Homecoming at Franklin Church
May 12, 2017 § 1 Comment
Franklin Church, built in 1841, is an out-of-the-way jewel in the Holmes County countryside south of Lexington. I posted about it here back in February.
A reader brought my post to the attention of Julian Watson, one of the church’s members and a leader in efforts to preserve it and the heritage of its membership. He invited my wife and me to attend and enjoy the church’s annual Homecoming on April 23, 2017.
And so we found ourselves in the embrace of this country church on the holy day of its family reunion. They made us welcome to their worship, music, food and fellowship.
As the throng gathered, Mr. Watson welcomed three students from nearby French Camp Academy.
People explored the cemetery in search of ancestors, and others studied the memorabilia in the vestibule of the church. [Click on any smaller photo to view a slide show]
Musicians rehearsed, and then played hymns that provided a segue into the service.
Mr. Watson welcomed everyone.
Ms. Virginia Dickinson, who worked to get the church ready for the event, addressed the congregation.
The preacher came from French Camp and led the worship.
Then it was time for the food. It was too cool and damp for dinner on the grounds, so the church became a dining hall. At Homecoming in a country church, communion is breaking bread together, with fried chicken, strawberry cake, macaroni and cheese, ham, cabbage, pulled pork, pecan pie, brownies, ice box pie, sweet tea, and shared abundance.
And then, too soon, it was over, and we headed home to Meridian, our thoughts full of the special spirit of this place.
There is a Homecoming here every year the Sunday after Easter. It’s the only service held at Franklin Church during the year. There’s no longer any local congregation. Almost all of the member families have moved to other communities and even other states, but they strive to make Homecoming.
Homecoming happens every Sunday somewhere at churches across Mississippi. It’s in Mississippi DNA to try to keep the past from dying, to bring it into the present to look at, breathe life into it, and help others, particularly young ones, understand it. That’s what Will Faulkner of Oxford was trying to tell us when he wrote, “The past is never dead; it’s not even past.” Sometimes Mississippians romanticize and clean up the past, even when it is dark and malevolent, but always the past is respected and even revered. Some people say that Mississippians live in the past. I think that’s incorrect. I think Mississippians live in the present, but want the past to co-exist with it. That can be a beautiful thing, and sometimes not.
At Homecoming in Franklin, it’s a beautiful thing.
Blaming it on the Judge
May 10, 2017 § 3 Comments
I am totally comfortable with the fact that one side in nearly every case that I decide is convinced that I am: (a) a raving, total, lunatic; (b) an idiot who lacks common sense; (c) a gullible fool duped by the liars on the other side; (d) an ignoramus about the law; (d) “on the take” from the other side or from sinister, unknown vectors; or (e) any combination or all of the above.
I get that. It comes with the territory. It’s part of the reason why I get a paycheck from the state each month. It would be in my job description if I had one.
But what I do not get, and what I totally do not appreciate, is getting blamed for the lawyer’s lapses. It happens, and when I find out about it, it chaps me to no end.
One example occurred several months ago when a frustrated party called the chancery clerk and complained that she was told that I was refusing to set a case for trial. I pulled the file and found that it was a case for contempt and modification that had been pending several months. Neither lawyer had answered discovery, which was overdue. No one had filed a motion for a trial setting. There was no scheduling order. There had been no status conference. Where, then, had the unfortunate client gotten the idea that I was refusing to set the case for trial? Surely not from her lawyer, right?
A judge told me recently that he had a similar experience and set the case for the following Saturday. That nipped that bud.
When I was in practice, several times I had people wanting to hire me for contempts or modifications who had been previously represented by a particular lawyer in town. Their property settlement agreements or agreed judgments were disadvantageous to them, and I asked why they had agreed to those terms in the first place. Their answer every time was that the lawyer had asked for a conference with the court and emerged to report sorrowfully that the judge said either to agree to those terms or else. They felt they had no choice. I can tell you that no chancellor in our district ever did such a thing. I can also tell you that I carefully avoided in-chambers conferences with that lawyer afterward.
When Judge Gene Fair was a chancellor, he refused to allow in-chamber conferences with lawyers alone for that very reason. He either conducted conferences from the bench, or invited the clients into chambers along with the lawyers.
It’s okay to blame a bad outcome for your client on the judge’s bad judgment or ignorance of the law.
It’s not okay to shrug off your lack of attention, or failure to do your job, or inability to negotiate effectively as the judge’s fault.
