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.

Is a Step-Grandparent a Grandparent?

January 8, 2020 § Leave a comment

Not for grandparent visitation purposes, says the MSSC.

That was one of the holdings of the court in the case of Garner (aka Garcia) v. Garner, decided October 3, 2019.

In that case, the chancellor modified custody of Andrew, awarding an uncle custody, and allowed visitation with the maternal grandparents, Judi and Ron. Ron was the child’s step-grandfather. The mother, April, appealed.

Justice Griffis wrote for a 5-4 court:

¶85. The chancellor determined that Andrew’s best interests would be served by allowing visitation with his maternal grandparents, Judi and Ron. April argues the chancellor erred by awarding grandparent visitation to Ron. She does not contest or appeal the chancellor’s award of grandparent visitation to Judi.

¶86. April asserts that Ron does not meet the statutory criteria for grandparent visitation because he is a step-grandparent. Whether a step-grandparent has a right to petition to seek visitation with the child depends entirely on whether he or she is a “grandparent” within the
meaning of Mississippi Code Section 93-16-3 (Rev. 2018). This presents an issue of statutory interpretation, which is reviewed de novo. T.T.W. v. C.C., 839 So. 2d 501, 503 (Miss. 2003).

¶87. Grandparents do not possess a common-law right of visitation. Smith v. Wilson, 90 So. 3d 51, 58-59 (Miss. 2012). Such a right is purely statutory. Section 93-16-3 provides,

(1) Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with the child.

(2) Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:

(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and

(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

Miss. Code Ann. § 93-16-3 (Rev. 2018).

¶88. Section 93-16-3 does not expressly define “grandparent,” but it does refer to a grandparent as the “parent of a child’s parent.” Miss. Code Ann. § 93-16-3(1). Notably, no reference is made to a step-grandparent in the statute.

¶89. In Lott v. Alexander, 134 So. 3d 369, 374 (Miss. Ct. App. 2014), the court reversed the chancellor’s award of visitation to great-grandparents. The court noted that “[n]either subsection one or two of 93-16-3 purports to authorize visitation awards to greatgrandparents.” Id. at 372. The court found that “[g]iving the term ‘grandparent’ its plain and ordinary meaning, the intent of the Legislature is clear and unambiguous.” Id. at 373. As a result, the court found it “lack[ed] authority to add words or meaning to a statute that is plain on its face.” Id. at 374. Additionally, in Pruitt v. Payne, 14 So. 3d 806, 811 (Miss. Ct. App. 2009), the court found a stepfather “ha[d] no right to visitation with his stepchildren under the laws of the State of Mississippi.”

¶90. Here, as in Lott, “[n]either subsection one or two of [Section] 93-16-3 purports to authorize visitation awards to [step]-grandparents.” Id. at 372. This Court does not have the “authority to write into the statute something which the Legislature did not itself write therein, nor can [this Court] ingraft upon it any exception not done by the lawmaking department of the government.” Id. at 373 (quoting Wallace v. Town of Raleigh, 815 So. 29 2d 1203, 1208 (Miss. 2002)). “While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to step[-grandparents].” Pruitt, 14 So. 3d at 811.

¶91. Because Ron, as Andrew’s step-grandparent, does not meet the criteria of a “grandparent” under Section 93-16-3, the chancellor erred by granting Ron grandparent visitation rights with Andrew. [Fn 11] Accordingly, we reverse and render on this issue.

[Fn 11] Although Ron has no legal right to grandparent visitation under Section 93-16-3, nothing in Section 93-16-3 prevents Ron from visiting or having a relationship with Andrew. “[T]the more familial bonds a child has is generally better for the child . . . .” Lott, 134 So. 3d at 374 (quoting Cole v. Thomas, 735 S.W.2d 333, 335 (Ky. Ct. App. 1987)).

You probably were scratching your head as I was over what difference this ruling would make for Ron. He would undoubtedly get to see and visit with the child when Judi had him, and most likely any other time he wanted, because he, Judi, and the uncle were allied in this case (and then the court pointed that out in Fn 11).

