FAMILY VIOLENCE AND ITS IMPACT ON VISITATION

December 9, 2010 § 1 Comment

We’ve already discussed the impact of family violence on the court’s adjudication of custody here and here.  Family violence also directly affects visitation.

MCA § 93-5-24(9)(d)(i) provides in part:

“A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made. “

The statute sets out specific actions that the court may take in such a case.  The court may:

  1. Order the exchange to take place in a protected setting;
  2. Order supervised visitation;
  3. Order counselling or an intervention program for the perpetrator;
  4. Order the perpetrator to abstain from possessing or consuming alcohol or controlled substances before and during visitation;
  5. Order the perpetrator to pay a fee for supervised visitation;
  6. Prohibit overnight visitation;
  7. Require a bond for the safe return of the child; or
  8. Impose any other conditions for the safety of the child, other parent or other family members.

The court may order that the residence address of the custodial parent or child be kept confidential.

The court may not require a victim of domestic or family violence to attend counselling, individually or with the perpetrator, as a condition of visitation.

SNOW

December 8, 2010 § 2 Comments

We have snow flurries today in east-central Mississippi.  And, yes, there are snow flurries on my blog. I may just let it keep on snowing through Christmas.

Cheers.

TRANSFER OR DISMISS?

December 8, 2010 § 5 Comments

It was long the law in Mississippi divorce cases that venue is jurisdictional, and that an action filed in the wrong county had to be dismissed, and could not be transferred to the appropriate county.  See, Carter v. Carter, 278 So.2d 394, 396 (Miss. 1973).  Venue in a Mississippi divorce is said to be “exclusive” because the divorce statutes define where venue lays.  The action must be brough exclusively in the county specified.  Where venue is exclusive, it is jurisdictional.    

Against this backdrop, the Mississippi Supreme Court decided the case of National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss. 2006), reh. den. February 8, 2007.  The case involved an estate opened in Tallahatchie County, which was the county where the decedent formerly lived before relocating to a nursing home in Leflore County, where she subsequently died.  The chancellor found that venue for the estate was properly in Leflore County, and had ordered that the estate be transferred from Tallahatchie County to Leflore.  The Supreme Court, by Justice Easley, ruled that the venue statute for estates is exclusive, and, therefore, jurisdictional.  In the absence of jurisdiction, the chancellor was without authority to take any action, even a transfer.  In the absence of jurisdiction, his action was void and not merely voidable.  Justice Easley at page 248 based his reasoning on the established divorce venue law, to which he analogized the estate venue statutes. 

The only problem is that the divorce venue statute, MCA § 93-5-11, had been amended in 2005, a year before the Boles decision, to add the following sentence:  “Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.”  MRCP 82(d) reads, in part:

“When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as if originally filed therein … “

Justice Easley’s opinion makes no mention of the amendment.

From time to time I get requests from lawyers to transfer a case, usually from Lauderdale to Clarke County, although I have been requested to transfer to other counties.  This occurs primarly with out-of-district lawyers who are unfamiliar with the fact that some people with a 39301 zip code and a Meridian address actually reside in Clarke County, or some folks with Collinsville addresses actually reside in Newton or Neshoba, or with Daleville or Lauderdale addresses actually residing in Kemper.  The predominant type of case lawyers want transferred involves the Structured Settlement Protection Act, MCA § 11-57-1, et seq.  I presume they prefer transfer over dismissal because dismissal requires filing a new petition and starts over the law’s technical notice and time requirements. 

So how can we reconcile Boles and MCA § 93-5-11 and MRCP 82(d)?

In the absence of any definitive guidance from the appellate courts, here is my interpretation:

  1. If the case is not a divorce and venue is exclusive (i.e., defined in the statute upon which your action is based), then the case can not be transferred.  It must be dismissed and refiled. 
  2. If venue in the case arises under MCA § 11-11-3, the general venue statute (which has been held to be applicable to actions in chancery court where there is no exclusive venue statute), the case may be transferred per MRCP 82(d).
  3. If the case is a divorce, it may be transferred per MCA § 93-5-11, but see the caveat below.

Some observations based on the above:

Cases under the Structured Settlement Protection Act may not be transferred because MCA § 11-57-11 includes an exclusive venue provision.

An action solely for an injunction is under the general venue statute because MRCP 65 does not define venue for the action.  A Rule 65 action may be transferred.

