What it takes to Prove Habitual Drunkenness

December 11, 2014 § 9 Comments

Nikki Lee charged her husband, Chris, with habitual drunkenness. The chancellor found the proof supported the claim, and granted her a divorce on that ground. Chris appealed.

In Lee v. Lee, decided by the COA on November 25, 2014, the court affirmed the chancellor:

¶6. Chris asserts that it was error for the chancellor to grant Nikki a divorce on the ground of habitual drunkenness. Chris argues that Nikki did not meet her burden in proving habitual drunkenness. Alternatively, Chris argues that Nikki’s knowledge of his drinking habits prior to their marriage barred the suit.

¶7. On appeal, Chris argues the chancellor erred in finding sufficient grounds for divorce. “A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial.” Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011).

¶8. In Sproles v. Sproles, 782 So. 2d 742, 744-45 (¶¶4,7) (Miss. 2001), the court found that the husband’s habit of drinking a case of beer each night, which caused him to become abusive and critical, constituted grounds for divorce under habitual drunkenness. On the other hand, in Culver v. Culver, 383 So. 2d 817, 817-18 (Miss. 1980), the court found that the husband’s habit of drinking four to five beers a night that did not negatively impact the marriage failed to support a divorce under habitual drunkenness.

¶9. At trial, Nikki testified that Chris often made negative comments about her weight. While drunk once, Chris told Nikki that he only finds her attractive and wants to have sex with her when he is intoxicated. On a separate occasion, Chris woke Nikki by urinating on her leg, and, when Nikki protested, Chris started laughing. Chris testified that he had never heard of this incident until trial. On another night, Chris and Nikki got into an argument, and Chris took Will into the house so Nikki could cool off outside. When Nikki decided to go back inside, she found the door locked. After she called Chris and knocked on the door with no answer, she was forced to crawl inside through a back door. She found Chris passed out on their waterbed, with Will face down and wedged between the corner of the bed.

¶10. Nikki testified that Chris often drank five to six beers per day. Chris worked offshore for extended periods of time. When he would return home, he would always have alcohol in his hand. Nikki also testified that on several occasions, Chris would pass out drunk and not remember anything that happened. Finally, Nikki testified that being with Chris after awhile made her depressed, and when they separated, she felt happy again.

¶11. Chris contends that he did not drink as much as Nikki claimed he did. He argues that because Nikki’s testimony was not corroborated by any other witness, it is “wildly inconsistent at best.” However, Nikki’s father, Thomas Godleske, testified that on an icefishing trip Chris drank so much that he passed out in a stranger’s vehicle. Further, Chris testified that he continued to drink at the time of the trial.

¶12. Where there is conflicting testimony, the chancellor is the trier of fact and adjudicates the credibility of each witness. Bowen v. Bowen, 982 So. 2d 385, 395 (¶42) (Miss. 2008). “An appellate court is to affirm findings of fact by chancellors in domestic cases when they are ‘supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’” Robison v. Lanford, 841 So. 2d 1119, 1122 (¶9) (Miss. 2003) (quoting Holloman v. Holloman, 691 So. 2d 897, 898 (Miss. 1996)).

¶13. In review of the record, we find that the chancellor had sufficient evidence to grant Nikki a divorce on the ground of habitual drunkenness: Chris’s alcohol consumption, combined with the negative impact it had on the family, and his continued drinking at the time of trial. Additionally, the chancellor, as the trier of fact, was in the best position to determine each witness’s credibility and to weight the conflicting testimony. Because the evidence supports the chancellor’s findings, we find that he did not commit manifest error in his findings on this issue.

The corroboration in this case seems to be on the weak side, yet it was strong enough to convince both the chancellor and the COA. The state of corroboration highlights an important consideration: Habitual drunkenness is not an easy case to prove because the offending behavior takes place in the privacy of the couple’s home, with few, if any, witnesses other than the parties. The task is made more difficult by the fact that the burden of proof is by clear and convincing evidence.