The difference here is the case’s precedential value. Now Mississippi law is that step-grandparents are not grandparents for purposes of the grandparent visitation statute.

Justice King wrote a sharp dissent.

Material Change

December 18, 2019 § Leave a comment

It’s elementary that modification of custody requires substantial evidence of a material change in circumstances of the custodial parent’s home that is having an adverse effect on the child, and it is in the child’s best interest to change custody.

In the recent COA decision of Munday v. McLendon, handed down December 3, 2019, Judge Lawrence laid out the law of material change so succinctly that you might find it useful when you need a chunk of authority in a similar case:

¶27. A modification of custody is warranted when the moving parent successfully shows “(1) that a material change of circumstances has occurred in the custodial home since the most recent custody decree, (2) that the change adversely affects the child, and (3) that modification is in the best interest of the child.” Powell v. Powell, 976 So. 2d 358, 361 (¶11) (Miss. Ct. App. 2008) (citing Giannaris v. Giannaris, 960 So. 2d 462, 467-68 (¶10) (Miss. 2007)).

¶28. Totality of the circumstances can serve as a basis for a material change. See, e.g., Minter v. Minter, 29 So. 3d 840, 850 (¶37) (Miss. Ct. App. 2009). The chancellor must consider the totality of the circumstances when determining whether such a material change in circumstances has occurred. Creel v. Cornacchione, 831 So. 2d 1179, 1183 (¶15) (Miss. Ct. App. 2002). If, after examining the totality of the circumstances, a material change in circumstances in the custodial home is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the child[ ].” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).

¶29. “Although Mississippi law generally has recognized that a parent’s relocation alone does not constitute a material change in circumstances, we note that the impact of a relocation of the custodial parent upon the child constitutes a factor that the chancellor permissibly considers on the motion for modification.” Robinson v. Brown, 58 So. 3d 38, 43 (¶13) (Miss. Ct. App. 2011) (citing Lambert v. Lambert, 872 So. 2d 679, 685 (¶24) (Miss. Ct. App. 2003)). This Court has found even a short move can result in a material change in circumstances where the move causes the custody agreement to become impractical. Id. at (¶14) (citing Pearson v. Pearson, 11 So. 3d 178, 182 (¶10) (Miss. Ct. App. 2009)).

Keep in mind that there is an exception to the requirement for showing an adverse effect. If the situation in the custodial parent’s home presents an immediate or strong likelihood of harm, the court can order a change of custody without a showing of adverse effect. In Riley v. Doerner, 677 So. 2d 740, 744 (Miss. 1996), the court affirmed the chancellor who changed custody on proof that the custodial parent was doing drugs in the child’s presence, even though the child was excelling in school and showed no adverse effects. In Burrus v. Burrus, 962 So. 2d 618 (Miss. Ct. App. 2006), the court affirmed a chancellor’s change of custody of a teenage girl based on the custodial mother’s remarriage to a man who had been convicted of four counts of sexual assault on another 14-year old girl; there was no proof of any adverse effect of the marriage, and no evidence of impropriety by the new step-father.

Substantial Evidence in the Record

December 17, 2019 § 2 Comments

“So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.”  Hammers v. Hammers, 890 So. 2d 944, 950 (Miss. Ct. App. 2004).

The COA, in the case of Butler v. Mozingo, decided November 12, 2019, reversed and rendered a chancellor’s decision that a material change in the custodial parent’s home had adversely affected the child. The COA held that there was not substantial evidence in the record to support the chancellor’s ruling. You can read the opinion for yourself. There is nothing particularly noteworthy about it, other than to the parties.

An understandable first reaction might be to conclude that the chancellor simply screwed up. But consider this: what if the chancellor felt strongly that the best interest of the child demanded a change in custody, but the lawyer failed to get substantial evidence of adverse effect into the record, and the chancellor went ahead and did what she believed was best for the child, substantial evidence or not. I’m not saying that is what happened here; in fact, the attorneys involved are all competent and experienced. What I am saying is that it’s on the attorneys to give the judge the proof she needs to support her findings.

