Temporary Setbacks, Part II

December 31, 2013 § 1 Comment

Yesterday we visited the subject of temporary hearings in cases where ID is the sole ground. The practice across the state is, well, varied.

What about the manner in which temporaries are conducted?

In this district, we schedule all temporary hearings on a R81 return day. Many are negotiated to a settlement. The ones that do no settle are taken up for hearing in order from oldest filed to most recently filed. Each side is allowed one hour, total, for the presentation of all witnesses and other evidence. One hour is by consensus among bench and bar an adequate time to develop the pertinent proof. We had a chancellor once who limited proof to ten minutes per side, which produced a lot of groaning among the lawyers. I set an expiration date of six months on my orders in hope of promoting movement toward finality.

In other districts, I experienced a broad range of ways to approach temporary matters. In some districts, a temporary hearing can consume an entire day. I often wondered in those cases what the difference was between that ordeal and the final hearing. I also wondered where the chancellor found the time.

In many districts, the proof is limited:

  • One chancellor, now retired, would call the parties and attorneys to the bench, where all stood in reverent silence while the judge examined the parties’ 8.05’s. He seldom had any questions. He would simply say something like, “Okay, the wife will have custody and the husband will pay $250 a month child support. Next case.”
  • Another judge called the parties to the bench and based his temporary order on a colloquy with the clients with limited input from the attorneys.
  • In one district the judge allowed only the parties to take the stand. He would interrupt and ask his own questions until he was satisfied that he had a clear picture, then would say he had heard enough, and would direct one of the attorneys to draft an order.

Your experiences, I am sure, will vary. I would welcome your comments about how temporary hearings are handled in your area.

Temporary Setbacks, Part I

December 30, 2013 § 4 Comments

A reader of this blog in N. Mississippi emailed me with an interesting question week before last. He asked whether the following is a common practice in other areas of the state:

I have recently been on the receiving end of opposite counsel filing for divorce on sole ground of Irreconcilable Differences, asking for temporary relief-custody, support, use of home, setting for hearing. I have objected by 12b failure to make a claim for which relief can be granted. We have worked around the 2 cases without necessity of a ruling.

Before proceeding further, I can say that in this district it is a longstanding practice not to allow temporary hearings in cases where the sole ground for divorce is irreconcilable differences. Our thinking is that an ID divorce requires an agreement, either a PSA or a consent, for the court to act, and that absent that agreement no relief is possible. Please note that I am talking only about a complaint on the sole ground of irreconcilable differences, and not: (1) a complaint in which ID is an alternative ground; or (2) where there is a separate count for, say, custody.

The authority of a chancellor in such cases is MCA 93-5-17, which states that “The chancellor in vacation [and presumably during a term] may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and may make all proper orders and judgments thereon.”

As far as I can discover, there is no case law on point. Temporary orders are not appealable, so the dearth of decisions is no surprise.

I polled some chancellors to see what the practice is in their districts, and, as one might suspect, the answers are all over the ballpark. Now, before someone opines that “we need to come up with a uniform practice” for temporaries, keep in mind that the statute specifically says that the chancellor “may” grant temporary relief. It has long been the practice that it is discretionary with chancellors whether to allow a temporary hearing at all, and, if so, the form of that hearing (more on that point in Part II). Here is what the various chancellors who responded said:

  • “No.”
  • “If they allege and show ‘urgent and necessitous circumstances’ I would allow a temporary.”
  • “Assuming you are talking about temporary relief relative to custody and support and use of marital home incident thetero, yes we do allow temporary hearings.”
  • “I do not allow temporary hearings in ID divorces. The statutory premise for ID is agreement on all issues. I do not think you can expand on what the statute allows. I am sure that someone will opine that it could be done statutorily by ‘consent’ but I would counter that with, the issues tried by consent can be appealed, a temporary cannot. As an aside, it seems when you do a temporary in an ID the court may be tipping the scales one way or the other in the negotiations.”
  • “I have never conducted an actual hearing but I have signed agreed temporary orders incorporating the PSA.”
  • “[In this district] temp order[s] setting support and custody (at least) are issued in ID divorce cases all the time … to say this is a common practice in our district would be an understatement.”
  • “I do not allow temporary hearings on ID only complaints. I would sign [an order adopting] a stipulation between the parties …”
  • “No. Never. No justiciable issue.”