Negative impact on the other spouse and the resulting havoc on the household are key items of proof. Don’t fail to gather witnesses who can help establish those points.

And don’t overlook that habitual use of alcohol that induces nasty behavior, even without drunkenness, can be HCIT if it has a negative effect on the offended party.

Splitting the Baby

December 10, 2014 § 1 Comment

It is fundamental that a judgment rendered by a court without subject matter jurisdiction is void. Not voidable, but void ab initio. Therefore, it is critical for a court to ensure that it has subject matter jurisdiction before it proceeds to final judgment.

The MSSC confronted this principle in the case of Bronk v. Hobson, handed down December 4, 2014, in which the court was called upon to decide whether, in 1999, the County Court had jurisdiction to award custody in a paternity action. In a 5-4 decision the court ruled that county courts did not have such jurisdiction in 1999, and that, therefore, the 1999 judgment awarding custody was void.

Before going further, I have to note that the MSSC’s ruling directed that the case be transferred to Chancery Court. Since this is a Lauderdale County case, the court’s holding might result in the case being assigned to me, so I am limiting my comments to the jurisdictional questions in child custody cases in general, and am making no comment on the merits of the custody case between these parties in particular.

Chancery court jurisdiction is created by the Mississippi Constitution, which vests “full jurisdiction” over minor’s business in chancery courts. County court jurisdiction is created by MCA 9-9-21, which vests the county courts with ” … jurisdiction concurrent with … chancery courts in all matters of … equity wherein the amount of value of the thing in controversy is $200,000 or less … ”

The majority in Bronk decided that county court jurisdiction derived from 9-9-21 rests on matters only for which the value can be quantified in terms of dollars. The value of child custody matters can not be determined monetarily, so county court lacks jurisdiction.

The dissent took the opposite tack, arguing that since the value of child custody is not quantifiable, it is zero, which is less than $200,000, and, therefore, is within county court jurisdiction.

As between the two radically different approaches, the majority actually represents the reality of how county courts have traditionally exercised jurisdiction in equity matters. That’s because there are two sources of county court jurisdiction: one is 9-9-21; the other is specific grants of jurisdiction such as the statute authorizing county courts to adjudicate paternity and its 2013 amendment that conferred jurisdiction on county courts ” … for the enforcement of orders awarding custody … ” in paternity matters. In my experience, county courts have limited their exercise of concurrent equity jurisdiction to matters specifically granted by statute. That’s why you don’t see divorces being granted, or adverse possession being decreed, or estates and guardianships being administered, in county court. Thus, by practice, 9-9-21 has not been applied as a blanket grant of concurrent jurisdiction with chancery court.

The practice reflects the legislature’s approach. If the legislature had intended 9-9-21 to be a sweeping grant of co-jurisdiction with chancery court in all matters without regard to money value, then why did the legislature go to the trouble to amend the paternity statute to grant jurisdiction to county courts over what had been up to that point a purely chancery matter? If 9-9-21 were authority enough, then the statute was unnecessary. The same holds true with the 2013 amendment. I think the answer is that county court is purely a creature of statute, and its jurisdiction, which is not constitutionally derived, as is chancery’s, must be defined by the legislature. The legislature recognizes this, and defines that concurrent jurisdiction by express and specific statutory grants.

A legitimate concern of the MSSC is to construe legislation in such a way as to clarify the law so as to eliminate uncertainty and ambiguity. In my opinion, the majority and dissent in Bronk lead to different results in this regard.

