November 20, 2018 § Leave a comment
You can register a judgment or order for custody (hereinafter referred to as a “judgment”) rendered by another state in Mississippi by following MCA §93-27-305. Here are the highlights:
- You can register the judgment with or without a simultaneous action for enforcement (93-27-305(1)).
- A pleading, petition, motion, or even a letter requesting registration is filed with the chancery clerk of any county in the state (93-27-305(1) and (1)(a)).
- Two copies, including one certified copy, of the judgment, accompanied by an affidavit that to the best of the affiant’s knowledge and belief the judgment has not been modified, must also be filed (93-27-305(1)(b)).
- The name and address of the person seeking registration, as well as that of any parent or person in loco parentis who was awarded custody in the judgment must be stated in the petition (93-27-305(c)); however, the confidentiality protections of 93-27-209 are available to persons who qualify.
- Notice is served on the person(s) named in 1(c) to provide them an opportunity to contest the registration (93-27-305(2)(b)).
- The notice must state that the judgment: (1) will be enforceable on the date of registration the same as a Mississippi domestic judgment (93-27-305(3)(a)); (2) a hearing to contest registration must be requested within twenty days of the date of service of the notice (93-27-305(3)(b)); and (3) failure to contest registration will result in confirmation of the judgment’s custody determination, and further contest will be barred (97-27-305(3)(c)).
- A person wishing to contest registration must request a hearing within twenty days of service of notice (93-27-305(4)).
- At a hearing to contest registration, the court shall confirm registration unless the contestant establishes that either: (1) the issuing court did not have jurisdiction under the UCCJEA (93-27-305(4)(a)); or the custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction per the UCCJEA (93-27-305(4)(b); or (3) the contestant was entitled to notice per 93-27-108 in the originating court, but was not afforded that notice (93-27-305(4)(c)).
- If a timely request for hearing is not filed, the court orders that the registration is confirmed as a matter of law, and all persons who were served with notice are notified of the confirmation (93-27-305(5)).
- An order of confirmation precludes further contest of any matter that could have been contested at the time of confirmation of registration (93-27-305(6)).
In Edwards v. Zyla, 207 So. 3d 1232 (Miss. 2016), the MSSC held that chancery court, not county court, was the proper forum for registration of a foreign custody determination.
November 19, 2018 § 2 Comments
An endearing and prevalent romantic custom is to bestow a ring on one’s sweetheart. Quite often the ring is an emblem of engagement in the expectation of marriage. When the expectation is not realized, the gift is said to be conditional and remains the property of the donor, as in the Cooley case, which we discussed at this link. When the expectation does ripen into marriage, the ring is a gift to the donee as in the Lomax and Neville cases, which we discussed here.
A recent case presents a scenario somewhere between those two.
During the time that Dr. Christopher Cummins was separated from his wife, he became romantically involved with one of his employees, Leah Jordan (later Goolsby). Although Cummins had not divorced his wife, and never did at any time relevant to this case, he and Jordan began living together, and even became engaged, which Cummins memorialized with a gift of rings. Later, Jordan broke off the engagement and kept the rings. After Jordan filed a paternity suit against him, Cummins counterclaimed for the rings that he claimed were worth $11,435. He asked the court to order that the rings be returned, or that he have a credit for their value against court-ordered child support. He argued Cooley — that the conditional gift was never completed by marriage, and so had to be returned to the donor.
The chancellor ruled that the rings were a completed inter vivos gift because Cummins had never divorced his wife, rendering the condition impossible due to the fact that he could not legally marry Jordan. Cummins appealed.
