July 22, 2019 § 1 Comment
In footnote one to the COA’s decision in Kaiser v. Kaiser, decided June 11, 2019, Judge Corey Wilson offers the following:
As this Court has noted, “there is actually no provision under the statute for ‘primary’ physical custody.” Shows v. Cross, 238 So. 3d 1224, 1227 n.2 (Miss. Ct. App. 2018) (quoting Rush v. Rush, 932 So. 2d 794, 796 (¶9) (Miss. 2006) (discussing Miss. Code Ann. § 93-5-24 (Rev. 2004)). But lawyers and judges commonly use the phrase. “As in this case, the phrase ‘primary physical custody’ is often meant to describe physical custody in one parent, with the other having specified visitation rights.” Id.
The fact that there is no such thing as “primary” physical custody is a concept about which I have posted before. A post with links to previous posts is at this link.
Use of the term is not objectionable merely because there is no provision in law for it; as I pointed out previously, it can work considerable mischief, particularly where one or both of the parties believe that the term “primary” confers some heightened status, only to learn to their chagrin that it adds nothing. (Chagrin is a technical legal term meaning “pissed off at the lawyers”).
July 17, 2019 § Leave a comment
Justin Harmon and Kristin Ingle were divorced in 2013. Kristin was awarded sole custody of their two children. Justin was granted restricted visitation due to drug and alcohol abuse, and Kristin was authorized to suspend visitation if she had credible information that Justin had returned to his abusive ways. After an episode in which Justin became drunk while visiting, Kristin did suspend the visitation. In 2016, she and her new husband filed petitions for termination of Justin’s parental rights and for adoption of the two children. Justin objected.
A GAL was appointed. Justin failed a hair-follicle test, positive for methamphetamines. The chancellor found that there was an adequate basis for TPR and adoption, and granted that relief. Justin appealed.
The COA affirmed on May 7, 2019 in Harmon v. Ingle and Perry. The case is a good illustration of the type of behavior that the courts can find to justify TPR and adoption, so I am quoting from Chief Judge Barnes’s opinion for the unanimous court:
¶10. Although Justin concedes that he had not seen his children or paid child support for more than three years by the time of trial, he argues that his “abandonment” was due to Krystal’s interference with his visitation. Justin claims he was not informed of their change in address, which violated the court’s order. Therefore, he argues that his parental rights were wrongfully terminated, and he requests that this Court reverse the judgment and remand for reinstatement of his parental rights.
¶11. A chancery court’s termination of a parent’s rights is reviewed “under the manifest error/substantial credible evidence test.” Blakeney v. McRee, 188 So. 3d 1154, 1159 (¶13) (Miss. 2016). “[W]here there is credible proof from which a rational trier of fact may have found grounds for termination by clear and convincing evidence,” the trial court’s decision will not be disturbed. Id. (quoting A.B. v. Lauderale Cty. Dep’t of Human Servs., 13 So. 3d 1263, 1267 (¶14) (Miss. 2009)). The grounds for the involuntary termination of parental rights are set forth in Mississippi Code Annotated section 93-15-119, which provides in pertinent part:
(1) A court hearing a petition under this chapter may terminate the parental rights of a parent when, after conducting an evidentiary hearing, the court finds by clear and convincing evidence:
(a)(i) That the parent has engaged in conduct constituting abandonment or desertion of the child, as defined in Section 93-15-103, or is mentally, morally, or otherwise unfit to raise the child, which shall be established by showing past or present conduct of the parent that demonstrates a substantial risk of compromising or endangering the child’s safety and welfare; and
(ii) That termination of the parent’s parental rights is appropriate because reunification between the parent and child is not desirable toward obtaining a satisfactory permanency outcome; or
. . . .
(2) An allegation of desertion may be fully rebutted by proof that the parent
. . . .
(b) Was willing to provide financial support and to make visitations with the child, but reasonable attempts to do so were thwarted by the mother or her agents, and that the parent is now willing and able to assume legal and physical care of the child.
