No Factors, No Affirmance
April 5, 2017 § 1 Comment
The COA’s March 21, 2017, decision in Sullivan v. Sullivan, is not going to have far-reaching impact on Mississippi law. It’s yet another in a long line of cases that reverses and remands because the chancellor’s findings did not address Ferguson and Armstrong factors. Not that big a deal, really.
Now, we don’t know much from the COA’s decision about what exactly happened in that particular case, but consider this scenario from a case in my court not long ago:
Husband’s attorney withdraws from the case, leaving him unrepresented in a case that had been pending nearly two years. When he appears for trial five months later, he asks for a continuance to get an attorney, which request is denied. The trial proceeds.
In the course of presenting proof on the issue of equitable distribution, the attorney for wife puts on proof as to only one Ferguson factor, a point I noted in my opinion, in which I nonetheless did effect an equitable distribution.
Husband timely filed a R59 motion asking for a do-over because I should have granted the continuance, which would have allowed husband to present an effective challenge to the equitable distribution.
I rejected his argument that I should have given him more time to get an attorney.
But … I felt that I had no choice but to grant the re-do as to the equitable distribution simply due to the paucity of the record as to any proof to support the Ferguson analysis. I am confident that, if I had rejected his argument and he appealed, the COA would have sent the case back for a more substantial record. So the husband will have assistance of counsel when the issue comes ’round again.
This could have been avoided had counsel for wife taken a little more time to get evidence into the record of as many of the Ferguson factors as applied.
Getting back to Sullivan, sometimes when I read these cases I wonder whether the fault was the chancellor’s or whether the fault lay in the cards that the judge was dealt.
The Better Chancery Practice Blog 
It is generally the cards in my courtroom, although I have sometimes been known to ask the attorneys if they will waive detailed findings and conclusions (and sometimes they have). I now go through the record and have forced myself to list each element and state if there were any efforts to address each factor.
(Sigh)