Some Notes on Dennis

August 29, 2017 § 1 Comment

Yesterday we visited the case of Dennis v. Dennis, in which the MSSC upheld the self-imposed obligation of a step-great-grandfather to pay child support for a 12-year-old child who refused to have a relationship with him.

A few observations:

  • Even if Dennis made a severe error in judgment by agreeing to pay child support on the mistaken belief that he was required to do so, that will not get him termination of his child support obligation. The court can modify only upon a showing of a material change in circumstances.
  • Parties are free to agree to all sorts of things in a PSA that a court could not impose on them in a contested framework. For instance, the husband could agree to provide college support until the child attains age 25; no judge could order that outside the parties’ agreement. A party could agree to provide health insurance for step-children to a certain age; again, something no chancellor could unilaterally order. Here, Dennis agreed to support JRH, legal obligation or none. That agreement is enforceable under this case and long-standing authority.
  • The dissent argues that the chancellor may only approve agreements for support of the children of the parties, per MCA 93-5-23 (and 93-5-2). The majority looked to the Mississippi Constitution as the source of the chancellor’s authority. Taking either route, however, I think the fact that Dennis voluntarily took on custody of JRH vested him with responsibilities under the law that could have and should have been addressed in the divorce. Dennis should not be allowed to extinguish his obligations to the child via divorce.
  • To tag onto the above, although the statutes refer to the children of the marriage, there is nothing in the statutes that prohibits the parties from agreeing to support other children, or even other adults. The cases that have analyzed the parties’ negotiations and agreement-making in the context of irreconcilable-differences divorces (including this one) all resonate with the theme that the parties should be free to make any agreement that makes adequate and sufficient provision for settlement of property and support of children. I argue that the wider the latitude given the parties to negotiate the lesser the likelihood that the familiar and all-too-common “divorce blackmail” phenomenon can be brought to bear.
  • The fact that the natural parents continue to have a support obligation to JRH, and continue to visit, also avail Dennis nothing. He agreed to the arrangement, self-imposing a support duty parallel to the parents’.
  • And Dennis’s agreement to much more, probably, than what the judge would have imposed on him in the custody matter were it contested makes him a poster child for litigants like him who eschew legal advice for expediency. Sans fraud that can’t be undone.
  • As for the hostility of JRH, this case is right in line with the many cases that have dealt with the phenomenon. The facts must be extreme and the parent seeking to invoke it must not be at fault. To those parameters you can add, thanks to Dennis, that the age and maturity of the child must be taken into account.

The Duty to Pay Child Support for a Step-Great-Grandchild

August 28, 2017 § 1 Comment

Thomas Dennis (Dennis) and Sheila Sims (Sims) married in 1994. Sheila had a daughter before the marriage, Renee Wright. Renee had a daughter, Courtney. Courtney had a child, JRH. Thus, JRH is the step-great-granddaughter of Thomas.

In 2005, DHS became involved when JRH’s parents got into legal trouble. In order to keep JRH out of “the system,” Dennis and Sims filed a petition for custody in chancery court. All parties agreed for the Dennis and Sims to have custody, with the parents having visitation rights, and the parents agreed to pay modest child support. The chancellor approved the agreement in March, 2006.

Six months later, Dennis and Sims separated. In 2008, Sims filed for divorce, and on June 23, 2009, the court granted a divorce on the ground of irreconcilable differences. The PSA incorporated into the divorce judgment provided that Sims would have sole custody of JRH, and that Dennis would pay her $400 a month in child support. The agreement recited that child support was to continue until:

” … (1) the minor child marries; (2) the minor child enlists in any branch of the armed services; (3) the minor child is no longer attending school on a full-time basis prior to the age of twenty-one years; (4) the minor child reaches the age of twenty-one years; or (5) at any time that a court of competent jurisdiction shall change, alter, modify, or terminate this obligation.”

Over time following the divorce, JRH and Dennis became estranged to the point that JRH refused to have anything to do with Dennis. Sims refused to make JRH have any contact with him.

In 2015, Dennis filed a petition to modify the custody and support agreement, asking to relinquish custodial rights to JRH and to terminate child support. He pled that he (a) “wrongfully believed” in the divorce that he had some legal duty to pay child support, (b) that he had never developed any genuine relationship with the child, (c) that the child refused to have a relationship with him, and (d) that the natural parents still exercised visitation and had a child support obligation for the child.

After a hearing, the chancellor denied Dennis any relief. He ruled that there had been no material change in circumstances, and that JRH at only 12 years of age had no appreciation of the legal significance of the refusal to have a relationship. Dennis appealed.

