December 31, 2019 § Leave a comment
Next post January 3, 2020.
December 30, 2019 § Leave a comment
If hindsight is, indeed 2020, then it follows that 2020 should be the year of hindsight, right?
But we do have some things to look forward to in 2020. So using foresight, here are some:
- A slew of amended MRCP. The Supreme Court Civil Rules Advisory Committee has been busy over the past two years studying and revising the MRCP and Advisory Committee Notes to make them more functional, to address problems that have surfaced since the rules were adopted in 1982, and to clear up inconsistencies. The committee has sent a number of proposed amended rules up to the MSSC, and already the court has published an amended Rule 26. Look for plenty more in 2020. In fact, go to courts.ms.gov and click on Research/Rules/ Rules for Comment and you’ll see many there now for your study and comment. I encourage you to add your thoughtful comments. The end result of the changes will be more clarity and functionality.
- New chancery court rules (UCCR). In October, the Conference of Chancery Judges unanimously approved new, revised UCCR and filed a motion with the MSSC to adopt them. If the court does adopt them, the several of you who do read and try to follow them will find them more accessible, clearer, updated, and consistent in form.
- The GAP Act. It will be a new era for guardianships and conservatorships. Gone will be the confusing and sometimes contradictory web of statutes, replaced by a more streamlined system with clearer nomenclature and procedures. Yes, there will be a learning curve, and, yes, there are some tweaks that must be done in the upcoming legislative session to address some questions, but overall it will be an improvement.
- Bell on Mississippi Family Law. Professor Bell is working on the third edition of her treatise, and it should be out in the new year.
- New law every Tuesday and Thursday. For those of you who have bemoaned developments like those mentioned above, don’t forget that the law is ever-changing and evolving. Always has been and always will. If you question that, just read the hand-downs from the COA and MSSC every Tuesday and Thursday. There you will find weekly revelations, some of which challenge or even wipe out your long-held legal assumptions.
December 24, 2019 § Leave a comment
Next post December 30, 2019
December 23, 2019 § 1 Comment
I haven’t shared a recipe in ages, but I have fixed this dish and found it so hearty and insanely delicious that I thought it a most humane thing to share. Enjoy.
BEEF AND BARLEY SOUP
6 large, meaty beef short ribs
3 celery stalks
1 bell pepper
2 large carrots, scrubbed, not peeled
2 medium parsnips, scrubbed, not peeled
3 tbsp. vegetable oil or other high-temperature cooking oil
4 oz. whole white mushrooms
4 oz. porcini or shiitake (stems removed) mushrooms
3/4 cup barley
2-3 qts. beef broth
1 bay leaf
water as needed
salt and black pepper
Pat the short ribs dry and season them with salt. Leave them at room temperature at least one hour, but not longer than two hours. They should be at room temperature when they are cooked.
Coarsely chop the onion, bell pepper, celery, carrots, and parsnips.
Pour the oil into a heavy Dutch oven and bring to a shimmer over medium-high heat. Brown the short ribs two at a time, removing them when browned on all sides. Remove the short ribs and set aside.
Lower the heat under the Dutch oven to medium and add the carrots and parsnips, stirring enough to keep them from burning. When the vegetables begin to soften, add the onions, bell pepper, and celery. Cook until the onion begins to turn translucent.
Add ribs back to the pot, along with the barley, and beef broth. Top with the mushrooms. Add salt and pepper to taste. Bring to a boil. Lower to simmer and then taste, adjusting salt and pepper as needed. Simmer for 2 1/2 hours.
As the mixture simmers, a froth may rise to the top. You may skim it off or stir it in, as you prefer.
The soup is done when the meat is pulling off of the bone. Before serving, remove the bay leaf.
Serve one rib to a bowl of soup, or meat may be shredded from the bone for ease of serving.
This soup improves overnight and is best served reheated the day after making it.
You will have an easier time browning the meat by doing at most two at a time; more and the pieces can steam, thwarting the caramelization process.
You may question whether some herbs or spices wouldn’t add lots more flavor. Maybe they would. Try some yourself. But that blend of onions, celery, bell pepper, parsnips, and onions adds a savory flavor that doesn’t require much embellishment.
Add more barley for a thicker soup.
Add beef broth or water as needed to thin or extend the soup.
Be sure to chop the vegetables coarsely. A mince or fine chop will result in vegetables that simply disappear in the cooking process.
Dried mushrooms add much flavor. If you use them, reserve the mushroom water and use it to replace some of the beef broth, but be sure to strain the water through a coffee filter to remove grit and debris.