Several years ago a chancellor, now retired, told me of a custody modification case in which the defendant-mother’s inexperienced attorney faced off against an experienced, highly competent family lawyer. The judge told me that he had misgivings about the plaintiff’s case, and he felt that the plaintiff’s advantage was his skillful lawyer, not his facts. The inexperienced lawyer did not even put on proof of Albright factors, perhaps because he did not even know about them. The trial had not been concluded when the chancellor told me about it, so I can’t tell you how he handled it, but that sort of situation creates a conundrum for the trial judge. On the one hand, the judge should not aid or assist either side in a contested trial. On the other hand, though, the best interest of the child is the polestar consideration. Should the judge call or examine witnesses per MRE 614 to flesh out the record? Should the judge stop the trial and appoint a GAL? Or should the judge let things play out and then rule as the judge did in Butler, above?

That’s something for you to ponder. If you want the judge to rule in your favor, you must give the judge all the ingredients she needs to do so. If you don’t your case will fail, either at trial or on appeal.

Failure to Serve Process Within 120 Days in a Rule 81 Case

December 3, 2019 § 1 Comment

MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.

But that’s Rule 4. How does that apply in Rule 81 actions?

In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:

¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.

¶12. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(Emphasis added). Rule 81(a)(9), however, states in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures, . . . [including] Title 93 of the Mississippi Code of 1972.

(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that

upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added).

¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).

¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).

¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.

¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.

A few observations:

  • It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
  • Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
  • I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
  • In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
  • You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.

The Albright Score Board

November 5, 2019 § 2 Comments

Too many lawyers consider the judges’ findings on Albright factors to be like some sort of score board. I hear it in R59 motions: “But, Judge, we prevailed in one more factor, so my client should have been awarded custody.” And we see it in appeals, where the losing side argues something similar.

In a recent decision, Judge Jack Wilson of the COA spelled out how the trial and appellate courts are supposed to deal with Albright. Since it’s an excellent, succinct exposition on the law, I thought it would be helpful to include it for your use. This is from the case of Morgan v. Whitehead, handed down October 15, 2019:

¶18. “A chancellor’s custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard.” Smith v. Smith, 97 So. 3d 43, 46 (¶7) (Miss. 2012). “[T]his Court cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So. 3d 822, 828 (¶21) (Miss. Ct. App. 2014). The relevant question is whether the chancellor’s decision is supported by the evidence, not whether we agree with it. Hammers v. Hammers, 890 So. 2d 944, 950 (¶14) (Miss. Ct. App. 2004).

¶19. In child custody cases, the “polestar consideration . . . is the best interest and welfare of the child.” Albright, 437 So. 2d at 1005. In determining where the child’s best interest lies, the chancellor should consider the following factors: (1) age, health, and sex of the child; (2) which parent had “continuity of care prior to the separation”; (3) parenting skills; (4) willingness and capacity to provide primary child care; (5) both parents’ employment responsibilities; (6) physical and mental health and age of the parents; (7) emotional ties between parent and child; (8) moral fitness; (9) “the home, school and community records of the child”; (10) the child’s preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any “other factors relevant to the parent-child relationship” or the child’s best interest. Id.

¶20. Albright does not require the chancellor to award custody to the parent who “wins” the most factors. Blakely v. Blakely, 88 So. 3d 798, 803 (¶17) (Miss. Ct. App. 2012). “The point of Albright is to identify the custody arrangement that would be in the child’s best interest—not to determine what is in either parent’s best interest or which parent is the better person.” Vassar v. Vassar, 228 So. 3d 367, 375 (¶26) (Miss. Ct. App. 2017). In addition, the chancellor is not required to find that each factor favors one parent or the other. Harden v. Scarborough, 240 So. 3d 1246, 1251 (¶11) (Miss. Ct. App. 2018). The chancellor is only required to consider each factor that is applicable to the case and determine what custody arrangement would be in the child’s best interest. Id. “We review the chancellor’s application of the factors for manifest error, giving deference to the weight that he assigned each factor.” Id.

Third-Party Custody with a Twist

October 30, 2019 § 2 Comments

When the Ballards, Candice and Marshall, were divorced from each other, the chancellor awarded custody to Marshall’s parents based on hearsay evidence. The MSSC reversed and remanded in Ballard v. Ballard, 255 So. 3d 126 (Miss. 2017).

