July 17, 2012 § 2 Comments

In September, 2010, a special chancellor granted Sharon and Allen Flowers an irreconcilable differences divorce and adjudicated custody, awarding it to Allen with Sharon having visitation. Sharon was displeased with the result and appealed

The COA case of Flowers v. Flowers, decided June 19, 2012, includes several points that I found interesting:

  • Sharon claimed that the chancellor improperly used denial of custody to sanction her for a post-separation relationship. Is it just me, or is this claim automatically raised any and every time that the court finds against a party on the “moral fitness” Albright factor?  Chancellors are required to make a finding on every Albright factor for which there is evidence in the record. Here there was evidence that Sharon had initially lied to the GAL about the relationship, and then admitted it. Had the chancellor not taken that into consideration, it would have been error. There is nothing in Judge Ishee’s opinion that would lead one to conclude that the chancellor based his decision solely or even mostly on this factor. Adultery may be the factor among others that tips the scales, but it may never be the factor standing alone that determines custody.
  • The chancellor found that “Both children are male children and therefore this factor favors the father.” The COA found no error on this point, and cited Reed v. Fair, 56 So.3d 577, 582 (Miss. App. 2010). This is a curious conclusion, in my humble opinion. What exactly is the basis for such a finding? What is the socio-scientific basis, if any, upon which to base such a conclusion? Had the chancellor found that the male gender of the children favored the mother, would that have been error? Now, there may have been evidence in the record of differences in disciplinary problems or behavior under the suprevision of males as opposed to females, or something of that sort, but that is not reflected in the appellate opinion. In Reed v. Fair, the court upheld the chancellor’s finding that the twelve-year-old child needed the influence of a man in his life since there were no other male family members available and there had been a need for counselling. Fair enough (no pun intended). But to make the naked assertion that a child of one gender should be in the custody of the parent of the same gender seems simple-minded to me (no offense to the learned chancellor in the Flowers case). There are studies that establish that younger males are actually better off under the influence of the mother. And there is MCA 93-5-24(7), which says that “There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.” Isn’t the same-gender line of thinking based precisely on such a presumption?
  • The COA opinion says that “[Sharon] further argues that the [sex-and-health] factors should have been grouped together as one factor, instead of treating them as two separate factors.” She goes on to argue that the result would have been that she would have prevailed in an additional category, adding one more tally to her column, and perhaps giving her the higher score that would have given her the victory. The flaw in her argument, though is that she could prevail in several more categories than Allen and still lose custody. Albright is not a mathematical formula or a scorecard. It is a matrix for the trial judge to use in making sure that all factors that bear on the best interest of the child in a custody case are considered, and in turn used by the appellate courts to evaluate whether the chancellor did her job properly.

If all of the Albright factors that apply in a given case are considered and addressed by the chancellor, and there is substantial evidence to support the chancellor’s decision, then the chancellor’s decision should be affirmed. Any quibbling about this one factor or that, or trying to readjust the “scoresheet,” should be brushed aside on appeal.

Only last month, in the case of Easley v. Easley, the COA again addressed an appellant’s argument that he should have been awarded sole custody rather than joint custody because he had a slight edge in the Albright scorecard:

[The father’s] argument appears to be based on the mistaken assumption that joint custody cannot be awarded if more of the Albright factors favor him, however slightly. We see no reason why some marginal advantage of one parent should preclude the chancellor from awarding joint custody, so long as both parents are fit and joint custody is found to be in the children’s best interest[]. See Phillips v. Phillips, 45 So. 3d 684, 694 (¶30) (Miss. Ct. App. 2010). “The Albright factors are a guide. They are not the equivalent of a mathematical formula.” Lawrence v. Lawrence, 956 So. 2d 251, 258 (¶23) (Miss. Ct. App. 2006) (citation and quotation omitted).

The case of Jackson v. Jackson, 82 So.3d 644, 646 (Miss.App. 2011), is also on point.

In one case I tried, I found for the mother in most of the Albright categories. When it came to the mental health of the parties, though, I found that her history of and active mental illness, and her refusal to deal therapeutically with it, overshadowed all of the other factors combined, and I awarded custody to the father. Had I treated the Albright factors as a winner-take-all scoreboard, I would have awarded the two little girls (gender favored the mom?) to an actively delusional, psychotic woman who left a psychiatric hospital against medical advice and who would not take her medication. That case was not appealed, but I am confident that it would have been affirmed.

Perhaps some of the confusion stems from appellate court decisions that direct chancellors to make a finding as to which party prevailed on each factor, giving the impression that the prevailing party “wins on points.” That’s not the law.

I suggest that, when you try a custody case, you should focus your time, attention and effort on developing quality evidence rather than a quantity of evidence designed to put points on the board. The former strategy will work for the best interest of the children. The latter may wind up winning the scoreboard and losing the game.