Death of the Right to Renounce
May 9, 2017 § 2 Comments
In February, 1966, J.B. Ratliff executed a will that left his wife, Mavis, a life estate in an undivided one-half interest in his property, and bequeathed the residuary to a daughter by a prior marriage.
On October 2, 1966, J.B. shot Mavis in the head and then shot himself in the head. He died instantly, and Mavis died shortly thereafter.
Letters testamentary were issued in J.B.’s estate, and letters of administration were issued in Mavis’s estate. The administrator in Mavis’s estate sought court approval to file a renunciation in J.B.’s estate, which was granted. Following a hearing, the chancellor in J.B.’s estate denied the renunciation, and the administrator of Mavis’s estate appealed.
In Jenkins v. Borodofsky, 211 So.2d 874, 875 (Miss. 1968), the MSSC affirmed:
There is only one issue to be decided in this appeal. Does the personal representative of a deceased spouse have the right to renounce the will of a predeceased spouse under Mississippi Code 1942 Annotated section 668 (1956), or is the privilege one which must be invoked personally by the surviving spouse during her lifetime?
This issue has been before this Court on a prior occasion in the case of Estate of Mullins v. Estate of Mullins, 239 Miss. 751, 125 So.2d 93 (1960). In that case we said:
In short, the right of a beneficiary to accept or renounce provisions of a will is a personal privilege which must be exercised by him during his lifetime and may not, after his death, be undertaken by his personal representative, even where death occurs prior to the expiration of the statutory period for the election. (239 Miss. at 755, 125 So.2d at 95.)
That, then, would seem to be that, except that the high court, in a more courtly era (no pun intended), tried to soften the blow:
The excellent, skillfully written briefs of appellant merit commendation, but they do not justify our modifying the rule of law set out in Mississippi Code 1942 Annotated section 668 (1956). Such is a prerogative of the legislature only and therefore should not be exercised by the judiciary. Mississippi can do as Tennessee has done and through its legislature enact a statute which would permit that which appellant earnestly urges here. Tennessee’s statute permits an election after the survivor’s death, as discussed in 83 A.L.R.2d 1073 (1962):
As already indicated, the right of election in the surviving spouse is purely statutory and a particular statute may permit an election to be made after the survivor’s death.
The statute in question in Hamilton Nat. Bank vs. Haynes (1943) 180 Tenn. 247, 174 S.W.2d 39 empowered the county court, on application of the personal representative of the surviving spouse, to declare a ‘dissent from the will’ in the event of the death of such survivor before the period allowed for the dissent had expired. (83 A.L.R.2d at 1082.)
Statutes in derogation of common law must be strictly construed, as we well know, and probate is a wholly statutory creature. The court went on to address appellant’s equitable estoppel argument:
Equitable estoppel does not and cannot authorize the exercise of a personal right which terminates with the death of a spouse. Appellee concedes that had J. B. Ratliff lived he would have been estopped from inheriting from his wife’s estate under the provisions of Mississippi Code 1942 Annotated sections 479 and 672 (1956). Appellant, however, does not seek to estop J. B. Ratliff. It is his estate, or more specifically his only daughter, Mrs. Betty Jane Ratliff Burrell, whom appellant seeks to estop. Appellant seeks to have Mrs. Burrell vicariously suffer the penalties which her father would have suffered had he survived his wife after killing her. Certainly Mr. Ratliff’s daughter, Mrs. Burrell, is guilty of no acts which would authorize and allow an equitable estoppel of her.
The court winds up with a flourish, invoking Les Misérables and the exquisitely miserable Inspector Javert:
In conclusion, we agree with appellant that Inspector Javert’s devotion to an immutable and inexorable code of laws which categorically demanded and required punishment is not the basic concept of law in this state. In passing, it was Javert’s fanatical dedication to his adamant belief which ultimately caused his self-destruction. The enactment, modification or repeal of laws, wise or foolish, is a problem for the legislature of this state. This Court has no authority in this regard.
Voilà, mes amis. So, if the spouse wishes to renounce, he or she must do so him- or herself personally “within ninety (90) days after probate” per MCA 91-5-25, unless under some legal disability for which the time is extended. It is a personal right that dies with the one holding it, and it may not be exercised later by her estate.
An attorney in this area posed an interesting, closely-related, question: In an estate opened in the 1980’s, surviving wife timely filed a renunciation of her deceased spouse’s will that was never brought to hearing. Now the renouncing wife has died. Her renunciation was timely filed and the estate has never been closed. Did her right of renunciation die with her, or did her filing open the door for her estate now to pursue it? If it survived, are further proceedings now barred by laches?
