July 13, 2017 § Leave a comment
Reminder that the Bell Family Law Seminars are coming up. They have been known to sell out, so you need to go ahead and register.
Dates are: July 21, Jackson; July 28, Oxford; and August 4, Biloxi.
July 10, 2017 § Leave a comment
At Summer School for Lawyers
Next post July 13
July 7, 2017 § Leave a comment
“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” — Benjamin N. Cardozo, Palko v. Connecticut, 302 U.S. 319, 327, (1937)
“I call that mind free, which jealously guards its intellectual rights and powers, which calls no man master, which does not content itself with a passive or hereditary faith, which opens itself to light whencesoever it may come, which receives new truth as an angel from heaven. I call that mind free, which sets no bounds to its love, which is not imprisoned in itself or in a sect, which recognises in all human beings the image of God and the rights of his children, which delights in virtue and sympathizes with suffering wherever they are seen, which conquers pride, anger, and sloth, and offers itself up a willing victim to the cause of mankind.” — William Ellery Channing
“Perhaps the fact that we have seen millions voting themselves into complete dependence on a tyrant has made our generation understand that to choose one’s government is not necessarily to secure freedom.” — Friedrich Hayek
July 6, 2017 § Leave a comment
In case you hadn’t noticed, habitual cruel and inhuman treatment, the seventh ground for divorce in Mississippi, has undergone a change, effective July 1, 2017.
Here is how the language of § 93-5-1, MCA, now reads:
Seventh. Habitual Cruel and inhuman treatment, including spousal domestic abuse.
Spousal domestic abuse may be established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.
How will this play out? We’ll have to see how the appellate courts interpret it, of course. But several thoughts come to mind:
- By removing the corroboration requirement and replacing it with the testimony of a single “reliable” witness, the statute essentially leaves it up to the chancellor to make a credibility determination as to that individual. Since determining the credibility of and the weight to be given a witness’s testimony is exclusively the province of the chancellor, it should be practically impossible to get the chancellor’s decision reversed on appeal.
- Some judges, I am sure, will be quite ready to give credibility to any person claiming to be the injured party. In those courts, the parties will be back to where we were up to the early 1980’s when chancellors had the latitude to conclude even where the proof was weak that the parties clearly needed a divorce, so it was granted.
- The statute went into effect July 1, 2017. I don’t know whether the new language can be amended into already-filed pleadings, or whether it applies only to complaints filed after July 1, or whether it applies only to conduct arising on or after July 1.
- I personally like the addition of “forced isolation” and emotional and sexual abuse rising above unkindness, rudeness, or incompatibility. That specific language opens up some areas that perhaps have been murky in our case law. Still, I wonder whether the courts will require proof of adverse effect on the injured party. Stay tuned.
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.
July 4, 2017 § Leave a comment
July 3, 2017 § Leave a comment