July 16, 2012 § 2 Comments

If you missed Dateline NBC’s piece last night on Greenwood in 1965 studying white citizens’ racial attitudes, here is a link that will take you not only to the original 1965 report, but also to last night’s that focused on Booker Wright, a black waiter at the then-segregated Lusco’s restaurant, who spoke from his heart about the humiliation of segregation, a statement that cost him his job and other indignities.

For those of us who lived through it, the 1965 report is a disturbing reminder of the way things were, and how desperately unequal were our two ways of life — black and white.

For those of you too young to have experienced it, I urge you to see this to help understand where we were, and to help you evaluate where we are.

Ray DeFelitta, the son of the photojournalist who filmed the 1965 study, has a post on his blog about the Dateline segment. Ray is working on a documentary showcasing his father Frank’s work on Mr. Wright, along with Mr. Wright’s granddaughter, Yvette Johnson.

I recommend you take some time to view these.



July 13, 2012 § 2 Comments

Where? Hint … it’s on a major Mississippi highway.


July 12, 2012 § Leave a comment

The US 11th Circuit decision in Butler v. Sheriff of Palm Beach County and Collins, decided July 6, 2012, opens with these memorable lines:

In one of his ballads, Jim Croce warned that there are four things that you just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/You don’t pull the mask off that old Lone Ranger/ And you don’t mess around with Jim.” He could have added a fifth warning to that list: “And you don’t let a pistol-packing mother catch you naked in her daughter’s closet.”

You can read the entire opinion, penned by Judge Carnes, which addresses whether or not Mr. Butler had a federal cause of action (answer = not).

In fiction writing, an opening like that is called a “hook.” It’s a paragraph or two that tease the reader with a tantalizing glimpse of what is to come, creating immediate interest, grabbing attention, and compelling the reader to read on. I think it goes without saying that most (nearly all) appellate decisions lack anything close to a hook.

I encourage our appellate judges to read the Butler opinion, at least the opening lines and the ensuing fact statement. Perhaps a couple of our more creative and intrepid appellate judges will take inspiration from Judge Carnes and add a creative twist to their work. It couldn’t hurt.

[Thanks to “Suzy Q” for the reference to the Butler opinion]


July 11, 2012 § Leave a comment

MCA 93-17-205 states in part:

“Counsel for the adoptive parents in the adoption finalization proceeding shall provide [the Bureau of Vital Statistics of the State Board of Health] with the information required in Subsections (1) and (3) of this section, and he shall also make such information a part of the adoption records of the court in which the final decree of adoption is rendered. This information shall be provided on forms prepared by the bureau.”

You can read subsections (1) and (3) for yourself to see what information is required.

The Lauderdale County Chancery Clerk’s office informally estimated for me that less than 10% of lawyers comply with the requirement of filing the information in the court file. I wonder how many file the required forms with the Bureau.

I have been presented with several petitions for disclosure of health information from adoption files, and in none of those files was there any health information other than the required physician’s affidavit.

The purpose of the law, obviously, is to preserve health and geneticc information that may be vital to an adoptee later in life. If you will read the disclosure statutes, you will find that the adoptee may petition the court to disclose certain information where necessary for health, and if that information is not in the file, then the adoptee’s only recourse is to look to the State Board of Health and hope that the attorney did his or her duty vis a vis that agency.


July 10, 2012 § 3 Comments

We all know the familiar Ferguson approach to equitable distribution: First classify the assets as marital or non-marital; then value them; then divide them equitably (not necessarily equally).

An often-ignored aspect of Ferguson analysis is the demarcation date that the court should use in classifying property as marital or non-marital. It’s important, because the date selected may decide the category where the item is placed. And I say it is often ignored because you seldom hear either side say anything about it in the presentation of the trial.

In Goodwin v. Goodwin, 758 So.2d 384, 386 (Miss. 1999), the MSSC laid down the rule that entry of a separate maintenance order stops accumulation of marital interests in property, and creates a “point of demarcation” to be used by the courts in determining marital vs. separate interests when division ultimately comes before the court. In Goodwin, that portion of the husband’s retirement account accumulated after entry of the separate maintenance order was his separate property, not subject to equitable division.

The line of demarcation rule was extended to temporary orders in the case of Pittman v. Pittman, 791 So.2d 857, 863-64 (Miss.App. 2001). In that case, the court noted that temporary orders, like separate maintenance orders, are simply recognition that the parties have ceased living together as husband and wife; in other words, they have reached the point of no return (at least until reconciliation in good faith in the case of separate maintenance). So interests that accrue after its entry are separate interests.

Both Goodwin and Pittman set out a bright line for the trial courts. But that bright line is there in cases where there has been a separate maintenance or temporary order in the case. What about cases where there is neither?

