Standing to Contest a Conservatorship

May 26, 2020 § Leave a comment

May a person being sued by a conservatorship challenge the legality of the conservatorship and have it set aside?

That was an issue that arose in the course of litigation between the conservators of Mary Cook and John Ward, her erstwhile business partner. The conservators sued Ward to recover money he got from Cook, charging him with undue influence and claiming she was incompetent. During the trial, Ward moved the court to “set aside” the conservatorship because the record showed that Cook was not given 5-days’ notice of the conservatorship hearing as required by § 93-13-253 (now superseded by the GAP Act). The chancellor denied the motion, and Ward appealed.

In Ward v. Estate of Cook, et al., the COA affirmed. Judge Jack Wilson wrote for the unanimous court:

¶24. As noted above, the trial in this case was held on October 17, 2018, and November 9, 2018. On November 8, 2018, Ward filed a mid-trial motion to set aside the conservatorship, alleging that Cook did not receive five days’ notice of the hearing on the conservatorship petition as required by Mississippi Code Annotated section 93-13-253 (Rev. 2013). The chancellor denied the motion and ruled that Ward was a “stranger” to Cook’s conservatorship and lacked standing to challenge it. On appeal, Ward argues that the chancellor erred and that the conservatorship was void and should be set aside due to insufficient notice and for additional reasons.

¶25. A person has both standing and a right to petition for the removal of a conservator if that person “has a legitimate interest present or prospective in [the ward’s] estate, or . . . some personal responsibility as regards the estate or the care or welfare of the ward.” In re Conservatorship of Davis, 954 So. 2d 521, 524 (¶12) (Miss. Ct. App. 2007) (emphasis omitted) (quoting Conservatorship of Harris v. King, 480 So. 2d 1131, 1132 (Miss. 1985)). In addition, “the chancellor, as superior guardian, might take notice of petitions by strangers in such cases as a matter of information to him openly tendered,” but such a stranger has “no privilege of appeal” if the chancellor refuses to consider his petition. Id. (emphasis added) (quoting Harris, 480 So. 2d at 1132). In other words, it is “clear . . . under Mississippi law that the receipt of such petitions [from ‘strangers’] is within the chancellor’s discretion.” Id. (quoting Harris, 480 So. 2d at 1132).

¶26. In the chancery court, Ward argued that he had standing to challenge the conservatorship simply because he was being sued by the conservators. On appeal, he similarly argues that his claim to the Overstreet Drive property constitutes an “interest” in Cook’s estate. However, the chancellor correctly rejected Ward’s argument. The estate’s claim that Ward had wrongfully taken money and property from Cook did not give Ward a legitimate interest in Cook’s estate. Therefore, Ward was a mere “stranger” to the estate. Furthermore, the chancellor did not abuse her discretion by denying Ward’s eleventh-hour challenge to the conservatorship. This issue is without merit.

That’s kind of interesting that the court might take notice of a stranger’s petition as a matter of information, but the stranger has no privilege of appeal if the trial court refuses to act on it.

Who’s the Father?

February 19, 2020 § Leave a comment

Michelle Pope and Brian Martin married in 1994. In 2006, Martin had a vasectomy. In 2007, while separated from Martin, Pope became pregnant by Daniel Fountain. All of them knew that Fountain was the biological father, but Martin was listed as father of the child, J.M., on the birth certificate.

Pope and Martin resumed living together, and both worked to support the child. Fountain was allowed to visit with and babysit the child.

In 2012, when the child was 5 years old, Pope and Martin were divorced. The divorce decree named Martin as father, granted custody of J.M. to Pope, granted visitation to Martin, and ordered him to pay child support and provide insurance covering the child.

In 2016, Fountain filed an emergency proceeding seeking temporary custody of J.M., claiming abuse by Pope. The court granted Fountain his temporary relief, which necessitated a full custody trial, but Fountain had filed in a different district from that where the divorce was granted, and so the case had to be transferred to the divorce court and it was.

In the course of proceedings, the chancellor noted several times that Martin (remember him?) had been adjudicated the father, making him a necessary party. But he was never joined, even though he did testify at trial.

Following the hearing, the chancellor adjudicated Fountain to be the father of J.M. and entered a “temporary order” granting Fountain visitation. Michelle appealed, arguing that Martin should have been joined as a party.

In Pope v. Martin, rendered December 17, 2019, the COA reversed and remanded in a unanimous ruling. Judge Corey Wilson wrote the opinion:

I. Rule 19(a)(1)

¶21. As noted supra, for the entirety of J.M.’s life (arguably until now), Martin has been considered J.M.’s legal father. And pursuant to a George County divorce decree, Martin has joint legal custody of J.M., visitation rights, and child support responsibilities. Given these rights and responsibilities, it is apparent that “in [Martin’s] absence complete relief cannot be accorded among [Pope and Fountain]” in this action. M.R.C.P. 19(a)(1).

¶22. Pope has asked the court to “award [her] the sole paramount care, custody and control of [J.M.], as well as [establish] permanent child support payments to be made to [her] . . . .” And in his counter-petition, Fountain has requested a full hearing on the merits to determine
permanent custody, visitation, and support rights and obligations of the parties. If Martin is the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. not added as a party to this action, the chancery court risks conflicting orders regarding J.M. and his custody, his child support, and his accessibility for visitation.

II. Rule 19(a)(2)

¶23. Along this same vein, Martin “claims an interest relating to the subject of th[is] action,” namely, J.M.12 And the complete “disposition of th[is] action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” M.R.C.P. 19(a)(2). Pope notes that disposition of this action has the potential to diminish Martin’s “custodial and visitation rights” as well as dilute Martin’s “rights of inheritance.” We agree, though we do not know why Pope—who as plaintiff sought the very relief the chancery court granted—did not include Martin as a party at the outset or after any of the multiple times the chancery court instructed the parties to join him. Moreover, complete disposition may leave Pope at risk of being subject to inconsistent or contradictory obligations in regard to J.M.’s visitation with Martin and Fountain. For these reasons, we find that Martin is a “necessary party” to this action. See Mahaffey [v. Alexander], 800 So. 3d [1284]at 1285 (¶5).