On remand the chancellor awarded custody of the parties’ three children to Marshall. The catch is that Marshall is not the biological father of the youngest child, Jill, who was the product of a marital-separation affair. Candice appealed, arguing that she should have prevailed as to Jill based on the natural-parent presumption.

The MSSC affirmed in Ballard v. Ballard, decided August 29, 2019. Justice Beam wrote for the court:

¶12. … [Candice] argues that Marshall’s having acted in loco parentis for Jill was not enough to overcome the natural-parent presumption with regard to Candice’s custody of Jill. [Fn omitted] Candice correctly states that “[t]he law recognizes that parents are the natural guardians of their children, and ‘it is presumed that it is in the best interest of a child to remain with the natural parent as opposed to a third party.’” Davis v. Vaughn, 126 So. 3d 33, 37 (Miss. 2013) (quoting In re Dissolution of Marriage of Leverock and Hamby v. Leverock, 23 So. 3d 424, 429 (Miss. 2009)).

However, the presumption in favor of the parent 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.” Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully 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. (citing Smith, 97 So. 3d at 46).

Id. (quoting Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012)). “If the natural-parent presumption is successfully 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. (citing Smith, 97 So. 3d at 46).

¶13. Candice contends that this case is controlled by In re Waites v. Ritchie, 152 So. 3d 306 (Miss. 2014). In Waites, the mother sought to modify a custody agreement. Id. at 307. She subsequently notified T.J., her child’s biological father who had joined her petition seeking custody. Id. Although her husband, Scott, had cared for the child from the beginning, the chancellor excluded Scott from the Albright consideration because he was not a natural parent; the chancellor awarded full custody to the mother. Id. However, the chancellor allowed Scott and T.J. visitation. Id. Scott appealed, and the Court of Appeals reversed and remanded, finding that Scott should have been considered on equal footing with the natural parents. Id. The mother and T.J. filed a petition for a writ of certiorari, which this Court granted. Id. This Court found that the chancellor had properly excluded Scott from consideration. Id.

¶14. Candice further argues that the chancellor erroneously relied on a Court of Appeals case, Welton v. Westmoreland, 180 So. 3d 738 (Miss. Ct. App. 2015), to support awarding Marshall custody of Jill. In Welton, the natural father sought a modification of custody of his daughter Alexice and subsequently amended his complaint to seek custody of his daughter Justice. Id. at 740. Although Daniel was not Justice’s biological father, she believed he was until she was twelve years old. Id. Her biological father abandoned her and, after her birth, had never made an attempt to see her. Id. While Daniel knew he was not Justice’s biological father, he raised her like she was his own from the time she was four months old. Id. Further, Justice’s mother requested that Justice retain Daniel’s last name. Id.

¶15. In determining custody of Justice, the court acknowledged that,

[i]n general, the natural parent presumption precludes a court from granting custody to a “third party” over the objection of a natural parent absent clear and convincing evidence that the natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent. Id. at 744. “The chancellor did not find that any of the grounds for overcoming the natural parent presumption had been established,” but he did find that, “on the ‘unique’ facts of this case, Daniel ‘stands in the place of a natural parent for purposes of custody of Justice.’”Id.

¶16. Welton relied upon two Supreme Court cases, Griffith v. Pell and J.P.M. v. T.D.M., for guidance. While the facts in Pell and J.P.M. vary slightly from the facts in Welton, the Court of Appeals appropriately extended the reasoning in those cases to apply to Welton, and, we find that the same principles apply to the present case. In Pell, as discussed in Welton, this Court held that “a husband who learned during divorce proceedings that he was not the biological father of a child born just prior to the marriage could be granted visitation and, custody over the objections of his wife (the child’s mother).” Id. at 745 (citing Griffith v. Pell, 881 So. 2d 184, 185-87 (Miss. 2004)). Moreover, as discussed in Welton, in J.P.M., this Court “affirmed an order granting custody to a husband who had learned during divorce proceedings that he was not the biological father of a child born to the marriage” because “[h]e was deemed the ‘father in fact’ and was not required to present additional evidence to rebut the natural parent presumption.” Id. (citing J.P.M. v. T.D.M., 932 So. 2d 760, 762-70 (Miss. 2006)).

