This Week: Snow Daze-d … and Another Icon Passes
January 31, 2014 § Leave a comment
As I write this, we are in the midst of an unheard-of three-day shutdown of our courthouses in Lauderdale and Clarke Counties for, of all things, ice.
That’s right — ice. As in ice on the roads and bridges that makes it hazardous for people not on the main thoroughfares to travel to the courthouse to conduct their business.
I don’t know about you, but I don’t recall ever ice and snow sticking around more than 24 hours after its appearance in these parts. You know how it usually goes: snow all night and next morning, and then all gone by afternoon or next morning at the latest. And that only happens once every five years or so. But here we are on Thursday with Monday’s snow still on the ground, and the temperatures expected — finally — to struggle above freezing today for the first time since the beginning of the week.
The most tiresome thing about this whole ordeal, in a way, was listening to the smiling faces on tv drone on about how unprepared we in the southland were for the snow and ice, as if this thought had only now occurred to them for the first time in some miraculous medla revelation.
Actually, we were unprepared, in the same sense that Minnesota is unprepared for a hurricane. When one experiences a particular calamity only once or so a century, one does not prudently invest money, peoplepower, infrastructure, and planning for such that could be devoted to the more reasonably-anticipated and frequently occurring disasters that usually befall us, like hurricanes, tornadoes, grass fires, hazardous spills on the interstate, and crumbling county roads and bridges.
Any Mississippi supervisor who spent funds on snowplows, sand, sand trucks, salt, salt trucks, snow shovels, and other winter storm equipment sufficient to cover his or her county, or even beat, would likely be investigated by the state auditor and indicted by a federal grand jury — or should be.
Well, this will all be history by the weekend, we expect, when temperatures will percolate back up into the mid-60’s — as they should in any self-respecting winter.
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As the snow fell on Mississippi Monday, Pete Seeger slipped quietly out of this life. He was 94 years old.
If you grew up in the 50’s and 60’s you will remember that Seeger was an important figure in folk music, which was the sound of that era. He was a member of The Weavers, a quite popular folk group that rivalled other performers like the Kingston Trio, the Limelighters, and the Brothers Four for popularity. Even as mainline folk wained in the public eye, and its music fell out of favor, its influence persisted. It morphed into folk rock and crossover country, and never completely disappeared. Dylan, Simon & Garfunkel, the Byrds, The Mammas & the Pappas, and many others, carried folk DNA in their music.
Seeger was not known only for his music. His activism for civil rights, workers rights, and anti-war and environmental issues was legendary.
I’ve posted here before that Seeger came to Meridian to perform for and sing with the Freedom Summer volunteers on August 4, 1964. It was he who broke the tragic news to them that the bodies of Mickey Schwerner, James Chaney, and Andy Goodman had been discovered in a dam that very day in Neshoba County.
Pete Seeger will live on in his music. Songs like “Where have all the Flowers Gone,” Turn, Turn, Turn,” and “If I had a Hammer,” are part of our musical heritage.
Seeger’s politics made him anathema to some. He was a communist in his earlier years, a position he later rejected and even said he regretted. That coupled with his refusal to testify before the HUAC, on the ground of free speech, earned him blacklisting with many media outlets and broadcasting networks. But his steadfast defense of and unwavering advocacy for the poor, the underpaid, the dispossessed, and the downtrodden will be his legacy.
In Loco Parentis Child is not a Wrongful Death Beneficiary
January 30, 2014 § Leave a comment
The MSSC ruled last week that the child of an in loco parentis parent is not a wrongful death beneficiary under our statute.
The outcome would seem to be preordained, given that wrongful death is entirely a creature of statute, which must be strictly construed. Justice Randolph, writing for the majority in Estate of Smith v. Smith, handed down January 23, 2014, summed it up:
¶9. This Court has recognized the doctrine of in loco parentis for more than a century. Fortinberry v. Holmes, 42 So. 799, 799 (Miss. 1907). Specifically, the doctrine is defined as follows:
A person in loco parentis may be defined as one who has assumed the status and obligations of a parent without a formal adoption. The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent. Whether the relationship exists is a matter of intention and of fact to be deduced from the circumstances of the particular case.
