Blueprint for Proving Fraud on the Court

March 20, 2019 § 2 Comments

If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.

Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.

In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:

(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;

(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;

(3) the facts must not have been known to the injured party at the time of the original decree; and

(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.

Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.

Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.

If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.

In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].

How Not to do a R81 Summons

March 19, 2019 § Leave a comment

It should go without saying that the chancellor may not proceed unless and until she has personal jurisdiction over the defendant or respondent. If process is defective, there is no personal jurisdiction, and any action the chancellor takes is of no effect.

That principle came painfully into play when Nancy Edwards sued her ex, Johnny Edwards, for contempt and modification. After hearing the matter, the chancellor found Johnny in contempt, ordered him to do certain acts to purge himself of contempt, and directed a review hearing. A R81 summons was issued directing him to appear at a stated date and time “in the courtroom of the Oktibbeha County Courthouse at Columbus, Mississippi.” When the matter came before the judge and Johnny did not appear, the court found him in contempt and granted other relief. Johnny appealed.

The COA reversed and remanded in Edwards v. Edwards, decided February 12, 2019. Chief Judge Barnes wrote for the unanimous court sitting en banc:

¶9. The first assignment of error raised on appeal is that the summons was defective. As noted, the summons directed Johnny to appear on May 15, 2017, at the “Oktibbeha County Courthouse at Columbus, Mississippi.” (Emphasis added). The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus. Columbus is located in Lowndes County. “[A] court may take judicial notice that a city is in a particular county.” Russell v. State, 126 So. 3d 145, 148 (¶8) (Miss. Ct. App. 2013). The record also indicates that the chancery court conducted hearings in various counties throughout its district, including Oktibbeha, Lowndes, and Chickasaw.

¶10. Rule 81 mandates that in certain actions, such as contempt, “special notice be served on a respondent for a hearing with a date, time[,] and place specified.” Bailey v. Fischer, 946 So. 2d 404, 406 (¶7) (Miss. Ct. App. 2006); see also Sanghi [v. Sanghi], 759 So. 2d [1250] at 1256 (¶28) [(Miss. App. 2000)] (The only required information for a summons under Rule 81 “is that a party is to be told the time and place for the hearing and that no answer is needed.”). In Caples v. Caples, 686 So. 2d 1071, 1074 (Miss. 1996), the Mississippi Supreme Court found notice issued to a respondent was defective and “inconsistent with Rule 81,” even though the respondent made an initial appearance, because the notice did not contain the time and place of the hearing and required a written response to the complaint.

¶11. In this instance, the Rule 81 summons failed to specify the correct place for the hearing. [Fn omitted] Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus. Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.

An unmentioned corollary is that close is not good enough when it comes to process. The process on its face must comply in every particular with R81 (or R4 if that governs the action in which you are proceeding), and “substantial compliance” is not adequate. The only cure for defective process is voluntary appearance of and participation by the summoned party without objection to personal jurisdiction.

Resource for Interpreters

March 18, 2019 § Leave a comment

When you need an interpreter for court, it’s a critical need, indeed. Without one key testimony might be entirely inaccessible.

The AOC is responsible for training and certifying interpreters. As the AOC website explains:

Many people living in Mississippi readily read, speak, and understand English. There are many others living in Mississippi for whom English is not their primary language and for whom English is not readily understood. For those limited English proficiency (LEP) individuals, understanding and exercising their legal rights may be difficult and could result in the denial of any meaningful access to the justice system.

Court interpreters must possess specialized skills that very few bilingual individuals possess. The Mississippi Administrative Office of Courts (AOC) became a member of the Consortium for Language Access in the Courts of the National Center for State Courts in order to gain access to other professionals in the field of Court interpreting. The Administrative Office of Courts has developed the Mississippi Court Interpreter Credentialing Program, based on model policies promulgated by the Consortium, in order to assist the courts in Mississippi in their endeavor to provide equal access to justice for limited English proficiency individuals. This program will train, certify, and test individuals who wish to serve as interpreters in the courtrooms of Mississippi. The AOC adopted the Code of Ethics for Court Interpreters and the Rules on Standards for Court Interpreters on October 17, 2011.

The AOC court interpreter web site is at this link. Or, you clan click the AOC tab on the Mississippi Judiciary website.

