Reprise: The Role (or not) of Boilerplate Defenses in Divorces

August 26, 2016 § Leave a comment

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


March 4, 2011 § 5 Comments

boil•er•plate. n 3.  Inconsequential, formulaic or stereotypical language.

Here is the SECOND DEFENSE from a pleading styled Answer and Defenses to Complaint for Divorce filed last September in my court:

The facts having not been fully developed, the [defendant] would affirmatively plead any and all affirmative defenses as may be applicable in this action:  accord and satisfaction; antenuptial knowledge; arbitration and award; assumption of risk, condonation, connivance, contributory negligence, consent, discharge and bankruptcy, duress, estoppel, failure of consideration, failure to mitigate damages, fraud, illegality, insufficient process, insufficient service of process, injury by fellow servant, laches, lack of capacity to commit the offense, license, payment, pre-existing injuries or damages, provocation, reconciliation, recrimination, reformation, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”

Whew.  Fortunately, after a spate of such monstrosities having been filed last fall, they dropped off drastically after I threatened to require hearings on all of those defenses before any temporary hearing.  After all, don’t we need to know whether the adultery was a result of an injury by a fellow servant before we proceed?  Or was the plaintiff contributorily negligent when the defendant slipped off to the Motel 8 in Philadelphia with his paramour?  We need to know these things.  Or, I guess we need to know them because they were pled.

Some of these defenses, foreign as they are to chancery court, do stir the imagination …

  • Accord and satisfaction should be available when the defendant claims that the plaintiff should be happy with her Honda automobile.
  • Assumption of risk.  If you knew she was crazy when you married her, well …
  • Failure of consideration.  Most people are pretty inconsiderate of each other in the context of the hostility that leads up to a divorce, but should that be a defense?
  • Failure to mitigate damages.  My personal favorite.  Shifts the whole burden of blame, doesn’t it?
  • Laches.  So much for the public policy of Mississippi that encourages folks to stay in a marriage as long as possible.
  • Lack of capacity to commit the offense.  This is actually a viable defense to some marital offenses involving biological functions, but how does it apply in equitable distribution?
  • Pre-existing injuries or damages.  Another one with some wondrous possibilities.  “She hasn’t been harmed by my moving in with my girlfriend and leaving her penniless because she was already broke.”
  • Release.  As in “Please release me; let me go, I don’t love you any more?”  Nah.
  • Res Judicata.  Don’t laugh.  There are possibilities here for folks who have remarried each other after a prior divorce judgment.
  • Statute of frauds.  Since Mississippi did away with common-law marriages in 1956, this one is a long shot today.
  • Statute of limitations.  The lawyer who discovers how to make SOL apply in a divorce case will have struck gold.
  • Waiver.  “But she told me it was okay for me to go out with Doris.”

Maybe you can come up with some imaginative offensive or defensive theories of your own.  If they’re as goofy as these, though, you’d probably be better off keeping them to yourself.

Is HCIT of a Child Proof of HCIT of a Parent?

August 23, 2016 § Leave a comment

The marriage of Propst and Ty Pittman was by all accounts a stormy one that involved physical conflicts. There was testimony also that Ty had been physically violent in his dealings with the parties’ daughter, Tyler.

Propst filed for divorce from Ty on the ground of habitual cruel and inhuman treatment (HCIT).

After Propst rested in her case in chief, Ty moved per MRCP 41(b) to dismiss for failure of Propst to meet her burden of proof on the grounds for divorce. In a 10-page ruling, the chancellor analyzed the evidence. He concluded that Propst had failed to meet her burden of proof because her evidence was in general terms, the police had never been called to the disturbances, and she had only sought medical attention with respect to one incident. The judge did not address the testimony as to the incidents involving solely Tyler.