In Dennis v. Dennis, decided August 3, 2017, the MSSC affirmed. In its opinion, the majority acknowledged that a person acting in loco parentis is not obligated to support a child once the relationship has ceased, in the absence of consanguinity, legal adoption, or the knowing and voluntary assumption of the obligation. Williams v. Williams, 843 So.2d 720, 723 (Miss. 2003). The court’s opi nion, written by Justice Chamberlin, went on to distinguish Dennis’s situation:

¶14. The analysis, however, does not end here under the facts of this case. Here, Dennis agreed to provide child support for J.R.H. in the Child Custody and Support and Property Settlement Agreement incorporated into his irreconcilable-differences divorce decree. Therefore, the issue is not whether Dennis has a statutory duty to pay child support, but rather whether he has a quasicontractual obligation to do so. “We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted the child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Williams, supra]. at n.1 (citing NPA, 380 S.E.2d at 181) (emphasis added).

¶15. In Mississippi, one of the steps parties must take to obtain an irreconcilable differences divorce is to enter into a written settlement agreement that provides “for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties.” Miss. Code Ann. § 93-5-2(2) (Rev. 2013). The parties may provide the chancellor with such an agreement or, if the parties cannot agree as to certain issues, consent in writing to the divorce and allow the chancellor to decide the contested issues. See id.; see also Miss. Code Ann. § 93-5-2(3) (Rev. 2013). The chancellor then determines whether the terms of the agreement “are adequate and sufficient.” Id. In
West v. West, this Court emphasized that these “[S]ettlement agreements entered into by divorcing spouses and judicially approved under our Irreconcilable Differences Divorce Act become a part of the decree and enforceable as such as though entered by the court following contested proceedings.” When the Irreconcilable Differences Divorce Act has been complied with, the custody, support, alimony, and property settlement
agreement becomes a part of the final decree for all intents and purposes. If the agreement is sufficient to comply with the statute, that is enough to render it a part of the final decree of divorce as if the decree had been rendered by the chancery court following a contested divorce proceeding.
“[P]roperty settlement agreements are contractual obligations.” The provisions of a property settlement agreement executed prior to the dissolution of marriage must be interpreted by courts as any other contract. In East v. East, 493 So. 2d 927, 931–32 (Miss. 1986), we held “[a] true and genuine property settlement agreement is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” West v. West, 891 So. 2d 203, 210 (Miss. 2004) (internal citations omitted).

¶16. This case is, to an extent, similar to Lee v. Lee, 12 So. 3d 548 (Miss. Ct. App. 2009). In that case, the Lees were married in 1994. Lee, 12 So. 3d at 549. During their marriage, the wife gave birth to two children. Id. In 2004, the husband “had a home DNA test performed to determine whether he was [the second child’s] biological father.” Id. The test showed a zero percent chance that he had fathered the second child. Id. The next year, however, the Lees swore that both children were born to the marriage in their joint bill for divorce and the husband agreed to pay child support for both children in the child-custody and settlement agreement. Id. Two years after the divorce was granted, the husband petitioned the chancellor “to reverse the determination that he is [the second child’s] biological father and release him of all parental responsibilities, including child support, as to [the second child].” Id. The chancellor denied the husband’s request. Id.

¶17. The Court of Appeals unanimously affirmed the decision of the chancellor. Id. at 552. The court reasoned that the husband “knew a year before the judgment of divorce was entered that [the second child] was not his child. Despite this knowledge, he voluntarily agreed to support [the second child] and to exercise parental visitation with her.” Id. at 551 (emphasis added). The Court of Appeals distinguished Lee from Williams, where this Court allowed a man to discontinue his child-support payments when he determined, after his divorce, that he was paying support for someone who was not his child. Williams, So. 2d at 721, 723.

¶18. As in Lee, the evidence shows that Dennis knowingly and voluntarily agreed to pay child support for J.R.H. even though he knew he was not the child’s father. [Fn omitted] Though Dennis claims he wrongfully believed he had a duty to support J.R.H., the Agreement states that “Husband and Wife each fully understand the terms and conditions of this Agreement and believe it to be just, fair, adequate, and reasonable . . . .” Under the section titled “VOLUNTARY EXECUTION,” the Agreement states that “[e]ach party acknowledges that he or she has read this Agreement in its entirety, understands its terms, consents to its terms, and enters into this Agreement voluntarily of the uses and purposes therein stated.”

¶19. As mentioned above, these child-custody and property-settlement agreements are quasicontracts in which both spouses consent to certain terms in order to obtain an irreconcilable-differences divorce. Thus, we find that a bargained-for exchange occurred whereby Dennis got something in return for paying child support: a divorce. Even more, this Court has stated:

In property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Bell v. Bell, 572 So. 2d 841, 844 (Miss. 1990) (emphasis added) (citations ommitted [sic]).

