October 18, 2019 § 3 Comments
October 16, 2019 § Leave a comment
Continuing with our look at the GAP Act. Section numbers correspond to SB 2828.
A person becomes guardian of a minor only by court appointment.
A minor without a guardian may have one appointed if the court finds it to be in the child’s best interest and: (1) the parents consent after being informed of the nature and consequences of guardianship; or (2) all parental rights have been terminated; or (3) there is clear and convincing evidence that no parent is willing to exercise the powers to be granted to the guardian.
Must include UCCJEA information.
Must also include: (1) name and address of an attorney for the parents; (2) the reason why G is sought and why it would be in the child’s best interest; (3) name and address of the proposed guardian and why that person should be selected; and (4) a general statement of the property of the minor and an estimate of its value.
Notice of hearing (203):
Court sets date, time, and place for hearing.
Notice of hearing served not less than seven days before hearing on each of the following who is not a petitioner: (1) the minor if age 14 or older at the time of the hearing; (2) each parent, or if none or not to be found after reasonable diligence, the nearest adult kin found with reasonable diligence; (3) any adult with whom the minor resides; (4) each individual who had “primary care or custody” of the minor for at least 60 days during the 6 months preceding filing of the petition; and (5) any other person directed to be served by the court.
Under the style and before the body of the petition, the following language must appear in “bold or highlighted type”:
The relief sought herein may affect your legal rights. You have a right to notice of any hearing on this petition, to attend any such hearing, and to be represented by an attorney.
If it is not possible to serve process on the minor per MRCP 4, the court may appoint a GAL to receive notice.
Appointed attorney (204):
The court may appoint an attorney for the minor if: (1) requested to do so by a minor 14 years or older; or (2) recommended by a GAL; or (3) The court determines that the minor needs representation.
Rights at hearing (205):
The court shall require the minor to attend the hearing.
The minor shall be allowed to participate unless the court determines by clear and convincing evidence that: (1) the minor consistently refuses after being advised of the right to attend; or (2) a minor 14 years or older refuses to attend after being informed of the potential consequences of failing to do so; or (3) there is no practicable way for the minor to attend; or (4) the minor lacks ability or maturity to participate meaningfully; or (5) attendance would be harmful to the minor.
The court may appoint, dismiss, or take any other action consistent with law.
In appointing a guardian, the following apply: (1) the court will act consistent with a will “or other record” unless contrary to the best interest of the child; (2) If different parents nominate different guardians, then the court will appoint the one in the best interest of the child, unless none is in the best interest; (3) if no guardian is appointed under the above, then the person nominated by a child over age 14, unless not in the child’s best interest; and (4) if the child’s nominee is not in the child’s best interest, then a person whose appointment is in the child’s best interest.
The court may limit or expand the powers of the guardian “In the interest of maintaining or encouraging involvement by a minor’s parent in the minor’s life, developing self-reliance of the minor, or for other good cause.” The court may do so at the time of appointment or later.
The order shall state the rights retained by any parent, including contact or visitation, or decision-making relating to health care, education, or other matter, or access to records.
The order shall also state that each parent is entitled to notice that: (1) the minor’s residence location has changed; (2) the court has modified or limited the powers of the guardian; or (3) the court has removed the guardian.
Emergency guardian (207):
On a petition filed by any person “interested in a minor’s welfare,” or on a Section 202 petition, the court may appoint an emergency guardian if the court finds: (1) appointment is likely to prevent substantial harm to the minor’s health, safety, or welfare; and (2) no other person appears to have authority and willingness to act.
Duration not to exceed 60 days, and may be extended once for not more than 60 days if the court finds that the conditions continue.
The guardian may exercise only the powers specified in the order appointing.
The court may appoint an emergency guardian with notice or without notice.
With notice. “Reasonable notice” of the date, time, and place of the hearing” must be given to: (1) the minor if 14 or older; (2) any attorney appointed under Section 204; (3) each parent; (4) any person other than a parent having care or custody of the child; and (5) any other person the court determines.