The COA affirmed, and the MSSC granted cert. In its decision in Pittman v. Pittman, rendered June 2, 2016, the court noted that, “In his ruling, the chancellor failed to make any factual findings regarding the violence against Tyler [Fn omitted]” and “We acknowledge that this Court has not made a clear pronouncement that violence against a child can be considered as habitual cruel and inhuman treatment of a spouse, and we thus recognize that this lack of a clear pronouncement may be why the chancellor understandably failed to make any factual findings regarding the violence against Tyler.”

The majority opinion, by Justice King, continued at ¶14:

… Thus, we will examine the legal question of [Fn omitted] whether violence against a child may be considered in the determination of whether one spouse has engaged in the habitual cruel and inhuman treatment of the other spouse. This Court has certainly considered the traumatic and detrimental effect a tumultuous marriage has on children when considering whether a divorce should be granted based on habitual cruel and inhuman treatment.[Fn 6] See, e.g., Richard, 711 So. 2d at 889. Moreover, the Court of Appeals, a court which chancery courts are bound to follow, has considered evidence of child abuse or mistreatment as conduct that supports granting a divorce based on habitual cruel and inhuman treatment. In  Jones, the Court of Appeals detailed the husband’s inappropriate sexual behavior with the couple’s children and considered it as supporting the chancellor’s grant of divorce for habitual cruel and inhuman treatment. Jones, 43 So. 3d at 476-77. The Court of Appeals noted that the wife “found this behavior offensive and alarming.” Id. at 477. In Keller v. Keller, a case incorrectly cited by the chancery court in this case, [Fn 7] the Court of Appeals noted that the record indicated that the husband had committed at least one instance of physical violence, by throwing a shoe at his wife, that he refused to have sexual relations with his wife and told her to “get a boyfriend” if she wanted sexual relations, that he forced his wife to do heavy physical work in the house and yard without his help, and that he humiliated her in front of family and friends. Keller v. Keller, 763 So. 2d 902, 908 (Miss. Ct. App. 2000). The Court of Appeals found that “[w]hether these facts alone would have been sufficient or not, we find the scales to shift markedly in favor of the divorce with the evidence that Mr. Keller beat his wife’s son from her first marriage[.]” Id. The Court of Appeals detailed the physical and verbal abuse of the child, as well as Mr. Keller’s demands that Mrs. Keller convey custody of her son to her ex husband or her parents, and stated that “[t]his was ‘cruel and inhuman treatment.’” Id. at 908- 09.

[Fn 6] The chancellor in this case did not appear to consider the detrimental effect of the tumultuous marriage on the children. Part of his reasoning for dismissal was that Propst was more concerned with the effects of Ty’s derogatory comments toward her on the children, than on herself.

[Fn 7] The chancery court stated that “In the afore-cited Keller v. Keller, the Court did not find sufficient grounds to award a divorce.” At that point, the chancellor then stated that the evidence in the case at hand did not meet the elements of habitual cruel and inhuman treatment. In Keller, both the chancery court and the Court of Appeals found sufficient grounds to award a divorce based on habitual cruel and inhuman treatment. Keller v. Keller, 763 So. 2d 902, 904, 908-09 (Miss. Ct. App. 2000).

¶15. It is common sense that abuse or mistreatment of a person’s child may constitute cruelty to that person. [Fn 8] Such conduct may certainly be “so unnatural and infamous as to make the marriage revolting to the” party seeking relief and “render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance,” provided the party seeking relief proves by a preponderance of the evidence that the abuse or mistreatment of the child was so unnatural and infamous to the party as to make the marriage revolting to that party, or that it contributes, along with other factors, to rendering the marriage revolting to that party. See Richard, 711 So. 2d at 888. Indeed, “[i]t would be difficult to imagine a course of conduct that would be more intolerable or unbearable, or that would be more subversive of the family relationship, than harsh and abusive treatment of a child.” Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962). We take this opportunity to clarify that chancery courts may consider evidence of child abuse or mistreatment as conduct supporting the grant of a divorce based on habitual cruel and inhuman treatment. [Fn 9] It is not clear that the chancery court in this case considered the alleged instances of physical violence and other mistreatment by Ty against Tyler in determining whether Propst had presented evidence of habitual cruel and inhuman treatment sufficient to defeat Ty’s Rule 41 motion to dismiss; thus the court did not apply what we now clarify is the appropriate legal standard. We therefore reverse the chancery court’s grant of Ty’s Rule 41 motion to dismiss and remand the case for further proceedings so that the chancellor may have the opportunity to consider the violence against Tyler in light of our clarification of the law. On remand, the chancellor should specifically consider and make findings regarding Ty’s treatment of Tyler in determining whether Propst has presented evidence sufficient to defeat Ty’s Rule 41 motion to dismiss regarding her entitlement to a divorce based on cruel and inhuman treatment.

