Dispatches from the Farthest Outposts of Civilization

October 19, 2018 § Leave a comment

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The Proper Way to Record a Contest to an ID Divorce

October 17, 2018 § Leave a comment

A couple of days ago we visited the COA’s handling of the Arrington v. Arrington case dealing with the necessity to file a judgment with the clerk in order for it to take effect. [Note: The post on Arrington was moved to next month]

There’s an interesting wrinkle in that case having to do with how to make a record of an objection to the irreconcilable differences divorce.

As the COA said in ¶3: “On August 23, 2013, through an attorney, Harold filed a withdrawal of consent to the joint claim for divorce.” Only thing is, there was no Consent as that term is used in the statute. There was merely a joint complaint for divorce. Here’s how Judge Griffis’s opinion addressed it:

¶16. Now, we must determine whether Harold withdrew his consent to the joint complaint for divorce in a timely manner.

¶17. We note that section 93-5-2(3) provides:

If the parties are unable to agree upon adequate and sufficient provisions for the custody and maintenance of any children of that marriage or any property rights between them, they may consent to a divorce on the ground of irreconcilable differences and permit the court to decide the issues upon which they cannot agree. Such consent must be in writing, signed by both parties personally, must state that the parties voluntarily consent to permit the court to decide such issues, which shall be specifically set forth in such consent, and that the parties understand that the decision of the court shall be a binding and lawful judgment. Such consent may not be withdrawn by a party without
leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto . . . .

(Emphasis added). However, this section applies only when the parties agree to an irreconcilable-differences divorce but are unable to agree upon adequate and sufficient provisions for custody or property rights and consent to allow the court to decide these specific disputed issues. Id.

¶18. Here, the parties agreed to an irreconcilable-differences divorce and incorporated an agreed-upon property settlement. They did not invoke section 93-5-2(3), and there were no issues upon which the parties did not agree. We also find no authority to expand this restriction on the withdrawal of consent outside of section 93-5-2(3). We therefore find that the consent restriction in section 93-5-2(3) does not apply here. Harold was not required to obtain leave of court to withdraw his consent to the joint complaint for divorce.

In other words, what Harold should have done is simply file something to put the case on a contested footing. He could have filed an answer denying the complaint and withdrawing his joinder in that pleading. Or he could have, as I have often seen, filed an objection to a divorce on the ground of irreconcilable differences. By filing a pleading purporting to withdraw consent to the divorce he somewhat confused the issue since there was no consent per MCA 93-5-2(3) that could be withdrawn.

Another point you can take away is that a § 93-5-2 consent may not be withdrawn after the court has commenced any proceeding “pertaining thereto,” including the hearing of any motion or other matter. In a case of waffling clients, I have seen lawyers file a motion with the Consent asking the court to approve and accept it in advance of a full trial on the contested issues, the goal being to eliminate withdrawal or at least to make withdrawal subject to court approval.

Death and the Divorce Judgment

October 16, 2018 § Leave a comment

We’ve talked about the necessity of filing a judgment with the clerk as required in MRCP 58 and 79(a). It seems to be a fairly ironclad rule.

But there is at least one post-MRCP case in which no judgment was entered following trial, one of the parties died, and the MSSC upheld the chancellor’s nunc pro tunc entry of a divorce for a pre-death date.

Johnnie and Luke White underwent their fourth divorce from each other in 1992. In the course of the trial they agreed to a consent to divorce on the ground of irreconcilable differences that was handwritten, signed by each of them, and filed with the clerk. Following the trial, the chancellor ruled from the bench on the contested issues, directed that the parties be divorced, and ordered Luke’s attorney to draft a judgment. Following the trial, and before the judgment could be entered, Luke died.

Luke’s brother filed a R25 Suggestion of Death and asked to be substituted as a party for the sole purpose of entering a judgment. After hearing both sides the chancellor executed a judgment dating it nunc pro tunc to the date when he had ruled on the contested issues. Johnnie appealed. In the case of White v. Smith, 643 So.2d 875 (Miss. 1994), the MSSC affirmed. (Note that Smith was the administratrix of Luke’s estate, and she was substituted for Luke’s brother as a party in the appeal).

Justice Pittman wrote the unanimous opinion for the court, which is excerpted here in part, beginning at page 880:

“Courts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered.” Green v. Myrick, 177 Miss. 778, 171 So. 774 (1937). Nunc pro tunc means “now for then” and when applied to the entry of a legal order or judgment, it normally does not refer to a new or fresh (de novo) decision, as when a decision is made after the death of a party, but relates to a ruling or action actually previously made or done but concerning which for some reason the record thereof is defective or omitted. The later record making does not itself have a retroactive effect but it constitutes the later evidence of a prior effectual act. Thrash v. Thrash, 385 So.2d 961, 963 (Miss.1980), quoting Becker v. King, 307 So.2d 855, 858-59 (Fl.App.1975).