¶24. “In discussing the joinder of parties under Rule 19, our supreme court has stated that the ‘failure to join interested parties . . . under M.R.C.P. 19(a) justifies reversal and remand as a violation of fundamental due process.’” Am. Pub. Fin. Inc. v. Smith, 45 So. 3d 307, 311 (¶9) (Miss. Ct. App. 2010) (quoting Bd. of Educ. of Calhoun Cty. v. Warner, 853 So. 2d 1159, 1170 (¶38) (Miss. 2003)). This is true even if, “on remand, the same result might be reached.” Powell v. Evans, 113 So. 3d 1270, 1275 (¶23) (Miss. Ct. App. 2013); see also Davis v. Guar. Bank & Trust Co., 58 So. 3d 1233, 1238 (¶26) (Miss. Ct. App. 2011). Accordingly, we reverse the chancellor’s judgment establishing paternity and remand for further proceedings once Martin has been properly joined.

[Fn 12] Martin testified at the May 22 hearing that he considered J.M. to be his child and that he has no intention to voluntarily disestablish paternity.

The opinion states at ¶2 that “Pope … now appeals from the judgment establishing paternity and the temporary order.” At ¶17, the court held that it had no jurisdiction to consider the temporary order, citing McDonald I and II. A temporary order is not a final, appealable judgment per MRCP 54. “We find nothing to review about this explicitly temporary order entered three years ago. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (appellate review of temporary orders is improper.)” McDonald v. McDonald, 850 So.2d 1182, 1193 (Miss. Ct. App. 2002).” McDonald v. McDonald, 876 So. 2d 296, 298 (Miss. 2004) [My emphasis].

Supervised Visitation or Not

February 13, 2019 § Leave a comment

In most cases, it’s the COA telling a chancellor that he should not have ordered supervised visitation. The default setting for visitation is that it should be unsupervised and free of any unwarranted restrictions.

But in the final judgment of divorce between Christina and William Leblanc the chancellor refused to impose supervision or other restrictions on William’s visitation and Christina appealed, complaining that William had a history of drug problems that made supervision necessary.

In Leblanc v. Leblanc, decided October 23, 2018, by the COA, reversed on other grounds, the court remanded the visitation issue to the trial court to determine whether supervised visitation was required for the children’s best interest. Judge J. Wilson wrote the opinion for a unanimous court (Irving not participating):

¶66. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. “[T]here must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction.” Id. “Otherwise, the chancellor’s imposition of a restriction on a non-custodial parent’s visitation is manifest error and an abuse of discretion.” Id. However, a chancellor may require visitation to be supervised based evidence of continued drug abuse by the non-custodial parent. See Bell, Mississippi Family Law § 12.08[4], at 378-79. A court may also order parents to continue to submit to drug testing. See McLemore v. McLemore, 762 So. 2d 316, 322 (¶19) (Miss. 2000).

¶ 67. Prior to trial in this case, the chancery court entered two orders requiring supervision of Billy’s visitation. The orders were based on concerns about Billy’s continued drug use. During the same time period, Billy failed both of his court-ordered drug tests, testing positive for methamphetamine and amphetamines in August 2016 and again in November 2016. A few months later at trial, the court heard additional testimony and evidence regarding Billy’s drug use and history of drug addiction. Billy admitted at trial that he had used drugs at home and “had some issues with drugs.” Billy did not testify that those issues had been addressed, nor is there any evidence that they were. There is no evidence in the record that Billy ever passed a drug test during the course of this case, and the results of his November 2016 drug test suggested that his drug use had actually increased. Despite these issues, the court’s final judgment awarded Billy substantial unsupervised visitation, including alternating weekends, holidays, and four weeks in the summer. The court’s opinion discussed Billy’s drug use and failed drug tests, but the court did not explain why supervision of his visitation was no longer necessary. Nor did the court require Billy to take any additional drug tests. Christina argues that the chancery court abused its discretion by permitting unsupervised visitation.

¶68. As stated above, in setting the terms of visitation, the chancery court “must keep the best interest of the child as [the court’s] paramount concern.” Harrington, 648 So. 2d at 545. Here, the chancery court initially restricted Billy’s visitation because of concerns about his drug use, and Billy continued to test positive for methamphetamine—and never passed a single drug test. Nonetheless, in its final judgment, the chancery court awarded Billy unsupervised visitation. Moreover, the court did so without providing any explanation as to why supervision was no longer necessary. For the reasons discussed above, it is necessary for us to reverse and remand the case on other grounds. We further hold that on remand the chancery court must determine whether unsupervised visitation is consistent with the children’s best interests and whether supervision is necessary to avoid harm to the children. It has been more than a year and a half since the final judgment was entered, so the chancery court should consider evidence regarding Billy’s exercise of unsupervised visitation during that time and the “circumstances at the time of the remand hearing.” Vaughn v. Davis, 36 So. 3d 1261, 1267 (¶18) (Miss. 2010). The court may also consider whether Billy should be required to submit to additional drug tests. See McLemore, 762 So. 2d at 322 (¶19).

Most of the heavy lifting in these cases is done by the side looking to impose restrictions on visitation. This case gives you a blueprint for the type evidence that the COA is looking for in the record to justify restrictions.

On the other hand, if you’re fighting restrictions and you feel that the chancellor has not sufficiently justified the non-imposition, file a R59 motion and make a request per R52(b) for the court to amend its ruling to make additional findings that support it.

2018 Chancery Election Results

November 30, 2018 § Leave a comment

These are, of course, uncertified, and are the best information I have available to me today (new chancellors names in bold):

District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union).

Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Brad Tennison.

Unopposed were Chancellors Bailey, Malski, and Mask.

District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II)

Robert M. Logan, Jr., unopposed

District Three (Desoto, Grenada, Montgomery, Panola, Tate, and Yalobusha)

Unopposed were Daniels, Lundy, and Lynchard.

District Four (Amite, Franklin, Pike, and Walthall)

Unopposed were Halford and Smith.

District Five (Hinds).

Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Crystal Wise Martin.

Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Tiffany Grove.

Unopposed were Owens and Thomas.

District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston)

Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Kiley Kirk.

Unopposed was Kilgore.

District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica)

Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Willie J. Perkins, Sr.

Unopposed were Farris-Carter and Sanders.

District Eight (Hancock, Harrison, Stone)

Place 3. Incumbent Chancellor Sandy Steckler def. by Margaret Alfonso.

Unopposed were Bise, Persons, and Schloegel.

District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)

Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard, unopposed.

Sub 9-2 Incumbent Chancellor Jane R. Weathersby def. by by Debra M. Giles.

Unopposed was Barnes.

District Ten (Forrest, Lamar, Marion, Pearl River, Perry)

Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Sheila H. Smallwood.

Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Chad Smith.

Unopposed were Gambrell and Sheldon.

District Eleven (Holmes, Leake, Madison, and Yazoo)

Unopposed were Brewer, Clark, and Walker.

District Twelve (Lauderdale, Clarke)

Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith.

Unopposed was Primeaux.

District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith)

Place 1. Incumbent Chancellor David Shoemake def. John Allen Bufington.

Unopposed was Martin.

District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)

Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Rodney Faver (appears to have won; affidavit ballots are still being counted).

Place 2 (being vacated by retirement of Chancellor H. James Davidson) Joseph N. “Joe” Studdard.

Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis.

District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten)

Joseph Durr.

District Sixteen (George, Greene, Jackson)

Place 2 (being vacated  by retirement of Chancellor Jaye A. Bradley) Tanya Hasbrouck.

Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) Mark A. Maples.

Unopposed was Harris.

District Seventeen (Adams, Claiborne, Jefferson, and Wilkinson)

Unopposed were Davis and Ward.

District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah)

Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Lawrence L. Little.

Unopposed was Whitwell.

District Nineteen (Jones and Wayne)

Unopposed was McKenzie.

District Twenty (Rankin)

Place 2 (being vacated by retirement of Chancellor John S. Grant) Troy F. Odom.

Unopposed were McLaurin and Roberts.

Special Thanks to Beverly Kraft of the Supreme Court for helping fill in the information gaps.

The Better Home Argument for Custody

June 5, 2018 § Leave a comment

In the recent case of In re Guardianship of C.B.F., decided May 8, 2018, the COA confronted the argument that the natural-parent presumption had been rebutted because the grandfather had proven that he could provide a better home for the child than could the mother. Judge Griffis addressed the issue for a unanimous court:

¶35. Although not specifically asserted, it appears Paul claims the chancellor erroneously concluded that he failed to rebut the natural-parent presumption by clear and convincing evidence. We disagree.

¶36. The natural-parent presumption “may 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.” Wilson v. Davis, 181 So. 3d 991, 995 (¶7) (Miss. 2016). Additionally, the presumption “may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm.” Id. at 995-96 (¶8). “Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably ‘better’ things.” Id. at 997 (¶8). “If the natural parent presumption is rebutted, the court may then proceed to determine whether an award of custody to the challenging party will serve the child’s best interests.” Id. at 995 (¶7).

¶37. Paul does not challenge the chancellor’s findings regarding each factor. Instead, Paul claims that “[r]igid adherence [to proving one of the four factors] placed [Carter] in a circumstance which is clearly not in his best interests.” See id. at (¶8) (noting “that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests”). However, as noted by the GAL, simply because Paul may offer a more suitable home for Carter is not enough to rebut the natural-parent presumption. Indeed, the chancellor found there was no evidence that “actual or probable, serious physical or psychological harm or detriment w[ould] occur if the custody of Carter [wa]s placed with Hollee.” [Emphasis mine]

Not a whole lot to chew on there, but I wanted to highlight the principle that even though most grandparents can provide a nicer home, more material pleasures, and a more comfortable life, that is not enough to overcome the natural parent presumption. There must be a showing by clear and convincing evidence of one or more of the four Wilson v. Davis factors, or that serious harm to the child will result from placement with the natural parent.

We are seeing more and more situations like the facts in this case in which the natural parents live with their parents, or leave a child with their parents intermittently, or abandon the child entirely. In most of these cases, the grandparents become de facto parents to the child, and they become quite attached to the youngster. It can become a real tug-of-war when the natural parent shows up and demands to have the child back.


Contested Chancery Races

May 14, 2018 § 6 Comments

The qualifying deadline for chancery judge races was this past Friday. Here are the races, including any unopposed for replacement of a retiring chancellor:

District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union). Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Nathaniel Clark, Lisa Ann Koon, William Smith, Brad Tennison, and Daniel K. Tucker.

District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II) Robert M. Logan, Jr. is unopposed.

District Five (Hinds).

Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Reginald Harrion and Crystal Wise Martin.

Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Monique Brown-Barrett, Ottawa E. Carter, Tiffany Grove, and Steven P. Nixon.

District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston) Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Rosalind H. Jordan and Kiley Kirk.

District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica) Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Katherine Tackett Mills, Willie J. Perkins, Sr., and Richard W. Ryals.

District Eight (Hancock, Harrison, Stone) Place 3 Incumbent Chancellor Sandy Steckler is facing Diane Herman Ellis and Margaret Alfonso.

District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)

Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard is unopposed.

Sub 9-2 Incumbent Chancellor Jane R. Weathersby is opposed by Debra M. Giles.