¶20. Under the facts of this case, we find that Dennis voluntarily agreed to pay child support for J.R.H. We disagree with the dissent that a chancellor does not have the authority to accept a settlement agreement that governs child-support payments for a child not of the marriage. A chancellor’s power to accept such an agreement is granted by Section 159 of the Constitution. Miss. Const. art. 6, § 159. While a chancellor’s power is codified by statute, we consistently have held that a chancellor has broad discretion over child-support agreements. Short v. Short, 131 So. 3d 1149, 1151 (Miss. 2014). Further, a chancellor’s discretion extends to matters that are not codified. See Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (recognizing the doctrine of in loco parentis within the child-custody context).

That takes care of the argument that Dennis had no legal obligation to the child, and thuse should be relieved. What about his argument that the original agreement should be modified to terminate support due to the child’s refusal to have a relationship? Here’s how the court addressed it:

¶21. Notwithstanding their contractual nature, child-support and property-settlement agreements may be modified when there is an after-arising material or substantial change in the circumstances among the parties. See Shipley v. Ferguson, 638 So. 2d 1295, 1298 (Miss. 1994). Dennis next argues that J.R.H.’s refusal to see or speak to him constitutes clear and extreme conduct that entitles him to terminate his support obligations. We disagree.

¶22. In Caldwell v. Caldwell, 579 So. 2d 543, 548 (Miss. 1991), this Court stated that “[t]he amount of money that the noncustodial parent is required to pay for the support of his minor children should not be determined by the amount of love the children show toward that parent.” Later in that opinion, however, this Court recognized that a material change in circumstances could arise from a minor child’s actions toward a noncustodial parent which would allow the parent to terminate his or her support obligations. Id. “[A] minor child as young as fifteen years old could forfeit his support from the noncustodial parent through his actions toward that parent, but those actions must be clear and extreme.” Marshall , 859 So.2d at 389-90 (citing Caldwell, 579 So. 2d at 548) (emphasis added).

¶23. In Roberts v. Brown, an eighteen-year-old daughter testified “that she did not love [her father], that she did not want to visit or communicate with him, that she had had time to visit him but chose not to, and that if the court ordered her to visit her father, she would not do so.” Roberts v. Brown, 805 So. 2d 649, 650 (Miss. Ct. App. 2002). Even more, the daughter previously had accused her father of rape, a charge of which the father was later acquitted. Id. at 650-51. The Court of Appeals found that the conduct of the daughter was clear and extreme conduct that justified the termination of the father’s support obligations. Id. at 653-54.

¶24. We hold that J.R.H.’s current refusal to see or speak to Dennis is not the type of clear and extreme conduct envisioned in Caldwell or shown in Roberts, especially in light of the child’s age and Dennis’s alleged statement. Though it is undisputed that J.R.H. currently is unwilling to have a relationship with Dennis, Sims testified that Dennis told J.R.H. that he was happy that the child’s grandmother had died. The chancellor also noted that J.R.H. was only twelve years old when this case was in the chancery court; therefore, J.R.H. would have been even younger when this alleged statement was made. If Dennis indeed made these statements, it would be unjust for him now to take advantage of such fact. At this time, the record does not indicate that the chancellor manifestly erred in his Caldwell analysis. [Fn omitted]

A few observations tomorrow.

Comments on Bankruptcy and Equitable Distribution

August 8, 2017 § 3 Comments

Yesterday I posted about the Powell bankruptcy case and how it addressed the handling of equitable distribution in divorce when there is a pending bankruptcy proceeding. As promised, here are my thoughts:

  • I have heard it said that Powell is a big change fraught with implications for family law practitioners, but I don’t see that. The language cited from Professor Bell clearly states what the law has been. Powell does not change that.
  • Some may have misinterpreted the federal domestic relations exception barring federal courts from exercising jurisdiction over divorce to mean that all matters incidental to a divorce are included. The US Supreme Court, however, has made it clear that it is the granting of the divorce itself that is barred. Any matters pertaining to the property of the bankruptcy debtor are subject to bankruptcy jurisdiction.
  • The only way that a chancellor may proceed in divorce after bankruptcy is filed is for you to lift the automatic stay. You have to petition the bankruptcy court to remand all of the issues, as Jessica Powell did, even knowing that some will not be remanded.
  • Only problem is, per Heigle, cited in the Powell opinion, our supreme court has made it clear that the chancery court should stay all proceedings before it until the bankruptcy is concluded.
  • Even without Heigle to stop you from going forward, it’s obvious that if the bankruptcy estate is taken away, equitable distribution is impossible. If equitable distribution is impossible, alimony is impossible, since you can’t get to alimony without going through equitable distribution. If most of the assets are in the bankruptcy estate, that may well limit or even eliminate child support.
  • As I mentioned yesterday, I am no bankruptcy expert, but it appears that if you represent the other spouse (not the debtor), you had better file a claim for him or her in bankruptcy court right away to protect that client’s rights. You need to ask a bankruptcy expert about this.