Whom to appoint as interpreter is within the discretion of the trial court. AOC suggests that candidates be considered in this order: (1) Certified, meaning that the person has been found to have the requisite skills, has undergone training in courtroom techniques and ethics, and has been certified; (2) Registered, meaning that the person has applied for certification but has not completed the process; and Non-credentialed, meaning that the person is neither certified nor registered.

Changing Rule 81

March 15, 2019 § 5 Comments

As I did last month, I invite your comments and suggestions as to how MRCP 81 might be amended to improve its performance. Or maybe you think it’s fine as is. Please comment and let me know your thoughts.

The MSSC Advisory Committee on Civil Rules is combing through the MRCP to suggest amendments. Your thoughts as practitioners and judges will be helpful in the process.

A Less-Than-Final Judgment

March 13, 2019 § Leave a comment

The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.

On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.

You file a R59 motion, which is denied.

Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?

The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.

The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.

The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.

Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.

PSA No-No’s

March 12, 2019 § Leave a comment

Just because your client agrees with her estranged husband to certain terms for settlement of their divorce does not mean that you should plug those terms into a PSA and shove it under the judge’s nose for approval along with a divorce judgment. Our appellate courts have held that some provisions are void and unenforceable as contrary to public policy. Here are the most notable:

  • A provision that relocation of the custodial parent would automatically trigger a change of custody without court action is void because it deprives the chancery court of jurisdiction to modify its judgment. McManus v. Howard, 569 So.2d 1213, 1216 (Miss. 1990).
  • Likewise, an agreement that the custodial parent may not relocate without prior court approval is void. Bell v. Bell, 572 So.2d 841, 845-46 (Miss. 1990).
  • The parties may not agree that child support terminates when the child turns 18. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991).
  • A post-nuptial agreement that the father would automatically have custody of the parties’ child in the event of a separation was held to be unenforceable. McKee v. Flynt, 630 So.2d 44, 50 (Miss. 1993).
  • A mother’s agreement to forego child support in return for a deed to some property was void as against public policy. Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986).
  • The parties’ agreement that the mother would pay no child support if she agreed to transfer custody to the father is unenforceable. R.K. v. J.K., 946 So.2d 764, 779-80 (Miss. 2007).

It should go without saying that the chancellor, before approving the agreement, must find that it makes adequate provision for the support and custody of the child(ren). MCA § 93-5-2(2). The court reversed in a case where the mother agreed to no visitation whatsoever and to a provision that her payment of child support was in an amount she could not afford. Lowrey v. Lowrey, 919 So.2d 1112, 1119 (Miss. 2005).

An agreement for no child support should be approved only in the most exceptional circumstances, such as unemployment. Brawdy v. Howell, 841 So.2d 1175, 1179 (Miss. App. 2003).

It is against public policy for the parties to present one agreement to the court for approval while having a secret agreement that they would not abide by its terms. Wilburn v. Wilburn, 991 So.2d 1185, 1193 (Miss. 2008). I set aside a divorce judgment on its first anniversary after I was presented proof in court that the parties had exchanged emails in the course of settlement negotiations that the husband promised he would not enforce the wife’s obligation to pay certain debts under the agreement if she would agree that he did not have to pay the child support provided for. Oh, and the agreement for her to pay certain debts was only in the agreement to help her qualify for a low-income mortgage.

Keep in mind that our appellate courts have been reversing cases in which the paying party was ordered to maintain life insurance in a benefit amount in excess of the total obligation. In one case, the trial court ordered the ex-husband to maintain a $1,000,000 life insurance policy to secure a $480,000 lump sum alimony award. The COA reversed, holding that the amount of life insurance may only be enough to secure the award. Griner v. Griner, 235 So.3d 177, 188-89 (Miss. App. 2017). Your PSA’s should follow that line of reasoning or reflect some other justification for the agreed amount.

 

 

Agreements Against Public Policy

March 11, 2019 § Leave a comment

In a recent case, the COA was confronted with the question whether an agreement between the parties for lump-sum child support, incorporated into an irreconcilable differences divorce judgment, was enforceable. Lump sum child support is not allowable in Mississippi. Pittman v. Pittman, 909 So.2d 148, 152-53 (Miss. App. 2005). All of the authorities on Mississippi family law agree.

