The “Other” Hearsay Exception
September 14, 2015 § Leave a comment
This happens from time to time in court:
Lawyer 1: Objection; hearsay.
Lawyer 2: Your honor, it’s an exception to the rule.
Judge: Which exception?
Lawyer 2: (After opening his rule book, searching frantically) Rule 803(24), judge.
MRE 803(24) is headed “Other Exceptions,” and it provides that a statement that does not neatly fit into the category of any other exception may be admitted if it has guarantees of trustworthiness equivalent to the specific exceptions, and if the court determines that (a) it is offered as evidence of a material fact, (b) it is more probative than any other evidence that the proponent could offer through reasonable efforts, (c) the general purpose of these rules (i.e., MRE 102) will best be served by admission of the statement.
Counsel usually makes a fairly cogent argument on the above. The judge then follows up with this query:
Judge: And did you give counsel opposite advance notice before trial?
That’s usually where the discussion ends, because most attorneys have not read the rest of Exception 24. Its most important language reads this way:
However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
Notice that the rule does not say that the statement would be objectionable if advance notice were not given. It says specifically that the statement “may not be admitted” without advance notice.
The case law is consistent that advance notice is a prerequisite to admissibility. See, for example, Benton v. Ivy, an unpublished 2012 COA decision that I posted about here. Also, Balius v. Gaines, 908 So.2d 791, 804 (Miss. App. 2005).
While you’re mulling this over, take a moment to glance at MRE 902(11)(C)( i ).
You Can’t Break a Dog of Sucking Eggs
September 10, 2015 § 9 Comments
In April, 1940, in Leflore County, C.G. Hull shot and killed a dog belonging to W.W. Scruggs. By Hull’s account, the errant canine had been misbehaving on his land for several weeks, howling at night, chasing and harassing Hull’s fowl, growling at children, and — worst of all — sucking the eggs laid by Hull’s chickens and turkeys. That combination of malfeasance earned Fido the Hull death sentence.
Scruggs saw his animal differently. To Scruggs, the dog was a harmless, loveable family pet who wouldn’t hurt a flea. Even if the poor creature wandered over to Hull’s property every now and then, he was not guilty of any acts such that he would need killin’. Scruggs sued Hull in Circuit Court, and, based on a peremptory instruction, the jury awarded a verdict in his favor against Hull, who appealed.
In the case of Hull v. Scruggs, 191 Miss. 66, 2 So.2d 543 (1941), the MSSC reversed. Justice Griffith wrote the following for the court:
It is a fact of common knowledge that when a dog has once acquired the habit of egg-sucking there is no available way by which he may be broken of it, and that there is no calculable limit to his appetite in the indulgence of the habitual propensity. And generally he has a sufficient degree of intelligence that he will commit the offense, and return to it upon every clear opportunity, in such a stealthy way that he can seldom be caught in the act itself.
When a dog of that character has for three weeks taken up his abode upon the premises of one not his owner, or else from time to time during the course of such a period and from day to day as well as often during the night, has returned to and entered upon the premises of one not his owner, and has destroyed and continued to destroy all the eggs of the fowls kept by the owner of the premises, what shall the victimized owner of the premises do? Nobody will contend that he shall be obliged to forego the privilege to own and keep fowls and to obtain and have the eggs which they lay; nor will it be contended that he is obliged to build extra high fences, so high as to keep out the trespassing dog, even if fences could be so built. The premises and its privileges belong to the owner thereof, not to the dog.
He must then, as the most that could be required of him, take one or the other, and when necessary all, of the three following courses: (1) He must use reasonable efforts to drive the dog away and in such appropriate manner as will probably cause him to stay away; or (2) he must endeavor to catch the dog and confine him to be dealt with in a manner which we do not enter upon because not here before us; or (3) he must make reasonable efforts to ascertain and notify the owner of the dog, so that the latter may have opportunity to take the necessary precautions by which to stop the depredations. It is undisputed in this record that the owner of the premises resorted in a reasonably diligent manner and for a sufficient length of time to each and all of the three foregoing courses of action, but his reasonable efforts in that pursuit resulted, every one of them, in failure.
What else was there reasonably left but to kill the animal? There was nothing else; and we reject the contention, which seems to be the main ground taken by appellee, that admitting all that has been said, the dog could not lawfully be killed except while in the actual commission of the offense. This is a doctrine which applies in many if not most cases, but is not available under facts such as presented by this record. After such a period of habitual depredation as shown in this case, and having taken the alternative steps aforementioned, the owner of the premises is not required to wait and watch with a gun until he can catch the predatory dog in the very act. Such a dog would be far more watchful than would the watcher himself, and the depredation would not occur again until the watcher had given up his post and had gone about some other task, but it would then recur, and how soon would be a mere matter of opportunity.
There is actually a West Key Number, Evidence 157k13, “Phenomena of Animal and Vegetable Life,” that incorporates the heart of this case: “It is common knowledge that when a dog has acquired habit of sucking eggs there is no available way by which he may be broken of it, and no calculable limit to his appetite in that regard.”
