Modifiability of an Agreed Judgment

March 31, 2020 § Leave a comment

In 2012, Elizabeth Pumroy and her ex-husband, Michael Sisco, presented an agreed judgment to the chancellor. It modified the child support provision of the parties’ divorce judgment and included the following language:

” [the amount] is based upon [Sisco’s] current income … and shall not be modified absent a substantial decrease in [Sisco’s] income through no fault of his own.”

In 2018, DHS sued for downward modification due to emancipation of the oldest of the three children. Pumroy objected on the basis that their 2012 agreement was a binding contract. Following a trial, the chancellor did modify the child support based on a finding that one of the three children was, indeed, emancipated. Elizabeth appealed.

In Pumroy v. Sisco, handed down March 17, 2020, the COA affirmed. Judge Cory Wilson wrote the opinion for a unanimous court:

¶12. Pumroy renews her contention that the parties’ 2012 agreement could not be modified because it was a binding contract. She asserts that under the “clear and unambiguous” terms of the contract, Sisco was obligated to pay $500.00 per week in child support “until such time as the minor children are emancipated by the laws of the state of Mississippi.” Pumroy contends that under the language of the 2012 agreed order, no modification is proper until
all of the children are emancipated, as opposed to when each of the children is emancipated. The chancellor declined to read the prior order this way, stating that the court would not “read anything more into their agreement,” so as “not [to] allow a modification when one of the children has become emancipated.”

¶13. We find no error in the chancellor’s determination that a modification in child support was warranted in this case. “[S]upport obligations most certainly can be modified when there is a finding of a material change in circumstances, which was not foreseeable at the time of the judgment of divorce.” Short v. Short, 131 So. 3d 1149, 1151-52 (¶¶7-8) (Miss. 2014) (finding that language in the parties’ divorce agreement stipulating that father should never pay less than $3,000 per month in child support was modifiable upon showing that a material change in circumstances had occurred); see also Collado v. Collado, 282 So. 3d 1239, 1242 (¶9) (Miss. Ct. App. 2019) (stating that court-approved child support agreement is subject to modification when a party seeking modification shows a material change in circumstances). “Our supreme court has also made it clear that ‘a parent is relieved of the
legal duty to support his child once the child is emancipated whether by attaining the age of majority or otherwise.’” Andres v. Andres, 22 So. 3d 314, 317 (¶7) (Miss. Ct. App. 2009) (quoting Houck v. Houck, 812 So. 2d 1139, 1142 (¶9) (Miss. Ct. App. 2002)); see also Miss. Code Ann. § 93-11-65(8)(a) (Supp. 2008).

¶14. As in Short, we find that the parties’ 2012 agreement, as embodied in the chancery court’s October 3, 2012 order, was indeed modifiable upon a showing that a material change in circumstances had occurred. In 2017, Sisco requested that DHS file a “Petition to Modify Final Judgment,” alleging a material change in circumstances because of the parties’ eldest child’s emancipation. Pumroy did not dispute that their child had been emancipated; instead, she simply contended that the chancery court could not modify the 2012 agreement until all of their children were emancipated. Based on the undisputed fact that the parties’ eldest child was emancipated, the chancellor granted Sisco’s requested modification and held that “the child support obligation of [Sisco] be reduced to the statutory guidelines.” Based upon the record before us, we find that the chancellor was not manifestly wrong in so ordering. We therefore affirm the child support modification.

Thoughtlings:

  • Don’t forget that child support may either be global (one amount for all children) or per-child (a set amount for each child). When the child support is global, whether to decrease child support on emancipation of one child is discretionary with the judge. The chancellor could find that the remaining children still need the same amount and refuse to decrease it.
  • Judgments for child support and alimony are modifiable, period. It matters not whether they were agreed. The chancellor probably wished he had a do-over in approving that 2012 agreed judgment. But sometimes, being human, we need to approve things we’d rather not after the parties have negotiated away a day of trial and everyone wants to go home.

Reprise: Avoiding RFA Catastrophe

March 30, 2020 § Leave a comment

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

The Price of Admission

August 17, 2016 § 1 Comment

Chancery court can be a strange land for strangers who spend most of their time in law courts. There, things tend to be pretty black and white; here, well, not so much. One of the things that circuit lawyers find particularly frustrating is that chancellors sometimes seem to look past the black letter of the rules in some of their rulings.

It can cut both ways, though.

In the recent case of Randallson v. Green, a COA case decided June 21, 2016, Arthur Randallson and his wife, April, argued that the chancellor erred in relying on their deemed answers to requests for admission in determining custody.

The case came before the chancery court on a complaint filed by Randall and Laura Green seeking legal and physical custody of Aeva, the daughter of Arthur and April. The Greens filed requests for discovery which were not answered by the Randallsons until 51 days after they were served on them. The chancellor awarded custody to the Greens, and the Randallsons appealed.

