AMENDING BY THE BOOK

February 15, 2012 § 2 Comments

Things seem to go in phases. A motion to do thus and such is filed, finds some success, and a slew of others follow. Or a court of appeals decision makes a point, and a salvo of pleadings ensue.

Lately, a phase in pleadings is for lawyers to file successive so-called “amended” or “supplemental” pleadings and answers thereto, along with counterclaims (bearing all manner of names, such as “counter-motions,” “cross-complaints,” “counterpetitions,” etc., etc., etc.), and responses thereto, to the extent that casting the pleadings for trial is like assembling a jigsaw puzzle. Nearly always, this plethora of pleadings is filed in a willy-nilly cascade of paperwork without any leave of or input by the court. It does not have to be, nor should it be, this way.

MRCP 15 lays out an orderly process for amendments that is fairly simple if followed. Here’s the simple scheme laid out in Rule 15(a):

  1. You may amend at any time, without leave of court, before an answer is served.
  2. If your pleading is one to which no answer is permitted,  you may amend without leave of court at any time within 30 days after service of process, unless the matter has been placed on the trial calendar.
  3. Any other amendment will require leave of court, with notice to the other side and opportunity to be heard, OR written consent of the adverse party or parties.

It’s really that simple. There are some other interesting wrinkles in Rule 15, and we’ll touch on them, but the important thing to remember is that if your pleadings don’t meet the criteria in 1 and 2 above, you must file a motion and get permission of the court to amend or get an agreed order. Note that the rule requires “written consent.” I take that to mean an agreed order of the court, not a handshake deal that is later the subject of heated dispute.

An important caveat: Rule 15 specifically says that leave to amend shall be freely given. Don’t confuse that principle with freely amending without leave of court.

The importance of following the requirements of Rule 15(a) is illustrated by what happened in Lone Star Industries, et al. v. McGraw, decided February 2, 2012. In that case, the Mississippi Supreme Court held that the circuit judge should have dismissed a second amended complaint for failure of the plaintiff to get leave of court before filing it. As a result, some plaintiffs were dismissed from the suit, and the statute of limitations (SOL) has likely run.

You can have a similarly unpleasant result in chancery, although we seldom deal with SOL. Imagine that you have unilaterally updated your modification pleadings 10 days before trial to bring up some claims that surfaced in discovery, only to face an objection at trial that you did not comply with Rule 15. The judge should sustain the objection and throw out your updated claims. In a modification case, that could be significant to your client, because the judgment that results from this trial will time bar any later claims based on acts that precede it.

So, how do you successfully update your pleadings to capture transactions, occurrences or events related to the original claim that occurred after the filing of the original pleadding? You file a motion pursuant to Rule 15(d). If you can’t get the other side to agree via an agreed court order, you should call your motion to amend up for hearing right away, because the judge can deny your request if to grant it would prejudice the other party, as, for instance where you wait until immediately before or the day of trial.

Rule 15(b) says that even if you have not amended, you may be able to get your amendment anyway if you present evidence that is outside the scope of the pleadings at trial and the other side does not object. The court in such a case may allow the pleadings to be amended to conform to the proof. That’s the subject of a post to come later.

Amendments relate back to the date of filing of the original pleading, if they arise out of the same conduct, transaction or occurrence set forth “or attempted to be set forth” in the original pleading. That’s what Rule 15(c) provides, and it has some important language about adding parties.

Sloppy amendment practice makes a mess out of litigation. Recently I delayed a trial and ordered the parties to file updated, consolidated pleadings where there was a train of pleadings extending back to 2008, with petitions, counterclaims, responses and answers to responses of such byzantine proportions that I could not discern what were the issues in the case. I suspect that when the case bubbles back up, many of the issues will have fallen by the wayside, and we will have a streamlined, current, sensible package of issues for adjudication. Or at least that’s what I’m hoping.