Guardian ad Litem Hearsay

August 2, 2017 § 2 Comments

Too many lawyers in contested custody cases with a GAL relax when the GAL report is in their favor, choosing to put all (or most) of their eggs in the basket of the GAL report, and then resting. A recent case shows how and why that can be a big mistake.

In Ballard v. Ballard, decided May 25, 2017, the MSSC reversed the chancellor’s award of Candice Ballard’s children’s custody to their paternal grandparents, based on a finding that both she and the natural father were unfit. Justice Coleman’s opinion spells it out:

 ¶15. Candice takes issue with the chancellor’s disposition of custody due to the chancellor’s reliance upon hearsay. Specifically, Candice argues the chancery court relied upon the guardian ad litem’s reports–which consisted mostly of hearsay–and the guardian ad litem’s testimony–which was based in hearsay–as substantive evidence to establish her unfitness and trigger the family-violence presumption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem’s report, we agree.

¶16. First, the Court notes the chancery court’s failure to provide an Albright analysis. Parents enjoy–against third parties–a natural-parent presumption favoring an award of custody. In re Waites, 152 So. 3d 306, 311 (¶ 14) (Miss. 2014). Only a clear showing of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness can rebut the presumption. Id. at 311-12 (¶ 15). However, the inquiry does not end once the presumption is rebutted. In re Dissolution of Marriage of Leverock & Hamby, 23 So. 3d 424, 431 (¶ 24) (Miss. 2009). “If the court finds one of [the] factors [that rebuts the natural parent presumption] has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors. Id. (emphasis added). In other words, a finding that the natural-parent presumption has been rebutted does not end the inquiry into custody without an Albright analysis. If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children. We note that, even if, upon
remand, the chancellor finds enough competent evidence to engage the family-violence presumption, the presumption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013).

¶17. In any event, the chancery court erred in finding Candice to be unfit and applying the family-violence presumption. Candice argues the only “proof” presented at trial to establish her unfitness was inadmissible hearsay from the guardian ad litem. Similarly, Candice argues the chancery court relied on inadmissible hearsay to apply the family-violence presumption against her.

¶18. Candice is correct that the chancery court relied heavily on hearsay testimony in determining that she was unfit and that the family-violence presumption should be triggered. The chancery court’s analysis determining Candice’s unfitness focused primarily on the guardian ad litem’s report and testimony and on Candice’s evasive answers to questions at trial that indicated a “wariness to convey the truth.” The chancery court concluded: “Based on the evidence as stated above, i[.]e., [Candice] failing to take responsibility for her actions or lack thereof, and continuing to blame others for her mistakes, the [chancery c]ourt finds by clear and convincing evidence that her natural parent presumption has been rebutted due to her unfitness.” [Fn omitted] Additionally, in our review of the record, we could discern only one piece of nonhearsay testimony that indicated Candice had committed any act of family violence: when Marshall testified that Candice had beaten him with a lamp. Other evidence suggesting Candice had inflicted violence on Marshall came almost entirely from the guardian ad litem’s reports and the guardian ad litem’s testimony at trial, all of which consisted of the guardian ad litem’s third-party interviews. None of the persons interviewed by the guardian ad litem testified at trial except the parties and one of Candice’s daughters from a previous relationship. Despite a recommendation from the guardian ad litem in her supplemental report that the chancery court should not apply the family-violence presumption, the chancellor relied on the hearsay contained within her report to disagree with her recommendation and apply it. [Emphasis in bold supplied by me]

¶19. In McDonald v. McDonald, 39 So. 3d 868, 882 (¶ 47) (Miss. 2010), the Court addressed “whether the guardian ad litem acted beyond her authority by offering hearsay testimony without being qualified as an expert.” The appellant in McDonald argued the chancery court erred in allowing a guardian ad litem to testify as to statements relayed to the guardian ad litem by teachers at a school. Id. at 884 (¶ 53). The McDonald Court set forth the “proper role” of a guardian ad litem as follows:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the
information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation.

Recommendations of a guardian ad litem must never substitute for the duty of a chancellor. Id. at 883 (¶ 48) (citing S.G. v. D.C., 13 So. 3d 269, 282 (Miss. 2009)). During trial of the case, the chancellor had overruled the objection to hearsay, claiming courts in Mississippi have a “historical practice” of allowing guardians ad litem to offer hearsay testimony. Id. The majority opinion in McDonald disagreed with the chancellor’s view, holding, “We find that it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding.” Id. Considering the above-quoted language defining the importance and role of the guardian ad litem along with the admonition issued by the McDonald Court regarding reliance on hearsay, we conclude the following: The guardian ad litem plays an important role, and – as set forth above – chancellors must consider all of the information available to the guardian ad litem when considering whether to follow the
recommendation made. However, especially when a chancellor departs from the recommendation of the guardian ad litem, as happened here, the result reached by the chancellor must be supported by admissible, competent evidence rather than hearsay.