District Ten (Forrest, Lamar, Marion, Pearl River, Perry)

Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Bob Marshall and Sheila H. Smallwood.

Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Stacy S. Barber, Christopher M. Howdeshell, Vanessa Jones, Harry R. Lane, Chad Smith, and Joseph L. Turney.

District Twelve (Lauderdale, Clarke) Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith and Frances S. Stephenson.

District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith) Place 1. Incumbent Chancellor David Shoemake is facing John Allen Bufington.

District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)

Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Elizabeth Fox Ausbern, Gene Barton, R. Todd Bennett, Rodney Faver, and Lee Ann Turner.

Place 2 (being vacated by retirement of Chancellor H. James Davidson) Gary S. Goodwin, Carrie A. Jourdan, and Joseph N. “Joe” Studdard.

Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis and Roy A. Perkins.

District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten) Renee H. Berry and Joseph Durr.

District Sixteen (George, Greene, Jackson)

Place 2 (being vacated  by retirement of Chancellor Jaye A. Bradley) Robert “Bob” Briggs, Tanya Hasbrouck, Gary L. Roberts, and Ashlee C. Trahern.

Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) David C. Frazier, Mark A. Maples, and Stacie E. Zorn.

District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah) Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Carnelia Fondren, Sarah J. Liddy, and Lawrence L. Little.

District Twenty ( Rankin) Place 2 (being vacated by retirement of Chancellor John S. Grant) Tameika C. Bennett, Mel Coxwell, and Troy F. Odom.

Doing Away with Alimony: Two Routes

April 10, 2018 § 4 Comments

Adam Lewis filed a complaint to terminate alimony against his ex-wife, Karen. Adam contended that Karen was cohabiting or in a de facto marriage with her boyfriend, Dobel, since the parties’ 2002 divorce. There was a lot at stake, since the parties’ divorce agreement provided that Adam would pay Karen $15,000 a month in periodic alimony.

Following a trial, the chancellor dismissed Adam’s case per MRCP 41(d). Adam appealed. The COA affirmed the dismissal in In the Matter of the Dissolution of the Marriage of Lewis, decided March 20, 2018. You can read the facts as developed at trial for yourself. Here is how Judge Wilson addressed Adam’s arguments on cohabitation and de facto marriage:

A. Cohabitation

¶17. “Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶6) (Miss. 1997). “[C]ohabitation creates a presumption that a material change in circumstances has occurred. This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support . . . .” Id. at (¶7) (citation omitted).

¶18. In the present case, Adam did not prove cohabitation and failed to prove any mutual financial support. Adam admitted that Karen and Dobel maintain separate homes and do not spend the night at each other’s homes. Adam also admitted that he had subpoenaed Karen’s financial records but had found no evidence that Dobel financially supported Karen or vice versa. On this record, the chancellor did not clearly or manifestly err by finding that Adam failed to meet his burden of proving cohabitation or mutual financial support.

B. De Facto Marriage

¶19. “In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a ‘de facto marriage.’” Hughes, 186 So. 3d at 400 (¶18). “A de facto marriage may be proven in two ways.” Id. “First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony.” Id. (citing Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999)). “Second, a de facto marriage can be found . . . if the alimony recipient and another person have ‘so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.’”
Id. (quoting Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002)).

¶20. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple consistently told friends that they planned to marry “next year.” Id. Moreover, on cross-examination, Linda “admitted . . . that she and Anderson had not married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate residences, but Anderson’s was a “small . . . efficiency apartment,” while Linda’s was a “luxurious home.” Id. at 1133, 1136 (¶¶6, 15). Anderson had a key to Linda’s home, spent the night at her home a few times each month, ate meals at her home regularly, ran errands for her, and did yard work and other household chores. Id. at 1133 (¶6). In addition, Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothes and cosmetics from the store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).

¶21. On appeal, this Court affirmed the chancellor’s finding that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id.

¶22. In contrast, in Hughes, supra, the chancellor found that the alimony payor failed to prove that his ex-wife, Mariel, had entered into a “de facto marriage” with her boyfriend, Darrell. Hughes, 186 So. 3d at 396 (¶3). Mariel and Darrell had been in an exclusive dating relationship for four years, and Mariel wore a diamond ring that Darrell had given her. Id. at 398-99 (¶¶11, 13). They maintained separate residences, but they spent the night at each other’s homes once a week or more. Id. at 398 (¶11). They also traveled and vacationed together, and Darrell had exhibited one of his Corvettes at the National Corvette Museum with a plaque stating that the car was on loan from “Darrell Hill & Mariel Hughes.” Id. at
399 (¶13). Mariel and Darrell denied that they had discussed marriage or planned to get married. Id. at (¶14). However, there was testimony that Mariel once “said that marrying Darrel would ‘mess things up’ in some unspecified way.” Id. at 401 (¶22).

¶23. On those facts, we affirmed the chancellor’s finding that the alimony payor failed to prove the existence of a de facto marriage. We concluded that Martin was distinguishable because there was no outright admission or other clear evidence that Mariel “was avoiding remarriage solely to continue her alimony payments.” Id. at 401 (¶22). In addition, the evidence was, at best, conflicting as to whether Mariel and Darrell had “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Id. at 403 (¶26) (quoting Pope, 803 So. 2d at 504 (¶12)). They were in a long-term, exclusive relationship, she wore a diamond ring that he gave her, they traveled together frequently, and they spent the night together regularly. However, they maintained separate homes and had no access to one another’s financial accounts. Id. at 402-03 (¶26). Therefore, there was evidence to
support the chancellor’s finding that the long-term, exclusive relationship was not a scheme to avoid remarriage to continue alimony payments or a de facto marriage. Id. We emphasized, as we had in a prior case, that “[t]he most important distinction” in our precedents on de facto marriage “is the finding of the chancellor.” Id. at 403 (¶26) (quoting Burrus, 962 So. 2d at 621 (¶15)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id.