No Hearing on Attorney’s Fees
May 8, 2017 § 2 Comments
When the Livingston Property Owners Association (LPOA) denied Paul and Janice Berlin permission to construct a fence where they wished on their property, the couple went ahead anyway with their plans.
The LPOA sued in chancery court, and the chancellor ordered the Berlins to remove part of the fence and awarded the association reasonable attorney’s fees. The Berlins appealed.
In Berlin v. LPOA, decided April 25, 2017, the COA affirmed. One of the grounds for appeal was the manner in which the trial court made its determination about attorney’s fees. Judge Wilson’s declaration on the issue for a unanimous court describes both the appellants’ claim and its disposition:
¶29. The Berlins argue that the chancellor erred in awarding attorneys’ fees to LPOA without conducting a hearing on the reasonableness of the amount awarded. This issue requires discussion of some additional procedural background.
¶30. At the conclusion of LPOA’s case-in-chief in September 2014, LPOA’s attorney in the litigation, James L. Martin, requested permission to wait until after the conclusion of the trial to submit an affidavit regarding LPOA’s attorneys’ fees and costs. The chancellor granted his request, and Martin then asked whether LPOA would “be permitted to have a hearing as to the reasonableness of those fees.” The chancellor responded, “Yes, of course. Always.” The next day, at the conclusion of the trial, the chancellor gave the parties oral instructions regarding post-trial briefing and submissions, which included the following:
“[T]he parties each ask that their attorneys be allowed to present testimony of fees . . . at a later date. This Court hereby requires the same to be done in writing. The affidavit . . . as to the reasonableness and necessity of said services can be attached thereto.”
In her final instructions to the parties, the chancellor did not mention a hearing on attorneys’ fees; rather, she indicated that she would issue her opinion after receiving the parties’ submissions.
¶31. On November 14, 2014, Martin filed an affidavit in support of LPOA’s request for
attorneys’ fees and costs of $17,485.58. Martin stated that he had over thirty years of
experience as a practicing attorney, including significant experience in real property matters, and that his usual hourly rate was $300. Martin’s affidavit also addressed the other factors set out in Rule 1.5 of the Mississippi Rules of Professional Conduct. [Fn omitted] Martin attached an itemization and hourly breakdown of his work on the case, which showed a total of 59.75 hours billed from 2010 to 2014. On November 17, 2014, one of the Berlins’ attorneys filed a similar affidavit in support of their request for $31,637.50 in attorneys’ fees and costs, along with itemized billing records. The Berlins’ request for attorneys’ fees was based on approximately 125 hours of attorney time at a rate of $250 per hour.
¶32. On June 24, 2015, the chancellor issued her opinion and final judgment and found that LPOA was entitled to recover $17,485.58 in attorneys’ fees and costs pursuant to section 14.01 of the covenants. In their motion for reconsideration or a new trial, the Berlins objected that they had not been “afforded an opportunity to contest . . . whether [LPOA’s attorneys’ fees] were reasonable and necessary.” LPOA responded that the chancellor’s posttrial instructions put the Berlins on notice that the court intended to rule on the issue without a further hearing. LPOA also argued that its attorney’s affidavit was sufficient and that no hearing was necessary. On September 3, 2015, the chancellor denied the Berlins’ motion without specifically addressing the issue of attorneys’ fees.
¶33. The Berlins do not dispute that a prevailing party in an action to enforce the covenants is entitled to an award of attorneys’ fees, and section 14.01 makes clear that a prevailing party is entitled to such an award. See Journeay v. Berry, 953 So. 2d 1145, 1162-63 (¶¶63-66) (Miss. Ct. App. 2007) (holding that valid restrictive covenants are contractual in nature and therefore may support an award of attorneys’ fees). However, “[a] contractual provision to pay attorney’s fees is not a blank check; it is limited by the reasonableness of the fee which includes an analysis of whether work performed was actually necessary.” Pikco Fin. Inc. v. Staten (In re Staten), 559 B.R. 666, 674 (Bankr. S.D. Miss. 2016). “[W]e review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion.” Microtek Med. Inc.
v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by Upchurch Plumbing Inc. v. Greenwood Utils. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-43) (Miss. 2007). “In this context, the word ‘manifest’ has been defined to mean ‘unmistakable, clear, plain, or indisputable.’” Id. (quoting Mosley v. Mosley, 784 So. 2d 901, 904 (¶7) (Miss. 1997)).
