Rule 81 Confounded

July 17, 2013 § 10 Comments

This is my 40th year in the law. The past 6 1/2 years have been on the bench, dealing exclusively with chancery matters. Before that, 33 years in practice, primarily in chancery. In my 39 1/2 years of experience, 31 have been under the MRCP.

Until yesterday, with one exception, have I ever seen MRCP 81 applied as it was yesterday in Curry v. Frazier, decided by the COA.

The one exception is Pearson v. Browning, decided last Fall.

If these two cases are good law, and they are not anomalous, you will have to drastically change the way you do process in counterclaims in chancery court. In my opinion, together both cases say that once the plaintiff has submitted himself to the jurisdiction of the court by filing a pleading, you must still get jurisdiction by R81 process over him in order to pursue your counterclaim. Yes, that’s jurisdiction times two.

Other chancellors I have talked to are scratching their heads. This is a new way to go at jurisdiction in chancery. Or is it? Has it been your experience that R81 works this way?

I wonder whether the COA has an agenda here.


Recovering Lost Custody

July 16, 2013 § 4 Comments

We talked last week about the natural parent presumption for custody, and how it may be lost.

Once a parent has lost custody on a finding of unfitness, and he or she later reforms the unfit conduct, what is the standard of proof required to recover custody?

In the case of Barnett v. Oathout, 833 So.2d 563 (Miss. 2004), DHS had removed the minor children from the parents’ home and placed the children in a foster home for more than two years. After the Youth Court had awarded the foster parents durable legal custody and they denied the natural father visitation, he petitioned for modification of visitation. The MSSC stated the rule to be followed by the modification court, as follows:

“The chancellor had to make two determinations: first, whether [petitioner] showed that there was a substantial change of circumstances which adversely affected the children, where it would be in the best interest of the children that custody be changed; and second, whether [the petitioner] showed that he had eliminated the behavior that caused the children to be taken in the first place.” Id., at 568 (¶ 10).

The court went on to find that the rule in Grant v. Martin, 757 So.2d 264 (Miss. 2000), that a parent who agrees to third-party custody forfeits the natural-parent presumption does not apply in cases in which a child is placed with DHS.

That would appear to mean that, although the natural parent in a DHS case does not lose the natural-parent presumption, the standard of proof to modify will be material change-best interest-reformed conduct.

But in 2010, the MSSC extended the Barnett rule to non-DHS cases in the case of Adams v. Johnson, 33 So.3d 551 (Miss. App. 2010), where the court held that when a third party has gotten cusstody of a child due to the unfitness of the parent(s), modification will require proof that there has been a “material change in circumstances in the [grandparents’] home that adversely affected the children.” Id., at 555-56 (¶ 10). No mention of reformed conduct.

As the dust settles, it looks like whether the natural parent voluntarily gives up the child, or has the child taken away, a later attempt to modify custody will require the standard material change-adverse effect-best interest standard, without regard to any natural parent presumption.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]


A Shortcut for Attorney’s Fees?

July 15, 2013 § 3 Comments

We’ve talked here before about what it takes to make a record on attorney’s fees that will withstand scrutiny on appeal. Here’s a link to one such post among many. As I’ve said, it should be  a subject of vital interest to attorneys who spend any time in court.

Did you know that there is actually a shortcut to proving attorney’s fees?

Here it is … MCA 9-1-41:

In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

That would seem to be pretty clear, then. No proof as to reasonableness is required, and the court makes its award “based on the information already before it and the court’s own opinion based on experience and observation …, ” with the proviso that you can put in other evidence to support the award.

Does this mean that the McKee factors need not be considered? Not necessarily. In the case of Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 54 (Miss. 1998), in a case dealing with attorney’s fees on an open account, which has its own particular body of law, the MSSC said, “This does not mean these factors are not relevant, just that proof of them is not required before a court awards attorney fees. This Court does not leave the reasonableness of an award for attorneys’ fees to the arbitrary discretion of the trial court.”

I think you can take from the Par Industries case that the appellate courts require the trial judge to flesh out how she arrived at a determination of reasonableness, and how the court calculated what the fee will be. In other words, a blanket award like “Plaintiff is awarded $5,000, which the court deems reasonable,” will not do the job. But an award that spells out what the court considered in making its decision will (or should).

Dispatches from the Farthest Outposts of Civilization

July 12, 2013 § 1 Comment


Thanks to Anderson

Just How Unfit Does a Parent Have to Be to Lose the Natural Parent Presumption?

July 11, 2013 § Leave a comment

We’ve talked here before about the natural parent presumption, and how it can be rebutted, or lost, by the natural parent’s own unsuitable conduct. The presumption is rebutted by a “clear showing” of (a) abandonment, or (b) immoral conduct by the parent that is detrimental to the child, or (c) mental or other unfitness.