[Fn 8] Additionally, trapping spouses and children in familial arrangements simply because the child, rather than the spouse, was the victim of abuse or mistreatment makes little sense and it certainly cannot have been the Legislature’s intent to imprison those children in abusive situations simply because their nonviolent parent could not obtain a divorce. Incidentally, the nonviolent spouse would have a duty to report any child abuse or neglect committed by the other spouse. See Miss. Code Ann. § 43-21-353(1) (Rev. 2015). That parent could also be held criminally liable in certain instances for failing to report his or her spouse. See Sherron v. State, 959 So. 2d 30 (Miss. Ct. App. 2006) (mother who helped minor child get an abortion after rape by mother’s husband found guilty of being an accessory after the fact to statutory rape, and was not entitled to a mitigating defense instruction that a failure to report was not a crime, because she did have an affirmative duty to report the abuse of her daughter).

[Fn 9] Other states have held likewise. See Jaikins v. Jaikins, 122 N.W.2d 673 (Mich. 1963) (noting the court’s duty toward the children, and stating that “mistreatment of children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty by the guilty party which justifies a divorce.”); Greco v. Greco, 356 S.W.2d 558, 566 (Mo. Ct. App. 1962) (Mistreatment of a child constitutes an “indignity.”).

The court noted in Fn 6 (omitted in this post) that the GAL had developed some evidence of physical violence toward Tyler.

HCIT has been the graveyard of many a divorce case. This holding will give you an additional avenue by which you can make a viable case.



Breast-Feeding and Visitation

August 22, 2016 § Leave a comment

Among the many reasons parties request restricted visitation is to accommodate breast-feeding schedules.

That was the issue in the case of May v. Arthurs, decided by the CAO on June 28, 2016.

Derek May sued Kira Arthurs to establish paternity of their baby, Mason, born January 29, 2014. One of the issues for the court to decide was Derek’s visitation. Kira was breast-feeding the baby at the time of the trial on October 14, 2014.

Following the hearing, the chancellor concluded that the baby was “still using breast milk and [Kira had] the right to continue breast-feeding.” The COA opinion, by Judge Lee, sets out the visitation ordered by the court:

 ¶5 … At the time of trial, Derek was exercising weekend visitation every other weekend from Saturday at 10 a.m. to Sunday at 4 p.m. The chancery court ordered this to continue until Mason reached eighteen months of age or was totally weaned from breast milk, whichever occurred first. Then Derek would have visitation every other weekend from Friday at 6 p.m. to Sunday at 6 p.m.

¶6. Regarding summer visitation, the chancery court ordered Derek would have Mason beginning June 1, 2015, for a three-week period. Derek would also have Mason beginning July 1, 2015, for a three-week period.

Both the weekend and summer visitation were restricted until Mason reached the age of 18 months or was completely weaned, whichever occurred first.

The COA vacated the order, reversed, and remanded:

¶13. “Child visitation, and its limitations, are awarded at the chancellor’s broad discretion.”Cassell v. Cassell, 970 So. 2d 267, 271 (¶17) (Miss. Ct. App. 2007) (citing Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994)). “The chancellor must keep the best interest of the child as a paramount concern, while being attentive to the non-custodial parent’s rights.” Id. (citing Faris v. Jernigan, 939 So. 2d 835, 839-40 (¶8) (Miss. Ct. App. 2006)). “The court should be concerned with the need for the non-custodial parent and child to maintain a healthy and loving relationship.” Id. at 271-72 (¶17).