  • The majority opinion in Bronk makes it clear that county courts lacked jurisdiction over child custody in paternity actions before the 2013 amendment. It offers the clarification that county court’s concurrent jurisdiction is limited to matters that can be monetarily quantified.
  • The dissent opens the door to the possibility that any chancery matter can be brought in chancery or county court, since it says that adjudications like custody determination are within the county court’s $200,000 limit. The dissent does not limit its scope to custody solely to paternity actions. Any matter that can not be quantified would fall within the $200,000 limit. That would, in essence, extend county court jurisdiction to all other chancery matters, because almost all chancery relief can not be calculated in terms of dollars. True, monetary relief is granted in chancery, but much of the relief has no dollar value. What, for instance, is the exact dollar value of the grant of a divorce, or an adoption, or the determination of a landline dispute, or confirmation of title, or adverse possession, or confirmation of title, or a guardianship of the person only, or a determination of heirship, or grandparent visitation, or a mental or drug commitment? And these are but a few examples. How do we determine their value so as to make that subject-matter-jurisdiction determination? Is each case evaluated separately? To open that door would be to create the possibility of endless arguments over jurisdictional limits and which court is most appropriate. It would encourage forum shopping. It would create uncertainty and embed questions about subject matter jurisdiction in every case, increasing the numbers of appeals. None of these type cases have ever, to my knowledge been heard in county court. We have to ask ourselves whether all of these kinds of cases should be brought in county court I the first place? Is that what is best for litigants? Our court system has never operated that way in my experience. And experience is a good teacher. What has worked well over time often proves to be the best approach.

The majority opinion offers more certainty as to where subject matter jurisdiction lies than does the minority. Subject matter jurisdiction should have clear and unquestionable lines drawn. Lawyers and judges should not have to guess about whether the court does or does not have jurisdiction. It does no one any good to litigate a matter only to have it set aside 15 years later — as in Bronk — for lack of jurisdiction. For that reason, the appellate courts should always lean toward what makes the jurisdictional boundaries between our courts as unquestionable and clear as possible. We already have a dichotomy of case law on the boundary between chancery and circuit that should not be further compounded with confusion between chancery and county.

Justice Waller’s separate opinion makes the practical point that it is “nonsensical and contrary to the intent” of the paternity statute for a court to be able to adjudicate paternity, and yet be unable to adjudicate custody in the same action. Yet, the MSSC already ruled out that approach in Griffith v. Pell, 881 So.2d 184, 187-188 (Miss. 2004), when it affirmed that COA’s ruling that paternity cases are not to be used as a forum for custody determinations.

Finally, I think it needs to be taken into consideration that child custody is a weighty matter. The cases  are too numerous to mention in which our appellate courts have acknowledged the complex, difficult, and close questions that chancellors must resolve in determining the issue of what is in the best interest of a child. Resolution of custody issues involves analysis of the Albright factors in original cases, analysis of material change, adverse effect, and best interest with Albright analysis in modifications, and a determination of application of the natural parent presumption in third-party custody cases. Habeas corpus, visitation, grandparental visitation, child support, and joint-custody arrangements are other matters that are affected by custody determinations. Chancellors have developed considerable expertise over the years in all of these matters, and understand how serious and life-affecting are such decisions. Why should we want to burden other courts with that responsibility when we already have a wealth of wisdom and expertise on that subject and so many others like it in our chancery courts?

It remains to be seen how the high court will interpret and apply the language of the 2013 bill granting county courts jurisdiction ” … for the enforcement of orders awarding custody … ” in paternity actions. That language is not entirely unambiguous to me. Until then, this Bronk decision is a welcome beacon of certainty for trial courts and lawyers navigating in the shoal waters of jurisdiction between the two courts.

Affirmative Defenses in Divorces

December 9, 2014 § Leave a comment

MRCP 8(c) requires that you plead in your responsive pleadings any matters that constitute “an avoidance or affirmative defense.” Specifically listed in the body of the rule are matters such as statute of limitations, accord and satisfaction, res judicata, etc.

Some of those listed defenses may be available in chancery matters such as contract disputes, land matters, and business dissolution, but they have no application in divorce, as I posted here before; nonetheless, some lawyers plead them in mechanical fashion, raising some humorous implications.

