Some Notes on Dennis
August 29, 2017 § 1 Comment
Yesterday we visited the case of Dennis v. Dennis, in which the MSSC upheld the self-imposed obligation of a step-great-grandfather to pay child support for a 12-year-old child who refused to have a relationship with him.
A few observations:
- Even if Dennis made a severe error in judgment by agreeing to pay child support on the mistaken belief that he was required to do so, that will not get him termination of his child support obligation. The court can modify only upon a showing of a material change in circumstances.
- Parties are free to agree to all sorts of things in a PSA that a court could not impose on them in a contested framework. For instance, the husband could agree to provide college support until the child attains age 25; no judge could order that outside the parties’ agreement. A party could agree to provide health insurance for step-children to a certain age; again, something no chancellor could unilaterally order. Here, Dennis agreed to support JRH, legal obligation or none. That agreement is enforceable under this case and long-standing authority.
- The dissent argues that the chancellor may only approve agreements for support of the children of the parties, per MCA 93-5-23 (and 93-5-2). The majority looked to the Mississippi Constitution as the source of the chancellor’s authority. Taking either route, however, I think the fact that Dennis voluntarily took on custody of JRH vested him with responsibilities under the law that could have and should have been addressed in the divorce. Dennis should not be allowed to extinguish his obligations to the child via divorce.
- To tag onto the above, although the statutes refer to the children of the marriage, there is nothing in the statutes that prohibits the parties from agreeing to support other children, or even other adults. The cases that have analyzed the parties’ negotiations and agreement-making in the context of irreconcilable-differences divorces (including this one) all resonate with the theme that the parties should be free to make any agreement that makes adequate and sufficient provision for settlement of property and support of children. I argue that the wider the latitude given the parties to negotiate the lesser the likelihood that the familiar and all-too-common “divorce blackmail” phenomenon can be brought to bear.
- The fact that the natural parents continue to have a support obligation to JRH, and continue to visit, also avail Dennis nothing. He agreed to the arrangement, self-imposing a support duty parallel to the parents’.
- And Dennis’s agreement to much more, probably, than what the judge would have imposed on him in the custody matter were it contested makes him a poster child for litigants like him who eschew legal advice for expediency. Sans fraud that can’t be undone.
- As for the hostility of JRH, this case is right in line with the many cases that have dealt with the phenomenon. The facts must be extreme and the parent seeking to invoke it must not be at fault. To those parameters you can add, thanks to Dennis, that the age and maturity of the child must be taken into account.
Many years ago, the question arose whether a Chancellor had the Constitutional authority to enforce a written contract between parties who had colluded to get a divorce, a contract upon which no evidence had been presented to support findings. It led me to a perusal of ancient theses.
Once upon a time, a Duchess approached the King. “Sire, the Duke has abandoned me and the children. He’s frequenting the dram shops and sporting houses, cavorting with raucous fellows and has left me without a barouche. The children need tennis shoes. I need a divorce.
The King, Giver of All Law, responded, “Ma’am, I did not create this relationship. Therefore, I cannot destroy it. You got married in that Church across the street. Take it up with the Priest.”
Across the street she went. “Father. I need a divorce.” “Daughter” he said, “When I married you to the Duke, your souls intertwined and became one. If I tear that i half, I’ll destroy you and you’ll both go to Hell. I refuse to give you a divorce.”
One source of Power in her world said I cannot help. The Other said I refuse to help. So she went to the Queen and implored her friend to assist. The Queen approached the King (probably in bed) and lifted one side of his wig to expose his ear. She whispered to the King, her sweet breath brushing his cheek, “Please help my friend.” (Thus the Rule prohibiting earwigging).
Next day the King called the Duke into his Court and he said, “Duke. I did not create this marriage relationship between you and the Duchess, therefore I have no power to destroy it. BUT!! Ya’ll exchanged a set of promises. Wedding promises. That exchange of promises makes it a contract. And I can enforce that whether ya’ll get a divorce or not. It’s not her fault that ya’ll are separated And you have a continuing duty to live up to your end of that contract. You agreed to do it. Nothing else has changed.
After 1890, Chancellors have jurisdiction over all of that which was equity jurisdiction prior to 1890. See, Lawson v. Shotwell, 5 Cushm. 630 (Miss.1854).
At least that’s my version of what happened. It’s my story and I’m sticking to it.