Dispatches from the Farthest Outposts of Civilization

February 15, 2019 § 1 Comment

Supervised Visitation or Not

February 13, 2019 § Leave a comment

In most cases, it’s the COA telling a chancellor that he should not have ordered supervised visitation. The default setting for visitation is that it should be unsupervised and free of any unwarranted restrictions.

But in the final judgment of divorce between Christina and William Leblanc the chancellor refused to impose supervision or other restrictions on William’s visitation and Christina appealed, complaining that William had a history of drug problems that made supervision necessary.

In Leblanc v. Leblanc, decided October 23, 2018, by the COA, reversed on other grounds, the court remanded the visitation issue to the trial court to determine whether supervised visitation was required for the children’s best interest. Judge J. Wilson wrote the opinion for a unanimous court (Irving not participating):

¶66. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. “[T]here must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction.” Id. “Otherwise, the chancellor’s imposition of a restriction on a non-custodial parent’s visitation is manifest error and an abuse of discretion.” Id. However, a chancellor may require visitation to be supervised based evidence of continued drug abuse by the non-custodial parent. See Bell, Mississippi Family Law § 12.08[4], at 378-79. A court may also order parents to continue to submit to drug testing. See McLemore v. McLemore, 762 So. 2d 316, 322 (¶19) (Miss. 2000).

¶ 67. Prior to trial in this case, the chancery court entered two orders requiring supervision of Billy’s visitation. The orders were based on concerns about Billy’s continued drug use. During the same time period, Billy failed both of his court-ordered drug tests, testing positive for methamphetamine and amphetamines in August 2016 and again in November 2016. A few months later at trial, the court heard additional testimony and evidence regarding Billy’s drug use and history of drug addiction. Billy admitted at trial that he had used drugs at home and “had some issues with drugs.” Billy did not testify that those issues had been addressed, nor is there any evidence that they were. There is no evidence in the record that Billy ever passed a drug test during the course of this case, and the results of his November 2016 drug test suggested that his drug use had actually increased. Despite these issues, the court’s final judgment awarded Billy substantial unsupervised visitation, including alternating weekends, holidays, and four weeks in the summer. The court’s opinion discussed Billy’s drug use and failed drug tests, but the court did not explain why supervision of his visitation was no longer necessary. Nor did the court require Billy to take any additional drug tests. Christina argues that the chancery court abused its discretion by permitting unsupervised visitation.

¶68. As stated above, in setting the terms of visitation, the chancery court “must keep the best interest of the child as [the court’s] paramount concern.” Harrington, 648 So. 2d at 545. Here, the chancery court initially restricted Billy’s visitation because of concerns about his drug use, and Billy continued to test positive for methamphetamine—and never passed a single drug test. Nonetheless, in its final judgment, the chancery court awarded Billy unsupervised visitation. Moreover, the court did so without providing any explanation as to why supervision was no longer necessary. For the reasons discussed above, it is necessary for us to reverse and remand the case on other grounds. We further hold that on remand the chancery court must determine whether unsupervised visitation is consistent with the children’s best interests and whether supervision is necessary to avoid harm to the children. It has been more than a year and a half since the final judgment was entered, so the chancery court should consider evidence regarding Billy’s exercise of unsupervised visitation during that time and the “circumstances at the time of the remand hearing.” Vaughn v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010). The court may also consider whether Billy should be required to submit to additional drug tests. See McLemore, 762 So. 2d at 322 (¶19).

Most of the heavy lifting in these cases is done by the side looking to impose restrictions on visitation. This case gives you a blueprint for the type evidence that the COA is looking for in the record to justify restrictions.

On the other hand, if you’re fighting restrictions and you feel that the chancellor has not sufficiently justified the non-imposition, file a R59 motion and make a request per R52(b) for the court to amend its ruling to make additional findings that support it.

Late Filing Requirements in MEC

February 12, 2019 § Leave a comment

It’s a nettlesome thing when all are assembled in the courtroom for hearing at the appointed time, and there is an announcement that one party filed a sheaf of papers at 5 pm the evening before. The filing may have been a pleading, or affidavits in a R56 case, or a counterclaim, or a defense, or supplemental discovery, or whatever. But the bottom line is that the judge, who conscientiously prepares for hearing by reviewing pleadings and other matter scheduled to come before her, has not seen any of it.

