Bell Dates for 2020

January 17, 2020 § Leave a comment

Might as well annotate your calendars now for the Bell Family Law seminars upcoming in 2020. Here are the dates:

July 10     Jackson

July 24     Oxford

July 31     Mississippi Gulf Coast

I have said it here before: there are other Mississippi family law seminars, but there is no better Mississippi family law seminar. You will receive a handout summarizing all of the 2019-2020 cases. The lectures analyze the case law and discuss related issues, which in the past have included reproductive technology and bankruptcy. There is an ethics hour.

The only benefit I gain from mentioning this is the improved performance of lawyers who have attended the seminar. And for any judge that is quite a valuable benefit indeed.

And Then There Was One

January 15, 2020 § 8 Comments

Back when I started this blog in 2010, there were some entertaining, informative Mississippi lawyer blogs that I read regularly. These were on my regular reading list:

Ipse Blogit was Jim Craig’s and Matt Eichelberger’s fun, mildly muckraking, always satirical entry. After resurrecting it from a hiatus, they stopped publication entirely only a few months after I started.

NMiss Commenter was started by Tom Freeland as a real-time report on the Scruggs scandal and morphed into its own freestanding general-purpose entertainment and must-read daily until Tom’s untimely and unexpected death early in 2015.

Thus Blogged Anderson was erudite, humorous, and subtle, as well as full of book recommendations and insight. Anderson exited the stage for Twitter a few years ago, where he may still hold forth. I don’t know. Twitter can be bad for my blood pressure, so I avoid it.

randywallace posted on law, hunting, cooking, and anything else he put in his crosshairs. His posts became less frequent over time; his latest was in August, 2019.

Jane’s Law Blog, which came along only a few years ago, kept us up to date on our appellate courts, but author Jane Tucker lost her server in 2019 and never recovered. Her site is still down.

MS Litigation Review and Commentary by Philip Thomas was for years a go-to site for following litigation stories and developed more recently into a resource for law-office technology and practice. On Monday, he posted that, after 11 years, he is ending his blog with a final post on March 2. I would not be surprised if fatigue is an element in that decision.

There may be other Mississippi non-marketing legal blogs out there that I have yet to discover, and I would like to hear from them if there are. Until then, when March 2 rolls around I guess that this will be the last Mississippi legal blog standing, so to speak. There’s a reason in common that most of those blogs have gone extinct: it’s hard to keep up, even burdensome.

If you’re considering blogging as other than a marketing tool, there are some pluses and minuses:

  • Pluses include getting to express your views, coming into contact with a wide range of people you’d probably never meet otherwise, and the motivation to learn more about the subject on which you blog.
  • Minuses include demand on your time (a biggie), the need to be mostly accurate and right, and the burden of the whole thing. You can minimize the minuses somewhat by posting irregularly and less frequently, but if you do you will have fewer readers; people like to find something new to read when they click on your site. And if you have only a few readers, what’s the point?

Finally, you have to find a niche. Jane, for instance, met a need by posting decision summaries and describing motion hearings and oral arguments. I have focused on chancery practice. Tom enlightened us on the law, food, the blues, and Mississippi culture. The others mentioned above all catered to readers searching for something specific. And, it’s important to understand that if you’re not a crisp, clear writer like Anderson or Tom Freeland, you probably shouldn’t blog.

Every blogger has the nagging concern about running out of worthwhile things to say. Philip Thomas hints at that in his announcement when he says, “In retrospect, it’s past time.” For me, as long as we have appellate courts burping out opinions twice a week, I have plenty of material to keep me occupied, so I feel (I hope not mistakenly) that I still have something worthwhile to say, and for now I will continue to soldier on.

Those bloggers up there inspired me to undertake this one. It came about after a telephone conversation with another chancellor about how to educate lawyers on compliance with the adoption statute in effect at the time. We talked about an information sheet and a couple of other ideas, but couldn’t come up with anything satisfactory. After hanging up, I returned to my computer where Tom Freeland’s blog was on the screen. A lightbulb went on in my head and the idea became this.

So soon there will be one. For now.

 

 

Rules for Comment

January 14, 2020 § 3 Comments

Yesterday I mentioned the high court’s order amending MRCP 26.

