August 14, 2017 § Leave a comment
The dispute between Paulette Byas and her siblings, Victor and Mary, over access to their deceased mother’s residence, will not likely make a deep impression in Mississippi jurisprudence. But the COA’s opinion by Judge Lee in Estate of Byas: Byas v. Byas, decided June 13, 2017, offers a handful of helpful nuggets on the subject of contempt, criminal contempt in particular, that I thought I would serve you up a helping of bullet points from the case:
- “If the primary purpose [of the contempt order] is to enforce the rights of private party litigants or enforce compliance with a court order, the contempt is civil.” Purvis v. Purvis, 657 So. 2d 794, 796 (Miss. 1994).
- Criminal contempt is designed to punish the defendant for disobedience of a court order. In re Smith, 926 So. 2d 878, 887-88 (¶13) (Miss. 2006). “This is proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court, or the court’s directive.” Id. As Victor and Mary were punished for disobeying a court order and ordered to pay fines to the court, this case is a matter of criminal contempt. See, e.g., Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶14) (Miss. 2011) (“[C]onstructive criminal contempt punishes a party for noncompliant conduct outside the court’s presence. . . . The contemnor must pay constructive criminal-contempt fines to the court, rather than to an injured party.”).
- ¶13. Next, it is our duty to determine whether the record proves Victor’s and Mary’s guilt beyond a reasonable doubt. Smith, 926 So. 2d at 888 (¶13). We “proceed ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Purvis, 657 at 797 (citation omitted). The burden of proof is on the party asserting that contemptuous conduct has occurred. In re Hampton, 919 So. 2d 949, 954 (¶13) (Miss. 2006).
- ¶14. There are two forms of criminal contempt: direct contempt and constructive contempt. “Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice.” Moulds v. Bradley, 791 So. 2d 220, 224 (¶7) (Miss. 2001). The punishment for direct criminal contempt “may be meted out instantly by the judge in whose presence the offensive conduct was committed . . . .” Id. Constructive criminal contempt, however, involves actions that occur outside the presence of the court. Id. at 225 (¶8). Most importantly, the contemnors must be provided certain procedural due-process safeguards such as a specification of the charges against them, notice, and a hearing. Id. Here, those due-process safeguards were met.
There’s a lot more to contempt, but it’s nice every now and then to have a case that reminds of the basics.
August 10, 2017 § 2 Comments
What do you think is the natural result of an estate with no money, no real property, and no contingent claims? If you guessed that the heirs and beneficiaries totally lose interest and it becomes devilishly difficult to get anyone to sign and return pleadings, joinders, etc., then you’re right.
So what would you predict the result would be if you disburse all (or most) of the money to the heirs or beneficiaries before the estate is closed? Again, if you guessed that the heirs and beneficiaries totally lose interest and it becomes devilishly difficult to get anyone to sign and return pleadings, joinders, etc., then you’re right.
Yet, lawyers yield too often to pressure from the heirs and beneficiaries to get them their money now. In those cases, the lawyer always projects optimism that all will turn out well, that these are the most cooperative people he has ever dealt with, that they sure could use their money now, that they are really putting the heat on him, and blah, blah, blah. Then, a couple of years later he sits with flushed face before the judge complaining that he can’t get the fiduciary to sign the petition to close the estate, and he doesn’t even know now where are all the heirs and beneficiaries.
In a case before me, the lawyer optimistically disbursed all the cash. The remaining asset was a late-model Cadillac, which was ordered to be sold and the proceeds divided eight ways. Two years later, the car is not yet sold, the heirs have melted with their moolah into the woodwork, and now the lawyer’s calls, letters, and pleas to sign a petition to close go unanswered. And why should they bother? A one-eighth share of the car proceeds won’t be much. They already each got more than $40,000.
I say the result would have been far different if the lawyer had gotten an order from me refusing to disburse any funds until the matter was concluded. Money is an amazingly effective motivator. As long as you control it, you control the people who are supposed to wind up with it. When you lose control over the money, you lose control over the people who have gotten it. It’s that simple.
August 8, 2017 § 3 Comments
Yesterday I posted about the Powell bankruptcy case and how it addressed the handling of equitable distribution in divorce when there is a pending bankruptcy proceeding. As promised, here are my thoughts:
- I have heard it said that Powell is a big change fraught with implications for family law practitioners, but I don’t see that. The language cited from Professor Bell clearly states what the law has been. Powell does not change that.
