WHAT, ME WORRY?

June 30, 2011 § 6 Comments

Newman

It was the philosopher Alfred E. Newman who coined the epigram, “What, me Worry?”  I suspect he also came up with the fallacious thought that “What you don’t know can’t hurt you,” which as any lawyer can tell you, is tragically and dangerously untrue.

Take as a case in point Ivison v. Ivison, 762 So.2d 219 (Miss. 2000).  Mrs. Ivison got the former marital residence in the divorce, and the ex-husband paid the mortgage notes.  The husband deducted the payments because he was advised that payments made to a third party on behalf of another are treated as alimony and are deductible, if they are mandated in a divorce judgment or property settlement agreement and meet the other criteria for alimony.  Mr. Ivison took the deduction, and Mrs. Ivison got a nice, but businesslike letter from the IRS explaining that they wanted her to pony up the income taxes, which were in an amount significant enough to give Mrs. Ivison a bad case of hiccups and send her scurrying to court.

Mrs. Ivison complained to the chancellor that she had not been advised by her attorney at the time that the payments were going to be treated as income, and that she would never have agreed to the divorce settlement had she known.  She convinced the sympathetic chancellor that the ex-husband, and not she, should have to pay the taxes.  She got her modification.

On appeal, the MSSC reversed and rendered.  The opinion pointed out that the applicable tax law had been in effect at the time of the divorce, so the situation did not constitute a material change in circumstances.  The court also held that ignorance of the law, and particularly in this case tax law, is not a reason to modify.

I do not know what happened to the attorney who did not advise Mrs. Ivison.  I hope he or she had enough malpractice insurance coverage to weather the storm.  This was truly a case where what you don’t know can indeed hurt you.  And to put it even more pointedly:  What your client does not know that you should have advised her about can indeed hurt you.

ANOTHER UNSUCCESSFUL ASSAULT ON THE NATURAL PARENT PRESUMPTION

June 29, 2011 § 1 Comment

It is axiomatic that as between a natural parent and a third party, it is presumed that the best interest of the child will be preserved by being in the custody of the natural parent. Sellers v. Sellers, 638 So.2d 481, 486 (Miss. 1994). This natural parent presumption over third-party custody has been the subject of prior posts here and here.

In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the supreme court reversed a chancellor’s ruling that a temporary agreement to change custody was enough to overcome the presumption.  In Wells v. Smith, decided May 31, 2011, by the COA, the appellate court rejected in loco parentis as a basis to overcome the presumption.

In Brown v. Hargrave, decided June 28, 2011, the COA rejected yet another assault on the presumption, this time based on the judge’s finding that the totality of the circumstances and the plaintiff’s long-term care of the child.  Relying again on Vaughn v. Davis, the found that the trial judge applied an incorrect legal standard, and sent the case back to the chancellor for a rehearing to determine whether some other basis exists to overcome the presumption.

I’m going to take up for the chancellor in this one so as to make an important point. Chancellors are sometimes (too often I might add) confronted with a situation in which it is obvious that one party has no business with custody of the child, and that the child would be far better off with the other party. The problem is that the case is sloppily tried, points are not made in the record, evidence is not introduced, and the chancellor is left with having to do what he or she fervently believes to be in the best interest of the child without an adequate supporting record. The usual result is a remand, or, in some cases a rendered reversal.

If you don’t want to snatch defeat from the jaws of victory, put on as strong a case of unfitness as you can muster. Put on proof of circumstances that are strong enough to rise to the level of abandonment. Make as strong a case as you can. If you leave the judge without much to hang his decision on, it may end up that your client is the unhappy one.

Q & A ON SOCIAL SECURITY’S INTERACTION WITH CHILD SUPPORT

June 28, 2011 § 2 Comments

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $250 a month from social security due to the father’s disability.  What is the effect of  social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation.  Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982). In this case, since the social security benefit is less than the support obligation, the father will receive credit for the $250 social security payment and will owe the $50 monthly difference.  

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from social security due to the father’s disability.  What is the effect of social security on the father’s obligation?

A:  The father is entitled to a credit up to the amount of his support obligation, and any amount in excess is a gratuity to the child.  Mooneyham at 1074. 

Q:  Father’s child support obligation is $300 a month, and the child begins receiving $350 from supplemental security income (SSI) due to the child’s disability.  What is the effect of the SSI on the father’s obligation?