¶34. No rule requires a chancellor to hold a hearing prior to making a determination as to the reasonableness of requested attorneys’ fees. In addition, Mississippi Code Annotated section 9-1-41 (Rev. 2014) provides:
In any action in which a court is authorized to award reasonable attorneys’ fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court’s own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.[Fn 4]
[Fn 4] Section 9-1-41 applies “[i]n any action” in which an award of reasonable attorneys’ fees is authorized and thus applies regardless of whether the award is based on a statute, a contractual provision, or common law. See Staten, 559 B.R. at 670 n.4.
Finally, although a chancellor generally should provide some on-the-record analysis of the factors set out in Rule 1.5 of the Rules of Professional Conduct, the failure to do so is not per se reversible error, and the chancellor’s award may be upheld so long as the amount is “not unreasonable.” West v. West, 88 So. 3d 735, 747 (¶58) (Miss. 2012); see Jordan v. Jordan, 105 So. 3d 1130, 1135-36 (¶¶24-28) (Miss. Ct. App. 2012) (Fair, J., specially concurring).
¶35. Given the history of this litigation, the amount of fees awarded by the chancellor was “not unreasonable,” and we cannot say that she abused her discretion. The case was pending for five years and involved multiple depositions, a two-day trial, a motion to reopen the case, and other post-trial briefing and motions. Nonetheless, LPOA requested and was awarded attorneys’ fees for less than 60 hours of attorney time. We also note that the Berlins claimed that they were entitled to a considerably larger award of attorneys’ fees and costs ($31,637.50 as compared to $17,485.58) and claimed that their lawyers reasonably spent more that twice as many hours working on the case (about 125 hours as compared to about 60 hours). If the Berlins’ fee request was even in the ballpark of “reasonable,” then the chancellor’s award to
LPOA cannot be unreasonable. Finally, we note that although LPOA’s attorney filed his detailed time records with his affidavit in November 2014, the Berlins have never identified any duplicative or unnecessary time entries or articulated any way in which LPOA’s requested fees are unreasonable. Given the particular facts and history of this case, the amount of fees awarded was not unreasonable, and we cannot say that the chancellor abused her discretion by awarding fees without a hearing or additional findings of fact. See West, 88 So. 3d at 747 (¶58). Accordingly, the award of attorneys’ fees is affirmed.
A few points:
- If you really, really, really want to make a record on the reasonableness and amount of attorney’s fees, you’d better insist on an on-the-record hearing. This case says you have no right to it, but you can’t really complain later if you don’t insist and make a record of your insistence.
- I am so glad to see MCA 9-1-41 cited favorably in an appellate decision. It’s an underutilized tool, but one that can have considerable power.
- Clever how Judge Wilson turned the Berlins’ argument as to the amount of their own attorney’s fees against them.
“Quote Unquote”
May 5, 2017 § Leave a comment
“Action indeed is the sole medium of expression for ethics.” – Jane Addams
“One has a feeling that one has a kind of home in this timeless community of human beings that strive for truth. … I have always believed that Jesus meant by the Kingdom of God the small group scattered all through time of intellectually and ethically valuable people.” – Albert Einstein
“Divorced from ethics, leadership is reduced to management and politics, to mere technique.” – James MacGregor Burns
The (Non) Emergency
May 4, 2017 § Leave a comment
The lawyer comes crashing breathlessly into your office and throws a sheaf of papers onto your desk. You read enough to see that it’s a request for a R65 TRO. “It’s a real emergency, judge,” he says. You quiz him about the facts in the pleading, and it does seem to be urgent. The lawyer explains that notice can’t be given for this or that reason, the papers are compliant with R65, and you reluctantly agree to set a hearing.
“How about this afternoon at 1:30?” You offer.
“Can’t do it then, judge, I’m scheduled to be in Justice Court.”
“What about tomorrow?”
“Nope. I have to be at a docket call in Decatur.”
“Wednesday? I can delay the start of a two-day trial.”
“Can’t. Temporary hearing in Laurel.”
“Okay. Thursday after lunch on the second day of that trial.”
“Only if I’m done with arraignments in Carthage and can make it back in time.”
“Friday?”
“Well, we’re leaving Friday to take the kids to DisneyWorld; next week is Spring Break.”
And so on and so forth.
I compared notes with several other chancellors last week at the judges’ meeting, and we all have had similar experiences. I, for one, wonder why that lawyer took the “emergency” case in the first place, knowing he didn’t have a free minute over the next several weeks.