- Some may have misinterpreted the federal domestic relations exception barring federal courts from exercising jurisdiction over divorce to mean that all matters incidental to a divorce are included. The US Supreme Court, however, has made it clear that it is the granting of the divorce itself that is barred. Any matters pertaining to the property of the bankruptcy debtor are subject to bankruptcy jurisdiction.
- The only way that a chancellor may proceed in divorce after bankruptcy is filed is for you to lift the automatic stay. You have to petition the bankruptcy court to remand all of the issues, as Jessica Powell did, even knowing that some will not be remanded.
- Only problem is, per Heigle, cited in the Powell opinion, our supreme court has made it clear that the chancery court should stay all proceedings before it until the bankruptcy is concluded.
- Even without Heigle to stop you from going forward, it’s obvious that if the bankruptcy estate is taken away, equitable distribution is impossible. If equitable distribution is impossible, alimony is impossible, since you can’t get to alimony without going through equitable distribution. If most of the assets are in the bankruptcy estate, that may well limit or even eliminate child support.
- As I mentioned yesterday, I am no bankruptcy expert, but it appears that if you represent the other spouse (not the debtor), you had better file a claim for him or her in bankruptcy court right away to protect that client’s rights. You need to ask a bankruptcy expert about this.
August 7, 2017 § 1 Comment
I am no bankruptcy expert, and my experience with its intersection with a divorce action is minimal. My impression, though, is that most lawyers think that if a bankruptcy action and divorce action occur at the same time, all one has to do is to file a motion to remand the case back to chancery under the “domestic relations exception” to federal jurisdiction, which bars federal courts from issuing divorce, alimony, and child custody decrees, and the bankruptcy court will fling the case back to chancery, where it belongs.
That isn’t quite accurate, however, as a recent case illustrates. The case is In Re: Zelius Welborn Powell, III, Debtor; Powell v. Powell, no. 16-51982-KMS, adv. no. 17-06008-KMS, rendered June 30, 2017, in the U.S. Bankruptcy Court for the Southern District of Mississippi. I’ve included as much citation information as possible because I can’t find an non-subscription electronic site for a link. The case is available behind a paywall on Pacer.
The case began when Jessica Powell filed for divorce against her husband, Zelius Welborn Powell, III (Trey). While the divorce was pending, Trey filed for bankruptcy. Trey had sold some stock, and the chancellor ordered that the proceeds be held in a restricted account and “frozen.” Later the funds were turned over to the Bankruptcy Trustee.
Trey removed the entire divorce proceeding to bankruptcy court under Bankruptcy Rule 9027, and Jessica countered with a motion to remand the case to chancery court. Following an adversarial hearing, U.S. Bankruptcy Judge Katharine M. Samson had this to say about chancery jurisdiction in these cases:
… The Supreme Court has held that “the domestic relations exception [to federal jurisdiction] … divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) …
The domestic relations exception, however, does not divest this Court of all jurisdiction in this case. Federal courts “in which a case under [bankruptcy law] is commenced or pending shall have exclusive jurisdiction of all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate … .” 28 U.S.C. § 1334(e)(1) (2005). This exclusivity is not affected by a previously pending divorce action in Mississippi’s chancery courts.
When bankruptcy is filed after a divorce petition is filed but before the judgment of divorce, all assets titled in the name of the debtor spouse become a part of the bankruptcy estate. The state court action is stayed with respect to a property division. In Mississippi, a spouse has no property interest in marital assets titled in the other’s name until a judgment of divorce and equitable distribution. Under these circumstances, the nondebtor spouse becomes an unsecured creditor in the bankruptcy with regard to assets titled in the debtor’s name.
Deborah H. Bell, Bell on Miss. Family Law, § 21.06 (2d. ed.) (internal footnotes omitted).
. . .
To prevent confusion in this and future cases, the Court has gathered some Mississippi authorities concerning the jurisdiction and authority of a chancery court over property division when a bankruptcy case has been filed.
Family law and bankruptcy become most entangled when property division and bankruptcy coincide. A state court hearing a divorce action has the power to divide marital property equitably without regard to who holds title to the property. However, in Mississippi, a spouse has no interest in property owned by the other until a court judgment classifies the property as marital and orders a transfer of the property or a lump sum payment as part of equitable distribution … When bankruptcy and divorce occur simultaneously, marital property may include assets that are, or will become, property of the bankruptcy estate …
A state court may not classify and divide marital property without permission of the bankruptcy court. However, a spouse who files a divorce action seeking property division is asserting a claim against assets held by the debtor spouse and arguably at the moment of filing divorce becomes a creditor with an unliquidated claim against the estate. The spouse may file a claim in the bankruptcy and seek relief from the stay for the court to determine the she of assets to which he or she would be entitled outside of bankruptcy. Or, the state court may cho[o]se to proceed with the divorce and other aspects of the proceeding and reserve jurisdiction to divide the property after the bankruptcy has concluded.