A:  None. Receipt by the child of SSI payments does not reduce the parental support obligation. Hammett v. Woods, 602 So.2d 825, 828 (Miss. 1992). The same result should apply to any form of benefit received by the child that is generated by the the child or someone other than the child-support-obligated parent.

An interesting twist on this principle appeared in the case of Bradley v. Holmes, 561 So.2d 1034 (Miss. 1990). The father began receiving social security and requested the mother to file for the child to receive benefits on his account. The mother instead filed for and received benefits for the child through the child’s step-father’s account because the benefits were higher. The father petitoned the court to eliminate his child support payments because the mother could have used his account to pay the support, but she elected to use another’s entitlement.  The supreme court agreed an held that the father’s obligation was extinguished because the step-father-derived benefits exceeded the amount of the father’s child support obligation.  

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued after his disability date, and the child receives a lump-sum payment from social security based on the father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

AChapman v. Ward, 3 So.3d 790, 799 (Miss. App. 2009), and Keith v. Purvis, 982 So.2d 1033, 1038 (Miss. App. 2008), addressed this issue. Read in combination, they appear to hold that the father may have no credit, but the legislature might have altered that rule. Here is what the legislative drafting office provided us at the Judges’ Spring Conference about an amendment to MCA § 93-11-71, to take effect July 1, 2011: “Section 93-11-71 is further amended to provide that the parent who is in arrears on child support payments and who receives Social Security Disability insurance benefits for the support of that child or children will receive credit on the arrearage if it accrued after the date of the disability.”  Rooting that principle out of the chapter laws, or even the express language upon which the statement might be based, has been an insuperable challenge for me so far, so I will withhold a categorical statement as to what the new law might provide, so I will withhold jumping in until I receive my advance sheets. In the meantime, if you have this issue come up after July 1, I urge you to do your own research to protect your client’s interests.

Q:  Father has an arrearage in child support in the sum of $2,000 that accrued before his disability date, and the child receives a lump-sum payment from social security based on father’s disability.  What is the effect of the lump sum payment on the father’s obligation?

A:  It would appear both from the case law and the revised statute that the father has no protection or relief in this circumstance.

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 8 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary.  Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank.  In that case, the bank filed a judicial foreclosure and published process to Angela Turner.  The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown.  At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself.  Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded.  Here are some pertinent excerpts from the decision:

  • “Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
  • “¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
  • “¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
  • “¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).”  [Emphasis added]
  • In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
  • This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
  • “Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4).  The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

DICTA

June 24, 2011 § 3 Comments

  • The Legal Ethics Forum has a thought-provoking post about a study in Minneapolis in which lawyers were called upon to define professionalism by identifying lawyers they considered exemplars, and by identifying the traits they displayed.  ” … [T]hese exemplars talked about a way of being, of acquiring habits of reflection and soul searching, of questioning their personal assumptions about how to be an effective lawyer, or how to lead other lawyers.”  It’s an interesting addition to the concept of professionalism.
  • Do lawyers have a First Amendment or Fourteenth Amendment-due process right to wear baseball caps and jeans when appearing in court?  So far, the answer is no, as the First Amendment Center explains.
  • The increasingly negative cost-benefit ratio of a law degree has been the subject of much reporting over the past couple of years. Law grads entering the work force with massive student-loan debt have not been successful in finding jobs adequate to retire their debt.  Now, the WSJ Law Blog reports that some law schools are shrinking their enrollment in recognition of the fact that lawyer supply exceeds demand. Is it a trend or a bump in the road?
  • Ever wonder what the real numbers are behind all the budget debates in Jackson, in your county, your school systems, and in your city? See the Spending documented here. You will have to enter some info to “sign up.”
  • 380 free movies online here.
  • It will take you a couple of hours to read, but these 1980’s interviews and manuscripts of Sam Bowers, Jr., predating his conviction for the murder of Vernon Dahmer, will give you some insight into the mind of a murderous Klan leader and racist.
  • If you’re old enough to remember when music came on LP’s and cassettes (or 8-track), long before mp3 and iTunes, and even before CD’s, you will enjoy this article about how Columbia House made billions by giving you 10-12 tapes in return for your membership and commitment to buy some music.

    Such a deal

PARING DOWN YOUR LEGAL PROSE

June 23, 2011 § 2 Comments

The importance of being Ernest

Nobel Prize-winning author Ernest Hemingway worked as a reporter for the Kansas City Star newspaper in 1917.  The sparse, compact language of journalism proved to be ideally suited to his writing skills, and he adopted it as his style.  The minimalist prose that resulted became his trademark.

