May 14, 2019 § 5 Comments
You might recall that in the case of MDHS v. Watts, 116 So.3d 1056 (Miss. 2012), the MSSC held that a chancery court was not required to hold its exclusive jurisdiction over adoption in abeyance to allow a youth court to proceed to termination of parental rights (TPR) of the parents.
When Watts was decided, there were two TPR statutes: one was a stand-alone statute that allowed for TPR without adoption (although that was proven not true in Chism v. Bright), and the other was part of the adoption statute.
Some four years after Watts the legislature amended the TPR and adoption statutes and made important changes that had the effect of eviscerating Watts. It added MCA § 93-17-7(1) to the adoption statutes. That section states: “No infant shall be adopted to any person if a parent whose parental rights have not been terminated under the Mississippi Termination of Parental Rights Law (MTPRL), after having been summoned, shall appear and object thereto before the making of a decree of adoption.” Simply put, now all TPRs proceed under the MTPRL.
Another change was to MCA § 93-15-105. Added is subsection (1), which says that if the youth court has taken jurisdiction over an abused or neglected child, it has original exclusive jurisdiction over any TPR proceeding as to the parents of that child. In the case of M.A.S. v. MDHS, 245 So.3d 410, 415 (Miss. 2018), the MSSC held that:
¶ 17. There is also no longer competing jurisdiction between youth court and chancery court over parental-rights terminations involving abused or neglected children. House Bill 1240 added a new Section 93–15–105, which covers jurisdiction and venue of termination-of-parental-rights proceedings. Miss. Code Ann. § 93–15–105(1) (Supp. 2017). Under Section 93–15–105(1), “[t]he chancery court has original exclusive jurisdiction over all termination of parental rights proceedings” with one important exception. In direct contradiction to Watts, Section 95–15–105(1) unequivocally provides that a “county court, when sitting as a youth court with jurisdiction of a child in an abuse or neglect proceeding, has original exclusive jurisdiction to hear a petition for termination of parental rights against a parent of that child.” Miss. Code Ann. § 93–15–105(1) (Supp. 2017) (emphasis added).
¶ 18. This means that when a petition for adoption is filed in chancery court— as it must be [Fn omitted] — and the parents of that child contest the adoption, amended Section 93–17–7(1) now requires that the parents’ rights be terminated under the MTPRL before the contested adoption can be granted. The MTPRL provides that the chancery court also has jurisdiction over the termination proceeding unless the youth court already has jurisdiction over the child in an abuse or neglect proceeding. Miss. Code Ann. § 93–15–105(1) (Supp. 2017). If the youth court already has jurisdiction over the child in an abuse and neglect proceeding, then the youth court has exclusive original jurisdiction to hear a petition to terminate parental rights. So a person seeking to adopt the abused or neglected child no longer can simply seek the termination of the parents’ rights as part of her adoption petition. Instead, the MTPRL makes clear she must first petition for the termination of parental rights in youth court, before she can seek an adoption in chancery court.
Watts on Westlaw now flies a red flag.
It’s not all that uncommon for foster parents who have gotten a child by youth court action to want to adopt their child. As long as youth court retains jurisdiction, however, the prerequisite TPR must be in that court, and keep in mind that the goal in youth court is reunification, which is not necessarily the goal of chancery court.
May 13, 2019 § Leave a comment
When we think of the award of attorney’s fees in a divorce the first principle that comes to mind is “inability to pay.” We know and focus on the concept that the party with inability to pay will be entitled to attorney’s fees.
But inability to pay is only part of the formula. “The party seeking attorney’s fees is charged with the burden of proving inability to pay; usually where the party is able to pay his or her own attorney’s fees, an award of such fees is inappropriate.” Duncan v. Duncan, 915 So.2d 1124, 1128 (¶16)(Miss. Ct. App. 2005). [Emphasis added]
It’s that burden of proving that often is overlooked. The party’s mere assertion that he has the inability to pay, or a nodded affirmative to the question whether she can pay her own fees simply will not do the job. You have to put proof in the record that will support a finding by the judge that your client does not have the resources to pay.