¶12. “Abandonment . . . includes ‘any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.’” In re Adoption of Minor Child, 931 So. 2d 566, 577 (¶29) (Miss. 2006) (quoting Gunter v. Gray, 876 So. 2d 315, 320 (¶21) (Miss. 2004)). “The test for abandonment is objective and requires a finding that, under the totality of the circumstances, ‘the natural parent has manifested his severance of all ties with the child.’” Id. Krystal testified that Justin never contacted her regarding visitation with the children; he only left her one voicemail in 2015 asking if the kids could go see his ailing grandfather.
Q. Okay. But he’s never asked you about making arrangements to visit with the children?
A. No, sir.
. . . .
Q. Have you received any child support payments?
A. No. The last one I received was dated for January 2014. The chancery court concluded in its orders that there was clear and convincing evidence that Justin had not made any “reasonable efforts” to visit the children. At trial, Justin claimed that he tried to call Krystal, but she did not answer; so he assumed she had changed her number and “didn’t see the point in continuing.” However, he admitted that he never tried to text her. Justin also knew where Krystal’s parents lived and worked. As the chancellor noted in his findings, even if we find all of Justin’s testimony credible, “it would be that he made two or three phone calls, [his uncle] made two or three phone calls, his mom and dad talked to [Krystal’s dad] and that’s about it.”
¶13. The testimony also showed that Justin had little to no relationship with his youngest son. At trial, Justin was not even certain of Jesse’s date of birth and admitted his youngest son would likely not recognize him. Justin’s relationship with his older son, Brian, was strained at best because Brian was a witness to his alcohol abuse and anger outbursts. Krystal testified: “A kid should not see their parent punch a bedroom door and have their hand come out on the other side trying to get to their mom. . . . [Brian] has no good memories of being a kid, and it’s because I stayed [with Justin].” Krystal cancelled a supervised visitation during the couple’s separation because Brian had hives, which were caused by stress, and she opined that if the boys had to resume visits with Justin, “it would destroy them.” Justin confessed that he used methamphetamine for a couple of years during the divorce, and the evidence of his drug test showed positive results for methamphetamine in 2017.
¶14. At trial, the chancellor expressly rejected Justin’s argument that Krystal interfered with his visitation, finding:
When [Krystal] left in 2014, she did not do so, in the opinion of the [c]ourt by clear and convincing evidence, with the intent of forever and permanently severing the relationship between these children and Justin. She did so in an attempt to protect them and convince him to get his life in order.
He also found that the evidence showed that Justin “willfully neglected and refused to provide any support for those children.” We find substantial and credible evidence to support the chancellor’s findings. Krystal acknowledged that she did not notify Justin of her new address but explained that she “was scared because [she] knew his anger outbursts and his problems” and that she “was just trying to be safe and protect my kids.” She checked Justin’s Facebook page occasionally to see how he was doing, but because he never contacted her regarding the children, she “assumed that he hadn’t gotten any better.” Krystal said she was surprised that Justin never made any attempt to try to resume visitation.
Q. Were you trying to hide the boys from Justin?
A. No. Like I said, I genuinely, in my gut, thought that, especially asmuch financial and legal help that Randy and Janet had with Justin, that they were going to file some sort of paperwork[,] and I would be able to get him to go back to rehab so he could get clean again so we could do supervised visits again so we could start the whole process over again. I didn’t know he would just drop it.
The GAL’s report acknowledged that Krystal kept the children from Justin, but did so for their safety and well-being, noting: “Krys[tal], I think, tried to sever all ties with Justin because of their past history, with his violence and drug/alcohol abuse.” However, the GAL further observed that neither Justin nor his family members “took any of the necessary steps to become a part of the children’s lives.” The GAL concluded that it was in the children’s best interest for Justin’s parental rights to be terminated and for Shaun to be allowed to adopt the boys. Justin does not dispute the GAL’s factual findings.
¶15. Furthermore, the evidence was undisputed that Justin provided no financial support for the children since February 2014. The chancery court observed:
If he were willing to provide financial support, he would have come into court and said, “Here’s the bank statement from the local bank where I set up a savings account for my children, and here’s the money.” . . . Instead what he said was he didn’t work very often, . . . he didn’t have the money to pay the child support.
