November 30, 2012 § 6 Comments

George Warner was chancellor in the 12th District from 1982 through 1994. Every lawyer who ever practiced in his court can tell you dozens of hilarious stories about things that happened during trials and some of his zany opinions. When you got zinged by one of his unexpected rulings, your colleagues would shake their heads and say you were the latest to be “Warnerized.” One example is the case where he denied the parties a divorce and found that they had come to an “exact tie” on the Albright factors, leaving the parties in status quo ante but poorer for their attorney’s fees. Another example is the divorce case where he ordered the sheriff to take possession of the parties’ 26 chickens, and to pluck, gut, clean and freeze them, and then to give each party 13. I never heard whether the sheriff did all that himself or got someone else to do it. Judge Warner also ordered a bailiff in a child-support contempt case to go to a man’s farm and shoot his registered quarter horse to free up the money that the man claimed he was spending on feed. The man relented and the judge granted a reprieve.

Here is one of his gems from a 1990 opinion:

“The problem with going to Court and not telling the truth is many-fold. You run the risk of being charged with perjury which seldom happens, quite frankly. But what is more important, you run the risk of hurting a case rather than helping a case, because there are very few judges that I have ever met who were neither male nor female. They are one or the other, and all of them at one time or another have seen, heard, or been involved in most of life’s problems. Yet, people come to court and assume that judges are stupid, believe anything, or what-have-you. We really don’t. And when we, quite obviously, do not, then we wonder what to do with the facts in a case.

“The defendant runs a one-room motel. I think everybody in town has slept at her house, except her attorney and the manager of the store that fired her for stealing. She didn’t testify that her attorney had spent the night there. I believe everybody else that wandered through this courtroom stayed at her house. Certainly all the male people did. It is a one-bedroom house. It must get crowded over there. It sounded like a dog pound. It is certainly not a place fit and proper to place a child.”

Here is one for the legal scholars from 1987:

“The Statute of Frauds has probably received almost as much attention as perpetuities. Both arose many, many years ago in the days of merry old England. The interpretations of the statute of frauds and the rule against perpetuities vary with who is doing the interpreting. It is almost as bad as Lou Costello’s baseball dialogue of Who is on first and What is on second. This Court admits that I fall into the category of “I don’t know” on third. If I were asked to make a speech tomorrow specifically on the Statute of Frauds, I would suddenly become sick and go fishing.”

And one more from 1991:

“Young man, you come up here. You stand right there. The last person that got up and charged out of my courtroom and slammed the door, I fined him $100 and put him in jail for three days. Now, if you don’t have any more respect for the court than that, I am going to give you something different to do. I find you in willful contempt of this Court. I am going to let you wash every one of the Sheriff’s cars every Saturday for the next four Saturdays. The first day you don’t show up, I will personally carry you to Youth Court and do all I can to encourage the Youth Court Judge to send you to the state reform school. You have no respect for authority whatsoever when you get up and charge out of my courtroom. Do you understand what I am saying? (Answered in the affirmative.) Saturday morning at exactly 8:00 you will report to the Sheriff’s Office. If it is pouring down rain, wear your raincoat. I want them washed in the rain.”

In a notorious case, he slumbered through testimony after lunch only to awaken with a start and exclaim, “Overruled!” The lawyers pointed out that no one had objected, to which the judge replied, “Well, you should have.” [The judge’s version is that he sustained the objection, but the two attorneys present say he overruled it; one of them says that he then asked the judge, “If we should have objected, why did you overrule it?”]

Judge Warner is also known as the judge who entered an order finding himself in contempt for not showing up for a trial, fined himself $100, and went to the clerk’s office and paid it.

The judge still wanders through the courthouse from time to time. One day he came by my office wearing a t-shirt that read “I DO WHATEVER THE VOICES INSIDE MY HEAD TELL ME TO DO.” He dropped by Monday and gave me and several others a copy of his latest book, Through the Eyes of a Judge, which features excerpts from his many opinions. The quotes above are taken from that book.


November 29, 2012 § Leave a comment

A chancellor has the power to impose conditions that may seem “just and proper under the circumstances,” regardless whether any party demanded such relief. Miss. State Highway Commission v. Spencer, 233 Miss. 155, 101 So.2d 499, 504-05 (1958).

