MANIFESTLY NOT IN ERROR
November 30, 2011 § 3 Comments
In several recent cases the COA affirmed chancellors where the trial court’s conclusions were supported by substantial evidence and were in line with the applicable law.
In Love v. Love, decided November 15, 2011, the court upheld the chancellor’s award of custody to the mother, Jennifer, over the father, Aaron, in spite of Jennifer’s less-then-stellar behavior. Judge Maxwell’s opinion stated at ¶36:
“The cold record, Aaron argues, is fraught with examples of Jennifer’s alleged misconduct and neglect. But the chancellor had an important hands-on benefit that we lack—her personal assessments of Jennifer’s and Aaron’s credibility—both at the custody hearing and post-trial hearing. Based on these interactions, the chancellor discounted some of the negative testimony about Jennifer, accepted much of it, and evaluated all of the testimony against the evidence of Jennifer’s care for Tommy. The chancellor ultimately found Jennifer had slightly better parenting skills and that it was in Tommy’s best interest that Jennifer be awarded custody and Aaron liberal visitation. Admittedly, this is a close case. But because the chancellor supported her decision with substantial evidence, we find our deferential standard requires us to affirm.”
Love highlights an important consideration in chancery cases: that the trial judge is in the best position to weigh the credibility of the witnesses. The cold record simply does not convey the way a witness presents himself or herself, the tone of voice, the hesitations, the body language, the facial expressions. In a close case credibility can hinge on how the witness presents himself or herself. A defensive, hostile witness who snaps answers off in a sarcastic tone will come across as less worthy of weight and credibility than one who presents herself as open, honest and matter-of-fact with nothing to hide. And yet the trial transcript will present both witnesses in the same light.
In Nichols v. Nichols, also decided November 15, 2011, the COA affirmed the chancellor’s award of custody to the father, stating at ¶11 that “We find that there was substantial evidence in the record to support the chancellor’s decision to award custody of the children to [the father].”
Only the week before, in Powell v. Powell, the COA had upheld the chancellor’s decision in equitable distribution, again finding that the chancellor had applied the law properly, and that his findings were supported by substantial evidence.
In Smullins v. Smullins, decided November 29, 2011, the COA upheld the chancellor’s Albright analysis based on a finding that it was supported by substantial evidence. The opinion was rendered on rehearing, and replaced an earlier opinion that had reversed the chancellor.
There have been other decisions along these lines dating back into 2010.
In my opinion, these cases are among a growing number of COA decisions where the court is refusing to second-guess chancellors and is limiting its scrutiny to a determination whether the chancellor’s decision was supported by substantial evidence, unless the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or an erroneous legal standard was applied, as the familiar introductory paragraph to every chancery court appellate decision recites.
If this continues, the bonus for lawyers and judges alike will be that there will be fewer anomalous decisions, and the proliferation of case law with which we have to deal will grow at a more manageable rate. Two trends that we all can applaud.