You can add to the already-imposing list of things of which Mississippi judges may take judicial notice the fact that “you can’t break a dog of sucking eggs.”
The concept behind this holding is enshrined in Mississippi folk wisdom, and is familiar to anyone who grew up in a small town or on a farm. It’s only fitting that it should be imbedded in our jurisprudence as well. I am sure many of you will find imaginative ways to incorporate this case into some of your chancery court arguments.
Essential Jurisdictional Facts for Divorce
September 9, 2015 § 9 Comments
There are four fundamental facts you need to know about divorce in Mississippi:
- Venue is jurisdictional.
- Residence is jurisdictional.
- There must have been a marriage for there to be a divorce.
- Pleadings are not evidence.
Knowing those four things, then, you need to make sure that you put proof in the record, most usually in the form of testimony, that establishes venue and residence — ergo jurisdiction — and that there was a marriage.
Here are the jurisdictional facts that need to be in the record for the court to exercise jurisdiction over a divorce:
- That there was a valid marriage. When and where were the parties married?
- When was the separation? Separation is not essential for the granting of a divorce, per MCA 93-5-4, but it helps the judge understand the context of the divorce. Many chancellors will want you to establish that, despite the non-separation, they have not had consensual sexual intercourse.
- Where is venue? For a fault-based divorce, the case must be filed in: (1) the county where the defendant resides; or (2) the county where the plaintiff resides if the parties lived in that county up to the time of the separation and the plaintiff has continued to live there; or (3) the county where the plaintiff resides if the defendant is a non-resident or not to be found in the state. If the ground for divorce is solely irreconcilable differences, the complaint may be filed in the county of either party. MCA 93-5-11. If the action is not filed in the proper county, the court has no jurisdiction, and the case must be transferred to the proper county, per MCA 93-5-11 and MRCP 82(d).
- Is there the requisite residential period? One of the parties must have been a bona fide resident of the State of Mississippi “within this state” for six months “next preceding” the commencement of the case. That means that there must be six uninterrupted months of actual residence inside the state. It is not enough to move here four months before filing and claim that you actually changed your residence to Mississippi two months before moving here, or to stitch together several periods of residency to make six months. The six-month period does not apply to U.S. military actually stationed in Mississippi, provided that the member resided with the spouse in Mississippi, and the separation occurred in Mississippi. Residency must not have been acquired to secure a divorce. MCA 93-5-5.
Don’t forget the UCCJEA allegations if custody is an issue.
Just because you plead all of the jurisdictional requirements, that does not prove anything because pleadings are not evidence, and the only way to prove something is to get evidence into the record — meaning the trial transcript.
I find that even experienced lawyers fail to get this vital proof into the record in some cases. It happens primarily in cases where the plaintiff’s attorney calls the other party adversely as the first witness. Those jurisdictional fact questions somehow never get asked. Maybe the attorney is afraid that the adverse party will deny residency or something similar. Maybe the attorney is more preoccupied with confronting the cheater with videos, or making him admit he squandered the family fortune gambling. Maybe it’s simple oversight. Whatever, it should not be left up to the judge to inquire about these jurisdictional nuances.
Modifying Joint Legal Custody
September 8, 2015 § 2 Comments
Clayton and Melissa Hickey represented to a chancellor that they could get along well enough to warrant a joint-custody arrangement, and the judge granted them an ID divorce based on their assertion.
Their agreeableness, however, proved less than satisfactory to Melissa. She petitioned the court to modify joint legal custody to grant her sole legal custody based on a running course of disagreements over things such as: whether day care was a “need” of the children to which Clayton should contribute; which school the children should attend; whether Melissa’s boyfriend should be allowed to pick up the children from school; and other differences of opinion.
The chancellor agreed with Melissa and found that the disagreements were a material change in circumstances, and that the children were thereby adversely affected, meriting modification. Clayton appealed.
In Hickey v. Hickey, handed down December 16, 2014, the COA reversed. Judge Roberts wrote for the court:
¶ 29. In Goudelock v. Goudelock, 104 So.3d 158 (Miss.Ct.App.2012), this Court reviewed a chancellor’s decision to modify joint physical and legal custody of a child. Approximately seven months after the divorce, the ex-wife sought to obtain sole physical and legal custody of the child. Id. at 160 (¶ 3). The chancellor found that it was in the child’s best interest for the ex-wife to have sole physical and legal custody of the child. Id. at 162 (¶ 17). This Court found no merit to the ex-husband’s claim that the chancellor had erred. Id. at 164 (¶ 25). We noted that “the parties had not agreed on which school [the child] would attend,” and the ex-husband’s “failure to consent to certain dental procedures resulted in the premature extraction of [the child’s] tooth.” Id. at (¶ 23). The child’s dentist had recommended measures to avoid further decay of teeth that would lead to extraction without treatment. Id. at 161 (¶ 12). Because the child suffered from hemophilia, an extraction was potentially dangerous. Id. The ex-husband refused to allow the child to obtain treatment in Jackson, so the child’s teeth remained untreated for approximately seven months. Id. Consequently, the tooth decay progressed to the point that the child had to undergo an extraction. Id.