The source of this power is apparent in several of the maxims of equity:

  • Equity will not suffer a wrong without a remedy.
  • Equity delights to do complete justice and not by halves.
  • Equity acts specifically and not by way of compensation.

The proper focus of a chancery court remedy, then, should be to fix the underlying problem, completely and not in part.

In three recent COA cases, the court upheld chancellors’ rulings where the trial judge went beyond the pleadings to fashion a remedy designed to fix the underlying problem.

In Goolsby v. Crane, decided October 23, 2012, and discussed in a previous post, the parties were before the court on the mother’s petition to modify to increase child support, and the father’s counterclaim for custody. After hearing all of the testimony, particularly that of the children, the chancellor found that the then-existing visitation schedule was not working, and he modified the visitation schedule. No one had asked for that particular relief, but the COA affirmed on the basis that there was substantial evidence to support the judge’s action.

The case of Finch v. Finch, handed down October 2, 2012, which was the subject of a previous post here, arose from post-divorce contempt and modification procedures. The ex-husband pled that the ex-wife’s alimony should be terminated because she had misled him about joint debts when he agreed to a property settlement agreement, and he now found himself saddled with considerable debt. The chancellor took it a step further and found that the ex-wife had committed a fraud on the court, justifying termination of her alimony. The ex-wife appealed, copmplaining that the ex-husband had failed properly to plead fraud (see Rogers v. Rogers, decided August 1, 2012, and posted about here). The COA affirmed, finding that there was a substantial basis to support the chancellor’s decision, and pointing out anyway that the mention of the words “falsely represented” in the ex-husband’s petition was enough notice that the issue was in play. The court also pointed out that the chancellor has the power under MRCP 60(b) on her own motion to address fraud.

In Scott v. Scott, decided October 30, 2012, the parties had entered into a 1997 property settlement agreement that gave the ex-wife all of the ex-husband’s Tier II Railroad Retirement Benefits “through the date of the divorce.” A separate order was drafted for submission to the retirment agency in the form required by that agency, but the order left out the phrase “through the date of the divorce.” Predictably, when the husband applied for his benefits, he learned to his chagrin that the agency, relying on the order, had awarded the wife 100% of the Tier II without limitation. The ex-husband asked the chancellor to modify to correct the situation, and the ex-wife denied that the property division could be modified. The chancellor brushed aside both positions and invoked MRCP 60(a) to correct the clear discrepancy between the express terms of the parties’ agreement and the order. The COA affirmed.

The common thread in each of these cases is that the trial judge did what she or he deemed “just and proper under the circumstances” to fix the underlying problem. It’s a matter of substance over form.  



November 28, 2012 § Leave a comment

Some time this afternoon all of the link categories (over there on the right side of the page) disappeared, amalgamating all of my links into one amorphous blog-glob. I tinkered all afternoon to fix it and finally emailed wordpress for help.

Fret not. The tech folks are working on a system-wide fix.


November 28, 2012 § Leave a comment

MCA 93-5-24(1)(e)(i) provides that, if the court finds both parents have abandoned or deserted a child, it may award physical and legal custody to ” … [t]he person in whose home the child has been living in a whoesome and stable environment.” And the case of Lucas v. Hendrix, 92 So.3d 699, 705-6 (Miss. App. 2012) says that once the chancellor has found that both parents have deserted the child, custody may be awarded per the statute without first addressing the Albright factors.

Those little gems are in ¶ 17 of the decision in Hamilton v. Houston, decided by the COA November 6, 2012.

In that case, the chancellor found that both of the natural parents had deserted the child. Once he made that finding, the chancellor did go through an Albright analysis, the result of which was to award custody of a minor child to the paternal grandparents over objection of the mother. The COA upheld the chancellor’s decision, and several points raised in Judge Maxwell’s opinion are ones you should file away for future use:

  • Desertion involves forsaking a person to whom one is legally obligated, or forsaking or avoiding one’s duty to that person. In re Leverock & Hamby, 23 So.3d 424, 429-30 (Miss. 2009).
  • Abandonment is relinquishment of a right or claim (¶ 17).
  • A finding of either abandonment or desertion by clear and convincing evidence is enough to rebut the natural parent presumption. In re Smith, 97 So.3d 424, 429-30 (Miss. 2012).
  • In this case, although both parents paid some support for the child, they both admitted that the money they paid was not sufficient to support him.
  • An unusual feature of this case was that the grandparents, who were awarded custody, did not file their own pleadings, but merely joined in their son’s (father of the minor child) petition for custody. The COA held that prayer in the son’s petition that he be awarded custody was adequate to empower the judge to adjudicate the issue in any way that was in the best interest of the child.