Kevin McCall filed a petition to modify his lump sum child support and added a R60 motion arguing that the provision was void as against public policy.

In McCall v. McCall, a January 29, 2019, decision, the COA ruled that the issue was no properly before the court because Kevin McCall had never appealed the 2014 divorce judgment that approved the agreement (interesting question: how does one appeal from an agreed judgment?). The opinion, penned by Judge Griffis, went on to add:

¶20. … Instead, this Court recognizes that “property settlement agreements are contractual obligations.” In re Estate of Hodges, 807 So. 2d 438, 442 (¶20) (Miss. 2002). The provisions of a property-settlement agreement executed prior to the dissolution of marriage must be interpreted by courts as any other contract. Id. at 445 (¶26). In East v. East, 493 So. 2d 927, 931-32 (Miss. 1986), the supreme court held that “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” [Fn omitted]

¶21. Although this Court does not authorize the award of lump sum child support, we recognize that circumstances may arise between divorcing parties, such as here, where the divorcing parties may determine that there is a just and a reasonable basis for a non-custodial parent to agree to pay the custodial parent a lump sum amount to satisfy child support obligations.

In a dissent, Judge McCarty took the position that the agreement was void as against public policy, and that the issue was properly before the COA via the R60 motion. Judge Westbrooks joined in the dissent.

It is well-settled in our law that the parties may agree to terms in an irreconcilable differences divorce that no judge could order in a contested case. For instance, they may agree that support for the child will continue beyond age 21, or that child support will exceed the guidelines. Or they may agree to forms of alimony that no judge could order. They may agree that lump sum alimony terminates on death.

It’s difficult to determine where the line is between what the chancellor may approve and what is void whether the chancellor approves it or not. I’ll post some thoughts tomorrow on provisions that our appellate courts have held to be unenforceable.

Dispatches from the Farthest Outposts of Civilization

March 8, 2019 § Leave a comment

The Effect of Termination of Parental Rights on Wrongful Death Beneficiary Status

March 6, 2019 § Leave a comment

DeForest filed a petition in chancery court to have himself declared to be the sole wrongful death beneficiary of his father, Underhill, who had been killed in a trucking accident in Mississippi. DeForest’s petition was contested by Underhill’s brother, Alexander, who took the position that DeForest’s claim was defeated by the fact that Underhill’s parental rights to DeForest had been voluntarily terminated in Michigan in 1983 as part of an adoption action filed by Underhill’s ex-wife seeking to allow the child’s step-father to adopt him. The statute under which the TPR was made included this language:

” … an adopted child is no longer an heir at law of a parent whose rights have been terminated under this chapter … “

The chancellor rejected Alexander’s argument, ruling that Mississippi law governed, and that our law provides that TPR does not preclude his ststus as wrongful death beneficiary. The trial court relied on the case of Estate of Jones v. Howell, 687 So.2d 1171 (Miss. 1996). Alexander appealed.

The MSSC affirmed in Alexander v. DeForest, decided January 31, 2019. Citing Howell, Justice Coleman’s opinion upheld the chancellor’s ruling:

¶14. In Howell, the Court was faced with a similar scenario wherein Warren County Chancery Court held that the decedent’s natural son, who had been adopted by another man, was a wrongful death beneficiary. Howell, 687 So. 2d at 1173. The Court explained that it had

previously addressed the issues now before this Court in Alack v. Phelps, 230 So. 2d 789, 793 (Miss. 1970), and Warren v. Foster, 450 So. 2d 786 (Miss. 1984). In [both cases], this Court held that an adopted child could inherit from his natural parent or parents. Moreover, in Alack, this Court held than an adopted child could bring a wrongful death action for his natural father’s death.

Id. The decedent’s natural son, Samuel Howell, had been adopted by the natural mother’s new husband; the adoption had occurred in Louisiana. Id. at 1174. The Court summarized the appellant’s arguments as follows:

The Estate argues that when we read [Mississippi Code Annotated Section] 11–7–13 (Mississippi’s wrongful death statute) in pari materia with[Mississippi Code Annotated Section] 93–17–13 (Mississippi’s adoption decree statute), we must conclude that the legislature intended that Samuel Howell Clinton’s rights to bring a wrongful death action for his natural father’s death be terminated at the time of adoption. Further, the Estate argues that this Court is obligated under the Full Faith and Credit Clause, Article I, Section 4, of the United States Constitution to apply Louisiana’s adoption law to the case sub judice. Specifically, the Estate argues that because Samuel Clinton Howell was adopted in Louisiana, we must look to Louisiana law to determine whether or not an adopted child can inherit from his natural parent. Under Louisiana decisional law, the Estate contends, a child who has been given up for adoption cannot inherit from his natural parent or parents. See Simmons v. Brooks, 342 So. 2d 236 (La. App. 4th Cir. 1977).

