Checklisting
November 12, 2019 § Leave a comment
For those of you who have not been around here for long, I remind you that there are some helpful trial checklists available. All you have to do is look for the “Categories” button (on PC’s) or link (mobile) and click on the “Checklists” category.
Checklists are your guide for what you need to prove in different courtroom matters, and even in handling an estate.
You will find checklists for child custody, alimony, equitable distribution, grandparent visitation, adverse possession, income tax dependency exemption, and more. And, as mentioned, there is even a checklist you can use to make sure you have done everything you need to do before you can close an estate. You can print out the ones you need and use them in court.
GAP Act: Guardianship of an Adult, Part I
November 6, 2019 § 4 Comments
Continuing with an overview of the GAP Act.
Section numbers correspond to SB 2828.
Basis for appointment (301):
Court may appoint a guardian “when the respondent lacks the ability to meet essential requirements for physical health, safety, or self-care” because: (1) unable to receive and evaluate information or make or communicate decisions, even with support or technological assistance; or (2) is found to be a person with mental illness or intellectual disability who is incapable of taking care of his or her person.
The court may grant the guardian only those powers necessitated by the limitations and needs of the ward, and must enter “orders that will encourage the development of the ward’s maximum self-determination and independence.
The court must consider any less restrictive alternatives that would meet the needs of the ward.
Petition (302):
May be filed by “chancellor or clerk of the chancery court, any relative or friend, or any other interested party, including the adult for whom the order is sought.
Sworn petition: (1) alleging that the adult is in need of a guardianship; (2) stating the name and address of the attorney representing the petitioner, if any; (3) under the style of the case before the body, 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.
Notice of hearing (303):
Seven days’ notice to the adult respondent; however, for good cause the court may order shorter notice.
Notice must be given, but “Failure to give notice does not preclude the court from appointing a guardian.”
Unless the court finds that the adult is competent and joins in the petition, notice must be given to: (1) the adult for whom G is sought; (2) any appointed conservator; (3) at least one relative from among those specified in the statute; (4) anyone else directed by the court.
VA must be noticed if the adult is a recipient of benefits.
After appointment, notice of hearing, with a copy of the motion or petition, must be served on the respondent, guardian, and anyone else directed by the court.
GAL (304):
Court may appoint a GAL payable out of the estate of the respondent only if necessary to protect the interest of the adult.
Failure to appoint a GAL does not void the judgment and is not error.
Hearing and Professional evaluation (305):
The court must conduct a hearing to determine whether a G should be appointed, and the judge may appoint a GAL “to present the interests of the respondent”.
The judge determines the number and character of witnesses, but witnesses must include: (1) two licensed physicians, or (2) one licensed physician and either one licensed psychologist, nurse practitioner, or physician’s assistant.
The medical professionals must have personally examined the respondent and completed certificates of the results of examination filed with the chancery clerk and made part of the record. The certificates may be considered by the court, and the professionals may be called as witnesses.
The personal examination may be in person or via telemedicine conforming to MCA 83-9-351.
Nurse practitioner or physician’s assistant must comply with law regarding physician supervision.
Rights at hearing (306):
The respondent may: (1) present evidence and subpoena witnesses and documents; (2) examine witnesses; and (3) otherwise participate.
The proposed guardian must attend unless excused by the court for good cause.
Hearing must be closed for good cause shown on request of the respondent.
The court may allow any person to participate on determining that the best interest of the respondent will be served.
Confidentiality (307):
Record is confidential, but may be accessed by: (1) an adult subject to the proceeding; (2) an attorney designated by the adult; (3) any person subject to notice under Section 309(4).
Any other person may petition the court for access based on good cause. The court may grant access if: (1) in the best interest of the respondent or ward; or (2) furthers public interest; and (3) does not endanger the welfare or financial interest of the respondent or ward.
Report of GAL or professional evaluations may be sealed “when determined necessary by the court.” Even if sealed, the documents will be available to: (1) the court; (2) the respondent or ward; (3) the petitioner, GAL, attorneys for petitioner and respondent for purposes of the proceeding; (4) an agent under POA for health care, unless the court orders otherwise.
Who may be appointed guardian (308):
The court appoints the person in its discretion who is in the best interest of the respondent.
If two or more are considered the court appoints the “best qualified.”
To determine best qualified, the court considers the:(1) person’s relationship with the respondent; (2) person’s skills; (3) the expressed wishes of the respondent, including designation made in a will; (4) durable POA or health-care directive; (5) the extent to which the person and the respondent have similar values and preferences; and (6) the likelihood of the person’s success as a guardian.
The court may decline to appoint the person requesting.
If a qualified guardian cannot be determined, the court may appoint the chancery clerk, unless there is a conflict or other ground for recusal.