That’s about 20% of the chancellors.

If you wind up with a temporary hearing in an unfamiliar district, you would do well to contact a lawyer there who practices in that court and can let you know what to expect.

December 23, 2013 § Leave a comment

Have a Merry Christmas!

Next post December 30, 2013.

Dispatches from the Farthest Outposts of Civilization

December 20, 2013 § Leave a comment






Contending with Contempt

December 19, 2013 § 1 Comment

The ins and outs of contempt can get pretty confusing. There is civil contempt and there is criminal contempt, and there is direct criminal contempt, and there is constructive criminal contempt. There are different burdens of proof, and there are different due process requirements. In the heat of battle, it can be confusing. 

The MSSC decision in Judicial Performance Commission v. Harris, handed down December 5, 2013,  offers an opportunity to review the forms and requirements of contempt.  

A previous post dealing with the subject is at this link.

Here it is in a nutshell:

  • Civil contempt enforces the right of a private party to enforcement of a previous court judgment in his or her favor. It is triable in seven days via R81 summons. The burden of proof is by a preponderance of the evidence (although some cases say it is by clear and convincing evidence).
  • Criminal contempt enforces the authority of the court. There are two categores: direct and constructive. The burden of proof is beyond a reasonable doubt.
  • Direct criminal contempt occurs in the presense of or within the sensory perception of the judge, and is punished instantly by the offended judge.
  • Constructive criminal contempt occurs outside the presence or sensory perception of the offended judge. It requires notice, an opportunity to defend, and other due process considerations, including the possibility of hearing before another judge.

The MSSC decision in In re Williamson, 838 So.2d 226, 228 (Miss. 2002), includes a helpful discussion.

As a judge I find some of these categories somewhat fluid. For example, when a party files a blatantly false and fraudulent document with the court, assuming the act is contemptuous, is it direct because it is presented to the judge as a pleading or evidence, or is it constructive because the act of filing took place outside the presence of the judge? Or, where a party in the course of testimony or in a pleading volunteers that he has done a clearly contemptuous act, is that direct or constructive? In my experience, it’s not always crystal clear when one is called upon to make the right decision.

As a lawyer, these distinctions may make a big difference to your client, whichever side you find yourself on. If all you’re seeking is to force compliance with a child support or alimony order, civil contempt is all you really need. If you try to get fancy and ask for criminal sanctions, you are propelling the case in a whole different direction with heightened burden of proof and more stringent due process requirements. If you are representing the alleged contemnor, you will want to be sure he or she is afforded all of the due process protection that applies. You might even want to argue for all due process protection in a direct criminal case simply because it would possibly allow the judge to cool down and the memory of your client’s reprehensible conduct to fade somewhat.

A Rule 54(b) Quandary

December 18, 2013 § Leave a comment

What does one do when the chancellor adds language to a ruling on a particular issue to the effect that it is certified as a final, appealable judgment, although the ruling leaves intact the lawsuit between the parties?

That is the quandary that confronted the Northeast Mental Health-Mental Retardation Commission in a case it filed against V.M. Cleveland to void a lease that it considered unreasonable. Cleveland filed a counterclaim asking for damages for breach of contract and for a declaration that the lease was enforceable. Both parties filed motions for summary judgment. The chancellor denied the Commission’s motion in toto, but granted Cleveland’s motion in part, ruling only that the lease was enforceable, and denying the remainder of the motion because there were genuine issues of material fact, etc. After he ruled on the two R56 motions, the judge added, on his own initiative, that “Insofar as the enforceability of the contract, the court certifies that this is a final decision, appealable pursuant to MRCP 54(b).”

Faced with uncertainty as to what it should do, the Commission filed both an MRAP 5 application for an interlocutory appeal, and an MRAP 3 notice of appeal. The agency frankly admitted to the court that it was unsure which was the appropriate avenue, if any, to take vis a vis an appeal.