¶ 30. Here, there is no evidence that the children had any unusual medical needs, and there was no evidence that the children’s medical needs had been neglected in any way. The supreme court has held that isolated incidents do not justify a change of custody. Touchstone, 682 So.2d at 378 (quoting Smith v. Jones, 654 So.2d 480, 487 (Miss.1995)). “[I]t must be the overall circumstances in which a child lives, likely to remain unchanged in the foreseeable future and adversely impacting a child, to warrant a change of custody.” Id. (quoting Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)). In Lipsey v. Lipsey, 755 So.2d 564, 565 (¶ 4) (Miss.Ct.App.2000), this Court held that a chancellor erred when he modified child custody. We based our decision on the fact that “the chancellor gave no reason for modifying custody except for citing the parties’ inability to cooperate with one another.” Id. at 566 (¶ 7). This Court stated that it “will not … allow a change in custody when the child has exhibited no adverse impact and [the child] is equally cared for by both parties.” Id. at 567 (¶ 8).
¶ 31. Based on the record before us, there is no evidence that the children had been adversely affected by the fact that their parents had joint legal custody. The record is simply silent in that regard. Nothing in the record indicates that the children were unhappy, or that any of their needs had been neglected. Because the chancellor did not find that the children had been adversely affected in any way by Clayton and Melissa’s disagreements, we are compelled to follow the supreme court’s precedent and reverse the chancellor’s judgment. Consequently, we render a judgment reinstating Clayton and Melissa’s joint legal custody.
I wonder how this holding meshes with MCA 93-5-24(6), which expressly states that “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” Does Hickey add an adverse effect requirement to the statutory language? If so, why? May a statute be amended by judicial fiat? What if the legislature’s intent was to eliminate the familiar adverse-effect requirement in custody modifications from joint-custody arrangements?
MCA 93-5-24 defines all forms of custody, including exclusive or sole, joint physical, joint legal, and joint physical and legal, so I don’t believe the legislature intended subsection 6 to apply only to forms of custody other than legal; in other words, joint legal custody is not in some undefined category.
What then is the standard of proof applicable in modification of joint legal custody? Is it material change + adverse effect + best interest à la Hickey and the cases dealing with modification of custody in general? Or is it material change only, as provided in MCA 93-5-24(6)?
I pointed out the statutory language in a recent post dealing with the practicality of joint custody.
“Quote Unquote”
September 4, 2015 § 1 Comment
“There is no way of telling people that they are all walking around shining like the sun.” — Thomas Merton
“Honor is the presence of God in man.” — Pat Conroy
“In his errors a man is true to type. Observe the errors and you will know the man.” — Confucius
What’s your biggest rant about …
September 3, 2015 § 11 Comments
… scheduling cases for hearing in chancery court? How could we improve?
Comments by lawyers and judges are welcome and invited. You may post as anonymous or use a screen name, but you must include a valid email address so that I can verify that you are a member of the legal profession. Your email address will not appear.
No personal attacks. Please do not name particular lawyers or judges. Please be brief and to the point. All comments by persons who have not been approved before are moderated, so it may take a while for your comment to appear if it is approved.
Have at it.
[NOTE: If we have good participation, your rants on various topics may become a regular feature.]
SOL and the PSA
September 2, 2015 § 7 Comments
We visited the COA decision in Moseley v. Smith here before. It’s the 2014 case in which the importance of a hold-harmless agreement in a PSA was underscored when the COA held that, although the husband’s underlying debt obligation may have been discharged in bankruptcy, his obligation to his ex-wife based on a hold-harmless clause was not.
There’s another aspect of that case that merits your attention.
On appeal the ex-husband argued that his ex-wife’s claim against him was barred by the three-year statute of limitations (SOL) applicable to contract claims. His position was supported by the case of D’Avignon v. D’Avignon, 945 So.2d 401 (Miss. App. 2006), which held that property division matters in a property settlement agreement (PSA) are governed by the three-year SOL that applies to contracts.
In Moseley, however, the COA changed its position and held that all PSA provisions are incorporated into the court’s final judgment of divorce and, therefore, the seven-year SOL governing enforcement of judgments applies.
Two thoughts:
- Remember that SOL is an affirmative defense that must be asserted by the party who claims it. It is not an automatic bar to the action, but rather a defense that must be affirmatively pled. In a recent case in my court the parties litigated the issue whether the ex-husband was in contempt for non-payment of installment lump-sum alimony. Some of the early payments were due more than seven years before suit was brought. No one raised a SOL issue; therefore there was no bar to obtaining a judgment on those unpaid amounts.
- Before a judgment expires, you can renew the judgment per MCA 15-1-43. The extension is for a period of seven additional years. Most property provisions of PSA’s are resolved before that initial seven-year period expires, but some do not.
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