Credit for Post-Emancipation Child Support Payments

January 30, 2019 § 2 Comments

Tammy and Dennis Ratcliff were divorced in 2009. Tammy got custody of the parties’ daughter, SDR, and Dennis was ordered to pay child support.

In 2016, Tammy (now Hubbard), filed a contempt action against Dennis for unpaid child support. Dennis counterclaimed that SDR was emancipated and for termination of support.

Following a hearing, the chancellor found no one in contempt, and ruled that SDR was emancipated on August 1, 2016. She ordered that Dennis would get a credit for child support he paid after the emancipation date, and that Tammy would have to repay him for it. Tammy appealed.

The COA reversed and rendered on the emancipation date, but affirmed on all other points in Hubbard v. Ratliff, handed down December 11, 2018. On the issue of the emancipation date, here is how Judge Tindell discussed the court’s holding:

¶2. Although the chancery court set SDR’s emancipation date at August 1, 2016, there is insufficient record evidence to support her emancipation on this date. Based on Hubbard’s testimony, the chancery court understood that SDR took some summer classes after graduating high school. The start and end dates of these classes do not appear in the record. Whether SDR was enrolled as a full-time or part-time student is not apparent. What is clear from the record is that SDR joined the military in November 2016.

So, SDR was emancipated as of November, 2016, by entry into military service, but Tammy continued to collect child support that was being withheld from Dennis’s pay check. The chancellor found that Tammy had to pay it back to him, but Tammy argued on appeal that she had no duty to do so. Here’s what the COA said:

¶12. Substantial evidence supports the chancery court’s factual findings regarding the payments made by Ratliff in support of SDR. The record shows child-support payments consistently being subtracted from Ratliff’s pay, and testimony supports the amounts of medical-insurance and dental-insurance payments also withdrawn twice a month. Further, the chancery court found Hubbard knew SDR was emancipated and yet allowed Ratliff’s payments to continue.

¶13. The supreme court has permitted a credit for child-support payments made after a child’s emancipation. See Dep’t of Human Servs. v. Fillingane, 761 So. 2d 869, 872 (¶13) (Miss. 2000); Sumrall v. Munguia, 757 So. 2d 279, 284 (¶28) (Miss. 2000). In Fillingane, the chancery court reduced a father’s arrearages to reflect the emancipation of his children. Fillingane, 761 So. 2d at 870 (¶6). In Sumrall, the father argued that the chancery court erred when it failed to reduce retroactively his child-support payments to the date his son entered college. Sumrall, 757 So. 2d at 284 (¶26). The Sumrall court agreed with the father’s contention that the chancery court should have retroactively reduced his child-support  payments to the date his son entered college and ordered a retroactive modification. Id. at 284 (¶28). Furthermore, the Sumrall court stated that non-custodial parents should be allowed to prove that they should receive credit for child-support payments made from “the point in time where the changes occurred. . . .” Id. at 284 (¶27). “It would be unwise to unduly restrict a chancellor’s ability to make an equitable ruling” when “child[-]support payments were made on behalf of a child subsequent to that child’s emancipation.” Fillingane, 761 So. 2d at 872 (¶13).

¶14. Given the precedent that allows a chancery court the discretion to grant a parent credit for child support paid after a child’s emancipation, we find the chancery court did not abuse its discretion in crediting Ratliff for the payments made after his obligation terminated. To hold otherwise would “unduly restrict a chancellor’s ability to make an equitable ruling.” Andres v. Andres, 22 So. 3d 314, 319 (¶17) (Miss. Ct. App. 2009) (quoting Fillingane, 761 So. 2d at 872 (¶13)).

Given the court’s ruling that the emancipation date was some three months later than that found by the chancellor, what effect did that have on the court’s order for credit and repayment? Here:

¶15. Following the supreme court’s holding in Fillingane, the chancery court should have the discretion to “grant an obligor parent a credit for child-support payments which were made on behalf of a child subsequent to that child’s emancipation.” Fillingane, 761 So. 2d at 872 (¶13); see also Caldwell v. Caldwell, 823 So. 2d 1216, 1221 (¶19) (Miss. Ct. App. 2002). Although the chancery court specifically awarded Ratliff a judgment for nine months of reimbursement, that amount is hereby modified to six months of payments totaling $3,204.2 Sufficient support for these amounts are shown in Ratliff’s employer payment summary for the child-support payments, and through Ratliff’s sworn testimony for the medical and dental insurance paid monthly. We affirm the remainder of the chancery court’s order.

Name Change NOT in the Child’s Best Interest

January 29, 2019 § Leave a comment

As I have mentioned around here before, change of a child’s name in a paternity case can be, to put it mildly, a contentious issue. You can read a previous post on the topic at this link.