Johnnie relies on Pittman v. Pittman, 375 So.2d 415 (Miss.1979), in support of the arguments raised in issues I, III and IV. The facts in Pittman reflect that Ella Polk Pittman filed a petition for a divorce and requested that she be granted a divorce on the grounds of habitual cruel and inhuman treatment. The hearing was held on September 26, 1978, and the final decree was not entered until October 27, 1978. Some three weeks after receiving the letter, a decree was prepared and mailed to the chancellor. This decree was signed by the chancellor and filed on October 27, 1978. Petitioner died in the interim on October 17, 1978.

This Court held, on the facts of the case, that the death of the party prior to the entering of the decree had rendered moot the question on divorce, stating that “all issues in the case were incidental to the request for a divorce and the contest thereon, and the entire cause died with the complainant.” Pittman, 375 So.2d at 417.

Unlike the facts in Pittman, in the present case, there was a formal adjudication of the issues in writing and signed by the chancellor, prior to the death of one of the parties.

Johnnie also cites Griffith, Mississippi Chancery Practice § 620, at 667 (1950), which states in part:

A valid decree cannot be rendered in favor of two persons, one of whom at the time is dead. Such a decree is void. And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit-although the interlocutory decree was rendered while he was alive.

The general rule is that the death of a party in a divorce action prior to the final decree ends the marriage of the parties and cancels the bill of complaint for divorce. Pittman v. Pittman, 375 So.2d 415 (Miss.1979).

The case of Thrash v. Thrash, 385 So.2d 961 (Miss.1980), is directly analogous to the case sub judice. In Thrash, the wife petitioned the court for a divorce on the ground of habitual cruel and inhuman treatment. The husband answered and filed a cross-bill in which he prayed for a divorce upon similar grounds. The case was fully tried and submitted to the chancellor for final decision. The chancellor took the matter under advisement and on March 31, 1978, determined all issues on the merits and rendered his decision by written opinion. The opinion was signed and filed with the clerk on April 1, 1978. The chancellor awarded the husband a divorce upon the grounds set forth in the cross-bill. A decree was drafted, approved by both solicitors, and forwarded to the chancellor for signature. This decree was duly received by the chancellor on April 8, 1978, signed by him on that same date, but dated April 10, 1978. The husband was killed on April 9, 1978.

On May 16, 1978, Pearl Marie Thrash filed a suggestion of death and motion to dismiss. The motion was based on the fact that the appellee had died prior to the decree’s being filed. The chancellor dismissed the motion and ordered the decree of divorce theretofore signed by the chancellor, to be entered nunc pro tunc, the date it was signed by the first chancellor, April 8, 1978.

The appellant in Thrash claimed that the decree signed by the chancellor on April 8, 1978, and dated April 10, 1978, was without effect and a nullity because appellee died on April 9, 1978, before the decree was filed with the clerk.

The majority opinion in Thrash relied on Section 11-7-25, Mississippi Code Annotated (1972), which in pertinent part provides:

Where either party shall die between verdict and judgment, such death need not be suggested in abatement, but judgment may be entered as if both parties were living….

Applying § 11-7-25, this Court determined that “in a case such as this, where the case has been fully tried and finally decided on its merits and nothing remains to be done except the entry of a decree, the decree would follow as if both parties were living.” Thrash, 385 So.2d at 962.

We have concluded that, in the absence of some special circumstances such as would cause a miscarriage of justice by so doing, the provisions of that section [§ 11-7-25] apply in a case such as this, the death of the husband having occurred long after the formal decision of all issues by the trier of facts. To hold otherwise, we think, would work a manifest miscarriage of justice.

Thrash, 385 So.2d at 964.

In the present case, from a technical standpoint, Luther died while married, since his death was prior to the entry of the decree. However, the record clearly indicates that all submitted issues had been litigated and ruled upon by the chancellor on November 2, 1992. Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.

In addition to the reliance on § 11-7-25, the Thrash opinion quoted extensively from 104 A.L.R. 654, 664 (1936):

The general rule, so far as a general rule may be deduced from the few cases falling within this subdivision, is that, if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party. [citations omitted] But if no such final adjudication was made during the lifetime of the parties, a decree nunc pro tunc may not be entered after the death of one of the parties, to take effect as of a prior date. [citations omitted]

Id. at 962-63.

Because the chancellor both fully considered all issues raised by the parties and rendered his opinion prior to Luther White’s death, the order entering judgment of divorce nunc pro tunc was not manifestly in error, and as such, does not create reversible error.

Although the case can be construed to apply narrowly to its peculiar facts, it’s hard to get around the basic principle announced in it that, ” … all submitted issues had been litigated and ruled upon by the chancellor … Nothing more was to be accomplished in the interim between the ruling and formal filing of the judgment.”

