The Name Game
September 13, 2016 § 3 Comments
A contentious issue in many paternity cases is what the surname of the child will be. It is contentious between the parties, certainly, and often with the parents, grandparents, aunts, uncles, and siblings who sit in the cheering section. The law, though, is rather clear on what is to be done about the child’s name.
Jeremy Flynn and Madison Bland had a relationship that resulted in the birth of a daughter, Allyson. When she learned she was pregnant, Madison told Jeremy, who asked for a DNA test. Madison refused because she thought it could harm the baby.
Their contact continued sporadically through the pregnancy, including one occasion when Jeremy accompanied Madison to the Medicaid office to enroll her for prenatal care.
On November 6, 2006, Allyson was born. Jeremy did not participate, and he was not listed on the birth certificate. Madison and the baby lived with Madison’s parents. When Madison attempted to show the new baby to Jeremy, he ran from them, according to the testimony.
Jeremy had little involvement in Allyson’s life. He claimed it was because he did not even know he was the father until 2010. The evidence was conflicting. He filed a petition for filiation, and an agreed DNA test established that he was, in fact, the father. Madison’s parents, the Blands, filed an intervening petition for custody. Following a trial, the chancellor found that Jeremy had deserted Allyson, and awarded the Blands custody and refused to change Allyson’s surname to Flynn. Jeremy appealed.
In Flynn v. Bland, decided August 30, 2016, the COA affirmed the award of custody, but reversed and rendered the chancellor’s denial of the name change. Judge Ishee wrote for the court:
¶15. Finally, Jeremy takes issue with the chancery court’s decision not to change Allyson’s surname to Flynn. Jeremy cites Rice v. Merkich, 34 So. 3d 555 (Miss. 2010), in support of his argument. We find Rice on point. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶2). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The Mississippi Supreme Court quoted Mississippi Code Annotated section 41-57-23(2) (Rev. 2009), which provides:
If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [(Rev. 2004)]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. Rice, 34 So.3d at 558 (¶10).
¶16. Ultimately, the supreme court in Rice determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See id. at 559 (¶16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶11-12).
¶17. Furthermore, “in the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1). As explained in Rice, “[a]lthough the statute does not delineate those circumstances where the ‘judgment specifies otherwise,’ it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue.” Rice, 34 So. 3d at 557 (¶8).
¶18. Here, the record is clear the Blands did not contest the change-of-name request and have failed to show by a preponderance of the evidence that it is not in the best interest of Allyson to bear her father’s surname. We reverse the chancery court’s decision on this issue, and render the change of Allyson’s surname from Bland to Flynn in accordance with section 93-9-9(1).
That’s a pretty nifty recap of the law on name change in paternity cases. It might be just what you need to guide your client — and the cheering section — in deciding whether to litigate this issue.
Abandonment of the Marriage
September 12, 2016 § 5 Comments
Sarah Young Estes and Joe Howard Estes married in 2006, after a six-month courtship. Each had children by previous relationships.
Sarah had a separate home she owned before the marriage, and she allowed her children and minor grandchildren to live in it. She worked a revolving schedule as a caregiver for sick and elderly. She also lived in Joe’s home. So she divided her time among the three.
Shortly after the marriage, Joe suffered a series of medical calamities that resulted in amputation of his leg, as well as surgery to unblock neck arteries. Due to her work and grandchild-care duties, it was left to Joe’s family to care for him. It was disputed in the proof as to just how much time and attention she devoted to Joe after his medical condition worsened.
In January, 2007, Sarah filed an unsuccessful petition to have Joe subjected to involuntary mental commitment.
A month later, Joe filed for a restraining order against Sarah. In March, 2007, she filed for divorce. The parties agreed to mutual injunctions, and a final trial date was set for the divorce trial. In May, 2007, Joe shot and killed himself.
Joe died testate, but the will made no provision for Sarah. She filed for a widow’s allowance and contested the will. The chancellor granted her a $12,000 widow’s allowance and a child’s share worth nearly $69,000. The executor appealed, and the COA reversed and remanded, concluding that Sarah was not entitled to a widow’s allowance because she was not living with Joe at the time of his death. The case was remanded for a determination whether Sarah had deserted and abandoned the marriage, which would disqualify her for a child’s share if so. On remand the chancellor found that she had not deserted and abandoned the marriage, and that she was, indeed, entitled to a child’s share. The executor again appealed.