This situation is actually addressed in the MEC rules (officially named the Electronic Courts Administrative Procedures) at Section 3.A.10, which reads:

All motions, pleadings, and other papers filed electronically during or within twenty-four hours prior to a trial, hearing, or other proceeding relating to the case in which the filing occurs shall be accompanied by a paper copy of the filing to be distributed to the appropriate chambers by the clerk.

Clearly one can not comply with the letter of the rule if the filing is after the clerk’s office is closed for the day. My advice is to get a copy to the clerk’s office immediately when it opens for business with the request that the clerk deliver it to the judge right away. There will still be chagrin, but the bruise will not be as deep.

Oh, and you will make your judge and staff attorney happy if you will include in your notices of hearing and orders setting hearings the MEC document numbers for all pleadings and motions that will be presented. That goes, too, for respondents and defendants. Notify the court of the document numbers that the court is required to review before taking the bench. It’s more than a simple courtesy; it’s what the judge needs to be prepared. In this district we will not sign an order setting a matter for hearing, and you can not get a setting for a hearing until you provide the MEC document number(s).

Who Gets to Challenge Constitutionality?

February 11, 2019 § Leave a comment

In the divorce judgment entered between Michael and Joesie Gerty, the chancellor sua sponte declared MCA § 93-5-2 (divorce on the ground of irreconcilable differences) unconstitutional.

Michael, Joesie, and the State of Mississippi all filed R59 motions asking the court to set aside that part of her ruling because no party had pled, argued, or offered evidence on the issue. The chancellor did not change her ruling, and all three movants appealed.

In Gerty and Mississippi, ex re. Hood v. Gerty, decided December 13, 2018, the MSSC reversed on the issue of constitutionality. Justice Randolph’s opinion for a unanimous court made short work of the issue:

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s constitutionality will not be considered unless it has been specifically pleaded. See Martin [v. Lowery], 912 So. 2d [461] at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss. 2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260 (1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437 So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor’s judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

The opinion does not describe the basis for the chancellor’s ruling of unconstitutionality. In Footnote 5, the opinion states that, “An amicus brief was filed by the Misssissippi Coalition Against Domestic Violence in support of the chancellor’s finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”

The court reversed and remanded on other issues raised by the parties.

At ¶5, this enigmatic statement appears: “Today’s case … is unique but not unprecedented … ” It seems to me that something unique is by its nature unprecedented.

This case, involving a sua sponte unconstitutionality ruling, is not a scenario you are likely to encounter, but, as the precedent shows, it is in the realm of possibility.

How Would You Change Rule 81?

February 8, 2019 § 4 Comments

If you were the Autocrat of Mississippi Chancery jurisprudence, what changes, if any, would you make to R81 to improve its functionality?

The Supreme Court’s Advisory Committee on Civil Rules is studying the entire MRCP, at the request of the court, to update and recommend changes. R81 will be coming up soon.

Please leave a comment. I will pass all of them along to the committee, although I will only vouch for the ones with which I agree.

This is your chance to have some input.


Legislation of Interest to the Bench and Bar

February 6, 2019 § Leave a comment

In years past I have painstakingly gone through and edited the list of legislation sent to us judges by the AOC to provide readers of this blog with pending bills that might be of interest.

This year I am providing a link to the Clay Firm’s legislative list posted by the State Bar. The Clay Firm is the Bar’s lobbyist.

Click on this link to access the list.

You should be able to follow each bill as it makes its way through the legislative labyrinth.


About-Face in a Default Judgment Case

February 5, 2019 § Leave a comment

In July, 2018, we posted here about the case of Emery v. Greater Greenville Housing, decided by the COA on June 12, 2018. In that decision the COA affirmed a chancellor’s denial of Emery’s motion to set aside a default judgment. Emery filed a motion for rehearing.

On January 8, 2019, the COA denied the motion for rehearing, but went on to withdraw its prior opinion, substituting a new opinion that reversed the chancellor for the reason that Emery had shown a colorable defense to the action, which is the second element of the three-prong balancing test of R60(b).