Court may not appoint: (1) a person who provides paid services to the respondent; (2) a person employed by a person who provides paid services to respondent; (3) the spouse, parent, or child of a person who provides or is employed to provide paid services to the respondent, unless
(a) the individual is related to the respondent by blood, marriage, or adoption; or (b) the court finds by clear and convincing evidence that the person is best qualified and available, and appointment of such a person is in the respondent’s best interest.
Court also may not appoint an owner, operator, or employee of a long-term-care institution at which the respondent is receiving care unless related to the respondent by blood, marriage, or adoption.
Order (309):
The court order appointing a guardian must include specific findings by clear and convincing evidence that: (1) the needs of the respondent can not be met by a less restrictive alternative, including use of supportive services and technology; and (2) the respondent was given proper notice of hearing.
An order granting full guardianship must state the basis for granting it and findings supporting a conclusion that a limited guardianship would not meet the “functional needs of the ward.”
An order granting limited guardianship must state the specific powers granted to the guardian.
The court’s order must also include contact information for each person entitled to subsequent notices of: (1) rights of the adult under Section 310; (2) change of the ward’s primary dwelling; (3) delegation of powers by the G; (4) the G’s plan; (5) access to court records; (6) death or significant change in condition of the ward; (7) limitation or modification of the G’s powers; and (8) removal of the guardian.
A spouse and adult children of the ward are entitled to notice unless the court directs otherwise for the best interest of the ward.
“If the chancellor finds from the evidence that the person is incapable of taking care of his person, the chancellor shall appoint a guardian over his person.”
“Costs and expenses” of the proceeding are paid by the estate of the ward if a G is appointed. If no estate, or if no guardian is appointed, “costs and expenses” are paid by the petitioner.
Notice of Order (310):
Within 14 days of the order, guardian must serve a copy of the order of appointment on the ward and all other persons given notice under Section 309. The service must include a notice of right to request termination or modification.
Within 14 days of the order the guardian must request the court to give a statement of the rights of the ward and must serve it on all Section 309 persons. The statement must notify the ward of the right to: (1) seek termination, modification, or removal, and to choose an attorney; (2) be involved in decisions about care, dwelling, activities, or social interactions; (3) be involved in health-care decisions; (4) be notified at least 14 days in advance of a change in dwelling, or move to a nursing home or other restrictive facility unless the move is in the guardian’s plan or in a court order; (5) object to a move and the procedure for objecting; (6) communicate visit, and interact with others, unless the court has ordered otherwise; (7) receive a copy of the G’s plan; and (8) object to the guardian’s plan or report.
The guardian may restrict contact by the ward with others if authorized by the court, or if a protective order is in place. If the guardian has good cause to believe that interaction with a specific person would pose a risk of physical, psychological, or financial harm to the ward, the guardian may restrict contact: (1) for not more than 7 business days if the person has a pre-existing family or social relationship with the ward; or (2) for not more than 60 days for others.
Emergency guardianship of adult (311):
Same as that of a minor.
The Albright Score Board
November 5, 2019 § 2 Comments
Too many lawyers consider the judges’ findings on Albright factors to be like some sort of score board. I hear it in R59 motions: “But, Judge, we prevailed in one more factor, so my client should have been awarded custody.” And we see it in appeals, where the losing side argues something similar.
In a recent decision, Judge Jack Wilson of the COA spelled out how the trial and appellate courts are supposed to deal with Albright. Since it’s an excellent, succinct exposition on the law, I thought it would be helpful to include it for your use. This is from the case of Morgan v. Whitehead, handed down October 15, 2019:
¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor’s decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).
¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest lies, the chancellor should consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills; (4) willingness and capacity to provide primary child care; (5) both parents’ employment responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties between parent and child; (8) moral fitness; (9) “the home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id.
¶20. Albright does not require the chancellor to award custody to the parent who “wins” the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The point of Albright is to identify the custody arrangement that would be in the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition, the chancellor is not required to find that each factor favors one parent or the other. Harden v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only required to consider each factor that is applicable to the case and determine what custody arrangement would be in the child’s best interest. Id. “We review the chancellor’s application of the factors for manifest error, giving deference to the weight that he assigned each factor.” Id.
How Much Leeway does the Trial Judge Have Under a Mandate?
November 4, 2019 § Leave a comment
Chip and Melanie Griner underwent a divorce in which the chancellor rendered a judgment in a consent case, and Chip appealed.
In a 2017 opinion, the COA reversed and remanded for the chancellor to correct errors in calculations, to correct the amount of life insurance securing the award, and for clarification of the length of time Chip was required to maintain health insurance covering Melanie. It also ordered Melanie to pay the costs of appeal. The COA issued its mandate so directing.