Authority for the court to change the child’s surname is at MCA § 93-9-9(1), which says that, “The surname of the child shall be that of the father, unless the judgment specifies otherwise.”

The key case interpreting the statute is Rice v. Merkich, 34 So.3d 555 (Miss. 2010)., which holds (at page 557) that the trial court should change the child’s surname to that of the father unless the mother proves by a preponderance of the evidence that it would not be in the child’s best interest to change the child’s name.

In a recent case, Olson v. Bennett, decided December 18, 2018, the COA reversed and rendered a chancellor’s decision to change the child’s name. Robert Bennett had filed a paternity action after his child was eight years old and had already started school. Bennett had attended the birthing of the child, but refused to be listed as father on the birth certificate, and insisted on a paternity test. Due to his refusal to be named on the birth certificate, the child took the mother’s name, Olson. Even after the DNA test confirmed his paternity, Bennett took no action to have his name added to the birth certificate, and he did not immediately begin paying child support. The child lived exclusively with the mother, Lana, and Bennett was mostly absent from the child’s life until he filed his court action.

After Bennett filed his paternity action, the parties settled all issues of custody and support, leaving the issue of name change for the court to adjudicate. The chancellor ordered that the child’s name be changed to Bennett, but stayed registration of the judgment with the Department of Vital Records until resolution of appeal. Lana did appeal.

Here is how Judge Wilson analyzed it for the 7-3 majority [the child is referred to by the fictitious name “Noah”]:

¶16. In this case, the chancellor cited Rice, but many of the chancellor’s statements were inconsistent with Rice’s best-interest/preponderance-of-the-evidence standard. As noted above, the chancellor began the hearing by suggesting that he could make an “exception” to the rule that a “child shall take the last name of the father” only if Lana proved that “the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father’s name.” The chancellor further stated that he could make an exception if there was “something seriously wrong with the father”—for example, if the father had raped the mother or “was a pedophile and had been abusing the child.” The chancellor indicated that some other “drastic” set of facts might justify an exception, although he did not provide additional examples. At the conclusion of the hearing, the chancellor recognized that there were “certainly some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” But the chancellor then concluded: “I don’t think that [Lana’s reasons] meet the criteria that the Supreme Court has set for us to be able . . . to allow the name to be different from what the statute says. The statute says that the child shall carry the father’s name.” The chancellor then “reluctantly” ordered Noah’s surname to be changed to Bennett.

¶17. The chancellor’s statements imply a misreading of the majority opinion in Rice. Lana was not required to prove that there was “something seriously wrong” with Bennett or that it would be “absolutely inappropriate” for Noah to have Bennett’s surname. Nor was Lana required to prove that Noah would be traumatized by a name change. Under Rice, Lana only needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-old Noah’s “best interest” to change his name. Rice, 34 So. 3d at 557 (¶¶8-9). We conclude that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.

¶18. To begin with, the facts of this case are materially different from the facts of Rice. In Rice, Merkich took action when Presley was only weeks old so that she was barely one year old when her name was changed. As Justice Lamar put it, Presley was still “too young even to know her last name.” Id. at 563 (¶28) (Lamar, J., dissenting). In contrast, Bennett did not seek visitation with Noah or take any action to change his name until Noah was nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the chancery court, [Fn 6] certainly old enough to have become accustomed to his name.

[Fn 6] Noah is now ten years old.

¶19. Moreover, Lana presented some evidence to support her contention that it was not in Noah’s best interest to change his surname. Lana and Sharon could not and did not testify that a name change would result in certain harm to Noah, but that is to be expected. In most cases, it will be difficult, if not impossible, for a mother to produce objective evidence that a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon provided legitimate reasons why it would not be in Noah’s “best interest” to change his name. Indeed, at the conclusion of the hearing, the chancery court recognized that “certainly” there were “some reasons that [Lana] could point to and say it would be in [Noah’s] best interest to leave [his name] as it is.” Given Noah’s age and history of behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a sudden name change could have a negative impact on him.

¶20. On the other side of the scale, Bennett presented no reason or evidence that it would be in Noah’s best interest to change his name at age nine. Bennett stated only, “I want him to carry . . . his family name . . . . My father passed my name down to me, and I want to pass it down to my children.” Bennett’s feelings are understandable, but he failed to act on them—or even pursue visitation with Noah—until Noah was nearly eight years old. More important, Bennett’s desire to pass on his family name is not the equivalent of Noah’s best interest. “[T]he child’s best interest” is not the same thing as “either parent’s best interest.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). Put simply, “[t]he relationship of parent and child is not for the benefit of the parent, but of the child.” Reno v. Reno, 253 Miss. 465, 475, 176 So. 2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957)).