Their first assignment of error was that the chancellor erred in relying on their deemed MRCP 36 admissions (RFA’s) to determine custody. Judge Lee wrote for a unanimous court:

¶19. This Court has strictly enforced the application of Mississippi Rule of Civil Procedure 36 according to its terms. Boyd v. Boyd, 83 So. 3d 409, 416 (¶19) (Miss. Ct. App. 2011). “The rule states that a party has thirty days in which to submit a response to a request for admission, or within forty-five days after service of the summons upon a defendant.” Id. (citing M.R.C.P. 36(a)). “Matters will be deemed admitted after this time period, unless the court allows for either a shorter or longer period of time in which to answer.” Id.

However, the trial court, on motion, has the discretion to “permit withdrawal or amendment [of a matter admitted] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Id. (quoting M.R.C.P. 36(b)).

¶20. The record is clear that Arthur and April filed untimely responses to Randall and Laura’s requests for admissions. See id. at (¶21). They failed to request a withdrawal or amendment of the admissions prior to trial. See id. Thus, the operation of the rules deems the matters admitted. Id. (citing M.R.C.P. 36(a)). “Matters admitted by default under Rule 36(a) are established unless and until the trial court allows amendment or withdrawal by motion under Rule 36(b).” Id. (quoting DeBlanc v. Stancil, 814 So. 2d 796, 799 (¶17) (Miss. 2002)).

¶21. However, in Gilcrease v. Gilcrease, 918 So. 2d 854 (Miss. Ct. App. 2005), we held that “child custody is a judicial determination, and is never to be regarded as a merely evidentiary matter.” Boyd, 83 So. 3d at 417 (¶23). Thus, basing a determination of child custody solely on a Rule 36 admission is improper. Id.

¶22. In her bench ruling, the chancellor considered Arthur and April’s admissions. But then the chancellor stated:

[T]his [c]ourt is a court of equity and the attorneys for the plaintiffs know that. They did not . . . rest their case [after the admissions were deemed admitted and] ask me to find by clear and convincing evidence that the parents [were] unfit . . . . They went on to present evidence to this [c]ourt, which gave the [c]ourt some . . . very real concerns.

After discussing the evidence, the chancellor stated that she “considered the totality of the [r]equest for [a]dmissions, the guardian [a]d litem report, [and] the testimony . . . from all of the witnesses” and found “that the [natural-]parent presumption [had] been overcome.”

¶23. Upon a thorough review of the record, we do not find that the chancellor abused her discretion. See id. at 418 (¶28). It is clear that the admissions were not the sole basis for the custody decision. See id. The chancellor heard all of the testimony at trial and used the GAL’s report as part of her consideration, in addition to the admissions by Arthur and April. See id. Therefore, this issue is without merit.

You can take away at some points:

  • Failure to answer RFA’s can have as significant effect in a chancery court as in a law court.
  • The chancellor in a child custody case may not rely solely on admissions to make its custody decision.
  • The only way a chancellor (or any other judge operating under the MRCP) may relieve your client of the effect of admissions, whether deemed or expressly made, is if you timely file a motion and put on proof that (a) the merits of the case will be served by granting the motion, and (b) there is not prejudice to the other party. Fail to do that, and your client is stuck. Wait until the day of trial, and you probably will fail on (b).
  • Don’t forget that you can move to “withdraw” or amend even when your client wholly failed to respond at all. You just have to go through the motion routine above.
  • But, hey, instead of putting all your chips on a rescue procedure that relies on the possibly sketchy discretion of the judge, why not focus instead on your office procedures? Have a protocol in place that the minute a RFA appears in your email inbox, or is served with process, or is hand-delivered, or arrives in the mail, your staff knows to give it top priority and get it to your immediate attention. Calendar the due date. Make an immediate appointment with the client to come up with responses ASAP. Get the answers filed within a reasonable time.
  • Resist the temptation to answer every question with something like, “Defendant is without knowledge or information sufficient to form a belief …” unless that really and truly is the case. On a bad day the judge could find that sort of response sanctionable.

Strange Days Indeed

March 27, 2020 § 5 Comments

Nobody told me there’d be days like these
Nobody told me there’d be days like these
Nobody told me there’d be days like these
Strange days indeed
most peculiar
Mama

John Lennon recorded those prescient words in 1980; that’s 40 years ago. But he might as well have written them last week.

Since last week in our little corner of the Milky Way, we have had a chancellor shot and almost killed, we have been besieged by coronavirus with the result that court dockets have been turned topsy-turvy, and an active attorney with numerous cases on the chancery court docket dropped dead Wednesday evening from a heart attack.

Forgive us around here for thinking that there is some vast cosmic conspiracy at work against us in the Spring of the first year of the second decade of the 21st century.

You, of course, have your own travails. You are under the same epidemic cloud that infests us. And, like us, you have your own everyday woes that are simply the stuff of life regardless of epidemics, et al. It’s a wonder we haven’t all gone stark, raving. I don’t know how we endure it.

But we must not only endure, we must prevail, as a famous Mississippian once said.