¶20. Presiding Justice Dickinson issued a specially concurring opinion in McDonald tailored to the issue of guardian ad litem testimony and hearsay. Id. at 887 (¶ 65) (Dickinson, P.J., specially concurring). His concurrence was joined by four other justices, giving the opinion precedential value. See Sweatt v. Murphy, 733 So. 2d 207, 209-210 (¶ 7) (Miss. 1999) (noting that when at least four justices vote in favor of another justice’s concurring opinion, the concurrence has “precedential value”). Addressing guardian ad litem hearsay, Presiding Justice Dickinson wrote, “Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court—and they include no exception for guardians ad litem.” Id. The concurrence continued: “Certainly I agree that guardians ad litem–properly appointed under Rule 706 and qualified as experts under Rule 703–may rely on hearsay in reaching their opinions. But hearsay used to support an expert’s opinion is quite different from hearsay admitted as substantive evidence.” Id. (¶ 68). In other words, “pure, rank, uncross-examined hearsay” by a guardian ad litem cannot be used as substantive evidence. Id. (¶ 68).

¶21. A dearth of Mississippi jurisprudence squarely addresses the issue of guardian ad litem hearsay being used as substantive evidence.  However, as Presiding Justice Dickinson proclaimed in McDonald, our rules of evidence apply in chancery court; and the rules prohibit, subject to listed exceptions, the use of hearsay as substantive evidence. In view of the rule, the chancery court erred in relying on inadmissible hearsay to find Candice unfit and to invoke the family-violence presumption against Candice. Therefore, we reverse the chancery court’s disposition on custody of the three minor children and remand for further proceedings.

This case is a strong reminder that you must put non-hearsay evidence in the record that will support the chancellor’s findings. If the GAL reported statements by a schoolteacher about the child’s conduct, call the teacher as a witness. If the GAL referred to medical records, get the records with any interpretive testimony in the record. If neighbors witnessed something, put them on the stand to testify about it. That’s what the court was alluding to in the language I put in bold print above: It’s up to you to call the witnesses, to get the documents into evidence, and to do what is necessary to give the judge substantial evidence to support findings.

Remember that the GAL report has two major components: (1) a recitation of what the GAL learned from her investigation, which often includes hearsay; and (2) the GAL’s recommendations. It’s up to you to get the facts unearthed in the investigation into the record in the form of admissible evidence. If all the judge has is that GAL report, then that is all she will be able to say she relies on in making her ruling, and that is a recipe for reversal.

If you are on the side contrary to the GAL’s recommendations, remember that there must be a contemporaneous objection to the testimony. You are extremely unlikely to prevail if you complain for the first time on appeal that the GAL report was rife with hearsay and other objectionable evidence.

A previous post on Coming to Grips with McDonald is here.

Beyond the Scope of the Pleadings

July 5, 2017 § Leave a comment

It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.

In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:

¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.

No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.

I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.

Decision-Making in Joint Legal Custody

June 26, 2017 § 2 Comments

Jessica Timmons had a baby by Jason Taylor, and the two filed a joint pleading to establish paternity and all of the attendant relief. They agreed that Jessica would have physical custody, and that she and Jason would share joint legal custody.

They later had a falling out because Jessica wanted their child to attend a particular private school, and Jason did not agree. Their dispute would up before a chancellor, who ruled that Jessica had the right to make the call, since she was the physical custodian. Jason appealed.

In In the Matter of C.T.; Taylor v. Timmons, handed down June 6, 2017, the COA affirmed. Judge Lee wrote for a unanimous court:

¶7. Taylor argues that the chancellor erred when he found that although Timmons and Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make decisions regarding where the child would attend school. At trial, the chancellor noted that Taylor felt strongly that the child should attend a certain private school. The chancellor also noted that Taylor was given input to voice his position, but that the ultimate decision in regard to where the child would attend school belonged to Timmons as the custodial parent. For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013), which states in relevant part:

“joint legal custody” means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.

¶8. Taylor is correct that joint legal custody imparts shared decision-making rights relating to the child’s education. However, Taylor fails to note that section 93-5-24(5)(e) also provides that in cases of joint physical and legal custody, “unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor allocated to Timmons the “discretion to make a determination about where the child goes to school.”

¶9. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock, 104 So. 3d 158, 165 (¶¶29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So. 2d 308, 312-13 (¶¶18-20) (Miss. Ct. App. 2007)). “In cases where decision[-]making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing . . . .” Id. Mississippi caselaw also recognizes that “the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial [parent.]” Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985); see also Ayers v. Ayers, 734 So. 2d 213, 217 (¶20) (Miss. Ct. App. 1999).