In a divorce case, there are some well-established affirmative defenses to grounds for divorcethat are not listed in R8, but that need to be pled in order to invoke them. They include:

  • Prior knowledge. This applies where the spouse knew, for instance, that the wife was pregnant by another man when he married her, and yet married her anyway. Or that the wife knew before the marriage that the husband was a drug addict, and went ahead with the marriage despite the knowledge.
  • Ratification and condonation. Two closely related concepts. A party gives up a ground by continuing to live with the other after knowledge of fault. These defenses have somewhat limited application in HCIT.
  • Recrimination. An archaic defense no longer favored in our law, by which the proponent may be denied a divorce if he is guilty of a ground for divorce.
  • Reformation. Applicable primarily in habitual drunkenness and drug use cases, where the accused party has quit abusing the substance.
  • Connivance and collusion. Where the parties have conspired either for one to allow the other’s wrongful conduct so as to create a ground, or where the parties have agreed to perjure themselves to do so.
  • Res judicata. Same parties and same issues in a previous matter that was reduced to a final judgment.

A comprehensive look at these and several lesser-known defenses is found in Professor Bell’s Mississippi Family Law, 2d Ed., § 4.03, pp. 99-104. If you practice any family law, and you don’t have a copy of her definitive treatise, you need to get one asap.

The clear and obvious thread running through the affirmative divorce defenses listed above is that they each are “an avoidance or affirmative defense” to a ground for divorce.

If you fail to plead affirmative defenses to grounds for divorce on behalf of your client, the only way you may present them at trial is if they are tried by consent. If, on the other hand, the other side objects, the judge will have to sustain the objection and exclude the testimony.

In the case of Lee v. Lee, decided by the COA on November 25, 2014, Nikki Lee charged her husband, Chris, with habitual drunkenness. He did not plead any affirmative defenses, but at trial he attempted to put on proof that Nikki knew when she married him of his drinking habits. Nikki objected, and the chancellor excluded the evidence, ruling that Chris had waived the defense by not pleading it affirmatively. Chris appealed.

Judge Griffis, for the unanimous court:

¶15. Condonation or antenuptial knowledge, as affirmative defenses, must be specifically pleaded or else the defenses are waived. Carambat v. Carambat, 72 So. 3d 505, 511 (¶27) (Miss. 2011) (citing M.R.C.P. 8(c); Ashburn v. Ashburn, 970 So. 2d 204, 212 (¶23) (Miss. Ct. App. 2007)). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. 2d at 212 (¶23) (quoting Goode v. Village of Woodgreen Homeowners, 662 So. 2d 1064, 1077 (Miss. 1995)).

¶16. Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. However, parties may try an affirmative defense through implied consent. Mississippi Rules of Civil Procedure 15(b) provides:

When issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon the motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

See also Lahmann v. Hallmon, 722 So. 2d 614, 691 (¶15) (Miss. 1998).

¶17. In his order, the chancellor found that Chris had waived the affirmative defense of condonation, because he did not plead it as an affirmative defense. The chancellor ruled:

“Chris did not plead condonation as a defense in his pleadings. Therefore, to the extent that Chris may have been attempting to raise a defense of condonation, the Court finds that this defense has been waived.” The chancellor did not address a defense of antenuptial knowledge or if the parties tried condonation by express or implied consent.

¶18. From the record, there is no indication the parties agreed to try condonation or antenuptial knowledge by express consent. Therefore, the question remains whether the parties tried the issue through implied consent. While issues not raised in the pleadings may be tried by implied consent, the party relying on implied consent for an issue must demonstrate certain requirements.

¶19. First, in order to find the parties tried the issue by implied consent, this Court must determine if the parties knew “‘that a new issue was being litigated at trial.’” Mabus v. Mabus, 890 So. 2d 806, 814 (¶32) (Miss. 2003) (quoting Setser v. Piazza, 644 So. 2d 1211, 1217 (Miss. 1994)). Further, this Court will not find implied consent “where the ‘questions asked or the evidence presented at trial are relevant to the issues actually raised in the pleadings.’” Id. (citation omitted).

The court went on to analyze the record, and concluded that the issues had not been tried by implied consent, and the chancellor’s ruling was affirmed.

