Reading

March 29, 2019 § 2 Comments

Their Eyes Were Watching God, by Zora Neale Hurston. An African-American woman looks back on her metamorphosis through the 1920’s from naive girl to teen to marriage and ultimately independent widowhood, surviving racial oppression, hurricane, violence, and sexism. Hurston is controversial, but her writing is full of humanity and insight. Fiction.

Fordlandia, by Greg Grandin. Who knew that Henry Ford in the 1920’s bought a tract of land three times larger than Rhode Island in the Amazon jungle with the goal of establishing an American-clone utopia and, at the same time, raising rubber trees to avoid Britain’s monopoly? This is the true story of his spectacular failure, its huge cost, and the people who unsuccessfully fought nature and natives for Mr. Ford. Non-fiction.

The Half has Never Been Told, by Edward E. Baptist. A compelling argument that the meteoric rise of the US economy in the nation’s first fifty years and after was directly due to slavery, in both the north (until abolition) and the south. He attacks the widely held notion that slavery was unprofitable and inefficient, explaining how the system worked and produced massive wealth, and supports his position with facts and figures. Baptist weaves in stories of particular slaves and areas to illustrate his points, along with economic data. This well-written book will hold your attention. Non-fiction.

Things Fall Apart, by Chinua Achebe. The fictional story of Nigerian Igbo tribal leader Okonkwo, his rise in power, his downfall, and the ultimate disaster of his tribe’s traditions and culture brought about by the arrival of white European missionaries. Achebe’s portrayal of tribal ways, religion, mysticism, and customs skillfully immerses the reader in a primitive culture that is unexpectedly sophisticated and complex. Fiction.

Prisoners of Geography, by Tim Marshall. Geopolitics for Dummies. Marshall explains why certain historical events are not only shaped by, but also are made inevitable by, geography. Non-fiction.

The Romanovs, 1613-1918, by Simon S. Monterfiore. History of the Tsars of Russia during the Romanov dynasty. The author draws not only on historical sources, but also on rumor and gossip, which makes for a juicy and spicy stew of back-room entertainment. Extravagant, despotic, autocratic, vicious, enlightened, powerful, psychopathic, murderous, generous, venal, adulterous, paranoid, patrons of the arts, vulnerable, militaristic, and more, the Romanovs held the immense expanse of their nation together for more than 300 years. Mostly non-fiction.

Devil in the Grove, by Gilbert King. In Groveland, Florida, in 1949, four young black men are falsely accused of raping a white woman, and young lawyer Thurgood Marshall comes to their defense for the NAACP. This distressing tale tells of Marshall’s valiant efforts, and the white power structure that sought to thwart him at every turn. The toxic blend of murder, violence, racism, and poverty in the pre-civil-rights era is on full display, along with vignettes of similar injustices in neighboring states. Non-fiction.

Sing, Unburied, Sing, by Jesmyn Ward. Exploring the lives and interrelationships of a poor, rural family on the Mississippi Gulf Coast. It becomes an episodic novel of a black woman’s journey to meet her white husband at Parchman on his release, told from different points of view of various characters, as well as that of a dying grandmother and her spirit, and the spirit of a long-dead prisoner. Fiction.

War and Peace, by Leo Tolstoy. Okay, this is more of a victory lap than a review. On my fifth try I made it through all 1,450 pages. Bravo for me. Fiction.

Phantom Income and its Impact on Child Support

March 27, 2019 § 1 Comment

We continue in this trifecta of posts to dissect the immensely instructive MSSC case Williams v. Williams today, turning our attention to child support.

Although it has been famously said that the 8.05 financial statement is the “gold standard” of financial proof in chancery court (you can read about that here), the fact is that chancellors must often go beyond the 8.05 to make financial awards.

That’s what happened in the divorce between Tracy and Brent Williams. Tracy had claimed $1,010 in income on her 8.05, but the chancellor ordered her to pay $1,000 a month in child support. Tracy appealed, arguing that the trial court was in error.

The MSSC unanimously affirmed in Williams v. Williams, handed down January 17, 2019, in which Justice Beam wrote for the court:

¶12. “This Court has said that an award of child support is a matter within the discretion of the chancellor and that determination will not be reversed unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion.” Clausel v. Clausel, 714 So. 2d 265, 266 (Miss. 1998) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 622 (Miss. 1992)). Furthermore, “[t]he process of weighing evidence and arriving at an award of child support is essentially an exercise in fact-finding, which customarily significantly restrains this Court’s review.” Id. at 266-67.