There are various strategies. Some fall back on faith, others reason. Some dig deeper into work, others curl up into a fetal ball. Some rage, others shrug. Whatever fills your sails, but just keep sailing ahead.

We will get through this, I am sure. When you have survived as long as I have, you see some strange days, indeed, and these are right up there with the strangest I have ever seen. Most peculiar, mama.

 

 

 

R.I.P Attorney Leslie C. Gates

March 26, 2020 § 2 Comments

Attorney Gates of Meridian died unexpectedly last evening, March 25, 2020.

Another HCIT Spousal Domestic Abuse Case

March 25, 2020 § Leave a comment

Yesterday we visited the 2017 amendment to MCA 93-5-1 that added “spousal domestic abuse” as a form of HCIT. In that case the chancellor had denied a divorce, finding that the proof was not sufficient.

In another case dealing with the 2017 amendment, the COA affirmed a chancellor’s finding that the evidence did support award if a divorce to the injured wife. The decision is in the case of Williams v. Williams, decided March 17, 2020. You can read Judge McCarty’s opinion for yourself.

I agree that the chancellor’s decision was supported by substantial evidence. I doubt any chancellor would have found differently. Most importantly, the chancellor specifically found the plaintiff-wife’s evidence credible. Remember, and this is vital, that the statute requires credible evidence. It’s crucial for the chancellor to make a finding of credibility so as to avoid the corroboration requirement. If your chancellor renders an opinion in a case with no corroboration, and has not made such a finding, file a timely R59 motion and ask that she do so.

Pleading the Spousal Domestic Abuse HCIT Ground

March 24, 2020 § Leave a comment

Ever since the legislature amended MCA 93-5-1 in 2017 to add “spousal domestic abuse” as a form of HCIT there has been a lingering question whether one is required to plead the enhanced ground, or whether it is sufficient simply to plead HCIT and nothing more. A recent MSSC decision comes close to answering the question.

Karrah Wangler filed her Complaint for Divorce against her husband Richard on January 3, 2018. On October 16, 2018, the day before trial, she moved the court to amend her complaint to track the 2017 amendment verbatim. The chancellor denied her motion. On appeal, she charged that the chancellor erred in denying her motion.

In Wangler v. Wangler, handed down March 12, 2020, the court affirmed. Justice Griffis wrote the 7-2 majority opinion:

¶6. “[M]otions for leave to amend are left to the sound discretion of the trial court. This Court reviews such determinations under an abuse of discretion standard and unless convinced that the trial judge abused his discretion, we are without authority to reverse.” Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (internal quotation marks omitted) (quoting McCarty v. Kellum, 667 So. 2d 1277, 1283 (Miss. 1995)).

¶7.

[Mississippi] Rule [of Civil Procedure] 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded . . . if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason—such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.—the leave sought should, as the rules require, be “freely given.”

Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002)).

¶8. Karrah argues that the chancellor should have granted her motion to amend the complaint because under Rule 15(a), “leave shall be freely given when justice so requires.” Miss. R. Civ. P. 15(a). This Court disagrees and finds that the amendment was futile. Alternatively, any error by the chancellor was harmless.

¶9. Mississippi Code Section 93-5-1 (Rev. 2018) provides twelve causes for divorce. Among those causes is habitual cruel and inhuman treatment. Miss. Code Ann. § 93-5-1. Effective July 1, 2017, the Legislature amended Section 93-5-1 to include “spousal domestic abuse” as a form of habitual cruel and inhuman treatment. S.B. 2680, Reg. Sess., 2017 Miss. Laws ch. 427, § 6 (codified as amended at Miss. Code Ann. § 93-5-1 (Rev. 2018)).

¶10. Karrah filed her complaint for divorce on January 3, 2018, and alleged that Richard was “guilty of habitual cruel and inhuman treatment.” More than nine months later, on October 16, 2018, Karrah moved to amend her complaint to allege spousal domestic abuse, specifically,

that Richard . . . ha[d] engaged in a pattern of behavior against [her] of threats of intimidation, emotional or verbal abuse, forced isolation, and false accusations of marital infidelity, coupled with episodes of abandoning [her] at all times of the day or the night on the sides of public highways and in public places which pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

According to Karrah, “[o]ut of an abundance of caution and so as to avoid any ‘surprises’ or misunderstandings, [she] . . . filed her motion to amend to explicitly and almost verbatim track the language of amended section 93-5-1 . . . .” Karrah explained that she moved to amend her complaint in order “to spell out the new . . . standard for habitual cruel and inhuman treatment . . . .”