As the GAL testified, Justin, who had a commercial driver’s license, did not work regularly after the divorce, and the attributing cause of his lack of employment was his abuse of drugs and alcohol.
¶16. Because there was clear and convincing evidence that Justin made no serious effort to see his children or to provide financial support for them from 2014 to 2017, we find no manifest error in the chancery court’s determination that he had engaged in conduct constituting abandonment and that it would not be in the children’s best interest to be reunified with their natural father. Accordingly, we affirm the court’s orders to terminate Justin’s parental rights and to grant the petitions for adoption.
July 16, 2019 § Leave a comment
Eleanor Ellison and Stephen Williams had a stormy relationship punctuated with Stephen’s numerous departures. After Stephen left her once again and moved in with another woman, Eleanor filed for divorce. Following a trial, the chancellor divided the marital estate, and Eleanor was displeased with the outcome, even though she received a larger share of the marital estate.
She appealed, and one of the issues she raised was that the chancellor had given inadequate attention to the effect of Stephen’s conduct on the marriage, which, of course, is one of the Ferguson factors.
In Ellison v. Williams, handed down June 18, 2019, the COA reversed and remanded on the issue. Judge Westbrooks wrote for a 5-4 court:
¶11. Ellison also asserts that the chancellor should have considered Williams’s extramarital affair. We agree. The Mississippi Supreme Court has reversed and remanded cases when the chancellor did not consider how an extramarital relationship “impacted and burdened the stability and harmony of the marriage.” Watson v. Watson, 882 So. 2d 95, 108 (¶68) (Miss. 2004) (quoting Singley v. Singley, 846 So. 2d 1004, 1009 (¶13) (Miss. 2002)). “Mississippi is in a minority of states in which marital misconduct is a factor for consideration in property division.” Deborah H. Bell, Bell on Mississippi Family Law § 6.08[e], 176 (2d ed. 2011).
¶12. Here, Ellison did receive a slightly larger portion of the marital estate than Williams, but the chancellor did not cite that as his reasoning. The chancellor stated that he was aware it was Ellison’s family home that they first resided in and then leveraged to purchase another home; he therefore awarded Ellison sixty percent. The chancellor awarded Ellison a fault-based divorce but then did not directly consider how Williams’s absences and infidelity affected the stability and harmony of the home when dividing the estate. Because we believe the chancellor’s lack of consideration was error, we reverse and remand for further proceedings on this issue to allow the chancellor to consider the extramarital relationship in equitably dividing their estate. Additionally, we reverse and remand to allow the chancellor to make a full Ferguson analysis on the record.
Judge Tindell, joined by Carlton, Greenlee, and McCarty, disagreed in part. His concurring and dissenting opinion:
¶20. Because the chancellor heard evidence of Williams’s extramarital relationship and thereafter awarded Ellison with a greater percentage of the marital estate, I would affirm the chancellor’s judgment in its entirety. Where substantial evidence supports a chancellor’s findings, the Court is without authority to disturb the chancellor’s conclusions even if it would have found otherwise in the original matter. Joel v. Joel, 43 So. 3d 424, 429 (¶14) (Miss. 2010). We have previously held that “failure to make an explicit factor-by-factor analysis does not necessarily require reversal where we are satisfied that the chancellor considered the relevant facts.” Palmer v. Palmer, 841 So. 2d 185, 190 (¶18) (Miss. Ct. App. 2003). Unless the chancellor’s judgment was manifestly wrong, clearly erroneous, or applies an erroneous legal standard, the judgment should stand. Carambat v. Carambat, 72 So. 3d 505, 510-11 (¶24) (Miss. 2011).
¶21. The final judgment does address Williams’s adultery in the chancellor’s findings of fact. Further, after conducting a full Ferguson analysis, the chancellor awarded Ellison sixty percent of the marital assets and forty percent to Williams. Substantial evidence supported the chancellor awarding a greater portion of the marital estate to Ellison, and he did so accordingly. For these reasons, I find no manifest error in his conclusions and respectfully dissent in part from the majority’s opinion.