Here are excerpts from the paper’s style sheet:

  • Use short sentences. Use short first paragraphs. Use vigorous English. Be positive, not negative.
  • Eliminate every superfluous word, as “Funeral services will be at 2 o’clock Tuesday,” not “The funeral services will be held at the hour of 2 o’clock on Tuesday.” “He said” is better than “He said in the course of conversation.”
  • Avoid the use of adjectives, especially such extravagant ones as “splendid,” “gorgeous,” “grand,” “magnificent,” etc.
  • Be careful of the word “also.” It usually modifies the word it follows closest. “He, also, went” means “He, too, went.” “He went also” means he went in addition to taking some other action.
  • Be careful of the word “only.” “He only had $10″ means he alone was the possessor of such wealth; “He had only $10″ means the ten was all the cash he possessed.
  • A long quotation without introducing the speaker makes a poor lead especially and is bad at any time. Break into the quotation as soon as you can, thus: “‘I should prefer,’ the speaker said, ‘to let the reader know who I am as soon as possible.’”

“Those were the best rules I ever learned for the business of writing,” Hemingway told a reporter in 1940. “I’ve never forgotten them. No man with any talent, who feels and writes truly about the thing he is trying to say, can fail to write well if he abides with them.”

There’s something for lawyers to chew on here. Is your writing clear, concise and direct? Does it make your point in the first sentence, or in the first few words, or do you make the reader meander through prolix piles of prose? Does it read like nineteenth-century legal jargon, or does it state your client’s position in easily comprehensible language?

Take a few minutes to read your pleadings. Take a few minutes to review your motions and briefs. Does your writing do the job for your client, or does it get in the way?

When a judge reads your pleadings, motions or briefs, can he or she get right to the point, or does it take laborious digging to get there? And when the judge finally gets to the point, is it clear exactly what the point is?

Do you have a reliable style book you can pull out and check from time to time? I like Strunk and White’s Elements of Style. It’s timeless without being stuffy, and at a mere 85 pages, it’s packed with easy-to-find gems. The chapters include rules of usage, principles of composition, commonly misused expressions, matters of form, and an approach to style. There’s a lot here that is easily digestible and quite useful.

Give your writing a little thought. It’s one of your most potent tools to advance your client’s interest. And consider that muddled writing is symptomatic of muddled thought; if you can’t find a way to express it in writing, you may not be able to say it at all.

Thanks to Futility Closet for the Hemingway material.

TURNER v. ROGERS DECONSTRUCTED

June 22, 2011 § 4 Comments

By Ben McMurtray

Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him.  The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).”  The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”

The practical effect of this ruling has actually very little to do with the right to counsel.  Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court.  The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant.  These safeguards are:

  1. Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
  2. The use of a form (or the equivalent) to elicit relevant financial information;
  3. An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
  4. An express finding by the court that the defendant has the ability to pay (before finding him in contempt).

This list is not inclusive of all possible safeguards that a state could employ.  In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”

Turner, though, is quite limited in its scope.  The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead.  The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney.  Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se.  Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.”   Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.”  In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.

So how does Turner v. Rogers affect one’s practice?  When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing.  Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay.  Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing.  Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.

[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]

BREAKING NEWS: TURNER v. ROGERS

June 21, 2011 § 3 Comments

The US Supreme Court yesterday ruled in Turner v. Rogers that it is a violation of the Due Process Clause of the US Constitution for the state to incarcerate a defendant for non-payment of child support when he was afforded neither benefit of counsel nor some alternative procedures, and he was not given adequate notice. I had previously posted about the case here.

I have only now gotten a copy of the opinion, and will post on it when I have a chance to read it.

Thanks to attorney Frances Stephenson.