Professor Bell identifies five other points of demarcation that have been employed in other jurisdictions: (1) the date of separation; (2) the date of filing for divorce; (3) the date of a divorce hearing; (4) the date of the divorce judgment; and (5) a date fixed by the court in its discretion. Bell on Mississippy Family Law, 2nd Ed., § 6.02[3][b], p. 135.

In Doyle v. Doyle, 55 So.3d 1097, 1107 (Miss.App. 2010), the COA held that marital equities continue to accumulate where there was no separate maintenance or temporary order. In Aron v. Aron, 832 So.2d 1257, 1258-59 (Miss.App. 2002), however, the COA held that it was in the chancellor’s discretion to classify the property as marital or non-marital where there was no separate maintenance or temporary order. In either case, the chancellor should consider the parties’ relative contributions in making the division of the post-separation-acquired property. Striebeck v. Striebeck, 5 So.3d 450, 452 (Miss. 2008).

The most recent case on point is Cuccia v. Cuccia, decided by the MSSC on June 28, 2012. The case was before the court on certiorari from the COA, which had reversed the chancellor. The Supreme Court’s opinion stated:

“¶9. In the case before us, a separate maintenance order was not entered, but a temporary support order was issued on May 6, 2008, and filed on May 9, 2008. In reviewing the chancery court’s [divorce judgment], we do not find that he set out the specific date as the line of demarcation in classifying marital verus nonmarital property. He must do so. After determining the line of demarcation, the chancery court must then determine which assets and liabilities are marital and nonmarital in accordance with Ferguson and Hemsley. Then, he must divide the marital estate equitably.” [Footnotes omitted]

So the direction is clear: if the chancellor does not make the demarcation line clear, there is reversible error in the record. You can influence the judge to pick that date, or you can do it via MRCP 59 motion; either way, if you let the record be finalized without a demarcation line, be sure to keep your trial notes, because you’ll need them for the remand trial.

The court gave no direction for how the chancellor should draw the magic line. If the case makes its way back for a third appellate decision we may find out. If not, then we will have to await a more definitive decision.

Until then, give some th0ught to how you want the marital estate divided and why. Give the judge some proof in the record to support a line of demarcation that is in your client’s favor. It might just put some money in your client’s pocket.


July 9, 2012 § 2 Comments

Philip Thomas has an interesting post about a poll conducted by PR Newswire for Common Good, a nonpartisan group interested in government reform. The poll results are here.

You can read the poll result summary for yourself, but it should come as no surprise that it found that most people distrust the civil litigation system, find it cumbersome, and think it takes too long to resolve disputes. They also feel that too many frivolous lawsuits are filed. They fear the financial burden of litigation. Their perception is negative.

As members of the legal profession, we need to recognize that for most citizens perception is reality when it comes to the courts and the law. In part that’s because the knowledge that most people have of the legal system is shaped by tv and movies that distort reality for entertainment value, and by media with an agenda, and by gossip, because they have no first-hand experience of their own. For those laypeople who have had first-hand experience, I would guess that most of them have come away with an unpleasant taste. We can quibble with their conclusions, but that does not make the negative general perception go away.

Former Colorado Supreme Court Justice Rebecca Love Kourlis proposes five measures in an article in Atlantic online that would go a long way to fixing the civil justice system. She would give judges more tools to manage and triage cases, remove the majority of divorce cases from the adversary system, limit and streamline discovery, adequately fund courts and train judges, and speed up proceedings.

I have long advocated for swifter resolution of chancery matters, and I try to push cases along, both contested domestic cases and probate matters. I already place an expiration date on temporary judgments, enter a scheduling order in every contested case, and require a pre-trial conference and order. I think chancery judges have tools available to move cases along, but I would be open to more measures, such as mandatory disclosures in divorce cases and more flexibility to dismiss unmeritorious cases and probate matters that have been left for dead. If we can improve the efficiency of the system, it should improve the public perception.

Lawyers and judges have an important role in educating the public about the legal system and how it operates, especially since the subject of Civics in our schools has been de-emphasized by being lumped under the heading of Social Studies, along with geography, health and personal hygiene, etiquette, and how to balance a checkbook. Randall T. Shepherd, former Chief Justice of the Indiana Supreme Court, penned an article you should read about the necessity for civic education, the role of legal professionals, and how some are going about it in other states. 

In his article, Judge Shepherd says that “Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government.” That may be true over the past 40 or so years, but I remember a time when lawyers were looked to by the community as a source of knowledge and wisdom about the law. It’s a role that has been eroded over time by media’s talking heads, politician-critics, and our own passivity.

People do not understand how the courts work, why they rule the way they do, what the law requires in given situations, and what is behind a particular outcome, and they assume the worst or rely on commentators who make their living by dramatizing and exagerrating things.