¶14. “When restrictions are placed on visitation, there must be evidence that the particular restriction is necessary to avoid harm to the child.” Id. (citing Cox v. Moulds, 490 So.2d 866, 867-68 (Miss. 1986)). “A lack of this evidence will render the chancellor’s restrictions on  the non-custodial parent’s visitation manifest error and an abuse of discretion.” Id. (citing Fulk v. Fulk, 827 So. 2d 736, 742 (¶21) (Miss. Ct. App. 2002)).

¶15. The record before this Court fails to demonstrate that the restriction on summer visitation was reasonable or necessary to prevent harm to Mason. Rather, Kira offered every other-week visitation in the summer until Mason was older. Kira testified that while Mason was an infant, she “would like it to be a little more consistent.” It was the chancellor whose “only concern [was] the breast-feeding.” Therefore, we vacate the chancellor’s summer visitation award and remand the case for the chancellor to revisit the issue of summer visitation consistent with this opinion. However, we affirm the chancellor’s weekend visitation award.

One fact undercut Kira’s position. You can find it at footnote 4, which states: “Kira provided breast milk whenever Derek had visitation, and the breast milk was being supplemented with solid foods as well as apple juice and water.” Translation: Derek was able to meet the baby’s need for breast milk when he had visitation; ergo, it was unnecessary to restrict his visitation.

I don’t see a lot of precedential value in this case vis a vis breast-feeding in particular. Breast-feeding is treated the same as any of the many other reasons that people advance to support their claims that visitation should somehow be restricted. Every one of these cases is fact-intensive and calls for more than mere allegations or assertions. There must be proof that the restriction is necessary to avoid harm to the child. Meeting that standard should not be a big challenge to most lawyers.

Dispatches from the Farthest Outposts of Civilization

August 19, 2016 § 1 Comment


The Price of Admission

August 17, 2016 § Leave a comment

Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.

It can cut both ways, though.

In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.

The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.

Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:

¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.

However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).

¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).

¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.

¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:

[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.

You can take away at some points:

  • Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
  • The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
  • The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
  • Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
  • But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
  • Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.

The Power of Prayer

August 16, 2016 § 1 Comment

In a divorce case filed in our district (not assigned to me), the female defendant filed a pro se, handwritten answer generally admitting residence and the like, and denying the fault allegations. In response to the relief portion of the complaint, which plaintiff introduced with the standard language, ” … plaintiff prays for the following relief … “, the woman denied his claim and added that:

” … he’d better pray longer and harder.”

Chickenfeed Brings the Chickens Home to Roost

August 15, 2016 § 8 Comments

Our legislature slashed the Department of Mental Health’s budget, and that agency, forced to do its job on mere chickenfeed, has slashed services. It’s a topic I’ve discussed before here and here.

Now the chickens have come home to roost, as the saying goes. The U.S. Justice Department has sued the state (that’s us) for violations of the Americans with Disabilities Act and some other federal laws. You can read about the suit here.

Business as usual in Mississippi: we have to be sued time and time again to make our state do the right thing, or the constitutional thing, or simply to abide by the law.

Some Random Thoughts and Tips on Probate Practice

August 12, 2016 § Leave a comment

Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?

Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.

Here are some thoughts about probate, along with a few tips:

  • MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
  • UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
  • For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).

TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.

TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.

  • If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
  • There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
  • Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
  • Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.

The Burn of College Expense

August 11, 2016 § 2 Comments

Decades ago a chancellor in this part of the world was asked why he insisted that his sons pay their own way through college. He replied that he would only do it if a chancellor ordered him to do it. Of course, the twist was that he was never divorced, so no chancellor could ever get involved in that decision-making.