¶11. But as previously noted, the legislative amendment to Section 93-5-1 was effective July 1, 2017, approximately six months before Karrah and Richard separated and Karrah filed her complaint for divorce. Thus, Karrah had ample time to include in her complaint any
allegation of spousal domestic abuse. Notwithstanding her failure to do so, the 2017 amendment to Section 93-5-1 was still applicable to Karrah’s complaint alleging habitual cruel and inhuman treatment. In other words, because Karrah filed for divorce on the ground
of habitual cruel and inhuman treatment after July 1, 2017, the effective date of the amendment, the amended language of Section 93-5-1 applied to her complaint. Additionally, the record shows that the parties participated in discovery and exchanged documentation
regarding Karrah’s allegations of spousal domestic abuse. Thus, Karrah’s last-minute motion to amend the complaint to “track the language of amended section 93-5-1” and to “spell out” the new standard was futile. Accordingly, the chancellor did not err by denying the motion.

¶12. Alternatively, even if the chancellor’s denial of Karrah’s motion to amend the complaint was erroneous, such error was harmless. The record shows, and Karrah admits, that “Karrah had already spelled out her evidence in her responses to discovery.” Moreover,
the record shows that Karrah testified at trial regarding her allegations of habitual cruel and inhuman treatment, including spousal domestic abuse. At the conclusion of Karrah’s case-in-chief, the chancellor granted her motion to amend the pleadings to conform to the evidence under Mississippi Rule of Civil Procedure 15(b). As a result, the chancellor considered all of the testimony and evidence offered by Karrah in support of her claim for divorce on the ground of habitual cruel and inhuman treatment, including spousal domestic abuse. Therefore, as acknowledged by Karrah, any error by the chancellor in denying the motion to amend the complaint was harmless.

Random thoughts:

  • One of the key advantages of the 2017 amendment is to do away with the strict corroboration requirement. It replaces corroboration with a determination of credibility by the court. So the concern of practitioners has been over how much is necessary to be pled in order to preserve the no-corroboration advantage.
  • This decision seems to say, without coming right out and saying it, that all you need to do is plead HCIT and the spousal abuse amendment is invoked.
  • As a practice consideration, if I were you, I would plead both HCIT and HCIT/spousal abuse, and I would probably spell out as much of the offensive behavior as applies. Why? Well, it eliminates the argument that the other side was not put on notice, and if you don’t choose to invoke it at trial it is mere surplusage in the pleading.
  • I did rule in the only case that has come before me with this issue that it was adequate to plead HCIT without the other language, but I still think that the better, most airtight way to approach it is to plead in detail.

Overcoming the Notarial Presumption

March 23, 2020 § 1 Comment

Michael Matthews’s name, along with his wife’s, appeared on notes and deeds of trust against the family home. The loans purported to provide cash flow for Michael’s petroleum business.

But Michael claimed that he did not know anything about the notes or deeds of trust, even though his notarized signatures appeared on them. He denied that he had ever signed any of them, and that they were forgeries. The bank filed suit for declaratory judgment that the documents did bear his signature.

Following a trial, the chancellor ruled against Michael, and he appealed.

On August 27, 2019, the COA affirmed in Matthews v. Whitney Bank, et al. Judge Jack Wilson wrote the court’s opinion:

¶22. “When a party challenges the validity of a properly-acknowledged deed, that party must overcome several presumptions favoring the legitimacy of the document. The first presumption provides that, where a deed is properly acknowledged, the instrument is presumed to be authentic because the certificate of acknowledgment infers verity and presumptively states the truth.” Mapp v. Chambers, 25 So. 3d 1096, 1101 (¶22) (Miss. Ct. App. 2010) (citation omitted). As our Supreme Court has stated, “[i]t is presumed that the [notary] making a certificate of acknowledgment has certified to the truth and has not been guilty of a wrongful or criminal action. The presumption has been stated to be one of the strongest in the law.” Sapukotana v. Sapukotana, 179 So. 3d 1105, 1114 (¶26) (Miss. 2015) (quoting Nichols v. Sauls’ Estate, 250 Miss. 307, 165 So. 2d 352, 356 (1964)) (emphasis added). “This presumption can be overcome only by clear and convincing evidence.” Mapp, 25 So. 3d at 1101 (¶22). In this case, the chancellor found that the 2008 deed of trust was properly acknowledged and that Michael did not overcome the notarial presumption of validity by clear and convincing evidence.

¶23. Michael argues that the chancellor should not have applied the presumption of validity because “both notaries abandoned their acknowledgments and admitted their departure from proper notarial procedure.” However, Michael’s claim that Deborah Estes “abandoned” her acknowledgment of the 2008 deed of trust is not supported by the record, and we find no error in the chancellor’s application of the notarial presumption.

¶24. Deborah Estes notarized the 2008 deed of trust. She testified at trial that she did not have a specific recollection of notarizing the deed, but she had no reason to believe that she would have departed from her standard practices. In other words, she believed that Michael signed the document in her presence. Estes testified that people sometimes asked her to sign documents that they had already signed. Estes testified that her usual practice would be to insist that the principal sign the document again in her presence. On cross-examination, Estes seemed to concede that she might have, at some point in the past, notarized a document that was not signed in her presence—but only if the principal personally presented the document to her. Estes went on to testify that she would not notarize a document if it was signed outside of her presence by someone other than the person who presented it to her. Estes testified that she could not recall ever notarizing a single document under those circumstances.