¶24. We reach the same conclusion in the present case. Karen and Dobel obviously are in a long-term, serious relationship. However, unlike Martin, there is no outright admission or any other clear or direct evidence that Karen is avoiding remarriage just to continue receiving alimony. Adam testified that he believes that is what Karen is doing. However, Adam did not call Karen or Dobel as an adverse witness. In addition, although Adam apparently deposed Karen prior to trial, he did not seek to introduce any part of her deposition into evidence. See M.R.C.P. 32(a)(2) (“The deposition of a party . . . may be used [at trial] by an adverse party for any purpose.”); Fred’s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820, 827-28 (¶¶39-44) (Miss. Ct. App. 2011) (Maxwell, J., concurring in part and in result) (explaining that a plaintiff may introduce a defendant’s deposition during the plaintiff’s case in chief). Moreover, as in Hughes, Karen and Dobel maintain separate residences and separate finances. As noted above, Adam admitted that he had found no evidence that Dobel supports Karen financially or vice versa. Therefore, as in Hughes, we cannot say that the chancellor manifestly or clearly erred by finding that Adam failed to prove a de facto marriage.

¶25. To reiterate, a trial judge’s ruling on a Rule 41(b) motion to dismiss “is, for purposes of appeal, treated like any other finding of fact. In other words, [her] decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357. On such a motion, the trial judge is entitled to weigh the credibility of the plaintiff’s evidence as if “making findings of fact and rendering final judgment.” Id. at 1356-57. Thus, to the extent that Adam offered circumstantial evidence that could have permitted an inference of a de facto marriage, the chancellor was “not required to look at the evidence in the light most favorable to [Adam],” nor was she required to give him “the benefit of all favorable inferences.” Mitchell v. Rawls, 493 So. 2d 361, 362 (Miss. 1986) (quoting Davis v. Clement, 468 So. 2d 58, 61 (Miss. 1985)). The chancellor was entitled to judge the credibility of the evidence and make findings of fact. And we will reverse her decision only if she would have been “obliged to find for [Adam] if [Adam’s] evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369. Adam’s evidence was not so compelling as to oblige the chancellor to find in his favor. Therefore, we affirm.

Voilà, a textbook statement of the law on modification of alimony.

Some observations:

  • Cohabitation and de facto marriage are the two main avenues to termination of alimony.
  • Mutual support is the key characteristic of cohabitation. That will require financial proof. Discovery and use of subpoenas duces tecum are what it will take to develop your proof.
  • As far as de facto marriage is concerned, try to get an admission of avoiding marriage to preserve alimony. Friends may provide admissions of the principals against interest. Living and financial arrangements are crucial evidence. As with cohabitation, commingled finances and mutual support may create circumstantial evidence.

Arbitration Clause: Appellate Review of the Award on the Merits

June 20, 2017 § 3 Comments

Yesterday we talked about Paige Electric Company’s unsuccessful challenge on appeal to an arbitration clause. The company had asked the circuit court to vacate the award because Davis & Feder were negligent as a matter of law, and that the arbitrator had disregarded the evidence and exceeded his authority. When the circuit judge denied their motion and dismissed their case, they appealed.

In Paige Electric Company v. Davis & Feder, P.A., decided on April 11, 2017, the COA affirmed. Judge Barnes wrote the opinion:

¶19. Paige Electric argues that the award should be vacated as Davis & Feder were negligent as a matter of law, and therefore, the arbitrator disregarded the evidence and exceeded the scope of his authority. The United States Supreme Court has held that in reviewing whether an issue is arbitrable, “considerable leeway [should be given] to the arbitrator” and his or her decision should be set aside “only in certain narrow circumstances.” First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Errors of law or fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in the award relative to the merits of the controversy as submitted, however wrongly decided, is ground for setting aside an award in the absence of fraud, misconduct or other valid objections. Wilson, 830 So. 2d at 1156 (¶12) (quoting Hutto v. Jordan, 204 Miss. 30, 36, 36 So. 2d 809, 811 (1948)).

¶20. “[J]udicial review of arbitration award is narrowly limited, and a motion to vacate, modify, or correct an arbitration award is not an opportunity to relitigate issues decided in the arbitration.” City of Hattiesburg v. Precision Constr. LLC, 192 So. 3d 1089, 1096 (¶27) (Miss. Ct. App. 2016). Mississippi Code Annotated section 11-15-23 (Rev. 2004) provides the four grounds upon which an arbitrator’s decision may be vacated:

(a) That such award was procured by corruption, fraud, or undue means;

(b) That there was evident partiality or corruption on the part of the arbitrators, or any one of them;

(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent or material to the controversy, or other misbehavior by which the rights of the party shall have been prejudiced;

(d) That the arbitrators exceeded their powers, or that they so imperfectly executed them that a mutual, final, and definite award on the subject matter was not made.

“In Mississippi, we have always considered ‘undue means’ to constitute some nefarious conduct on the part of the arbitrator – not simply an incorrect or sloppy conclusion of law.” Robinson v. Henne, 115 So. 3d 797, 802 (¶17) (Miss. 2013) (citing McClendon v. Stewart, 133 Miss. 253, 258, 97 So. 547 (1923)). The Mississippi Supreme Court has held: “[A] mistake of law, a mistake of fact, or a decision lacking an evidentiary basis is insufficient to constitute a violation of any of the four statutory categories that permit the vacatur of an arbitrator’s decision.” Id. at 803 (¶19).

¶21. The circuit judge found that the arbitrator did not exceed his powers in this instance. She further concluded there was “nothing in this record to indicate that Mr. Latham refused or failed to review the case law, nothing to indicate he had any preconceived notions or opinions and certainly nothing to indicate what evidence he focused on or didn’t focus on.” We find no error in the circuit court’s holding. Giving a reasonable presumption “in favor of the validity of arbitration proceedings,” we affirm the circuit court’s judgment.

