Three Cases of Note

June 30, 2014 § Leave a comment

The MSSC handed down three decisions in the past year or so that will significantly change your practice. You need to take note of each of them and study how you can use them to your client’s advantage or defend against their operation in cases you are handling.

The first case is Collins v. Collins, handed down May 9, 2013. This is the case that said, once and for all, that the demarcation line for valuation of assets in a divorce is to be determined by the chancellor, based on the facts in the case.

Why is this case significant? Because it expressly overrules the COA decision in Pittman v. Pittman that laid down the rule that entry of the temporary judgment was a bright line where accumulation of marital asset value ceased.

How can you use this case to your client’s advantage? Look at values and find the date to your client’s advantage, and then have your client testify why the judge should select the preferred date. For example, if your client’s 401(k) has greatly appreciated in value over the course of the litigation, pick an early point and develop proof about why that is the most equitable date. And vice versa for the other side.

A previous post about Collins is here.

The second case is Sanford v. Sanford, decided October 31, 2013. Sanford  finally puts an end to the practice of dictating into the record consents to divorce and property settlement agreements in irreconcilable differences divorces. MCA 93-5-2 specifically requires written agreement, and a verbal acquiescence, even on the record, will not do the job.

Why is this case significant? It marks the demise of Bougarde v. Bougarde, the lone case in which the practice had been okayed. Bougarde gave rise to uncertainty among many judges and lawyers as to whether and when a settlement announcement might pass muster as a final agreement.

How can you use this case to your client’s advantage? Bring a laptop computer to court with you and be ready to capture a settlement in the form of a written agreemment. You get to do the drafting, which means that you get to choose the language. You will have the advantage over the dinosaurs who still don’t know what a laptop (computer) is.

A previous post about Sanford is here.

The third case is Huseth v. Huseth, rendered April 10, 2014. In this case, the MSSC returned to the principle that the child support statutory guidelines are just that — guidelines — and that it is up to the chancellor to set child support after first addressing the factors set out in Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss. 1992).

Why is this case significant? In a long line of cases since 1992, our appellate courts have applied the child support statute as mandatory, and cases that deviated without the proper finding of basis for deviation were reversed. Huseth says that before looking to the statute the chancellor must first consider and address the Gillespie factors. The statute then supplies a guideline for the judge to apply his or her discretion. As a practical matter, I think most judges will follow the guidelines. But that’s not a sure thing post-Huseth.

How can you use this case to your client’s advantage? Be sure to put on proof of the Gillespie factors. Make sure your client’s 8.05 is credible, because it’s unlikely that chancellors are going to take it at face value that your client really is going $800 in the hole every month so that he can’t afford to support his children. You might hear the judge advise your client to quit smoking and drinking, sell his truck, and cut off his cable and internet service so that he can pay child support.

A previous post about Huseth is here.

R I P Walter W. Eppes

June 27, 2014 § Leave a comment

of Meridian. June 25, 2014.

Family Law CLE

June 27, 2014 § Leave a comment

As I’ve said before, I’m not in the business of promoting anybody’s products or services. I am, however, in the business of trying my best to improve chancery practice in Mississippi.

One of the best ways to improve your family law practice is to attend Professor Debbie Bell’s CLE seminar every year. I do, without fail, and I find it to be the most instructive, useful seminar on Mississippi family law that you can attend. The program focuses on key family law cases over the past year, with emphasis on how they impact your practice. I guarantee that you will come away with a set of case material that you will use through the year in your practice, as well as several ideas that will help you with cases you are handling right now.

For more info, or to register, go to www.msfamilylaw.com.

This year’s dates and locations:

Friday, July 18, 2014, at Mississippi Sports Hall of Fame and Museum in Jackson.

Friday, July 25, 2014, at Oxford Conference Center in Oxford.

Friday, August 1, 2014, at Imperial Palace in Biloxi.

How I Handle GAL Appointments

June 26, 2014 § 3 Comments

One of the things I swore that I would address as soon as I took the bench was the disorganized state of GAL appointments in our district.

