Reprise: The Reasonable Attorney’s Fee

September 30, 2019 § Leave a comment

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


September 17, 2012 § 3 Comments

In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.

As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.

Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:

” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKeefactors.”   …

¶25. When awarding Patricia attorney’s fees, the chancery court stated:

‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.

There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.

¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”

I’ve made the point here before that …

Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factorsand documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.

Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.

Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.


Ceremony Honoring Copiah Native, the First Female Federal Trial Judge

September 27, 2019 § Leave a comment

Burnita Shelton Matthews’ brothers were lawyers, but her father wanted her to be a musician. There were no women lawyers or judges in Copiah County, or in Mississippi 100 years ago.

On Sept. 16, Circuit Judge Tomika Harris-Irving, the first woman and first African-American judge of Mississippi’s 22nd Circuit Court District, greeted a crowd of more than 100 who gathered in the courtroom in Hazlehurst to celebrate the historic career of Judge Matthews.

Judge Irving invoked the soaring aspirations of astronaut Mae Jemison, who said, “Never limit yourself because of others’ limited imagination; never limit others because of your own limited imagination.”

Judge Matthews “was ahead of her time, and a trailblazer,” said Judge Royce C. Lamberth, former Chief United States District Judge for the District of Columbia, who knew her well.

Matthews became the first female federal trial court judge in the nation when President Harry S. Truman appointed her to the U.S. District Court for the District of Columbia on Oct. 21, 1949.

The state of Mississippi would wait another 58 years to see the first female federal district judge preside in a Mississippi courtroom. Chief U. S. District Judge Sharion Aycock of Fulton was nominated by President George W. Bush on March 19, 2007, and confirmed by Congress on Oct. 4, 2007. She became Chief Judge of the Northern District of Mississippi – the first woman chief judge of the federal district court in Mississippi – on June 2, 2014.

Judge Aycock said that she learned of Judge Matthews after joining the federal bench. “Her story is incredible and so inspiring,” Judge Aycock said.

Among the crowd that gathered to honor Judge Matthews’ legacy were about a dozen women judges, including some whose careers marked milestones for women in the judiciary. U.S. Magistrate Judge Linda Anderson of Jackson is the first female magistrate and the first African American magistrate of the Southern District of Mississippi. Chief U.S. Bankruptcy Court Judge Katharine Samson of Gulfport is the first woman bankruptcy judge in Mississippi and the first female chief bankruptcy judge in the state. Justice Dawn Beam of Sumrall is the only woman currently serving on the Mississippi Supreme Court. Mississippi Court of Appeals Chief Judge Donna Barnes of Tupelo is the state’s first female Court of Appeals Chief Judge. All four of the female state Court of Appeals judges attended: Chief Judge Barnes, Presiding Judge Virginia C. Carlton of Jackson, Court of Appeals Judge Latrice Westbrooks of Lexington, and Court of Appeals Judge Deborah McDonald of Fayette.

Judge James E. Graves Jr. of the Fifth U.S. Circuit Court of Appeals was the ranking member of a federal judiciary in attendance. Other guests included Judge Daniel Jordan of Jackson, Chief Judge of the Southern District of Mississippi; U.S. District Judge Carlton Reeves of Jackson; Senior Judges David Bramlette III of Natchez, Louis Guirola Jr. of Gulfport, and Tom S. Lee of Forest; U.S. Magistrate Judge Robert Walker of Gulfport; U.S. District Court Clerk Arthur Johnston; and U.S. Bankruptcy Court Clerk Danny L. Miller.

Matthews as a teenager may have sat in the courtroom in Hazlehurst where the ceremony was held. The Copiah County Courthouse would have been new then. Construction was completed in 1903.

Matthews was interested in law from an early age. Her father, Burnell Shelton, was Copiah County Chancery Clerk and Tax Collector. Matthews worked in the Chancery Clerk’s office upon occasion, but her father wanted her to pursue music rather than law, said Judge Lamberth.

After a brief career teaching music in Fayette, Texas and Georgia, Matthews, a Cincinnati Conservatory of Music graduate, moved to Washington, D.C. There she could get into law school, something not possible then in Mississippi. When she earned her second law degree in 1920, no firm or agency would hire her – not even the Veterans Administration, where she had worked by day as a clerk while attending classes at night. So she formed her own successful law firm and joined the women’s movement.

As a member of the National Woman’s Party, Matthews participated in silent pickets outside the White House as women sought the right to vote. She would later recount that she never spoke during the pickets, as anyone who spoke was at risk of being arrested, and an arrest on her record could have prevented her from being able to practice law.

Matthews served as counsel to the National Woman’s Party 1921-1934. The National Woman’s Party was a leading force for passage of the Nineteenth Amendment, which in 1920 granted women the right to vote. Matthews also worked on unsuccessful efforts to pass the Equal Rights Amendment. Judge Lamberth said that one of her goals was to see adoption of the proposed amendment before she died. Congress adopted the ERA in 1972, but the measure failed to gain ratification in three-fourths of state legislatures. Mississippi did not ratify the amendment.

Matthews also left her mark on Washington, D.C., as a real estate lawyer. The U.S. Supreme Court sits on the site which was once the office of the National Woman’s Party. William Howard Taft wanted the property to build a courthouse for the Supreme Court, which at that time heard cases in the Capitol. Taft, who was Chief Justice of the U.S. Supreme Court after he served as President, prevailed in acquiring the property, but at a steeper price than the government wanted to pay. The National Woman’s Party lost at condemnations proceedings that took the property, but Matthews negotiated a settlement of almost $300,000 for the building, a huge sum for that time. The Woman’s Party moved to a spot nearby.

Judge Lamberth noted that U.S. Supreme Court Justice Ruth Bader Ginsburg considered Judge Matthews a trailblazer and inspiration.