FIVE MORE SUGGESTIONS FOR PROPERTY SETTLEMENT AGREEMENTS

June 21, 2011 § 3 Comments

  • Sometimes the parties want the property settlement part of the PSA to be a final, binding contract regardless whether there is any contest.  If you don’t include that provision unequivocally stated, the law is clear that the court can not enforce the contract piecemeal.
  • If a payment is to be made, such as child support, specify the first payment date and the regular monthly date for payment.
  • If something is to be done, specify the date by which it is to be done.  In the alternative, include a stock provision in all your PSA’s to the effect that “If no specific date is stated by which an action in this Agreement is to be accomplished then it shall be done and completed not later than thirty days from the date of this agreement.
  • If something is to be done, specify whose responsibility it is to do it.  For instance, the provision that “All child support payments due hereunder shall be made pursuant to the Bank Plan,” was held by Judge Mason not to be clear enough that it was the payor’s responsibility to enroll in and make payments under the plan where he had been unrepresented in the divorce.  Better to say something like “Husband shall be solely responsible to do all acts and things necessary to enroll in and make all child support payments due on and after August 11, 2011, through the Bank Payment Plan.”
  • Section 71(b)(1)(B) of the Internal Revenue Code allows the parties to agree that alimony will be neither taxable nor deductible.

COMING TO GRIPS WITH McDONALD

June 20, 2011 § 6 Comments

I don’t think it’s an overstatement that the Mississippi Supreme Court’s decision in McDonald v. McDonald, 39 So.3d 868 (Miss. 2010), set chancery court practice vis a vis guardians ad litem (GAL) on its proverbial ear.  And it’s not so much what McDonald held as what it hinted at.

Before McDonald, it was common practice to allow a GAL to investigate, file a report, and testify to the results and findings of the investigation, including hearsay, and make a recommendation.  After all, most of what a GAL unearths is based on hearsay: the GAL interviews the children, neighbors, school teachers, parents, relatives, and reviews medical records and school records.  In my experience most chancellors allowed the GAL to testify to the facts disclosed in the investigation, and I don’t recall anyone ever objecting to the hearsay.  Most lawyers used the GAL’s report as a guide for what evidence would prove or disprove the case.  It was a good system that allowed a qualified person as an arm of the court to look behind the positions of the warring parties and to pierce the veil of partisanship.  I have observed on more than one occasion in contested child custody cases that the momma and dady are each zealously pursuing their own positions, but no one is looking out for the best interest of the children.  The GAL’s role as arm of the court was a perfect complement to the chancellor’s role as superior guardian of the children.  Frankly, it worked pretty well when a well-qualified and diligent GAL was involved.  When the GAL proved to be less than diligent, the chancellor was free to discount or even disregard the findings and recommendations.

Enter McDonald.  In that case, the mother in a child custody modification case objected to the GAL’s oral testimony, ” … stating that if the teachers and others being quoted by the GAL had something to report, they should have been required to be there. The court responded that
GALs are allowed by “historical practice” to offer hearsay testimony, and overruled the objection. ”  McDonald at 884.

The Supreme Court disagreed and pointed out without expressly holding that a GAL’s oral hearsay testimony should be excluded.  Justice Dickinson’s specially concurring opinion was even more blunt when he stated that MRE 1 expressly states that the evidentiary rules do apply in chancery court.  End of dicussion for him.

The court did not extend its hearsay proscription to GAL written reports, however.  The following language, beginning on page 882, is instructive:

“Jennifer argues that the GAL exceeded the proper role of a GAL by offering hearsay testimony, as well as taking ‘on a role as a litigant/expert’ by providing a written report to the court, making recommendations, discussing the views of the court-appointed counselor, filing a motion, testifying, examining witnesses, and meeting ex-parte with the chancellor. Other than offering hearsay testimony as discussed below, the GAL was simply following the provisions of the GAL statute and the pronouncements of this Court. This Court dealt recently with a similar issue in S.G. v. D.C., 13 So.3d 269 (Miss.2009), an opinion handed down after the briefs were filed in this appeal. The S.G. Court stated the following regarding the proper role of a GAL:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.  Id. at 282.

The GAL in the case sub judice did not offer the type of testimony criticized in S.G. See id. at 274 n. 5.  This GAL reported on matters required by her appointment, and consistent with a GAL’s duties as outlined in S.G. Id. at 282.