¶13. At the trial of this matter, Tracy alleged her adjusted gross income was $1,010.87 in her Uniform Chancery Court Rule 8.05 financial statement, so $1,000 in child support would consume all of her income. Tracy owns a daycare, Kaco’s Kids, and, according to the tax returns admitted into evidence at the trial, Tracy’s 2013 self-employment earnings were $152,090; her gross earnings were $242,763 per year, or $20,230.25 per month, in 2013. She testified that she paid over $15,000 to pay off the note on Tennessee property that she and Brent owned. She purchased a new home in October 2015. She refused to allow Brent to sell timber on the Tennessee property in order to pay the Tennessee’s property’s remaining debt and instead paid the note herself. Tracy’s daughter Kaitlyn testified that Tracy told her she had purchased an airplane and a boat.

¶14. While the standard for child support for one child is 14 percent of the adjusted gross income, pursuant to Mississippi Code Section 43-19-101 (Rev. 2015), a court may impute income to a payor whose reported income is clearly inadequate to support his or her actual lifestyle. See Deborah H. Bell, [… Bell on Mississippi Family Law] § 10.04[4][c] (1st ed. 2005). In Dunn v Dunn, on remand, a chancellor found that a father was not being honest about his ability to pay child support. Dunn v Dunn, 695 So. 2d 1152, 1156 (Miss. 1997). “The record reflects circumstances which do substantiate doubts about Michael’s inability to pay . . . his willingness to partake in various entertainment activities . . . .” Id. This Court affirmed the ruling of the chancellor, because the child support amount exceeded the statutory guidelines. Id.

¶15. The Court in Dunn analogized Grogan v. Grogan, in which this Court had held that a child-support award in excess of the statutory guidelines is appropriate when the chancellor is unsure about the father’s true earning potential. Dunn, 695 So. 2d at 1157 (citing Grogan v. Grogan, 641 So. 2d 734, 741 (Miss. 1994)). The Grogan Court had found that the chancellor did not err in imputing income to the father when evidence showed that he was not being truthful about his finances. Id.

¶16. Here, the chancellor found that “Mom is obviously . . . she is making quite a great deal of money.” Based on the evidence, the record does not support her claim that her adjusted gross income is $1,010.87; therefore, the chancellor properly imputed additional income to Tracy.

¶17. Tracy makes other arguments to contest the child-support award, but this Court finds these are without merit. Tracy argues that Kendall has no expenses. Although Kendall has a full scholarship to attend IMG Academy, which costs $78,000 a year, Brent is still responsible for $4,600 of Kendall’s other expenses, and the court found that Tracy should contribute. From the date Brent and Tracy separated, Tracy has not paid any child support for Kendall. Tracy argues that child support can be suspended during college and/or forfeited due to the child’s conduct; however, the chancellor already determined that Tracy would not be required to pay half of the college expenses if the child does not have a viable relationship with her. The Court is unpersuaded by Tracy’s attempt to argue that she needs a visitation schedule while simultaneously arguing she should not have to support the child who does not want to visit her. Accordingly, the chancellor did not err in requiring Tracy to pay child support in the amount of $1,000 per month.

Does anybody go over their clients’ 8.05’s with them for accuracy before going to trial anymore?

The Right to a Visitation Schedule

March 26, 2019 § Leave a comment

In the divorce between Tracy and Brent Williams, the chancellor granted custody of their 17-year-old son to Brent, and declined to set a visitation schedule. Tracy appealed, complaining that the chancellor was in error in not setting a specific schedule.

In Williams v. Williams, decided January 17, 2019, the MSSC affirmed. Justice Beam wrote for a unanimous court:

¶6. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (citing White v. Thompson, 569 So. 2d 1181 (Miss. 1990)). “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. At the trial of this matter, the chancellor ruled,

Mom can have visitation with the child to be agreed upon between Mom and the child. The Dad is ordered not to interfere with the visitation, but, as I stated earlier, Mom’s actions and her continued actions and interference with this child have caused this alienation. It is not Dad’s fault, and so, I am not placing a burden – I’m not giving you a specific visitation schedule because I’m not placing a burden on Dad to make this child visit.

¶7. Tracy argues that the chancellor erred by allowing a child to set visitation at his discretion. While the chancellor acknowledged that her ruling on visitation was different from her normal practice, she found that Kendall’s desires and wishes should be taken into consideration. Trial revealed that Tracy had removed Kendall’s possessions, furniture, and rifle from the marital home, as well as his money jug containing $800. The court found that Kendall had viewed his mother’s actions as a personal affront. Tracy refused to provide Kendall the necessary documentation to complete driver’s education, to receive a passport so he could travel outside the United States with the USA baseball team, or to transfer from
Magnolia Heights School to a DeSoto County school for better baseball opportunities. The chancellor stated, “Quite honestly, I think she’s done some things that I think indicate that she’s much more interested in getting her own way than in thinking about what’s in the best interest of her child.”

