Twenty-First Century Fossils
November 27, 2013 § 9 Comments
It’s no secret that lawyers do not reinvent the wheel every time they do a pleading, PSA, will, or other instrument. What happens when a client needs a document in a new matter is that one like it is conjured up from the bowels of the computer hard drive (substitute “Cloud” for hard drive if you need to), the names and personal information are changed, tweaks are made to make it fit the new matter’s particular circumstances, and — voila! — the new document is dispatched into the legal universe to do the task it was designated to do.
This process works quite well as long as the attorney (or staff) is vigilant, but sometimes there are embarrassing glitches.
One obvious problem occurs when not all of the requisite changes are made, creating incongruities that can have consequences ranging from comic to tragic.
The type of problem I would like to address, however, is one that I characterize as “fossilization of the hard drive.” It occurs when lawyers time and again have the same erroneous matter in pleadings, PSA’s, or other documents, and, when (again) brought to their attention the lawyers sheepishly admit the error and promise (again) to fix it. But they don’t. Because that error is saved countless times in other documents on the hard drive, and changing it once does not solve the problem.
A harmless example of what I am talking about is the lawyer in our district whose divorce complaints pled grounds thus: ” … guilty of habitual cruel and inhuman treatment as codiciled in MCA 93-5-1 …” That’s hard to eradicate when it appears in 1,000 other complaints stored — and fossilized — on the hard drive. Every time I called it to his attention, he professed he would fix it. After five years or so, he managed to pull it off somehow.
How do you make sure that, as you catch a flaw in your pleadings, or learn the hard way not to include a particular provision in a PSA, or a case comes down mandating that you change a will provision, that you will get it right next time?
Here is a suggested solution. When you save a complaint, or PSA, or will, always add the month and year when it was done as a suffix to the file name. Example: “Henry PSA 08-13” or “Jackson Divorce Complaint 11-13” or “Reed Tom Will 04-12.” As you refine your pleadings, PSA’s, and probate documents, you save them as the most recent, and then, later, when you need a template, you call up the most recent as the best example that incorporates new innovations and eliminates old errors. That way, the old fossils can repose undisturbed until some 22nd-century legal archaeologist stumbles on them.
There is probably a better way to do this that you have discovered and implemented in the intervening years since I passed on from the practice. If so, you can leave them in a comment or email me.
A Few More Suggested PSA Provisions
November 26, 2013 § Leave a comment
Here are a few more suggested PSA provisions you may find helpful, courtesy of David Rogers, Esq., of Pascagoula.
As with the previous post where I offered some suggestions for PSA provisions, there is no guarantee that any of these will be effective in any given court. They are suggestions for points you might want to cover in your own PSA’s. You may have better or other ways to state the same points.
Dealing with electronic contact in the digital age …
Telephonic/Digital Visitation – The parties agree and understand that should such means be available, during such times as the minor children is in the physical custody of the other party, the noncustodial party shall be allowed Telephonic and/or digital visitation with the minor children via telephone, electronic mail, instant messaging, video conferencing, social media, and other electronic means each and every even numbered day for a period of not more than 30 minutes total to begin no later than 7:30 p.m. in the time zone in which the minor children is/are located. Neither party shall be required to maintain electronic equipment and/or accounts necessary for said telephonic and/or digital visitation. Should the custodial parent incur and additional cellular fees as a result of the noncustodial parent’s telephonic/digital visitation, the non custodial parent shall reimburse the custodial parent for said fees within ten (10) days of receipt of the original bill from the custodial parent.
Responsibility for transportation within mileage limits …
Should the parties live within one-hundred (100) miles of each other, then Husband/Wife shall provide transportation for the minor children to and from each and every visitation.
Should the parties live apart by a distance greater than one-hundred (100) miles of each other, then the parties shall meet at a half-way point for all visitation exchanges and be responsible for their own transportation cost.
Should the parties live apart by a distance greater than (distance varies/check with client) two-hundred (200) miles of each other, then Husband/Wife’s every other weekend visitation shall be suspended until such time as the parties reside within two-hundred (200) miles of each other again.
In the event of military deployment per MCA 93-5-34 …
(a) The term “deployment” means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.
(b) The term “mobilization” means the call-up of a National Guard or Reserve service member to extended active duty status. For purposes of this definition, “mobilization” does not include National Guard or Reserve annual training.
(c) The term “temporary duty” means the transfer of a service member from one military base to a different location, usually another base, for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.
(d) The term “family member” means a person related by blood or marriage and may include, for purposes of this statute, a step-parent, grandparent, aunt, uncle, adult sibling or other person related by blood or marriage.