President Harry S. Truman appointed Matthews as a Judge of the U.S. District Court for the District of Columbia on Oct. 21, 1949. It was a recess appointment to a newly created seat on the court. President Truman nominated Matthews to the same position on Jan. 5, 1950. Judge Matthews was confirmed by the U.S. Senate on April 4, 1950, and received her commission on April 7, 1950.

Judge Matthews’ commission, signed by the President, and her portrait were displayed at the front of the courtroom during the Sept. 16 ceremony. Courthouse maintenance supervisor Stanley Martin hung the historic document and portrait on the courtroom wall as guests went across the street for a reception.

Judge Lamberth noted that Judge Matthews hired only women as her law clerks. She believed in providing opportunities to capable women in the male dominated field. Her former clerks were high achievers, including one who became a judge and two who became assistant U.S. attorneys.

As a federal district judge, Judge Matthews presided over trials for murder, rape, robbery and other crimes. Among famous defendants was Jimmy Hoffa, then vice-president of the teamsters union. A jury acquitted him of bribery.

Judge Matthews took senior status from the federal trial bench on March 1,1968, but continued to hear cases for 10 more years. In addition to presiding over trials, she sat on appellate panels of the U.S. Court of Appeals for the District of Columbia Circuit. One of her notable cases was a 1971 U.S. Court of Appeals ruling that said disabled people receiving Social Security benefits were entitled to hearings before benefits were terminated. She also heard cases before the United States Court of Customs and Patent Appeals. She had earned a master’s degree in patent law in 1920 from the National University School of Law, now George Washington University Law School. She earned an LL.B in 1919.

Judge Lamberth said that one of the highlights of his 1987 investiture was that Judge Matthews attended and wished him well. She died the following year in Washington at age 93.

Judge Lamberth knew Judge Matthews before he went on the bench, from his time as chief of the Civil Division of the D.C. District Court. He recalled many conversations about her efforts as a suffragist. She was particularly interested in later policies regarding demonstrations. Lamberth, as Chief of the Civil Division of the U.S. Attorney’s Office, was the point person coordinating with law enforcement regarding demonstrations around the Capital.

Samuel E. Shelton, 89, said that he never met his cousin. He’s named after her brother. Shelton beamed as he sat on the front row with about a dozen relatives during the ceremony, and happily sat for pictures alongside the judge’s portrait.

Samuel Shelton’s niece, Bessie Shelton Trovato, lives near the Shelton Cemetery where Judge Matthews is buried. She said the event will help people across the state learn of the judge’s contributions, especially in advancing the role of women.

Supreme Court Presiding Justice Jim Kitchens grew up in Crystal Springs and still lives there. “The incredible, uplifting saga of Judge Burnita Shelton Matthews was news to me! I’ve known of the Shelton Cemetery for a long time, but had no idea that a person of such historic importance is buried there. Judge Shelton’s extraordinary life and her achievements – all highly unlikely during the times in which she lived – provide another good reason for me to be proud to be a Mississippian, and, in particular, a Copiah Countian. My only regret is that I didn’t know her.”

One of the happiest people in the room appeared to be Copiah County Chancery Clerk Steve Amos, who organized the ceremony. Amos, an avid historian, devotes considerable energy to historic preservation. He called Judge Matthews’ history “one of the American dreams,” as her father didn’t want her to pursue law.

Judge Matthews was the third woman in the nation to serve at any level of the federal judiciary. In 1928, President Calvin Coolidge nominated Genevieve Rose Cline of Ohio to the U.S. Customs Court, now known as the Court of International Trade. In 1934, President Franklin Delano Roosevelt named Judge Florence Allen of Ohio to the U.S. Court of Appeals for the Sixth Circuit.

In 1953, three years after Matthews was appointed to the federal bench in Washington, Mississippi Gov. Hugh White appointed Mississippi’s first female judge, Zelma Wells Price of Greenville, to the Washington County Court. Price put women on juries when state law didn’t permit women to serve.

Today, almost a third of state court judges are women: 50 of 150 judges, not including Justice Court and Municipal judges. Copiah County’s two Justice Court judges are women. Thirty percent of the lawyers licensed to practice in Mississippi are woman: 2,752 of 9,033 in active practice. The President of the Mississippi Bar and the deans of both law schools are women. Nationwide, there are 363 female federal trial and appellate judges, including three U.S. Supreme Court justices. Women make up one-third of the active federal court judges in the country.

— From a press release issued by the MSSC

Res Judicata and Subject Matter Jurisdiction, Part III

September 25, 2019 § Leave a comment

Yesterday and the day before we looked at the COA’s decision in Abercrombie v. Abercrombie and Judge McCarty’s dissent. Today we look at the majority’s response to the dissent:

¶26. The dissenting opinion is based entirely on evidence offered at a hearing that was held in the chancery court more than a year after this appeal was filed, and the dissent’s ultimate conclusion is that the chancellor should have taken additional steps when he entered his order “vacat[ing] the original judgment of divorce in this case.” Post at ¶40. However, that order was also entered over a year after this appeal was taken, and it is not the subject of this appeal. Indeed, as discussed above, a panel of this Court previously recognized that the chancellor retained jurisdiction to address the parties’ fraud on the court precisely because that issue “was not the subject of the judgment that Faith challenges in this appeal.”