Here is a collection of cases where the appellate courts have found that parental conduct rebutted the presumption:

  • White v. Thompson, 569 So.2d 1181 (Miss. 1990). Children not adequately supervised, not adequately clothed or fed, with a resulting deleterious effect on their health, mother living in intimate relationship with another woman.
  • E.J.M. v. A.J.M., 846 So.2d 289 (Miss. App. 2003). Mother had a significant history of mental illness, and in a recent bout of depression could not recall where the child was, and the child had been abused while in her care.
  • In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003). Drug and alcohol abuse. The 6-year-old child believed his father had killed his mother and brother with a baseball bat, based on a horror movie that the father had rented and watched with the child. Father: charged with drunken driving with child in the car; exposed child to sexual situations involving married women; threatened and abused child’s mother; and never reported his live-in girlfriend and her 5-month-old child missing after they were killed.
  • Loomis v. Bugg, 872 So.2d 694 (Miss. App. 2004). Use of illegal narcotics for an extended period of time. Mother left the child with relatives for more than half the time after death of the natural father.
  • Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992). Mother lived with several different men without benefit of marriage while she had the child, was arrested numerous times on drug-related charges, used illegal drugs and had paraphernalia in her apartment that was used to produce crack cocaine.

So what happens when the judge finds that the parent is presently unfit? Does that trigger an Albright analysis to gauge the comparative merits of the petitioning non-parents vs the parents? Not necessarily. In Lucas v. Hendrix, 92 So.3d 699 (Miss. App. 2012), the COA concluded that, upon a finding of parental unfitness, no further inquiry is necessary, the implication being that a parent who is presently unfit can not be awarded custody.

[This information is based on a presentation by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Beware this Custody Minefield

July 10, 2013 § 1 Comment

It’s not uncommon nowadays for grandparents to step into the parental role when the natural parents are too immature, or too drug-influenced, or in jail, or otherwise not able to care for their children.

The parties find their way into your office, and they need help. They want you to draw up some papers “to make it legal,” and to enable the grands to get the children into school and access to medical care.

Of course, your first ethical challenge is to determine who will be your client. Grandparents or natural parents? It makes a significant difference, because there are some serious issues facing the natural parents in this situation, and they need to go into the situation with their eyes wide open.


  • In Grant v. Martin, 757 So.2d 264 (Miss. 2004), the natural parents voluntarily gave the father’s parents guardianship over their children. The natural parents later divorced, and the mother remarried and stabilized her situation. When the grandparents refused to return the children to her, she filed a petition to modify custody. The chancellor denied it, finding that there had been no material change adversely affecting the children. On appeal, the MSSC stated ” … we adopt a new standard and hold that a natural parent who voluntarily relinquishes custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption …” and that the “… natural parent may reclaim custody of the child only upon showing by clear and convincing evidence that the change in custody is in the best interest of the child” and that the new standard gives chancellors “… the authority to make a ‘best interest’ decision in voluntary relinquishment cases without being fettered by the presumption in favor of natural parents which applies in other custody cases.” Id., at 266.
  • In Callahan v. Davis, 869 So.2d 434 (Miss. App. 2004), the natural parents agreed in the course of a divorce proceeding that the paternal grandparents would have sole physical custody of the child, with what they considered was protective language in the agreement to the effect that either parent could later petition the court based on material change in circumstances, ” … to apply for custody of the child, jointly or solely, upon a showing that it would be in the best interest of the child to be with that party.” The mother later petitioned to change custody, which the chancellor denied based on a finding that the proof was not clear and convincing, as was required in Grant. The COA affirmed.
  • In Vaughn v. Davis, 36 So.3d 1261 (Miss. 2010), the court refused to extend the Grant rule to a temporary order. But beware the principle that a temporary order can morph into a permanent one with the passage of time. Quadrini v. Quadrini, 964 So.2d 576 (¶17) (Miss. App. 2007). In Hill v. Mitchell, 818 So.2d 1221 (Miss. App. 2002), the grandparents acquired a “temporary emergency order” for custody of a child “pending a final hearing.” No final hearing was ever held, and after eleven years the mother filed a petition to modify custody. The chancellor denied modification and held that the mother had abandoned the child. The COA affirmed and said that the passage of time amounted to the mother’s acceptance of the custody arrangement.
  • In D.M. v. D.R. 62 So.3d 920 (Miss. 2011), the court held that a mother’s signature on a consent to adoption was tantamount to abandonment, and rejected the mother’s argument that she should regain the natural parent presumption when both of the adoptive parents (grandparents of the child) died less than 10 months after the adoption was finalized. The court applied the Grant rationale in the case.

Note that the common thread in all of the above cases is that the parent or parents voluntarily relinquished custody. The Grant rule does not apply in cases in which the child is placed with DHS. Barnett v. Oathout, 883 So.2d 563 (Miss. 2004).

Before you counsel a natural parent to forfeit the advantage of the natural parent presumption, you would be wise to get an acknowledgment that the parent knows and understands exactly what is being lost.

