The Rule of Linking Continuances

December 11, 2017 § Leave a comment

MRCP 81(d)(5) requires that process shall command the defending party to appear at a specified date, time, and place. If the matter is not heard on the day specified in the summons, then ” … it may by order signed on that day be continued to a later day for hearing without additional summons …” on the defending party. And, subsequently, if the matter can not be heard on the date to which it was continued, then a continuance order must be entered on that date to a later date. And so on in the same fashion from one continued date to another until final judgment. Some refer to those continuance orders as “linking” continuance orders.

So, is it necessary to preserve process for the non-appearing defending party to receive notice of each linking continuance order? That was what Jessica Tullos argued about the final judgment modifying custody to her ex-husband James. The matter had been continued several times, all in her absence, and she complained that linking orders were not entered, and that it was error that she did not receive any of them.

In Tullos v. Tullos, decided November 7, 2017, the COA rejected Jessica’s argument and affirmed the trial court. Judge Westbrooks wrote for the unanimous court, Tindell not participating:

¶10. Mississippi Rule of Civil Procedure 81(d) provides special procedures for hearings on modification or enforcement of custody. M.R.C.P. 81(d)(2). When a modification action is filed, notice of the action and the procedures for continuances are governed as follows:

[S]ummons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the [action or matter] shall be heard. Said time and place shall be set by special order, general order, or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date. M.R.C.P. 81(d)(5).

¶11. “[T]he Mississippi Supreme Court has held that a central consideration under Rule 81 is the adequacy of the notice of the date, time, and place of the hearing.” Brown v. Tate, 95 So. 3d 745, 749 (¶13) (Miss. Ct. App. 2012) (citing Vincent v. Griffin, 872 So. 2d 676, 678 (¶5) (Miss. 2004)). However, if a proper summons is given that notifies the other party of a new controversy that has arisen and of the date, time, and place for a hearing, the rule itself provides that an order entered on the day of the initially scheduled hearing obviates the need for any new summons for a hearing actually held on the later date. Bailey v. Fischer, 946 So. 2d 404, 407 (¶11) (Miss. Ct. App. 2006) (citing M.R.C.P. 81(d)(5)). If no such order is entered, there should be a new Rule 81 summons. Id.

¶12. Though there were five continuances, all orders were signed by the chancellor on each respective hearing date. Therefore, the initial summons was preserved. Jessica argues that because she was not provided a copy of the four subsequent orders continuing the case and
resetting the trial, a new Rule 81 summons should have been issued. Caselaw does not support this contention. The rule states that if the matter is not heard on the day it is set, then an order entered on that day may continue the cause to a later date without a new summons being issued. Sanghi v. Sanghi, 759 So. 2d 1250, 1259 (¶32) (Miss. Ct. App. 2000) (citing M.R.C.P. 81(d)(5)).

¶13. Jessica had notice of the first continuance, and the record does not reflect that she attended that hearing. Jessica also admits that she may have had actual notice of the final hearing through the GAL’s statement regarding the hearing, but she contends that actual notice is insufficient to cure defective process. We agree. “Actual notice does not cure defective process.” Pearson v. Browning, 106 So. 3d 845, 852 (¶39) (Miss. Ct. App. 2012). “[J]urisdiction is not obtained by a defendant’s informally becoming aware that a suit has been filed against him.” Id. Nevertheless, Jessica was aware of a pending custody matter, evidenced by her initial appearance at the first hearing and her signature on the first order of
continuance. A central tenet of Rule 81 is adequate notice of a pending legal matter, and Jessica was given notice at the inception of the custody matter.

¶14. Therefore, we do not agree with Jessica’s argument that a Rule 81 summons should have been reissued because she was not notified of subsequent court-ordered continuances. The summons was preserved with each signed order of continuance. Moreover, each order provided a day certain for the next hearing. Though the final order of continuance was not filed until the day after the hearing, the summons was still preserved because the trial judge signed the order on the day of the hearing. Rule 81 states “if such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” M.R.C.P. 81(d)(5). Accordingly, we find that an additional summons was not required, and Jessica was adequately notified of the custody matter. Finding no error, we affirm.

Nothing to quibble with here. The rule itself is pretty clear that there is nothing in the rule that supports Jessica’s position; in fact, the rule weighs against her. Nothing further than linking continuances was required.

Close Things

December 8, 2017 § Leave a comment

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Christmas Gift Ideas for Lawyers

December 6, 2017 § Leave a comment

Just in time for your last-minute Christmas shopping.

On Pinterest courtesy of ABA Journal.

Non-Disclosure Agreement iPad 2 Cover

Whose Inconvenience Counts in Visitation?

December 5, 2017 § Leave a comment

When Mike and Kim Smith were divorced in 2011, both of them lived in the Tupelo area. In 2012, Kim relocated near Atlanta with the children, and the parties agreed to meet for visitation exchanges in Leeds, Alabama, a point approximately half-way.

Mike customarily travelled to Kentucky for work or play, and the parties agreed for a time to meet in Chattanooga, which was more convenient for Mike. Kim, however, found the Chattanooga exchange unacceptable, and insisted on the Leeds exchange location. Mike filed a petition to modify visitation to require the Chattanooga location.