In Estes and Estes, Co-Executors of the Estate of Estes v. Estes, handed down April 19, 2016, the COA reversed and rendered. Judge Ishee wrote for the majority:
¶18. When determining whether a spouse clearly deserted and abandoned a marriage, Mississippi caselaw provides a spectrum of factual scenarios for comparison. Most notably, Tillman v. Williams, 403 So. 2d 880 (Miss. 1981), serves as a benchmark case providing guidelines for determining abandonment. In Tillman, Narvel Tillman challenged the will of his wife, Ada Broadnex Tillman, after her death, and petitioned the trial court to recognize him as an heir to the estate. Id. at 880. The Tillmans were married for approximately twenty-nine years at the time of Ada’s death, but had been separated for approximately fifteen or twenty years. Id. Neither party had made any attempt to divorce the other or remarry. Id. Specifically, “[t]here was no evidence of any attempted remarriage or disclaimer of the marriage by either party during the years of separation. There was no evidence that either party attempted to secure a divorce.” Id. Ultimately, the Mississippi Supreme Court stated: “A thorough review of the record reveals that not only was an abandonment uncertain, . . . [t]here was, at most, just a separation proven. As stated, there [were] no marriage or divorce proceedings by either party . . . .” Id. at 882.
¶19. In sum, to prove desertion or abandonment in cases such as this, a clear indication that one party is no longer committed to a marriage is necessary. While we recognize that separation alone is not proof enough that a marriage has been abandoned, Mississippi courts have recognized qualifying indicators to include filing for divorce, filing for remarriage, and evidence of bigamy. See id.; Rowell v. Rowell, 170 So. 2d 267, 271-72 (Miss. 1964).
¶20. Here, it is undisputed that Young filed the first petition for divorce between the parties in March 2007. The chancery court cited the possibility that Estes’s petition for a restraining order against Young may have incited Young to file for divorce. The chancery court further stated that it could not determine that Young “willfully left and had the intention of permanently separating from the marital relationship. Mere absence from the home, without more, does not show willfulness.”
¶21. We find the chancery court’s conclusions to be in conflict with the evidence. A summary of the undisputed chronological series of pertinent events during the parties’ nine month marriage consists of the following: (1) Estes becomes ill; (2) Young slowly reduces the amount of time spent with Estes; (3) Young attempts to involuntarily commit Estes; (4) Estes seeks a restraining order against Young upon his release from the commitment proceedings; (5) Young files for divorce and restraining orders; (6) Estes counterfiles for divorce; and, (7) Estes takes his own life after receipt of notice for a final hearing on the divorce proceedings. Regardless of any other factors present in this case, the most glaring evidence of Young’s abandonment of the marriage was her petition for divorce. Again, the supreme court has clearly noted that filing for divorce serves as an indicator that a party intends to leave the relationship. Furthermore, nothing in the record following Young’s petition for divorce signals that the parties reconciled in any manner. Conversely, it would appear that the parties remained estranged and set on divorcing from one another.
¶22. As such, we find that the chancery court abused its discretion in determining that Young did not desert and abandon her marriage to Estes. In doing so, we reverse and render the chancery court’s award to Young of a child’s share of Estes’s estate.
You can take this case as a reminder that, if the proof establishes that the spouse has deserted and abandoned the marriage, she or he loses the right to revoke the will and assert a claim to a child’s share. That is a fact determination.
What bothers me somewhat here is that our law allows the chancellor, and the chancellor alone, to choose whom to believe and what weight to give testimony. Here, the facts were in dispute, and the chancellor gave more weight to Sarah’s side of the story, as was his prerogative. From the recitation of facts in the decision, I am not convinced that the testimony was as clear-cut as spelled out in ¶21, above.
How Low Can We Go?
September 9, 2016 § 2 Comments
This from the online ABA Journal …
Two more lawyers are permanently disbarred for DUI setup of opposing counsel
POSTED AUG 26, 2016 10:39 AM CDT
BY DEBRA CASSENS WEISS
The Florida Supreme Court has permanently disbarred two Tampa lawyers for setting up their opposing counsel for a DUI arrest in the middle of a trial.