Without notice. Only if the court determines from affidavit or testimony that the minor’s health, safety, or welfare will be substantially harmed before a hearing could be held. If an emergency guardian is appointed without notice, then notice of the appointment must be given within 48 hours to all of the persons who would have been entitled to notice if notice were given. The court must give a hearing to any person who objects to the appointment or its continuation within 5 days of the objection or other contest. AND not later than 5 days after the appointment the court must hold a hearing “on the appropriateness of the appointment.”
Appointment of an emergency guardian is not a determination that basis exists for appointment of a guardian under Section 202.
The court may remove an emergency guardian at any time.
The emergency guardian must make any report that the court requires.
October 15, 2019 § 1 Comment
When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.
Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.
After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.
Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.
On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:
¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).
She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:
¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”
¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledgment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:
The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.
¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).
¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) does not indicate that a notarization not properly recorded in the notary’s log book is void, nor does it indicate that the notarized document is rendered defectively acknowledged due to the recordation failure).
¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.
A couple of thoughts:
- Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
- The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).
October 14, 2019 § Leave a comment
Cobbling together enough evidence and corroboration to meet your burden of proof in an habitual cruel and inhuman treatment (HCIT) case can be quite a challenge.
In the COA’s recent case, Littlefield v. Littlefield, appellant Eddie Littlefield argued that the chancellor erred in granting his wife Brooke a divorce on the ground. The COA affirmed in a decision handed down August 27, 2019. Judge Tindell’s opinion first set down the legal standard for HCIT:
¶8. Eddie first argues that the chancellor erred in granting a divorce in favor of Brooke on the ground of habitual cruel and inhuman treatment. Mississippi Code Annotated section 93-5-1 (Rev. 2018) allows a chancellor to grant a divorce based upon habitual cruel and inhuman treatment. Divorce is properly granted upon this ground if the claimant establishes, by a preponderance of the evidence, conduct that either:
(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or
(2) is so unnatural and infamous as to render the marriage revolting to the non-offending spouse, making it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance.
Alexander v. Alexander, 95 So. 3d 696, 699 (¶9) (Miss. Ct. App. 2012) (citing N. Shelton Hand, Mississippi Divorce, Alimony and Child Custody § 4:12 (2d ed. Supp. 1991)). In addition, there must be a causal connection between the treatment and the actual or threatened harm to the claimant’s health or well-being. Bias v. Bias, 493 So. 2d 342, 345 (Miss. 1986); see also Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992); Farris v. Farris, 202 So. 3d 223, 232 (¶33) (Miss. Ct. App. 2016). To establish such a causal connection, there must be some corroboration to the moving party’s testimony of the offensive conduct, except in cases of isolation. Jones v. Jones, 43 So. 3d 465, 478 (¶30) (Miss. Ct. App. 2009). Evidence of something more than “mere unkindness, rudeness, petty indignities, frivolous quarrels, incompatibility or lack of affection” is required to establish habitual cruel and inhuman treatment. Id. at 469 (¶9).
There follows five pages in which the court recites the evidence at trial supporting the chancellor’s findings.
As for Eddie’s arguments that Brooke had failed to offer sufficient corroboration, the court said:
¶18. Eddie asserts that Brooke’s testimony lacked corroborating evidence. But the testimony of Jean, Erhart, and Eddie himself corroborated the vast majority of Brooke’s allegations. We have held that a claimant’s corroborating evidence “need not be sufficient in itself to establish the ground, but rather, need only provide enough supporting facts for a court to conclude the [claimant’s] testimony is true.” Williams v. Williams, 224 So. 3d 1282, 1287 (¶15) (Miss. Ct. App. 2017). In this case, the chancellor was provided more than enough testimony and evidence to corroborate Brooke’s testimony.