Following a hearing, the chancellor denied Mike’s petition to modify the visitation exchange point. Mike appealed. In Smith v. Mull, decided November 7, 2017, the COA affirmed. Judge Lee wrote for the unanimous court, Tindell not participating:

¶14. Mike also argues that the chancellor erred in failing to modify the exchange location from Leeds to Chattanooga when he is working or visiting in Kentucky. In doing so, Mike asserts the chancellor “gave no cogent reason” for her decision. We disagree.

¶15. This Court has articulated the relevant principles regarding modifications of visitation: When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child. To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child. The chancellor has broad discretion to determine the specific times for visitation. H.L.S. v. R.S.R., 949 So. 2d 794, 798 (¶9) (Miss. Ct. App. 2006) (citations and internal quotation marks omitted). With these principles in mind, we find the chancellor’s decision to deny Mike’s request for modification was supported by substantial credible evidence.

¶16. In his motion, Mike sought to have the exchange location modified to “the most convenient location for . . . the minor children.” He argued that when he is working or visiting in Kentucky, Chattanooga should be the court-ordered exchange location, as it is a slightly shorter distance (approximately 143 miles) from Kim’s home than Leeds (approximately 152 miles). He further argued that the chancellor’s failure to modify the
exchange location was not in the best interests of the children because it requires approximately 150-160 additional miles per exchange when he is in Kentucky. He alternatively sought to have Kim meet him at a different location so long as it did not exceed the 152 miles that Kim would normally drive from her home. Kim testified that Leeds was “very systematic, very structured, it’s what we’re used to, we know the safe places, we know all that stuff.” Kim also testified that, although Chattanooga may be a shorter overall distance from her home, it took longer to travel there than to Leeds.

¶17. To prevail, Mike needed to show that “the prior decree for reasonable visitation [was] not working and that a modification [was] in the best interest[s] of the child[ren].” Id. After hearing testimony from both parties, the chancellor found: “[M]odification of the place of exchange, while perhaps more convenient for [Mike] when he elects to travel out of state, would disturb the children’s routines with which they have become comfortable and which complies with the prior decrees.” The chancellor further stated: “I don’t buy into [Mike’s] argument . . . that the court is inconveniencing the children, because, as their father, [Mike] ha[s] to make whatever decision works for [himself]in their best interest[s].” The chancellor ultimately held that Mike failed to show that visitation was not working to serve the best interests of the children. Upon review of the facts before us, we do not find the chancellor erred by declining to modify the visitation-exchange location. This issue is without merit.

This is actually a somewhat familiar fact situation in chancery court. One or both parties relocate, throwing visitation into controversy. In these cases, I often hear it said that the test is whether the prior order for visitation is working or workable. But that is an incomplete statement. The test is actually whether the prior order for visitation is not working … and whether modification is in the best interest of the child or children. That latter consideration is what tripped Mike up in this case. It’s not what is more convenient for either or both parents; it’s what is in the best interest of the child or children.

The Unknown of the New Tax Code

December 4, 2017 § 2 Comments

As I write this Congress is in the throes of crafting revisions to the federal tax code that will have far-reaching impact on domestic litigation. For instance, I have heard that the child-dependency exemption is being considered for elimination, and even deductibility of periodic alimony has been on the chopping block. Whether or not those particular provisions end up being affected, there are hundreds of others that could be, and that could directly impact your clients.

We not only do not know what substantive changes will be made, but we do not know when they will go into effect, and we do not know how existing contracts and judgments will be affected.

This might be a good time to suggest to your clients to put the brakes on negotiating divorce terms until the dust clears. Then, it would be prudent to sit down with a competent CPA to get some guidance about what difference changes in the law will make in your advice to your clients. It might also be a good idea to come up with and insert some disclaimer language in your PSA’s in which your clients acknowledge that the advice you have given is against the backdrop of a possibly drastically changing legal landscape.

Or, it may prove to be yet another Washington chimera. Just pay attention.

“Quote Unquote”

December 1, 2017 § 1 Comment

“I am sure I have always thought of Christmas time, when it has come round — apart from the veneration due to its sacred name and origin, if anything belonging to it can be apart from that — as a good time; a kind, forgiving, charitable, pleasant time: the only time I know of, in the long calendar of the year, when men and women seem by one consent to open their shut-up hearts freely, and to think of people below them as if they really were fellow-passengers to the grave, and not another race of creatures bound on other journeys. And therefore, uncle, though it has never put a scrap of gold or silver in my pocket, I believe that it has done me good, and will do me good; and I say, God bless it!'”  —  Charles Dickens, A Christmas Carol.

“There’s nothing sadder in this world than to awake Christmas morning and not be a child.”  —  Erma Bombeck

“In the old days, it was not called the Holiday Season; the Christians called it ‘Christmas’ and went to church; the Jews called it ‘Hanukkah’ and went to synagogue; the atheists went to parties and drank. People passing each other on the street would say ‘Merry Christmas!’ or ‘Happy Hanukkah!’ or (to the atheists) ‘Look out for the wall!'”  —  Dave Barry

 

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