JUDGE, JURY … AND INTERROGATOR

February 14, 2012 § 2 Comments

Lawyers frequently refer to the fact that chancellors are “judge and jury” because the chancellor makes findings of fact as well as conclusions of law in the case.

But there’s another legitimate role of the chancellor … developer of the facts. It’s a duty of chancellors long recognized in our jurisprudence, as this passage from the venerable case of Moore v. Sykes’ Estate, 167 Miss. 212, 219-221, 149 So. 789, 791 (1933), illustrates:

“Ever since our chancery court system has been in operation in this state, going back to the earlier days of our judicial history, it has been an established and well-recognized part of that system that one of the important obligations of the chancellor is to see that causes are fully and definitely developed on the facts, and that so far as practicable every issue on the merits shall be covered in testimony, if available, rather than that results may be labored out by inferences, or decisions reached for want of testimony when the testimony at hand discloses that other and pertinent testimony can be had, and which when had will furnish a firmer path upon which to travel towards the justice of the case in hand. The power and obligation reaches back into the ancient days of chancery when the chancellor called the parties before him and conducted a thorough and searching examination of the parties and the available witnesses and decreed accordingly. And, while now this duty of calling the witnesses and the conduct of their examination is placed in the first instance and generally throughout on counsel, the power and duty of the chancellor in that respect is not thereby abrogated; and while to be exercised only in cases in which it is fairly clear that the duty of the chancellor to intervene has arrived and is present, when that situation does arise and is perceived to be present, the duty must be exercised and is as obligatory as any other responsible duty which the constitution of the court imposes on the chancellor.”

And where the attorneys have failed to develop the proof necessary, the chancellor may reopen the proof, or leave the record open to acquire the necessary proof, so as to be able to adjudicate the case. In In re Prine’s Estate, 208 So.2d 187, 192-93 (Miss. 1968), the court said:

“More than a half century ago our Supreme Court in Beard v. Green, 51 Miss. (856) 859, expressly pronounced upon the obligation and responsibility mentioned, and in that case said: ‘The power of the chancery court to remand a cause for further proof at any time before final decree, and in some cases after it, either with or without the consent of parties, is one of the marked characteristics distinguishing it from a court of law, and is one of its most salutary and beneficent powers. It should always be exercised where it is necessary to the ascertainment of the true merits of the controversy.’ And the court went on to say that it was immaterial as to how the necessity of the action by the court arose, whether through inattention or misapprehension or misconception by counsel or litigants, and that none of these or the like should be allowed to prevent the doing of justice. And the duty of the chancellor in this respect was again declared in a later case, McAllister v. Richardson, 103 Miss. (418), 433, 60 So. 570, 572, wherein it was pointed out that the duty, and this of course carries the power, is not only to remand to rules, but includes the obligation on the part of the chancellor during the hearing to see ‘that all proper testimony was introduced to enable him to render a decision giving exact justice between the contending parties’-to conduct the hearing in such manner ‘that all testimony which will throw light upon the matters in controversy is introduced,‘ and that he is within his privileges and duties in aiding to bring out further competent and relevant evidence during the examination of the witnesses who are produced.”

The ancient practice is incorporated in MRE 614, which expressly provides that “The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.”  The rule goes on to say that the court may itself interrogate any witness called by anyone, and objections to the court calling or interrogating a witness in chancery should be contemporaneous.

Imagine a case where only one side puts on proof of the Albright factors in a child custody case with horrific allegations. The neglectful side is represented by counsel who is not quite up to the task. Should the chancellor allow the best interest of a child to be determined on lopsided proof? Or should she let the better-represented side play “gotcha!”? Neither. As Albright itself reiterates, the polestar consideration is the best interest of the child. In her role as the child’s superior guardian (Carpenter v. Berry, 58 So.3d 1158, 1163 (Miss. 2011)), the chancellor has the duty to make sure that there is adequate proof in the record before making a decision. Rule 614 and the judge’s authority to reopen or leave the record open are the tools that the judge can put to good use.