There is plenty of other change to the MRCP in the works.

If you will go to the MSSC’s site and click on Research/Rules/Rules for Comment, you will find nine MRCP posted inviting your comments.

The rules currently for comment are (Clicking on the link will take you to the committee’s motion):

29   Stipulations regarding discovery.

30   Depositions.

33   Interrogatories.

34   Production of documents and entry upon lands.

37   Failure to make or cooperate in discovery.

43   Taking of testimony.

45   Subpoena.

46   Exceptions unnecessary.

54   Judgments and costs. There also is a separate letter motion .

Although the comment deadline has elapsed on all but one posted rule, I have been old that the court will consider all comments received until the court takes up the rule for action. If my info is correct, why not take the opportunity to have your input?

The Advisory Committee on Civil Rules has sent more than a dozen more proposals for changes to other MRCP that the court has not (yet) put up for comment. Stay tuned.

 

New MRCP 26

January 13, 2020 § 2 Comments

In case you missed it, the MSSC adopted a new version of MRCP 26 that went into effect January 1, 2020.

You can find it at this link. There’s too much new to cram into this space. You would do well to study it and change your practice accordingly.

As I see it, the changes will primarily affect three groups:

  1. Lawyers who do discovery.
  2. Lawyers who don’t bother to read the rules.
  3. Lawyers who use expert witnesses.

Reading

January 10, 2020 § 1 Comment

The Yellow House by Sarah M. Broom. This memoir of a black family in New Orleans East is at its core an everyman tale of wants and unmet needs, of dreams and expectations, of joys and disappointments, of high hopes and entropy, and ultimately of disaster and survival. To understand this family one must understand the house in which it lives and breathes and has its being, and the house’s relationship to it, and the relationship they have with each other, and with their neighborhood and city and the culture, and how the family gradually unravelled yet held together as the house decayed and was destroyed. Winner of the 2019 National Book Award. Highly recommended. Non-fiction.

The Cadaver King and the Country Dentist by Radley Balko and Tucker Carrington. Disturbing account of the rise and fall of pathologist Steven Hayne, who improbably performed thousands of autopsies a year, and dentist Michael West, who made a successful career claiming to identify perpetrators by teeth marks, and their impact on the Mississippi criminal justice system. The book principally focuses on the convictions of two men, Kennedy Brewer and Levon Brooks, who spent years in prison based on Hayne’s and West’s testimony until their ultimate exoneration. Non-fiction.

The Silent Patient by Alex Michaelides. An Englishwoman is charged with murdering her husband and then goes silent. Instead of being convicted, she is declared insane and is institutionalized. A psychotherapist takes on the task of getting her to talk. What has she been hiding with her silence? What does she have to say? The answers come with a surprising twist. An easy, entertaining read and NY Times best-seller. Fiction.

Ghost Soldiers by Hampton Sides. With the American army sweeping inexorably across Luzon in the Philippines toward Manila in 1944, Japanese soldiers burned alive 150 American prisoners of war at a prison camp on Palawan. Fearing a similar execution of 500 survivors of the Bataan death march at the Cabanatuan POW camp, a force of 120 American Rangers was sent deep behind enemy lines on a covert mission to save them. This is the story of the dangerous and daring rescue. The 2005 movie, The Great Raid, was based in part on this book. Non-fiction.

Manila Espionage by Claire Phillips. Medicine and food was smuggled in to the prisoners at Cabanatuan by a mysterious woman code-named “High Pockets.” She was an American, Claire Phillips, who posed as an Italian woman running a night club in Manila that was a favorite hang-out for Japanese military officers, officials, and businessmen from whom she extracted valuable intelligence that she passed on to Americans and Filipino guerillas. She spent much of her profit to help the American prisoners and Filipino guerillas. Later arrested, tortured, and imprisoned, she refused to betray her accomplices. After the war she was awarded the Medal of Freedom and $1.3 million for her services. This is her story. Non-fiction.

The Magic of Reality by Richard Dawkins. Ultra-realist and non-believer Dawkins employs science, facts, and logic to answer questions such as what is magic, when and how did everything begin, and what is a miracle, among others. Not recommended for readers who do not care to have their beliefs and preconceptions challenged. Non-fiction.

