August 7, 2019 § 1 Comment
In the divorce case between Marcus and Sumie Sanders, the parties entered an agreed order that their temporary hearing would be submitted by affidavits, without live witnesses. The parties submitted their affidavits, and the court awarded custody of the parties’ daughter to Sumie.
Following entry of a final judgment in his case, Marcus appealed. One issue he raised was that the court in his district required submission of temporary issues by affidavit, which amounts to an unapproved local rule that prejudiced him in the ultimate outcome of the case.
Judge Jack Wilson’s opinion in Sanders v. Sanders, a May 14, 2019 COA decision, addressed the issue:
¶39. On appeal, Marcus argues that the Fourteenth Chancery Court District enforces a local rule requiring temporary custody hearings to be decided by affidavits only. He argues that the rule is invalid because the Mississippi Supreme Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted before being effective must be filed in the Supreme Court of Mississippi for approval.”). Marcus further argues that the chancellor’s temporary ruling impacted her final ruling, and yet because there was no real hearing on temporary custody, the chancellor’s temporary ruling “cannot be reviewed.”
¶40. We find no reversible error for three reasons, two of which are related. First, the record contains only an agreed order. The record does not show that there actually is an “unapproved local rule.” The chancery court’s website does provide a fill-in-the-blank template for an order setting a hearing on temporary matters by affidavit. [Fn omitted] However, there is nothing to show that this template equates to a court rule that such hearings must be decided on affidavits alone. Nor does the template establish that the chancellors of the district will not hold a live hearing or consider live testimony upon request.
¶41. Second and related, Marcus never raised this issue in the trial court. There is nothing to show that he ever asked for a live hearing or to present live testimony. Because Marcus did not raise this issue, we have no way of knowing whether there is an unapproved rule or whether the chancellor would have heard and considered live testimony. Therefore, the record is inadequate to review Marcus’s claim, and the issue is waived and procedurally barred on appeal. See, e.g., Adams v. Rice, 196 So. 3d 1086, 1090 (¶13) (Miss. Ct. App. 2016) (“A party is not allowed to raise an issue for the first time on appeal.”).
¶42. We note that the Supreme Court addressed a similar issue in Fredericks v. Malouf, 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the defendants argued that they were prevented from obtaining a hearing on their motion to transfer venue because of an unapproved local rule that stated that hearings on motions were not “automatically granted” and that the parties would “be notified by the court” if the court determined that a hearing was necessary. Id. at (¶15). The Supreme Court concluded that the local rule was “in derogation of Mississippi Rule of Civil Procedure 83, because [it had] never been submitted to [the Supreme] Court for approval.” Id. at (¶16). Nevertheless, the Supreme Court also “emphasize[d] that the trial court’s rule did not prohibit the [d]efendants from requesting a hearing; there [was] no evidence that the trial court would not [have] consider[ed] such a request; and no order exist[ed] denying such.” Id. In other words, the unapproved local rule did not excuse the defendants’ failure to at least request a hearing on their motion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s failure to request a live hearing on temporary custody.
¶43. A third reason that Marcus’s argument is without merit is that he fails to establish any prejudice. “A temporary custody order is just that, temporary; it does not change the underlying burden of proof.” Neely v. Welch, 194 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997) (brackets omitted)). The chancellor must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order. See id. Marcus overstates the significance of the temporary custody order as it relates to the chancellor’s final ruling and Albright analysis. The chancellor’s final judgment found that the continuity of care factor “strongly favor[ed]” Sumie because Sumie had “always” been Kristen’s primary caregiver, “[b]oth prior to and after the issuance of [the] [t]emporary [o]rder.” (Emphasis added). The chancellor’s analysis was based on the totality of the evidence and only briefly mentioned the temporary custody period. In addition, for the reasons discussed above, there is substantial evidence to support the chancellor’s permanent custody decision.
I would add that two points: (1) Marcus agreed to the affidavit procedure by agreed order, so he should be bound by that agreement; and (2) MRCP 43 expressly allows the trial judge to decide fact issues raised in motions by affidavits.
This argument raises the question: when do local practices and judges’ preferences become local rules? We have all kinds of local practices here in my district that reflect the judges’ preferences as to how to conduct business, but we have no local rules. As we all know, practice varies from one district to another, and even among chancellors within a district. And for good reason. What works in the Delta or on the Coast may not be practical here. Workloads vary, judges’ personalities and approaches to work are different, and different people have different work-styles. I hear lawyers bemoan the fact of varying practices among districts from time to time, but I really don’t believe the answer is to squeeze all chancellors into mechanical uniformity.