Next time you represent a Chris in a case similar to this, be sure to assert in your responsive pleading every matter you feel may raise a legitimate affirmative defense. I say legitimate because it seriously detracts from your credibility to plead things like accord and satisfaction, or assumption of risk, or injury by fellow servant in your answer to a divorce complaint. But it makes perfect sense to spell out with whatever label you apply that the other party had pre-marriage knowledge, or that he condoned the conduct, or any other matter that legitimately constitutes “an avoidance or affirmative defense.” You are not limited to the classic defenses, but the matter must be an actual, arguable defense.

If you represent a Nikki, object vociferously to any attempt to put on proof of unpled defenses. Protect your record. In this case, Nikki’s attorney protected her record, and the outcome was favorable to Nikki.

The Judge as Grand Inquisitor

December 8, 2014 § 1 Comment

Some judges sit through a trial impassively, leaving counsel to wonder whether hizzoner is paying any attention at all. Other judges take an active part, hurling questions like shrapnel through the courtroom. Still other judges fit somewhere in between the two extremes.

It’s a phenomenon I’ve posted about before here and here.

In the COA case SKL Investments v. Hardin and Torrence, decided November 18, 2014, the appellant charged that the chancellor erred when he “continually mischaracterized testimony [and] interrupted and veraciously ‘crossed’ [SKL’s] witnesses while protecting other witnesses in a manner that hindered [SKL’s] development of its case[.]” [My emphasis] I will leave it up to the reader to look up the definition of ‘veraciously.’

So, did the learned chancellor cross a line in his interrogation in this case? No, said the court, in an opinion penned by Judge Irving:

¶16. … While the record reveals that the chancery court interrogated witnesses and even sometimes interrupted witnesses as they testified, a contextual reading of the record also reveals that the chancery court did not “overstep[ ] its judicial authority” as SKL now claims.

¶17. The chancery court was within its right to “interrogate witnesses, whether called by itself or by a party.” Powell v. Ayars, 792 So. 2d 240, 248 (¶29) (Miss. 2001); see also M.R.E. 614(b). Certainly, it would have been “‘grounds for reversal if the [chancery court had] abuse[d] the authority to call or question a witness[,] abandoning [its] impartial position as a judge and assuming an adversarial role.’” Copeland v. Copeland, 904 So. 2d 1066, 1074 (¶27) (Miss. 2004) (citing Powell, 792 So. 2d at 248 (¶29)). However, “there [was] no requirement for the [chancery court] solely to be a silent observer.” Copeland, 904 So. 2d at 1074 (¶28) (citation omitted). After reviewing the record, we find that the chancery court did not abuse its discretion in its examination of the witnesses. This issue is without merit. Accordingly, we affirm.

There is the oft-cited apocryphal tale of the chancellor who interrupted and took over questioning of a witness, only to be interrupted in turn by counsel, who pleaded, “Judge, I don’t mind you questioning the witness, but please don’t lose the case for me.”

Another point: if you’re going to accuse the judge of going overboard, at least use an adverb that fits the conduct.

“Quote Unquote”

December 5, 2014 § 1 Comment

“God is striving with us. God is present, whether you just lost your mother to pancreatic cancer or your country just killed people at a wedding party in Yemen. God went to the camps, and God was lynched and shot and tortured. And God is still loving. It’s not our job to read Isaiah and then go sit at Starbucks and talk about what a sad place the world is. It is our job to collaborate with each other and activate that love.”  — Rev. Lynice Pinkard

“Remember as you go about your day that you may be the only Jesus some of your friends, neighbors, and family will ever see.”  —  Wanda Brunstetter

“Do all the good you can, by all the means you can. In all the ways you can. In all the places you can. At all the times you can. To all the people you can. As long as you ever can.”  —  John Wesley

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Divorce Defendant in Default

December 4, 2014 § Leave a comment

Larry Bolivar filed for divorce from his wife, Teresa, on February 19, 2013. She was served with process on March 21, 2013. The R4 process was in the usual form that included the admonishment to file an answer within 30 days, or the relief requested could be granted.