To say that there is a crazy-quilt of decisions on point would be a laughable understatement: the chancellor must address all of the Ferguson factors; the chancellor must address only the pertinent Ferguson factors; the chancellor’s consideration of the Ferguson factors may be gleaned from her findings in the record, regardless whether she ever mentions Ferguson; Ferguson factors must be specifically addressed; adulterous conduct must be considered for its impact on the stability of the household; the chancellor may not use property division to punish misconduct or reward good conduct.
July 15, 2019 § Leave a comment
Rodney Kimble and his wife Stepidy went through a divorce. Rodney didn’t like the way the chancellor divided the marital estate, and he particularly objected to the judge’s valuation of a 2006 Volvo truck, a 2000 Freightliner trailer, and a 2007 Transcraft trailer, all of which he complained were overvalued by the chancellor. He appealed, arguing that the trial court erred in not considering his testimony that the truck and trailers were inoperable and had not been used in several years.
Here’s how Judge Tindell, writing for the COA, addressed Rodney’s claims in Kimble v. Kimble, decided June 18, 2019:
¶8. “[T]he foundational step to make an equitable distribution of marital assets is to determine the value of those assets based on competent proof.” Dunaway v. Dunaway, 749 So. 2d 1112, 1118 (¶14) (Miss. Ct. App. 1999) (citing Ferguson, 639 So. 2d at 929). “[I]t is incumbent upon the parties, and not the chancellor, to prepare evidence touching on matters pertinent to the issues to be tried.” Benton v. Benton, 239 So. 3d 545, 548 (¶11) (Miss. Ct. App. 2018). When “a party fails to provide accurate information, or cooperate in the valuation of assets, the chancellor is entitled to proceed on the best information available.” Id. The chancellor possesses sole authority to assess both the credibility and weight of witness testimony. Culumber v. Culumber, 261 So. 3d 1142, 1150 (¶24) (Miss. Ct. App. 2018).
¶9. Here, as previously discussed, both parties submitted Rule 8.05 financial disclosures to the chancellor and testified at the hearing. Rodney’s initial Rule 8.05 disclosure, however, failed to reflect all his assets. During questioning by Stepidy’s attorney, Rodney admitted that his Rule 8.05 financial statement failed to include three bank accounts and five vehicles and/or trailers that he owned. Stepidy’s attorney also questioned Rodney about the values he listed for certain vehicles and the discrepancies between those values and the higher valuations reflected by the National Automobile Dealers Association (NADA). While subsequently questioning Rodney about his valuation of the marital home, the following exchange occurred:
STEPIDY’S ATTORNEY: Okay. And on the financial declaration, you say the house . . . [is] worth about [$]63,000; is that right?
RODNEY: I guess.
STEPIDY’S ATTORNEY: Well, I mean, that’s what you put down.
THE COURT: Hang on. Rule 8.05 requires the parties to exchange a financial statement that’s to be signed under oath. I’ve sat here for the last 30 minutes and listened to various and numerous discrepancies in your 8.05. I’m going to take a break, and at 9:45[a.m.], I’m going to return, and I want that 8.05 to reflect exactly what your knowledge is.
THE COURT: I’ve heard vehicles that aren’t listed. I’ve heard checking accounts that aren’t listed. Somebody hasn’t done . . . [his or her] job. I’m going to give you ten minutes to do it, or I’m going to hold you in contempt. Do you understand what I’m telling you?
¶10. On Stepidy’s Rule 8.05 statement, she listed the following values for the three vehicles now at issue on appeal: (1) $20,000 for the 2006 Volvo truck (VIN ending in 3635); (2) $17,000 for the 2000 Freightliner conventional trailer; and (3) $20,000 for the 2007 Transcraft trailer. Stepidy testified that she and her attorney obtained these values from NADA after inputting the vehicles’ VINs and title information. While Rodney’s initial Rule 8.05 statement failed to list any of the three disputed vehicles, Rodney testified that the 2006 Volvo truck (VIN ending in 3635) was inoperable and that he no longer used the 2000 Freightliner conventional trailer. Rodney further testified that he had tried and failed to sell the vehicles. As a result, Rodney claimed that both vehicles lacked any monetary value. As to the 2007 Transcraft trailer, Rodney stated that he rarely used the trailer, and he valued the item at $4,000.