Between yesterday’s post and today’s, you can deduce the breathtaking sweep of rights that you cede when you agree to an arbitration clause in a contract. Not only do you give up your right to a jury trial, but you also surrender the right to appellate review except on quite narrow, difficult-to-prove grounds.

Arbitration Clause: Challenge after Arbitration

June 19, 2017 § Leave a comment

When Paige Electric Company retained the law firm of Davis & Feder, the retainer agreement included a clause requiring any dispute arising out of the agreement, including claims of legal malpractice, to be submitted to arbitration. Paige did sue the law firm, which invoked the arbitration clause, and the case was heard by Arbitrator Larry Latham, who ruled entirely in the law firm’s favor and denied Paige any relief.

Paige filed motions in Circuit Court to declare the arbitration clause void and to vacate the award. The circuit judge denied the motions, dismissed the suit with prejudice, and Paige appealed.

In Paige Electric Company v. Davis & Feder, P.A., decided April 11, 2017, the COA affirmed. Judge Barnes wrote for a unanimous court:

¶10. “In arbitration cases, . . . the scope of review is extremely limited.” Wilson v. Greyhound Bus Lines Inc., 830 So. 2d 1151, 1155 (¶9) (Miss. 2002). “The scope of judicial review of an arbitration award is quite narrow, and every reasonable presumption will be indulged in favor of the validity of arbitration proceedings.” Id. (quoting Craig v. Barber, 524 So. 2d 974, 977 (Miss. 1988)).


¶11. Addressing Paige Electric’s claim that the arbitration clause in the retainer agreement was unconscionable, and its alternative claim the malpractice claims involving the lien should be severed from the arbitration award and set for trial, the circuit court concluded that the company had waived any objection, as it had voluntarily consented to the arbitration.

¶12. Mississippi has not addressed the precise issue of whether a challenge to the validity of an arbitration clause may be brought post-arbitration. But other jurisdictions have held that participation in arbitration proceedings waives the right to object to an arbitrator’s authority. “A party cannot ‘sit silent, wait until an adverse award is issued, and then first argue that the arbitrator did not have the authority even to hear the claim.’” Advocate Fin. Grp. v. Poulos, 8 N.E.3d 598, 609 (¶53) (Ill. App. Ct. 2014) (quoting First Health Grp. v. Ruddick, 911 N.E.2d 1201, 1213 (Ill. App. Ct. 2009)); see also Ahluwalia v. QFA Royalties LLC, 226 P.3d 1093, 1098 (Colo. App. 2009) (“If a party willingly allows an issue to be submitted to arbitration, it cannot await the outcome and later argue that the arbitrator lacked authority to decide the matter.”). “[W]illing participation is consent to the arbitrator’s power to resolve the dispute.” Unite Here Local 23 v. I.L. Creations of Maryland Inc., 148 F. Supp. 3d 12, 19 (D.D.C. 2015). “Given that arbitration is an optional alternative to judicial resolution of disputes[,] . . . when the parties have agreed to arbitration, the law discourages the loser from seeking a second de novo (or even quasi-de novo) shot at obtaining its desired result[.]” Id. at 18-19.

¶13. Paige Electric argues that because there was a “separate contract prepared for lien claims against the hotel” produced on February 25, 2015, during discovery, “Paige Electric cannot be considered to have consented to arbitration,” and it “cannot be bound to any agreement to arbitrate the dispute over the lien claims[.]” [Fn 3] The circuit court judge declined to make any findings “whether there was a second contract or not,” because the lien claims were submitted for arbitration and had been decided by the arbitrator. But the court did observe that the “second contract . . . was known to Paige Electric in February by [its] own pleadings, and at that time [it] had fully the ability to say. . . these liens aren’t included.” The judge concluded:

[It] didn’t do that. What [it] did do, however, was go through the entire arbitration process, two and a half days of arbitration hearings, and then submit a post-hearing memorandum . . . [that] very clearly indicates the lien claims were considered and are part of the arbitration.
. . . .
And, therefore, the court finds [Paige Electric] waived any objection [it] may have had with regard to the arbitration of the lien claims. Whether the court agrees they would have been included or not, the parties agreed to include them, the arbitrator was presented those.

[Fn 3] The second “contract” was merely handwritten notes made by Brisolara on a legal pad, dated March 16, 2007, three days prior to the parties’ signing the retainer agreement. The note has Jerry Paige’s name at the top, and simply states “Hourly pay for lien. [One third]
for suit” and that Jerry Paige “wants to sign contract against [SCS and] Studio Inn and file suit.” There is no evidence that Paige Electric signed a second contract for the lien work at an hourly rate; nor is there evidence Davis & Feder billed Paige Electric for this work.

¶14. At no point prior to or during the arbitration hearing did Paige Electric object to arbitrating the lien claims. Paige Electric was represented by counsel throughout this process, and the parties agreed to arbitration; it was not court-ordered. In a letter to Davis & Feder, dated June 12, 2013, counsel for Paige Electric stated that “[t]here is no objection to this [arbitration] procedure,” and he requested that “appropriate steps be taken at this time to arrange for arbitration of this claim[.]” Thus, we find no error in the circuit court’s determination that Paige Electric waived its right to object to the validity of the arbitration clause and to the arbitration of the lien claims.

¶15. Notwithstanding the waiver of the claims, we find no merit to Paige Electric’s claim that the arbitration clause was procedurally unconscionable because the arbitration clause was not properly explained to Jerry Paige, and because the clause is “inconspicuous” and used “overly broad verbiage.” Whether an arbitration clause is procedurally unconscionable can be shown by: “(1) lack of knowledge; (2) lack of voluntariness; (3) inconspicuous print; (4) the use of complex, legalistic language; (5) disparity in sophistication or bargaining power of the parties; and/or (6) lack of opportunity to study the contract and inquire about the terms.” See Caplin Enters. Inc. v. Arrington, 145 So. 3d 608, 614 (¶12) (Miss. 2014) (citing MS Credit Ctr. Inc. v. Horton, 926 So. 2d 167, 177 (¶29) (Miss. 2006)).

