Substantial Evidence in the Record
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.
The Better Chancery Practice Blog 
Perhaps I am in the habit of offering too many opinions, but it seems to me that a chancellor should ask a few questions if necessary to uncover the facts in order to do equity, which after all is why he is on the bench. On the other hand, there should be a benefit in hiring a competent lawyer, or we are all of equal value. Recently, I witnessed a really dumb guy representing an uneducated fellow who had been badly messed over and failing to present evidence which obviously existed. The judge recessed and took me into chambers to sign an order, and I said: “That poor fellow needs help,” and the judge, a nice person, replied:” Yeh, he really does, doesn’t he?” The client didn’t realize he’d hired a bungling incompetent, and I think the judge took that into consideration and probably tried to do the right thing. I’m not suggesting that judges should try cases for those who don’t know how, but judges don’t want to preside over injustice. And I recall several times when I, as a young lawyer, was helped when I didn’t know how to get something in evidence by the judge saying : Well, I’ll have to sustain the objection unless Mr. Downey first shows (whatever). It does more good than harm to help those who need it. On the other hand, we do need rules. It’s a tough balancing act and requires the judge to apply situation ethics, which is in large part true of many legal scenarios.
You are exactly right on all counts. It takes discretion and wisdom to know when to step in and when to stay out. It’s a large part of the reason why we need experienced judges who have developed those skills and know how to use them.