It’s pretty well ingrained in our law now that a chancellor may order parents to contribute to the college expenses of their children post-divorce.

The latest iteration of the principle appears in the recent COA decision in Harris v. Porter, decided July 26, 2016.

In that case, the chancellor ordered Tony Harris to contribute $1,250 a semester to the cost of his daughter, Myrtis, to attend Mississippi State University. The chancellor also increased the child support he pays to his ex-wife, Michelle Porter. Tony appealed, and the COA affirmed. Judge Ishee wrote for a unanimous court:

¶6. Next, Harris argues that the trial court erred in awarding college expenses. Harris points to his financial statements, which he believes shows that there is no disposable income, and argues that Porter did not show evidence to the contrary. Harris further argues that he cannot afford to pay college expenses without significantly affecting his customary lifestyle. Harris explains that he has two young children who live with him and his current wife, and another child attending Alcorn State University. Harris also argues that there was no evidence that Myrtis will thrive in college. Finally, Harris asserts that he wanted to have input as to which college he could afford for Myrtis.

¶7. The Mississippi Supreme Court has held that a child’s decision to attend college may be considered a material change in circumstances justifying child support modification. See Lawrence v. Lawrence, 574 So. 2d 1376, 1382 (Miss. 1991). Child-support payments under section 43-19-101 create an award for support that goes toward the child’s basic living expenses such as food, clothing, and shelter. See Nichols v. Tedder, 547 So. 2d 766, 769 (Miss. 1989). Additional expenses, including but not limited to health insurance, out-of-pocket health expenses, transportation, and college expenses, may be properly added to the basic support award. Id.

¶8. One or both parents may be ordered to pay part or all of a child’s college tuition and related expenses. Saliba v. Saliba, 753 So. 2d 1095, 1101 (¶21) (Miss. 2000) (citing Rankin v. Bobo, 410 So. 2d 1326, 1328 (Miss. 1982)). Nonetheless, as Harris asserted, “the parent must also have the ability to pay for the education without affecting his customary lifestyle.” Wallace v. Wallace, 965 So. 2d 737, 745 (¶27) (Miss. Ct. App. 2007) (citation omitted). However, in this case, Harris did not present any evidence of how Harris’s lifestyle would change. Nor can we find anything in the record that supports his claim. As found earlier, the chancery court clearly reviewed Harris’s financial documents and found that Harris was able to help with college expenses. Furthermore, Porter explained that she is seeking financial assistance and Myrtis is applying for scholarships to help with the cost of tuition.

¶9. Porter introduced various awards, plaques, and newspaper clippings regarding Myrtis’s achievements during her high-school career, which led the chancery court to find that Myrtis was an “outstanding young lady.” She clearly showed aptitude for and the potential to benefit from college according to her high-school record. Myrtis was involved in numerous extracurricular activities both at school and in the community. There is ample evidence that Myrtis excelled as a well-rounded student. Her admission to Mississippi State University is one more example of that. While Harris complains that he should have been consulted about which college he could afford for Myrtis to attend, the chancery court’s ruling does not set forth a specific college and it does not prevent Harris from being a part of the decision-making process. [Fn1] We find this argument without merit.

[Fn 1] However, according to the record, Myrtis has been accepted to Mississippi State University and it is her preferred school. Furthermore, we point out that Harris would be paying what amounts to less than fifteen percent of the total cost of tuition. See (the 2015-2016 annual cost to attend the school, on average, is about $23,000, which includes room and board, tuition, and out-of-pocket expenses).

As the footnote points out, it’s hard to imagine where Myrtis could have gone off to college that would have cost Tony less than $1,250 a semester. There are plenty of parents around the state under college-support orders who would gladly trade places with him. Speaking personally, as one who put a child through Millsaps College in the 1990’s, I would have in a heartbeat.

Until the nation “feels the Bern” and embraces government-paid college tuition for all, parents will have to continue to experience the burn of college expenses.