On November 21, 2013, the MSSC denied the petition for interlocutory appeal, leaving the MRAP 3 appeal pending before the COA. The COA decided the case of Commission v. Cleveland with fairly predictable results on December 3, 2013. Judge Maxwell’s opinion for the court, lays it out:

¶12. Only final judgments may be appealed. Harris v. Waters, 40 So. 3d 657, 658 (¶3) (Miss. Ct. App. 2010). “A final, appealable[] judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Walters v. Walters, 956 So. 2d 1050, 1053 (¶8) (Miss. Ct. App. 2007) (emphasis added and internal quotation marks omitted).

¶13. “Rule 54(b) provides an exception to the final-judgment rule.” Harris, 40 So. 3d at 658 (¶4). Under this rule, the trial court may “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[.]” M.R.C.P. 54(b). “According to the official comment to Rule 54(b), the basic purpose of the rule ‘is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.’” Harris, 40 So. 3d at 658 (¶5) (emphasis added) (quoting M.R.C.P. 54(b) cmt.).

¶14. However, for a judgment or order to be eligible for Rule 54(b) finality, “the case [must] include either multiple claims, multiple parties, or both, and . . . either one or more but fewer than all the claims [must] have been decided, or . . . all the rights and liabilities of at least one party [must] have been adjudicated.” M.R.C.P. 54(b) cmt. The comment makes clear that “[d]espite its apparently broad scope, Rule 54(b) may be invoked only in a relatively select group of cases and applied to an even more limited category of decisions.” M.R.C.P. 54(b) cmt. And “[a] decision that leaves a portion of the claim pending as to all defendants does not fall within the ambit of Rule 54(b).” M.R.C.P. 54(b) cmt. …

¶15. The chancellor’s grant of partial summary judgment did not decide a claim between the two parties. Rather, it merely decided an issue within their claims—whether the contract was enforceable. This decision resulted in the denial of summary judgment to the Commission. And the denial of summary judgment is an interlocutory order that may only be appealed by permission. Hinds Cnty. v. Perkins, 64 So. 3d 982, 984 (¶7) (Miss. 2011). The chancellor’s decision also led to the partial grant of summary judgment in favor of Cleveland. But none of Cleveland’s claims were fully resolved. The chancellor was clear in his order that, despite the contract being enforceable as a matter of law, full summary judgment could not be granted because there were still “genuine issues of material fact” concerning whether the Commission could validly take actions to rescind the contract.

¶16. Because the chancellor’s decision left a portion of Cleveland’s claim pending, the chancellor’s order did not fall within that “limited category of decisions” in which Rule 54(b) may be applied. M.R.C.P. 54(b) cmt. Thus, the Rule 54(b) certification is invalid, and the decision that is the subject of this appeal is not a final, appealable judgment. Lacking jurisdiction to address the merits of the chancellor’s decision, we dismiss the appeal.

Not having the benefit of the entire record, we are at somewhat of a disadvantage, but, if I understood the opinion correctly, the judge did finally adjudicate a key issue of Cleveland’s case, which was whether the contract was enforceable. I can understand why the chancellor thought the parties should have a shot at appellate review of that issue, since it was a major pivot point upon which both cases turned. If it were upheld, major litigation, time and expense could be avoided. If reversed, the litigation might be ended. Either appellate ruling might quite possibly have avoided a retrial in a subsequent appeal.

All that being said, I understand the COA’s position. Since most of Cleveland’s case remained unresolved, the explicit language of R54(b) was not satisfied.

I said here only last week that I wondered why all the confusion over R54(b) and how to remove the uncertainty once and for all. I don’t think this is the case that does the job.

The Cap on Division of Military Retirement — or not

December 17, 2013 § Leave a comment

Henry and Tracey Stout found themselves in a divorce proceeding after twenty-five years of marriage. After the entered into a consent, the chancellor divided the marital estate, awarding Tracey, among other things, 64.75% of Henry’s military retirement.

Henry appealed, arguing that Tracey was entitled to no more than 50% of his military retirement, based on the specific limitation of 10 USC § 1408(e), which states that: “The total amount of the disposable retired pay of a member payable under all court orders pursuant to section (c) may not exceed 50% of such disposable retired pay.”