And finally, with regard to the sufficiency of the evidence, the court said:
¶19. Eddie also argues that the evidence provided at trial was insufficient to prove habitual cruel and inhuman treatment by a preponderance of the evidence. As the trier of fact, the chancellor “evaluates the sufficiency of proof based on the credibility of the witnesses and the weight of their testimony.” Rawson v. Buta, 609 So. 2d 426, 431 (Miss. 1992). Divorces based upon habitual cruel and inhuman treatment are necessarily fact-intensive and require a case-by-case analysis. James Shelson, Mississippi Chancery Practice § 38:5 (2019). The chancellor must dually focus on both the alleged conduct of the offending spouse as well as the impact of that conduct on the complaining spouse and the marriage. Heimert v. Heimert, 101 So. 3d 181, 184 (¶8) (Miss. Ct. App. 2012). Upon review, we “must employ a subjective standard,” rather than an ordinary, reasonable person standard, understanding that the impact of the conduct on the complaining spouse is crucial. Harmon v. Harmon, 141 So. 3d 37, 42 (¶16) (Miss. Ct. App. 2014) (citing Faries v. Faries, 607 So. 2d 1204, 1209 (Miss. 1992)).
¶20. Eddie correctly argues that a more extreme set of facts is required than a showing of “mere unkindness, rudeness, and incompatibility.” Reed v. Reed, 839 So. 2d 565, 570 (¶19) (Miss. Ct. App. 2003). But “our supreme court has specifically noted that ‘[t]here are many kinds of acts such as wilful failure to support, verbal abuse, neglect, and the like which, if taken alone will not constitute cruelty, but when taken together will manifest a course of conduct as a whole which may amount to cruelty.’” Rakestraw v. Rakestraw, 717 So. 2d 1284, 1288 (Miss. Ct. App. 1998) (citing Savell v. Savell, 240 So.2d 628, 629 (Miss.1970)). Also, abusive conduct that is routine and continuous suffices to meet the requisite burden. Lomax v. Lomax, 172 So. 3d 1258, 1261 (¶6) (Miss. Ct. App. 2016); see also Burnett v. Burnett, 271 So. 2d 90, 92 (Miss. 1972) (The “conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity present itself.”). For example, in Harmon, the offending spouse’s conduct included continuous sexual degradation, cursing and yelling, jealousy and constant accusations of infidelity, irrationality, and habitual name-calling. Harmon, 141 So. 3d. at 40 (¶¶5-11). Because the cumulative effect of the offending spouse’s behavior constituted cruelty, we upheld the chancellor’s judgment of divorce. Id. at 42 (¶17).
October 11, 2019 § Leave a comment
October 9, 2019 § Leave a comment
Section numbers correspond to SB 2828.
Death, removal, or resignation (112):
Appointment terminates on death, removal, or resignation.
Resignation is effective only when approved by the court.
Death, removal, or resignation does not affect liability or duty to account.
Notice of Hearing (113):
Per MRCP 81.
Also: “Notice of hearing under this act must be in at least sixteen-point font, in plain language, and, to the extent feasible, in a language in which the person to be notified is proficient.”
Any person “interested in the ward’s welfare” may file a motion to intervene per MRCP 24.
Waiver of notice (114):
Any person entitled to notice, except the respondent or ward, may waive notice personally or by attorney.
The court may appoint a GAL.
The GAL may not be the same person as the respondent’s attorney.
Request for notice (116):
Any person not otherwise entitled to notice may file a request showing the person’s interest and an address for notice. If the court approves, that person will be entitled to all future notices.
Disclosure of bankruptcy and criminal history (117):
Before appointment, person applying to be guardian or conservator must disclose to the court: (1) whether the person has ever been a debtor in bankruptcy, insolvency, or receivership; and (2) whether ever convicted of a felony, or a crime involving “dishonesty, neglect, violence, or use of physical force, or any crime relevant to the functions of guardian or conservator.
Attorney may be awarded fees and expenses after approval by the court.
Compensation may only be made after court approval, but court approval is not required before a service is provided or an expense is incurred.
If the court dismisses a petition and finds bad faith, the court may assess “any costs the court deems appropriate.”