Farve v. Medders, 128 So. 2d 877, 879 (Miss. 1961).
¶10. In short, Halley is not a wrongful-death beneficiary because she is not Justin’s child, as defined in Mississippi Code Section 11-7-13. See Miss. Code Ann. § 11-7-13 (Rev. 2004). We strictly construe Section 11-7-13. Smith v. Garrett, 287 So. 2d 258, 260 (Miss. 1973). Moreover, this Court lacks the power to expand the definition of “child.” See Burley v. Douglas, 26 So. 3d 1013, 1020 (Miss. 2009). The relevant part of the statute is as follows:
. . . Damages for the injury and death of a married man shall be equally distributed to his wife and children . . . . The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15. [Citation omitted]
. . . Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full-blood and had been born to the adopting parents in lawful wedlock.
Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In addition to covering natural children, the statute includes express language that brings both adopted children and illegitimate children within the purview of “children.” The statute is silent as to in loco children. Since this Court must strictly construe the statute, we find that in loco children do not fall within the definition of children in Mississippi’s wrongful-death statute.
Justice Kitchens wrote an interesting dissent that would have reversed not based on the father’s status in loco parentis, but rather on the fact that the deceased father was not only the presumed father, but also that there had been “several separate judicial proceedings in which [he] had been recognized as Halley’s legal father,” and there had never been any judicial or extra-juducial disestablishment of parentage. ¶ 21 (emphasis in original).
This is another of those cases where a reader who is unacquainted with the case is left scratching his or her head over two apparently completely different readings and/or interpretations of what is in the record. If Justice Kitchens is right in his reading of the record, is Hallie not a wrongful-death beneficiary?
I have no quarrel with the majority’s application of the law to its statement of the facts, but I do wonder nowadays whether the 1907 language of Fortinberry is now hopelessly antiquated. In light of the third-party custody cases and, now, this case, can it be said accurately any more, a là Fortinberry, that “The rights, duties and liabilities of one standing in loco parentis are the same as those of a natural parent”?
Don’t Overlook the Practicalities when Dealing with Visitation
January 29, 2014 § 1 Comment
When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.
Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:
[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.
That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?
In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.
Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.
The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.
A few desultory thoughts:
- I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
- I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
- Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
- The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
- This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.
Fraud on the Court and MRCP 60(b)
January 28, 2014 § 1 Comment
What does it take to trigger relief from fraud on the court?
That’s the question I posed in a previous post dealing with the COA’s October 2, 2012, decision in the case of Rosemary Finch v. Stewart Finch.
The answer based on the COA decision was that one need merely suggest that a fraud on the court was committed, and the chancellor can take it from there. So that settles that, right? Well, not exactly. The MSSC granted cert and took another look.
In Finch v. Finch, handed down January 16, 2014, the high court affirmed the COA’s decision on the chancellor’s handling of the fraud-on-the-court issue, but remanded for further findings of fact by the trial court on other issues.
The MSSC decison, penned by Justice Pierce, is worth your time to read, because it sheds further light on the dimensions of fraud on the court, how it affects judgments, how the trial court should address it, and how you should deal with it.
What is most strking to me about this opinion, however, is how the court divided on the decision:
LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.
Four justices joined entirely in the opinion: Pierce, Lamar, Kitchens, and Chandler. Randolph added a fifth concurrence “in part and in result.” The dissent garnered five votes also: Dickinson, Waller, King, and Coleman. Chandler added a fifth vote, “in part.” Neither Justice Randolph nor Justice Chandler wrote an opinion explaining their concurrence or dissent in part, so we do not know enough to understand their rationales. Apparently, under the MSSC internal procedures, a tie vote goes in favor of the justice who wrote the original opinion. In his dissent, Justice Dickinson referred to this as a “plurality opinion.”