The fact pattern in this case should be unhappily familiar to any lawyer who has done much family law in the past several years. It seems that grandparents are more frequently becoming surrogate parents, and chancellors are more often called upon in these cases to be arbiters of the child’s best interest.

It appears to me that these cases are trending toward giving more weight to the quality of the parental relationship and less to the quantity. As in this decision, a parent who, for instance, provides some financial support but forsakes the parental duties of emotional support, presence, attention, and other parenting responsibilities, is at risk for a finding of desertion.


November 27, 2012 § Leave a comment

In the COA case of Jones v. Jones, decided November 13, 2012, Carrie Jones filed for divorce against her husband, Donald, who in turn filed a counterclaim for divorce against her. The parties agreed to present the case in a bifurcated fashion, first presenting proof of grounds for divorce and letting the court adjudicate the divorce before proceeding to other issues.

Carrie presented her evidence, at the conclusion of which Donald moved for dismissal under MRCP 41(b). The chancellor ruled that Carrie had not met her burden of proof, and dismissed her complaint. Donald then dismissed his counterclaim. When Carrie asked to go forward on the remaining isssues of child custody and support, the chancellor refused on the basis that her complaint was dismissed, and there was nothing further to adjudicate.

Carrie appealed, raising several issues (she did not contest the denial of the divorce).

First, she claimed that the chancellor had a constitutional duty to protect the child, and that the court should have adjudicated custody even though the divorce complaint was dismissed. Judge Fair, writing for the majority, agreed that the chancery court has a duty to protect children, but disagreed that the duty extended to adjudicating custody in a situation such as this. He wrote:

This [constitutional] responsibility does not impose upon chancellors an affirmative duty to adjudicate custody for every dismissed divorce complaint.

¶6. The Mississippi Supreme Court has held that a chancellor may provide for the custody of children after dismissing a complaint for divorce. See Waller v. Waller, 754 So. 2d 1181, 1183 (¶12) (Miss. 2000). “The court, however, is not required to make a decision regarding custody where it dismisses the petition for divorce.” Id. (citations omitted).

¶7. In domestic-relations matters, chancellors enjoy considerable discretion and are trusted to evaluate the specific facts of each case. See Harrell v. Harrell, 231 So. 2d 793, 797 (Miss. 1970). Here, the limited record contains no indication that either parent would be unfit or unsuitable for custody. We cannot say the chancellor abused his discretion by declining to adjudicate custody.

Second, she argued that the court should have dismissed only the divorce complaint and left standing her claim for custody. This, too, the court rejected:

¶10. Carrie characterizes her claims for custody and child support as independent actions cognizable under section 93-11-65 of the Mississippi Code Annotated (Supp. 2012). But our case law contradicts this interpretation. In Slaughter v. Slaughter, 869 So. 2d 386, 397 (¶33) (Miss. 2004), the Mississippi Supreme Court held that a custody matter may not proceed under section 93-11-65 when a divorce is pending. Therefore, Carrie’s claims for custody and child support cannot properly be understood as independent issues. Mississippi Code Annotated section “93-5-23 provides for the child’s care and custody in a divorce situation and 93-11-65 . . . is an alternative[.]” Slaughter, 869 So. 2d at 396 (¶33).

[The opinion goes on to distinguish the holding in the modification case, Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶8-10) (Miss. 2007)].

How do you avoid a result like Jones? It seems to me you could plead in counts, Count I being the claim for divorce, equitable distribution, a 93-5-24 claim for custody, etc., and Count II being the 93-11-65 child custody and support claim. By pleading in counts you are in my opinion filing what amounts to severable law suits. Under Slaughter, then, you would be barred from proceeding on Count II as long as Count I is pending. But if Count I is dismissed, you still have Count II to fall back on, and it would be viable at that point because the 93-5-24 claim is dismissed.