It goes without saying that this considerable power should be exercised with discretion. There is the well-worn tale of the chancellor who interrupted counsel’s questioning of a witness and proceeded into his own lengthy cross examination. The attorney asked to approach the bench and told the judge, “Your honor, I don’t mind you questioning my witness, but please don’t lose the case for me.” So, a judge can be too fond of the sound of his own voice. The balance, perhaps, was laid out best by the Mississippi Supreme Court in Bumpus v. State, 166 Miss. 267, 144 So. 897 (1932): “It is true that ‘an overspeaking judge is no well-tuned cymbal,’ but, in language somewhat similar to that of Mr. Justice McReynolds, in Berger v. U. S., 255 U. S. 43, 41 S. Ct. 230, 65 L. Ed. 489, neither is an aphonic dummy a becoming receptacle for judicial power.”

THE LATEST ON DISCOVERY GAMESMANSHIP

February 13, 2012 § Leave a comment

Discovery gamesmanship has been the subject of a prior post on this blog. It’s a troublesome phenomenon, not only for the lawyers who have to confront and deal with it, but also for chancellors who have to decide whether, when and how to impose sanctions.  

The most recent pronouncement from our appellate courts came in the case of Williamson v. Williamson decided by the COA on January 10, 2012, at ¶¶ 29-31.

In Williamson, the appellant, Will, argued that the chancellor had improperly assessed him with attorney’s fees for failing to file complete and timely responses to the other side’s discovery requests. Judge Carlton’s opinion disposed of his claim:

¶29.  Additionally, as to Will’s argument that the chancellor erred by awarding Mary attorney’s fees for her costs in filing the motion to compel, we, likewise, find no merit. We recognize the chancellor possesses sole discretion as to whether sanctions should be imposed for discovery violations, and we employ an abuse-of-discretion standard of review when considering a chancellor’s order of sanctions. Williams v. Williams, 43 So. 3d 517, 521-22 (¶19) (Miss. Ct. App. 2010) (citing Hayes v. Entergy Miss., Inc., 871 So. 2d 743, 747 (¶11) (Miss. 2004)). Mississippi Rule of Civil Procedure 37(a)(4) provides:

If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

¶30. The record shows that Will failed to provide complete and timely responses to Mary’s requests for discovery prior to Mary filing her motion to compel. The record also reflects Will provided no adequate reason for his failure to comply. Thus, in accordance with Rule 37, we find no error in the chancellor’s order requiring Will to pay Mary’s attorney’s fees for her cost incurred in bringing the motion to compel. See Russell v. Russell, 733 So. 2d 858, 862-63 (¶16) (Miss. Ct. App. 1999).

¶31. Accordingly, we find no merit to Will’s arguments as to chancellor’s … award of attorney’s fees to Mary.

In this district, attorneys have a long-established custom of trying to work with each other through discovery problems, but sometimes the payback for that civility is abuse of the system. The judges generally view the initial motion to compel as a warning shot resulting in an order to comply, with a second trip to court triggering sanctions if warranted by the proof. I often will impose a $25 per day fine for each day after the court-imposed deadline that a party fails to comply, and I do not limit my sanctions to that. I also use scheduling orders in almost all cases, particularly divorces, and a party who pushes the deadlines and fails to compy risks running afoul of the court on that count.

As Williamson clearly indicates, you play games with discovery at your and your client’s peril. Thankfully, most attorneys in this part of the world have grown past the gamesmanship in chancery court, and for the most part discovery proceeds in an orderly fashion with both sides able to accumulate the evidence they need to present their respective cases to the court in a complete fashion. For those who persist in non-compliance, however, read Williamson and be warned.

SWEET BALSAMIC RIBS

February 10, 2012 § 1 Comment

It’s been a busy week, and we’ve already done five days worth of work, so I hereby declare it to be the weekend. Right now. Go home, relax, and take a break from the grind. Now your thoughts can turn to something delightful to eat that will make the weekend special. With these mild temperatures, how about something to grill? How about ribs? How about baby back ribs?