¶27. In this appeal, Faith challenges the chancery court’s July 26, 2017 order denying her April 14, 2017 motion to dismiss and set aside for lack of jurisdiction. In that motion, Faith did not allege any fraud on the court, and there was no evidence of fraud on the court when the chancellor entered his ruling. Indeed, although the dissent primarily addresses the validity of the Louisiana adoption, there was nothing to indicate any problem with the Louisiana adoption when the chancellor entered the judgment that is now before us on appeal. The only challenge that the chancellor addressed in that ruling was Faith’s claim that the court’s initial child custody determination was void because Mississippi was not Reed’s home state at the time of the original judgment of divorce. For the reasons explained above, Faith’s attack on the court’s jurisdiction to make an initial custody determination was barred by res judicata because the case had already been litigated to a final judgment three times. [Fn 5] Therefore, the chancellor properly denied Faith’s motion.

[Fn 5] To be clear, we agree with the dissent that the issue of subject matter jurisdiction “cannot be waived.” However, it can be finally decided—and beyond re-litigation—when as in this case, it has been resolved in multiple successive final judgments.

¶28. Thus, the dissent is attacking an order that simply is not before us on appeal. The order that the dissent attacks was entered more than a year after this appeal was taken, and there has been no attempt to appeal it. Nowhere does the dissent say that the chancellor committed any error in the order that is actually the subject of this appeal. [Fn 6]

[Fn 6] Although we have considered the post-appeal proceedings in the chancery court and the chancellor’s post-appeal rulings, we have done so only (1) to rule on Faith’s motion to stay proceedings in the chancery court and to stay execution of the chancellor’s orders (which we denied, see supra ¶21) and (2) to determine whether this appeal is moot (we hold that it is not, see supra n.2).

¶29. One final point: the dissent accuses this Court and the chancellor of somehow “usurp[ing] jurisdiction from Louisiana” and “infringing upon [Louisiana’s] authority to govern its own citizens.” Post at ¶48. Nothing could be further from the truth. As far as this Court is aware, no custody proceeding is pending in any Louisiana court, and no judge in Louisiana has attempted to make any custody decision pertaining to Reed. If such an action is ever filed in Louisiana, the chancellor may communicate with the Louisiana judge, the chancellor may relinquish continuing jurisdiction over Reed’s custody, and the Louisiana court may assume jurisdiction. See Miss. Code Ann. §§ 93-27-110 & -202 (Rev. 2018); La. Stat. Ann. §§ 13:1810 & :1815 (Rev. 2007). That may be an appropriate course in the future, but it has nothing to do with the ruling that is before this Court in this appeal. The ruling that is before this Court in this appeal simply rejected Faith’s challenge to the chancery court’s jurisdiction to make an initial child custody determination.

Res Judicata and Subject Matter Jurisdiction, Continued

September 24, 2019 § Leave a comment

Yesterday we visited the COA’s decision in Abercrombie v. Abercrombie, in which the majority rejected Faith Abercrombie’s argument that the trial court’s order should be set aside for lack of UCCJEA subject matter jurisdiction. The COA ruled that the issue was precluded by operation of res judicata.

Judge McCarty lodged a strong dissent that bears reading. Here it is:

¶36. The revelation of the extensive fraud that both parents purportedly committed destroys jurisdiction because we have learned for a fact that this case is centered in Louisiana. Since subject matter jurisdiction cannot be waived and cannot be achieved through deception or fraud, I believe we are required to reverse for lack of jurisdiction.

¶37. Our Uniform Child Custody Jurisdiction and Enforcement Act decrees that “[n]o infant shall be adopted to any person if either parent, having been summoned, shall appear and object thereto before the making of a decree for adoption . . . .” Miss. Code Ann. § 93-17-7 (Rev. 2014). The Act establishes that both parents are necessary parties to an adoption proceeding. Id. We know for a fact that this prerequisite of the Act was not complied with because the slow [sic] reveal that the natural father was not made aware of (much less provided consent for) the child’s adoption.

¶38. This was fraud, as even the parties have now belatedly conceded. “When consent for a supposedly ‘uncontested’ adoption is gained by intentionally concealing the identity of a known natural parent from the chancellor, a fraud is perpetrated upon the court.” Doe v. Smith, 200 So. 3d 1028, 1030 (¶1) (Miss. 2016). There was fraud in Doe too, where the natural mother falsified her son’s birth certificate to facilitate his adoption, and this “deception caused the court to grant an adoption to a third party based on false, material representations.” Id.

¶39. Such a fraud thwarted the whole purpose of the Act and the court’s role in following it because “an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent to an adoption undermines the effective administration of justice.” Id. at 1033 (¶17).

¶40. Because the adoption is void based upon fraud, neither of those two people who committed the fraud should have standing. “[A] lack of standing robs the court of jurisdiction to hear the case.” In re Estate of Ivy, 121 So. 3d 226, 243-44 (¶88) (Miss. Ct. App. 2012). Therefore, “any ruling on a case brought by someone who lacked standing is void ab initio.” Id. When a divorce decree is invalidated on grounds of fraud related to child custody and adoption, it follows that all subsequent custody determinations should be deemed void ab initio. We have previously held that “when a divorce is invalidated, all matters decided as a result of the divorce decree are null and void and should be brought in another hearing.” Clark v. Clark, 43 So. 3d 496, 502 (¶25) (Miss. Ct. App. 2010). Such matters to be reversed include the award of “alimony, child custody, and child support.” Id. (emphasis added). When the chancery court vacated the original judgment of divorce in this case, as it was required to do, it should have also vacated all custody determinations stemming from the divorce.

¶41. Our inquiry should end there. A court cannot find that it has jurisdiction over a custody dispute between two adoptive “parents” when the validity of the adoption itself has been shown to be fraudulent. For our courts to assert jurisdiction over a child born to a Louisiana resident, “adopted” by pretense in Louisiana, and who has resided in Louisiana at all times following the so-called adoption, would directly contradict the very purpose of the Act. The UCCJEA, now nearly universal, was enacted among the separate states in part to prevent exactly this forum-shopping.