¶16. The retainer agreement was a simply-worded five-page agreement, and the arbitration clause took up an entire page of the contract, in an easy-to-read font. Compare E. Ford Inc. v. Taylor, 826 So. 2d 709, 716-17 (¶21) (Miss. 2002) (finding an arbitration provision “procedurally unconscionable,” as the “preprinted” arbitration clause “appears less than one third the size of many other terms in the document, [and] appears in very fine print and regular type font”). Moreover, in the June 12, 2013 letter from Paige Electric’s counsel to Davis & Feder, the attorney stated that “[Jerry] Paige advises me that his contract with Davis [&] Feder requires all disputes with clients be arbitrated,” indicating an understanding by Jerry Paige of the agreement’s terms and conditions.

¶17. We also reject, on the merits, Paige Electric’s alternative claim that the arbitration clause only applied to the representation for the claim against SCS for payment, not the claims related to the “prosecution of any liens or related claims against Hancock Hotels,” and that “the malpractice claims related to the hotel owner should be severed and set for trial before a jury.” Paige Electric cites Complaint of Hornbeck Offshore (1984) Corp., 981 F. 2d 752, 754-55 (5th Cir. 1993), to support its claim. However, the retainer agreement states that the provision regarding the arbitration of disputes “shall apply to any dispute between the parties which arises from, or is related to, a claimed breach of this agreement[.]” (Emphasis added). In Hornbeck, the United States Court of Appeals for the Fifth Circuit specifically held that “arbitration clauses containing the ‘any dispute’ language . . . are of the broad type.” Id. at 755. “[I]t is difficult to imagine broader general language than that
contained in the arbitration clause, ‘any dispute.’” Id. (citation omitted). The Mississippi Supreme Court has also held:

Broad arbitration language governs disputes “related to” or “connected with” a contract, and narrow arbitration language requires arbitration of disputes that directly “arise out of” a contract. . . . Because broad arbitration language is capable of expansive reach, courts have held that “it is only necessary that the dispute touch matters covered by the contract to be arbitrable.” Horton, 926 So. 2d at 176 (¶¶24-25) (quoting Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067-68 (5th Cir.1998)). We find the lien claim against the hotel owner was directly “related to” Paige Electric’s claims against SCS; the lien against the hotel owner was necessary only in the event that Paige Electric could not collect a judgment from SCS.

¶18. Accordingly, we find the circuit court did not err in denying Paige Electric’s motion to declare the arbitration clause invalid, or alternatively, to sever Paige Electric’s lien claims from the arbitration award and set those claims for trial.

A few observations:

  • Unless you can build a convincing case based on those factors in ¶15 up there, you will find it mighty hard to get around an arbitration provision in a freely-negotiated contract.
  • If you’re planning to include an arbitration clause in your retainer agreements, be sure it’s as broad as possible.
  • When you wait until after the arbitration is concluded to raise the issue of the validity of the arbitration clause, you’ve waited too late.

We’ll talk in another post about Paige’s claim that the arbitration clause should have been vacated by the circuit court.

A Return to Basics in Third-Party Custody

January 12, 2016 § Leave a comment

If you’ve done any amount of third-party child custody work in the past several years, you can’t be blamed for scratching your head in bewilderment over how to advise your client about the limits and parameters of the natural-parent presumption.

The presumption is that the best interest of the child is served by being in the custody of a natural parent, rather than a third party. The presumption may be overcome 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. Davis v. Vaughn, 126 So.3d 33, 37 (Miss. 2013).

The problem is defining exactly what kind of conduct satisfies the Davis v. Vaughn test. A recent MSSC case defines that for us.

Concetter Davis and James Wilson had a child, Sha, born April 20, 2003. James filed a paternity and custody action in which he was determined to be the father, and Concetter was awarded custody. Concetter died in 2011, and her family refused to turn Sha over to James. He filed an action in chancery Court, and the chancellor awarded custody to Concetter’s mother, Perlean Davis. James appealed, and the COA reversed and remanded for a finding whether the natural-parent presumption had been rebutted. On remand, the chancellor did not take further evidence, but rather made new findings of fact based on the existing record, again awarding custody to Perlean. James again appealed, and the COA affirmed. On cert, the MSSC reversed and remanded.

In the case of Wilson v. Davis, handed down January 7, 2016, the MSSC laid out in particular what is required to be shown in order to overcome the natural-parent presumption. Justice King wrote for the court (several lengthy footnotes omitted):

