Beyond the Scope of the Pleadings
July 5, 2017 § Leave a comment
It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.
In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:
¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.
No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.
I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.