The court disbarred Robert Adams and Adam Filthaut on Thursday, saying their actions were “among the most shocking, unethical and unprofessional” that the court had ever witnessed. The Daily Business Review (sub. req.), the Tampa Bay Times and the Legal Profession Blog have stories. The decision is here (PDF).
Adams and Filthaut had argued any disbarment should not be permanent. A third lawyer involved in the setup, Stephen Diaco, was permanently disbarred in January after dropping his appeal.
The lawyers were accused of sending a paralegal to a Tampa steakhouse where the opposing lawyer was having drinks. The flirtatious paralegal seated herself next to the opposing lawyer and later persuaded him to drive her car, resulting in his arrest by a waiting police officer. The targeted lawyer had originally planned to walk home to his nearby apartment.
The court said the actions of the disbarred lawyers “constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client.”
Filthaut’s lawyer, Mark O’Brien, told the Daily Business Review that his client “is obviously very disappointed, but he has moved on and is actually very happy in his current endeavors.” Filthaut now runs an auto-glass business.
The headline reads “Two more lawyers …” as if this is the latest in a developing Zika-like epidemic. I know it refers to the two latest in addition to the one who dropped his appeal. Still, as unsettling as this story is, it’s scary to think it could be replicated anywhere else.
As I said earlier in the week, stories like this make it hard to defend the profession.
A Saga of Bad Behavior
September 8, 2016 § 1 Comment
Every attorney I know bridles when the conversation turns to questioning the general honesty of lawyers. We tend to get indignant and insist that ours is an honorable profession.
It is. Certainly. Yet some of our colleagues do things that tar all of us.
Consider what happened in the case of Newton v. Brown, et al., decided by the COA May 24, 2016. The case at the trial level involved dissolution of a two medical partnerships; one to purchase a building and parking lot, and the other to operate a medical clinic out of the purchased building. The partners were Drs. Brown and Matthews. When Matthews was convicted of failing to file tax returns, they began the process of dissolution. Each engaged the services of a lawyer to represent him. The dissolution involved exchanges of payments, deeds, and instruments. Brown was to buy out Matthews’ interest in the property and clinic.
Brown’s attorney handled the property transaction. He was given a check payable to the Mississippi State Tax Commission to satisfy its lien against the partnership property. At ¶8, Judge Griffis describes how Brown’s attorney handled his share of the responsibilities:
- He did not forward the check to the tax commission;
- He incorrectly drafted the quitclaim deed from Matthews to Brown by omitting the parking lot;
- He failed to record the quitclaim deed, and to compound the calamity …
- He lost the deed;
- He did not find or disclose a judgment lien on the property at the time of conveyance, which caused mischief later.
As head-shaking as is all of that, it just does not hold a candle to the conduct of Matthews’ attorney. Since Matthews at that time was already incarcerated, his attorney proceeded to collect the money due the doctor. The attorney visited Blakeslee, a CPA for the partnership. Blakeslee had two checks payable to the attorney as representative for the jailed doctor: one, a Hancock Bank check for more than $55,000 for the doctor’s share of the partnership’s liquid assets; and another, drawn on on an A.G. Edwards account, in the amount of more than $49,000 for the doctor’s share of the cash surrender of a whole-life insurance policy.
When Blakeslee left the room for a moment, the attorney took the checks, a folder, and some papers from Blakeslee’s desk and put them in his car. Blakeslee demanded return of the checks because Brown wanted to retain the money to offset the lien that he had belatedly discovered after he bought the property from Matthews. Newton refused, and negotiated the Hancock Bank check. He attempted unsuccessfully to negotiate the A.G. Edwards check.
Brown got an injunction and pursued a conversion action against the lawyer. You can read about how it turned out at the link above.
My interest in this case is the behavior of the attorneys:
On one hand, we see an attorney who committed compound blunders in handling the land transaction. Blunders that cost his client some serious money, and are continuing to do so.
On the other hand, we have what Judge Griffis characterized as “egregious behavior” by the attorney who took the checks without authorization and refused to return them. Egregious indeed.