¶11. Despite Rodney’s testimony that he had not driven or operated the 2006 Volvo truck (VIN ending in 3635) in three to five years, Stepidy’s attorney questioned him about two different tickets he had received for the vehicle within the last two years. (The first ticket was issued in August 2015, and the second ticket was issued in February 2016.) In response, Rodney stated that a mistake had occurred and that the VINs for his two 2006 Volvo trucks had been mixed up.
¶12. In rendering his bench opinion, the chancellor found that Rodney lacked credibility and that his testimony had been full of inaccurate and untruthful information intended to conceal his income and assets. Based on the evidence before him, the chancellor valued each of the now disputed items among the amounts provided by Stepidy’s Rule 8.05 statement and Rodney’s testimony and amended the Rule 8.05 statement. Because we find the record contains sufficient evidentiary support for the chancellor’s valuation of the three disputed assets, we refuse to find any manifest error. See Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (¶28) (Miss. Ct. App. 1999) (refusing to find error where “the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. . . . [and] appears to have fully explored the available proof and arrived at the best conclusions that he could . . . .”). We therefore find this assignment of error lacks merit.
- The chancellor found that Rodney lacked credibility. Not surprising given the sorry state of his 8.05 and his slipshod answers to questions about values. When the chancellor bases her findings on credibility, her conclusions are well-nigh bulletproof on appeal because it is within the chancellor’s exclusive realm of responsibility to assess credibility and the weight to assign to testimony.
- You could just about hear the chancellor’s frustration over the incomplete 8.05. A frustrated chancellor is never a good thing when he is frustrated at you or your client.
- Rodney sort of self-destructed on the witness stand over his assertion that he hadn’t driven the truck and trailers but had been ticketed while operating them. The judge didn’t buy the mixed-up VIN excuse, and I don’t know anyone else who would have either.
- Contrast Rodney’s valuations with Stepidy’s. Hers had a rational basis that the chancellor could rely on, and were presented in an orderly and complete fashion.
July 8, 2019 § Leave a comment
State Bar Annual Meeting and Summer School
Next post July 15, 2019
July 5, 2019 § Leave a comment
“The ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (i.e., the reality of experience) and the distinction between true and false (i.e., the standards of thought) no longer exist.” — Hannah Arendt
“In short, I suspect totalitarianism to be the retribution that befalls all peoples who give free rein to extremists and extremism, who forget the golden rule of political life, which is that ideas are never good except in moderation, and that anything carried to its logical conclusion becomes a menacing caricature of itself.” — George Kennan
“A little patience and we shall see the reign of witches pass over, their spells dissolve, and the people recovering their true sight, restore the government to its true principles. It is true that in the meantime we are suffering deeply in spirit , and incurring the horrors of war and long oppressions of enormous public debt. . . . If the game runs sometimes against us at home we must have patience till luck turns, and then we shall have an opportunity of winning back the principles we have lost.” — Thomas Jefferson, Letter to John Taylor, 1798
July 4, 2019 § Leave a comment
Court House closed
July 3, 2019 § Leave a comment
… That is the question. Or was in a recent COA case.
A chancellor had sealed records in a controversial case, and a Jackson-area law firm sought to intervene in the litigation based on its claim that it should have access to certain documents produced in discovery but now kept from it by seal. The chancellor denied the motion to intervene, with the effect that the firm had no basis to access the records, and the law firm appealed.
In Butler Snow and Clark v. Estate of Mayfield, et al., the COA ruled that the chancellor improperly sealed the records.
¶25. “Mississippi law favors public access to public records . . . .” Estate of Cole v. Ferrell, 163 So. 3d 921, 925 (¶18) (Miss. 2012). “Court filings are considered to be public records, unless otherwise exempted by statute.” Id. at (¶15). “The law allows courts to determine when information should be declared confidential or privileged, exempting it from the Public Records Act.” Id. at 929 (¶33).