¶10. Here, the chancellor was well within his discretion to allocate this decision-making to one parent. Further, our caselaw favors the custodial parent having the discretion for such a decision. Accordingly, we do not find that the chancellor abused his discretion in allocating to Timmons the decision-making authority in regard to where the child attends school. Therefore, this issue is without merit.

No quarrel with that from me.

BUT … what to do when the parties share both legal and physical custody? In this district we require that one parent or the other have final decision-making authority. You can read a post about it here, if you care to.

When you  are counselling your client about custody issues, it’s a good idea to acquaint her or him with the concept that, although all is hunky-dory between them today, things can change, and what seems so easy and agreeable now may be infested with considerable volatility and hostility later. It’s better to make the lines of authority clear now, while negotiations are under way, than to have to fight through months and even years of litigation and attorney’s fees later. No, it’s not a simple issue to negotiate through, but it’s well worth the trouble addressing it up front. If you take the easy way out and sell your client on a joint-legal and -physical arrangement that later winds up biting him or her, it’s going to leave a bitter taste in that client’s mouth.

When Spanking Becomes More

June 7, 2017 § Leave a comment

In the course of the divorce trial between Bridget and Scott Holman, Bridget was testifying about Scott’s treatment of one of their children:

“I mean it wasn’t just a spanking on the butt. We’re talking about up and down the back, red marks, and had I been smart enough, I would have taken a picture of that.”

The chancellor, construing her testimony to be an allegation of child abuse, stopped the trial and appointed a guardian ad litem (GAL). After an investigation, the GAL found that the allegations were without foundation. The chancellor ordered Bridget to pay Scott’s attorney’s fees related to the child-abuse allegation.

Bridget appealed, contending among other claims that the chancellor erred in deciding to appoint a GAL, and in his award of attorney’s fees. The COA affirmed as to the appointment of the GAL, but reversed and remanded for a recalculation of the fees awarded. The unanimous decision in Holman v. Holman, handed down April 4, 2017, was penned by Judge Griffis:

¶23. Bridget claims she did not make an abuse allegation “but merely talked about Scott’s bad parenting” and “an incident of excessive spanking.” Pursuant to Mississippi Code Annotated section 43-21-105(m) (Rev. 2016), “physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section.”

¶24. Bridget asks that we find the chancellor erred in construing Bridget’s allegation of excessive spanking and her testimony that Scott spanked the child up and down his back, leaving red marks, as an allegation of child abuse. We disagree. Based on Bridget’s testimony, it was not manifestly wrong or clearly erroneous for the chancellor to have concerns since, under Mississippi Code Annotated section 43-21-105(m) (Rev. 2015), spanking must be reasonable.

¶25. Moreover, neither Bridget nor her former trial counsel objected to the chancellor’s interpretation of Bridget’s testimony, or attempted to clarify Bridget’s statements. Bridget had the opportunity to advise the chancellor at that time what she now asserts to this Court on appeal—that she did not intend to allege child abuse, but was simply discussing Scott’s bad parenting.

On the issue of attorney’s fees, Judge Griffis wrote:

¶26. Bridget next argues “the chancellor had no legal authority to award attorney’s fees.” Bridget further argues that even if it was proper for the chancellor to award Scott attorney’s fees, the attorney’s fees should have been limited to those fees actually incurred in defending the abuse allegation.

¶27. “An award of attorney’s fees will not be disturbed unless the chancellor abused his discretion or committed manifest error.” Stuart v. Stuart, 956 So. 2d 295, 299 (¶20) (Miss. Ct. App. 2006). Attorney’s fees may be properly awarded “where one party’s actions have caused the opposing party to incur additional legal fees.” Id.

¶28. The chancellor ordered Scott’s counsel to present an accounting of attorney’s fees incurred in the defense of the abuse allegation. However, Scott’s counsel submitted an affidavit and an attached itemization, which included charges for all work performed since June 2015, when the allegation of abuse was made by Bridget.

¶29. The chancellor awarded Scott $15,135 in attorney’s fees, which represented all work performed by Scott’s counsel since the child-abuse allegation was made. The chancellor explained his decision as follows:

This matter was tried almost to its conclusion as [Scott’s counsel] correctly stated, in day one, and then a revelation by [Bridget] comes about alleging abuse by [Scott]. The [chancery court], pursuant to the appropriate statute, halted the proceedings and appointed a guardian ad litem. In doing so, that not only increased the attorney[’s] fees for both parties, but also, of course, incurred the fees of the guardian ad litem. We tried the matter then on yet another day, again to its conclusion . . . . I think in all fairness and in all equity, because of the additional attorney[’s] fees incurred because of the revelation from the stand and not anywhere prior . . . in any deposition, discovery, or otherwise, it’s only proper that the party who causes another party to incur those fees should be assessed.