¶21. In summary, Lana presented legitimate reasons that it was not in Noah’s best interest to change his name, while Bennett presented no reason that a name change would benefit Noah. Lana met her burden of proof under Rice, and the chancery court manifestly erred to the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of the chancery court insofar as it ordered Noah’s surname to be changed. [Fn omitted] Noah’s last name shall remain Olson.

Westbrooks dissented, joined by Greenlee and Irving, taking the position that Lana had not met her burden of proof.

It would appear that Bennett’s lengthy delay in bringing an action cost him in this case.

Oh, and a cite to Bunkley and Morse is a nice touch. Some long-established principles are fresh even in quotations more than 60 years old.

Another Divorce Misfire in an HCIT/Constructive Desertion Case

January 28, 2019 § Leave a comment

Brooke Hoffman charged her husband Michael with habitual cruel and inhuman treatment and constructive desertion. After hearing the evidence, the chancellor dismissed her complaint, finding that she had proved neither ground. Brooke appealed the denial of the divorce.

The COA affirmed in Hoffman v. Hoffman, decided October 23, 2018, with Judge Wilson writing for a unanimous court:

¶22. As discussed above, Brooke alleged that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and constructive desertion. As a practical matter, there is little difference between these two grounds. “In effect, conduct that would qualify as habitual, cruel, and inhuman treatment becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Deborah H. Bell, Mississippi Family Law § 4.02[5][d], at 80 (2d ed. 2011).

¶23. “Habitual cruel and inhuman treatment is conduct that either: (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to render the marriage revolting to the non-offending spouse, making it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.” Farris v. Farris, 202 So. 3d 223, 231 (¶29) (Miss. Ct. App. 2016) (quotation marks omitted) (quoting Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012)). “To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility.” Smith v. Smith, 90 So. 3d 1259, 1263 (¶13) (Miss. Ct. App. 2011). “Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct.” Id.

¶24. Similarly, “constructive desertion” occurs when the innocent spouse “is compelled to leave the home and seek safety, peace, and protection elsewhere” because the offending spouse has engaged in conduct that “would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety.” Griffin v. Griffin, 207 Miss. 500, 505, 42 So. 2d 720, 722 (1949). “Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases.” Hoskins v. Hoskins, 21 So. 3d 705, 710 (¶20) (Miss. Ct. App. 2009). The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).

¶25. We affirm the chancery court’s judgment that Brooke failed to prove grounds for divorce. The chancery court noted that Brooke alleged only one incident of physical violence, which Mike denied. The court then noted that Brooke’s single allegation of violence was undermined by a police officer’s observation that she exhibited no signs of physical abuse immediately after the alleged injury. The court also noted that the day
following the alleged abuse Brooke wrote in a diary “that the parties made love and that she could ‘really tell that he (Mike) was emotionally present.’”

¶26. The chancery court also found that Brooke’s allegations related to Mike’s relationship with Matt were not credible. Mike denied Brooke’s allegations and another witness corroborated his testimony. Furthermore, the court found that Brooke offered “no proof” of an actual affair or physical relationship.

¶27. “It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact.” Johnson v. Black, 469 So. 2d 88, 90 (Miss. 1985). “The chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province.” Darnell v. Darnell, 234 So. 3d 421, 423-24 (¶8) (Miss. 2017) (quotation marks omitted). “This Court gives deference to a chancellor’s findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses’ testimony and the parties’ behavior.” McNeese v. McNeese, 119 So. 3d 264, 275 (¶32) (Miss. 2013) (quotation marks omitted). Applying our familiar standard of review, we cannot say that the chancery court clearly erred in finding that Brooke’s allegations were not credible.

¶28. The same is true of the chancery court’s finding that Brooke’s allegations of emotional abuse were “unpersuasive.” The court noted that Brooke only testified to “a discreet number of unpersuasive specific incidents.” And, again, Mike denied Brooke’s allegations that he was emotionally abusive. It is for the chancellor “alone” to “judge[ ] the credibility of the witnesses” and weigh any “conflicting evidence.” Irle v. Foster, 175 So. 3d 1232, 1237 (¶32) (Miss. 2015). This Court does not reweigh conflicting evidence on such issues of fact. Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017).

