October | 2017 | The Better Chancery Practice Blog

An Extremely Useful UCCJEA Tool

October 31, 2017 § Leave a comment

Figuring out which state has jurisdiction in a UCCJEA case can be baffelizing, confuserating, miserizing, and flusterating.

To the rescue comes Attorney David A. Blumberg, who has devised a set of brilliant flow-charts that help analyze the law and apply it to your case. You can access them at this link. The charts include an intro that will send you to the chart applicable to your case. Charts include: initial orders; modification; enforcement; and decline jurisdiction. You can print the charts on a color printer.

I have played with them, and each appears quite accurate under Mississippi’s UCCJEA. Before you invest too much in them, however, I urge you to vet them for yourself.

Mr. Blumberg is a Wisconsin attorney who specializes in child custody jurisdiction and enforcement cases. His website includes resource material about the UCCJEA that you might find useful.

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Thanks to Attorney William Wright, who introduced this to the chancery judges at our Fall Conference

The Ups and Downs of Modification

October 30, 2017 § 2 Comments

Modification of child support can get confusing. In one case, you ask for upward modification retroactive to the date of filing and you get modification beginning at the date of judgment. In another the judge grants upward retroactivity to the date of the parent’s increase in income. And in yet another the court does order upward retroactivity to the date of filing. What is the rule?

A good starting point is MCA 43-19-34(4), which reads:

Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.

Downward: never retroactive. This comports with long-standing Mississippi law that each child support payment vests when and as it comes due, and it can not be forgiven. In Howard v. Howard, 968 So.2d 961, 977 (Miss. App. 2007), the court said:

¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redetermination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).

Howard pre-dates 43-19-34(4).

What about emancipation? It sometimes happens that a modification action has to be filed to terminate a withholding order or for some other reason. Do those support payments that come due after emancipation vest so that they can not be undone, or does the liability continue to accrue while the action is pending? “Child support payments vest when due, and retroactive termination is an impermissible form of ‘downward retroactive modification….’ See Howard v. Howard, 968 So.2d 961, 977 (Miss.Ct.App.2007).” AML v. JWL, 98 So.3d 1001, 1016-17 (Miss. 2012)

In my opinion, if the emancipation is automatic by statute, such as attainment of age 21 or marriage or conviction of a felony, then the obligation terminated at that event, and no further obligation existed or vested, so it is not truly a retroactive modification but rather a judicial recognition of the termination as of the date of the event. MCA 93-11-65(9) is consistent with this reasoning.

If, on the other hand, the emancipation turns on a finding of fact, such as whether the child established independent living, then the obligation continues until the court’s order is entered.

Upward: In the court’s discretion. Id. at 1017 (¶43). The modification may be made retroactive to the event that triggered the modification action, such as a raise in pay. There are no cases of which I am aware interpreting this 2009 statute. My interpretation of the statute is that upward retroactivity may be to any point between the triggering event and the date of judgment. If you really want retroactivity, you should put on some persuasive proof about why it should be.

October 25, 2017 § Leave a comment

Judges’ Fall Conference

Next post October 30, 2017

October 24, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

Perjury or Trial Strategy?

October 23, 2017 § 1 Comment

Thomas and Christy Ethridge consented to a divorce on the ground of irreconcilable differences and agreed that the chancellor would adjudicate custody. The chancellor awarded physical custody to Christy and awarded joint legal custody to both. After the judge denied Thomas’s R59 motion for a new trial, Thomas appealed.

In Ethridge v. Ethridge, handed down September 26, 2017, the COA affirmed. The court first addressed and rejected Thomas’s argument that the chancellor’s Albright analysis was erroneous. It then turned its focus on his claim that Christy had committed perjury at trial, and that the judge had committed error by not granting him a new trial. Judge Irving wrote for a unanimous court:

¶15. The judgment of divorce was entered on January 5, 2016, and Thomas filed his motion for a new trial on January 11, 2016. In seeking a new trial, he alleged that the trial court had, in its Albright analysis involving the physical and mental health and age of the parents, found that both he and Christy were in good health. However, he alleges that Christy has a history of inpatient treatment for mental-health issues, including depression and suicidal ideation, having been treated as an inpatient for such at Pine Grove Recovery Center. He alleges that she intentionally failed to disclose these facts and committed outright perjury at trial in order to affect the outcome of the case. Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hit-and-run accident and was distracted when he returned to the court. In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had no effect on the proceedings.

¶16. In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument [Christy]’s counsel represented that all parties and [Thomas]’s trial counsel were aware that [Christy] had a prior stay at Pine Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to [Thomas]. Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by [Christy]’s counsel to the Court and [Thomas]’s current counsel at the motion hearing. Those records are being filed under seal in the court file. The records are not in evidence from trial.