¶17. This Court reasoned in both Pell and J.P.M. that the natural-parent presumption had been overcome based on several facts:

(1) the husbands stood in loco parentis; (2) they had supported, cared for, and treated the child as their own; (3) they could have been required to pay child support (“with the burden should go the benefit”); and (4) the biological fathers were not really in the picture: the one in Pell had disclaimed any interest in the child and had agreed to relinquish his parental rights, while the one in J.P.M. could not even be determined conclusively. Id. (quoting Waites, 152 So. 3d at 312).

¶18. In Welton, the Court of Appeals found that the facts necessary to overcome the natural-parent presumption were present but questioned whether the facts were sufficient to place Daniel in the position of a natural parent for purposes of Justice’s custody because Daniel had not been defrauded like the fathers in Pell and J.P.M. Id. at 747.

¶19. Welton held, “although the relevant Supreme Court decisions do not directly address the unique facts of this case, Pell’s reasoning and Waites’s emphasis on whether the biological father is ‘really in the picture’ are instructive and should control.” Id. “[T]he mere existence of a biological father who abandoned a child years ago should not be used ‘to defeat an existing father-child relationship when [that] biological father [is not] seeking to assume care, support and nurturance of the child.’” Id. (alterations in original) (quoting Pell, 881 So. 2d at 187). The mother led Justice to believe that Daniel was her father and confirmed that Justice’s biological father had abandoned her at birth. Therefore, the Welton court affirmed the chancellor, who had found “that Pell and subsequent Supreme Court decisions provided legal authority to grant physical custody of Justice to Daniel.” Id. at 748.

¶20. Welton logically extended the principles articulated in Pell and J.P.M.. The unique facts of Welton—allowing an in loco parentis figure to have custody—also are present here. There was no question that Marshall acted in loco parentis to Jill. Further, the trial court’s in loco parentis finding was neither raised as an issue on appeal nor was it overturned by the appellate court in Ballard.

¶21. Marshall always supported, cared for, and treated Jill as his own child, even though he knew she was not his biological child. Candice concedes that Marshall has always provided for Jill, as he did for John and Jane. She admitted even that Marshall is the only father Jill has ever known. Further, no evidence was presented that Candice sought support of Jill from the biological father. In fact, the biological father received notice of the hearing and did not attend, nor has he ever attempted to visit or to support Jill. It is clear that the biological father is absent.

¶22. Lastly, Candice argues that Welton is both distinguishable and predates this Court’s ruling in Miller v. Smith, 229 So. 3d 100 (Miss. 2017). This Court finds, however, that the facts of Miller are dissimilar. There, the Court found that the circumstances did not give Miller in loco parentis status. Miller, 229 So. 3d at 105. Miller had been sentenced to prison for eighteen months when the minor child, Smitty, was only a few months old. Id. at 104. After prison, Miller did not remain a constant in Smitty’s life. Id. Miller provided no financial assistance to Smitty, nor did he visit Smitty while his mother was in prison during 2012 and 2013. Id. Therefore, Miller did not rebut the natural-parent presumption, and the Court found substantial evidence in the record to support the chancellor’s conclusion that Miller did not stand in loco parentis. Id. at 104-105.

¶23. Accordingly, this Court finds that the chancellor appropriately held that custody of Jill could be awarded to Marshall pending an Albright analysis.

Justice Maxwell added a specially concurring opinion, joined by Randolph, Beam, Chamberlin, and Griffis, that concludes, “Here, I concur with the majority to the extent it backs away from the strong language in Waites and reaffirms Pell and T.D.M.’s holding that, under unique circumstances like these, a nonbiological parent’s in loco parentis status can be used to reach an Albright custody analysis without having to first rebut the natural-parent presumption.”