On remand, the chancellor revised the equitable distribution and the life insurance and health insurance matters. The chancellor denied a motion by Chip to recover the appeal costs. Chip again appealed.
In Griner v. Griner, decided October 8, 2019, the COA again remanded on the issue of recovery of the appeal costs. Here is how Judge McCarty’s opinion addressed the issue for a unanimous court, with Carlton and Tindell not participating:
¶9. For his first assignment of error, Chip argues that the chancery court should have executed this Court’s mandate assessing all appellate costs to Melanie. As a matter of law this is correct.
¶10. In our 2017 opinion we ordered Melanie to pay all costs of the appeal, and the mandate echoed this language. Griner, 235 So. 3d at 190 (¶35) (“All costs of this appeal are assessed to the appellee.”). A party who disagrees with an assessment of costs issued in an opinion may seek relief through a motion for rehearing under Mississippi Rule of Appellate Procedure 40. See M.R.A.P. 36(d) (“a party seeking relief may file a motion for rehearing under Rule 40”). If the mandate issues with a requirement to pay costs, our rules likewise allow a motion to retax costs, which must be filed within fourteen days of the issuance of the mandate. Id.
¶11. While Chip filed a motion for rehearing, Melanie did not. After the Supreme Court denied a request for certiorari review, the mandate was issued. Melanie did not ask for the costs to be retaxed.
¶12. The mandate is an order of this Court which must be followed without deviation. Relying upon a basic definition of the word, the Supreme Court has held it is “[a] command, order, or direction” which, once given, a “person is bound to obey.” Denton v. Maples, 394 So. 2d 895, 897 (Miss. 1981). This “judicial command” directs a lower court “to enforce a judgment, sentence, or decree.” Id. Coupled with the opinion, the mandate is how we communicate with trial courts. “It is inherently necessary that this Court have some method of advising the lower court of the action taken here; under our practice the method used is the mandate.” Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 787-88, 75 So. 2d 73, 74 (1954). Because it is to be followed without deviation, “[t]he trial court may not receive any other intelligence of the action of this Court.” Id.
¶13. The procedure following the mandate must be followed strictly. “Upon issuance of our mandate, the trial court simply proceeds to enforce the final judgment.” Collins v. Acree, 614 So. 2d 391, 392 (Miss. 1993). There is no discretion whether to follow a mandate, because “[t]he execution of the mandate of this Court is purely ministerial.” Id. Indeed, the Supreme Court has ruled that any order which is contrary to the mandate is actually outside the jurisdiction of a trial court, and will be held “a nullity and void ab initio.” Denton, 394 So. 2d at 897. [Fn 2]
[Fn 2] 2 Note that while the mandate must be strictly followed, there remains the opportunity to later dive into what costs were actually incurred or should be paid per the mandate, since a party “who seeks relief as to any other matter involving costs shall seek relief in the trial court.” M.R.A.P. 36(d).
¶14. After remand, Chip filed a motion for recovery of appeal costs. Our rules explicitly allow recovery of “[c]osts incurred in the preparation and transmission of the record, the costs of the reporter’s transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the appeal . . . .” M.R.A.P. 36(c). Because the original appeal included a money judgment, there was a supersedeas bond, and the trial court required it to be one million dollars. The bond carried a $20,000 premium. On remand, Chip requested these premium costs, the docket fee of $200, and a prepayment for record preparation, for a total of $41,200. The request did not seem to be fully formed, as Chip alleged some further bond premium might need to be paid pro rata, and the final record cost was not included. Nonetheless, the motion included exhibits reflecting the two bond premiums.
¶15. Melanie did not respond to the motion at all. The trial court did not make a lengthy ruling on the issue. Instead, its Findings of Fact and Conclusions of Law Following Remand noted in its last line that “All other requests for relief not granted are denied.”
¶16. The chancery court did not have discretion to ignore the mandate. The mandate issued on February 15, 2018, and has to this point not been followed. In accord with our longstanding precedent, we reverse and remand for immediate compliance with the original mandate. Per the mandate for the original appeal, and in accord with the procedures set out in Rule 36, Chip is entitled to all costs for the original appeal.
Pretty clear in this case. The only catch is that sometimes you have to scratch your head over exactly what it is the appellate court is directing to be done.
“Quote Unquote”
November 1, 2019 § Leave a comment
“Be assured that if you knew all, you would pardon all.” — Thomas à Kempis
“There is hunger for ordinary bread. And there is hunger for love for kindness, for thoughtfulness; and this is the great poverty that makes people suffer so much.” — Mother Teresa
“If we could read the secret history of our enemies, we would find in each man’s life sorrow and suffering enough to disarm all hostility.” — Henry Wadsworth Longfellow
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