(e) When the custodial parent, receives temporary duty, deployment or mobilization orders from the military that involve moving a substantial distance from the custodial parent’s residence having a material effect on the non-custodial parent’s ability to exercise custody responsibilities:
(f) The non-deployed parent shall make the child or children reasonably available to the deployed parent when the latter parent has leave;
(g) The non-deployed parent shall facilitate opportunities for telephonic, “webcam,” and electronic mail contact between the deployed parent and the child or children during deployment; and
(h) The deployed parent shall provide timely information regarding the parent’s leave schedule to the non-deployed parent.
(i) If the parent with visitation rights receives military temporary duty, deployment or mobilization orders that involve moving a substantial distance from the parent’s residence or otherwise have a material effect on the parent’s ability to exercise rights, the non custodial parent’s visitation rights shall be exercised by a family member of the noncustodial parent for the duration of the parent’s absence, if delegating visitation rights is in the child’s best interest.
A Resource for Minors’ Settlements
November 25, 2013 § Leave a comment
The Litigation Section of the Mississippi Bar publishes a newsletter for its members. The November, 2013, issue includes a superb article by Nick Thompson, Esq., an associate at Copeland, Cook, Taylor & Bush in Hattiesburg, entitled “Best Practices for Minors’ Settlements.” Click on the link, and then click on the link to the November, 2013, newsletter.
This is the kind of resource that is extremely useful to lawyers who deal with these matters regularly. I recommend that you print it out and use it.
R.I.P. Retired Chancellor Tom Ziebert
November 22, 2013 § Leave a comment
November 21, 2013, in hospice.
The Lost Maxims of Equity
November 22, 2013 § Leave a comment
Several lawyers (thank you all) sent me links to the Volokh Conspiracy‘s blog post setting out the Lost Maxims of Equity. For those of you who have not seen them, here they are:
From 52 J. Legal Ed. 619 (2003):
He who seeks equity must do so with full pockets.
Equity is not for the squeamish.
Equity, schmequity.
Equity can be grumpy before its first cup of coffee.
Equity is crunchy on the outside, soft and chewy on the inside.
Equity is a mean drunk.
Equity, like all of us, prefers the rich and good-looking.
These clever, tongue-in-cheek aphorisms are takeoffs on the great Maxims of Equity that I expounded about here previously in a series of posts. My fave from above is “Equity is crunchy …”
Over the years I have seen several versions of these humorous stabs at the maxims. I googled trying to find some other versions for you, but I misfired in the time allotted.
Again, thanks to those who sent me the link. And if any of you see something you think is worth posting, send it on. I don’t guarantee that I will post it, but you’re encouraged to send it anyway.
Reprise: Some PSA Provisions You Might Find Helpful
November 21, 2013 § 1 Comment
Reprise replays posts from the past that you might find useful today.
SOME SUGGESTED PROVISIONS FOR PSA’S
January 18, 2012 § Leave a Comment
Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.
Protection from debts incurred by the other party:
Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.
Attorney’s fees:
Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.
Where other documents will be necessary to finalize the entire settlement:
Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.
To confirm and ensure that there are no unwritten or side agreements:
Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.
Release of all claims:
Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .
Where the parties want the agreement to be enforceable whether or not approved by the court*:
Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.
A useful provision to ensure that there are no open-ended obligations:
Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.
Where one party is not represented:
Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.
Clarification that tax advice has not been rendered:
Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.
Closing the door on a party claiming later that the property should have been appraised:
Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.
If a former name is to be restored, it is a good idea to include that agreement in the PSA:
Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.
There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.
_______________
* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.
When Joint Custody is the Gateway to Sole Custody
November 20, 2013 § 3 Comments
Brittany and Douglas Clark consented to an irreconcilable differences divorce, agreeing to allow the chancellor to adjudicate “the primary physical custody” of their son, Brayden, and several other support and visitation issues.
At trial, the chancellor heard testimony from both sides, and announced that if he were to award custody of the child to either parent, “[he] would be taken care of. [He] would be loved. [He] would be supported. [He] would be nurtured. [He] would be raised properly.” The judge added:
The [Mississippi Supreme Court] has decided [this court] must follow and do what is in the best interest of the child after [it has] gone through all the Albright factors, and . . . these are the kinds of cases that . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.
The chancellor awarded custody of Brayden to Brittany, concluding that it would be in the child’s best interest to do so. Douglas appealed, one assignment of error being that the chancellor had failed to award joint physical custody, per Easley v. Easley, 91 So.3d 639 (Miss. App. 2012). [Note: A previous post on the Easley case is at this link].
In the case of Clark v. Clark, decided November 12, 2013, the COA reversed and remanded. Judge Roberts’ opinion, for the court, explained:
¶10. Douglas argues that the chancery court erred when it determined that it could not award joint physical custody. As was quoted above, the chancery court made the following statement before awarding full physical custody to Brittany: “[In these] kinds of cases . . . it’s hard . . . to give the child to one or the other because everything here would support that. . . . [H]ow can you choose one over the other, but [this court] has to.” (Emphasis added). The trial was held and the oral decision of the chancery court was made on June 12, 2012. However, just a few days earlier, this Court handed down the case of Easley v. Easley, 91 So. 3d 639 (Miss. Ct. App. 2012), which is directly on point for this particular issue.