Authentication of an Acknowledgment of Paternity and the Notary’s Duty to Record

October 15, 2019 § 1 Comment

When Lora Ledet was 8 or 9 months pregnant, she began dating Spencer Diaz. When her son was born no father was listed on the birth certificate, and the child’s surname was that of his mother.

Lora and Spencer began living together, and, in April, 2014, an acknowledgment of paternity was filed per MCA 93-9-28 showing Spencer as the child’s father. The Department of Vital Records issued a revised birth certificate showing Spencer as the father and changing the child’s last name to Diaz.

After Lora and Spencer separated in October, 2015, DHS filed a complaint for child support. Spencer answered that the complaint was the first knowledge he had that he had been added to the child’s birth certificate, and that the acknowledgment was a forgery. He asked the court to disestablish paternity and terminate parental rights. Following a hearing, the chancellor denied him relief.

Spencer appealed, and two issues he raised were that the chancellor erroneously admitted the acknowledgment into evidence, and that its notarization was ineffective due to the notary’s failure to record the transaction.

On September 10, 2019, the COA affirmed in Diaz v. DHS and Ledet. Judge Westbrooks first laid out the standard to be applied when reviewing a trial judge’s ruling on admissibility of evidence:

¶6. “The admission of evidence is within the discretion of the chancellor, and reversal is not warranted unless judicial discretion is abused.” Sproles v. Sproles, 782 So. 2d 742, 749 (¶29) (Miss. 2001) (citing Smith v. Jones, 654 So. 2d 480, 486 (Miss. 1995)).

She then turned her attention to Spencer’s arguments on admission of the document into evidence and notary’s record-keeping:

¶7. Under Mississippi Code Annotated section 41-57-9 (Rev. 2013), “[a]ny copy of the records of birth, sickness or death, when properly certified to by the state registrar of vital statistics, to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated.”

¶8. Moreover, the simple acknowledgement of paternity form was submitted in accordance with Mississippi Code Annotated section 93-9-28. There is a method for an alleged father to voluntarily acknowledge a child as his own. In In re Estate of Farmer ex rel. Farmer, 964 So. 2d 498, 499-500 (¶4) (Miss. 2007), the Mississippi Supreme Court held that “Mississippi Code Annotated Section 93-9-28 (Rev. 2004) establishes a procedure by which the natural father of a [child born out of wedlock] may voluntarily acknowledge the child as his own.” “[T]he execution of [an] acknowledg[]ment of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child.” Id. (alteration in the original). Section 93-9-28(1) provides:

The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.

¶9. Here, Diaz maintains that the notary’s failure to have the parties sign the book under Mississippi Code Annotated section 25-33-5 (Rev. 2010) prohibits the admittance of the acknowledgment and reissued birth certificate. This Code section provides that “[e]very notary public shall keep a fair register of all his official acts, and shall give a certified copy of his record, or any part thereof, to any person applying for it and paying the legal fees therefor.” The statute requires only that the notary keep a record of all of [the] official acts. The section does not outline how to maintain that record. But Title 1 of the Mississippi Administrative Code, part 5, rule 5.16(B) (Nov. 30, 2011) provides that “[i]f the principal is not personally known to the notary, the notary may require, the signature of the principal . . . .” (Emphasis added).

¶10. Our Mississippi Supreme Court has held that the mere failure to strictly follow form will not render an acknowledgment void. See Estate of Dykes v. Estate of Williams, [Fn omitted] 864 So. 2d 926, 931 (¶20) (Miss. 2003); see also in re Jefferson, No. 11-51958-KMS, 2015 WL 359901, at *5 (Bankr. S.D. Miss. Jan. 26, 2015) (holding that Mississippi Code Annotated section 25-33-5 (Rev. 2010) 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).

¶11. In accordance with Mississippi caselaw, we find that lack of logbook entry does not deem the acknowledgment void. The chancery court considered all the testimony presented during the trial and followed the statutory procedures set forth in admitting the documents into evidence. Accordingly, we find no error.

A couple of thoughts:

  • Paragraph 6 is a reminder that it is awfully tough to reverse a chancellor on admission of evidence in a bench trial, which is understandable because there is no jury to protect from harmful influences.
  • The most complicated aspect of this case is the confuseration of spelling between “acknowledgment” and “acknowledgement.” Both are correct; however, the version with no “e” after the “g” is the preferred American usage, and the other is preferred in the UK, like “judgment” (American) and “judgement” (British).