It’s hard to get tired of ribs. Smoked, grilled, smothered, or any other way, they are always wonderful. My favorite ribs come out of my Orion Cooker, and they are always delicious.

Yet, every now and then one yearns for a different taste. And so it was that I stumbled upon a recipe for sweet balsamic ribs. It proved to be so good that I have refined it over time and have even served it to company. I’m telling you, this is a seriously tasty recipe.

SWEET BALSAMIC RIBS

8    Garlic cloves, mashed into a paste

2    Tbsp. salt

4    Tbsp. fresh rosemary, finely chopped

4    Tbsp. dark brown sugar

4    Tbsp. balsamic vinegar

2    Tsp. cayenne pepper

2    Slabs baby back pork ribs

1    Cup water

Combine garlic, salt, rosemary, brown sugar, balsamic vinegar and cayenne. Rub over the ribs. Marinate, chilled, in the mixture for 8-24 hours.

Preheat oven to 425º.

Place marinated ribs into a roasting pan, making sure that the marinade remains on the ribs. Cover tightly with foil. Roast the ribs until quite tender, about 1 ½ hours.

Remove ribs and set aside.

Skim excess fat from the roasting pan.

The pan drippings will be used to make a glaze with the following ingredients:

1    Cup hot water

1    Cup balsamic vinegar

½ Cup packed dark brown sugar

Add the hot water to the pan and stir, scraping up brown bits. Add vinegar and brown sugar. Place the pan on the stove and bring to a boil, stirring occasionally until the mixture is reduced and thickened, about 15 minutes.

Brush the glaze onto both sides of the ribs. Reserve some glaze for serving.

Grill the glazed ribs over direct heat, about 8 minutes, turning once. The fire should be hot enough to leave grill marks. In the alternative, the ribs can be broiled about 4 inches from heat.

Brush ribs with more glaze and serve. Any remaining glaze can be used as a dipping sauce.

This recipe will serve 4-6 people, depending on portion preference and side dishes.

The ribs can be roasted and the glaze prepared a day ahead of serving. Chill the glaze separately and bring to room temperature before glazing and grilling.

This recipe is adapted from the original recipe, which is on the Gourmet magazine web site.

THE SOMETHINGNESS OF NOTHING

February 9, 2012 § Leave a comment

Summary judgment is basically about nothing. Meaning that if there is nothing there for the factfinder to determine, then the lawsuit should be summarily disposed of. Here’s a nifty thought to throw into your next summary judgment argument …

If there was a time when nothing existed, then there must have been a time before that — when even nothing did not exist. Suddenly, when nothing came into existence, could one really say whether it belonged to the category of existence or of non-existence?  – Chuang-Tzu

It might not win the case for you, but you it’s sure to get a reaction from the judge.

NOT A MATHEMATICAL FORMULA

February 8, 2012 § Leave a comment

Some lawyers approach the Albright factors like some kind of score card. I remind you, however, that “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So.2d 251, 258 (Miss. App. 2006); Lee v. Lee, 798 So.2d 1284, 1288 (Miss. 2001).

In Divers v. Divers, 856 So.2d 370, 376 (Miss. App. 2003) the COA said:

In the difficult matter of determining child custody in divorce proceedings, the chancellor is necessarily vested with substantial discretion. Shepherd v. Shepherd, 769 So.2d 242, 245(¶ 11) (Miss.Ct.App.2000). In Hamilton v. Hamilton, this Court reviewed the record in that case and found that the chancellor should consider each Albright factor specifically in her decision for child custody. Id at (¶ 10). See also Hayes v. Rounds, 658 So.2d 863, 865 (Miss.1995). We found that it is not enough for the chancellor to simply state that she considered these factors. Hamilton, 755 So.2d at 530-31; Hayes, 658 So.2d at 865. If substantial evidence exists to support the chancellor’s finding of fact, broad discretion is afforded her determination. McEwen v. McEwen, 631 So.2d 821, 823 (Miss.1994).