Although the statute expressly authorizes transfer of a divorce, consider the ramifications before you do it.  The divorce statutes include an exclusive venue provision.  Under Boles, an action filed in the wrong venue in  an exclusive venue case is void ab initio, meaning that the chancellor has no authority to take any action other than to dismiss.  The court lacks subject matter jurisdiction.  Price v. Price, 32 So.2d 124 (Miss. 1947).  Lack of subject matter jurisdiction is a defect that may be raised at any time, even years after the fact, because the action of the court lacking jurisdiction is void, and not merely voidable.  Would you want to risk having your client’s divorce set aside somewhere down the road by the other party who is disgruntled with the outcome?  If I were the attorney, my preference would be to take the safe path and dismiss the case with improper venue rather than transfer it.

[I hope this is a helpful starting point for Frankie and colleagues at MC Law]

SEEK AND YE SHALL FIND

December 7, 2010 § Leave a comment

Now that there are more than 200 posts on this blog, I realize that it may not be as easy as it once was to find what you’re looking for.  Here are five ways to search the blog:

  • In the panel to the right is a small window with the word “Search” and a magnifying glass.  Enter a search term there and you will retrieve a selection of posts that might have what you’re looking for.  For example, if you’re looking for “tax effects of alimony,” you could enter “alimony,” or “tax effects,” or even “IRS.”
  • Again in the panel to the right is a drop-down menu that says “Select category,” under the label “Search Older Posts by Category.”  Every substantive post is assigned a subject-matter category, and it can be retrieved by their category grouping.  For example, that alimony post you were looking for above will be under the category “Alimony.”  Grandparent visitation posts will be under “Child Custody,” since visitation is a subset of custody.
  • And again in the panel to the right, you can look at “Older Posts” and search month by month, or scroll all the way to the bottom of the page and you will find boxes with numbers; each numbered page includes 10 posts, and you can search through all the older ones by going back page by page.
  • Finally, you can click on a “Category” or “Tag” in the left column, and that will take you to a page with all posts on other WordPress blogs in the same category or using the same tag. 

If all else fails, ask me and I will try to point you to the post you need.

DEALING WITH CRAZY CLIENTS

December 7, 2010 § 6 Comments

The issues that bring people to Chancery Court are some of the very issues that stretch ordinary people to the breaking point.  And it’s the lawyer who most often becomes the shock absorber, taking calls from worried clients in the wee hours, receiving hundreds of repetitive or accustory e-mails, being accused of all manner of things, having your judgment questioned at every turn, and even being threatened.  Like we have said, some clients can make you ashamed to be a human being.   

Some clients can be downright dangerous. 

Mark Bennett is a Texas criminal defense lawyer who has a blog named Defending People: The Tao of Criminal Defense Trial Lawyering.  He came up with a practical guide to dealing with crazy clients that he titled 10 Practical Rules for Dealing with the Borderline Personality.  Here are his guidelines:

10 Practical Rules for Dealing with the Borderline Personality

  1. If you don’t have to deal with a crazy person, don’t.
  2. You can’t outsmart crazy.  You also can’t fix crazy. (You could outcrazy it, but that makes you crazy too.)
  3. When you get in a contest of wills with a crazy person, you’ve already lost.
  4. The crazy person doesn’t have as much to lose as you.
  5. Your desired outcome is to get away from the crazy person.
  6. You have no idea what the crazy person’s desired outcome is.
  7. The crazy person sees anything you have done as justification for what she’s about to do.
  8. Anything nice you do for the crazy person, she will use as ammunition later.
  9. The crazy person sees any outcome as vindication.
  10. When you start caring what the crazy person thinks, you’re joining her in her craziness.

 

Crazy Joe Davola threatens to "put the kibosh" on Jerry Seinfeld

“YOU MAKE ME ASHAMED TO BE A HUMAN BEING”

December 6, 2010 § 1 Comment

Any lawyer who practices family law for any length of time learns quickly that some clients can be scarily delusional, or nearly so, and that managing their expectations can be an impossible task.

Here is an animated video of a lawyer-client interview about child custody that will have you family lawyers in tears — either from laughing hysterically or from regretfully recognizing yourself and/or a client in the exchange. 

WARNING:  This video includes some pretty rough language, and is not safe for work or appropriate for children.

Thanks to attorney Rhae R. Darsey and Municipal Judge Robert D. Jones for this.