Bell, supra, at § 21.03 (internal footnotes omitted.
The Mississippi Supreme Court has held that while a husband’s primary asset (a partnership) was in bankruptcy, the value of that asset was unknowable, and therefore the chancellor’s “decision to grant [the wife] a property settlement and/or lump sum alimony was premature … .” Heigle v. Heigle, 654 So.2d 895, 898 (Miss. 1995). The Mississippi Supreme Court has also held that other than the question of the divorce itself, which was undisputed, “all of the remaining issues should have remained in the trial court pending the conclusion of the bankruptcy proceedings.” Id; see also Dunaway v. Dunaway, 749 So.2d 1112, 1120-21 (Miss. Ct. App. 1999) (automatic stay of bankruptcy proceeding enjoins actions affecting bankruptcy assets).
The bankruptcy court granted Jessica’s motion in part, remanding the issues related to divorce, alimony, and child support to chancery, and denying it and retaining jurisdiction over issues involving assets of the bankruptcy estate.
That’s enough for now. I’ll comment tomorrow.
August 4, 2017 § 1 Comment
“No man can purchase his virtue too dear, for it is the only thing whose value must ever increase with the price it has cost us.” — Charles Caleb Colton
“We are what we think. All that we are arises with our thoughts. With our thoughts we make the world.” — Gautama Buddha
“The great ideals of the past failed not by being outlived (which must mean over-lived), but by not being lived enough. Mankind has not passed through the Middle Ages. Rather mankind has retreated from the Middle Ages in reaction and rout. The Christian ideal has not been tried and found wanting. It has been found difficult; and left untried.” — G. K. Chesterton
August 1, 2017 § Leave a comment
Every attorney and judge with experience in chancery court can recite experience with cases that illustrate the devastating effect that family disintegration, divorce, and family conflict can inflict on a child.
A recent case, Collins v. MDHS, decided June 13, 2017, is a case in point. The facts of the case, which you can read for yourself, catalog family violence, alienation, separation, and a child fractured almost beyond repair. The result was that Lisa Collins and her son, Adam (both fictitious names to protect their identities), were estranged. Lisa blamed the estrangement on Adam and his mental-health issues.
When he was 16 years old, Adam moved in with a paternal uncle, Victor, and his wife. Victor entered Adam into a program for emotionally disturbed children in Arlington, Tennessee. Victor received Title IV services for support of Adam, because Lisa was contributing no support. Lisa objected, contending that Adam should be declared emancipated due to his hostility toward her, and due to some of his behavior. After hearing the matter, the chancellor overruled Lisa’s objection and ordered that she pay 14% of her AGI as child support. The chancellor addressed Lisa’s arguments:
While Adam’s behavior is inappropriate to the point of being disgusting, that behavior, in the court’s opinion, stems from emotional and psychological problems. Stated differently, Adam is mentally ill, an illness he is attempting to address in an institutional environment. Additionally, the court would note that Lisa testified that she did not want a relationship with Adam. Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time. Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances the Court is disinclined to relieve Lisa of her obligation to support Adam.
Judge Carlton wrote for the court. The excerpt is lengthy, but it bears posting:
¶15. Lisa argues that the chancellor applied an erroneous legal standard in determining that Lisa and Adam were equally responsible for the breakdown of the parent-child relationship. As a result of these errors, Lisa submits that the chancellor’s judgment ordering Lisa to pay child support should be reversed.
¶16. Specifically, Lisa asserts that the chancellor failed to consider the proximate cause of the breakdown of the parent-child relationship, citing to Lowrey v. Simmons, 186 So. 3d 907, 914 (¶¶17, 20) (Miss. Ct. App. 2015), in support of her claim. Lisa submits that the chancellor heard deposition testimony from Adam regarding the extreme behavior he exhibited despite years of counseling. Lisa also submits that she provided testimony detailing Adam’s physical and verbal outbursts directed toward her. Lisa claims that Adam’s pornography use fits the criteria for legal cause, and she argues that it is reasonably expected or foreseeable that Adam’s access to pornography would lead to a sexual deviance that
resulted in the breakdown of almost all of his relationships.