¶42. The fact that the issue of jurisdiction arises at this late date does not matter because subject matter jurisdiction cannot be waived. Ridgeway v. Hooker, 240 So. 3d 1202, 1208 (¶23) (Miss. 2018). Nor can subject matter jurisdiction be acquired through the passage of time because a party may raise the issue of subject matter jurisdiction at any point, including on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Our Supreme Court has long been blunt that we must examine whether we have jurisdiction because “[s]ubject matter jurisdiction, which is succinctly defined as the authority of a court to hear and decide a particular case, depends on the type of case at issue, and we have the primary duty [to
determine sua sponte] whether a particular case lies within our jurisdiction.” Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989).

¶43. The United States Supreme Court agrees this is a core duty of courts. “When a requirement goes to subject-matter jurisdiction, courts are obligated to consider issues [sua sponte] that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). This can be frustrating to the Judiciary, as the Court points out, because “[t]he objections [to jurisdiction] may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety.” Id. As a result “months of work on the part of the attorneys and the court may be wasted.” Id.

¶44. This is unfortunately one such case—where months of effort by the lawyers and the court system end up with a dismissal. Yet we must reverse, and since when we do not have jurisdiction, we should not rule. Accord Common Cause of Miss., 548 So. 2d at 418 (dismissing the appeal sua sponte for lack of jurisdiction because contempt was criminal, not civil); Dudley, 979 So. 2d at 693 (finding a lack of jurisdiction sua sponte due the notice of appeal being filed untimely); Cotton v. Veterans Cab. Co., 344 So. 2d 730, 731 (Miss. 1977) (finding a lack of jurisdiction sua sponte because there was not a final judgment); Bolivar v. Waltman, 85 So. 3d 335, 339 (¶14) (Miss. Ct. App. 2012) (finding a lack of jurisdiction because necessary parties were not included).

¶45. Our prior rulings related to this point do not result in a procedural bar either. In the case addressed supra, we reviewed the nonpayment of child support, not custody, making the issue of jurisdiction under the UCCJEA inapplicable. Burgess v. Williamson, 270 So. 3d 1031, 1035 (¶16) (Miss. Ct. App. 2018). More importantly, the mother’s challenge of subject matter jurisdiction was deemed res judicata because she “answered [the] original petition for custody and child support, she filed a counterclaim, the case proceeded to trial, and the chancery court entered a final judgment.” Id. at 1036 (¶18). The mother in this case took none of these procedural steps taken by the mother in the prior litigation.

¶46. Even if the mother’s claim was barred under the doctrine of res judicata, the law recognizes three exceptions to allow a party to litigate the issue of subject matter jurisdiction after a judgment has been rendered:

(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or

(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or

(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

Restatement (Second) of Judgments § 12 (1982).

¶47. In the present case, the subject matter was so plainly beyond Mississippi’s jurisdiction that it was an abuse of authority for the chancery court to hear the case. The only connections between the child and Mississippi are that he was born in Mississippi and his “adoptive” father currently resides in Mississippi. Both points fail to secure jurisdiction: the child has lived in Louisiana since shortly after his birth, and because the validity of the “adoption” has been brought into question, we cannot assume jurisdiction based on this fact.

¶48. For Mississippi to assert jurisdiction over this case would be to usurp jurisdiction from Louisiana, infringing upon the State’s authority to govern its own citizens. The child in question was born to a Louisiana resident, was allegedly “adopted” in Louisiana, and domiciled in Louisiana at all times following the “adoption.”

¶49. Further, the Abercrombies’ actions of defrauding and concealing facts from the chancery court deprived the court of the ability to properly make an adequate and informed decision regarding whether it had jurisdiction to hear the case. With the truth concerning the alleged adoption now unearthed, it is clear that our State does not and could not have jurisdiction over the matter.

¶50. Our courts do have continuing jurisdiction over the misrepresentations the parties made in this case because they were submitted to our courts and made within our State. See M.R.C.P. 11. It is a felony to “willfully and corruptly swear, testify, or affirm falsely to any material matter . . . in any court of law or equity . . . .” Miss. Code Ann. § 97-9-59 (Rev. 2014) (emphasis added); see also Miss. Code Ann. § 97-9-61 (Rev. 2014) (penalty of perjury in a non-felony trial not to exceed ten years). While this case should be dismissed for lack of jurisdiction, that does not mean the repeated fraud on our court system should go without penalty.

¶51. For these reasons I must respectfully dissent.

Res Judicata and Subject Matter Jurisdiction

September 23, 2019 § Leave a comment

We all know that subject matter jurisdiction cannot be waived or conferred on a court by consent. The court either has it or does not. And it is often said that it can be raised at any stage of the proceeding, although that is too sweeping a statement, as we will see.

But can the issue of subject matter jurisdiction become res judicata so that, if facts emerge that call it into question later, the issue cannot be raised at that point?

That question was at the center of a recent case before the COA. The procedural history is somewhat convoluted. Faith Abercrombie and her ex, Jonathan, were engaged in lengthy, contentious litigation over their adopted son, Reed. There had been prior judgments adjudicating that Mississippi had jurisdiction under the UCCJEA that had been appealed twice and were affirmed. After the chancellor ruled on March 9, 2017, on various issues, Faith filed a motion to set aside the order and all prior orders touching custody for lack of jurisdiction, claiming that Mississippi was not her son’s home state at any relevant time. When the motion was denied, Faith appealed.

In the meantime, with the appeal pending, Faith’s attorney learned that the adoption had been procured by fraud on the part of both Faith and Jonathan, and disclosed the fact to the court. On December 7, 2018, the chancellor vacated the original judgment of divorce, fined both of them, issued a writ of habeas corpus for the child, and directed the clerk to send copies of its order to the Louisiana adoption court and the district attorney. Faith filed a motion with the COA asking the court to stay execution of the order vacating the divorce, and a panel of the court denied the motion because the December, 2018, order was not the subject of the order appealed from.