The use, non-use, or relevance of such information by [Thomas] at trial is deemed by the Court to involve trial strategy. The information was apparently known to [Thomas] and his counsel at trial. It was not introduced nor offered into evidence. Thus, there is no new or unknown evidence intentionally withheld by [Christy] that supports [Thomas]’s motion for a new trial on the grounds of perjury or fraud upon the Court.

¶17. As noted, the chancellor found that there was “no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.” If Thomas believed that Christy gave false testimony when his trial counsel questioned her about her mental fitness to care for the parties’ minor child, it was incumbent upon him to confront her with her medical records at that time if he thought they contradicted her testimony. Thomas does not claim, and there is no evidence, that he was somehow prohibited from bringing Christy’s past mental history to the court’s attention during the trial.

¶18. The standard for obtaining relief based upon an allegation of fraud upon the court has been succinctly addressed by the Mississippi Supreme Court:

Relief based on fraud upon the court is reserved for only the most egregious misconduct, and requires a showing of an unconscionable plan or scheme which is designed to improperly influence the court in its decision. Mere nondisclosure of pertinent facts to the court does not add up to fraud upon the court for purposes of vacating a judgment under Rule 60(b). Furthermore, the fraud must be proved by clear and convincing evidence. Doe v. Smith, 200 So. 3d 1028, 1033 (¶15) (Miss. 2016) (internal citations and quotation marks omitted).

¶19. As noted, the chancellor found that “there [was] no new or unknown evidence intentionally withheld by [Christy] that support[ed] [Thomas’s] motion for a new trial on the grounds of perjury or fraud upon the [c]ourt.” We agree. This issue is without merit, and we find no error in the April 26, 2016 order denying the relief requested by Thomas.

It appears from the opinion that Christy was never confronted on the witness stand with the information that Thomas claims was so damning. If she was not given the opportunity to lie about it, how can she be accused of lying? Also, the information had been disclosed in discovery and was in Thomas’s possession during the trial. When Christy did not volunteer the information, he had the opportunity to confront her with it.

So, was Christy’s failure to volunteer the information tantamount to perjury or fraud on the court? If you say yes, what is your authority for that position? I don’t believe it was.

Finally, this case underscores a key consideration: you can not try to introduce new evidence via a R59 motion unless you can show that it was newly obtained evidence that was previously unavailable. The outcome would probably have been different if Christy had concealed the existence of the records and Thomas only discovered them after trial. Unlikely, but stranger things have happened.

Reprise: Checklist for Closing an Estate

October 20, 2017 § Leave a comment

Reprise replays posts from prior years that you may find useful today.

This one should be in every one of your estate files.

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 19 Comments

_____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
_____ Oath of Executor/Administrator filed.
_____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
_____ Letters Testamentary or of Administration issued.
_____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
_____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
_____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
_____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
_____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
_____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
_____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
_____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

October 19, 2017 § Leave a comment

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

Moving the Ward

October 17, 2017 § 3 Comments

The guardian whom you represent drops by to pay on her bill and nonchalantly reports that “We had to move momma to a rest home over in Lisman, Alabama. We think she’ll be happier there.” After she departs, you begin musing whether something should have been filed in court.

Well, you would do well to study MCA 93-13-63. It reads, in its entirety:

If a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect; but the guardian shall first give a bond, with two sufficient sureties residing in this state, in the full value of the ward’s personal estate, conditioned that he will qualify as guardian of the ward in the state or country to which he intends removing, and will there present and file in the proper court a complete inventory of his ward’s property and effects; and, on failure to comply with the condition, the bond may be put in suit for the benefit of the ward.

My, that’s a lot to do. First, a petition must be filed seeking authority. Second an accounting must be filed. Third, the guardian must post bond with two Mississippi sureties in the value of the ward’s estate conditioned on his qualification as guardian in the state to which the ward is to be moved, and on condition that he will file a complete inventory of the ward’s property and effects in that court. And, on failure to comply, the bond “may be put in suit” for benefit of the ward.

So, yes, there are plenty of procedural hoops through which you and the ward must cavort in order to achieve your aim. I’m not aware of a case on point, but I would think that failure of the guardian to comply with the statute might well put her original bond in jeopardy. And if she entered into a contract with the Alabama facility without approval of the court, the court could assess the expense against her. Who was providing the guardian with legal advice while all of this was happening?

Change the scenario above to a movement of the ward from Quitman, in Clarke County, to Brandon, in Rankin County, without prior court approval. Any problem with that?

MCA 93-13-61 tells what is supposed to be done:

If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian. And when he shall produce to the court which originally appointed him the letters of guardianship from the court of the county to which he has removed, and make a settlement of his guardianship accounts, he may be discharged from his original bond; and thereafter he shall present his inventories and accounts to and be under the control of the court of the county to which he has removed. And the clerk of the court in which the settlement was made shall transmit a certified copy of the settlement, at the cost of the guardian, to the clerk of the court in which he was last appointed.