It’s not easy to square that general principle with the current strict application of R58 and 79. This is the MSSC’s word on the subject, though, and it is still good law.

Another post dealing with White and entry of judgments is at this link.

1,000

October 15, 2018 § 9 Comments

Last week the number of persons following this blog hit 1,000.

Thanks to all of you faithful readers. I hope this is making a difference for you.

 

Travelogue

October 12, 2018 § 2 Comments

You can view some photos I took on our most recent travel at this link.

Affidavits in Chancery

October 10, 2018 § 2 Comments

An affidavit is a sworn statement. It must include an oath. You can read about the distinction between an oath and an acknowledgment at this link. A document purporting to do the work of an affidavit that bears an authentication instead of an affidavit is void for that purpose.

There are several affidavits that we use routinely in chancery:

  • Affidavit of known creditors. This affidavit is required by MCA § 93-7-145(2) to be filed before publication of notice to creditors. The statute reads, “The executor or administrator shall file with the clerk of court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit … ” it is the duty of the fiduciary to publish notice [My emphasis]. Our courts have held that an affidavit filed after publication is a nullity.
  • Affidavit of unknown heirs. Before publishing process for unknown heirs in an action to determine heirship, one must file an affidavit that “the names of such heirs are unknown,” per MRCP 4(c)(4)(D), and it must also state per MRCP 4(c)(4)(A) that the post office address is unknown to the petitioner “after diligent inquiry.” These are key ingredients, and failure to follow the rules will mean that you don’t have good process. The affidavit must be made by the petitioner unless certain specific language is used as spelled out in the rule.
  • Affidavit of diligent inquiry for publication process. Before you can publish process for a non-resident or a person not to be found in the state per MRCP 4(c)(4)(A), there must be an affidavit filed with the clerk stating either that the person or persons are non-residents or are not to be found in the state after diligent inquiry. If the post office address is unknown, publication proceeds. If a post office address is known, you must include it in your publication and take the additional step of having the clerk mail a copy of the summons and pleading to that address by regular first-class mail, and the clerk must make a notation on the docket to that effect. The affidavit must be made by the petitioner unless the specific language required in the rule is applied.
  • Affidavits in support of and in opposition to summary judgment. Rule 56 says that, “When a motion for summary judgment is made and supported [by affidavits] as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise as provided in this rule. must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
  • Affidavit of non-collusion. MCA § 93-5-7, states that “(7) in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of the plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated.”
  • UCCJEA affidavit. In any case involving custody, each party is required to file an affidavit spelling out the information required in MCA § 93-27-209, and the duty to provide the information to the court is a continuing one, meaning that the affidavit must be updated as circumstances change or as newly discovered information becomes known.
  • Affidavits on motions. MRCP 43(e) states that, “When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.” Note that the rule applies only to motions, and not to hearings on pleadings that are on the merits seeking a final judgment. Rule 7 describes the difference between a pleading and a motion.
  • Sworn pleadings in probate and fiduciary matters. Uniform Chancery Court Rule 6.13 specifically states in part that, “Every pleading, including accounts and reports, filed by a fiduciary shall be personally signed and sworn to by him.” I take that to mean that every document filed by your fiduciary shall be sworn, thus making it the equivalent of an affidavit. MCA § 93-13-38(1) reads, “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in a guardianship of the person and estate.” MCA § 93-13-259 says that, ” … all laws relative to the guardianship of a minor shall be applicable to a conservator.”

The Application for joint Custody

October 9, 2018 § Leave a comment

Justin Brown and Kristin Anklum had a child together, but were never married. They got into a custody dispute that brought them before a chancellor. Both petitioned the court for custody.

After three days of trial, the judge awarded them joint physical and legal custody. Brown appealed, complaining that it was error for the court to award joint custody.

In Brown v. Anklum, decided July 24, 2018, the COA affirmed. Judge Westbrooks wrote for the majority:

¶11. Brown argues that the parties have to make an express “application” asking for joint custody in order for the chancellor to order joint custody. However, Brown does not cite any authority in favor of his argument outside of Mississippi Code Annotated section 93-5-24(2)-(3) (Rev. 2013). This code section states in part:

(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.

(3) In other cases, joint custody may be awarded, in the discretion of the court, upon application of one or both parents.

¶12. This Court has held that the application of joint custody may be made by one or both parents if the arrangement is in the best interest of the child. See Crider v. Crider, 904 So. 2d 142, 148 (¶16) (Miss. 2005). As Anslum pointed out in her brief, in irreconcilable differences cases the court may award joint custody when the parties request the court to determine custody. The Mississippi Supreme Court has held that “when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of ‘joint application’ in § 93-5-24(2).” Id. at 148 (¶15). Thus, a mere request to determine custody satisfies the “application” requirement. Id.