¶25. Michael claims that his signature was forged on the 2008 deed of trust and that he was not present when Estes notarized the document. Estes, however, testified that it would have been contrary to her standard practices as a notary to notarize a document under such circumstances. By the time of trial, nine years after the fact, Estes did not have a specific recollection of notarizing the deed of trust. But her testimony as to her standard practices as a notary is competent evidence that she acted in conformity with those practices on this particular occasion. M.R.E. 406 (“Evidence of a person’s habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit . . . . The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”). Estes has been a notary since 2000, and she testified that it has always been her practice to require the principal’s physical presence. Her testimony was sufficient “to base an inference of systematic conduct and to establish [her] regular response to a repeated specific situation.” Hooker v. State, 716 So. 2d 1104, 1111 (¶24) (Miss. 1998) (applying M.R.E. 406) (quotation marks omitted). The chancellor did not clearly err by finding that Estes notarized the document and, therefore, that the notarial presumption of validity applied. See Wallace v. State, 264 So. 3d 1, 6-7 (¶¶22-25) (Miss. Ct. App. 2018) (Wilson, J., concurring in result only) (concluding that an attorney’s testimony that he always communicated plea offers to his clients was sufficient to support the trial court’s finding that he communicated a plea offer on a particular occasion).

¶26. Estes did admit that she failed to record her notarization of the deed of trust in her notarial register. Her failure to do so was contrary to Mississippi Code Annotated section 25-33-5, which provides that “[e]very notary shall keep a fair register of all his official acts[.]” Miss. Code Ann. § 25-33-5 (Rev. 2018). However, a mere “failure to strictly follow form” does not render an acknowledgment invalid when, as in this case, “the acknowledgment contains all the necessary information.” Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 931 (¶21) (Miss. 2003). The statute requiring the notary to keep a register “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.” In re Jefferson, Case No. 11-51958 (Adv. No. 11-05059), 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (citing Estate of Dykes, supra). The failure to maintain such a register could result in suspension of the notary’s commission. See Miss. Admin. Code § 1-5-7.2 (“The Secretary of State may suspend a notary commission for actions contrary to the Mississippi Notary Law . . . .”). However, it does not invalidate an otherwise proper acknowledgment. In this case, there was sufficient evidence for the chancellor to find that Estes properly acknowledged the deed of trust. Therefore, the chancellor did not clearly err by applying the notarial presumption of validity.

Some thoughts …

  • Does your office staff follow proper recording procedures? Or, let me ask it this way: is your office staff’s notary record sufficient to get you out of a bind if there is a dispute over what took place in your office? Is the recordation sufficient to keep you from having to pay a settlement or judgment? Isn’t it your responsibility to train your staff or see to it that they are trained?
  • It’s true that failure to record properly does not necessarily render the acknowledgment void, but why open yourself up to the controversy?
  • This case illustrates how, in a swearing contest, a presumption can — and usually will — decide the case.
  • MRE 406 habit evidence may not be the strongest evidence, but when it comes to instruments such as deeds, wills, and the like, often it’s the best available. I’ve seen two cases, both will contests and one a jury trial, in which habit evidence carried the day. It takes strong evidence to overcome credible habit testimony.

Reflections on the Shooting of a Judge

March 20, 2020 § 10 Comments

Last Monday my fellow chancellor in the Twelfth District, Charles Smith, was ambushed and shot after exiting his pickup to enter the courthouse for the work day. He suffered extensive injuries, and was in critical condition until yesterday, when he was taken off the ventilator. His femoral artery was clipped, and Meridian surgeons had to operate to stop the bleeding. Only after they did that was it possible to transport him to University of Mississippi Medical Center in Jackson, where he has been since and will be for the foreseeable future. He is improving, but still may have to undergo multiple surgeries (he has had 4 already), although we actually got an optimistic report yesterday that damage to his pelvis may not be as bad as originally thought, and that he may not need as many surgeries as they thought at first.

It appears that this was a sniper-type rifle attack. No handgun could inflict that much damage unless at point-blank range; from everything we know, Judge Smith never saw his assailant.

Charlie, as he has been known to us, is an affable, easy-going, kind, considerate person. He’s a family man involved in his church. It’s hard to imagine what he could have done to incite such a savage blow.

And that’s the most troubling aspect. Every one of us — lawyers and judges alike — have handled cases where one party, could be your client, is crazy. By crazy, I mean irrational and even violent. You are lying to yourself if you haven’t thought at some point, even deep down, that you could be in danger from someone you represented, or was on the other side, or was in your court room.

An FBI agent visited my law partner, Tom, back in the 90’s to tell him that a former client he had represented in a criminal case had made a statement that if no one else was willing to kill Tom, the former client would do it himself. Thank goodness it never materialized. A former circuit judge told me of a time when a SWAT team spent the weekend in his home because of credible death threats they had learned of. I’ll bet most of you could relate similar experiences of your own or abut which you’ve heard.