First, file a petition and obtain an order. The order can direct removal of the case to the destination county, or the original court can retain jurisdiction. Then follow the procedure step by step. It’s fairly straightforward.

By the way, all of the above pertains to conservatorships also.

This is something that I have run across too many times in my court. Lawyers are not aware of the statutes, and so don’t advise their clients.

The main thing is that you can not remove a ward to another county or state without first obtaining authority from the court to do so. It’s your duty to advise your guardian or conservator.

Using the Natural Parent Presumption in a Parent vs. Parent Contest

October 16, 2017 § Leave a comment

After Erica Moore gave birth to a daughter, LM, in 2009, she did not list the father, Patrick Bradshaw on the birth certificate, and she did not tell Patrick about the birth of the child. Erica and Patrick were never married.

Patrick learned of the baby in April, 2010, in a telephone conversation with Erica. He saw the child in person on only two occasions afterward.

In 2011, DHS filed a paternity action against Patrick, who consented to a DNA test, but the test was never conducted due to an error by DHS. The case stalled.

In the meantime, in 2014, Erica found herself in financial straits and agreed to give custody of LM to her parents, the Santuccis. The custody petition listed the father as “unknown.” The court entered an order awarding the Santuccis custody.

In September, 2014, the DNA test was finally conducted, and Patrick filed suit for custody against Erica. The chancellor set aside the Santucci custody order. The Santuccis and Erica jointly answered the complaint with a denial. Patrick counterclaimed against the Santuccis.

At trial the Santuccis withdrew their claim for custody. The chancellor ordered that Erica replace them against Patrick. The chancellor awarded custody to Erica, and Patrick appealed. His two main contentions on appeal were that Erica should not be awarded custody because she did not petition the court for custody, and that Erica had lost the natural parent presumption when she gave up custody to the Santuccis.

In Bradshaw v. Moore, handed down June 13, 2017, the COA affirmed, with a majority opinion by Judge Lee.

The court rejected Patrick’s argument that it was error for the chancellor to award custody to Erica with no pleading filed by her. The court pointed out that this was a R81(d) action, in which Erica was not required to file a pleading, and that it was Patrick himself who had brought Erica into the suit. The court also pointed out that the chancellor had replaced the Santuccis in the suit with Erica and rejected Patrick’s claim of surprise.

On the issue of the natural parent presumption, Judge Lee wrote:

¶11. Patrick also argues that the chancellor erred in awarding Erica sole custody of L.M. because Erica waived her natural-parent presumption when she consented to the Santuccis’ petition for custody of L.M. Patrick argues that, as a result, Erica’s claim for custody of L.M. was inferior to his.

¶12. For support, Patrick cites to Grant v. Martin, 757 So. 2d 264, 266 (¶10) (Miss. 2000), in which the Mississippi Supreme Court held that “a natural parent who voluntarily relinquishes custody of a minor child . . . has forfeited the right to rely on the existing natural[-]parent presumption.” However, the holding in Grant is not applicable to the instant case. Grant discusses a natural parent who relinquished custody to a third party, then later attempted to reclaim the natural-parent presumption against that third party. The natural parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the
natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So. 3d 738, 744 (¶21) (Miss. Ct. App. 2015).

¶13. Here, the issue is an initial custody determination between two natural parents—not between a natural parent and a third party. Furthermore, the order granting custody to the Santuccis, which Patrick claims constituted a voluntarily relinquishment of parental rights akin to the facts in Grant, was set aside for lack of notice to Patrick. Thus, the chancellor correctly found that Grant was not applicable, and Erica has not—as Patrick contends—forfeited any natural-parent presumption. The presumption simply does not apply in this case.

¶14. Ultimately, the foremost consideration in child-custody cases is the best interest and welfare of the child. Lacoste v. Lacoste, 197 So. 3d 897, 902 (¶9) (Miss. Ct. App. 2016). The chancellor determined that L.M.’s best interests would be served by awarding Erica custody. The record shows that the chancellor’s findings were supported by substantial credible evidence. Accordingly, the chancellor did not err in awarding custody to Erica.

Very interesting distinction, and important to grasp: the natural parent presumption simply does not apply in a contest for custody between the natural parents. It only applies as between a natural parent and a third party.

It’s hard to conjure up a situation other than this rather unusual one in which a similar argument could be made. If the Santuccis had refused to get out of the case, Grant v. Martin would certainly have come into play as between the Santuccis and Erica, and Patrick could have exploited the situation to his benefit. But when they withdrew and the previous order had been set aside, the chancellor was left with a straightforward parent vs. parent dispute. And the natural parent presumption became irrelevant.