The Spirit of Moderation

August 16, 2019 § 2 Comments

From an address by Judge Learned Hand (1872-1961) at the proceedings of the 250th anniversary of the Supreme Judicial Court of Massachusetts, November, 1942:

And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of “right and wrong — between whose endless jar justice resides.” You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say.

What will be left of these principles? I do not know whether they will serve only as counsels; but this much I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon its courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens — real and not the factitious product of propaganda — which recognizes their common fate and their common aspirations — in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigor within themselves to withstand the winds and weather of an indifferent world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived.

Quoted in The Practical Cogitator, Charles P. Curtis, Jr. and Ferris Greenslet Eds., Houghton Mifflin 1962.

Note: The phrase “right and wrong — between whose endless jar justice resides” is from Shakespeare’s Troilus and Cressida: ““Force should be right; or rather, right and wrong, between whose endless jar justice resides, should lose their names, and so should justice too. Then everything includes itself in power, power into will, will into appetite;and appetite, an universal wolf, so doubly seconded with will and power, must make perforce an universal prey and at last eat up himself.”

In Loco Parentis and the Natural Parent Presumption

August 14, 2019 § 1 Comment

Most all of us who spend time in chancery court are familiar with this melancholy scenario or something similar: mom and dad are using drugs and are living a shiftless existence; they leave their baby with grandparents; then, after a while, the parents — or one of them — get cleaned up and appear suddenly demanding to reclaim the baby. A courtroom fight ensues, with hard feelings and injured relationships.

We know from Davis v. Vaughn, 126 So. 3d 33, 36 (Miss. 2013) that the mere fact that the grandparents have stood in loco parentis is not enough to defeat the claim of the natural parent. In Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012), the court said, ” … grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption is first overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.”

The latest case on point came down from the COA on June 25, 2018, in Seale v. Thompson. It won’t take you long to read Judge McCarty’s succinct six-page opinion that cites only two cases (Davis and Smith) in the body and Albright in a footnote. The decision affirms the chancellor’s ruling that the grandfather had overcome the natural-parent presumption by establishing his son-in-law’s unfitness due to drug abuse. It’s a sad and all-too-familiar scenario for those of us who toil in chancery.

The Drop-Dead Deadline to File a Rule 59 Motion

August 13, 2019 § 3 Comments

A motion to alter or amend a judgment per MRCP 59(e) must be filed within ten days of the date when the judgment is entered or it is untimely.

The COA’s decision in Barbaro v. Smith, about which we posted yesterday, includes this reminder:

¶62. Rule 59(e) of the Mississippi Rules of Civil Procedure states that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e) (emphasis added). “This ten-day requirement is absolute, and the court is not permitted to extend this time period.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190-91 (¶11) (Miss. 2008) (quotation marks omitted). A motion is “filed” when it is received by the clerk—not when it is placed in the mail. Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So. 3d 1242, 1250 (¶16) (Miss. Ct. App. 2018). Barbaro’s motion to alter or amend the judgment was filed twenty-two days after the judgment was entered. Therefore,
the chancellor correctly held that it was untimely.

Two crucially important points: (1) the judge cannot extend the time to file; and (2) the motion is not filed until it is actually received by the clerk.

Oh, and keep in mind that if you file a R59 motion later than 10 days after entry of the judgment, it will be treated as a R60 motion, which does not have the effect of tolling the time to appeal.

The Price of Making Up a Story

August 12, 2019 § 1 Comment

Should the custodial mother lose custody because she: (1) planted drugs in the father’s truck and had him arrested; and (2) fabricated a drug screen on her minor son that purported to show that the father had given the child drugs?

The chancellor thought so in the modification case between Tamara Barbaro and her ex, Coty Smith, and modified custody. Barbaro, aggrieved, filed an appeal.

