How You Draft the Judgment Can Screw up Your Case

December 2, 2014 § 3 Comments

Many chancellors, present company included, often direct attorneys to draft a judgment incorporating the court’s ruling.

As you can probably imagine, the quality of resulting judgments varies considerably. We sign them, however, unless they are egregiously flawed, in which case we send the lawyers scurrying back to their proverbial drawing boards.

Sometimes, though, a lawyer will catch the judge in a distracted or weak moment, and the judge signs a judgment that is — well — not suited to the task.

That is what apparently happened in the case of Weathers v. Guin, decided by the COA on November 18, 2014.

Scott Guin filed a complaint for custody modification against his ex, Regina Weathers, on June 4, 2013. On July 8, 2013, an order was entered awarding custody to Scott. The order did not cite what was the material change in circumstances upon which the modification was based. It did recite that both parties had appeared with counsel. It was approved as to form by attorneys for both parties.

Regina appealed, claiming that her attorney may have approved the order, but she never agreed to its terms. She also claimed that no hearing was held. Scott, on the other hand, represented that the court ruled after a one-day hearing, and the order was drafted by his attorney. He also said that the chancellor had made his ruling after interviewing both parties in chambers. Regina asked for a transcript of any proceedings, but there was none.

The COA reversed and remanded. Judge Irving, for the court:

¶17. “When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.” Marter v. Marter, 914 So. 2d 743, 746 (¶5) (Miss. 2005) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 2025 (¶19) (Miss. Ct. App. 2001)). “In determining whether a material change of circumstances has occurred, a chancellor should look at ‘the overall circumstances in which a child lives.’” McDonald, 39 So. 3d at 880 (¶37). “[A] chancellor’s failure to make specific findings as to each individual Albright factors is reversible error.” Davidson v. Colt, 899 So. 2d 904, 911 (¶18) (Miss. Ct. App. 2005) (citing Powell v. Ayars, 792 So. 2d 240, 249 (¶18) (Miss. 2001)).

¶18. Generally, absent a record indicating otherwise, we assume that a chancery court’s order was based on adequate evidence. See Thompson v. Miss. Dep’t of Human Servs. ex rel. Surber, 856 So. 2d 739, 741 (¶8) (Miss. Ct. App. 2003). Additionally, an appellate court “will not reverse a [c]hancery [c]ourt’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings.” Bryan v. Holzer, 589 So. 2d 648, 658 (Miss. 1991) (citing Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)).

¶19. Here, the record reveals that in the modification order, the chancery court completely failed to identify a material change in circumstances warranting modification before finding that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set out[.]” The remaining provisions of the order concern child support, financial obligations of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the chancery court failed to identify a material change in circumstances warranting custody modification, the modification order is insufficient for us to determine the chancery court’s basis for the custody modification. Moreover, the chancery court failed to make specific findings as to each individual Albright factor. Accordingly, we reverse the modification order as to the custody modification and remand for further proceedings.

Of course, since the chancellor signed the order, he draws the criticism. But what was the lawyer who drafted it thinking? The moral of this aspect of the story is to load your order or judgment with every conceivable finding and recitation that you can justify based on what happened. That means a finding of a material change in circumstances with fact-finding as to what changed, and a finding of adverse effect with a description of what the effect was. It means particular Albright findings. And it means a conclusion as what is in the children’s best interest. There must also be a recitation of subject matter and personal jurisdiction and what kind of proceedings were held. If you don’t cram all that in, your client could wind up like Regina and Scott — a lot poorer and back at the starting blocks.

Another moral of this sad tale is that there are really only two bulletproof ways to arrive at a judgment in a case: One is to negotiate and arrive at an agreed judgment, signed by the attorneys and the parties; and Two, to have a hearing on the record and let the judge make a ruling. Other paths may appear to be beguilingly more convenient, quicker, less troublesome, and easy, but they are all fraught with peril.

§ 3 Responses to How You Draft the Judgment Can Screw up Your Case

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