At the time — this was before GAL certification was required — there was no uniformity in qualifications, requirements or expectations. Most appointees had no clue what they were supposed to do. Written reports were seldom filed. Months of inaction would be compounded by months of inattention. A GAL-appointment order typically said no more than that the individual was appointed. No deadlines, no specification of what duties were required. No delineation of the GAL’s role.

So I crafted an order that spelled out exactly what the GAL’s role would be, and what the GAL was authorized to do. I set a deadline for a written report, and always set a conference with the attorneys shortly afterward, to see whether or not the report will settle the case.

One feature of my approach is that I appoint the GAl to serve as a special master per MRCP 53. Your judge may reject that approach, but it has worked well here.

Below is a generic form of the order. I am providing it to you in case you might find it useful in your own cases if your chancellor lets you prepare the order (I insist on doing my own). Here it is:

ORDER APPOINTING

GUARDIAN AD LITEM

This civil action came before the court on the motion of plaintiff for appointment of a guardian ad litem. The court now finds that appointment of a qualified guardian ad litem is required to protect the best interests of the minor child named herein, due to allegations of neglect, pursuant to Section 93-5-23, Mississippi Code 1972, as amended.

Now, therefore, it is

ORDERED AND ADJUDGED as follows:

1. Jane Doe, Esq., is hereby appointed as guardian ad litem to serve as a special master under Rule 53, MRCP, to investigate and report to the court as to the interests of the minor children: Stu Smith, born May 23, 2012; Sue Smith, born August 21, 2005; and Lou Smith, born February 7, 2009. The Court finds that the said Jane Doe has completed the requisite training and is otherwise qualified, without interest adverse to the minor children herein. The Court has adequately instructed the said Jane Doe on the proper performance of her duties.

2. The guardian ad litem is hereby ordered and directed to investigate, make recommendations to the Court and enter reports as to the best interests of the minor children.

3. The guardian ad litem is hereby authorized and empowered to review and copy any and all records, including, but not limited to, educational, medical, psychological and psychiatric records, financial and banking records of every kind and nature, any protective service reports and/or contacts, pertaining to the aforesaid minor children, all of which information shall be maintained as confidential by the guardian ad litem, except upon further order of this court. A certified copy of this Order shall be presented by the guardian ad litem to all third parties from whom information is requested, and shall serve as authority to release such information to the guardian ad litem.

4. The guardian ad litem is expressly authorized to communicate directly with each party in this case, and shall not be required to communicate through counsel. The guardian ad litem is directed to send a copy of all correspondence with each party simultaneously to that party’s counsel of record.

5. Each party is hereby ordered and directed to provide the guardian ad litem, in writing, within five (5) days of the date of this Order, with the following information:

a. A brief statement of the party’s position on the issues of child custody, placement and support;

b. A copy of each document in the party’s possession upon which the party relies to support the party’s position on child custody, placement and support, including, but not limited to, psychological or other professional reports or records;

c. A list of all witnesses, including, but not limited to, medical and mental health professionals, who have information supporting the party’s position on child custody, placement and support, providing for each the name, address and telephone number;

d. A list of the party’s employers for the preceding five (5) years, together with a statement of the work performed, hours and days regularly worked, and gross and net pay.

e. A list of all counsellors, psychiatrists, psychologists and other mental health professionals with whom the party and/or the minor children have consulted within the past five (5) years;

f. A list of each street address at which the party has resided within the past five (5) years;

g. The names, addresses and telephone numbers of three (3) references, other than relatives, with whom the guardian ad litem may discuss the party’s parenting ability and relationship with the minor children.

6. Each party is hereby ordered and directed to cooperate fully with the guardian ad litem and to provide the guardian ad litem with truthful, accurate information promptly when requested to do so. This is a continuing order for disclosure, and the court may refuse to allow the introduction into evidence of information that was not provided to the guardian ad litem contrary to this Order, unless good cause is shown.