The COA addressed Henry’s appeal in the case of Stout v. Stout, handed down December 10, 2013. Judge Roberts, for the majority, started his analysis by looking to other jurisdictions:

… This issue is a matter of first impression in Mississippi; therefore, it is prudent to consult the interpretations of this issue from other jurisdictions. In a slip opinion in Gonzalez v. Gonzalez, No. M2008-07143-COA-R3-CV, 2011 WL 221888, at *5 (Tenn. Ct. App. 2011), the Tennessee Court of Appeals stated:

It appears that the United States military does not view § 1408(e)(1) as a limit. The Defense Finance and Accounting Service observes that “the amount of a former spouse’s award is entirely a matter of state law.” DIVIDING MILITARY RETIRED PAY 6 (2006), http://www.dfas.mil/militarypay/garnishment/Speech5.pdf; see also UNIFORMED SERVICES FORMER SPOUSE’S PROTECTION ACT 2–3 (2010), http://www.redstone.army.mil/legal/data/1–usfspa.pdf (“If a state court awarded you 60% of your former spouse’s retired pay and you qualify under this statute to get direct pay, then you would collect 50% through the Finance Center and your former spouse would be responsible for providing the other 10% to you.”) DOMESTIC RELATIONS FROM A MILITARY PERSPECTIVE; FREQUENTLY ASKED QUESTIONS [http://www.cnic.navy.mil/navycni/groups/public/documents/document/cnicp_ a134503.pdf] (“The 50% maximum of DRP [disposable retired pay] is a limit on how much retired pay can be paid directly, but it is not a limit on how much a court can award.”).

Although not an exhaustive list, courts in Minnesota, Delaware, Texas, Alabama, Kansas, Washington, Maryland, and Iowa also take this view of the statute. [Footnote omitted] However, several states do consider there to be a 50% limit. [Footnote omitted] The majority view is that the statute is not an absolute cap, but rather a cap on what the government can pay directly to a spouse or former spouse. We find the majority view to be persuasive; therefore, the chancellor did not err in awarding Tracey more than 50% of Henry’s military retirement benefits. This issue is also without merit.

I find it interesting that the COA wound up dealing with this issue. If this is, as Judge Roberts found, an issue of first impression in Mississippi, aren’t those kinds of cases supposed to be the province of the MSSC?

Until the MSSC addresses it, then, we will be among the states holding that the 50% limit is a limit on what the government DFAS can be ordered to withhold, not a limit on what can be awarded by the court.

This is an important case for you to know and understand if you ever deal with military retirement, as do many of us in areas of Mississippi with military installations and military retirees.

Another aspect of this case bearing mention is the fact that the chancellor awarded a percentage of the military retirement as a part of equitable distribution, but did not place a value on the total of the benefit received. Henry charged that this was error. Judge Roberts addressed it this way:

¶17. Henry next argues that the chancellor erred in not determining a specific monetary value of his military retirement and assigning a percentage of that value to Tracey’s estate. Had the chancellor added in this value, Henry claims Tracey’s estate would have been much greater and alimony could have been avoided. Without that value, according to Henry, there is ambiguity in the equitable distribution of the marital estate. Military retirement benefits are considered personal property, and as such, are subject to equitable division in a divorce proceeding. Hemsley v. Hemsley, 639 So. 2d 909, 914 (Miss. 1994). The chancellor placed a monthly value of $1,770.53 per month, but did not determine a lump-sum value. Henry cites to no authority that a chancellor is required to determine a lump-sum value of military retirement benefits. Though not at issue in other cases, there is case law describing a chancellor solely determining the monthly value of the retirement benefits and not a lump sum. However, there is also case law that shows a chancellor actually put a lump monetary value on the retirement benefits. Neither line of cases instructs that one valuation is required or more appropriate than the other. We cannot find that the chancellor erred in not determining a lump-sum amount of the military retirement benefits awarded to Tracey. We also note that the chancellor did take into account the monthly amount Tracey would receive when she determined whether Tracey was entitled to alimony and if so, in what amount.   