In its January, 2019, opinion in Emery v. Greater Greenville Housing, by Judge Carlton, the COA reversed and remanded. On the matter of R60(b)’s balancing test, the court said this:

¶24. As the Mississippi Supreme Court has explained, “[a]ccording to Rule 55(c), a default judgment may be set aside ‘[f]or good cause shown’ and in accordance with Rule 60(b).” BB Buggies Inc. [v. Leon], 150 So. 3d [90] at 101 (¶23) (quoting M.R.C.P. 55(c)). The Court has articulated a three-pronged balancing test the trial court must apply in determining whether to set aside a judgment pursuant to Rule 60(b):

(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.

Id. As noted above, we apply an abuse of discretion standard in reviewing the chancery court’s denial of Emery’s motion to set aside the default judgment. If the chancery court’s decision is based upon an error of law, however, we will reverse. Tucker [v. Williams], 198 So. 3d 299, 309 (¶24).

As for the factor of “good cause,” the COA agreed with the chancellor that Emery had failed to establish that he had good cause. He had failed to file any answer whatsoever, and did not demonstrate good cause for his failure. The court pointed out at ¶32, ” ‘However, lack of good cause alone will not prevent the Court from setting aside a default judgment if the other two factors weigh in favor of setting it aside.’ B.B. Buggies Inc., 150 So.3d at 102 (¶24) … ‘ ”

The court explained the element of colorable defense this way:

¶33. The Mississippi Supreme Court has “held unequivocally that the second factor [in the Rule 60(b) balancing test], the presence of a colorable defense, outweighs the other two, and [the Supreme Court has] encouraged trial courts to vacate a default judgment where the defendant has shown that he has a meritorious defense.” BB Buggies Inc., 150 So. 3d at 102 (¶25) (internal quotation marks omitted). In addressing the definition of a “colorable defense,” the Court has explicitly stated that “[a] colorable defense is one that reasonably may be asserted, given the facts of the case and the current law.” Tucker, 198 So. 3d at 312 (¶35). Further, “[a] defense need not be compelling, be proven to trial standards, or be supported by sworn evidence in order to qualify as a ‘colorable defense.’. . . Rather, the defense must be a reasonable one.” Id. (citation omitted). “Indeed, [the Mississippi Supreme] Court has held that even a defense of ‘questionable’ strength may be colorable.” Id. (quoting Woodruff, 143 So. 3d at 553 (¶18)).

The court went on to conclude that Emery had proven a colorable claim that necessitated setting aside of the default judgment.

On the final prong, prejudice to the plaintiff if the default is set aside, the court at its ¶45 cited B.B. Buggies yet again for the proposition that “prejudice does not result from the loss of rights that were obtainable only by default. B.B. Buggies, Inc., 150 So. 3d at 104 (¶31) …  ,” and found no prejudice to the plaintiff.

If you handle matters that involve default judgments the COA’s decision in this case bears closer reading. This was a deed reformation case, but the rule’s application can arise in many different types of chancery cases.

Trial in Absentia

February 4, 2019 § Leave a comment

How far is a chancellor required to go in accommodating requests for continuances? It’s a ticklish proposition that requires weighing competing interests, as one may conclude from a recent case.

Malinee Johnson filed for divorce from her husband Daniel in December, 2012, after 14 1/2 years of marriage. She charged Daniel with habitual cruel and inhuman treatment (HCIT). The chancellor entered an agreed order setting the matter for trial on August 5, 2014. Four days in advance of the trial date, Daniel filed a motion for continuance alleging illness. The judge granted the motion, but did assess Malinee’s witness expenses to Daniel.

On November 5, 2014, Daniel’s attorney filed a motion to withdraw, which the court granted on January 12, 2015, nunc pro tunc to August 5, 2014.

Daniel’s replacement attorney entered an appearance on January 22, 2015, and a trial date was set for September, 2015. For some reason the trial was continued again to May 24, 2016.

On May 24, 2016, Daniel’s attorney appeared and announced that his client was in the hospital. The court agreed to the continuance, but pointed out that the case had been continued several times, and that if Daniel failed to appear yet again the trial would proceed in his absence. The judge encouraged the parties to take Daniel’s deposition, presumably to preserve his testimony.