I based this recipe on an internet recipe, but made my own changes. You are essentially braising the ribs; the soup is the delicious braising liquid. As with all braises, the meat will be fall-off-the-bone tender, so you won’t need to buy boneless ribs for eatability. Besides, meat on the bone has so much more flavor.
December 20, 2019 § Leave a comment
The GAP Act forms published by the MSSC are now available on the Mississippi Judicial College web site.
Click on this link to access them. I will also add a page with the link at the GAP Act materials tab on this site.
December 18, 2019 § Leave a comment
It’s elementary that modification of custody requires substantial evidence of a material change in circumstances of the custodial parent’s home that is having an adverse effect on the child, and it is in the child’s best interest to change custody.
In the recent COA decision of Munday v. McLendon, handed down December 3, 2019, Judge Lawrence laid out the law of material change so succinctly that you might find it useful when you need a chunk of authority in a similar case:
¶27. A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)).
¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).
Keep in mind that there is an exception to the requirement for showing an adverse effect. If the situation in the custodial parent’s home presents an immediate or strong likelihood of harm, the court can order a change of custody without a showing of adverse effect. In Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the court affirmed the chancellor who changed custody on proof that the custodial parent was doing drugs in the child’s presence, even though the child was excelling in school and showed no adverse effects. In Burrus v. Burrus, 962 So. 2d 618 (Miss. Ct. App. 2006), the court affirmed a chancellor’s change of custody of a teenage girl based on the custodial mother’s remarriage to a man who had been convicted of four counts of sexual assault on another 14-year old girl; there was no proof of any adverse effect of the marriage, and no evidence of impropriety by the new step-father.
December 17, 2019 § 2 Comments
“So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So. 2d 944, 950 (Miss. Ct. App. 2004).
The COA, in the case of Butler v. Mozingo, decided November 12, 2019, reversed and rendered a chancellor’s decision that a material change in the custodial parent’s home had adversely affected the child. The COA held that there was not substantial evidence in the record to support the chancellor’s ruling. You can read the opinion for yourself. There is nothing particularly noteworthy about it, other than to the parties.
An understandable first reaction might be to conclude that the chancellor simply screwed up. But consider this: what if the chancellor felt strongly that the best interest of the child demanded a change in custody, but the lawyer failed to get substantial evidence of adverse effect into the record, and the chancellor went ahead and did what she believed was best for the child, substantial evidence or not. I’m not saying that is what happened here; in fact, the attorneys involved are all competent and experienced. What I am saying is that it’s on the attorneys to give the judge the proof she needs to support her findings.
Several years ago a chancellor, now retired, told me of a custody modification case in which the defendant-mother’s inexperienced attorney faced off against an experienced, highly competent family lawyer. The judge told me that he had misgivings about the plaintiff’s case, and he felt that the plaintiff’s advantage was his skillful lawyer, not his facts. The inexperienced lawyer did not even put on proof of Albright factors, perhaps because he did not even know about them. The trial had not been concluded when the chancellor told me about it, so I can’t tell you how he handled it, but that sort of situation creates a conundrum for the trial judge. On the one hand, the judge should not aid or assist either side in a contested trial. On the other hand, though, the best interest of the child is the polestar consideration. Should the judge call or examine witnesses per MRE 614 to flesh out the record? Should the judge stop the trial and appoint a GAL? Or should the judge let things play out and then rule as the judge did in Butler, above?
That’s something for you to ponder. If you want the judge to rule in your favor, you must give the judge all the ingredients she needs to do so. If you don’t your case will fail, either at trial or on appeal.
December 16, 2019 § 2 Comments
Are you technically competent enough to protect your clients’ interests and represent them zealously?
As Philip Thomas pointed out in a blog post last month, 37 states already impose a duty of technical competence in their ethical rules. Mississippi will probably be the 50th, based on past experience, but most of us will probably be around when the requirement is imposed in Mississippi.
So what is technical competence, anyway? Here’s how one proposed rule defines the duty:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject [My emphasis].
All of that looks like the existing duty to stay current with case law and changes in rules and practice EXCEPT for the highlighted language “including the benefits and risks associated with relevant technology.” That’s a pretty broad statement. What exactly is relevant technology?
Some benefits and risks are apparent to even the most technically illiterate person. For example, MEC, computer word processing, computer billing, and online research we can recognize are benefits. On the other hand, if you send an email with confidential information to opposing counsel, or if you send a document with unredacted metadata, or if don’t protect your servers from hackers, you soon find out what are the risks. I guess that’s part of what the rule considers “relevant technology.”