BRAISED SHORT RIBS OR OX TAIL

December 4, 2010 § Leave a comment

Braising is cooking meat or a vegetable in liquid in slow heat.  The result is a tasty dish that will melt in your mouth.  The technique produces layers of rich flavors that are surprisingly complex considering the relative simplicity of the preparation.

The recipe below is for short (beef) ribs, but it works just as well with ox tails.  It may seem curious that the recipe calls for chicken stock, but once you taste it you’ll see why.  And you can see that the seasonings are quite simple.  The flavors that you get from braising are so robust that you don’t need much more than the taste of the ingredients.  Of course, it’s your kitchen, add whatever seasonings you like; just remember that braising will magnify or diminish their effects, depending on which herbs or spices you add.  

Be sure the vegetables are coarsely chopped.  You don’t want them to disappear in the long, slow cooking.

I have done a lot of braising, and it’s my favorite cooking method.  I like this recipe because it fairly reflects what I do when I am throwing a dish together with whatever I have on hand.  Try it.  I think you’ll be pleased and pleasantly surprised with the results.

 BRAISED SHORT RIBS

1             Tbsp. vegetable oil

1 1/2     Lb. short ribs, cut into 3″ pieces, about 6-8 in all, or flanken

2            Medium onions, coarsely chopped

2            Carrots, sliced

2            Stalks celery, coarsely chopped

2            Cloves garlic, minced

8            Oz. sliced mushrooms

6            Oz. tomato paste

3            Tbsp. all-purpose flour

1            Bottle (750 ml.) red wine

2            Cups chicken stock

               Salt and black pepper to taste

               Egg noodles, cooked

Pat the meat dry.  Season with salt and black pepper.

Heat the oil in a dutch oven until it shimmers.  Add the meat and brown on all sides over medium heat.  Remove the meat from the pan and set aside.

Drain all but one tablespoon of the oil.  Add the onions, carrots, celery, garlic, mushrooms and a sprinkle of salt and cook until the vegetables begin to soften, about five minutes.

Add the tomato paste and flour and mix thoroughly with the vegetables.  If necessary, add a splash of wine to facilitate the mixture.  Let the mixture heat, stirring often, for about five minutes.

Stir in the red wine and chicken stock.  Add the meat back to the pot.  Bring the contents to a boil.  Reduce heat to medium-low and cover.  Cook for two hours.  Remove the pot top and let cook for another fifteen minutes to reduce.

Serve over the cooked egg noodles.

ONE WAY TO PUT $50,000 IN THE POCKET OF YOUR CLIENTS

December 3, 2010 § 5 Comments

You are representing the executrix who is one of three siblings who are the legatees of the decedent.  They have come to you because their dad’s only asset of any real value, other than his furniture and an old car, was a life insurance policy with a face value of $50,000 that he had made payable to his executor for the estate, and the estate needs to be probated to receive the insurance proceeds.

The catch is that the creditors have claims that exceed the proceeds of the life insurance policy:  $17,000 to various credit cards; $8,000 to a loan company; and $36,000 to doctors and hospitals for the final illness.  Pretty bleak. 

The furniture and car are exempt property, as we know.  Is there anything else you can do?

Look at MCA § 85-3-13.  Here’s what it says:

The proceeds of a life insurance policy not exceeding Fifty Thousand Dollars ($50,000.00) payable to the executor, or administrator, of the insured, shall inure to the heirs or legatees, freed from all liability for the debts of the decedent, except premiums paid on the policy by any one other than the insured, for debts due for expenses of last illness and for burial; but if the life of the deceased be otherwise insured for the benefit of his heirs or legatees at the time of his death, and they shall collect the same, the sum collected shall be deducted from the Fifty Thousand Dollars ($50,000.00) and the excess of the latter only shall be exempt. No fee shall be paid or allowed by the court to the executor or administrator for handling same.

Under this section, the first $50,000 in life insurance proceeds is exempt from the claims of creditors, although that amount would be reduced by the amount of any other life insurance proceeds that the legatees receive from policies on the decedent’s life.  The only exceptions to the exemption would be:  Any claim made for payment of life insurance premiums made on the policy by someone other than the insured; and any claims for the burial and administrator’s or executor’s attorney’s fees for administering the estate, since those are not debts of the decedent, but rather are debts of his estate.  Dobbs v. Chandler, 36 So. 388 (Miss. 1904).  But attorney’s fees incurred in recovering insurance proceeds are not an administrative expense chargeable against the proceeds.  Abernethy v. Savage, 132 So. 553, 554 (Miss. 1931).   