If it’s truly an emergency, then be prepared to deal with it right away. If the judge is willing to clear the decks to accommodate you, then you’d better reciprocate, because the next time you have a similar urgency, you likely won’t receive such kindly treatment.
In a previous life, another lawyer and I approached Judge Warner and asked him to give us a divorce trial setting “at the earliest possible date,” because we both had troublesome clients that we needed to be shed of. Judge Warner cordially offered a date later that week, which we turned down because of conflicts. After he unsuccessfully offered us several other dates within the next two months, he became noticeably exasperated. He flipped the calendar to December — 10 months distant — and pencilled the case in for the week before Christmas. “Bring me an order,” he said icily, and dismissed us from his office. I think we settled that one.
The Immune System
May 2, 2017 § Leave a comment
It’s not often that a judge is sued for some action he or she took in the course of performing official duties. But it does happen, and the most recent case was decided by the MSSC in Weill v. Bailey, on April 6, 2017. In that case, a circuit judge, Weill, was sued by a former employee, Bailey, over language the judge had included about her in a judgment, which language she claimed to be libelous. The special judge assigned to the case refused to grant Weill’s motion to dismiss, and he appealed. The MSSC reversed and remanded for a dismissal judgment.
Since Justice Coleman’s opinion sets out an exposition of the law on the point, I am posting it here because you might find it useful:
¶18. Mississippi has long recognized the doctrine of judicial immunity. Wheeler v. Stewart, 798 So. 2d 386, 392 (¶ 14) (Miss. 2001). The Court has declared that “public policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions.” Id. (quoting Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990)). Indeed, the Court “fully recognizes that the best interests of the people and public order require that judges be immune from civil liability.” Loyacono, 571 So. 2d at 238.
¶19. The Loyacono Court recognized that the United States Supreme Court addressed the doctrine of judicial immunity in Stump v. Sparkman, 435 U.S. 349 (1978). The Stump Court held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump, 435 U.S. at 355-56 (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)).
¶20. In Loyacono, an attorney filed suit against a circuit court judge contending that, as a direct and proximate result of the willful, intentional, or negligent acts of the circuit court judge, he was falsely prosecuted, arrested, incarcerated, and denied due process. Loyacono, 571 So. 2d at 237. The trial court granted the circuit court judge’s motion to dismiss, finding that the doctrine of judicial immunity protected the circuit court judge even if he was motivated by malice. Id. The Court affirmed. Id. at 239.
¶21. The Loyacono Court acknowledged that, while the holding in DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942) [Fn 3], seemed to leave open the door as to whether judicial immunity applies in the face of malice, “[p]ublic policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions, and, thankfully, most judges do not exhibit the type of behavior we find in this instance.” Loyacono, 571 So. 2d at 238. Accordingly, the “Court fully recognizes that the best interests of the people and public order require that judges be immune from civil liability. There are other remedies [Fn 4] for the correction of such behavior.” Id.
[Fn 3]:
In DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942), the Court stated:
In [Bradley] the [United States Supreme] Court went farther, and held that courts of general jurisdiction are not liable to civil actions for their judicial acts, when such acts are in excess of their jurisdiction, and are charged to have been done maliciously or corruptly. We do not go that far in this case, because, as stated, there was no showing of either corruption or excess of jurisdiction.
[Fn 4]:
“The primary remedy available to those who believe a judge has acted either contrary to or in excess of his/her authority is to file a complaint with the [Mississippi Judicial Performance] Commission.” Mississippi Comm’n of Judicial Performance v. Russell, 691 So. 2d 929, 947 (Miss. 1997).
¶22. The Loyacono Court stated: “There is a distinction between excess of jurisdiction and a complete absence of jurisdiction.” Id. “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley, 80 U.S. at 351-52. Thus, “[t]he key factor in determining whether judicial immunity exists is whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” Wheeler, 798 So. 2d at 392 (¶ 15).
¶23. Bailey argues that Judge Weill is not afforded judicial immunity because his actions were taken in a complete absence of jurisdiction. Bailey contends that Judge Weill had no jurisdictional authority over her individually when he entered the February 2015 orders. However, the question is not whether Judge Weill had jurisdiction over Bailey, individually; the inquiry is “whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” See id. (emphasis added).
¶24. The challenged act is the entry of the February 2015 orders disposing of Kelly’s motions to recuse and for clarification in multiple criminal cases. Judicial immunity exists in the present case because at the time Judge Weill entered the February 2015 orders, he had jurisdiction over the multiple criminal matters before him.