In Barbaro v. Smith, handed down July 16, 2019, the COA affirmed. The facts and procedural history alone extend to 18 1/2 pages, so you might want to check them out. Here is how Judge Jack Wilson addressed Barbaro’s argument that the chancellor erred in finding that there had been a material change in circumstances that adversely affected the child:

¶72. A party who requests a modification of child custody “must prove by a preponderance of evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996) (quoting Ash v. Ash, 622 So. 1264, 1265 (Miss. 1993)) (emphasis omitted). The chancellor must  consider the “totality of the circumstances” to determine whether such a change in circumstances has occurred. Id. (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1996)). “[I]f such an adverse change has been shown, the moving party must show by [a preponderance of the] evidence that the best interest of the child requires the change of custody.” Id. (quoting Ash, 622 So. 2d at 1266).

¶73. The chancellor found that Barbaro’s participation in a scheme to plant illegal drugs in Smith’s truck and her tampering with Will’s drug test had resulted in a material change of circumstances. The chancellor also found that Barbaro’s actions had necessitated restrictions on visitation and an abrupt, emergency change in custody, which adversely affected Will—as shown by his being more clingy and insecure. Finally, citing Riley, supra, the chancellor found “that there could have been [additional] adverse harm to [Will] had Barbaro’s actions been successful” because the “father-child relationship would have been severed.”

¶74. Barbaro argues that the chancellor erred because the evidence generally showed that she was a fit parent and even a good mother and because Will had not yet suffered harm. She further argues that even if she did help plant drugs or falsified a drug test, the charges against Smith were ultimately dropped, and the “alleged threat of harm is moot.”

¶75. Barbaro’s argument takes too narrow a view of the concept of a material and adverse change in circumstances. In addressing this issue, the chancellor must consider the “totality of the circumstances.” Riley, 677 So. 2d at 743 (quoting Tucker, 453 So. 2d at 1297). “The concept [of a material change in circumstances that adversely affects the child] is intended to encompass its broadest possible meaning in order to protect children,” including but not limited to changes that adversely affect the “child’s mental and emotional well-being.” Marter v. Marter, 914 So. 2d 743, 748-49 (¶14) (Miss. Ct. App. 2005) (citing Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997)).

¶76. In Riley, the Supreme Court held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley, 677 So. 2d at 744. The Court held that a change in custody may be warranted “even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Id. The Court stated that “[t]he test . . . for custody  modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Id. at 745.

¶77. As we have explained above, there is substantial evidence to support the chancellor’s factual findings that Barbaro participated in a scheme to plant drugs and tampered with Will’s drug test. The chancellor further found that Barbaro’s extreme conduct threatened harm to Will because, if successful, it would have resulted in Smith’s imprisonment and likely severed the father-child relationship. The chancellor concluded that this clear threat of harm to Will was a material and adverse change in circumstances—even though, thankfully, Barbaro was not successful, and the specific threat to Will was averted. We cannot say that the chancellor clearly erred or abused his discretion by applying the Supreme Court’s decision in Riley to the facts of this case. Riley recognizes that a parent’s conduct that threatens harm to a child may rise to the level of a material and adverse change in circumstances even if the child “somehow appears to remain unscarred.” Id.; accord Johnson v. Gray, 859 So. 2d 1006, 1014 (¶39) (Miss. 2003).

¶78. Moreover, there is substantial evidence to support the chancellor’s finding that Will had already been adversely affected by Barbaro’s conduct. Barbaro’s conduct necessitated restrictions on Smith’s visitation and then an abrupt, emergency change of custody and restrictions on Barbaro’s visitation. These events would not have occurred but for Barbaro’s misconduct. Furthermore, witnesses testified, and the chancellor found, that these changes caused Will to be more clingy and insecure.

¶79. In summary, the chancellor did not clearly err or abuse his discretion by applying Riley to the facts of this case or by finding a material change in circumstances that adversely affected Will. Therefore, the chancellor appropriately proceeded to consider whether a change in custody would be in Will’s best interest. See Riley, 677 So. 2d at 743.

That’s some useful authority in ¶¶75 and 76.