On May 8, 2013, Teresa had filed no response to the divorce complaint, and Larry appeared in court and presented his case. The chancellor granted him a divorce from her.

In June, 2013, Teresa filed a motion to set aside the divorce, an answer denying the allegations of the complaint, and a counterclaim for divorce. In her motion to set aside the divorce, she complained that she had not been properly served with a summons or notice of hearing for the May 8, 2013, proceeding.

At the hearing on her motion to set aside the divorce judgment, Teresa acknowledged that she had been served with process on the complaint, and the judge found on that point that she had been served with process. As to her argument that she should have been given notice of the May hearing, the chancellor denied the motion on the basis that her failure to file an answer precluded her from asserting that claim. Teresa appealed.

On appeal, Teresa raised for the first time the issue whether Larry should have had her declared to be in default per MRCP 55 before proceeding against her.

In the case of Bolivar v. Bolivar, decided November 25, 2014, the COA affirmed the chancellor’s rulings. Judge Ishee wrote the opinion for the court.

On the issue of whether Teresa was entitled to notice, pursuant to MRCP 5, of the May hearing, the court said this:

¶11. Rule 5(a), in pertinent part, provides that “every written notice . . . shall be served upon each of the parties.” Nonetheless, Rule 5(a) also states that “[n]o service need be made on parties in default for failure to appear[.]” At the hearing regarding Teresa’s motion to set aside the divorce judgment, Teresa testified that she was served properly with process. Although she contends that she had obtained an attorney whom she believed was handling her case, the record does not reflect that any action was taken on her behalf in the thirty days following her receipt of the summons. As such, she was in default for failing to answer or appear. Nonetheless, Teresa argues that she was not properly declared in default pursuant to Rule 55.

As to whether she was properly declared in default per MRCP 55:

¶12. Rule 55 governs default judgments, and provides that when a party “has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.” M.R.C.P. 55(a). However, “[i]f the party against whom judgment by default is sought has appeared in the action, he [or his representative] shall be served with written notice of the application for judgment at least three days prior to the hearing of such application[.]” M.R.C.P. 55(b). Teresa contends that Larry should have applied for an entry of default with the chancery clerk or applied for a default judgment in the chancery court. She maintains that his failure to declare her in default meant that she was not in default and his duty to serve her notice remained intact. As such, she argues that the judgment in his favor is void. We disagree.

¶13. This rule is “not directly applicable” to divorce proceedings. Stinson v. Stinson, 738 So. 2d 1259, 1262 (¶12) (Miss. 1999). Specifically, the Mississippi Supreme Court has held that a judgment entered in an action for divorce following a defendant’s failure to answer is “a special kind of default judgment.” Id. at 1263 (¶13) (quoting Mayoza v. Mayoza, 526 So. 2d 547, 548 (Miss. 1988)). A defendant’s failure to answer does not drag a divorce case to a halt. Instead, the plaintiff must, at a hearing, prove the allegations that support the receipt of a divorce. If that is done, then the chancellor has authority to grant the divorce despite the absence of the defendant. Id. at (¶15). This reasoning is supported by Rule 55(e), which provides that “unless the claimant establishes his claim or rights to relief by evidence,” a default judgment will not be entered in a suit for divorce. “Furthermore, a divorce will not be granted on the uncorroborated testimony of the claimant.” Lindsey v. Lindsey, 818 So. 2d 1191, 1194 (¶13) (Miss. 2002).

¶14. Since Teresa failed to answer or appear, we find that she was in default and not owed notice of the divorce hearing. Further, after a review of the record, we find that Larry established his claim to a judgment of divorce despite Teresa’s absence. Larry’s testimony, in addition to the corroborating testimony of Parker, clearly established a divorce on the grounds of desertion. As such, we find this issue is without merit.

Note that if the defendant does enter a timely appearance, and then stops participating, you must give the defendant notice of further proceedings per R5.

Directed Verdict vs. Involuntary Dismissal

December 3, 2014 § 4 Comments

Juries render verdicts. Judges in bench trials render judgments.