¶25. Bailey’s complaint and amended complaint did not allege that Judge Weill lacked jurisdiction over the criminal matters in which he entered the February 2015 orders. Thus, there is no dispute that, at the time Judge Weill entered the February 2015 orders in his capacity as circuit court judge, he had jurisdiction over the criminal matters before him. Instead, Bailey argues that Judge Weill’s statement that she had been reprimanded forimproper ex parte communications in the February 2015 orders was neither necessary or relevant to the issue before Judge Weill. However, the Court has not recognized a relevance exception to the judicial immunity doctrine. “In order to determine the existence of judicial
immunity one must look to whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” Loyacono, 571 So. 2d at 238 (citing Stump, 435 U.S. at 356). It is of no consequence that the February 2015 orders disposing of a motion in criminal matters properly before him included a factual finding that mentioned Bailey.
¶26. Bailey also argues that Judge Weill lost his judicial immunity because his alleged defamation of her constituted a nonjudicial act made in the clear absence of all jurisdiction. However, the Loyacono Court rejected the argument that allegations of malice remove the protection of judicial immunity.
¶27. We hold that the trial court erred by failing to grant Judge Weill’s motion to dismiss Bailey’s complaint and amended complaint based on judicial immunity.
CONCLUSION
¶28. The Court has held that judges of courts of general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Loyacono, 571 So. 2d at 238. Here, Judge Weill entered the February 2015 orders disposing of the public defender’s motions to recuse and for clarification in four criminal matters that were properly before him. Even though Bailey alleged that the language contained in the orders contained libelous language, Judge Weill is afforded judicial immunity from Bailey’s civil action because at the time he entered the February 2015 orders, he had jurisdiction over the subject matter before him. See id; Wheeler, 798 So. 2d at 392 (¶ 14). As a result, the Court reverses the trial court’s order and remands the case for further proceedings consistent with the Court’s opinion.
Justice King, joined by Justice Kitchens, specially concurred, agreeing with the result in this particular case but cautioning that in another fact situation the role of malice in the judge’s use of language needs to be addressed.
A Caveat About Joint Custody Arrangements
May 1, 2017 § Leave a comment
When Suresa and Derrium Todd got an irreconcilable-differences divorce, they agreed that they would share joint legal and physical custody. Only thing is, their agreement did not spell out a schedule for how that custody would be shared. Notwithstanding that omission, the chancellor who granted the divorce found the agreement “adequate and sufficient,” and granted the divorce.
Two years after the divorce they were back in court over Derrium’s allegations that Suresa was not properly caring for the child. His proof at trial, however, was that the child was happy and well-cared for. There was no proof of a material change and adverse effect; however, the proof was that the custody arrangement was unworkable absent a specific schedule. So the chancellor conducted an Albright analysis and awarded Derrium sole custody. Suresa appealed.
Now, you can probably guess that the COA reversed. They did, in Todd v. Todd, handed down April 18, 2017. Judge Irving’s opinion reiterated the familiar rule that there can be no modification absent a showing of material change and adverse effect.
What I found interesting was what the COA expects chancellors to do when confronted by a joint custody arrangement that has proven to be unworkable due to the lack of a schedule, or due to a change in the parties’ schedules, or maybe due to the fact that the child was an infant when the agreement was entered into but is now school age. Do we still require a material change coupled with an adverse effect, or do we apply a lesser standard such as we do in visitation cases? Whatever the standard, it is clear in these cases that something has to be done for the best interest of the child.
Judge Irving spoke to the issue:
¶11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim [for modification of custody], Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).
So, yes, the chancellor, short of modification of custody, may proceed to clarify the original custody arrangement so as to eliminate friction between the parties.
But note Judge Irving’s caution that “it was probably error to find that the parties’ agreement was ‘adequate and sufficient’” without a custody schedule. To that, I say Amen. But in saying that I am not being critical of the chancellor who granted the divorce. I have been in those shoes many times, with lawyers imploring me that “these are good people, judge; they will work it out.” Or, “Judge, we had a hard time reaching a final agreement, and there was a lot of give and take; we had to leave this the way it is or we would not have an agreement at all.”
Hindsight is always cataract-free and eagle-eyed. It always sees in sharp focus what a thoughtful person either (a) should have seen at the time, or (b) deluded himself or herself into thinking all would turn out peachy keen despite the flaws in the agreement.
When you bid your client farewell after the judgment is entered, that client believes that you covered all the bases and protected him or her from further litigation. If you kick the can down the road, it does not mean that the can has disappeared. It’s still there for someone to trip over later and get cut on the rough edges.
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