¶8. Requiring clear and convincing evidence to rebut the natural parent presumption in one of the four manners listed is important to “honor[] and protect[] the fundamental right of natural parents to rear their children.” Id. However, this Court takes the opportunity to note that the rigid adherence to proving one of the four precise factors to rebut the natural parent presumption may, in very limited and exceptional circumstances, place a child in a circumstance that is clearly not in his or her best interests. And, as is clearly established, the best interests of the child is the lodestar in custody cases. This Court has recognized this principle in the past, stating that “[i]n order to overcome this presumption, there must be a clear showing that the parent is unfit by reason of immoral conduct, abandonment, or other circumstances which clearly indicate that the best interest of the child will be served in the custody of another.” Moody [v. Moody], 211 So. 2d [842] at 844 [(Miss. 1968)] (emphasis added). With this decision, we mark a return to that principle. The natural parent presumption may be rebutted by clear and convincing evidence that actual or probable, serious physical or psychological harm or detriment will occur to the child if custody is placed with the natural parent, such that granting custody to the third party is substantially necessary to prevent such probable harm. In other words, if demonstrable, clear and convincing evidence exists that the child will suffer probable harm and detriment in the custody of the natural parent, the court may find that the natural parent presumption is rebutted, and consequently proceed to a determination of whether a custody award to the challenging party will be in the child’s best interests. Such a finding must prevent probable harm to the child, and not simply find that the third party can provide the child with different or arguably “better” things. See Moody, 211 So. 2d at 844 (“The fact that someone else may be in a better position to furnish the child a larger and more convenient home in which to live does not necessarily mean it would be in the best interest of the child to take it from a parent who is otherwise fit to have the custody of the child.”). This “exceptional circumstances” finding means more than that a child’s bests interests may be served by third party custody; it “requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins v. Nelson, 748 A.2d 558, 565 (N.J. 2000). More than simply best interests is required, because if that “is the only criterion, then a judge may take children from their parents because the judge personally disproves of the parents’ limited means.” Id. at 567 (internal quotations and alterations omitted). By requiring a much higher threshold than simply best interests, the exceptional circumstances finding “is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties.” Id. It is important not to devolve into a less stringent standard because such would easily “evolve into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at 568. “The standard that we adopt has as its benchmark the welfare of the child while at the same time protecting parental rights.” Id. [Emphasis added]

¶9. If the court finds that custody should be granted to the third party under this standard, it is required to make very specific findings of fact on the record. We again emphasize that this is a high threshold. However, we believe this standard will allow chancery courts to reconcile the fundamental rights of natural parents to raise their own children with the primary concern in a custody case, the best interests of the child. See Davis, 126 So. 3d at 38 (“Judges often are faced with the difficult task of removing a child from a loving home in deference to a natural parent’s custodial rights. Even so, the law does not allow parental rights to supercede [sic] the best interests of the child.”).

¶10. Turning to this case, we find that the chancellor erred for several reasons. The original hearing, conducted in the vein of a modification of custody, was held in January 2012. In April 2013, the Court of Appeals reversed the chancery court, finding that it had applied the incorrect standard and had not determined whether the natural parent presumption was rebutted. In July 2013, after a year and a half had passed with a great potential for changed circumstances, and without holding a hearing in which both parties were on notice of the issue of rebutting the natural parent presumption, the chancery court simply amended its original order. The chancery court should have held a hearing and received and considered evidence regarding whether the natural parent presumption was rebutted. See Yelverton, 26 So. 3d at 1055, 1057.

¶11. Furthermore, the evidence found by the chancellor was clearly insufficient to rebut the natural parent presumption. First, the court relied on evidence that James dates and marries women much younger than himself, and that these relationships overlap and include adultery. This Court has noted that marital fault, including adultery, may not be used as a sanction in custody awards. Brekeen v. Brekeen, 880 So. 2d 280, 287 (Miss. 2004). While this is not a divorce action, if adultery may not be sanctioned by denial of custody in a divorce action, it certainly follows that such behavior will be difficult to justify as sufficient to rebut the natural parent presumption. While some of James’s relationship behavior may cause concern, no evidence whatsover was adduced that such behavior has had any actual detrimental effect on Sha, thus the evidence does not show that James’s conduct “is so immoral as to be detrimental to the child.” See Davis, 126 So. 3d at 37 (emphasis added). Additionally, James married his current wife before Concetter passed away and was still married and living with her at the time of the hearing. Indeed, the last extramarital affair and relationship with a younger woman noted by the chancellor were with James’s current wife, and began in approximately 2009, more than two years prior to the hearing. The chancellor made no findings that James was currently engaged in adulterous or immoral relationships, and moreover, made no findings that he was involved in any extramarital relationships that harmed or influenced Sha in any way. See Westbrook v. Oglesbee, 606 So. 2d 1142 (Miss. 1992) (where father and his wife drank alcohol, father used to take drugs but had passed random drug tests by his employer for the past six years, a paternal relative smoked marijuana in front of the child once, and father only had minimal contact with child prior to mother’s death, the Court found “a stronger case must be made against [the father] and matters of more current nature need to be shown to establish that he is unfit as a parent.”).

¶12. The chancellor also cited animosity between Concetter and Annette and James, including physical altercations, as reason to deny James custody. While certainly noteworthy, as it appears in the best interests of Sha to have her mother’s memory and her grief for her mother honored, Concetter has passed away, and there is thus no present danger of such animosity or confrontations. These facts are not sufficient to rebut the natural parent presumption, as they do not bear on James’s fitness or detrimental immorality, but they may be a consideration in a best interests analysis.

¶13. The chancellor also cited the anger issues of Annette’s two sons as a reason to rebut the natural parent presumption. Again, such issues are certainly of concern. Yet, the evidence indicated that neither Sha nor her stepsister had been injured or harmed by the boys. The evidence also showed that the parents were seeking intensive therapy to address the issues. Anger issues in the home of a natural parent that pose a potential danger to a child are certainly something a chancellor should examine in detail. However, in this case, the determination of harm was not based on any proof of actual or probable harm to Sha, but rather, based upon pure speculation on the part of the court. Thus, this is not an appropriate reason to find James unfit or so immoral as to rebut the natural parent presumption.

¶14. Because none of the facts found by the chancery court are sufficient to rebut the natural parent presumption, we must reverse the chancery court on this issue.

So, it takes clear and convincing evidence of probable serious harm or detriment to the child if placed with the natural parent, and placement with the third party is necessary to prevent that probable harm.

The footnotes in this case are chock-full of authority on third-party custody. The only reason I did not include them is that this post would have rivalled Gone With the Wind in length if I had.

This is the case I commented on previously for the proposition that on remand the trial court may rely on the previous record, or may take more evidence. That take, apparently, does not apply any longer in contested child custody cases, particularly third-party custody cases.

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