Dispatches from the Farthest Outposts of Civilization

August 9, 2019 § Leave a comment

Local Rules

August 7, 2019 § 1 Comment

In the divorce case between Marcus and Sumie Sanders, the parties entered an agreed order that their temporary hearing would be submitted by affidavits, without live witnesses. The parties submitted their affidavits, and the court awarded custody of the parties’ daughter to Sumie.

Following entry of a final judgment in his case, Marcus appealed. One issue he raised was that the court in his district required submission of temporary issues by affidavit, which amounts to an unapproved local rule that prejudiced him in the ultimate outcome of the case.

Judge Jack Wilson’s opinion in Sanders v. Sanders, a May 14, 2019 COA decision, addressed the issue:

¶39. On appeal, Marcus argues that the Fourteenth Chancery Court District enforces a local rule requiring temporary custody hearings to be decided by affidavits only. He argues that the rule is invalid because the Mississippi Supreme Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted before being effective must be filed in the Supreme Court of Mississippi for approval.”). Marcus further argues that the chancellor’s temporary ruling impacted her final ruling, and yet because there was no real hearing on temporary custody, the chancellor’s temporary ruling “cannot be reviewed.”

¶40. We find no reversible error for three reasons, two of which are related. First, the record contains only an agreed order. The record does not show that there actually is an “unapproved local rule.” The chancery court’s website does provide a fill-in-the-blank template for an order setting a hearing on temporary matters by affidavit. [Fn omitted] However, there is nothing to show that this template equates to a court rule that such hearings must be decided on affidavits alone. Nor does the template establish that the chancellors of the district will not hold a live hearing or consider live testimony upon request.

¶41. Second and related, Marcus never raised this issue in the trial court. There is nothing to show that he ever asked for a live hearing or to present live testimony. Because Marcus did not raise this issue, we have no way of knowing whether there is an unapproved rule or whether the chancellor would have heard and considered live testimony. Therefore, the record is inadequate to review Marcus’s claim, and the issue is waived and procedurally barred on appeal. See, e.g., Adams v. Rice, 196 So. 3d 1086, 1090 (¶13) (Miss. Ct. App. 2016) (“A party is not allowed to raise an issue for the first time on appeal.”).

¶42. We note that the Supreme Court addressed a similar issue in Fredericks v. Malouf, 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the defendants argued that they were prevented from obtaining a hearing on their motion to transfer venue because of an unapproved local rule that stated that hearings on motions were not “automatically granted” and that the parties would “be notified by the court” if the court determined that a hearing was necessary. Id. at (¶15). The Supreme Court concluded that the local rule was “in derogation of Mississippi Rule of Civil Procedure 83, because [it had] never been submitted to [the Supreme] Court for approval.” Id. at (¶16). Nevertheless, the Supreme Court also “emphasize[d] that the trial court’s rule did not prohibit the [d]efendants from requesting a hearing; there [was] no evidence that the trial court would not [have] consider[ed] such a request; and no order exist[ed] denying such.” Id. In other words, the unapproved local rule did not excuse the defendants’ failure to at least request a hearing on their motion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s failure to request a live hearing on temporary custody.

¶43. A third reason that Marcus’s argument is without merit is that he fails to establish any prejudice. “A temporary custody order is just that, temporary; it does not change the underlying burden of proof.” Neely v. Welch, 194 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997) (brackets omitted)). The chancellor must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order. See id. Marcus overstates the significance of the temporary custody order as it relates to the chancellor’s final ruling and Albright analysis. The chancellor’s final judgment found that the continuity of care factor “strongly favor[ed]” Sumie because Sumie had “always” been Kristen’s primary caregiver, “[b]oth prior to and after the issuance of [the] [t]emporary [o]rder.” (Emphasis added). The chancellor’s analysis was based on the totality of the evidence and only briefly mentioned the temporary custody period. In addition, for the reasons discussed above, there is substantial evidence to support the chancellor’s permanent custody decision.

I would add that two points: (1) Marcus agreed to the affidavit procedure by agreed order, so he should be bound by that agreement; and (2) MRCP 43 expressly allows the trial judge to decide fact issues raised in motions by affidavits.