There is a caveat, however. The venue requirements for divorce and 93-11-65 are not identical. You may have venue for the divorce, but not for 93-11-65.

I’m not saying categorically that this is the answer to the problem because I have not researched the question beyond Jones and Slaughter. The tactic I am suggesting, however, was not employed in either of those cases, as far as I can tell from reading the opinions. Thus, my solution gives you an arguable basis to go forward on custody if you are stymied on grounds for divorce.


November 26, 2012 § 1 Comment

This from the MSSC decisions of November 15, 2012:

Mona Cates v. Elizabeth Swain; Tate Chancery Court; LC Case #: 06-6-243(PL); Ruling Date: 10/29/2010; Ruling Judge: Percy Lynchard, Jr.; Disposition: Petition for writ of certiorari filed by Elizabeth Swain is granted. To Grant: Waller, C.J., Carlson and Dickinson, P.JJ., Kitchens, Chandler, Pierce and King, JJ. To Deny: Randolph, J. Not Participating: Lamar, J. Order entered.

You may recall that this is the April, 2012, COA case in which Judge Maxwell’s opinion held in essence that equitable relief is not available to enforce implied contractual rights between unmarried cohabitants. The holding which was based on the MSSC decision in Estate of Alexander, 445 So. 2d 836, 840 (Miss. 1984), that any such relief must be created by act of the legislature. The decision also touched on rights of unmarried couples in relationships nearly tantamount to marriage. You can read my post about Cates v. Swain here.

So what does the grant of cert in this case portend?

It seems unlikely that the court would have granted cert merely to reiterate what Judge Maxwell said in his excellent exposition on Alexander. And it seems just as unlikely that the MSSC would go so far as to reverse Alexander.

But when one looks at Cates v. Swain, it seems that there are some inequities that could be addressed without sweeping aside Alexander. After all, the court did say in that case that, “While the judicial branch is not without power to fashion remedies in this area, we are unwilling to extend equitable principles to the extent plaintiff would have us to do, since recovery based on principles of contracts implied in law essentially would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature.” That seems to me to leave some wiggle room on at least two points: One, that the judicial branch has the power to fashion remedies in this area, and might do so in this case; and two, that equitable remedies may be narrowly crafted to address the inequities without creating the problems contemplated in Alexander.

It will interesting to see how this develops. Stay tuned.

November 23, 2012 § Leave a comment

Thanksgiving Holiday.

Court House closed.

November 22, 2012 § Leave a comment

Thanksgiving Holiday.

Court House closed.


November 21, 2012 § 2 Comments

Thanks to Lydia Quarles for providing the thoughtful series over the past week focusing on successful mediation in domestic cases.

My hope is that you will take Lydia’s insights and use them as a springboard to explore ways to maximize success with mediation in domestic litigation.

There is no issue that can not be resolved by agreement if there are imaginative lawyers advising clients who come to the process with good will and flexibility. We older lawyers are familiar with the maxim that “child custody is the one issue that can not be settled,” but with joint custody and increasingly liberal visitation, coupled with ever-greater mobility, even that issue can be mediated successfully. There is no reason why equitable distribution, alimony, child support, visitation, and even attorney’s fees can not be dealt with the same way.

Next month we’ll take another look at mediation with practical tips from attorney Donald C. Dornan of Biloxi.


November 20, 2012 § Leave a comment

This is Part V in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.


When I am mediating a domestic issue, I always begin the first caucus with this question to the party: “If you could be your own judge — and I know that you would be reasonable and fair, knowing that you cannot have it all – how would you determine the issues that face you and the other party, and why would you do it that way?”

Prepare your client to be able to identify the issues that must be resolved for mediation to be effective, and how he/she would resolve them and why. The ability to communicate this to the mediator can go a long way in preparing your client to understand that there is give and take in mediation that there will not be in a trial. It also prepares your client to be reasonable and sensitive in approaching emotional issues.

Remind him/her that things can be resolved in mediation that cannot even be broached in a courtroom and if some of those things are of significance to him/her, this is the opportunity to discuss them and sort them out.


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