Compensation of guardian or conservator(119):
Court may award guardian or conservator reimbursement of expenses and compensation for services. The statute spells out the factors the court must consider.
If the guardian or conservator has to defend a ward’s action to modify or terminate the guardianship or conservatorship, or to remove the guardian or conservator, the court may “order compensation” to the guardian or conservator “only to the extent the court determines the opposition was reasonably necessary to protect the interest of the ward.”
A guardian or a conservator is not personally liable for actions of the ward.
Instruction or ratification (121):
A guardian or conservator may petition the court for instructions or ratification. Notice must be given and a hearing must be held.
Third-party acceptance of authority (122):
Under certain specified circumstances a third party may refuse to recognize authority of the guardian or conservator.
Temporary Substitute guardian or conservator (123):
Court may appoint and remove at any time. While the appointment is in effect, the powers of the existing guardian or conservator are suspended.
Registration of foreign judgment (124):
After registration of the foreign judgment of appointment, the foreign guardian or conservator may exercise all powers of the foreign law except as prohibited by the GAP Act and other Miss. law.
October 8, 2019 § Leave a comment
The Twelfth Chancery Court District and Lauderdale County Bar are sponsoring a 6-hour CLE seminar on the GAP Act on November 8, 2019, at the MSU Riley Center in downtown Meridian.
The program schedule:
800 – 900 Registration
900 – 905 Welcome
905 – 1005 Overview of the GAP Act — Attorneys Rick Courtney and Gray Edmondson
1005 – 1105 Forms to Make Your Job Easier — Chancellor Kiley Kirk and Attorney Whitney Thrasher
1105 – 1115 Break
1115 – 1215 Walk Through of a Guardianship — Chancellor Joey Kilgore
1215 – 1115 Special Lunchtime Speaker — Chief Justice Mike Randolph (Lunch Provided)
115 – 215 Walk Through of a Conservatorship — Chancellor Charles Smith
215 – 315 Best Practices in Fiduciary Matters — Chancellors Robert Logan and Larry Primeaux
315 – 330 Break
330 – 430 Ethics Hour — Professor Donald Campbell, MCLaw
Fee is $125 for pre-registration; $150 at the door. Space is limited, so register soon.
You can mail your check payable to Lauderdale County Bar Association, P. O. Box 1252, Meridian, MS, 39302. Please include your Miss. Bar no. on the check.
October 7, 2019 § Leave a comment
MRCP 7(b)(1) reads, “An application to the court for an order shall be by motion … .” A motion, then is merely a request for the court to enter an order; it’s not the order itself.
Put another way: a motion for continuance does not get you that continuance until the judge enters an order continuing; a motion to withdraw from representation does not get you out of the case until the judge signs an order letting you out.
This is basic stuff, but some lawyers don’t seem to get it.
In one case a couple of months ago a lawyer did not show up for a final hearing. The other attorney advised that he had filed a motion to withdraw the afternoon before, but he did not appear to present it to the court. He also did not provide a paper copy of it to the court as required by the MEC rules since it was within 24 hours of trial. As things developed, though, I doubt that I would have granted his motion because, as became painfully obvious in the course of the hearing, his client had an intellectual disability and struggled to present her side of the case. Struggled mightily. That earned that lawyer a show-cause order.
While I’m on the subject of motions to withdraw, has anybody read UCCR 1.08? Does anybody have a copy of it? Well, here it is in its elegant simplicity and entirety: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
It’s not enough to file the motion and present an agreed order signed by you and your client. It’s not enough to file a motion and present an agreed order signed by you and opposing counsel. As I have often said in chambers, “Give me an agreed order or set it for hearing,” meaning for a motion to withdraw to get your client and opposing counsel to sign off on it or set it for hearing.
I have had lawyers file motions for continuances and then call my staff attorney asking whether they have to show up. We always offer to hear those in chambers before the trial date if the lawyers both are willing to come. Often the reason is that the lawyer has a conflicting setting in another county. My question is: why would you take a case knowing you have a calendar conflict without first calling opposing counsel to see whether she will agree to a continuance? I know, you need the fee. But you are causing everyone a problem, the judge in particular (ok, that’s from my perspective).