I hope that this atrocity will get public officials to start paying serious attention to courthouse security. Judges should not feel that their lives are in jeopardy at their workplaces. Lawyers should not have to walk through courthouse crowds where some are wielding handguns waiting to intimidate, threaten, or even kill them.

The Declaration of Independence, our American Creed, which predates the Bill of Rights by 11 years, states that each citizen has the unalienable Rights to “Life, Liberty, and the pursuit of Happiness.” Life is the first and foremost right, eclipsing all others. Without life, all those guarantees of the Bill of Rights are meaningless. The Declaration goes on to say that governments are instituted “to secure those rights.” Government must do whatever is necessary to ensure that the lives of lawyers, court personnel, and judges are preserved and protected. It’s our unalienable right.

 

Desertion and its Proof

March 18, 2020 § Leave a comment

The COA’s decision in a recent case is a reminder that overcoming the natural-parent presumption requires clear and convincing evidence.

Judge Tindell wrote the 9-1 opinion that reversed the trial court ruling in Owens v. Owens, handed down December 17, 2019:

¶6. In child-custody cases, the best interest of the child is the paramount concern. Burge v. Burge, 223 So. 3d 888, 899 (¶37) (Miss. Ct. App. 2017). “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (¶8) (Miss. 2012)). Thus, a “third party must first clearly rebut the natural-parent presumption or preference” to receive custody. Smith, 97 So. 3d at 46 (¶8). As our caselaw establishes:

[T]he natural-parent presumption may only be rebutted by clear and convincing evidence that (1) the parent has abandoned the child; (2) the parent has deserted the child; (3) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.

In re Waites, 152 So. 3d 306, 311 (¶14) (Miss. 2014) (internal quotation marks omitted). Where a third party successfully rebuts the presumption, the chancellor must conduct an Albright analysis to determine if third-party custody serves the child’s best interest. Smith, 97 So. 3d at 46 (¶8).

¶7. Here, the chancellor concluded that clear and convincing evidence demonstrated Farrah had deserted Tiffany. “Desertion is defined as for[]saking one’s duty as well as a breaking away from or breaking off associations with some matter involving a legal or moral obligation or some object of loyalty . . . .” Neely, 194 So. 3d at 156 (¶21) (internal quotation mark omitted); see also Smith, 97 So. 3d at 48 (¶16) (explaining that desertion occurs when one forsakes “a person, institution, cause, etc., having a moral or legal claim upon one” or “forsake[s] one’s duty, one’s post[,] or one’s party”).

¶8. In Smith, the Mississippi Supreme Court considered a chancellor’s award of primary physical custody of a minor boy to his maternal grandmother and step-grandfather. Smith, 97 So. 3d at 44 (¶1). The Smith court concluded the record supported the chancellor’s finding that the mother’s desertion of her son had overcome the natural-parent presumption. Id. at 49 (¶17). Following the son’s birth in June 2003, he and his mother lived with the maternal grandparents in Mississippi. Id. at 45 (¶3). Over the next three years, the mother attended college. Id. The mother “sometimes visited” her son on weekends during the first three years of his life, but her visits eventually grew more infrequent. Id. In April 2006, the mother got married and moved to Washington D.C. to live with her new husband. Id. About a month later, the son also moved to Washington D.C. to live with his mother and her new husband. Id. In June 2006, however, the mother and her new husband separated, and the son returned to Mississippi. Id. Over the next few months, the son spent time in both Washington D.C. and Mississippi until he permanently returned to Mississippi in November 2006. Id. In 2007, the mother “sporadically” visited her son in Mississippi, and in April or May 2007, she gave the grandparents medical guardianship over her son. Id. In 2008, the mother’s visits with her son continued to grow “more infrequent,” and in March 2009, she moved to Arizona with a man she later married. Id. In granting third-party custody to the grandparents, the chancellor in Smith stated that the mother “had ‘failed to exercise her parental rights and fulfill her parental responsibilities’ by her ‘long and continuous absences’ from . . . [her son]. Consequently, the Smiths [(the grandparents)] had raised . . . [the grandson] virtually his entire life . . . .” Id. at 46 (¶4).

¶9. Citing Smith, the chancellor in the present case found that Farrah’s actions also constituted desertion. Specifically, the chancellor here stated:

Farrah’s long and continuous absences, especially in the context of a baby as young as the one in the instant case, along with her [(Farrah’s)] failure to exercise her parental rights, failure to financially support and care for the child[,] and her failure to fulfill her parental responsibilities, caused the child’s grandparents [(the Owenses)] to step in as primary caretakers.

¶10. Upon review, however, we conclude that the record in the present case fails to support a finding of desertion by clear and convincing evidence. At the time the Owenses filed their February 9, 2017 emergency petition for guardianship, Tiffany was only four months old and
had only lived in the Owenses’ home for two months. In addition, evidence reflected that until the Owenses received temporary custody of Tiffany, Farrah had been constantly present in her daughter’s life and had consistently contributed to Tiffany’s care and well being.