I found Justice Dickinson’s dissent to be forceful and persuasive. He questioned whether due process had been violated, and he found the proof of actual fraud lacking. He was not successful, though, in selling his opinion to a majority. So the law of Mississippi in cases involving fraud on the court remains as I described it in that previous post:
… all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”
Child Support Guidelines and the Shared Custody Arrangement
January 27, 2014 § 4 Comments
Shared parenting arrangements are more and more common in chancery court. The forms they take can vary considerably. In some cases there is a true joint custody provision whereby the children spend significant periods with each parent. In other cases, the time allocated between the parents is in the form of one parent having custody, and the other parent having extended visitation.
A question that arises from those cases is what impact the division of time has on a child support order. MCA 43-19-101(2) says that the statutory child support guidelines apply unless the court makes a finding ” … that application of the guidelines would be unjust or inappropriate under the criteria specified …” in MCA 43-119-103. One of those deviation criteria is set out in MCA 43-19-103(g), which reads:
The particular shared parenting arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, giving due consideration to the custodial parent’s homemaking services.
I interpret this to mean that, in order to invoke this exception, it would require both a showing that there is a custody arrangement involving “a great deal of time” spent with the child by the paying (“noncustodial”) parent, either: (a) resulting in reduced financial expenditures by the other (“custodial”) parent; or (b) refusal of the paying parent to be involved in the child’s activities, inferentially resulting in increased expenses for the other parent. In either case, the court would be required to take into account the homemaking services of the non-paying parent.
A case illustrating application of Section 103(g) is Marin v. Stewart, decided by the COA on September 24, 2013. In that case, Marin argued on appeal that the chancellor had erred in not reducing his child support obligation due to a shared-custody arrangement. Judge Irving addressed the issue for the court:
¶10. Marin contends that section 43-19-103(g) is a criterion that the chancellor failed to consider. He argues that his voluntary extended-visitation arrangement with Stewart satisfies section 43-19-103(g) and would justify a downward deviation from the child-support guidelines. Marin did not raise this issue before the chancellor, and he is procedurally barred from asserting it for the first time on appeal. See Wilburn v. Wilburn, 991 So. 2d 1185, 1191 (¶14) (Miss. 2008).
¶11. Procedural bar notwithstanding, while section 43-19-101(2) requires that the chancellor make specific findings under the criteria in section 43-19-103 in order to deviate from the guidelines, it does not require that all criteria be considered in order for the findings to be sufficient. See Hensarling v. Hensarling, 824 So. 2d 583, 588 (¶¶13-15) (Miss. 2002) (affirming the chancellor’s reasoning that the guidelines were inappropriate when the chancellor’s findings only addressed two of the criteria under section 43-19-103); Smith v. Smith, 25 So. 3d 369, 374 (¶¶14-15) (Miss. Ct. App. 2009) (affirming the chancellor’s on-the-record findings when his findings only applied to two of the criteria listed under section 43-19-103).
¶12. Here, the chancellor stated on the record his reasons for deviating from the guidelines. Although his reasoning did not include an analysis of Marin’s visitation arrangement—which was not enough to warrant a deviation from the guidelines since there is no indication in the record that the visitation reduced Stewart’s financial expenditures—the chancellor’s findings on the record indicate that he deemed the guidelines inappropriate because fourteen percent of Marin’s adjusted gross income would have been less than what it costs to keep the child in daycare. The chancellor’s reasoning properly falls under section 43-19-103(i), as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate. This issue is without merit.
A few points:
- Notice Judge Irving’s statement that “there is no indication in the record that the visitation reduced Stewart’s financial expenditures.” Again, if you want a downward reduction via subsection (g), you’d better muster up proof that your client’s actions reduced the other party’s expenditures.
- It is important to realize that Section 103 does not mandate a reduction in child support because one of the factors is present. It only authorizes the court to deviate from the guidelines if one of them applies. The statute specifically states that the presumption of applicability of the Section 101 guidelines “may” be overcome; not “shall” be overcome.
- Judge Irving also makes the obvious point that not all of the criteria spelled out in Section 103 need be considered by the court in order for findings to be sufficient.