In Cummins v. Goolsby, decided October 18, 2018, the MSSC affirmed. Justice Maxwell wrote the opinion for a unanimous court (Justice Coleman specially concurring):
¶9. Dr. Cummins argues that the chancellor failed to follow the Cooley v. Tucker decision. In that case, the Court of Appeals applied the following test to determine whether an engagement ring was a completed inter vivos gift: “(1) a donor competent to make a gift[;] (2) a voluntary act of the donor with donative intent[;] (3) the gift must be complete with nothing else to be done[;] (4) there must be delivery to the donee[; and] (5) the gift must be irrevocable.’” Cooley, 200 So. 3d at 476 (quoting Johnson v. Collins, 419 So. 2d 1029, 1030 (Miss. 1982)). Looking specifically at the third factor, the Cooley Court held that the engagement ring was an inter vivos gift, but it was conditioned upon the parties’ getting married. Id. And because the parties did not get married, the condition was unfulfilled and the gift was incomplete. Id. Thus, the former boyfriend was entitled to the return of the ring. Id. Dr. Cummins argues that, because he and Jordan did not get married, he is in the same position as the boyfriend in Cooley. He claims the third element of a completed inter vivos gift—that the gift was complete and nothing was left to be done—had not been met. So, he was entitled to the return of the rings.
¶10. But this case is not like Cooley.
¶11. First, we would note that the context is different. Cooley involved a replevin action filed by the former boyfriend after the dating relationship had ended. In this case, it was only after Jordan sued Dr. Cummins to establish paternityand to receive financial support for their child that Dr. Cummins asserted his counterclaim to the rings and specifically plead that the value of the rings should be credited against any financial obligation he owed to Jordan as their child’s father. Although the child-support issue is not before this Court on appeal, we find it worth noting that child-support benefits belong to the child, not to the custodial parent who receives the benefits under a fiduciary duty to use them for the benefit and protection of the child. Edmonds v. Edmonds, 935 So. 2d 980, 986 (Miss. 2006) (citing Caldwell v. Caldwell, 579 So. 2d 543, 549 (Miss. 1991)). So, even if Dr. Cummins had a right to the rings or to the rings’ value, by no means is he entitled to the ultimate remedy he seeks — a reduction in child support based on the broken engagement.
¶12. Second, and more importantly, unlike the boyfriend in Cooley, Dr. Cummins was married when he gave Jordan the rings. In fact, he was still married when he asked the chancery court to order Jordan to give them back. As the chancellor recognized, Dr. Cummins’s marriage is significant because he conditioned his gift on something he legally could not do—marry Jordan. See Miss. Code Ann. § 97-29-13 (Rev. 2014). And now he argues this very condition — or the failure thereof — is what entitles him to the rings.
¶13. “[O]ne of the maxims of equity is, ‘He who comes into equity must come with clean hands.’” Thigpen v. Kennedy, 238 So. 2d 744, 746 (Miss. 1970). And conditioning a gift on marriage when one cannot lawfully marry violates public policy and constitutes unclean hands. See, e.g., Morgan v. Wright, 133 S.E.2d 341, 343 (Ga. 1963) (holding that an action to recover an engagement ring given to a married woman was barred by the doctrine of unclean hands). Dr. Cummins could not legally marry Jordan at the time he gave her the rings. So, he cannot now bring an action for the rings to be returned because the condition of marriage never occurred. See Lipschutz v. Kiderman, 76 A.D.3d 178, 184 (N.Y. App. Div. 2010) (“[W]here a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the condition of marriage did not take place.”).
¶14. Because, unlike the boyfriend in Cooley, Dr. Cummins had no right to have the rings returned as part of his paternity dispute with Jordan, the chancellor did not err when she awarded the rings to Jordan. We affirm the chancellor’s judgment.
Justice Coleman’s specially concurring opinion, joined in part by Beam, Ishee, and Randolph, points out that the law of promise to marry in Mississippi is governed by contract law, rather than by the law of gifts. It’s worth a read.
A few points:
- With this decision, we now have law covering the most common ring-gift situations: (1) the uncompleted gift conditioned on marriage, Cooley; (2) the gift completed by marriage, Lomax and Neville; and (3) the gift that was intended originally to be conditional, but cannot be completed due to impossibility, Cummins.