The Judge Hunter by Christopher Buckley. In 1664, after the Restoration of Charles II, Samuel Pepys’s brother-in-law, nicknamed “Balty,” is dispatched to America to hunt down and arrest two of the judges who signed the death warrant for Charles I that resulted in his execution. Balty soon finds himself tangled in intrigues and a larger stratagem that changes the course of history. Based in part on the diaries of Samuel Pepys. Witty and well-written, not just for history nerds. Fiction.

The Mississippi Secession Convention by Timothy R. Smith. Secession was a sure thing when Mississippi delegates convened in Jackson after Lincoln’s 1860 election. But what form would it take? Negotiate for concessions? An ultimatum? Wait and see? Follow other seceding states? The debate and profiles of the delegates are limned out in detail. Anyone who clings to the notion that the Civil War was not about slavery should read this book and Mississippi’s Declaration of the Causes of Secession authored by L.Q.C. Lamar. Non-fiction.

Chasing the Scream by Johann Haari. The story of the drug war, from its earliest days 100 years ago to now, its failure, the corruption and illegal cartels it has spawned, and the human wreckage it has produced. Non-fiction.

A Sand County Almanac and Sketches Here and There by Aldo Leopold. One of the earliest conservationists, professor Leopold chronicled the changing seasons on his farm in Wisconsin in near-poetic prose that reveals the majesty and marvel of nature. Included with his almanac are some of his essays on ecology and conservation. Non-fiction.

Life and Fate by Vasily Grossman. Novel of the WWII siege of Stalingrad through the eyes of several civilians and soldiers. Grossman, who was the first allied journalist to enter and report about a liberated German death camp, intended his novel to be the Soviet War and Peace. Instead, it was banned and all copies, and even the typewriter ribbons on which they were typed, were confiscated by the KGB due to the parallels the book draws between Hitler and Stalin and the two countries’ slave-labor and death camps. But a manuscript was smuggled to the west and published in 1980, 16 years after the author’s death. This book is an immense slog of 871 pages (only about half the length of Tolstoy’s opus, though) in paperback, recommended for the most dedicated of readers only. Fiction.

Is a Step-Grandparent a Grandparent?

January 8, 2020 § Leave a comment

Not for grandparent visitation purposes, says the MSSC.

That was one of the holdings of the court in the case of Garner (aka Garcia) v. Garner, decided October 3, 2019.

In that case, the chancellor modified custody of Andrew, awarding an uncle custody, and allowed visitation with the maternal grandparents, Judi and Ron. Ron was the child’s step-grandfather. The mother, April, appealed.

Justice Griffis wrote for a 5-4 court:

¶85. The chancellor determined that Andrew’s best interests would be served by allowing visitation with his maternal grandparents, Judi and Ron. April argues the chancellor erred by awarding grandparent visitation to Ron. She does not contest or appeal the chancellor’s award of grandparent visitation to Judi.

¶86. April asserts that Ron does not meet the statutory criteria for grandparent visitation because he is a step-grandparent. Whether a step-grandparent has a right to petition to seek visitation with the child depends entirely on whether he or she is a “grandparent” within the
meaning of Mississippi Code Section 93-16-3 (Rev. 2018). This presents an issue of statutory interpretation, which is reviewed de novo. T.T.W. v. C.C., 839 So. 2d 501, 503 (Miss. 2003).

¶87. Grandparents do not possess a common-law right of visitation. Smith v. Wilson, 90 So. 3d 51, 58-59 (Miss. 2012). Such a right is purely statutory. Section 93-16-3 provides,

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

Miss. Code Ann. § 93-16-3 (Rev. 2018).

¶88. Section 93-16-3 does not expressly define “grandparent,” but it does refer to a grandparent as the “parent of a child’s parent.” Miss. Code Ann. § 93-16-3(1). Notably, no reference is made to a step-grandparent in the statute.