¶11. In Easley, the chancery court stated that joint physical custody was in the best interest of the child, but the court was not permitted by law to grant joint physical custody when it was not requested by both parties in an irreconcilable-differences divorce. Id. at 640 (¶1). Therefore, the court awarded full physical custody of the minor son to the father. Id. Reversing and remanding the chancery court’s decision, this Court found that “[t]he [chancery court] erroneously concluded that joint custody could not be awarded” under Mississippi Code Annotated section 93-5-24(2) (Rev. 2004), and it was error to deviate from the child’s best interest by awarding sole custody to the father.Easley, 91 So. 3d at 641 (¶10). Additionally, in Crider v. Crider, 904 So. 2d 142, 148 (¶15) (Miss. 2005), the Mississippi Supreme Court held:
[W]hen parties consent in writing to the [chancery] court’s determination of custody, they are consenting and agreeing to that determination and this meets the statutory directive of “joint application” in [section] 93-5-24(2). This is the only interpretation that conforms to the primary directive of [Mississippi Code Annotated section] 93-5-24(1) [(Rev. 2004)] that “custody shall be awarded as follows according to the best interests of the child.”
Importantly, before awarding joint custody, a chancery court must determine whether the parents are “capable of sharing joint custody cooperatively[.]” Crider, 904 So. 2d at 147 (¶13).
¶12. We are presented with a similar set of facts. Like in Easley and Crider, the divorce was granted on the ground of irreconcilable differences. Based on our reading of the transcript, it appears that the chancery court may have concluded, like the chancery court in Easley, that it was required to order custody to one parent regardless of whether joint physical custody was in the best interest of Brayden. The chancery court made no finding that Brittany and Douglas could not cooperate if joint custody was awarded. See Crider, 904 So. 2d at 148 (¶15) (“It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”). We are concerned that the chancery court may have concluded that it was not authorized to consider joint physical custody; therefore, we reverse the chancery court’s judgment and remand this case to the chancery court for it to reconsider its award of custody, including the propriety of awarding joint physical custody.
As I’ve said here before, when you consent for the judge to adjudicate custody, you are opening the door to joint custody.
But does this mean that in all cases the judge is required first to consider whether joint custody should be awarded, and, only after finding that it is not in the child’s best interest, then move on to the issue of sole custody? I think it does. I don’t see any other way to read this line of cases.
If my interpretation is correct, it means that joint custody is the default setting for custody in this type case, if the issue is left to the court to decide, and the court must find a basis under case law or in the statute to deny joint custody before moving on to considering an award of sole custody.
At the very least, these are matters you should discuss in detail with your client before drafting that consent.
Can you limit the court’s scope of award via draftsmanship? I question whether you can, based on this language from Crider: “It is the chancellor who must determine what is in the best interest of the child, and it is the chancellor who determines the level of commitment parents have to sharing joint custody.”
No Place Like Home
November 19, 2013 § Leave a comment
UCCJEA jurisdiction begins with a determination of the home state of the child. MCA 93-27-102(g) says:
“Home state” means the state in which a child lived with a parent or person acting as a parent for at least six (6) consecutive months before commencement of a child custody proceeding … A period of temporary absence of any of the aforementioned oersons is part of the period.
And most folks stop right there. If the child has been here six months, Mississippi must have jurisdiction. Most cases, however, are not so clear-cut. What about the familiar scenario where the child is taken from Mississippi to another state? How does that affect home state status?
Consider this language from MCA 93-27-201(1)(a):
[A] court of this state has jurisdiction to make an initial child custody determination only if:
This state is the home state of the child on the date of commencement of the proceeding, or was the home state of the child within six (6) months before commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in this state …
So, if …
- It’s an original custody proceeding, and
- Mississippi is the child’s home state on the day the action is filed, or
- Mississippi was the home state of the child within six minths before the action is filed, and the child is absent from Mississippi, but a parent or person acting as a parent continues to live in Mississippi, then …
Mississippi does have jurisdiction. And, remember that UCCJEA jurisdiction is subject matter jurisdiction.
In the COA case of Jones v. McQueen, handed down November 12, 2013, the court affirmed the chancellor’s finding that Mississippi, not Alabama, had UCCJEA jurisdiction because Mississippi was where the mother and father had lived together with the child, and had been the home state of the child within six months before the action is filed. Although the child had been removed from Mississippi to Alabama by the mother, the father of the child continued to reside in this state. The facts of the case also established that the mother had periods of absence in Alabama during the six months, but that they were temporary absences, and she actually moved her personal effects out of the father’s Mississippi home when the parties finally separated.
The UCCJEA has many complexities. If you are not thorough in studying the code sections that apply, you might find yourself on the short end of the jurisdictional stick — which is a bad place to be.
The Better Chancery Practice Blog 