¶11. When the chancellor held the two-day hearing in November 2017 on the Owenses’ guardianship petition, Tiffany was one year old. Farrah testified about how often she had visited her daughter since her parents had received custody of Tiffany eight months earlier. Farrah stated that her parents initially allowed her to move back to their house following the February 2017 court hearing until they kicked her out a few weeks later. After leaving her parents’ home, Farrah stated that she visited with Tiffany around twenty times before she again moved back into her parents’ home in August 2017. During the time she lived with her parents in August 2017, Farrah testified that she was able to see Tiffany on a daily basis and that she “took care of Tiffany the whole time . . . [she] was there . . . .” According to Farrah, she was the one who mostly “fed . . . [Tiffany], bathed her, put her to bed, [and] fixed her breakfast.”

¶12. Farrah stated that her parents once again kicked her out of their home in September 2017 after they learned she had hired an attorney to represent her in the guardianship proceedings. Farrah testified that she still tried to visit Tiffany but that her parents refused to let her visit their house during weekdays while her father was at work. As a result, Farrah stated that she only visited with Tiffany once in the month leading up to the November 2017 hearing. Farrah also stated that she constantly tried to call and text her parents to request phone visits with Tiffany and pictures and videos of Tiffany. Farrah claimed, however, that her parents usually failed to answer her phone calls and text messages.

¶13. Farrah also testified that in September 2017 she obtained a job at a produce and firewood business. Farrah stated that she worked at the business the first part of the day and then babysat her bosses’ four children in the afternoons. Farrah testified that she had secured housing for herself and Tiffany and that she had just finished decorating Tiffany’s bedroom. If granted custody of Tiffany, Farrah testified that her employers had agreed to allow her to take Tiffany to work with her.

¶14. Unlike in Smith, the present record fails to show that Farrah forsook her duty to Tiffany through “long and continuous absences,” a “failure to exercise her parental rights,” or a “failure to fulfill her parental responsibilities.” See Smith, 97 So. 3d at 48 (¶16). Evidence instead reflected that Farrah consistently was or attempted to be present over the first year of Tiffany’s life. The record also contained evidence that during the periods when Farrah lived under the same roof as Tiffany,she helped to care for Tiffany and to provide for Tiffany’s needs. And during the times when she did not live under the same roof as Tiffany, Farrah testified about her repeated attempts to visit with her daughter. In addition, by the time of the November hearing, Farrah had not only obtained a job to financially support herself and Tiffany but had also obtained housing and arranged childcare. Based on such evidence, we conclude the chancellor manifestly erred by finding that the Owenses rebutted the natural-parent presumption with clear and convincing proof of desertion.

Forgery and its Proof

March 17, 2020 § Leave a comment

Yesterday we visited the appeal of Michael Matthews from a chancellor’s adverse decision that he had not overcome the notarial presumption in his case where he claimed that he had not executed various notes and deeds of trust.

Another claim Michael made unsuccessfully at trial was that the signatures were forgeries. When the chancellor ruled against him, Michael appealed raising that issue also.

The COA affirmed on August 27, 2019, in Matthews v. Whitney Bank, et al. Again, Judge Jack Wilson wrote the 9-0 opinion, Tindell not participating:

27. Michael also argues that the chancellor clearly erred by finding that the deed of trust and loan documents were not forged. Michael argues that the chancellor ignored “obvious” differences between the allegedly forged signatures and his true signature. He also argues
that his testimony was corroborated by Beth’s testimony and assertion of her Fifth Amendment privilege against self-incrimination.

¶28. In his opinion, the chancellor found:

The documentary evidence introduced at trial purportedly signed by Mr. Matthews each contains a similar signature. Mr. Matthews introduced exemplars of what he purports to be his genuine signature. While there was no lay witness or expert witness offered by either side concerning the bank signatures, none was required. This Court finds it could determine that the
contested signatures were forged if the purported genuine signatures and the purported forged signatures were obviously different. The Court finds . . . that, while the signatures are not exactly similar, they are not so dissimilar as to make the purported forged signatures obvious forgeries.

The chancellor also noted that Michael testified that he did not sign the documents, while Beth “refused to testify” on the subject.

¶29. To overcome the notarial presumption, it was Michael’s burden to prove forgery by clear and convincing evidence. Mapp [v. Chambers], 25 So. 3d [1096,] at 1101 (¶22) [(Miss. Ct. App. 2010)]. “Clear and convincing evidence is such a high evidentiary standard that it surpasses even the standard of overwhelming weight of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016) (quotation marks omitted). As an appellate court, we must “bear in mind” this high standard in determining whether there is sufficient evidence to support the chancellor’s findings. Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Id. Stated differently, the quantum of evidence necessary to affirm the chancellor’s findings “is less than it would be if the preponderance of the evidence rule applied.” Id.