Res Judicata and Subject Matter Jurisdiction — Yet Another Case

October 1, 2019 § Leave a comment

Last week I posted about the Abercrombie case which relied on Burgess v. Williamson to reach the conclusion that res judicata may operate to bar raising a claim of lack of subject matter jurisdiction on appeal.

Back in April, the COA faced the same issue and reached the same conclusion.

On April 3, 2016, a chancellor granted grandparent visitation rights to Toni Lisenby-Grundy, the paternal grandmother, with her grandson, John. The defendant in that case was the maternal grandmother, Jessie Lou Price. A year later Jessie was found in contempt for not allowing Toni her visitation. Jessie never appealed either of these judgments, and she never raised the issue of lack of jurisdiction in either of them.

Again, in May, 2017, Jessie was found in contempt for the same behavior.

Following the May, 2017, contempt judgment Jessie appealed, asserting as one ground that the contempt judgment is void because the trial court never had jurisdiction in the first place to award grandparent visitation. The basis for her jurisdictional challenge is that neither her husband, Roy, nor her daughter Theresa, had been joined as required by statute. A post on who are those required parties is at this link. Jessie charged that the failure of the court to have jurisdiction over all persons required to be joined voids the original judgment and all of its subsequent judgments and renders them unenforceable. In other words, the trial court never acquired subject matter jurisdiction.

In the case of Price v. Lisenby-Grundy, an April 16, 2019, decision, the COA rejected Jessie’s position and affirmed. Judge Carlton wrote the majority opinion:

¶26. At no time did Jessie challenge the court’s jurisdiction as to Toni’s original grandparent’s visitation action; nor did Jessie appeal the April 3, 2015 visitation order. [Fn 6] The doctrine of res judicata, therefore, bars Jessie’s attempt to challenge that order on jurisdictional grounds in this appeal. We find that Burgess v. Williamson, No. 2017-CA-00788-COA, 2018 WL 4705709 (Miss. Ct. App. Oct. 2, 2018) [270 So. 3d 1031 (Miss. Ct. App. 2018)], is instructive on this issue. In that case, Burgess appealed a May 9, 2017 contempt order against her based upon the court’s determination that she failed to comply with a final judgment awarding custody and support entered on September 8, 2015. Burgess, 2018 WL 4705709, at *2 (¶¶11-12). Among other issues on appeal, Burgess asserted that the chancery court “erred in assuming jurisdiction” over the matter. Id. at *2 (¶12).

6 We also observe that at no time did Theresa Price or Roy Price object to the chancery court’s jurisdiction on any basis, and neither Roy nor Theresa Price appealed the April 2015 visitation order.

¶27. We held that “if Burgess is trying to argue that the chancery court lacked jurisdiction to enter the original (September 8, 2015) final judgment awarding custody and support, her claim is barred by the doctrine of res judicata.” Id. at *3 (¶17). In so holding, we found that Burgess had defended the original proceeding on the merits, and did not appeal the September 8, 2015 judgment. The same is true in this case. Jessie was a party to Toni’s visitation action, participated in that action on the merits, and never challenged the chancery court’s jurisdiction on any basis. Indeed, Jessie Price’s attorney agreed to the form of the final order of visitation entered in the consolidated proceeding, which specifically provides that “[the] Court has complete and plenary jurisdiction over the subject matter and the parties involved herein.” Finally, Jessie did not appeal the April 2015 visitation order.

¶28. As we explained in Burgess, 2018 WL 4705709, at *3 (¶17), “[a]ny challenge to the . . . court’s jurisdiction should have been taken up in the original proceeding or on direct appeal from the original order.” In this regard, “[o]nce a case is litigated to a final judgment, and no appeal is taken, a party who participated in the original litigation cannot collaterally attack the court’s jurisdiction in a later proceeding.” Id. (citing Phillips v. Kelley, 72 So. 3d 1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”) (quoting Travelers Indem. Co. v. Bailey, 557 U.S. 137, 152 (2009)). See also Dep’t of Human Servs. v. Shelnut, 772 So. 2d 1041, 1045 (¶13) (Miss. 2000) (“The principles of res judicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”); Restatement (Second) of Judgments §12 (1982) (“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation [subject to three narrow exceptions, inapplicable in this case].”). We find the same principle applies here and bars Jessie’s attempt to challenge the April 3, 2015 visitation order on jurisdictional grounds.