As a legal professional, you are in a position to uphold the integrity of the syetem. You should speak up when you hear people repeating misstatements about our legal system. You can do a lot of good for your profession and for the court system where you work by setting the record straight. It’s a function of your professionalism, as well as your citizenship.

July 4, 2012 § Leave a comment

July 4. Courthouse closed.

No posts today, tomorrow or Friday, so that I can devote some attention to my precious grandchildren.

Have a great holiday.




July 3, 2012 § 1 Comment

Tomorrow is the 236th birthday of freedom on this continent. We salute July 4, 1776, as the birthday of our nation, although the actual birth of the United States came some several years later. Nonetheless, the Declaration of Independence in 1776 was our forefathers’ definitive refusal to accept further subjugation by any foreign power.

Lawyers have always been in the vanguard of fighters for liberty in this country. Lawyers figured prominently among the leaders of the revolution and the drafting of the Declaration of Independence, the establishment of a new nation, the federalist debates, and the negotiations toward and drafting of the Constitution.

Through the decades members of the legal profession have continued to serve in leadership roles. More than half of our presidents were lawyers: Adams (both John and John Quincy), Jefferson, Madison, Monroe, Jackson, Van Buren, Tyler, Polk, Fillmore, Pierce, Buchanan, Hayes, Arthur, Cleveland, Harrison, McKinley, Taft, Wilson, Coolidge, F. Roosevelt, Nixon, Ford, Clinton, and Obama. Some of them are among the pantheon of the greatest Americans who ever lived. Some were mediocre. Some were shameful scoundrels and failures.

Of this number, I believe that Mr. Lincoln of Illinois was the star.

Lincoln was a prairie lawyer who rode circuit around Illinois, following the courts, just like many lawyers do in this part of Mississippi. Just like I did when I practiced. I can imagine him walking into a country courtroom and crossing inside the bar, meeting and visiting with his colleagues from across the state, swapping tales and greetings, and then tending to his motions or trying his cases. Just like lawyers do here.

He served a term as a Congressman, and then he was elected President of the United States. At his election, the southern states jumped off the precipice into the civil war, and Lincoln devoted his entire presidency to keeping them from leaving the union. How he did it, and the single-minded focus with which he went about his task against formidable obstacles, is an engrossing story. Back in the 1980’s and 90’s, for ten years in a row, I made it a point to read a book a year about him. I found from my reading that he is remarkable in so many ways. I encourage you to get to know him better.  

Lincoln, to me, epitomizes the kind of person who appears in every respect to be unsuited for the almost super-human job he is called upon to do, but grows into it and overcomes enormous odds to succeed. That’s an American story if there ever were one.

Most of all, though, I revere Mr. Lincoln as a colleague in the law who stepped forward into a leadership role and literally sacrificed his life for what he believed was best for this nation, and has proven to be right in the 147 years since his death. To me, he is a model of what every lawyer should be: a person who is willing to employ his talents, legal training and experience and good sense not only for his or her own advancement, but also for the common good.

There were other presidents who may have had superior intellects, or who were better educated or suaver, or who could have out-connived the rough-hewn prairie president, but there are none in my opinion who could have equalled Lincoln’s single-minded pursuit of his goal, against not only his enemies, but also against those who called themselves his friends but worked against him. I only wish he could have lived for its aftermath. I believe we would have been spared the disastrous reconstruction that contributed to nearly 100 years of racial strife.

Politicians have bashed lawyers for their own political gain for the past 40 years, so much so that lawyers are less prominent in leadership roles and politics. That’s a shame, because lawyers have a lot of learning, experience and understanding of people to offer for leadership.  

It’s time for lawyers to pick themselves up, brush themselves off, and step back up to the fore. Critics be damned. Ours is a noble profession, and we have nothing to be ashamed of for what we do. When the politicians use our profession as a whipping-boy, we need to fire back, using facts and reason.

Lawyers have played a leadership role in our nation from its conception. Lawyers crafted the immortal words of our Constitution. Lawyers pushed for the Bill of Rights. It has been lawyers through the decades who have fought for and defended the Constitution and our system of laws. The republic needs us as guardians of what is right.

In this, the 236th year of our republic, I hope we members of the legal profession, lawyers and judiciary alike, keep in mind the need for leadership and vigilence to preserve, protect and defend our Constitution, like our colleague, Mr. Lincoln.


July 2, 2012 § 2 Comments

Per the Lauderdale County Chancery Clerk’s office:

ADOPTION $139.00
ANSWER $10.00
CASE TRANSFER (as applicable) $149.00
ESTATE $149.00
MINORS SETTLEMENT (w/o Guardian) $94.00
MINORS SETTLEMENT (with Guardian) $149.00
TRO $149.00

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