The court set a new trial date by agreed order for November 16, 2016, which was two weeks after the second anniversary of the case’s filing. Yet, on the appointed date, Daniel did not appear. His attorney pled surprise and said that Daniel had not contacted him, but he told the judge that he knew from independent sources that Daniel was in the hospital. The attorney moved to withdraw. The chancellor denied the motion and proceeded with trial in Daniel’s absence. The only witnesses were Malinee’s.

Following hearing the judge granted Malinee a divorce on the ground of HCIT. Daniel appealed claiming error for the chancellor proceeding without him, and further for granting a divorce on HCIT with insufficient proof.

In Johnson v. Johnson, decided January 8, 2019, the COA affirmed. Judge Greenlee wrote the unanimous opinion (McDonald, Lawrence, and McCarty not participating):

¶14. “It is well settled that the decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be reversed unless the decision results in manifest injustice.” In re E.G., 191 So. 3d 763, 772 (¶37) (Miss. Ct. App. 2016) (internal quotation mark omitted). “[T]here is no mechanical test for determining whether a continuance should be granted, and the circumstances of each case must be carefully examined, especially the reasons presented to the trial judge at the time the request is denied.” Harveston v. State, 742 So. 2d 1163, 1169 (¶21) (Miss. Ct. App. 1999).

¶15. Here, Daniel argues that chancery court’s denial of his continuance requires reversal because he was not afforded the opportunity to present a defense. Although the chancery court noted in its final judgment that it declined to continue trial to another date, the record does not show that Daniel’s attorney requested to continue the November 16, 2016 trial. Even assuming Daniel’s attorney did make such a request, we find the chancery court did not err by declining to continue the matter.

¶16. Daniel did not provide the chancery court with any verification of his claim that he was hospitalized, and therefore, the chancery court had only the representation of Daniel’s uninformed and surprised trial counsel. Under these facts, the chancery court did not err by denying to grant a continuance. See Pace [v. Pace], 16 So. 3d [734] at 740 (¶24) (holding the chancery court did not err by failing to grant a continuance to a party that failed to provide verification that he was at the hospital on the day of trial). Daniel forfeited his right to testify when he failed to appear at the trial. Lee v. Lee, 78 So. 3d 326, 329 (¶13) (Miss. 2012). Moreover, Daniel ignored the chancellor’s prior suggestion that he have a deposition available to present in the event of his absence.

¶17. Absent Daniel’s defense, Nikki was still required to prove the alleged ground for divorce. Turner v. Turner, 73 So. 3d 576, 583 (¶30) (Miss. Ct. App. 2011). “If that is done, the chancellor has authority to grant the divorce despite the absence of the defendant.” Carlisle v. Carlisle, 11 So. 3d 142, 145 (¶12) (Miss. Ct. App. 2009). Finding the chancellor did not err by failing to grant a continuance, we proceed to review whether sufficient proof supported the judgment of divorce.

As mentioned in the final paragraph, the court went on to affirm on the issue of granting the divorce.

If you don’t provide “verification” (to use the COA’s term) that your client is legitimately unavailable, you won’t have much to argue on appeal. Documentation in the form of a doctor’s affidavit or medical record affidavit would meet the requirement of verification, in my opinion. You may support your position with an affidavit per MRCP 43(e), unless the court directs oral testimony or depositions. Although you are an officer of the court, the chancellor may not consider your “uninformed and surprised” announcement to be verification enough.



“Quote Unquote”

February 1, 2019 § Leave a comment

“We have these immense possibilities of making something of ourselves, but we get sidetracked, by being a man, by being a woman, or being black, being white. All the dichotomies that Western thinking pushes us into.”  —  John Edgar Wideman

“Where, after all, do universal human rights begin? In small places, close to home — so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”  —  Eleanor Roosevelt

“The black, the white, the brown, the red, the yellow, the hetero, the homo, the trans, the poor, the rich, the literate, the illiterate, the weak, the strong — all are my sisters and brothers. My life is their life.”  —  Abhijit Naskar

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