¶8. Tracy correctly stated that this Court has made it clear that the objective of visitation is that “the non-custodial parent . . . and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609
So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1999)). However, this Court has also found that, while a non-custodial parent is presumptively entitled to visitation as stated in Griffin v. Griffin, that presumption can be overcome when “substantial evidence” justifies doing so. Griffin v. Griffin, 237 So. 3d 743, 747 (Miss. 2018) (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Cf. Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).

¶9. In Griffin, the chancellor denied a mother visitation with her four daughters because visitation was not in the children’s best interests. Griffin, 237 So. 3d at 745-46. The mother was incarcerated in the Washington County Correctional Facility in Greenville, Mississippi, four hours away from where the daughters lived. Id. In order to exercise visitation, the daughters would have to be searched and exposed to the prison environment. Id. The chancery court held that the presumption of visitation had been overcome. Id. at 746. “The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance
between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest.” Id. at 749 (citing Harrington, 648 So. 2d at 545). On appeal, this Court affirmed the chancellor’s ruling.

¶10. Although the facts of this case differ, the principle that a presumption of visitation can be overcome with sufficient evidence remains the same. Kendall is eighteen years old and is living in Florida to pursue his baseball career. Although the chancellor had only become aware of Kendall’s new schooling in Florida just before her ruling, the knowledge did not change her mind about visitation. She stated,

And there is a huge big rift to heal. And I know forcing him to come to your house every other weekend – which you can’t do because he’s living in Florida, anyway – is not going to fix that situation. And I want y’all to figure out some way – you know, as I said, maybe this time and distance will help fix it.

¶11. Based on the facts presented at trial, this Court finds that the chancellor did not err in declining to set a visitation schedule under these unique circumstances. Given the broad deference afforded chancellors in visitation matters, we affirm the chancellor’s ruling. Tracy and Brent can travel to Florida any time to support and to visit Kendall while he pursues his baseball dreams.

You can take away that the default setting is for there to be a visitation schedule that defines the terms of visitation. You can overcome that if you put on enough proof that a visitation schedule would not be in the child’s best interest.

A post on the Griffin case can be found at this link.

Whose Values Count?

March 25, 2019 § Leave a comment

In the course of their divorce proceedings, the chancellor twice requested both Tracy and Brent Williams to submit a list of assets, values, and debts. When they came to trial, only Brent did so, and Tracy even listed the value of her business, a daycare, as unknown. The chancellor used Brent’s figures upon which to base equitable distribution. Tracy appealed, arguing that the chancellor erred in not appointing appraisers, even though she never made that request of the trial court. She argued that the valuations were not accurate due to depreciation.

The MSSC affirmed in Williams v. Williams, decided January 17, 2019. Justice Beam wrote for a unanimous court:

¶19. While we note that “expert testimony may be essential to establish valuation sufficient to equitably divide property, particularly when the assets are diverse . . . ,” Ferguson v. Ferguson, 639 So. 2d 921, 929 (Miss. 1994), we also recognize and “reiterate the principle that findings on valuation do not require expert testimony and may be accomplished by adopting the values cited in the parties’ 8.05 financial disclosures, in the testimony, or in other evidence.” Horn v. Horn, 909 So. 2d 1151, 1165 (Miss. Ct. App. 2005) (quoting Ward v. Ward, 825 So. 2d 713, 719 (Miss. Ct. App. 2002)).

¶20. Here, the record reflects that only Brent attempted to provide the chancellor with evidence regarding the valuations of the parties’ business interests, and the chancellor used those valuations as reflected in her opinion. Tracy’s argument that the chancellor committed reversible error by not appointing experts to appraise the current valuations due to depreciation is without merit. This Court refuses to blame the chancellor for a party’s failure to present sufficient evidence of property valuation. Faced with similar circumstances, we stated the following in Dunaway v. Dunaway:

It is our conclusion that the chancellor, faced with proof from both parties that was something less than ideal, made valuation judgments that find some evidentiary support in the record. To the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor. The chancellor appears to have fully explored the available proof and arrived at the best conclusions that he could, and we can discover no abuse of discretion in those
efforts that would require us to reverse his valuation determinations. Dunaway v. Dunaway, 749 So. 2d 1112, 1121 (Miss. Ct. App. 1999). As explained in Dunaway, the chancellor’s duty is not to obtain appraisals of the marital property. Id. Further, the Dunaway court found that, while expert testimony about property valuations might be helpful in some cases, it is not required, and the chancellor may consider other
evidence presented by the parties. Id.