This argument raises the question: when do local practices and judges’ preferences become local rules? We have all kinds of local practices here in my district that reflect the judges’ preferences as to how to conduct business, but we have no local rules. As we all know, practice varies from one district to another, and even among chancellors within a district. And for good reason. What works in the Delta or on the Coast may not be practical here. Workloads vary, judges’ personalities and approaches to work are different, and different people have different work-styles. I hear lawyers bemoan the fact of varying practices among districts from time to time, but I really don’t believe the answer is to squeeze all chancellors into mechanical uniformity.

To Set Aside a Default Judgment

August 6, 2019 § Leave a comment

American Pride LLC filed suit to quiet and confirm title to property it acquired at a tax sale. It obtained a default judgment against John Vanaman, who owned the property.

Vanaman filed a motion in the trial court to set aside the default judgment, which the chancellor denied. Vandaman appealed, arguing that he was not properly served with process and that the chancellor’s decision did not properly follow the law.

In Vanaman v. American Pride Properties, LLC, decided December 18, 2018, the COA reversed and remanded, finding that the chancellor’s decision not to set aside the default judgment was in error, but finding that Vanaman was properly served with process. On the setting aside of the default judgment, the court pointed out that the trial court is required to apply a three-prong balancing test:

(1) the nature and legitimacy of the defendant’s reason for default (i.e., whether the defendant has good cause for default); (2) whether the defendant has a colorable defense to the merits of the claim; and (3) the nature and extent of the prejudice which may be suffered by the plaintiff if the default judgment is set aside. American States Insurance Co. v. Rogillio, 10 So. 3d 463, 468 (Miss. 2009).

Rogillio adds that the second factor is the most important. In Vanaman, the court upheld the chancellor on the first factor and reversed on the second. Judge Irving wrote the court’s opinion:

¶17. With respect to the second prong, Vanaman argues that he has a colorable defense because the chancery clerk did not follow the requirements of Mississippi Code Annotated section 27-43-3 (Rev. 2017) in issuing the notice of forfeiture stemming from the tax sale of the Wortham Road property. Vanaman maintains that he was not properly served with the notice of forfeiture either personally or by certified mail to his usual place of abode, and that publication was not proper. In response, American Pride asserts that Vanaman did not contest the validity of the notice of forfeiture provided by certified mail or by publication. Rather, he only took issue with the personal service provided by the sheriff. With respect to personal service, American Pride maintains that the 20440 Armes Road address was the proper location to serve Vanaman given that it was the address listed on the 2001 quitclaim deed, and that the chancery clerk had no reason to believe that Vanaman’s address was anything other than that.

¶18. Of the three prongs of the Rogillio balancing test, this one is the most important. Rogillio, 10 So. 3d at 470 (¶16). Our supreme court explained the meaning of a “colorable defense” in Tucker v. Williams, 198 So. 3d 299, 312 (¶35) (Miss. 2016):

“Colorable” is defined as appearing to be true, valid, or right. A colorable defense is one that reasonably may be asserted, given the facts of the case and the current law. A defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a “colorable defense.” Rather, the defense must be a reasonable one. Indeed, this Court has held that even a defense of questionable strength may be colorable.

(Citations and internal quotation marks omitted).

¶19. Mississippi Code Annotated section 27-43-1 (Rev. 2017) requires that a chancery court clerk, “within one hundred eighty (180) days and not less than sixty (60) days prior to the expiration of the time of redemption with respect to land sold, either to individuals or to the state . . . issue notice to the record owner of the land sold as of 180 days prior to the expiration of the time of redemption.” Section 27-43-3 requires that redemption notice be given by personal service, mail, and publication in an appropriate newspaper:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he is a resident of the State of Mississippi, and the sheriff shall be required to serve notice as follows:

(a) Upon the reputed owner personally, if he can be found in the county after diligent search and inquiry, by handing him a true copy of the notice;

(b) If the reputed owner cannot be found in the county after diligent search and inquiry, then by leaving a true copy of the notice at his usual place of abode with the spouse of the reputed owner or some other person who lives at his usual place of abode above the age of sixteen (16) years, and willing to receive the copy of the notice; or

(c) If the reputed owner cannot be found after diligent search and inquiry, and if no person above the age of sixteen (16) years who lives at his usual place of abode can be found at his usual place of abode who is willing to receive the copy of the notice, then by posting a true copy of the notice on a door of the reputed owner’s usual place of abode.