These are the kinds of behaviors that make our words ring hollow when we try to defend the profession.
Week before last, I sat down with some entering law school students and discussed with them the gravity of the honor and dignity of the profession, and how the public places immense trust in our hands. We pondered some case studies involving ethical and professionalism considerations. It was gratifying to see their almost instinctual grasp of what is right and wrong, of what is to be expected of them when they are admitted to practice. I hope they avoid blunders and “egregious behavior” when their time comes.
Pending R 59 Motion = No Appeal
September 6, 2016 § 2 Comments
Carla Magee and William Darnell were divorced from each other in 2012. The chancellor awarded William custody of the parties’ six-year-old son during the school year. There was evidence of precocious sexual knowledge on the part of the child. Carla appealed.
In Darnell v. Darnell, 167 So.3d 195 (Miss. 2014), the MSSC reversed because the chancellor had erroneously excluded two statements from evidence. The case was remanded with directions for the court to admit the two statements, and to make new findings of fact and conclusions of law taking the statements into account.
On remand, the chancellor entered an amended final judgment of divorce on April 23, 2015, apparently again ruling against Carla on the issue of custody. Eight days later, Carla filed a R59 motion seeking to alter or amend the judgment, or for a new trial. Without waiting for the trial court to rule on the R59 motion, Carla filed a notice of appeal on May 19, 2015. William filed a timely cross-appeal.
In the latest Darnell v. Darnell, decided August 25, 2016, The MSSC dismissed both the appeal and the cross-appeal. Justice Maxwell wrote for a unanimous court:
¶4. When timely post-trial motions are filed, “the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” M.R.A.P. 4(d). This particular provision “applies to a timely motion . . . (3) under Rule 59 to alter or amend the judgment; [or] (4) under Rule 59 for a new trial.” Id. So a notice of appeal only becomes “effective when the Rule 59 motion is disposed of.” Mallery v. Taylor, 792 So. 2d 226, 228 (¶7) (Miss. 2001). Until disposal of the Rule 59 motion, there is no final appealable judgment. [Fn 1]
[Fn 1] See M.R.A.P. 4(d) (“A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions [contemplated in M.R.A.P. 4] is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.”).
¶5. Carla’s motion to alter or amend the judgment, or alternatively for a new trial, was filed eight days after entry of the final judgment. Thus, her Rule 59 motion was timely. However, Carla has not yet brought her motion for hearing, and it remains pending. So this court lacks appellate jurisdiction. [Fn 2]
[Fn 2] When Mississippi adopted its present constitution, this Court’s precedent recognized that an appeal from a chancellor’s order—when a motion to set aside the order had been filed, but not decided, in the chancery court—did not fall within this Court’s appellate jurisdiction. Perryman v. Gardner, 42 Miss. 548, 549-50 (1869). Facing a similar situation here, this case does not fall within “such jurisdiction as properly belongs to a court of appeals.” Miss Const. art. 6, § 146.
Conclusion
¶6. Because Carla’s timely Rule 59 motion is still pending in chancery court, we dismiss the appeal and cross-appeal for lack of jurisdiction.
¶7. APPEAL AND CROSS-APPEAL DISMISSED.
Not a lot to chew on here. Pretty straightforward: A timely-filed R59 motion not only stays the time for filing an appeal, it keeps jurisdiction in the trial court until it is disposed of by the trial court.
It’s nice to see the court cite to the 1869 Perryman case. Sometimes we lose sight of the fact that old, old law is still good law unless it has been reversed or was based on statutory law that has been changed or repealed. I once got an adultery judgment against my client reversed based on a 1916 case that was still good law. Sometimes those venerable, white-haired cases can be a trove of helpful authority. .
“Quote Unquote”
September 2, 2016 § Leave a comment
“Gods always behave like the people who made them.” – Zora Neale Hurston
“We are what we create.” – James Oppenheim
“The most terrifying fact about the universe is not that it is hostile but that it is indifferent; but if we can come to terms with this indifference and accept the challenges of life within the boundaries of death — however mutable man may be able to make them — our existence as a species can have genuine meaning and fulfillment. However, vast darkness, we must supply our own light.” – Stanley Kubrick
The Better Chancery Practice Blog 