¶26. As Estate of Cole explains, the Legislature actually requires sealing certain types of records, such as certain youth court records, or confidential financial information. Id. at 924 (¶10). In general, “parties may request that the trial court seal certain documents,” at which point “the trial court may, in its discretion, limit the public’s access to those records.” Id. That discretion in sealing likewise provides us with a deferential standard of review, for in “determining whether the action taken by the court is proper, we review for an abuse of discretion.” Id. at (¶11).
¶27. In analyzing whether to seal a record, the Supreme Court explained that a trial court must “balanc[e] the parties’ competing interests—the public’s right of access versus confidentiality.” Id.; accord Miss. Dep’t of Corr. v. The Roderick & Solange MacArthur Justice Ctr., 220 So. 3d 929, 951 (¶78) (Miss. 2017) (noting the balancing test to weigh the public right of access against the private desire to seal the record from review).
¶28. Recently, the Supreme Court was faced with a sealed divorce file that contained serious allegations of the sexual abuse of underage children. Smith v. Doe, 2016-CA-00875-SCT, 2018 WL 549404 (Miss. Jan. 25, 2018). “Given the allegations raised and evidence presented in this appeal, th[e] Court ha[d] significant public health and safety concerns.” Id. at *5 (¶27). It “therefore remand[ed] the chancellor’s order sealing the court file for the trial court to conduct the balancing test set out in Estate of Cole . . . and determine whether the court file should remain under seal.” Id.
¶29. In this case, there is no indication the chancery court conducted the balancing test in any fashion. The only request to the chancery court was from Mayfield’s family to seal the matter to shield against all public scrutiny. During oral argument, counsel for Mayfield’s family admitted that any need for sealing the record was lessened by the pendency of the federal suit, which injected the allegations back into the public sphere. Despite this admission, the Mayfield family has actively used the seal as a shield against discovery in the federal litigation, to conceal what information it obtained pursuant to the bill of discovery.
¶30. Our review of the record shows that it does not contain confidential information, or indeed any information, that warrants a seal; as set out above, no balancing test was performed prior to sealing. The three-volume record before us primarily contains notices of subpoenas issued, depositions taken, and various other pretrial matters. The record does not contain the responses to the subpoenas duces tecum, deposition transcripts, or other documents obtained in discovery. We therefore reverse and render, unsealing the trial court record. We take no position on whether the information gained in the suit below is discoverable in the federal action, since that will be determined by the magistrate and district court in that pending action.
Lesson here is that the record must reflect that the chancellor conducted the proper balancing test. If you feel that there is an appeal in your case’s future, it would behoove you and your client to ensure that the judge does so and that it is in the record. If you don’t, you might have to explain to your client why the case is headed back to the trial court for a do-over. Clients hate to pay for a do-over, especially one that their lawyer could have avoided.
Oh, and a related point; when the record is sealed in MEC, everybody — and that includes you — is barred from reading anything in the file. Some lawyers came to me and asked me to seal a file, and I did because every attorney in the case agreed. They then discovered to their chagrin that none of the attorneys was receiving copies of pleadings filed and orders entered. They soon scrambled back and urged me to unseal the file, which I did. Better to ask that a particular document be sealed.
Most sealing takes place in domestic cases by agreement. If you don’t have an agreed order, it’s best either to forego sealing or set the matter for hearing and ask the judge to conduct an Estate of Cole balancing test on the record.
July 2, 2019 § Leave a comment
MRAP 4(d) reads in part this way:
(d) Post-trial Motions in Civil Cases. If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the
order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure (1) for judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment. * * *
A R50(b) is one for a directed verdict or JNOV, which means that it applies only in jury trials where the jury is to render a binding verdict. The only time you would see this in chancery is in a will contest with a jury. In the rare and unlikely case of an advisory jury, this rule would not apply (see Advisory Committee Notes).
R52 allows any party to request the court to make specific findings of fact and conclusions of law.
R59 provides two avenues of relief: R59(a) is a motion for new trial, pursuant to which the chancellor may “take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct entry of a judgment;” R59(e), on the other hand, is a motion to alter or amend the judgment.
A R60 motion for relief from judgment filed within ten days of the date of the judgment will toll running of the appeal time; in essence, if it is filed within the ten-day period, it is treated the same as a R59 motion.