This case is just a reminder that guideline child support can be a mere starting point when there are extraordinary expenses of a child that must be satisfied.





August 9, 2016 § 6 Comments

Nalonnie (“Lonnie”) Osborne married the love of her life, Les, in Las Vegas in 1999. As the ad campaign says, “What happens in Vegas stays in Vegas,” and, with Lonnie and Les, apparently much of the love and affection between them stayed behind in Vegas when they returned to Mississippi.

After the pair separated in 2012, Lonnie filed a complaint for divorce on the ground of irreconcilable differences. When that went nowhere, she amended her complaint to allege habitual cruel and inhuman treatment (HCIT). They went to trial in 2014.

In her case in chief, Lonnie presented testimony that Les:

  • Was uncommunicative, controlling, and belittling.
  • Was unwilling to spend time with her or to schedule family vacations.
  • Would not call her or stay in touch when he took a job that required him to be away from home 4-6 months at a time.
  • Refused to give her compliments or to acknowledge her contributions to their life.
  • Told her she could leave whenever she questioned the conduct of Les’s son, who would occasionally live with them.
  • Refused to give her money to buy groceries because he might not like the food she bought.
  • Refused to give her $2 to buy a fan at a hot event, and then became angry when Lonnie got the $2 from a friend because he felt that it undermined his “authority.”

Lonnie testified that, due to Les’s treatment, she became depressed, and she had no self-esteem. She felt unloved and unlovable. She claimed that the years of stress exacerbated her underlying health problems.

For his part, Les did not file a counterclaim, and he did not even call any witnesses on his own behalf. He conceded that he did not want to stay married to Lonnie, but that he did not want to agree to a divorce because he did not want to submit the issue of equitable distribution to the court.

The chancellor ruled that Lonnie had failed to  prove HCIT by a preponderance of the evidence. He found that Lonnie had failed to prove that her depression and other problems were due to the unhappiness in the marriage, and not to work stress and pre-marital history. Lonnie appealed.

In Osborne v. Osborne, decided June 28, 2016, the COA affirmed. Judge Greenlee, for the unanimous court, spelled out the familiar rule that “mere unkindness, rudeness … lack of affection and incompatibility,” and criticism and controlling behavior, do not constitute HCIT so as to warrant a divorce.

I don’t disagree with either the chancellor’s ruling or the COA’s decision. Both reflect the state of our law on HCIT today.

What I do find revealing is Les’s position that he did not want to continue to be married to Lonnie any more than she did to him. Rather, he was using the divorce as a bargaining chip to make Lonnie give up any claim she might have to some equitable share of the marital estate. I’m not making that up; he said as much in his own words (¶ 8).

Any of us who have handled divorces in Mississippi have seen this kind of scenario play out in many cases over many different issues: give me custody and I will agree to the divorce; surrender any claim to my 401(k) accumulated over 25 years of marriage, and I will agree to a divorce; no child or college support and we can get a divorce; and on and on. Many of us refer to it as “divorce blackmail.”

I don’t fault Les or his attorney for using this strategy. It’s built into our law. Our divorce law is built on the policy that marriages must be maintained, even when they are affectionless, controlling, stingy, and empty. Les was more honest than most. He admitted that he didn’t care for the situation any more than Lonnie did; he just did not want to share even $2 with her, much less open the door to equitable division of whatever was the marital estate resulting from their 13-year marriage.

People a lot smarter than I have been proposing measures for years to address this, all of which have been routinely swatted down by the legislature.

I have heard for years that the current definition of what constitutes HCIT came about in the 1980’s when a particular justice persuaded the MSSC to impose the most stringent interpretation, expecting that the legislature would respond by reforming our divorce laws to bring them closer to the 20th century (yes, 20th), but we all know now that that was to no avail. The MSSC could address this situation by lowering the bar for HCIT, or by adding some alternatives that would even the playing field.



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