The sheriff shall make his return to the chancery clerk issuing the notice. The clerk shall also mail a copy of the notice to the reputed owner at his usual street address, if it can be ascertained after diligent search and inquiry, or to his post-office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of the property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in the county. The publication shall be made at
least forty-five (45) days prior to the expiration of the redemption period.

. . . .

Notice by mail shall be by registered or certified mail. In the event the notice by mail is returned undelivered and the notice as required in this section to be served by the sheriff is returned not found, then the clerk shall make further search and inquiry to ascertain the reputed owner’s street and post-office address. If the reputed owner’s street or post-office address is ascertained after the additional search and inquiry, the clerk shall again issue notice as set out in this section. If notice is again issued and it is again returned not found and
if notice by mail is again returned undelivered, then the clerk shall file an affidavit to that effect and shall specify in the affidavit the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that action shall be noted on the tax sales record. If the clerk is still unable to ascertain the reputed owner’s street or post-office address after making search and inquiry for the second time, then it shall not be necessary to issue any additional notice but the clerk shall file an affidavit specifying the acts of search and inquiry made by him in an effort to ascertain the reputed owner’s street and post-office address and the affidavit shall be retained as a permanent record in the office of the clerk and that action shall be noted on the tax sale record.

. . . .

Should the clerk inadvertently fail to send notice as prescribed in this section, then the sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

“All three requirements must be met for the redemption notice to be complete and in accordance with the statute.” Cleveland v. Deutche Bank Nat. Tr. Co., 207 So. 3d 710, 715 (¶20) (Miss. Ct. App. 2016). Statutes governing notice of a tax sale are “to be strictly construed in favor of the landowners, and any deviation from the statutorily mandated procedure renders the sale void.” Id.

¶20. We disagree with American Pride that Vanaman failed to raise the issue of notice via certified mail or publication. Vanaman argues that his motion to set aside the court’s default judgment was erroneously denied; inherent in the analysis of whether a court should have set aside a default judgment is the question of whether the landowner has a colorable defense. As such, this issue is properly before us on appeal.

¶21. As Vanaman points out, several documents were filed with the chancery clerk’s office listing his address as 22311 L. Lizana Road following the execution of the quitclaim deed in 2001, including a certificate of redemption in 2010 and a release from delinquent tax sale in 2012. Despite the filing of these documents with the chancery clerk, the notice of forfeiture executed on April 1, 2015, still listed Vanaman’s address as 20440 Armes Road. We further take note of the fact that whoever signed the return receipt on April 8, 2015, after delivery of the notice of forfeiture, actually wrote out a different address—22311 L. Lizana Road—from the address the notice was actually delivered to—20440 Armes Road. It is clear from the record that Vanaman had a colorable defense with respect to whether service was properly effectuated regarding the notice of forfeiture. As stated, this factor is the most significant of the Rogillio balancing test; we find that it weighs in favor of Vanaman, and that it merits the default judgment being set aside.

The court, brushing aside American Pride’s argument that it would be prejudiced if the default judgment were set aside because it had invested two years of litigation expenses in the case, held that prejudice “must be something more than the routine cost of litigation” (¶23).

The two obvious takeaways here are: (1) that if you expect to set aside a default judgment, you had better have a colorable claim; and (2) any failure of the clerk or sheriff to comply with every detail of the statute can get your tax sale set aside.

More than Known Creditors

August 5, 2019 § Leave a comment

MCA 93-7-145 is the statute that requires publication of notice to creditors in an estate matter. A prerequisite to publication is the filing of an affidavit by the fiduciary.

Most lawyers with whom I come into contact call that affidavit “The Affidavit of Known Creditors.”