Those are fairly obvious and familiar to almost all of us. But there are developments in technology and the law that only a few know about and it will be a while, if ever, before they reach the mainstream. If I knew what they were, I’d itemize some for you. Are those cutting-edge changes included in what one is chargeable for?
As of right now, I think lawyers are already under a duty to understand the risks and benefits of internet communication, electronic discovery as practiced by the great majority of lawyers, wireless communication, metadata, and internet security, and to take appropriate steps to protect from or reap advantages out of them.
Fortunately, the number of older lawyers (my age group) who only a few years ago proudly boasted of computer illiteracy (“I don’t even know how to turn one on! Haw, haw, haw!”) is shrinking. Some of that shrinkage may be due to attrition, but I think mostly it’s due to the fact that they have come to understand that keeping up with changing technology, in some degree, is vital for survival in the profession.
One thing you might find helpful is to follow Mr. Thomas’s blog. He often touches on technical developments in the law.
December 13, 2019 § Leave a comment
December 11, 2019 § 2 Comments
The UCCRs impose a heavy duty on attorneys to advise and supervise the client-fiduciary in fiduciary matters, including guardianships and conservatorships. The burden can be so onerous that some cases refer to it as the “yoke of probate.” You can not blithely turn your fiduciary loose to figure it out for himself or herself. You have a duty to the court, the ward, creditors, and, in estates, the beneficiaries or heirs.
Make sure your fiduciary knows what are the do’s and don’ts. Put together an instruction sheet and have your client sign a copy to keep in your file for your protection.
There is a reason that UCCR 6.01 requires every fiduciary to have an attorney (unless excused). It’s because the attorney is the arm of the court who is responsible to supervise the fiduciary and make sure everything is being done properly. As you have heard many times before, if you find that too burdensome, simply refuse to handle fiduciary matters.
Some GAP Act considerations:
• § 93-20-125, MCA, deals with coverage of the GAP Act. All cases commenced on or after January 1, 2010, proceed under the GAP Act. “A civil action is commenced by filing a complaint with the court.” MRCP 3(a). So when you file your complaint to open the guardianship or conservatorship will determine coverage. Cases that were commenced before January 1, 2020, are covered by the GAP act unless you move the court for a finding the “application of a particular provision of this chapter would substantially interfere with the effective conduct of the proceedings or prejudice the rights of the parties …” and the court finds that the particular provision does not apply.
• MRCP 18(a) specifically states that “A party asserting a claim to relief as an original claim, counter-claim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims as he has against an opposing party.” Some people have raised the question whether the GAP Act allows a combined guardianship/conservatorship action. The GAP Act is silent on the point, yes. But MRCP speaks loudly that you can. And the GAP Act expressly provides at Section 107 that procedures are governed by the MRCP.
• Some people have also questioned whether, if combined actions are allowed under the MRCP, are two filing fees required? Why would they be? They are not now for combined guardianships of the person and estate, which are merely the old (now existing) terms for what under the GAP Act will be guardianship and conservatorship.
• There are some hiccups with MEC adapting to the new nomenclature imposed by the GAP Act. That is being fixed even as this is being written. Our fingers are crossed that the issues will be fixed before January 1, 2020.
• Also to be addressed are technical corrections to the Act to address some concerns that have been raised. This is normal and to be expected. Every statute with the extent of the GAP Act undergoes a similar process.
Some general suggestions …
• Always accompany the fiduciary to the bank or other financial institution to open the conservatorship account. That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do.
• Always ask that a duplicate bank statement be sent to you for the conservatorship account. If the bank balks, direct that the bank statement be sent to you and not the fiduciary. Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made. Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
• Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate. This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
• Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness. It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
• Do an inventory even when one is not required. Inventory establishes the baseline for accounting. It also can help neutralize the claims of many disgruntled parties claiming an interest. The GAP Act inventory form is exactly what you need to go by.
• GAP Act forms are not only helpful; they also were carefully crafted to include every item you are required to plead or report. Use them. Slavishly using the exact forms is not (yet) required; however, if you prefer to make your own forms, yours should substantially conform to those published.