¶30. The chancellor did not clearly err by finding that Michael failed to meet his burden of proof. Although Michael denied signing the document, the Mississippi Supreme Court “has long been committed to the doctrine that the testimony of parties in interest is not
sufficient to overturn such a certificate.” Bowers v. Fields, 148 So. 358, 358 (Miss 1933) (citing Mallory v. Walton, 119 Miss. 396, 81 So. 113, 114 (Miss. 1919)).

¶31. Moreover, the chancellor was not required to infer forgery from Beth’s assertion of her privilege against self-incrimination. In a civil case, an adverse inference may be drawn from a defendant’s assertion of the privilege—i.e., it is “permissible” for the fact-finder to draw such an inference. Morgan v. U.S. Fid. &Guar. Co., 222 So. 2d 820, 828 (Miss. 1969). However, the fact-finder is not required to do so. In addition, the rule permitting an adverse inference “has only been applied in Mississippi to the actual parties to a civil action.” Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004). In this case, Beth settled and consented to the entry of judgment against her prior to trial. She was not a party at trial. Finally, the chancellor could have been persuaded that an adverse inference was not warranted on the particular facts of this case. Beth and Michael are still married, and Michael is seeking to prevent foreclosure on the marital home. Under these circumstances, a plausible inference is that Beth thought that she could help Michael’s case and save their home by “pleading the Fifth.” In any event, it is sufficient to say that the chancellor was not required to draw any particular inference from Beth’s assertion of her privilege. The chancellor did not clearly err by declining to infer forgery.

¶32. Michael also argues that the chancellor erred by not appointing a handwriting expert to opine on the authenticity of the signatures. The possibility of a court-appointed expert was discussed briefly at a pretrial hearing; however, Michael took no further action on the issue. He did not file any motion requesting a court-appointed expert and also failed to designate an expert of his own. Indeed, in his answer and again in his opening statement at trial, Michael specifically argued to the court that a handwriting expert was unnecessary. Michael waived this issue by failing to raise it in the trial court. City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1093 (¶18) (Miss. Ct. App. 2016) (holding that “it is not sufficient to simply ‘discuss’ or mention an issue at a hearing”—the issue is waived unless it is specifically “presented to [the trial judge] for decision”).

¶33. Moreover, the Supreme Court and this Court have stated that “[t]he appointment of an expert by the court under Mississippi Rule of Evidence 706 is done sparingly, and then only in exceptional cases involving complex issues where the expert’s testimony would be
helpful to the trier of facts.” Heigle v. Heigle, 771 So. 2d 341, 349 (¶29) (Miss. 2000) (quoting Trilogy Commc’ns Inc. v. Thomas Truck Lease Inc., 733 So. 2d 313, 317 (¶10) (Miss. Ct. App. 1998)). We review a trial judge’s decision to appoint or not appoint an expert for abuse of discretion. Id. at 749 (¶¶28-30); Trilogy Commc’ns, 733 So. 2d at 317 (¶10). We cannot say that the chancellor abused his discretion by not appointing an expert sua sponte.

¶34. There is sufficient evidence in the record to support the chancellor’s finding that Michael failed to meet his burden of proving forgery by clear and convincing evidence. Estes’s testimony was competent evidence that Michael did, in fact, sign the 2008 deed of
trust. In addition, there was other evidence from which the chancellor could have inferred that Michael was aware of the loans from Whitney Bank and that Michael’s denials were not credible. For example, the Matthewses’ tax returns, which Michael admittedly signed,
showed mortgage interest deductions and attached mortgage interest statements from Whitney Bank. Sidney Rice also testified that he confirmed with Michael that he had signed the 2007 deed of trust. Although Rice’s notarization of the 2007 deed of trust was deficient
(see supra note 2), Rice’s testimony nonetheless rebuts Michael’s claims that he knew nothing about any of the loans at issue. Based on the totality of the evidence, the chancellor could have determined that Michael’s testimony was not credible. At a minimum, the chancellor could have determined that Michael’s testimony was insufficient to meet his high burden of proof.

A few cogitations:

  • The testimony of the parties alone is not sufficient to overcome a notarial certificate. In fact, relying on your client’s testimony alone is an iffy way to establish many facts or support many claims in chancery. For instance, your client testifies that he made every payment on his wife’s car from his own, personal checking account. The judge wonders where are the checks? Or the wife testifies that the police were called to the home and they saw her bruises, which the husband denies. Where is the police report? Or why was the officer not called? These are thoughts that most chancellors have as the witnesses drone on.
  • Did you know that the Fifth Amendment civil adverse inference is not mandatory? And that it is not applied against non-parties?
  • And if you take nothing else away from this case, the point in ¶33 that you must bring a matter before the judge for decision if you want to raise the issue on appeal is golden. If Michael really wanted the judge to appoint an expert, he needed to file a motion and have the judge rule on it. Merely mentioning it in a bench conference or in chambers isn’t good enough.

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