- Section 103(g) is both a sword and a shield. Note that its language would justify either a downward adjustment in one set of facts, or an upward adjustment in another set of facts.
Don’t assume that child support will be 14, or 20, or 22, or 24, or 26%. If you represent the paying party, study Section 103 to see whether there is a basis for a downward justification. If you represent the non-paying party, you just might find something in Section 103 that will justify an upward adjustment. That’s what happened in Marin v. Stewart, and it held up on appeal.
The National Civil Rights Museum
January 24, 2014 § Leave a comment
We visited the National Civil Rights Museum the weekend of Dr. Martin Luther King, Jr.’s, birthday. The museum is in downtown Memphis, where Dr. King was assassinated on April 4, 1968.
The museum incorporates the Lorraine Motel, where Dr. King was lodging, and the boarding house across the street, from which the killer fired the fatal shot.
Dr. King had come to Memphis in support of a strike by Memphis garbage workers for better pay. He and his cohort, Rev. Ralph David Abernathy, checked in at the Lorraine in adjoining rooms. The motel was their customary lodging whenever they were in the city. They stayed at the Lorraine so frequently that motel staff and the guests jokingly referred to their rooms as the “King-Abernathy Suite.” Dr. King was staying in Room 306. At around 6:00, p.m., he was standing on the second-floor balcony, chatting about plans for supper with some friends in the parking lot below, when the rifle shot took his life.
People were not as security conscious in 1968 as they are now. Police were posted nearby, but they were there primarily to keep away anyone who approached on foot or by automobile. No one gave any thought to securing the shabby boarding house across the street. The killer, James Earl Ray, shot Dr. King using a .30-06 rifle with scope. He shot from the small, upper-right window in the building with the white door, about 100 yards from his target.
Ray had to stand in a bathtub in his boarding house bathroom, resting his rifle on a widow sill, to fire at his target. You can see the motel through the window. For a rifleman with a scope, the shot was not challenging.
Much of the museum is closed now for refurbishing, so most of the exhibits one sees now focus on Dr. King’s assassination. When the museum is fully open, however, it offers exhibits interpreting the entire scope of the civil rights movement. Visitors during the renovation are able to access the balcony, which includes a look into Dr. King’s room as it was the evening of the assassination.
Exhibits … The first picture below depicts the exhibit showing the rifle used by the murderer, his jacket, a box of ammunition, and some other items discovered in the investigation that linked him to the crime.
The story of Ray’s stalking and murder of Dr. King, and his subsequent international pursuit and arrest by the FBI, are captured in riveting detail in Hampton Sides’ book, Hellhound on his Trail, which I posted about here.
Deference to the Chancellor’s Findings of Fact
January 23, 2014 § 1 Comment
Language along the following lines opens the great majority of appeals from chancery court rulings:
“We employ a limited standard of review on appeals from chancery court. Miller v. Pannell, 815 So. 2d 1117, 1119 (¶9) (Miss. 2002). We will not disturb the factual findings of a chancellor so long as the chancellor’s findings were supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Biglane v. Under The Hill Corp., 949 So. 2d 9, 13-14 (¶17) (Miss. 2007). ‘We use a de novo standard when analyzing questions of law.’ Id.”
Indeed, that is the very language of the COA’s decision in the case of Legacy Hall of Fame, Inc., et al. v. Transport Trailer Service, et al., decided January 21, 2014. In that case, Judge Fair’s opinion for the majority affirmed the chancellor’s ruling denying Legacy’s claim that its officer was non compos mentis when he executed a contract for the corporation. Judge Fair stated in response to the appellant’s argument that the chancellor had failed to give proper weight to the testimony of its witness, Dr. White, on the issue of competence:
¶21. This Court’s “standard of review is indeed deferential, as we recognize that a chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So. 2d 138, 143 (¶18) (Miss. 2005) (citing Culbreath v. Johnson, 427 So. 2d 705, 708 (Miss. 1983)).