In Abercrombie v. Abercrombie, handed down August 20, 2019, the COA affirmed. Judge Jack Wilson wrote for the 9-1 majority:

¶22. Faith argues that the chancery court lacked subject matter jurisdiction to make an “initial child custody determination” under the UCCJEA, Miss. Code Ann. § 93-27-201, because Mississippi was not Reed’s home state. She further argues that all subsequent orders touching on Reed’s custody and visitation are void due to lack of jurisdiction. However, we conclude that Faith is barred from re-litigating this issue, which has been decided in at least three prior final judgments. [Fn 2]

[Fn 2] Although the chancery court set aside the original divorce judgment based on fraud on the court, we conclude that this issue is not moot for at least three reasons. First, even after setting aside the divorce judgment, the chancery court has continued to exercise jurisdiction with respect to Reed’s custody, and Faith continues to contest the court’s jurisdiction to do so. Second, Faith argues that all of the chancery court’s prior judgments and orders touching on Reed’s custody and visitation must be set aside for lack of jurisdiction, including prior orders finding her in contempt and awarding attorney’s fees. However, the chancery court’s December 7, 2018 order only set aside the original divorce judgment, not all of the court’s judgments and orders. Third, if we agreed with Faith that the chancery court lacked jurisdiction, we would also be compelled to reverse and render the award of attorney’s fees that we address below in Part II.

¶23. This Court recently addressed a similar issue in Burgess v. Williamson, 270 So. 3d 1031 (Miss. Ct. App. 2018). In Burgess, the father (Williamson) filed a petition for custody;the mother (Burgess) filed an answer and a counterclaim for custody; the chancery court found that it had jurisdiction and awarded custody to Williamson; and Burgess did not appeal from the final judgment. Id. at 1033, 1037 (¶¶4-6, 18). In a subsequent contempt proceeding, Burgess argued that the chancery court lacked subject matter jurisdiction under the UCCJEA to enter its original judgment determining the child’s custody. However, this Court held that the doctrine of res judicata barred Burgess’s argument. Id. at 1035-36 (¶¶17-18). We explained that “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. at 1036 (¶17); see also Phillips v. Kelley, 72 So. 3d
1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”); Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction . . . whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”).

¶24. The same reasoning applies here. [Fn 3] Indeed, whereas Burgess involved just one prior final judgment, this case had been litigated to a final judgment three times before Faith filed the motion that is the subject of this appeal. In each of those prior judgments, the chancellor found that the chancery court had jurisdiction over the parties and the subject matter, and each time the court’s judgment was affirmed on appeal or was not appealed. First, the April 2015 final judgment of divorce specifically found that the court had jurisdiction over the parties and the subject matter. Faith appealed, but this Court affirmed the final judgment of the chancery court because there was no evidence in the record to support Faith’s assertion that the chancery court lacked jurisdiction. Abercrombie, 193 So. 3d at 683 (¶¶10, 12). Second, in June 2015, Faith filed a motion for relief from judgment in which she attacked the chancery court’s jurisdiction. The chancellor denied Faith’s motion in an August 2016 final judgment that (a) again specifically found that the court had continuing, exclusive jurisdiction and (b) clearly noted that it was a “Final Judgment” for purposes of Mississippi Rule of Civil Procedure 54. Faith did not appeal from that final judgment. Third, in March 2017, the chancellor entered an order on issues of custody, visitation, child support, and attorney’s fees. That order again found that the court had continuing, exclusive jurisdiction. Faith did not appeal that ruling either; instead, she waited more than thirty days and then filed yet another motion attacking the chancery court’s jurisdiction.

3 Contrary to the dissent’s assertions, Burgess is not materially distinguishable. In Burgess, this Court addressed Burgess’s argument “that the chancery court lacked jurisdiction to enter the original . . . final judgment awarding custody and support,” and we held that her claim was “barred by the doctrine of res judicata.” Burgess, 270 So. 3d at 1035 (¶17). We noted that even the issue of subject matter jurisdiction is subject to the doctrine of res judicata. Id. at 1036 (¶17). In doing so, we simply reiterated what the Supreme Court had already held in both Phillips and Shelnut, supra.

¶25. Because this case has been litigated to a final judgment three times previously, the chancery court’s jurisdiction to enter its original judgment and initial determination of custody is res judicata. Phillips, 72 So. 3d at 1084 (¶18); Shelnut, 772 So. 2d at 1045 (¶13); Burgess, 270 So. 3d at 1035-36 (¶¶17-18). Therefore, the chancellor correctly ruled that Faith’s challenge to the court’s jurisdiction is barred. [Fn 4]

[Fn 4] Although the chancellor denied Faith’s motion based on the somewhat related concepts of waiver and judicial estoppel, we may affirm on alternative grounds. See Brocato v. Miss. Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987).

Judge McCarty wrote a sharp dissent that we will look at tomorrow.

Dispatches from the Farthest Outposts of Civilization

September 20, 2019 § Leave a comment

Some Useful Equitable Distribution Points

September 18, 2019 § Leave a comment

Last year’s Pettersen case caused somewhat of a ruffle among many attorneys when it affirmed a chancellor’s findings that pre-marriage assets were marital or converted to marital, and passive appreciation of pre-marital securities was also marital. One lawyer told me that he was still scratching his head over the latter.