¶21. Tracy did not come forth with expert testimony or any other valuations of the businesses; therefore, the chancellor used the available proof, including Brent’s valuations, and arrived at the best conclusion that she could. Accordingly, this Court finds the chancellor did not err in the valuation of the Williams’s business interests.

I’ve said it here before that it’s often breathtaking how little attention lawyers give to adequate proof of values in divorce cases. That forces judges to do their dead-level best with scanty evidence. It can leave your clients disappointed in the outcome at the least, and mad as a hornet at you at the worst.

It’s malpractice in a divorce case to merely accept your client’s 8.05 as scribbled out by her without going over it and questioning every item, or at least the ones that appear out of line, and without making sure it is complete, with values and itemization of debt.

In this district, as the judge in this case did, we require an asset table showing the parties’ values, designation as marital or non, and debt. The list must be consolidated, meaning that there is one list. That way the judge is not required to figure out whether the “green sofa, $600” on her list is the same as the “couch in living room, $2,000” on his list are the same thing. We also will not give you a trial setting unless and until you produce that list. In cases where one party decides not to participate in that exercise, we accept the unilateral list and proceed to trial.

Reprise: Handling the Insolvent Estate

March 22, 2019 § Leave a comment

Reprise replays posts from the past that you might find useful today.

INSOLVENT ESTATES

January 13, 2011 § 4 Comments

When the debts and expenses of the estate exceed the value of its assets, the estate is said to be insolvent, and there is a procedure for adjudication of insolvency, satisfaction of creditors, and payment of administration expenses that is spelled out in MCA § 91-7-261 through -268.

The estate is insolvent when its debts and the expenses of administration exceed the value of the real property and the other property that is not exempt.  You can find out more about exempt property here.

Either the administrator or a creditor may petition the court to adjudicate its insolvency.

MCA § 91-7-261 sets out the procedure to determine insolvency.  The administrator is required to “take proper steps speedily to ascertain whether the estate be solvent or insolvent.”  If the administrator finds that the estate is insolvent, she files a “true account” itemizing all of the personal estate, assets of every description, the land of the deceased, and all of the deceased’s debts.  Notice is given to the devisees or heirs, and the matter is presented to the court for hearing.  If the court determines from the account that the estate is indeed insolvent, the chancellor will order that the assets be sold and that the expenses of ” … the last sickness, the funeral, and the administration, including the commissions …” are first paid out of the proceeds,” and that any remaining proceeds be divided among the creditors ” … in proportion to the sums due and owing them respectively …”

The procedure for distribution of remaining proceeds among the creditors is provided in MCA § 91-7-269.  After the time to probate claims has elapsed, a notice is published for three consecutive weeks in a newspaper published in the county that the claims against the estate will be taken up by the court on a day and at a time certain, that any and all claims not required by law to be probated shall be filed with the clerk by a stated date, and that all creditors may attend.  A hearing is held at which the administrator may object to any claim, evidence is presented pro and con, and the court may either allow it in whole or in part, or reject it in whole or in part.  The administrator may file a verified application to be reimbursed for claims paid prior to the adjudication of insolvency, and the court shall treat them as if they had been properly probated.

MCA § 91-7-271 provides that the allowed claims shall be paid pro rata, and any creditor not paid within ten day of the court’s order shall have execution against the executor or administrator and the sureties on his bond.

Any suit pending against the executor or administrator at the time of insolvency does not abate, but may be prosecuted to final judgment, according to MCA § 91-7-273, but -274 bars suits from being filed after the estate is declared insolvent.  You should read -273 carefully for the effect of and payment of a judgment against the estate for suits that were pending when the insolvency is determined.

Blueprint for Proving Fraud on the Court

March 20, 2019 § 2 Comments

If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.

Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.

In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:

(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;

(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;

(3) the facts must not have been known to the injured party at the time of the original decree; and

(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.

Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.

Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.

If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.

In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “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.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].

How Not to do a R81 Summons

March 19, 2019 § Leave a comment

It should go without saying that the chancellor may not proceed unless and until she has personal jurisdiction over the defendant or respondent. If process is defective, there is no personal jurisdiction, and any action the chancellor takes is of no effect.