But that is a misnomer, and a dangerously misleading one at that, because it is not at all an affidavit stating only the creditors who are known; the statute requires that the fiduciary must make “reasonably diligent efforts to identify persons having claims against the estate,” and make affidavit of those efforts.

In Estate of Petrick, 635 So. 2d 1389, (Miss. 1994), the Mississippi Supreme Court stated:

“From a reading of this statute it is clear that an administratrix has four responsibilities: (1) she must make reasonably diligent efforts to ascertain creditors having claims against the estate and mail them notice of the 90 day period within which to file a claim; (2) she must file an affidavit stating that she has complied with the first subsection; (3) she must publish in some newspaper in the county a notice to creditors explaining that they have 90 days within which to file claims against the estate; and (4) she must file proof of publication with the clerk of court.”

In Petrick the court affirmed a chancellor’s ruling allowing the untimely $6,220 claim of a medical firm whose status as a claimant should have been reasonably known to the fiduciary, but the fiduciary did not include the firm in her affidavit and did not send it notice.

Another flaw in the fiduciary’s actions was that she published notice to creditors first, and filed her affidavit a month after beginning publication. The court in Petrick stated that publication may be done only after the affidavit is filed.

A previous post on point is at this link.

 

“Quote Unquote”

August 2, 2019 § 2 Comments

“The sun, with all those planets revolving around it and dependent upon it, can still ripen a bunch of grapes as if it had nothing else in the universe to do.”  —  Galileo Galilei

“Go outside. Don’t tell anyone and don’t bring your phone. Start walking and keep walking until you no longer know the road like the palm of your hand, because we walk the same roads day in and day out, to the bus and back home, and we cease to see. We walk in our sleep and teach our muscles to work without thinking and I dare you to walk where you have not yet walked and I dare you to notice. Don’t try to get anything out of it because you won’t. Don’t try to make use of it because you can’t. And that’s the point.”  —  Charlotte Eriksson

“Nature poets can’t walk across the backyard without tripping over an epiphany.”  —  Christian Wiman

Voluntary Reduction in Income

July 31, 2019 § 2 Comments

During a period when he was earning between $186,000 and $229,000 working in foreign countries, David Martin entered into an agreed judgment in 2014 to pay his ex, Wendy Borries, $2,000 a month in child support.

Martin’s employment contract ended in May, 2015, and he relocated from overseas to Mississippi. Unable to find employment at his former level of income, he took a job at Ingalls Shipbuilding as an electrician earning $4,200 a month.

In April, 2016, Martin filed a petition for downward modification of support, citing his reduction in income. Borries counterclaimed to require Martin to pay half of the oldest child’s college expenses.

Following a hearing, the special chancellor denied Martin’s request for modification and ordered him to pay half of college, with a small reduction in his child support. Martin appealed, claiming error in the court’s refusal of his modification request.

In Martin v. Borries, handed down June 18, 2019, the COA affirmed. Chief Judge Barnes wrote for the court:

¶8. The chancery court denied Martin’s petition for modification, finding he had “failed to prove to the [c]ourt a substantial and material change in circumstances since the February 28, 2014, [a]greed [j]udgment of [m]odification.” In its findings, the court placed “great weight” in Martin’s earning capacity and concluded that his reduction in income was voluntary.

¶9. “There can be no modification of a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.” Evans v. Evans, 994 So. 2d 765, 770 (¶16) (Miss. 2008) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). One factor to be considered in assessing whether a material change in circumstances has occurred warranting modification of child support “is the relative financial condition and earning capacities of the parties.” Bailey v. Bailey, 724 So. 2d 335, 337 (¶7) (Miss. 1998) (citing Caldwell v. Caldwell, 579 So. 2d 543, 547 (Miss. 1991)). But “[t]he change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties’ ability to abide by the original decree.” Howard, 968 So. 2d at 972 (¶24) (citing Poole v. Poole, 701 So. 2d 813, 818 (¶¶19, 21) (Miss. 1997)). Martin claims that he suffered a material change in circumstances that was unforeseeable and “came through no fault of his own.” Therefore, he argues that the court’s findings were “manifestly wrong.”