The exemption is not limited to the spouse and children, but inures to the benefit of the heirs or legatees, and must be liberally construed in their favor.  Coates v. Worthy, 17 So. 606; on suggestion of error, 18 So. 916 (Miss. 1895).

The exempt proceeds are divided among the heirs or legatees on a pro rata basis.  Magee v. Bank of Hattiesburg & Trust Co., 98 So. 541 (Miss. 1923). 

The insurance proceeds must be payable to the executor or administrator of the estate.  In Rice v. Smith, 16 So. 417 (Miss. 1894), the court found the proceeds not to be exempt where the insured had named himself, his executors, administrators and assigns as beneficiaries.  Held that the decedent himself was the true beneficiary, and that his administrator held the proceeds just as if the decedent himself had held them.  This is a curious result, since it seems to presuppose that one may somehow collect one’s own life insurance proceeds.  But the significance of this case is that the statute requires the beneficiary to be the executor or administrator.   

Caveat:  MCA § 85-3-11 disallows the exemption where the decedent can be proven to have used life insurance to defraud creditors. 

Note:  The cases cited are ancient, but I believe them to be good law and I found no negative history.               

MORE ON FAMILY VIOLENCE AND CUSTODY

December 2, 2010 § 2 Comments

The court of appeals on November 30, 2010, upheld a chancellor’s decision that the statutory presumption against awarding custody to a party who has a history of family violence did not apply in the facts of the case.  I previously posted about the presumption and its effect on custody here.

In Brumfield v. Brumfield, which was before the chancellor on remand for specific findings on the Albright factors, there was evidence that the husband, Alex, who was awarded custody, had argued with his wife Heather, grabbed her, dragged her outside, threw her to the ground and hit her twice with a belt.  The parties reconciled after the event, although they later separated again.  The chancellor found the episode to be “isolated,” and insufficient to trigger the presumption.  A majority of the court of appeals, by Justice Myers, agreed with the chancellor’s finding that the record established only the single incident of domestic violence.

Justice Carlton, in a written dissent, reached deep into the record and found a document purporting to be a “sentencing order” from the Walthall County Justice Court on a charge of stalking and telephone harassment brought against Alex by an unnamed person.  The document stated that the charges had been remanded to the file.  Justice Carlton took the position that the document supported a finding of a pattern of family violence, even though the document did not appear to have been introduced into evidence, and there was no authentication.  The majority opinion pointed out that Heather had never mentioned the charge in her testimony at trial, in her arguments before the chancellor, or in her briefs filed with the court of appeals.  Apparently the chancellor had found the document either inadequately authenticated, or too vague with respect to its victim, or otherwise lacking probative weight.  It has long been the law in Mississippi that, in the absence of specific findings, it is presumed that the chancellor resolved fact issues in the appellee’s favor.  McNeil v. McNeil, 607 So.2d 1192, 1193 (Miss. 1992).

There are two refreshing aspects of the majority opinion:  One is the finding that Chancellor Debbra Halford acted properly in considering the belt-hitting incident in the context of her consideration of the Albright factors, rather than reaching outside the evidence to make a finding for the presumption; and Two that the majority deferred to the chancellor’s judgment and discretion, based as it was on her observation of the demeanor and credibility of the witnesses. 

As a lawyer, you need to plan your case either to meet the presumption or to persuade the chancellor to find that it applies.  You don’t want to get blind-sided by the presumption if it is against your client, and you don’t want your proof to fall short if the presumption is in your client’s favor.  In the Brumfield case, might the outcome have been different if Heather’s lawyer had put more emphasis on proof supporting the presumption?  Remember, chancellors have to base their decisions on what is in the record, and it is your job to make that record.

THE WHOLE TRUTH AND NOTHING BUT

December 2, 2010 § Leave a comment

A Meridian lawyer passed this on from his LAWYERS desk calendar …

During a 1989 case in municipal court in Middletown, Ohio, a lawyer asked the judge to be excused from representing his client.

The judge scanned the courtroom, looking for a suitable replacement.  But before he could find one, the defendant stood up and said, “That’s all right, Judge.  I won’t be needing another lawyer.  I’ve decided to tell the truth.”

« Older Entries

Newer Entries »

Where Am I?

You are currently viewing the archives for December, 2010 at The Better Chancery Practice Blog.