Lost in the consternation is that the opinion by Judge Barnes includes some jewels of authority that you might find useful:

Frederick Pettersen claimed that the chancellor erred when he announced that he would not consider child support, but he never objected at trial. In ¶10, the court said, “Furthermore, this issue was not asserted in Frederick’s motion for reconsideration.” Aside from the fact that there is no such thing as a motion for reconsideration, this is a remarkable statement because it assumes that you must assert the bases for your R59 motion in the motion. In my experience, few attorneys recite more than that they want a new trial or an amendment of judgment without detailing the reasons why. R7(b) specifically states that a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” That “grounds therefor” language is pretty important, but sometimes overlooked.

As for the proper demarcation date, the court said at ¶12:

Our Court has held:

“The law in Mississippi is that the date on which assets cease to be marital and become separate assets—what we refer to as the point of demarcation—can be either the date of separation (at the earliest) or the date of divorce (at the latest).” Collins v. Collins, 112 So. 3d 428, 431-32 (¶9) (Miss. 2013). [However, a] chancellor may consider a temporary order as the line of demarcation between marital and separate property. Id. Ultimately, however, the chancellor has the discretion to draw the line of demarcation. Id. at (¶10).

Randolph v. Randolph, 199 So. 3d 1282, 1285 (¶9) (Miss. Ct. App. 2016).

At ¶18, the opinion discussed classification of assets:

¶18. Furthermore, when determining whether certain property is marital, a chancery court “must inquire whether any income or appreciation resulted from either spouse’s active efforts during the marriage.” Rhodes v. Rhodes, 52 So. 3d 430, 436 (¶20) (Miss. Ct. App. 2011). “If so, that income or appreciation becomes part of the marital estate.” Id.

In ¶19, the court rejected Frederick’s argument that his wife, Audrey, was not entitled to any of his retirement funds because of an extra-marital affair:

Moreover, a spouse’s misconduct is only one factor to consider in the division of marital assets. A chancery court “should not view equitable distribution as a means to punish the offending spouse for marital misconduct. Rather, ‘marital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.’” Bond v. Bond, 69 So. 3d 771, 773 (¶6) (Miss. Ct. App. 2011) (quoting Carrow v. Carrow, 642 So. 2d 901, 904-05 (Miss. 1994)).

In discussing whether pre-marital properties were properly classified, the court said at ¶23:

¶23. “Marital property is ‘anyand all property acquired or accumulated during the marriage and is subject to an equitable distribution by the chancellor.’” Mamiaro v. Mamiaro, 179 So. 3d 51, 53 (¶7) (Miss. Ct. App. 2015) (quoting Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994)). There is no dispute that these properties were acquired before the marriage. But, in discussing Ferguson, the Mississippi Supreme Court held:

Instead of looking to the bare title of a marital asset, this Court, as should the trial courts, will continue to consider all of the facts and circumstances surrounding the accumulation of the marital assets, including noneconomic contributions and factors, when deciding how the marital property should be divided under our system of equitable distribution.

Carnathan v. Carnathan, 722 So. 2d 1248, 1253 (Miss. 1998). Although Frederick argues that Audrey made no economic contribution to these properties, he acknowledges that Audrey helped prepare balance sheets with respect to the rental properties for a period of time during their marriage. We find, therefore, that the chancery court’s awarding her ten percent of the properties’ value was not an abuse of discretion.

And the court reminded us of the definition of commingling:

¶26. “Commingled property is a combination of marital and non-marital property[,] which loses its status as non-marital property as a result.” Maslowski v. Maslowski, 655 So. 2d 18, 20 (Miss. 1995).

Finally, the opinion considered Frederick’s argument that he used non-marital funds to purchase an asset, so it should be a “mixed asset” with greatly reduced equitable distribution to Audrey:

¶29. “[A] presumption of marital property arises to any property acquired during the marriage.” Maslowski, 655 So. 2d at 20. The chancellor properly considered the applicable Ferguson factors, finding: (1) the property was acquired during the marriage; (2) Audrey had “substantially contributed to this property by serving as bookkeeper”; and (3) Frederick had managed the subject property during the separation and continues to do so. Therefore, we find no merit to this issue.

When an Untimely Post-Trial Motion Results in a Timely Appeal

September 17, 2019 § Leave a comment

If you file a motion for a new trial later than ten days after the judgment is entered and the other side does not object, allowing the judge to rule on the motion, does your motion for a new trial toll the time to appeal?

Yes, said the COA in the case of Brown v. Blue Cane Water Assoc., et al., decided June 4, 2019. This is how Judge McDonald’s opinion addressed the issue:

¶21. Although the parties do not raise the issue, this Court must first determine that it has jurisdiction to consider this appeal. Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016); Gallagher v. City of Waveland, 182 So. 3d 471, 474 (¶13) (Miss. Ct. App. 2015). After reviewing when the final judgment, the motion for a new trial, and the notice of appeal were filed and recent precedent, we determine that we do have jurisdiction to consider the merits of the issues on appeal. In the past, we had strictly enforced the time limits for filing appeals in cases where post-trial motions are not timely filed. But these rules have been relaxed.

¶22. Mississippi Rule of Appellate Procedure 4(a) states that “the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed from.” M.R.A.P 4(a). Certain post-trial motions will toll this thirty-day deadline, including a motion for a new trial filed under Mississippi Rule of Civil Procedure 59. (The law had once provided that the extension of time to appeal operates only if the post-trial motion itself is timely filed. Brand v. Barr, 980 So. 2d 965, 962 (¶¶10-11) (Miss. Ct. App. 2008).) Under Rule 59(e), motions for a new trial must be filed within ten (10) days of the judgment. Moreover, a paper is not “filed” until the clerk actually receives it. Bolton v. Illinois Cent. R.R. Co., 218 So. 3d 311, 313 (¶8) (Miss. Ct. App. 2017). In Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 168-69 (¶12) (Miss. Ct. App. 1998), we held that “an untimely filed Motion for Reconsideration will not excuse an untimely Notice of Appeal, and clearly will not create or confer jurisdiction in this court.”