Id. The Court then thoroughly addressed the issue and argument presented. Relevant to the instant case is the following:

When dealing with the issue of adopted children bringing wrongful death actions for the death(s) of their natural parent(s), this Court has looked to Mississippi case law which holds that an adopted child can inherit from his natural parent(s). See, e.g., Sledge v. Floyd, 139 Miss. 398, 104 So. 163 (1925). This Court, by analogy, has cited our law allowing adopted children to inherit from their natural parents and applied the inheritance rule to wrongful death situations and, thus, allowed an adopted child to bring a wrongful death action for the death of his or her natural parent. See, e.g., Alack. We also note that none of the statutes in question, i.e., Section 11–7–13 or Section 93–17–13, specifically prohibits an adopted child from bringing a wrongful death action for his natural parent’s death. In fact, Section 93–17–13 only goes so far as to take away the natural parent’s and sibling’s right to inherit from, and bring a wrongful death action for the death of, a child given up for adoption. McLemore [v. Gammon], 468 So. 2d [84, 84] (Miss. 1985). Section 93–17–13 does not expressly take away the adopted child’s rights to inherit from the natural parent or to bring a wrongful death action for the natural parent’s death.

Moreover, Section 11–7–13 does not distinguish between the types of children entitled to bring a wrongful death action for the death of a parent, i.e., natural or adoptive. The statute provides that the suit may be brought “in the name of a child for the death of a parent.” Miss. Code Ann. § 11–7–13 (1972). While Samuel Clinton Howell was not Jones’ legal child, he certainly was his biological and natural child. Mississippi’s wrongful death statute allows an illegitimate child to bring a wrongful death action for the death of his parent provided the child complies with Section 91–1–15 of the Mississippi Code of 1972. It would be illogical to conclude that the legislature would allow an
illegitimate child, who might have never had any interaction at all with his parent or have ever been recognized by the parent, to bring an action for that parent’s wrongful death, and yet conclude that the legislature would then prohibit a child who had lived with the natural parent and was later given up for adoption from bringing a wrongful death action for the natural parent’s death.

The Estate also argues that the Louisiana adoption of Samuel Clinton Howell took the form of a termination of parental rights as to Jones. The Estate offers Miss. Code Ann. § 93–15–109 for the proposition that the chancery court can terminate an adopted child’s right to inherit from his or her natural parents. The Estate’s reliance upon Section 93–15–109 is misplaced because the cited statute, although not factually applicable in this case, does not specifically divest an adopted child of his right to bring a wrongful death action for a natural parent’s death.

Id. at 1176-77. The Court has squarely addressed a nearly identical issue, and in that case held that the natural son was a wrongful death beneficiary, despite the fact that the state where the adoption and termination of parental rights occurred prohibited him being considered a wrongful death beneficiary.

 

Process to Determine Wrongful Death Beneficiaries

March 5, 2019 § Leave a comment

When you file an action to determine wrongful-death beneficiaries, which type of process is proper: MRCP 4 or 81?

Matthew DeForest filed a Petition for Determination of Heirs-at-Law and Wrongful Death Beneficiaries after his father died in a trucking accident. Joe Alexander, the father’s brother, filed a contest asserting several defenses, among them that the court did not have personal jurisdiction over him because the proper process was not used. The chancellor ruled for DeForest, finding that “Matthew Bryan DeForest is the sole and only heir-at-law of the decedent for the purposes of the wrongful death action.” Alexander appealed.

In Alexander v. DeForest, decided January 31, 2019, the MSSC affirmed. Justice Coleman wrote for the unanimous court (Waller not participating):

¶7. In his first issue, Alexander argues that DeForest’s petition should have been dismissed pursuant to Rule 12(b)(4) for lack of personal jurisdiction because process was insufficient. According to Alexander, he should have been served process consistent with Mississippi Rule of Civil Procedure 81(d)(1) as opposed to Mississippi Rule of Civil Procedure 4(b).