¶17. MDHS, however, argues that Lowrey v. Simmons failed to create a duty upon the trial court to always perform a proximate-cause determination in deciding whether to terminate an obligation of support upon the deterioration of the parent-child relationship. MDHS submits that the record also indicates that Lisa has not provided financial support for Adam for several years, despite admitting at trial that she was unaware of some of Adam’s more perverse behavior toward animals until it was revealed through Adam’s deposition testimony. MDHS therefore asserts that Lisa cannot use Adam’s perverse behavior as an excuse for her refusing to provide support to him.
¶18. Lisa also argues that the chancellor’s findings of fact are not substantially supported by the entire court record, and are manifestly wrong and clearly erroneous. Lisa claims that although the chancellor stated that he would read Adam’s deposition prior to entering his judgment on the matter, the chancellor did not appear to be aware of Adam’s extensive mental-health history.
¶19. Regarding an award of child support, “this Court respects a chancellor’s findings of fact if they are supported by credible evidence and not manifestly wrong.” Lowrey v. Lowrey, 25 So. 3d 274, 293 (¶46) (Miss. 2009) (citing R.K. v. J.K., 946 So. 2d 764, 772 (¶17) (Miss. 2007)). Mississippi Code Annotated section 43-19-101(1) (Rev. 2015) sets forth the child-support guidelines and provides that the “guidelines shall be a rebuttable presumption . . . regarding the awarding or modifying of child support awards[.]” On appeal, we “will not affirm a child-support award that deviates from the statutory guidelines unless the chancellor overcomes the rebuttable presumption by making an on-the-record finding that it would be unjust or inappropriate to apply the guidelines in the instant case.” Lowrey v. Lowrey, 25 So. 3d at 293 (¶46) (citing Chesney v. Chesney, 910 So. 2d 1057, 1061 (¶7) (Miss. 2005)) (internal quotation marks omitted).
¶20. In addressing Lisa’s argument that we should reverse the chancellor’s award of child support since Adam’s behavior caused the breakdown of the parent-child relationship, we recognize that “a child generally will not forfeit support from a noncustodial parent unless his or her actions toward the parent are clear and extreme.” Lowrey v. Simmons, 186 So. 3d at 914 (¶23) (citing Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991)) (internal quotation marks omitted). In Caldwell, 579 So. 2d at 548, the noncustodial parent argued that his teenage child had “totally abandoned the [parent-child] relationship, and so dislikes [the noncustodial parent], that [the noncustodial parent] should no longer have to pay any support[.]” The supreme court rejected this argument and, citing Holston v. Holston, 473 A.2d 459 (Md. Ct. Spec. App. 1984) (superceded by statute in part), explained:
The amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent. The proper inquiry, as we have often stated, is what is in the best interest of the child. In reaching that conclusion, the chancellor must balance the needs of the child against the parent’s financial ability to meet those needs.
Caldwell, 579 So. 2d at 548. The supreme court clarified that “[i]t is not suggested that there could never be a situation where a minor child as young as fifteen might by his actions forfeit his support from a non-custodial parent[, but] [t]hose actions would have to be clear and extreme[.]” Id. The Caldwell court determined that the facts before it failed to constitute clear and extreme actions on behalf of the child which would warrant forfeiting child support, recognizing that the child “sought professional counseling and advice to deal with his feelings toward [the noncustodial parent] and openly talks of trying to improve the relationship.” Id.
¶21. However, in Hambrick, 382 So. 2d at 478, the supreme court reversed the chancellor’s judgment requiring the noncustodial parent to pay for his college-age child’s college expenses or further child support. The supreme court based its decision on its findings that the child, by her own testimony, has not had any contact with [the noncustodial parent] for six or seven years and does not want to have any contact with him. She says that she dislikes him, categorizing it close to “hate[.]” . . . From the time that she was twelve years of age, [the child] has shown no love, affection, appreciation or consideration for [the noncustodial parent]. Id. at 477. The supreme court determined that “there is nothing in this record that would justify [the child’s] attitude toward [the noncustodial parent,]” and thus held that based on “the unfortunate circumstances of this case, we are of the opinion that the [noncustodial parent] should be relieved of any further obligations to support or educate [the child].” Id.
¶22. In Lowrey v. Lowery, 25 So. 3d at 294 (¶48), the chancellor deviated from the statutory guidelines by ordering the noncustodial parent to pay less support than the required statutory amount. The chancellor based this deviation on the fact that two of the children were estranged from the noncustodial parent. Id. Upon review, the supreme court found that all three of the children were estranged from the noncustodial parent, “having made it clear that they cast their lot with their father, the primary caregiver.” Id. The supreme court reversed and remanded the chancellor’s child-support award, explaining that “[e]strangement is not a basis for deviation from statutory child-support guidelines and is not an excuse for failing to pay child support.” Id.