In the COA case of Vandenbrook v. Vandenbrook, decided March 26, 2019, the court by Judge Carlton found the evidence lacking:
¶49. Based on our perusal of the record, the chancellor made no explicit findings addressing all of the McKee factors, either in her order, or on the record, but it can be surmised from the chancellor’s statement that she had considered them. [Fn 9] The more perplexing question is not the reasonableness of the amount awarded, but the basis for finding that Emma was not able to pay it. As noted, the chancellor stated: “But according to the McKee factors, you know, Emma has an inability to pay.” On the question of whether Emma had the ability to pay her own attorney’s fees, the chancellor offered no analysis of Emma’s financial condition that would support the conclusion that Emma was unable to pay them. During the chancellor’s discussion of the custody issue, she stated the following: “[Emma] has just entered the work force again, but it sounds like she’s got a stable job at this point. And it sounds like she has a stable home at this point.” We note that Emma testified that she could not pay her attorney’s fees. As stated, the burden was on Emma to prove that she could not pay her attorney’s fees. Although the decision to award attorney’s fees in a
divorce proceeding is left to the sound discretion of the chancellor, there must be evidence undergirding the chancellor’s decision that a party is unable to pay her attorney’s fees before an award can be made. Here, we find the record lacks such evidence. Therefore, we find that the chancellor erred in awarding attorney’s fees to Emma for the divorce proceeding, which ultimately resulted in Emma’s complaint for the divorce being dismissed. Accordingly, we reverse and remand the chancellor’s award of attorney’s fees for the chancellor to determine whether Emma has the inability to pay and to apply the McKee factors with supporting findings.
Fn 9 This Court in Evans v. Evans, 75 So. 3d 1083, 1090 (¶25) (Miss. Ct. App. 2011),stated the following: “While this [C]ourt has held that a chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So. 3d 84, 87(¶7) (Miss. Ct. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria.”
I seriously doubt that this is a case where the chancellor overlooked the evidence in the record or failed to recite what evidence it was she relied on. My guess is that she had no evidence other than Emma’s assertion in her testimony upon which to base her finding. Why do I say that? Because I see it time and again. As I have posted here many times, lawyers for the most part devote little attention to making an adequate record to support an award of attorney’s fees.
My suggestion is that you spend a little less time on the more flamboyant issues like proof of adultery, and more time on the 8.05. Questions like “What money do you have to pay your attorney’s fees? How much have you had to borrow to pay? Why did you have to borrow? What effect will it have on your ability to buy the children’s school clothes if you have to pay your own attorney’s fees?” And so on. Oh, and while you’re at it, be sure to quiz the adverse party on his ability to pay, because his inability to pay may negate your claim.
May 8, 2019 § Leave a comment
“Juries render verdicts; judges render judgments.” — Lawrence Primeaux
You can quote me on that.
It happens every now and then that someone moves for a directed verdict in a chancery court bench trial. That can create a problem because the standard for directing a verdict is considerably different from that for an involuntary dismissal.
The distinction was at issue in the COA’s case of Vermillion v. Vermillion, decided March 19, 2019. In that case, the chancellor granted the defendants’ (Robyn’s and Douglas’s) motion for a directed verdict and dismissed the plaintiff’s (Angela’s) pleading seeking grandparent visitation rights. Judge Carlton wrote for the court:
¶10. Angela argues that the chancellor erred in granting Robyn and Douglas’s motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2)–(3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.
¶11. We first address Angela’s procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, “applies in actions tried by the court without a jury, where the judge is also the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” Id. at (¶12) (emphasis omitted). We recognize that “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court’s judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id. at 1006 (¶18); Ladner v. Stone County, 938 So. 2d 270, 273 (¶¶9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.
¶12. In applying this standard, we recognize that “[a]ppellate courts . . . employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts” at a jury trial. All Types Truck Sales, 178 So. 3d at 758 (¶13). Rule 41(b) involuntary dismissals are reviewed under a “substantial evidence/manifest-error standard,” rather than the de novo standard applied when reviewing directed verdicts. Id. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting Gulfport-Biloxi Reg’l Airport Auth., 937 So. 2d at 1004 (¶13)). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id.