In Johnson v. Gray, 859 So.2d 1006, 1013 (Miss. 2003), the supreme court said:

… a chancellor is never obliged to ignore a child’s best interest in weighing a custody change; in fact, a chancellor is bound to consider the child’s best interest above all else. ‘Above all, in ‘modification cases, as in original awards of custody,’ we never depart from our polestar consideration: the best interest and welfare of the child.’ ” Riley v. Doerner, 677 So.2d 740, 744 (Miss.1996) (quoting Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993)) (citing Marascalco, 445 So.2d at 1382). See also Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest. Sanford v. Arinder, 800 So.2d 1267, 1272 (Miss.Ct.App.2001).

Johnson also stands for the proposition that the chancellor must also take into account the credibility and demeanor of witnesses, and weight of the evidence.

In Weeks v. Weeks, 989 So.2d 408, 411 (Miss. App. 2008), the court affirmed the trial judge’s Abright findings even though the chancellor did not designate which party had “won” each factor. This is because Albright is not a scorecard. It is a template for the court to make findings pertinent to the parents’ relative parenting ability and what is in the best interest of the child. Thus, one or two factors might outweigh all the others combined. For example, the mother’s recent history of psychosis alone may outweigh the fact that she prevails in every other category. But the evidence to support an award of custody based on one or two factors must be strong, and the factors themselves must be substantially related to best interest of the children.

As to how detailed the chancellor’s findings need to be, the COA in Phillips v. Phillips, 45 So.3d 684, 695 (Miss. App. 2010), stated at ¶ 37 that ” … we are not aware of any requirement that the chancellor must acknowledge all of the facts in his analysis of the Albright factors that were presented at trial. The chancellor obviously listened to the testimony at trial — negative and positive for both parties — and made his opinion accordingly.”

MAKING AN END RUN AROUND PIERCE

February 7, 2012 § Leave a comment

In Pierce v. Pierce, 42 So.3d 658 (Miss. App. 2010), the chancellor in a divorce had ordered the husband to pay the wife’s mortgage note until her child by a previous relationship graduated from high school. The COA remanded the case on other grounds, but instructed the chancellor not to tie the payment of the mortgage to any life event of the daughter, since she was not the payor’s offspring. In essence, the order amounted to an improper award of child support.

But what about where the child is the child of the payor? And what about where the payment is not any form of child support?

In Brooks v. Brooks, decided by the COA on December 13, 2011, the payor, Brandon, argued à la Pierce that the trial court had improperly converted payment of the mortgage note into additional child support when the judge tied Brandon’s obligation for mortgage payments to his youngest child’s attainment of the age of 18. He contended that the trial court’s actions were in violation of Pierce.

The COA rejected the argument that Pierce was applicable on the basis that there was no dispute that the child in question was his.

The court went beyond that point to add some significant language:

¶11. We cannot find that the mortgage payment was a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. The chancellor ordered that when the house is sold, Brandon should receive 60% of the equity, and Dawn should receive 6 40%. The chancellor reasoned that “Brandon’s larger percentage will reflect his payment of debt, taxes[,] and hazard insurance over the next sixteen or so years . . . .” The upkeep and maintenance of the property are Dawn’s responsibility, except for repairs in excess of $1,000, which are the equal responsibility of both parties. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. This issue is without merit.

The significance of this language is that it points a direction around Pierce via equitable distribution. If you can persuade your judge to consider mortgage payment as part of the equitable distribution, you can tie the payment to any life event of anyone. This can be helpful in a step-child situation as in Pierce itself, or where there are other child-related obligations not related to children of the parties. And just how do you pitch it? Offer the court through your client’s testimony a balance sheet showing your proposed equitable distribution. The judge might buy it.