¶29. Suffice it to say there was conflicting evidence with respect to each of Brooke’s various allegations against Mike. Those conflicts represent issues of fact for the chancery court to decide. Id. The chancery court summarized its reasons for dismissing Brooke’s complaint for divorce as follows:

Brooke may very well have determined for herself that she is no longer willing to countenance the ways in which she and Mike seem no longer to get along, especially when considered from the perspective of another man’s arms with whom she may now seem more compatible. However, . . . for a divorce to be granted on the ground of habitual cruel and inhuman treatment there must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility . . . .

. . . .

The theory of constructive desertion as a grounds for divorce is reserved for extreme cases. Although Brooke’s and Mike’s marriage might reasonably be characterized on the record made as unhappy and unfulfilling, the evidence does not support a finding that it is to be considered unendurable to Brooke.

. . . .

The [c]ourt takes no pleasure in declining to award relief in a circumstance where the parties are separated and one party professes to be so
unhappy as to seek to be officially unshackled from the bonds of matrimony. The [L]egislature, as the policy makers for this [S]tate, have consistently declined to amend the divorce statutes to provide that one party can obtain a divorce from the other spouse without a showing of fault. Our appellate courts have not expanded the definition of cruel and inhuman treatment to include circumstances which would otherwise comprise mere incompatibility. The [c]ourt is, therefore, constrained by the evidence presented to it and the record made, and cannot find that Brooke’s and Mike’s marriage was unendurable at the time that Brooke left. Thus, the [c]ourt cannot find that Mike is guilty of constructive desertion.

We find no clear error, legal error, or abuse of discretion in the chancery court’s findings and conclusions. Therefore, we affirm the judgment of the chancery court dismissing Brooke’s complaint for a divorce.

Some observations:

  • The inescapable object lesson here is one most practitioners have come to appreciate over the years: HCIT is not an easy ground with which to obtain a divorce, even though the burden of proof is only a preponderance of the evidence.
  • In ¶24, dealing with constructive desertion, the court says, citing Hoskins, that “The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶6).” That can at least be misleading. Hoskins does not say that; when Hoskins mentions burden of proof, it is referring to HCIT. Indeed, the only ground for divorce with a preponderance burden of proof is HCIT. The other grounds require clear and convincing evidence. See, Bell, 2d Ed., § 4.02[1][b]. Bell does say that, “In effect, conduct that would qualify as [HCIT] becomes constructive desertion when the innocent spouse leaves the home rather than remaining.” Id., §4.02[5][d]. So I guess it could be argued that the HCIT burden of proof applies in constructive desertion cases, but I am not aware of any cases that say that directly.

Sign Language

January 25, 2019 § Leave a comment

 

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Not Allowed to Testify

January 23, 2019 § Leave a comment

We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.

In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:

¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.

¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.

If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.

One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.

Not Allowed to State a Preference

January 22, 2019 § Leave a comment

Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.

In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.

In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:

¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d [26] at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.

¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:

The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.

¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.

Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:

¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.

¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).

[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” Id.

¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.

Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.

My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.

And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.

January 21, 2019 § Leave a comment

State Holiday

Courthouse closed

Dispatches from the Farthest Outposts of Civilization

January 18, 2019 § Leave a comment

A Totality of Circumstances Case

January 16, 2019 § Leave a comment

Modification of custody may be based on a  finding of changed circumstances that arises from a totality of the circumstances in which the child is living.

That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.

In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:

¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:

[W]here a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. . . . A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.

¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …

I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.

 

The Tie that Affirms

January 15, 2019 § Leave a comment

It’s not often that an appellate case ends in a tie, but it does happen every now and then.

It happened in a recent COA case, Bounds v. Benson, et al., decided by the court on December 11, 2018.

Footnote 1 of the court’s opinion sets the stage:

Six judges of this Court recused themselves from participation in this case. Because a quorum of six judges is required to reach a decision, this Court asked the Chief Justice of the Mississippi Supreme Court to appoint two special judges to participate in the decision of this appeal pursuant to Mississippi Code Annotated section 9-1-105(1) (Rev. 2014). By order entered on July 27, 2018, the Chief Justice appointed Senior Status Judge Larry E. Roberts and Senior Status Judge William E. Gowan to serve as special judges for this case, including any motion for rehearing.

Griffis, Wilson, Westbrooks, and Tindell stuck around to participate. That means that Fair, Carlton, Lee, Greenlee, Barnes, and Irving bailed.

So the learned remnant of the COA convened, along with their special appointees, numbering six in all, and here is the entire per curiam opinion documenting what transpired:

¶1. The judgment of the Lafayette County Chancery Court is affirmed by an evenly divided Court. See Wise v. Valley Bank, 861 So. 2d 1029, 1033 (¶10) (Miss. 2003) (“We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.”).

Yes, the lone footnote is longer than the opinion.

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