¶30. As the chancellor noted, at no point prior to the June 2015 trial had Bridget alleged child abuse. Indeed, the abuse allegation was made for the first time after approximately two and one-half years of litigation. Such an allegation caused additional delay and costs. Thus, we do not find the chancellor abused his discretion or committed manifest error in awarding attorney’s fees.

¶31. However, we do find the chancellor erred in failing to determine what portion of the submitted fees was actually incurred by Scott in responding to the abuse allegation. “The fees ‘should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary.’” Martin v. Stevenson, 139 So. 3d 740, 752 (¶40) (Miss. Ct. App. 2014) (citing Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992)). Accordingly, we reverse and remand in order for the chancellor to determine the amount of attorney’s fees associated with Scott’s defense of the abuse allegation.

It seems sometimes that witnesses get carried away hearing their own voices on the witness stand, not really paying much attention to the import of what they are saying until they get hit in the face with it. It’s beyond question that the chancellor in this case was under a duty to stop the proceedings and appoint a GAL based on what Bridget said. Red marks up and down the back from a spanking are not reasonable.

As for the amount of attorney’s fees awarded, I am willing to bet that the chancellor had no proof in the record to support a finding as to how to allocate the attorney’s fees incurred in resisting the child-abuse claim.

Best Interest and Grandparent Visitation

May 15, 2017 § Leave a comment

Tier One grandparent visitation, which is provided in MCA 93-16-3(1), allows grandparents to petition for visitation when either (a) one or both of the parents have their parental rights terminated; or (b) one or both of the parents dies.

I think it’s fair to say that most of us have construed 93-16-3(1) to mean that visitation in the specified cases is automatic, and that the real issue at such hearings is the amount and frequency of visitation, based on the trial judge’s analysis of the factors in Martin v. Coop

In the recent case of Smith v. Martin, handed down April 20, 2017, the MSSC granted cert. to address the question whether the language of the statute requires a more thorough analysis. Appellants Smith argued that the provision in MCA 93-16-5 that the court “may, in its discretion, if it finds such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child,” requires the court to use Martin v. Coop not only for a frequency and amount analysis, but also for a best interest analysis.

Justice Kitchens wrote for a unanimous court:

 ¶14. As the Smiths argue, the Martin Court did not take into account Mississippi Code Section 93-16-5, which states that the chancery court “may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.” Miss. Code Ann. § 93-16-5 (Rev. 2013). Section 93-16-5 obligates the chancellor to consider the best interest of the child(ren), even if the statutory elements of Section 93-16-3(1) are met. This Court has held that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right must come from a legislative enactment.” Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (citing Matter of Adoption of a Minor, 558 So. 2d 854, 856 (Miss. 1990)). “Although the Mississippi Legislature created this right by enacting § 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So. 2d at 1035.

¶15. The Martin Court erred by instructing chancellors to consider the best interest of the child(ren) only in the context of the amount of visitation, after finding an entitlement to grandparent visitation under Section 93-16-3(1). See Martin, 693 So. 2d at 916 (“The chancellor in this case found that under [Section 93-16-3(1)] the petitioners are in fact the grandparents of [the child] and that their son is deceased. Thus, all the proof necessary under § 93-16-3(1) was present and, therefore, the grandparents should be awarded visitation.”) The Martin Court ignored the requirement of Section 93-16-5 that the best interest of the child(ren) be considered in determining the grandparents’ entitlement to grandparent visitation rights. The Martin Court stated the following: “In determining the amount of visitation that grandparents should be granted in this situation, some guidelines by this Court may be helpful. As always, the best interest of the child must be the polestar consideration.” Id. (emphasis added). But, under Section 93-16-5, the best interest of the child(ren) must be considered, even if Section 93-16-3(1) is found to apply, since Section 93-16-3(1) states that “either parent of the child’s parent may petition the court . . . and seek visitation rights with the child.” Miss. Code Ann. § 93-16-3(1) (emphasis added). Section 93-16-3(1) only permits the grandparents to seek visitation; it does not entitle them to receive it. [Emphasis in original]

¶16. We have reversed a chancellor’s award of grandparent visitation where “[t]here is no indication from the chancellor’s statement, or anywhere else in the record, that the best interests of [the child] were considered by the chancellor in making her decision.” Morgan v. West, 812 So. 2d 987, 992 (Miss. 2002). This Court observed that the chancellor appeared to have been “more concerned with the best interests” of the grandmother because she found: “from prior testimony and testimony presented today that this grandmother was relied upon during the hard times, and at the present time the parents want to push her aside and treat her as an outsider. It is obvious to the Court they want to break the relationship between the grandchild and the grandmother . . . .” Id.

¶17. The Mississippi Court of Appeals likewise has reversed a chancellor’s award of grandparent visitation, noting that “the Legislature has outlined the steps a grandparent should take to pursue visitation” and that “because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation.” Givens v. Nicholson, 878 So. 2d 1073, 1077 (Miss. Ct. App. 2004).