¶89. In Lott v. Alexander, 134 So. 3d 369, 374 (Miss. Ct. App. 2014), the court reversed the chancellor’s award of visitation to great-grandparents. The court noted that “[n]either subsection one or two of 93-16-3 purports to authorize visitation awards to greatgrandparents.” Id. at 372. The court found that “[g]iving the term ‘grandparent’ its plain and ordinary meaning, the intent of the Legislature is clear and unambiguous.” Id. at 373. As a result, the court found it “lack[ed] authority to add words or meaning to a statute that is plain on its face.” Id. at 374. Additionally, in Pruitt v. Payne, 14 So. 3d 806, 811 (Miss. Ct. App. 2009), the court found a stepfather “ha[d] no right to visitation with his stepchildren under the laws of the State of Mississippi.”

¶90. Here, as in Lott, “[n]either subsection one or two of [Section] 93-16-3 purports to authorize visitation awards to [step]-grandparents.” Id. at 372. This Court does not have the “authority to write into the statute something which the Legislature did not itself write therein, nor can [this Court] ingraft upon it any exception not done by the lawmaking department of the government.” Id. at 373 (quoting Wallace v. Town of Raleigh, 815 So. 29 2d 1203, 1208 (Miss. 2002)). “While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to step[-grandparents].” Pruitt, 14 So. 3d at 811.

¶91. Because Ron, as Andrew’s step-grandparent, does not meet the criteria of a “grandparent” under Section 93-16-3, the chancellor erred by granting Ron grandparent visitation rights with Andrew. [Fn 11] Accordingly, we reverse and render on this issue.

[Fn 11] Although Ron has no legal right to grandparent visitation under Section 93-16-3, nothing in Section 93-16-3 prevents Ron from visiting or having a relationship with Andrew. “[T]the more familial bonds a child has is generally better for the child . . . .” Lott, 134 So. 3d at 374 (quoting Cole v. Thomas, 735 S.W.2d 333, 335 (Ky. Ct. App. 1987)).

You probably were scratching your head as I was over what difference this ruling would make for Ron. He would undoubtedly get to see and visit with the child when Judi had him, and most likely any other time he wanted, because he, Judi, and the uncle were allied in this case (and then the court pointed that out in Fn 11).

The difference here is the case’s precedential value. Now Mississippi law is that step-grandparents are not grandparents for purposes of the grandparent visitation statute.

Justice King wrote a sharp dissent.

A Couple of MEC Points

January 7, 2020 § Leave a comment

Effective yesterday, MEC will allow you to file a combined guardianship/conservatorship. And the civil cover sheet has been amended to add that category for both MEC and non-MEC filers.

Also, MEC does not allow a petition to approve a minor’s settlement to be filed in a conservatorship (reminder: GAP Act term for guardianship of the estate). When the order or judgment approving the settlement is filed, MEC wants to close the file, which can not be done because the conservatorship must remain open. If the order or judgment is filed and the case is not closed, then the order or judgment is not final according to MEC, which means that the clerk can not collect the fee, and the case is not final in the district’s stats. So, you need to file two separate actions with two separate filing fees.

Allocating GAL Fees

January 6, 2020 § 1 Comment

April Garner, aka Garcia, lost custody of her son, Andrew, to her uncle, David Smith. A GAL had been appointed to investigate and report on the best interest of the child. Around a year after the GAL’s appointment, April made some unfounded allegations of sexual misconduct that caused the court-appointed GAL to do additional work. The chancellor assessed all of the GAL’s fees and expenses totalling more than $25,000 against April, and she appealed.

In Garner (aka Garcia) v. Garner, Fox, and Smith, decided October 3, 2019, the MSSC reversed. Justice Griffis wrote the 5-4 opinion:

¶105. The chancellor assessed the GAL costs as follows:

All costs of the [GAL] are . . . assessed to [April]. To the extent that these fees have been paid by [David], he shall be entitled to a monetary judgment for that amount of those fees. That any unpaid fees shall be paid by [April], as well.

That a copy of the [GAL] fees . . . was introduced at trial . . . and showed that [David] paid a total of $22,127.30. That at the time of the trial, there was an outstanding balance of $3,158.34 and the [GAL] has incurred an additional $900.00 since that date which still remains unpaid. Therefore, the [c]ourt awards a monetary judgment in the amount of $22,127.30 against April . . . in favor of David . . . for his payment of the [GAL] fees prior to trial and the [c]ourt awards a monetary judgment in the amount of $4,058.34 against April in favor of the [GAL].