¶23. In the more recent case of Lowrey v. Simmons, 186 So. 3d at 914 (¶20), the chancellor suspended and terminated the noncustodial parent’s support obligations, including the obligation to pay college expenses, after determining that: (1) the noncustodial parent “was the proximate and primary cause of the erosion of his relationship with his daughter,” and (2) the daughter “ha[d] exacerbated this erosion by her own deep-seated antipathy toward [the noncustodial parent].” The chancellor thus explained that he based his decision to terminate the support obligations on a “‘substantial and material change in circumstance’—the erosion of the parent-child relationship and failure to reconcile[.]” Id. at 916 (¶25). In reviewing the chancellor’s decision, this Court acknowledged the standard set forth in Hambrick, but clarified that “[a]lthough the Hambrick standard is by no means a bright-line rule, it has never been applied to terminate a parent’s support obligations in a case such as this, where the chancellor has found, with substantial support in the record, that the parent is the primary cause of the erosion of the parent-child relationship[.]” Id. This Court thus held that “[w]here a [noncustodial parent’s] own neglect is the proximate cause of the erosion of his relationship with [the] child, the child’s resistance to belated efforts to reconcile will not relieve the [noncustodial parent] of obligations of support[,]” and accordingly reversed the chancellor’s decision to terminate the noncustodial parent’s child support obligation. Id. at 917 (¶26).
¶24. In the case before us, the chancellor distinguished the facts of Hambrick, explaining that in Hambrick, the child was college-aged, had her own income, and would not be destitute without the noncustodial parent’s support. At the time of the chancellor’s judgment, Adam was eighteen years old, but still a resident at a school for emotionally disturbed children.
¶25. In the instant case, the chancellor also made the following findings of fact after listening to testimony from Lisa, Victor, and [Victor’s wife,]Debbie, and after reviewing Adam’s deposition testimony:
Lisa testified that she had no relationship with Adam because of his attitude and his numerous emotional problems. She feels he is a danger to himself and to her and her husband. She testified that she is not willing to have a relationship with him and feels he does not want one with her. The Court would note, however, that Debbie . . . testified that Adam wanted a relationship with his mother but did not know how to develop one and had cried for hours about this. The Court is reluctant to catalogue in a written opinion all of Adam’s inappropriate behaviors. Some, like calling her a whore, abusing animals, or fighting with her husband, were known to Lisa. Others were learned from
Adam’s deposition which was taken in connection with this litigation. These include making allegations against Arnold and [Lisa], attempted sexual intercourse with a dog, and watching pornography, including bestiality. Suffice it to say that Adam is deeply troubled emotionally.
. . . .
Lisa had little contact with Adam after he came to live with her when he was thirteen except for one six month period and no contact after he was sixteen. She did not support him emotionally or financially during this time.
¶26. The chancellor observed that Adam exhibited inappropriate behavior “to the point of being disgusting,” but he opined that Adam’s behavior stemmed “from emotional and psychological problems” and that “Adam is mentally ill.” The chancellor also acknowledged that Lisa testified that she did not want a relationship with Adam.
¶27. The chancellor ultimately found that “Lisa, as much as Adam, in the Court’s opinion, contributed to the erosion of the relationship. Under these circumstances, the court is disinclined to relieve Lisa of her obligation to support Adam.” The chancellor explained that although “[t]he court cannot force parents to be parents, . . . it can refuse to excuse parents from their financial responsibility to support, even when emotional support is lacking.” The chancellor recognized that “[a]ssuming responsibility may be difficult, especially when a child is like Adam,” but stated that he could not “condone transferring responsibility to the [S]tate simply because [Adam] has become a burden.”
¶28. Based on our review of the applicable precedent and the facts herein, we find the chancellor’s determination that both Lisa and Adam contributed to the erosion of the parent child relationship is supported by substantial credible evidence in the record. Lowrey v. Lowrey, 25 So. 3d at 293 (¶46). Similarly, we find that the chancellor’s findings of fact are also supported by substantial credible evidence in the record. Id. Despite Lisa’s assertion, the chancellor’s judgment reflects that he possessed an awareness of Adam’s extensive mental-health issues and history. As a result, we find no error in the chancellor’s judgment ordering Lisa to pay child support. We further find that the chancellor’s award of child support was within the statutory guidelines set forth by section 43-19-101(1).
Not much to add other than to say that it takes “clear and extreme” circumstances to find that a child has abandoned the parent-child relationship, and the amount of child support does not depend on the amount of love and affection between parent and child.