October 4, 2019 § 9 Comments
“Imagine if the government chased sick people with diabetes, put a tax on insulin and drove it to the black market, told doctors they couldn’t treat them, then sent them to jail. If we did that everyone would know we were crazy. Yet we do practically the same thing every day in the week to sick people hooked on drugs.” – Billie Holiday, 1956
“Today, our nation is fighting two wars: one abroad and one at home. While the war in Iraq is in the headlines, the other war is still being fought on our own streets. Its casualties are the wasted lives of our own citizens. I am speaking of the war on drugs. And I cannot help but wonder how many more lives, and how much more money, will be wasted before another Robert McNamara admits what is plain for all to see: the war on drugs is a failure.” – Walter Cronkite, 2009
“There were fewer than 3,000 overdose deaths in 1979, when a heroin epidemic was raging in U.S. cities. There were fewer than 5,000 recorded in 1988, around the height of the crack epidemic. More than 64,000 Americans died from drug overdoses last year, according to the U.S. Centers for Disease Control and Prevention.” – Mike Strobe, 2017
October 2, 2019 § 1 Comment
Continuing with Intro to the GAP Act.
Section numbers correspond to SB 2828.
Subject matter jurisdiction (104):
Chancery Court has jurisdiction to: (1) determine need for a guardianship or conservatorship; (2) determine how to manage, expend, or distribute property of the ward and ward’s dependents; (3) handle all matters of guardianship or conservatorship administration.
Chancery has non-exclusive jurisdiction to determine claims against the ward or ward’s property, and questions of title.
Court may transfer to another county if that is in the ward’s best interest:
May transfer to another county or state if in the best interest of the ward. First a final conservatorship accounting is made, then the guardian or conservator qualifies in the new county, and then the case is closed in the original county.
If a proceeding to establish a guardianship or conservatorship is filed in another state while a complaint is pending in Mississippi, the court confers with the judge in the other state and decides whether to assume or decline jurisdiction, based on the best interest of the respondent.
Venue for guardianship (106):
For a minor: in the county where the minor resides or is “present at the time the proceeding commences.” Or, the county where a proceeding for custody or parental rights is pending.
For an adult: in the county where the adult resides or is institutionalized by court order; for an adult emergency order, the county where the respondent is present.
Venue for conservatorship (106):
In the county where the respondent resides, regardless whether a guardian has been appointed in another county, or, if the respondent does not live in Mississippi, then the county where the property of the respondent is located.
If actions are filed in more than one county, the first-filed has exclusive right to proceed unless the judge finds that venue is properly in another court or that justice requires transfer.
Proceedings are per MRE and MRCP. No mention of UCCR.
Guardianship and conservatorship actions for the same individual may be consolidated.
Letters of guardianship and conservatorship (108):
Clerk must issue upon taking of oath, posting of any required bond, and submission of fiduciary’s certificate and attorney’s certificate. Bond may be waived, and the court can impose an alternative asset-protection arrangement.
Court may limit powers of the fiduciary initially or at any time. Limitations must be spelled out in the Letters. The clerk will issue new Letters if powers are later curtailed or expanded.
Limitations on powers must be spelled out in the Letters.
Submission to jurisdiction (109):
By accepting appointment the fiduciary submits to the jurisdiction of the court for proceedings related to the guardianship or conservatorship.
Co-Guardians and Co-Conservators (110):
“When the Court deems appropriate,” co-fiduciaries must comply with Section 108.
Successor fiduciaries (111):
The court may appoint a successor guardian or conservator at any time to serve immediately as ordered.
Any person entitled to petition for appointment of a guardian or conservator under Sections 202 or 302 may petition the court for appointment of a successor guardian or conservator.
A successor must comply with Section 108.
Guardian or conservator may resign only after filing a petition and order accepting.