Thus, the proper motion after the plaintiff has rested in a jury trial is a motion for a directed verdict, per MRCP 50(a).

In a bench trial, which includes 99.9% of chancery matters, the proper motion is one for an involuntary dismissal, per MRCP 41(b), which states:

… After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence …

In the case of SKL Investments v. Hardin and Torrence, handed down November 18, 2014, the COA said this:

¶12. “[T]he appropriate motion in a case tried without a jury is not a motion for [a] directed verdict, but involuntary dismissal, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure.” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). “When reviewing a dismissal under . . . Rule . . . 41(b), we will not overturn the decision of [the chancery court] if [its] findings are supported by substantial evidence unless [the chancery court] abused [its] discretion, was manifestly wrong, or applied an erroneous legal standard.” Jones v. Jones, 101 So. 3d 731, 732 (¶4) (Miss. Ct. App. 2012) (citation omitted).

We discussed the different standards to be applied by the court in each of the two rules in a previous post. The distinction is substantial.

Legal nerd that I am, it irks me when I read a decision of the appellate court referring to a R41(b) motion in chancery court as one for a directed verdict. There are no verdicts in chancery court except in the relatively rare event of a jury trial — which now occurs only when one is requested in a will contest, and when the chancellor impanels an advisory jury (assuming that can still be done under the MRCP).

Likewise, you could conceivably lead an unsuspecting chancellor in a bench trial into error by casting your motion as one for a directed verdict. When the chancellor applies the proper legal standard to that motion, she is automatically in error, since it does not apply in bench trials.

Terminology can make a difference.

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.

Lump-Sum Alimony = Alimony?

December 1, 2014 § Leave a comment

Most of us tend to think in the 21st century that lump-sum alimony is a tool for equitable distribution; however, it does retain a small role in alimony itself, as the court’s analysis in a recent case illustrates.

In the November 6, 2014, MSSC case, Davenport v. Davenport, the chancellor had conducted a Ferguson analysis, and ordered Tammy Davenport to pay her ex, Richard, lump-sum alimony in the sum of $1,515,914.33, payable in monthly installments of $8,421.75 over 180 months. Tammy appealed, arguing on this point that the chancellor had erred by not making on-the-record findings of Tammy’s ability to pay applying the Armstrong factors.

Justice Randolph addressed the argument:

¶30. Lump-sum alimony can serve two distinct purposes. The first purpose is to aid the chancellor in equitably dividing the marital estate under the Ferguson factors. See Haney, 907 So. 2d 948. The second purpose is to aid the chancellor in correcting an equitable deficit, resulting from the equitable distribution of the marital estate under the Armstrong factors. See Rogillio v. Rogillio, 57 So. 3d 1246, 1249 (Miss. 2011).

Let’s pause right there and look at that second stated purpose. Lump-sum alimony has also been used as a replacement or supplement for permanent or rehabilitative spousal support, and to award a spouse’s substantial contribution to asset accumulation. See Bell on Mississippi Family Law, 2d Ed., § 9.02[2][b][ii]-[v], pp. 244-245. So it does retain a role in the award of alimony.

The analyses of equitable distribution and alimony pass through two entirely different filters. Equitable distribution is conducted applying the Ferguson factors. Alimony requires analysis of the Armstrong factors. Only if the equitable distribution leaves a deficit for one spouse may the court then proceed to consider alimony.

The Davenport decision continues, explaining the factors applicable to lump-sum alimony, and how they fit into the picture:

¶31. In Haney v. Haney, this Court found that the chancellor’s award of lump-sum alimony was allocated to equitably distribute the marital assets. Haney, 907 So. 2d at 952. This Court discussed how, prior to Ferguson, lump-sum alimony was the central mechanism through which marital property was divided. Haney, 907 So. 2d at 952. In Cheatham v. Cheatham, the Court set out factors to be taken into account when considering an award of lump-sum alimony. Cheatham v. Cheatham, 537 So. 2d 435, 438 (Miss. 1988). Based on the factors later presented in Ferguson, this Court stated:

Clearly, the Cheatham factors were simply an earlier attempt by this Court to provide a chancellor with guidelines for awarding what today is called an equitable distribution of marital assets, under appropriate circumstances. Indeed, we see no Ferguson factor which would be inappropriate in evaluating lump sum alimony. Although we continue to refer to certain payments as “lump sum alimony,” these payments are really no more than equitable distribution in the form of lump sum cash, rather than an equitable portion of certain property which cannot be divided equitably.