¶23. The Mississippi Supreme Court relaxed this strict enforcement in Wilburn v. Wilburn, 991 So. 2d 1185 (Miss. 2008). In that case, the chancery court issued its modification order on June 1, 2007. Wilburn, 991 So. 2d at 1191 (¶12). Counting weekends, the response was due on June 11, 2007. Id. The ex-wife filed a “Motion for Reconsideration” one day later on June 12, 2007. Id. The motion was denied and timely appealed. Id. at 1190 (¶8). The Mississippi Supreme Court applied established precedent and found that the motion for reconsideration was untimely. But the Court further found that because the husband did not object to the timeliness of the motion when it was before the chancery court, he was procedurally barred from raising the issue for the first time on appeal. Id. at 1191 (¶13). The Court proceeded to consider the appeal on its merits. Id. at 1192 (¶14).

¶24. We recently applied Wilburn in Massey v. Oasis Health & Rehab of Yazoo City LLC, No. 2017-CA-00086-COA, 2018 WL 4204207 (Miss. Ct. App. Sept. 4, 2018). In Massey the circuit court granted a motion to compel arbitration on November 9, 2016. Id. at *4 (¶11). Massey filed a motion to alter or amend the judgment under Rule 59 on November 22, 2016—one day late. Id. at *5 (¶16). Massey’s motion was denied and appealed within thirty days of the denial. Id. at (¶17). We reviewed prior cases that dealt with the timeliness of an appeal when a motion for new trial or reconsideration was not timely filed in the court below. Id. We noted the Mississippi Supreme Court’s ruling in Wilburn v. Wilburn, supra,
which created an exception to the bar of hearing an appeal if the timeliness of a post-trial Rule 59 motion is not challenged before the trial court. Id. at *6 (¶18). Following these precedents in Massey, we held:

Here, just as in Wilburn, Massey filed his Rule 59 motion one day too late, and Oasis responded to the motion on the merits—without objecting to the motion as untimely. After the circuit court denied Massey’s Rule 59 motion, Massey filed a notice of appeal. Just as in Wilburn, Massey filed his notice of appeal within thirty days of the order denying his Rule 59 motion, but more than sixty days after entry of the underlying order. As to the issue of appellate jurisdiction, there is no material difference between this case and Wilburn. Under Wilburn, we have jurisdiction to address the appeal and the merits of the underlying order compelling arbitration.

Massey, 2018 WL 4204207, at *6 (¶20). The special concurrence in Massey noted a similar holding found in Carter v. Carter, 204 So. 3d 747 (Miss. 2016), that the lack of an objection to an untimely Rule 59 motion procedurally bars an appellee from raising the issue of timeliness on appeal. Massey, 2018 WL 4204208, at *15 (¶59) (Greenlee, J., specially concurring). The concurrence pointed out that the Carter decision cited federal case law, saying:

Our supreme court seems to recognize, as the United States Supreme Court did in Bowles, [Fn 4] that “procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion . . . .” Bowles, 551 U.S. at 212, (quoting Schacht v. United States, 398 U.S. 58, 64 (1970)). New Mississippi ground is being broken. . . .

Massey, 2018 WL 4204207, at *15 (¶61) (Greenlee, J., specially concurring).

[Fn 4] Bowles v. Russell, 551 U.S. 205 (2007)

¶25. In this case, the final judgment was signed on December 15, 2017, and filed with the clerk on December 18, 2017. The Browns had ten days to file their motion for a new trial (i.e., December 28, 2017). Browns’ counsel indicated in his certificate of service that he served the motion on Blue Cane’s counsel by mail on December 27, 2017 (a Thursday). But the clerk did not file the motion until January 3, 2018, which was seven days later and sixteen days after the judgment was filed.

¶26. Blue Cane responded to the motion for a new trial but did not challenge its untimely filing. On January 23, 2018, the chancery court denied the motion for a new trial in an order filed with the clerk on January 26, 2018. A notice of appeal was filed on February 2, 2018. Both Wilburn and Massey are directly on point. Although the Browns’ Rule 59 motion was not timely, Blue Cane did not object. Pursuant to Massey and Wilburn, we find that we do have jurisdiction to proceed to a ruling on the merits.

Two thoughts:

  • “A paper is not filed until the clerk actually receives it.” Crucial point. In paper-filing districts, the motion is not filed until the clerk enters it on the docket, per MRCP 79(a). Mailing it to the clerk, or even handing it to the clerk, does not accomplish this. MEC overcomes this problem.
  • Sometimes we go along in order to get along. Your pal, hunting buddy, and fellow church member, who happens to be opposing counsel, approaches you and says, “Man, I screwed up and filed that R59 motion a day late; I hope you’ll give me a pass on that so I won’t look bad.” You could say “<wink> <wink> Sure, pal, no problem, I know you’d do the same for me.” But it would be more in line with your professional responsibility to your client to say, “I hate that for you, but I have to object to timeliness to protect my client; I hope you understand.”

GAP Act Resources

September 16, 2019 § Leave a comment

I’ve added a page where I am going to post helpful GAP Act resource material.

If you’re on a PC, look to the left of the page. There you will see a tab entitled, “GAP Act Material.” click on it and you will find tabs for the material stored there; only one tab for now, “Summary of the GAP Act.”

On mobile, click on “Menu” at the top of the page and a drop-down will appear with several choices, including “GAP Act Material” and “Summary of the GAP Act.”

As I run across resources that I think will be helpful, I will publish them there for you. Check back from time to time.