April argues the chancellor’s assessment of “all” GAL fees was improper. We agree.

¶106. “In all cases in which a [GAL] is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such [GAL] for his service rendered in such cause, to be taxed as a part of the cost in such action.” Miss. R. Civ. P. 17(d). Under Section 93-5-23, GAL fees are treated as court costs to be awarded against the nonprevailing party. Miss. Dep’t of Human Servs. v. Murr, 797 So. 2d 818, 821 (Miss. 2000) (citing Miss. Code Ann. § 93-5-23). “‘Chancery courts have large discretion in apportioning costs.’” McCraw v. Buchanan, 10 So. 3d 979, 985 (Miss. Ct. App. 2009) (quoting Ashburn v. Ashburn, 970 So. 2d 204, 217 (Miss. Ct. App. 2007)). “‘Nevertheless, the exercise of such discretion is not final . . . , and if it appears that the decree apportioning the costs works a manifest injustice on any of the parties, the decree will be reversed.’” Id. (quoting Ashburn, 970 So. 2d at 217).

¶107. The chancellor found that “[b]ased on the allegations made by the parties . . . , the appointment of a [GAL] [wa]s required.” The chancellor appointed the GAL “to investigate and ascertain the facts, and make reports and recommendations to th[e] [c]ourt as to what is
in the best interest of the minor child.” The chancellor noted that “the [p]arties may be equally responsible for payment of the attorney’s fees incurred by the [GAL] in investigating this case.” The chancellor ordered David to pay $1500 to the GAL as a retainer for his services, “plus any travel costs or other expenses that may be incurred by the [GAL], including the costs of obtaining records from third parties, in regard to this investigation.”

¶108. Notably, the GAL was appointed on September 29, 2016, approximately one year before the sexual-abuse allegations were made. Thus, although the GAL’s appointment included an investigation of the sexual-abuse allegations, his appointment was not limited to those allegations.

¶109. In Tidmore v. Tidmore, 114 So. 3d 753, 758 (Miss. Ct. App. 2013), the chancellor found the abuse allegations made by the mother were without foundation and therefore assessed attorneys’ fees against her. On appeal, the Mississippi Court of Appeals found that while the father was entitled to an award of attorneys’ fees, it was unclear whether the total amount of fees awarded was for the defense against the abuse allegations. Id. at 759. The court explained that it appeared that at least some of the fees awarded were for the modification-of-child-custody proceedings. Id. As a result, the court reversed and remanded in order for the chancellor to determine the amount of attorneys’ fees that should be awarded to the father for the defense against the baseless abuse allegations. Id.

¶110. Here, the chancellor assessed all GAL costs against April without any determination as to what portion of those costs were spent investigating the unsubstantiated sexual-abuse allegations. Like the father in Tidmore, David is entitled to those GAL costs incurred as a
result of the unsubstantiated abuse allegations. Id. However, the record is unclear what portion of the total amount of costs awarded was actually incurred by the GAL in investigating those allegations. See Miss. Code Ann. § 93-5-23 (“If after investigation . . . allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.” (emphasis added)). Accordingly, the chancellor’s assessment of GAL costs is reversed and remanded in order for the chancellor to determine the amount of GAL costs incurred as a result of the unsubstantiated sexual abuse allegations.

Do your client and the judge a favor and develop that proof at trial.

“Quote Unquote”

January 3, 2020 § 2 Comments

“The greater part of what my neighbors call good I believe in my soul to be bad, and if I repent of anything , it is very likely to be my good behavior. What demon possessed me that I behaved so well?” – Henry David Thoreau

“”How far should one accept the rules of the society in which one lives? To put it another way: at which point does conformity become corruption? Only by asking such questions does the conscience define itself.” – Kenneth Tynan

“I will not do that which my conscience tells me is wrong to gain the huzzahs of thousands, or the daily praise of all the papers which come from the press; I will not avoid doing what I think is right, though it should draw on me the whole artillery that falsehood and malice can invent, or the credulity a deluded populace can swallow.” – William Murray, Earl of Mansfield, Lord Chief Justice of England

December 31, 2019 § Leave a comment

Holidays

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