Not much more to say about that.

Res Judicata and Subject Matter Jurisdiction, Part III

September 25, 2019 § Leave a comment

Yesterday and the day before we looked at the COA’s decision in Abercrombie v. Abercrombie and Judge McCarty’s dissent. Today we look at the majority’s response to the dissent:

¶26. The dissenting opinion is based entirely on evidence offered at a hearing that was held in the chancery court more than a year after this appeal was filed, and the dissent’s ultimate conclusion is that the chancellor should have taken additional steps when he entered his order “vacat[ing] the original judgment of divorce in this case.” Post at ¶40. However, that order was also entered over a year after this appeal was taken, and it is not the subject of this appeal. Indeed, as discussed above, a panel of this Court previously recognized that the chancellor retained jurisdiction to address the parties’ fraud on the court precisely because that issue “was not the subject of the judgment that Faith challenges in this appeal.”

¶27. In this appeal, Faith challenges the chancery court’s July 26, 2017 order denying her April 14, 2017 motion to dismiss and set aside for lack of jurisdiction. In that motion, Faith did not allege any fraud on the court, and there was no evidence of fraud on the court when the chancellor entered his ruling. Indeed, although the dissent primarily addresses the validity of the Louisiana adoption, there was nothing to indicate any problem with the Louisiana adoption when the chancellor entered the judgment that is now before us on appeal. The only challenge that the chancellor addressed in that ruling was Faith’s claim that the court’s initial child custody determination was void because Mississippi was not Reed’s home state at the time of the original judgment of divorce. For the reasons explained above, Faith’s attack on the court’s jurisdiction to make an initial custody determination was barred by res judicata because the case had already been litigated to a final judgment three times. [Fn 5] Therefore, the chancellor properly denied Faith’s motion.

[Fn 5] To be clear, we agree with the dissent that the issue of subject matter jurisdiction “cannot be waived.” However, it can be finally decided—and beyond re-litigation—when as in this case, it has been resolved in multiple successive final judgments.

¶28. Thus, the dissent is attacking an order that simply is not before us on appeal. The order that the dissent attacks was entered more than a year after this appeal was taken, and there has been no attempt to appeal it. Nowhere does the dissent say that the chancellor committed any error in the order that is actually the subject of this appeal. [Fn 6]

[Fn 6] Although we have considered the post-appeal proceedings in the chancery court and the chancellor’s post-appeal rulings, we have done so only (1) to rule on Faith’s motion to stay proceedings in the chancery court and to stay execution of the chancellor’s orders (which we denied, see supra ¶21) and (2) to determine whether this appeal is moot (we hold that it is not, see supra n.2).

¶29. One final point: the dissent accuses this Court and the chancellor of somehow “usurp[ing] jurisdiction from Louisiana” and “infringing upon [Louisiana’s] authority to govern its own citizens.” Post at ¶48. Nothing could be further from the truth. As far as this Court is aware, no custody proceeding is pending in any Louisiana court, and no judge in Louisiana has attempted to make any custody decision pertaining to Reed. If such an action is ever filed in Louisiana, the chancellor may communicate with the Louisiana judge, the chancellor may relinquish continuing jurisdiction over Reed’s custody, and the Louisiana court may assume jurisdiction. See Miss. Code Ann. §§ 93-27-110 & -202 (Rev. 2018); La. Stat. Ann. §§ 13:1810 & :1815 (Rev. 2007). That may be an appropriate course in the future, but it has nothing to do with the ruling that is before this Court in this appeal. The ruling that is before this Court in this appeal simply rejected Faith’s challenge to the chancery court’s jurisdiction to make an initial child custody determination.

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