The court went on to analyze the evidence and the judge’s ruling and found no error in the dismissal despite the wrong standard.
This case illustrates how you can hand your opponent a ground for appeal simply by using incorrect terminology. Save your directed verdicts for jury trials. That’s where they belong. Bench trials call for a motion for involuntary dismissal per MRCP 41(b) at the conclusion of the plaintiff’s case.
May 7, 2019 § 2 Comments
After the trial court denied her petition for modification of custody, Joni Warner filed something she called a Motion for Reconsideration. As I have posted here before, there is no such thing as a motion for reconsideration under the MRCP, and the use of that term poses a challenge not only to the trial court that is called upon to rule on it, but also to the reviewing court that is called upon to figure out the legal standard by which to assess the trial court’s ruling.
In Warner v. Thomas, decided March 19, 2019, the COA affirmed the trial court and fleshed out the confusion that is reconsideration. Judge McDonald wrote for a unanimous court:
A. Motion for Reconsideration
¶27. After the trial court denied the petition for modification, Warner filed a motion for reconsideration, making substantially the same arguments she made in her Petition but adding that the evidence merited a finding under section 93-5-24(9) that Thomas had a “history of perpetuating family violence” and should not enjoy joint custody. Under the Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K&A Enters. of Miss. LLC, 250 So. 3d 402, 419 (¶68) (Miss. 2018) (Maxwell, J., specially concurring and joined by four other justices). Warner’s motion to reconsider could be construed as a Rule 60(b)(3) motion because Warner claimed in her motion for a new trial under Rule 59 that she had located a witness who could provide testimony about the basketball incident. However, under Rule 60(b)(3), it must also be alleged and shown that the newly discovered evidence could not have been discovered by due diligence. “[N]ew evidence is ‘evidence in existence of which a party was excusably ignorant, discovered after trial.’” Dean v. Slade, 164 So. 3d 468, 473 (¶14) (Miss. Ct. App. 2014) (quoting Page v. Siemens Energy & Automation Inc., 728 So. 2d 1075, 1079 (¶12) (Miss. 1998)). Warner’s motion was silent about the identity of the witness and the content of that witness’s testimony. More importantly, the motion is silent about why Warner could not have found the witness earlier. She acknowledges in her brief that she only sought an impartial witness to the basketball incident after the trial court had ruled that no such witness had testified. Warner should have anticipated the need for such a witness and only acted when the trial court noted her lack of evidence. Without a showing that the new evidence was substantive and a good reason why Warner was ignorant of it prior to the August hearing, the trial court properly denied Warner’s post-trial motions under Rule 60(b)(3).
B. Motion for New Trial
¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness, 250 So. 3d at 419 (¶¶69, 71). A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).
¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin., 249 So. 3d at 1084 (¶8). In the “Order Denying the Motion for Reconsideration” the trial court made specific factual findings on the proof Warner provided to show that Thomas did not have a “history of perpetrating family violence.” It found that the “Domestic Abuse and Protective Orders” and Warner’s testimony about Thomas’s slapping the child was countered by Thomas and his mother’s testimony. It found that there was no serious injury caused and this single incident did not constitute a “history of perpetrating violence” to trigger a presumption against continuing joint custody between the parties. We find that the trial court applied the proper legal analysis in determining that there was no basis for a new trial, and thus it did not abuse its discretion. See Lee v. Lee, 154 So. 3d 904, 909 (¶¶25-26) (Miss. Ct. App. 2014).
May 6, 2019 § Leave a comment
Chris Vandenbrook wanted photographs of the condition of the marital home to be admitted into evidence in his divorce trial, but the chancellor refused unless he could pinpoint the exact date when they were taken. Chris appealed.
His case highlights two important evidentiary considerations: First, that the foundation for admission of a photograph is simply evidence sufficient to to support a finding that it is a true depiction of what the offeror purports it to be; and Second, that you are not likely to get a chancellor reversed based on her evidentiary rulings.