I wonder whether the discrepancy in case law cited by Judge Roberts is due to the fact that military retirement can be divided in equitable distribution or ordered to be paid as alimony, in the discretion of the chancellor. The cases referred to are not cited, so we do not know whether they are equitable division or alimony cases. Clearly, if paid as alimony its total valuation would be beside the point. As equitable distribution, I’m not so sure, because the value of the assets divided must be taken into account. In either case, however, as Judge Roberts pointed out, equitable division does not mean an equal division. The chancellor did an exemplary job limning out Tracey’s need for financial support post-equitable-division, so it is unlikely that placing a value on the benefits received in this case would have changed the outcome.

The Door to Equitable Distribution

December 16, 2013 § Leave a comment

It would seem to be self-evident that the door to equitable division of the marital estate is not open unless and until the trial court has a viable claim for divorce before it.

Yet, in the case of Brown v. Brown, decided by the COA on December 3, 2013, Kimberlye Brown argued that the chancellor erred when she denied Kimberlye’s prayer for equitable distribution after the chancellor had denied both parties a divorce, and, in addition, denied Kimberlye’s claim for separate maintenance. Kimberlye appealed. Judge Lee addressed the issue for the COA majority:

¶19. Kim contends that the chancellor erred in refusing to divide the marital estate. A chancellor has the authority to divide the marital estate after a divorce has been granted. Ferguson v. Ferguson, 639 So. 2d 921, 927 (Miss. 1994). In cases where only separate maintenance has been granted, however, a chancellor does not have the power to award either party a portion of the marital estate. In Daigle v. Daigle, 626 So. 2d 140, 146 (Miss. 1993), the supreme court stated that separate maintenance “is not a dissolution of a marriage and dividing of marital assets . . . .” And the court found that the chancellor erred by dividing the marital assets. Id.

¶20. Furthermore, in Thompson v. Thompson, 527 So. 2d 617, 622-23 (Miss. 1988), the court stated:

The legal duty of the husband to support his wife does not require that he convey any property to her. During cohabitation the wife has the legal right to live in the husband’s home, but he is under no legal duty to convey it to her. And after separation her legal rights are no greater than before. . . . [T]he court should not, under the guise of enforcing that contractual duty, deprive him of his lands or other specific property, where not necessary for the enforcement of that duty.

(Citations omitted).

¶21. By asking the chancellor to divide the marital assets in the absence of a divorce decree, Kim is asking for her legal rights to be greater than they were before the separation. The chancellor did not have the authority to divide the marital assets, because the claims for divorce had been denied. This issue is without merit.

Some of the toughest swivets I ever sweated out as a lawyer were the ones where I argued something I considered so elementary that I did not even bother to gather some authority to take with me, yet I discovered to my chagrin that the chancellor was blithely unaware of the law on the point. A senior chancellor once threatened to throw out my client’s contest of a modification petition filed against him because I had not filed an answer. To compound matters, the lawyer on the other side argued that an answer was absolutely required. Neither found the express language of R81 very persuasive. Ouch.

So you might want to tuck away the above language from the Brown case in that special place where you store your legal survival gear. It just might come in handy after you have successfully defeated your opponent’s claims for divorce and separate maintenance, and opposing counsel rises and says, ” … and now, your honor, about our prayer for equitable distribution …”

Scene in Mississippi

December 13, 2013 § 3 Comments



Add Another 54(b) Casualty

December 12, 2013 § 1 Comment

At some point (we may already be there), these will be so numerous that they will no longer be newsworthy, but there is yet another dismissed appeal for lack of a final judgment disposing of all issues, and no MRCP 54(b) certification.

The case is Estate of Norton: Jordan v. Norton, handed down by the MSSC December 5, 2013. I won’t bore you with the now-all-too-familiar details. This is a short opinion that you can read yourself in just a few minutes.

I am wondering whether these appellate misfires result from some kind of flaw in our rules, or whether the fault is in our stars, so to speak.

Is MRCP 54(b) ambiguous or unclear? It does not seem so to me, but that may be me looking through judicial-colored glasses with especially thick lenses. Is it unclear to lawyers who battle in the trenches?

Or is it that lawyers are acting out of an abundance of caution? If so, that seems like an expensive way to go, when a simple post-trial motion asking the judge for a 54(b) certification would cover one nicely.

I don’t know. Anyone have any ideas?


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