CONTRACTING AWAY CHILD SUPPORT ARREARAGES

February 6, 2012 § 1 Comment

If you’ve practiced family law to any appreciable degree, you will recognize this vignette:

Your client, Charlene, has had no success in getting Ron, her deadbeat ex, to pay any child support. The contempt actions you filed just don’t seem to accomplish much except continuance after continuance based on unfulfilled promises and begging, compounded with Charlene’s tender-hearted reluctance to see “the father of my children” jailed.

Just when you’re about at the end of your rope, a ray of hope breaks through the darkness. Charlene sweeps into your office, elated that she and Ron have worked out a deal. Charlene is willing to forget the $17,000 that Ron owes for back child support if Ron will buy Junior a used Toyota pickup (with 136,000 miles) and commence paying current support.

You hastily draft a joint petition and agreed judgment, get the parties to sign, and track down your friendly local chancellor. Sign on the dotted line, judge, you say, and make this problem go away.

What do you think the judge will do? Surely he will approve this, since the parties have agreed, and it will clear up an continuing, chronic course of contumely.

But the judge says no, citing Tanner v. Roland, 598 So.2d 783 (Miss. 1992), in which the parties struck a similar deal, which the Mississippi Supreme Court found to be invalid. Citing Calton v. Calton, 485 So.2d 309, 310-311 (Miss. 1986), the court pointed out that “The child’s right to his parent’s support can not be bargained or contracted away by his parents.” The Tanner court said at page 786, “We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they can not be modified or forgiven by the courts.”

Interestingly, Tanner also resulted in the supreme court finding that a five-year-old judgment of that same trial court eliminating an arrearage was void. You just can not do away with a vested arrearage.

Since the Tanner case, the Mississippi legislature created an exception for fathers whose parentage is disestablished. You can read about that statute here.

There is also the situation recognized in Varner v. Varner, in which the court may deem child support to have been “paid” to or for the benefit of the child when the child comes to live with the paying parent for a time by agreement of the parties. The theory is that it would create an unjust enrichment for the parent who did not have the child during that time. In such a case, the trial court still may not forgive the arrearage, but may only declare it to have been “paid” to for for the benefit of the child.

It is the Tanner-Calton line of cases that convinces me that it is improper for parents to contract away the right to future support at all in a property settlement agreement. I’m talking about language to the effect that neither party shall pay child support to the other, or that each party will support the child when the child is with him or her. Is that not bargaining or contracting away the child’s right to support as prescribed by Calton? I believe it is.

A contract to do away with child support is invalid and unenforceable. Even if you skate it past your chancellor, you will face reversal on appeal.

“QUOTE UNQUOTE”

February 3, 2012 § 3 Comments

Duccio“Lifting him up, then, he showed him, in a single glance, every realm in the world. And the devil said: ‘All their power and all their glory I will bestow on you, since they are entrusted to me and to those I bestow them on. Bow to me and it is all yours.”  —  Luke 4: 5-7 [Emphasis added]

“It is astonishing what the devil says: I have all power, it has been given to me, and I am the one to hand it on — submit, and it is yours. Jesus of course does not submit, and sends the devilcumpower to Hell. Not for a moment, however, does Jesus contradict the devil. He does not question that the devil holds all power, nor that this power has been given to him, nor that he, the devil, gives it to whom he pleases. This is a point which is easily overlooked. By his silence Jesus recognizes power that is established as “devil” and defines Himself as The Powerless. He who cannot accept this view on power cannot look at establishments through the spectacle of the Gospel.”  —  Ivan Illich

“Anyway, no drug, not even alcohol, causes the fundamental ills of society. If we’re looking for the source of our troubles, we shouldn’t test people for drugs, we should test them for stupidity, ignorance, greed, and love of power.”  —  PJ O’Rourke

CHILDREN IN THE VORTEX, PART TWO

February 2, 2012 § Leave a comment

Yesterday I posted about children caught in the middle of divorce conflict. In response, Reggie Blackledge, a lawyer in Collins, MS, sent me this poem he wrote, with permission to share it with you.

Where Am I?

You are currently viewing the archives for February, 2012 at The Better Chancery Practice Blog.