7. The guardian ad litem is hereby specifically vested with all powers set out in MRCP 53(d) and (e).

8. The guardian ad litem is hereby ordered and directed to file a written report with the Chancery Clerk of _______________ County, Mississippi, including recommendations as to the best interest of the minor children with respect to custody. The report shall be filed with the clerk and simultaneously served on all parties on or before the _____ day of _________________, 2014. The guardian ad litem’s report shall address at least the following items, subject to any conditions imposed by the court:

a. Interviews with the minor children, specifying where and when conducted, and under what conditions;

b. Interviews with parents;

c. Interviews with siblings;

d. Interviews with school or day care officials and personnel;

e. Interviews with social workers;

f. Interviews with church and community contacts;

g. Copies of all pertinent documents and reports that are not confidential;

h. A review of the physical evidence;

i. Review of financial status, if the children has income or any interest in property;

j. Narrative of personal observations of the children alone, with parents, and at school or in other contexts outside the home.

IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to MRCP 53(g)(2), counsel for the parties, or any unrepresented party, are directed to serve any written objections to the guardian ad litem’s report on the guardian ad litem and counsel opposite within ten (10) days of service of the guardian ad litem’s report.

IT IS FURTHER ORDERED AND ADJUDGED that the guardian ad litem’s report, along with any written objections timely filed shall be admitted into evidence and considered by the court on hearing of this matter.

IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff, as moving party, is hereby ordered to deposit with the court the sum of $1,500 on or before the 30th day of June, 2014, as a deposit against the fees incurred for the guardian ad litem’s services. Allocation of the guardian ad litem fees between the parties shall be adjudicated in the final judgment in this case.

IT IS FURTHER ORDERED AND ADJUDGED that this matter is set for a status conference with the court on the _____ day of ____________________, 2014, at ______, ___.m., and all counsel and parties are ordered to be and appear before the Chancery Court of Lauderdale County, Mississippi, in the Lauderdale County Court House in Meridian, Mississippi, for a conference on said date at said time, or as soon thereafter as the matter may be taken up.

SO ORDERED AND ADJUDGED this the day _____ day of ________________, 2014.

Notice that the report shall be introduced. That feature puts the burden on the judge to spell out if there are parts of it that the judge did not rely on or find to have probative weight, such as hearsay. And it does not preclude objections. But it does allow for the GAL’s conclusions and recommedations to be put before the court.

As they say about the speed limit in Italy, this is merely a suggestion. You may find parts of it fit your situation exactly, while other parts just won’t work.

June 25, 2014 § 1 Comment

Summer School for Lawyers in Destin.

June 24, 2014 § Leave a comment

Summer School for Lawyers in Destin.

June 23, 2014 § Leave a comment

Off to Summer School for Lawyers in Destin.

See you there.

More Dispatches from the Farthest Outposts of Civilization

June 20, 2014 § 1 Comment

062014a 062014b 062014c 062014d 062014e

Reprise: How to Ensure that Your Case Survives MRCP 41(d)

June 19, 2014 § 4 Comments

WHEN RULE 41(D) COMES KNOCKING AT YOUR DOOR

September 8, 2010 § 8 Comments

Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …”  that the case will be dismissed for want of prosecution.  The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.” 

You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time.  The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery.  In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine.  Until the next week, when you find your case was dismissed despite your efforts.  What went wrong?

In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed.  The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed. 

There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case.  The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor.  The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit.  Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.

The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path.  ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.

If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either:  (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires.  Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.

Caveat:  Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court.  It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year.  It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.

Comment:  The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit.  Statutes of limitation are not as often a concern in Chancery.  For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation.  It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.

2014 Comment … in this district, we require the clerk to bring us every response filed to a R41(d) notice. If the response des not have the effect of advancing the case on the docket, I enter an order instructing the attorney of the duty to do so and extend the dismissal date for a time, usually 30 days. If no action is taken, or the response still does not advance the case on the docket, I dismiss. The point is that a mere “Notice to keep case on the docket,” or “Request not to dismiss” will not do it. You have to show the court some evidence that the case still has signs of life.  

When is Temporary Relief Available in Family Law Cases?

June 18, 2014 § 5 Comments

I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?

Let’s look at family law.

Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:

The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.

Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.

Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:

Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.

Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?

It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.

But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.

I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.

Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.

Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.

Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.

When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.

I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.

This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.

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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.

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