¶10. In Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990), the chancery court granted a father’s petition to reduce his child-support obligation after the father quit a steady, wellpaying job to attend college full-time. The Mississippi Supreme Court noted that when the father entered into the divorce decree awarding child support—only six months before filing the petition for modification—“it [was] reasonable to believe that this action . . . was anticipated.” Id. at 1392. The supreme court, therefore, concluded that “under the facts of the case at bar, the unilateral acts of the appellee do not justify a reduction in his child support obligation” and reversed the chancery court’s decision. Id. at 1393. Subsequently, in Bailey, the supreme court reversed and remanded a chancellor’s decision to reduce a mother’s child-support obligation after she left her employment to stay at home with a new baby. Bailey, 724 So. 2d at 337 (¶6). Concluding that the mother’s actions constituted a voluntary reduction in income, the Bailey Court reasoned that it would be inequitable for one parent to quit his or her job by choice and expect the other parent “to pick up the slack” without having any vote in the matter. Id. at 338 (¶10).

¶11. At trial, Martin testified that he had worked offshore in project management for eight years and that his adjusted gross income in 2013 was $186,782 and $229,000 in 2014. He earned $184,716 from January to June 2015. When Martin entered into the agreed order in 2014, he was aware that his project assignment had a finite duration. Furthermore, although Martin claims that the job market was “difficult” and that he was unable to find equivalent employment to his prior job, there was testimony that there were job opportunities available to him, which for his own personal reasons, he found unappealing.

Q. And you would admit to His Honor there are postings now on Rigzone that you certainly would be qualified for?

A. There are postings on Rigzone that I would certainly be qualified for.

. . . .

But what I do know is there are various countries in this world that I absolutely will not work in because of the nature that our world is in right now . . . they’re high-risk areas.”

As the chancery court observed, it was Martin’s decision “not to return to his high paying career unless he [could] choose the country to which he would go,” and Martin admitted before the court that taking the job at Ingalls for less pay was “a choice that I have made.” Our Court has held that a minor child “should not suffer a diminution in support because of [the father’s] unilateral act based upon personal preferences about his workplace.” Pullis v. Linzey, 753 So. 2d 480, 485 (¶11) (Miss. Ct. App. 1999). Martin also acknowledged that three months after his contract ended, he bought his wife a new Mercedes for $38,223.

¶12. Borries also testified that Martin had been planning to quit working offshore for a while:

A. He has told me for years that he was going to quit his job and come work at Ingalls, and I wasn’t going to be getting the child support that I was getting.

Q. What did he describe it as? What was the word he used to describe his payments to you?

A. The gravy train.

Q. Okay. So [Martin] said that he was going to quit working overseas, come work at the shipyard, and that, quote, the gravy train–what would happen to the gravy train?

A. It was going to stop.

Q. Okay. And so he told you he was going to do this?

A. He has told me numerous times over the years. He told me he was going to quit his job as soon as . . . he married this woman.

. . . .

So he has told me that when [his wife] gets her citizenship and she–he moves her over here, he’s going to quit working offshore and find a job here, and he wasn’t going to be paying child support because the gravy train was going to stop. And he has told me that so many times it’s not even funny.

In Leiden v. Leiden, 902 So. 2d 582, 585 (¶¶12, 14) (Miss. Ct. App. 2004), this Court affirmed a chancellor’s decision to deny modification of child support when the father’sactions in terminating his employment were voluntary and the evidence showed that he “had planned to take an early retirement.”

¶13. We find this case similar. The evidence reflects that Martin planned to quit his overseas job and return to Mississippi for less pay. These actions were voluntary and anticipated. Finding no manifest error in the chancery court’s determination that Martin voluntarily reduced his income, we affirm the court’s denial of the petition for modification.

Don’t you wish you had a crystal ball that would reveal all of your prospective client’s statements against interest before you decided to get into the case? Gravy train, indeed.