The statute’s provision that a GAL “shall have the duty to protect the interest of a child for whom he [or she] has been appointed guardian ad litem. The guardian ad litem shall investigate, make recommendations to the court or enter reports as necessary to hold paramount the child’s best interest,” is consistent with the traditional roles required of a GAL, which predate the enactment of the statutes. Miss.Code Ann. § 43-21-121(3) (Rev.2009). In In the Interest of D.K.L., 652 So.2d 184 (Miss.1995), this Court held that a GAL had failed in his duties by simply deferring to a therapist’s recommendations, and not submitting his own recommendation as to the best interests of a child. Id. at 188. The D.K.L. Court stated that the GAL ‘did not have an option to perform or not perform, rather he had an affirmative duty to zealously represent the child’s best interest.’ Id. In In the Interest of R.D., 658 So.2d 1378 (Miss.1995), this Court held that “children are best served by the presence of a vigorous advocate free to investigate, consult with [the children] at length, marshal evidence, and to subpoena and cross-examine witnesses.” Id. at 1383 (quoting Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441, 444 (S.C.Ct.App.1990)). See also M.J.S.H.S. v. Yalobusha County Dep’t of Human Serv. ex rel. McDaniel, 782 So.2d 737, 740-42 (Miss.2001)(GAL failed in his duty by relying on DHS records and the recommendations of a therapist and social worker). In D.J.L. v. Bolivar County Department of Human Services ex rel. McDaniel, 824 So.2d 617 (Miss.2002), this Court found no error in a GAL’s cross-examination of witnesses. Id. at 622. The Court also ’emphatically proclaim[ed] to the bench and bar that … the guardian must submit a written report to the court during the hearing, or testify and thereby become available for cross-examination by the natural parent.’ Id. at 623. Therefore, the GAL would have been derelict in her duty to zealously represent the boys’ best interests if she had failed to interview the boys, consider the opinions of experts, marshal evidence, make an independent recommendation, question witnesses, submit reports, and make herself available for cross-examination.

The chancellor did not allow the GAL to usurp his role as the “ultimate finder of fact.” Id. The chancellor heard all witnesses, read all the
reports, and made his own decision based upon independent findings of fact.  Thus, we find this portion of Jennifer’s argument to be without merit.”

Footnote 7 on page 884 states:

“Hearsay testimony should not to be confused with a GAL’s written reports, which sometimes, by their very nature, will include statements, which, if offered into evidence at trial to prove the truth of the matter asserted, would be inadmissible hearsay, unless they qualify under one of the exceptions to the rule against hearsay. Any such inadmissible hearsay, however, would not require exclusion of the entire report. This issue is not before the Court this day.”

I have heard reactions to McDonald that just about cover the ball park.  One chancellor has said that he and the other judge in his district no longer appoint GAL’s unless they are required by statute because they feel that McDonald has rendered the GAL role ineffective and superfluous.  I have heard chancellors confess that they don’t have any idea where to go post McDonald when it comes to GAL’s.  And GAL’s have come to me and said they are now quite confused as to what they can and can not do.

The GAL system is far too valuable to chancery court to be relegated to the trash heap.  At least for the time being, chancery court maintains its historical distinction from circuit in that the chancellor has a high duty to act in the best interest of a child, and to have a greater role at trial than to be a mere referee blowing the whistle and throwing penalty flags for hearsay transgressions; the chancellor’s duty is to ensure that the best interest of a child is protected, even when the parties themselves do not do so.  The GAL has for many years given the chancellor a practical, effective way to meet his or her responsibility.

So how do we reconcile McDonald with the traditional role of the GAL?  I think it comes down to the following for the party who will make positive use of the GAL recommendations:

  1. Plan to qualify and tender the GAL as an expert.  Ask the court at the outset of trial for leave to allow the GAL to remain in the court room in her role as an expert, if the rule is invoked.
  2. Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.
  3. Finally, call the GAL as an expert witness and offer her report into evidence.  She should qualify as an expert because of her legal training and experience, plus the fact that every GAL now must undergo special training and maintain certification.  And as for her testimony, remember that, under MRE 703, “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”  Moreover, with all of the factual evidence already in the record, the GAL is free to comment on it.

But, you say, this will result in more cumbersome, longer and more expensive trials in custody actions with GAL’s.  You are certainly right, but that is what the supreme court is directing us to do.

My understanding is that the GAL in McDonald was qualified as an expert.  The opinion in McDonald did not explain why Rule 703 was not an adequate basis for her hearsay testimony that ” … need not be admissible in evidence.”  So until the MSSC takes another shot at the issue, I interpret McDonald to mean that the GAL may include hearsay in his report, and may testify to it NOT to establish the truth of the matter asserted, but to establish the basis for his recommendations.  In other words, you will have to call the witnesses and have them testify, and put the documents, photos and records in via competent testimony if you want or need those facts to be established in the record.

For now that is the way I will approach McDonald.

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