That principle came painfully into play when Nancy Edwards sued her ex, Johnny Edwards, for contempt and modification. After hearing the matter, the chancellor found Johnny in contempt, ordered him to do certain acts to purge himself of contempt, and directed a review hearing. A R81 summons was issued directing him to appear at a stated date and time “in the courtroom of the Oktibbeha County Courthouse at Columbus, Mississippi.” When the matter came before the judge and Johnny did not appear, the court found him in contempt and granted other relief. Johnny appealed.

The COA reversed and remanded in Edwards v. Edwards, decided February 12, 2019. Chief Judge Barnes wrote for the unanimous court sitting en banc:

¶9. The first assignment of error raised on appeal is that the summons was defective. As noted, the summons directed Johnny to appear on May 15, 2017, at the “Oktibbeha County Courthouse at Columbus, Mississippi.” (Emphasis added). The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus. Columbus is located in Lowndes County. “[A] court may take judicial notice that a city is in a particular county.” Russell v. State, 126 So. 3d 145, 148 (¶8) (Miss. Ct. App. 2013). The record also indicates that the chancery court conducted hearings in various counties throughout its district, including Oktibbeha, Lowndes, and Chickasaw.

¶10. Rule 81 mandates that in certain actions, such as contempt, “special notice be served on a respondent for a hearing with a date, time[,] and place specified.” Bailey v. Fischer, 946 So. 2d 404, 406 (¶7) (Miss. Ct. App. 2006); see also Sanghi [v. Sanghi], 759 So. 2d [1250] at 1256 (¶28) [(Miss. App. 2000)] (The only required information for a summons under Rule 81 “is that a party is to be told the time and place for the hearing and that no answer is needed.”). In Caples v. Caples, 686 So. 2d 1071, 1074 (Miss. 1996), the Mississippi Supreme Court found notice issued to a respondent was defective and “inconsistent with Rule 81,” even though the respondent made an initial appearance, because the notice did not contain the time and place of the hearing and required a written response to the complaint.

¶11. In this instance, the Rule 81 summons failed to specify the correct place for the hearing. [Fn omitted] Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus. Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.

An unmentioned corollary is that close is not good enough when it comes to process. The process on its face must comply in every particular with R81 (or R4 if that governs the action in which you are proceeding), and “substantial compliance” is not adequate. The only cure for defective process is voluntary appearance of and participation by the summoned party without objection to personal jurisdiction.

Resource for Interpreters

March 18, 2019 § Leave a comment

When you need an interpreter for court, it’s a critical need, indeed. Without one key testimony might be entirely inaccessible.

The AOC is responsible for training and certifying interpreters. As the AOC website explains:

Many people living in Mississippi readily read, speak, and understand English. There are many others living in Mississippi for whom English is not their primary language and for whom English is not readily understood. For those limited English proficiency (LEP) individuals, understanding and exercising their legal rights may be difficult and could result in the denial of any meaningful access to the justice system.

Court interpreters must possess specialized skills that very few bilingual individuals possess. The Mississippi Administrative Office of Courts (AOC) became a member of the Consortium for Language Access in the Courts of the National Center for State Courts in order to gain access to other professionals in the field of Court interpreting. The Administrative Office of Courts has developed the Mississippi Court Interpreter Credentialing Program, based on model policies promulgated by the Consortium, in order to assist the courts in Mississippi in their endeavor to provide equal access to justice for limited English proficiency individuals. This program will train, certify, and test individuals who wish to serve as interpreters in the courtrooms of Mississippi. The AOC adopted the Code of Ethics for Court Interpreters and the Rules on Standards for Court Interpreters on October 17, 2011.

The AOC court interpreter web site is at this link. Or, you clan click the AOC tab on the Mississippi Judiciary website.

Whom to appoint as interpreter is within the discretion of the trial court. AOC suggests that candidates be considered in this order: (1) Certified, meaning that the person has been found to have the requisite skills, has undergone training in courtroom techniques and ethics, and has been certified; (2) Registered, meaning that the person has applied for certification but has not completed the process; and Non-credentialed, meaning that the person is neither certified nor registered.

Changing Rule 81

March 15, 2019 § 5 Comments

As I did last month, I invite your comments and suggestions as to how MRCP 81 might be amended to improve its performance. Or maybe you think it’s fine as is. Please comment and let me know your thoughts.

The MSSC Advisory Committee on Civil Rules is combing through the MRCP to suggest amendments. Your thoughts as practitioners and judges will be helpful in the process.

A Less-Than-Final Judgment

March 13, 2019 § Leave a comment

The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.

On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.

You file a R59 motion, which is denied.

Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?

The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.

The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.

The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.

Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.

Where Am I?

You are currently viewing the archives for March, 2019 at The Better Chancery Practice Blog.