Haney, 907 So. 2d at 955.

¶32. This Court later considered an award of lump-sum alimony and reiterated that ” . . . the chancery court was obligated to apply the appropriate factors . . . the Cheatham-Ferguson factors. Yelverton v. Yelverton, 961 So. 2d 19, 25 (Miss. 2007). See also Dickerson v. Dickerson, 34 So. 3d 637, 647-48 (Miss. Ct. App. 2010) (After reviewing Haney and Yelverton, the court concluded that chancellors should consider lump-sum alimony under the Ferguson factors; however, an analysis under Cheatham is not reversible error.); George v. George, 22 So. 3d 424, 427-30 (Miss. Ct. App. 2009) (Lump-sum alimony was analyzed under this Court’s ruling in Haney, considering the Cheatham factors, while periodic alimony was analyzed under the factors set forth in Armstrong.); Dunn v. Dunn, 911 So. 2d 591 n.4 (Miss. Ct. App. 2005) (acknowledging that, pursuant to Haney, the Ferguson factors should be considered when determining an award of lump-sum alimony).

¶33. In Lauro v. Lauro, this Court described alimony as something which is contemplated subsequent to the equitable division of marital property. Lauro v. Lauro, 847 So. 2d 843, 848 (Miss. 2003). Lauro relies on the language set forth in Johnson v. Johnson, quoting:

If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.

Lauro, 847 So. 2d at 848 (emphasis original) (quoting Johnson v. Johnson, 650 So. 2d 1281, 1287 (Miss. 1994)). Lauro further explains that the Armstrong factors must be considered when awarding alimony. Lauro, 847 So. 2d at 848. See Lowrey, 25 So. 3d at 280. (“Failure to make an on-the-record . . . analysis is manifest error.”).

¶34. If lump-sum alimony is awarded as a mechanism to equitably divide the marital assets, then chancellors may conduct their analysis under the Ferguson factors. Haney, 907 So. 2d at 955. However, if the alimony, lump-sum or otherwise, is awarded subsequent to the equitable distribution of the marital assets, then chancellors must conduct their analysis under the Armstrong factors. Lauro, 847 So. 2d at 848.

¶35. In the instant case, the chancellor fully considered the award of lump-sum alimony under the Ferguson factors because the award served as a means to equitably divide the marital property. Therefore, the chancellor appropriately conducted a Ferguson analysis in the findings of facts and conclusions of law incorporated it into the final decree; thus, the chancellor did not fail to adequately consider Tammy’s ability to pay the award. This issue is without merit. [Emphasis added]

I think it would simplify everything if we would:

  1. Leave the term “lump-sum alimony” exclusively to describe that post-Armstrong-analysis use of a lump-sum payment to supplement or replace true alimony or to reward substantial contribution to accumulation of assets; and
  2. Use the term “equalizing payment” or some similar phrase to apply to payments ordered under a Ferguson analysis to balance out the equitable division.

To continue to call something alimony that we all know has nothing to do with an Armstrong analysis invites confusion and the continued need to explain and clarify it in our case law, for no good reason. Lump-sum alimony was judicially created in 1856 to address a void in the law of alimony. It was created to allow lump-sum payments of true alimony in lieu of periodic payments. In the pre-Ferguson days, the court looked for a way to adjust equities around our title rules, and transmuted lump sum alimony into a tool to do that. Ferguson, however, changed this area of the law, yet the old terminology has remained confusingly in place. With the change ushered in by Ferguson, it’s appropriate that we should change our nomenclature.  

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