[This post is based on material prepared by attorney David Bridges and presented to the Conference of Chancery Judges in April, 2013]

Primer on The Natural Parent Presumption

July 9, 2013 § Leave a comment

This is the first of several posts in which we are going to examine how the natural parent presumption may be lost, and how the appellate courts have construed and applied the principles of loss of the presumption.

It is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party. K.D.F. v. J.L.H., 933 So.2d 971, 980 (Miss. 2006).

This presumption is found in Mississippi Code Section 93-13-1 (Rev. 2004):

“The father and the mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education … If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent.”

The presumption is rebuttable, upon a clear showing that:

  1. The parent has abandoned the child;
  2. The conduct of the parent is so immoral as to be detrimental to the child; or
  3. The parent is unfit mentally or otherwise to have custody.

Absent clear proof of one of the above circumstances, the natural parent is entitled to custody of his or her child. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986); McKee v. Flynt, 630 So.2d 44, 47 (Miss. 1993). However, “if the court finds that one of these factors has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interest of the child through an on-the-record analysis of the Albright factors. In re Dissolution of the Marriage of Leverock and Hamby, 23 So.2d 424, 431 (¶ 24) (Miss. 2009).

Most recently, the chancellor in In re Custody of Brown, 66 So.2d 726 (Miss. App. 2011) ignored the natural parent presumption and awarded custody to the grandmother based on an Albright analysis. The father appealed. The court reversed and remanded the case for a determination of whether the child’s father had abandoned the natural parent presumption through desertion or other conduct that made him unfit.

In Smith v. Smith, the Court held that “the natural parent presumption can be rebutted by a clear showing that (1) the natural parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.” Smith v. Smith, 97 So. 3d 43 (¶ 10) (Miss. 2012).

[Taken from a presentation made by attorney David Bridges to the Conference of Chancery Judges in April, 2013]

Temporarily Financially Embarrassed

July 8, 2013 § Leave a comment

When I was in private practice, our firm was visited from time to time by a couple from a neighboring county who lived in the fading glimmer of bygone prosperity. They would arrive in a 20-year-old Cadillac with threadbare upholstery. The husband wore well-cut, if aged, shiny-legged suits, and the wife was attired in tailored dresses from the 50’s. They lived in an elegant, old home that had fallen into a shabby state. I understood that the old gentleman was the son of a wealthy family, but that vein of wealth had undoubtedly run lean.

The pair would visit for a while with my senior partner until the conversation lapsed into an uneasy silence, at which point the lady would profess that they were “temporarily financially embarrassed,” and could he spare them a few dollars until the first of the month. To my knowledge they never left disappointed.

In like manner, Paul Frazier became temporarily financially embarrassed when he lost his job and had to take a job paying considerably less. He petitioned the chancery court for a downward modification. The chancellor granted a reduction for a period of one year, and assessed him with a judgment for $10,000 in child support arrearage. His ex-wife, Sharon, appealed.

On appeal, Sharon argued that Paul should not have been able to modify his obligation because it was contractual, an argument that the court brushed aside. She also questioned whether the chancellor had authority to grant a temporary or time-limited reduction in child support.

Here’s what Judge Fair’s opinion in Frazier v. Frazier, handed down June 25, 2013, stated on the point for a unanimous court:

¶17. The Supreme Court of Mississippi, in Bailey v. Bailey, 724 So. 2d 335, 339 (¶12) (Miss. 1998), held that temporary reduction in child support, as occurred in this case, is not only within the power of a chancellor – it is required under appropriate circumstances. In Bailey it was held:

Where the reason for modification is temporary in nature, the trial court should order a temporary reduction in child support. See Nichols v. Tedder, 547 So. 2d 766, 781-82 (Miss. 1989). The chancellor’s order permanently reducing Sandra’s child support obligation is reversed, and this case is remanded for further findings on a reasonable temporary reduction in child support.

Id. (emphasis added).

¶18. In today’s case the chancellor determined that, based on financial disclosures of income and assets referred to but not included in the record on appeal, a “reasonable temporary reduction in child support” was appropriate, even if she did not use those exact words. She stated, in ruling from the bench, that Paul could pay the amount he had voluntarily agreed was needed to support his two children by rearranging his priorities, financial affairs, and employment. The chancellor temporarily reduced his child support for a year in order to assist him in doing so. That was not error.

Temporary modification is a nifty item to add to your tool chest, offensively or defensively. If you represent the payor, and you know your chancellor is going to frown on a downward modification, consider asking in the alternative for a temporary reduction. Likewise, if you are on the other side, and the equities clearly favor reduction, consider asking the court to make it temporary. At least until the embarrassment subsides.

Frazier is the subject of a previous post dealing with retroactive modification.

July 5, 2013 § Leave a comment

Lauderdale County Courthouse closed in observance of Independence Day.

July 4, 2013 § Leave a comment

State Holiday. Courthouse closed.

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