- Kudos to the court for invoking the maxims of equity.
- If you’re going to take up with someone else while separated from your spouse, for Pete’s sake don’t get engaged, and by all means don’t get carried away with engagement rings.
November 16, 2018 § Leave a comment
Reprise replays posts from the past that you may find useful today.
Ten Tips for a Clearer Record
October 30, 2014 § Leave a comment
As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.
There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.
It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.
Here are ten tips to get you thinking about making an adequate record:
1. The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.
2. No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.
3. What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.
4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.
5. Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.
6. Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.
7. Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.
8. Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.
9. S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.
10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.
November 14, 2018 § Leave a comment
In the case of Daigle v. Daigle, 626 So.2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993)) the court laid out six factors that the trial court must consider in determining the amount of separate maintenance:
“There are six factors a chancellor should consider in determining the amount of separate maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has use of the marital home and furnishings; and (6) any other pertinent facts. Id.
Also cited in Williams v. Williams, 224 So. 3d 1282, 1285 (¶9) (Miss. App. 2017).
November 13, 2018 § 9 Comments
At least 18 chancellors will be leaving the bench at the close of business on December 31 (actually on December 28, because the Governor decreed the 31st to be a holiday this year).
If there is a reception or ceremony scheduled in honor of your chancellor, readers of this blog might want to find out about it so that they can make plans to attend.
Please comment with any info you have. You can comment later on this same post as information develops.
The info I have as of today:
- Chancellor Jerry Mason, District 12, retiring. Reception honoring him on December 14, 2018, from 1-3 pm in his Chancery courtroom on the second floor of the Lauderdale County Courthouse.
- Chief Judge Joe Lee of the COA, retiring. Ceremony and reception immediately following at the COA en banc courtroom, Gartin Justice Building, Jackson, November 15, 2018, at 2 pm.
- Chancellor John Grant, Rankin County. November 30th 1 – 3 pm. Rankin County Chancery Courthouse.
November 12, 2018 § 1 Comment
Chief Justice Waller announces he will retire January 31, 2019.
From the MSSC press release:
Chief Justice William L. (Bill) Waller Jr. announced that he will retire on January 31, 2019.
Chief Justice Waller said, “I have elected to tender my resignation and retire from public service effective January 31, 2019, completing more than 21 years of service on the Mississippi Supreme Court and 10 years as Chief Justice. It has been my highest privilege to be elected as a Justice of the Supreme Court and serve as Chief Justice of Mississippi.”
Chief Justice Waller was elected in November 1996 and took office in January 1998. He was re-elected in 2004 and 2012. He was a presiding justice for five years. He became Chief Justice in January 2009.
At age 66, he enjoys good health. “It’s just time,” he said.
The Governor will appoint a Justice to the District 1, Place 1 position on the court. The next election for the seat is in November 2020, and the next eight-year term will begin in January 2022. The position is one of two seats on the court with a 14-month delay between the election and the beginning of a new term.
Mississippi Code Section 9-3-11 says that the justice who has served longest on the court shall be Chief Justice. Presiding Justice Michael K. Randolph of Hattiesburg, who joined the court in April 2004, is the second longest serving justice on the court after Chief Justice Waller.
Upon retirement from the court, Chief Justice Waller plans to become a senior status judge and remain active in Access to Justice and other administration of justice endeavors. He would like to teach as an adjunct professor at the University of Mississippi School of Law and Mississippi College School of Law. He previously taught pretrial practice at both law schools.
November 12, 2018 § Leave a comment
November 9, 2018 § Leave a comment
November 7, 2018 § 7 Comments
Please post the results from your districts via comment, like a bulletin board.
Be sure to include the District, names of the contestants, and any numbers you have. If not final due to missing precincts, please note that fact.
November 6, 2018 § 2 Comments
Lots of judicial posts are contested. Please go vote.