¶13. Accordingly, we find this issue is meritless.

Not a lot to ponder here, but it is a reminder that joint custody is almost always in the picture when you are litigating custody.

I wonder whether the application of law would be different if both parties pled or stipulated that joint custody would not be in the child’s best interest. My guess: that would not rule out an award of joint custody if the chancellor found that to be in the child’s best interest.

Judge Carlton, joined by Tindell, disagreed with the majority that the chancellor’s findings in favor of joint custody were supported by the evidence. You might find some of her rationale useful if you find yourself on that side of a similar equation.

The Duty of Child Support or Not

October 8, 2018 § 3 Comments

Lawyers try to get me to approve agreements for no child support, and usually exhaust themselves unsuccessfully in the effort. Here is the basis for my resistance:

Chroniger v. Chroniger, 914 So.2d 311, 316 (Miss. App. 2005):

¶ 17. Generally, the chancellor has wide discretion regarding modification of child support. Brawdy, 841 So.2d at 1178 (¶ 9). However, “[t]he welfare of children and their best interest is the primary objective of the law, and the courts must not accord to contractual arrangements such importance as to turn the inquiry away from that goal.” McManus v. Howard, 569 So.2d 1213, 1215–16 (Miss.1990). Further, “[c]hancellors should be reluctant to enter orders that do not require a non-custodial parent to pay an appropriate amount of child support,” and such orders “should be entered only in rare circumstances.” Brawdy, 841 So.2d at 1179 (¶ 16). The chancellor must additionally include detailed findings when entering an order denying child support from a noncustodial parent. See id.; cf. White v. White, 722 So.2d 731, 737 (¶ 41) (Miss.1997) (“This Court has consistently required chancellors to justify any departure from the statutory guidelines when setting child support awards in a detailed, written findings of fact and conclusions of law”). A substantial or material change in circumstances “not reasonably anticipated at the time of the previous agreement” may warrant modification of a child support award. Id. at 1178–79 (¶ 11).

Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss. 1991):

“There is another question here, apparently of first impression, as to whether the noncustodial parent can contract, under § 93–5–2, to end child support before his or her child reaches majority. Both parties cite Nichols v. Tedder, 547 So.2d 766, 770 (Miss.1989), which stated that “it is well recognized that a parent is relieved of the legal duty to support their child once the child is emancipated, by attaining the age of majority or otherwise.” Nichols found that this age of majority, for purposes of child care and maintenance orders issued pursuant to §§ 93–5–23 and 93–11–65, was twenty-one (21). Nichols did not mention § 93–5–2, though it did recognize the ability of parents to contract to provide support beyond the age of 21. Nichols, 547 So.2d at 770. This Court did state, in Calton v. Calton, 485 So.2d 309, 310 (Miss.1986), that “[t]he duty to support children is a continuing duty on both parents and is a vested right of the child. Applying [this principle], it follows that parents cannot contract away rights vested in minor children. Such a contract would be against public policy.” A limited exception is a paternity action such as found in Atwood v. Hicks by Hicks, 538 So.2d 404 (Miss.1989).

“To hold that a parent may contract to cut off child support at age 18 would conflict with the language of § 93–5–2 and the public policy supporting it. See Bell v. Bell, 572 So.2d 841 (Miss.1990) (provision of divorce decree mandating children’s residence in certain town until children reach majority is unenforceable). We do acknowledge that a child may not have a right to support to age 21, depending on the acts or activity of the child, but certainly parents cannot by contract terminate any of the rights of the child. It is accepted that an agreed final decree may be modified. Further, while a property settlement, judicially approved, is always given great weight by this Court, the agreement and weight given may not extinguish the rights of a minor child and cut off child support prior to emancipation, all to the detriment and interest of the child. As the Court stated in Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990), “[c]hild support is awarded to the custodial parent for the benefit and protection of the child. Child support benefits belong to the child, and not the parent who, having custody, receives such benefits under a fiduciary duty to hold and use them for the benefit of the child.” We hold that a child support agreement, submitted to the court pursuant to § 93–5–2, which ends support for a child before that child reaches the age of twenty-one or is otherwise emancipated, is unenforceable as to the rights of the child.”

“Quote Unquote”

October 5, 2018 § 1 Comment

“We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.”  —  Edward R. Murrow

“Thought that is silenced is always rebellious. Majorities, of course, are often mistaken. This is why the silencing of minorities is necessarily dangerous. Criticism and dissent are the indispensable antidote to major delusions.”  —  Alan Barth

“The world is kept alive only by heretics: the heretic Christ, the heretic Copernicus, the heretic Tolstoy. Our symbol of faith is heresy.”  — Yevgeny Zamyatin

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September 17, 2018 § 2 Comments

Out and about in the world.

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