Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted before being effective must be filed in the Supreme Court of Mississippi for approval.”). Marcus further argues that the chancellor’s temporary ruling impacted her final ruling, and yet because there was no real hearing on temporary custody, the chancellor’s temporary ruling “cannot be reviewed.”

¶40. We find no reversible error for three reasons, two of which are related. First, the record contains only an agreed order. The record does not show that there actually is an “unapproved local rule.” The chancery court’s website does provide a fill-in-the-blank template for an order setting a hearing on temporary matters by affidavit. [Fn omitted] However, there is nothing to show that this template equates to a court rule that such hearings must be decided on affidavits alone. Nor does the template establish that the chancellors of the district will not hold a live hearing or consider live testimony upon request.

¶41. Second and related, Marcus never raised this issue in the trial court. There is nothing to show that he ever asked for a live hearing or to present live testimony. Because Marcus did not raise this issue, we have no way of knowing whether there is an unapproved rule or whether the chancellor would have heard and considered live testimony. Therefore, the record is inadequate to review Marcus’s claim, and the issue is waived and procedurally barred on appeal. See, e.g., Adams v. Rice, 196 So. 3d 1086, 1090 (¶13) (Miss. Ct. App. 2016) (“A party is not allowed to raise an issue for the first time on appeal.”).

¶42. We note that the Supreme Court addressed a similar issue in Fredericks v. Malouf, 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the defendants argued that they were prevented from obtaining a hearing on their motion to transfer venue because of an unapproved local rule that stated that hearings on motions were not “automatically granted” and that the parties would “be notified by the court” if the court determined that a hearing was necessary. Id. at (¶15). The Supreme Court concluded that the local rule was “in derogation of Mississippi Rule of Civil Procedure 83, because [it had] never been submitted to [the Supreme] Court for approval.” Id. at (¶16). Nevertheless, the Supreme Court also “emphasize[d] that the trial court’s rule did not prohibit the [d]efendants from requesting a hearing; there [was] no evidence that the trial court would not [have] consider[ed] such a request; and no order exist[ed] denying such.” Id. In other words, the unapproved local rule did not excuse the defendants’ failure to at least request a hearing on their motion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s failure to request a live hearing on temporary custody.

¶43. A third reason that Marcus’s argument is without merit is that he fails to establish any prejudice. “A temporary custody order is just that, temporary; it does not change the underlying burden of proof.” Neely v. Welch, 194 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997) (brackets omitted)). The chancellor must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order. See id. Marcus overstates the significance of the temporary custody order as it relates to the chancellor’s final ruling and Albright analysis. The chancellor’s final judgment found that the continuity of care factor “strongly favor[ed]” Sumie because Sumie had “always” been Kristen’s primary caregiver, “[b]oth prior to and after the issuance of [the] [t]emporary [o]rder.” (Emphasis added). The chancellor’s analysis was based on the totality of the evidence and only briefly mentioned the temporary custody period. In addition, for the reasons discussed above, there is substantial evidence to support the chancellor’s permanent custody decision.

I would add that two points: (1) Marcus agreed to the affidavit procedure by agreed order, so he should be bound by that agreement; and (2) MRCP 43 expressly allows the trial judge to decide fact issues raised in motions by affidavits.

This argument raises the question: when do local practices and judges’ preferences become local rules? We have all kinds of local practices here in my district that reflect the judges’ preferences as to how to conduct business, but we have no local rules. As we all know, practice varies from one district to another, and even among chancellors within a district. And for good reason. What works in the Delta or on the Coast may not be practical here. Workloads vary, judges’ personalities and approaches to work are different, and different people have different work-styles. I hear lawyers bemoan the fact of varying practices among districts from time to time, but I really don’t believe the answer is to squeeze all chancellors into mechanical uniformity.