September 13, 2019 § Leave a comment

Where the Crawdads Sing, by Delia Owens. It’s an improbable, yet engaging story: in coastal North Carolina a young girl abandoned by her family grows to womanhood isolated from townfolk in a shack in the marshes. In her loneliness she seeks love but finds more reliable solace in the beguiling beauty of nature, becoming an authority on coastal species. There is a murder mystery that must be solved, and there is a trial. Delia Owens’s lyrical prose will keep you reading, but if you’re like me, you may grow restless with some over-romanticized passages and her recitation of Amanda Hamilton poetry. My advice is to bear it and be patient. All becomes clear in a stunning twist of an ending in the last few pages that you may not see coming. Fiction.

Angle of Repose, by Wallace Stegner. Pulitzer prize-winning novel of a wheelchair-bound author, Lyman Ward, researching and writing the story of his grandparents, who were among early settlers of the west. Ward’s life and that of his grandparents parallel each other as the novel unfolds, and historic literary figures weave in and out of the grandparents’ accounts. Stegner vividly captures the old west of Colorado, California, Mexico, and Idaho in the second half of the 19th century. Although fictional, the stories are based on actual letters of Mary Hallock Foote. Fiction.

1491, by Charles C. Mann. What was America like before Columbus and the later Spaniards arrived and disrupted the native civilizations and devastated them with diseases to which the Americans had no immunity? You will be surprised at Mann’s revelations of complex cultures that rivaled Sumer and ancient Greece in their sophistication, organization, philosophy, engineering, and architecture. Their achievements in agriculture alone are astonishing enough, creating maize and developing most of the varieties of beans and all of the squashes we consume today. This book is an intriguing eye-opener. Non-fiction.

The Pioneers, by David McCullough. Focusing on the lives of ordinary citizens who travelled on flatboats down the Ohio River to sculpt civilization in the wilderness, McCullough tells in microcosm the story of the settlement of the Northwest Territory and how the values of these settlers and their insistence on adhering to the principles of the Northwest Ordinance shaped much of American settlement that followed. Non-fiction.

A Woman of no Importance, by Sonia Purnell. The true, incredible story of one-legged American Virginia Hall, who operated in France as a spy for British intelligence (she had been rejected by US intelligence) and facilitator of the resistance, most of the time in Lyon right under the nose of the vicious, sadistic Gestapo commander Klaus Barbie. Her exploits included spiriting resistance fighters and British spies out of prisons, supplying and coordinating spies and arming resistance groups, arranging sabotage, and managing underground railroads that helped spies and others on the lam from the Nazis escape to Spain and Switzerland, all of which earned her the Distinguished Service Cross in 1945. It’s a sensational story that is all the more remarkable in that it really happened. Non-fiction.

Beartown and Us Against Them, by Fredrick Backman. On the surface this pair of novels (the second continues the story of the first) tell the story of the impact of hockey on two small towns in Norway. What they are really about, though, is what sports of any kind (e.g., high school football) mean to a small rural community, how sports can corrupt and debase people, and how sports can ennoble and uplift. Backman, who is author of A Man Called Ove, has an idiosyncratic, clear style that is easy and enjoyable to read. Fiction.

Indianapolis, by Lynn Vincent and Sara Vladic. Thoroughly researched account of America’s worst military naval disaster, the sinking of the heavy cruiser USS Indianapolis in the waning days of WWII. The book opens with a depiction of the ship’s heroic involvement in most of the war’s major naval engagements in the Pacific, its near destruction by a Kamikaze plane, and its top-secret delivery to Tinian of the atomic bomb that was dropped on Hiroshima. The account continues with the vessel’s tragedy of July 30, 1945, barely two weeks before Japan surrendered, when, on her way from Guam to Leyte for a training exercise, she was torpedoed in the Philippine Sea and went down, taking 300 of the 1,200 crew with her. Hair-raising survivor accounts tell how they were not found until 3 1/2 days later, during which their numbers were thinned drastically by dehydration, shark attacks, drowning, and suicide. The book also details the aftermath, including court-martial of the ship’s captain and his ultimate exoneration. Non-fiction.

American Pop, by Snowden Wright. The rise and fall of the fictional Forster family of North Mississippi, whose forebear created the soft drink Panola Pop in a drug store, managed it into the best-selling cola in the world, became fabulously wealthy, and then dissipated it all in later generations. The story of the family and their soda empire evolves against the canvas of a century of American history that ultimately seals the family’s fate. This pop (no pun intended) novel is entertaining and light, bubbly and tasty like its eponym. Wright, a Meridian native, is son of Circuit Judge Charles Wright. Fiction.

Been Down so Long it Looks Like up to Me, by Richard Fariña. College hijinks in the early 60’s, before the Beatles and Bossa Nova pushed aside folk music, coffeehouse jazz, and the beatniks. Fariña, who was married to Joan Baez’s sister Mimi, was an up-and-coming folk singer who performed with his wife and was being heralded as the next Bob Dylan. On the day his novel was published in 1966, though, he was killed in a motorcycle accident leaving a publication celebration party. This is a roman à clef for Fariña’s own experience at Cornell University with his close friend, Thomas Pynchon. But behavior that seemed provocative and venturesome back then comes across as puerile and tiresome almost 60 years later. Still, it’s a peek into an era and its values. Fiction.

On Desperate Ground, by Hampton Sides. Retelling of the plight of 30,000 US Marines in the Korean War sent by incompetent generals into a trap at the Chosin Reservoir, where they were attacked by more than 120,000 Communist Chinese troops. The marines were forced to fight their way out through enemy lines. Sides tells the story through the eyes of officers and enlisted men whom he interviewed, and does not conceal his scorn for the generals who sent the men into this predicament. Non-fiction.

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