Here is how Judge Carlton of the COA spelled it out in Vandenbrook v. Vandenbrook, decided March 26, 2019:
¶40. Next, Chris contends that the chancellor erred in not admitting photographs of the condition of the marital home into evidence. The chancellor refused to allow the
photographs into evidence unless Chris could state the precise date the photographs had been taken. Chris had previously testified that he began taking the photographs at the time Emma filed for divorce, but he did not have his cell phone with the photographs present, and the chancellor did allow him more time to retrieve it. He contends that he satisfied the requirements of Mississippi Rules of Evidence 1001(d) and 901(b)(l) and therefore the chancellor should have allowed the photographs into evidence.
¶41. A chancellor’s decision not to admit evidence will not be overturned unless the chancellor abused her discretion to such an extent that a party has been prejudiced. In re Estate of Laughter, 23 So. 3d 1055, 1064 (¶42) (Miss. 2009). By asking Chris to authenticate the photographs by verifying the dates they were taken, the chancellor was merely requiring that Chris produce sufficient evidence to support a finding that the photographs were what he claimed they were.
¶42. We find error, albeit harmless error, in the chancellor not admitting the photographs into evidence. Mississippi Rule of Evidence 901(a) states: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Chris testified that he started taking the photographs from the time that Emma filed for divorce, and he testified that he took all the pictures himself. He further testified that they depict the condition of the marital home during a time that Emma was living there. We find that his testimony was sufficient to satisfy Rule 901(a) and that the court should have admitted the photographs. Even so, “[i]n order for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Bower v. Bower, 758 So. 2d 405, 415 (¶46) (Miss. 2000). Although we find error, we deem it to be harmless. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶14) (Miss. 2001). With this precedent in mind, we do not find that the exclusion of the photographs would have affected the chancellor’s custody determination.
I agree with Judge Carlton that the chancellor was saying, in effect, that she was not satisfied with the foundation that Chris had laid. She may have questioned whether the photos really did show the condition at the time that Chris was claiming, and she wanted more detailed proof. Or, it could be that a difference of a day or two when the pictures were taken could have made a difference. We don’t know from the record.
A previous post about how to get a photograph into evidence is at this link.
May 3, 2019 § 1 Comment
May 1, 2019 § Leave a comment
Last month I posted about the long-standing practice in Mississippi to allow the prevailing party an attorney’s fee equal to one-half of that awarded at trial. You can read that post at this link.
Mentioned in the previous post is the MSSC’s decision in Latham v. Latham, decided January 17, 2019, which makes it mandatory to file an MRAP 27(a) motion to seek that award. I thought it would be helpful to provide that portion of the opinion here:
¶21. The chancellor ordered Roger to pay $2,500 in attorneys’ fees as part of the contempt judgment. Buried at the conclusion of Michele’s brief is a one sentence request that the Court award her one-half of the attorneys’ fees that had been awarded by the chancellor. Specifically, without any citation of authority and without any citation of the record, she writes, “Further, Appellee requests to be awarded one-half of the attorney’s fees awarded by the trial court, or twelve hundred and fifty dollars ($1,250).”
¶22. When a prevailing party requests attorneys’ fees on appeal, “[t]ypically, th[e] Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial.” Huseth v. Huseth, 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not be fair and equitable in all cases, the Court has written that the “better practice” would be for a party seeking attorneys’ fees on appeal “to file a motion in th[e] Court, supported by affidavits and time records that establish the actual fees expended on appeal.” Hatfield v. Deer Haven Homeowners Ass’n, Inc., 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017).
¶23. While the Court has declared that the better practice would be for a party seeking attorneys’ fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,
(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.
M.R.A.P. 27 (emphasis added).
¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline to consider her request. While the Court has suggested that the better practice for a party seeking attorneys’ fees on appeal is to file a motion pursuant to Rule 27(a), we hold that, henceforth, such requests must comply with Rule 27(a).
In the Brown v. Hewlett case cited in my previous post, COA Judge Jack Wilson added that, ” Any such motion should be filed before the mandate issues.”