¶8. Alexander argues that the chancery court’s judgment is void because it never had personal jurisdiction over him due to DeForest’s failure to serve him with a Rule 81 summons. Alexander explains that “An action to determine heirship is governed by Rule 81(d)(1) for which a summons substantially conforming with Mississippi Rule of Civil Procedure Form 1(D) should issue to known and unknown respondents.”

¶9. DeForest caused Alexander to be personally served with a summons via certified mail. The summons stated that a response must be mailed or delivered within thirty days from the date of the delivery. However, the record also contains another summons. The second summons is a summons by publication addressed to “The Unknown Wrongful Death Heirs, Executors, Administrators, Devisees, Legatees, or Statutory Beneficiaries . . . of Jeff Underhill, Deceased, and Any and All Persons Claiming to be a Wrongful Death Beneficiary of Jeff Underhill, Deceased.” The body of the summons contained the following statement:

“The only other respondents other than you in this action are Jeanne Elizabeth Tyler, Joe Alexander, Sam Underhill, Tyler Alexander, and Luke Underhill.” Additionally, the summons required anyone claiming to be a wrongful death beneficiary “to appear and defend against the Petition filed by Matthew Bryan DeForest against you in this action 9:30 A.M. on the 21st day of October, 2016, . . . .” DeForest’s position is that, cumulatively, the personal summons and summons by publication gave Alexander sufficient notice as required by law.

¶10. We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81. In Long v. McKinney, 897 So. 2d 160, 175-76 (¶ 67) (Miss. 2004), we explained,

“Although there is no specific mandated procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations; those persons bringing the wrongful death action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings.” Further, the Court has explained on several occasions that a “wrongful death action is not part of the estate of the deceased, and only those individuals listed in the wrongful death statute may bring this independent cause of action.” Pannell v. Guess, 671 So. 2d 1310, 1313 (Miss. 1996) (citing Partyka v. Yazoo Dev. Corp., 376 So. 2d 646, 650 (Miss. 1979)).

¶11. Though there is much terminology overlap and mirroring of language between a determination of heirs for the purpose of an estate and a determination of wrongful death beneficiaries, the only possible issue before the chancery court at the time was a determination of wrongful death beneficiaries, which is a different animal than a determination of heirship as governed by Mississippi Code Section 91-1-29. A determination of wrongful death beneficiaries does not require a Rule 81 summons; therefore, the Rule 4 summons DeForest caused to be served on Alexander was sufficient for the chancery court to obtain jurisdiction.

My thoughts:

  • Plenty of lawyers do not appreciate the difference between an action to determine heirs in an estate and an action to determine wrongful death beneficiaries that is outside an estate. The former is a R81(d)(1) matter, and the latter is a R4 matter. I have had to send lawyers back to the drafting table time after time because they mix up the two. And although there is some overlap between the laws of heirship and the law of wrongful-death beneficiaries, the two are actually different.
  • Before you go diving off into a chancery action to determine wrongful-death beneficiaries, the following is required reading: MCA §§ 91-1-1 and 3 (descent and distribution); MCA § 11-7-13 (wrongful death actions); UCCR 6.10 (petitions in chancery to compromise settlements); and Long v. McKinney, cited above. Only after you grasp all of that in combination should you file your petition.
  • In this case, DeForest made his job more difficult by casting his pleading as one to determine heirs and wrongful-death beneficiaries. It not only opened him to the defense of bad process, but probably caused some consternation to the chancellor who nonetheless plowed ahead and found DeForest to be “the sole and only heir-at-law of the decedent for purposes of the wrongful death action,” a correct, if confusedly worded,  conclusion no doubt dictated by DeForest’s confusing prayer for relief. DeForest should have filed two different pleadings, one for determination of heirship and one for determination of Wrongful death beneficiaries, with two different processes.

Alexander also argued that DeForest’s claim to be sole wrongful-death beneficiary was defeated by the fact that his father’s parental rights had been terminated by judgment of a Michigan court. We’ll explore that intriguing proposition in a later post.