¶22. The chancellor made it clear in his bench opinion that he was considering Dr. White’s testimony. We find that the chancellor was not clearly erroneous in finding that Legacy Hall did not overcome the presumption of competency. Therefore, we affirm the chancellor’s decision.
That same day the COA handed down its decision in the case of Borden v. Borden, affirming a chancellor’s award of custody to Mr. Borden based on an Albright analysis. The appellant argued that the chancellor was in error in how he analyzed the Albright factors, and in how he reached his conclusions based on the proof. Judge Roberts, for the majority, explained:
¶16. The record clearly shows that the chancellor carefully weighed each Albright factor, and he acted within his discretion when he held that six of those factors favored Shannon, as opposed to only one that favored Mary Jane. Although reasonable minds could weigh the evidence and reach different conclusions, the chancellor did not abuse his discretion when he applied the Albright factors. The dissent would reverse the chancellor’s judgment and award Mary Jane custody of the children, thus rendering a judgment in Mary Jane’s favor. With utmost respect for the dissent, our standard of review does not include reweighing the evidence or substituting our opinion for the chancellor’s. It is the chancellor’s responsibility to “hear the evidence, assess the credibility of the witnesses, and determine ultimately what weight and worth to afford any particular aspect of the proof.” Tritle v. Tritle, 956 So. 2d 369, 373 (¶8) (Miss. Ct. App. 2007). “Even if we would have given greater weight to different testimony, so long as substantial credible evidence supports the chancellor’s decision, we will not substitute our opinion for the chancellor’s.” Id. The chancellor could have certainly found that Mary Jane was evasive during her testimony as an adverse witness. We find no merit to Mary Jane’s claim that the chancellor awarded Shannon primary custody of the children as a means to punish her for her inappropriate conduct with other men or her false allegations of child abuse. Thus, we affirm the chancellor’s award of primary custody to Shannon.
That is the way it is supposed to work: as long as the chancellor’s findings are based on substantial credible evidence in the record, they should be undisturbed on appeal if they are based on a correct application of the law.
The MSSC requires the COA to review the chancellor’s findings and to make a determination whether the chancellors’decision was supported by substantial credible evidence. That necessitates an examination of the record and scrutiny of the trial judge’s findings. But it does not mean that the appellate court becomes a second-line chancellor making its own conclusions on the facts. That is the chancellor’s job. You might keep that in mind the next time you’re confronted with the decision whether to take an appeal from a chancellor’s findings of fact.
A Complaint by any other Name …
January 22, 2014 § Leave a comment
This from the case of Cornelius v. Overstreet, 757 So.2d 332, 335 (Miss. App. 2000):
¶ 9. In addition, this Court would like to comment to the bar and the trial bench about cases similar in nature which fall within the purview of Rule 81(d) of the Mississippi Rules of Civil Procedure. The initiation of such actions should be by filing “complaints” or “petitions,” and “counterclaims” or “cross-claims” (whichever might be appropriate), not “motions” and “cross-petitions” as was done in this case. See M.R.C.P. 13, 81(d)(1-3), 81(f), and comments to 81(d)(3) and 81(f).
Here’s a link to a previous post that goes into greater detail.
Jane’s Law Blog
January 21, 2014 § 2 Comments
The observant among you will note that, a couple of weeks ago, I added a link over there on the right to a new blog, Jane’s Law Blog.
Jane Tucker of Jackson has undertaken this new blog to give us an in-depth look at cases before the COA and MSSC. She not only deals with opinions rendered, but gives a heads-up about issues percolating their way through the courts, oral arguments, and orders of the court.
Nowhere else that I know is such helpful background info available. Just this past weekend, for example, I learned from Jane that there is a circuit court appeal pending in which the MSSC is being called upon to determine the rules for authentication of Facebook posts, an issue about which there has been widespread uncertainty. I also learned, to my chagrin and sorrow, about the proposed suspension of a fellow chancellor.
I recommend that you add this blog to your regular reading. You will find material here that you won’t find anywhere else, and it could be of significant benefit to you in your practice.
The Better Chancery Practice Blog 