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