• As of today, we have no body of law interpreting the GAP Act, but that will surely change over time. Until it does, we can look to court decisions under our former law. MCA §93-13-38 provided that, “All the provisions of the law on the subject of executors and administrators , relating to settlement or disposition of property limitations, notice to creditors … “ , etc. also applied to guardianships and conservatorships. Just in case that principle is found to apply to GAP Act cases, you need to keep in mind that, in an estate, when real property is sold pursuant to a decree of the court, § 91-7-205, MCA, requires that the executor or administrator shall execute a bond equal to the proceeds of the sale of the land. This code section does not apply to a sale by the heirs or devisees in whom title has vested. There is an exception to the requirement of bond. If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficiaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond. § 91-7-205, MCA. If an executor or administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land. Section 91-7-207, MCA. An early case held that failure to give the bond voids the sale. Buckner v. Wood, 45 Miss. 57 (1871).
• Your fiduciary is obligated to increase the ward’s estate, if possible. The courts apply the prudent investor standard, which can be second-guessed. There are a few ultra-safe investments that the fiduciary may make without prior approval, per MCA § 91-13-3, including time CD’s, CDAR’s, savings accounts, and most FDIC- and FSLIC-insured accounts (Note: to my knowledge, credit union accounts do not qualify). Only problem is that in this era, those accounts produce interest rates closer to zero than anything that would actually increase the ward’s estate. So the prudent investor has to look to more speculative investments, which are allowed under MCA 91-13-3 and -5, but require a bond. See In re Guardianship of Roshto, 134 So. 3d 739 (Miss. 2014). Under the GAP Act, you will need to submit your investment plan to the court for approval, with adequate supporting documentation so that anyone looking at it later will be able to see that the court had a valid basis for its order.
• All expenses and receipts must be accounted for annually or more frequently if ordered by the court. UCCR 6.03 – 6.06 detail the voucher requirement. There’s a right way and a wrong way to file an accounting; do it the right way. Forms are published to help you. Use them.
• § 93-13-69, MCA formerly required that accounts of several wards must have been kept separately. We still think that the best practice under the GAP Act will be to open a separate guardianship or conservatorship, or guardianship/conservatorship for each of several wards, even if they are guardianships only, because if assets come into the child’s estate, they must be accounted for separately. The former statute did authorize the judgments dealing with them to be combined “wherever practicable.”
Minor’s settlements …
• Yes, there is nothing in the GAP Act that does away with the requirement of minor’s settlements. § 93-20-431 does allow transfers not exceeding $25,000 to a minor in a given year without court approval, which is commensurate with the law pre-January 1, 2020. So when, exactly, is court approval required? In every transaction in which the minor is to receive a liquidated sum over $25,000, and in every case involving an unliquidated sum. A liquidated sum would include, for example, life insurance proceeds or a lump-sum survivor’s benefit for a set amount by contract. If the settlement is for an unliquidated sum, such as for personal injury settlement, the settlement must be found by a chancellor to be in the best interest of the ward; i.e., in a minor’s settlement proceeding. The statute does not specify the liquidated/unliquidated dichotomy spelled out above, but I believe that approach is the best practice and most protective of all parties.• You should always obtain a letter from the Mississippi Division of Medicaid either stating the amount of its lien against the proceeds, or stating that it asserts no lien. Never accept your client’s word that Medicaid has no lien. Failure to protect Medicaid’s lien can subject both you and your client to an action by Medicaid to recover double damages, and your client can lose Medicaid eligibility as well.
• Remember that, in minor’s settlements, only statutory liens are required to be withheld from the minor’s proceeds. Memorial Hospital at Gulfport v. Proulx, 121 So. 3d 222, 224 (Miss. 2013). It is the duty of the parents, not a child, to provide for the child’s medical care; when you ask the court to order that unpaid medical expenses be paid out of the child’s proceeds, you are essentially asking the court to order the child to pay his or her own medical bills. If you do want the child to have to pay for his own medical care, you will have to put on proof that requiring the parents to pay would put an undue financial burden on the family that will impact other children and the parents, and that if the parents are unable to pay and it goes into collection, the ward’s future ability to obtain medical care will be adversely affected. Otherwise, the chancellor will have to assign responsibility for expenses not included in the settlement on the parents.
• Remember, too, that the chancellor is responsible to make sure that the settlement is reasonable. It makes no difference that everyone with responsibility agrees that the settlement is reasonable. It is the chancellor’s duty to make the decision that it is in the child’s best interest.
• My best prognostication is that, although the law will have changed, chancellors will continue to have the same expectations of diligence, responsibility, candor, and honesty in handling of fiduciary matters that they have had under existing law.