¶18. We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in the first place. The Smiths contend that the chancellor’s statements at the hearing indicate that she expected the Smiths, in order for them to prevail, to prove that the mental and emotional health of the Martins rendered them incapable of exercising grandparent visitation and that the Martins posed a threat to Cliff and Hank. But our review of the record leads us to conclude that the chancellor carefully analyzed Sections 93-16-3(1) and (2) and scrupulously weighed each Martin factor, thereby performing the correct analytical process and properly applying the right procedural, evidentiary, and statutory principles. This process led her to a fair and just resolution of a difficult and emotional case. The present case greatly differs from those in which this Court has deemed reversal the only appropriate remedy. See Morgan, 812 So. 2d at 992 (This Court reversed because the chancellor had not considered the best interest of the child at all and “the chancellor did not articulate her findings regarding the Martin factors . . . .”) Here, we can identify no manifest error which would warrant reversal, and the record before us is clear that the paramount consideration supporting the chancellor’s decision was the best interest of the children. [Emphasis mine]

This is an important decision that you need to know about when you handle a Tier One grandparent visitation case. From now on, when you represent the grandparents, you must put on proof that visitation is in the child’s best interest through the filter of the Martin v. Coop factors, as well as your case on the amount and frequency. If you fail to address best interest based on Martin v. Coop, you just might get 41(b)’d out of court.

Fixing Visitation

April 10, 2017 § Leave a comment

A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.

Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.

In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:

¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.

¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.

¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).

¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.

¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.

This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.


When Another State has Jurisdiction Over Your Custody and Support Case

March 20, 2017 § 2 Comments

John Hamilton and Kidron Young were divorced from each other in Muskingham County, Ohio. The 2010 judgment granted custody of the parties’ daughter to Young.

Young moved to Mississippi with the child and registered the Ohio divorce judgment with the Lee County Chancery Court per MCA 93-25-81 and 83, as a prelude to making the Ohio judgment enforceable to the same extent as a Mississippi judgment. The July 30, 2013, nunc pro tunc to July 15, 2013, court order accepting the Ohio judgment recited that the court took jurisdiction “of all matters relating to the minor child, including, but not limited to: custody, visitation and support, pursuant to Section 93-25-101.” The order directed that it was to be “spread upon the minutes” of the Ohio court.

Hamilton, meanwhile, had filed an action to modify aspects of custody in the Ohio court. On August 21, 2013, that court entered an order ruling that, because Hamilton still resided in Muskingham County, Ohio, that court retained jurisdiction over the custody issues. The court approved an agreed judgment between the parties.

In November, 2014, the court amended the judgment again on recommendation of the Muskingham County Department of Job and Family Services to reduce Hamilton’s child support.

Young then filed a complaint in Lee County Chancery Court for modification of the September, 2013, and November, 2014, Ohio judgments. Hamilton responded with a timely motion to dismiss based on Ohio’s exercise of continuing, exclusive jurisdiction and his continued residence in that state. Following a hearing the chancellor ruled against Hamilton because: (1) the chancellor had had a conversation with an Ohio judge prior to entry of the July, 2013, order in which the Ohio judge had relinquished jurisdiction; (2) Lee County had granted full faith and credit and assumed jurisdiction based on the conversation; and (3) the Ohio court’s August, 2013, ruling that it continued to have jurisdiction was undated, and, therefore, not proper.

Hamilton filed for an interlocutory appeal. In Hamilton v. Young, decided February 16, 2017, the MSSC reversed and rendered, sending the case for adjudication back to Ohio.

You can read Justice Beam’s decision, which is an excellent exposition of the law of jurisdiction in these cases, for yourself.

I just want to make a few points:

  • Jurisdictional issues in custody and child support cases can be complex and confusing. My advice is to (1) read the statutes, and (2) Go to a source such as Bell on Mississippi Family Law for enlightenment. Although the law is fairly clear, how to apply it to the facts at hand is often anything but clear.
  • To make a long story short, UIFSA provides that, if one of the parents continues to reside in the state that issued a child-support order, that state has continuing, exclusive jurisdiction as long as the parent continues to live there, unless the parties agree to let the state of the other parent assume jurisdiction. In this case, since there was no agreement, Ohio retained jurisdiction, even though the child no longer resided there.
  • As for the UCCJEA, Ohio continued to have jurisdiction to modify its own judgments because Hamilton continued to live there. In order to have jurisdiction in Mississippi, the Ohio court would have had to have determined that Mississippi was the more convenient and proper forum, considering the factors in Ohio Code § 3127.21 (counterpart to MCA 93-25-207). Since that was never done, it was not proper for Mississippi to unilaterally assume jurisdiction.
  • What about that conversation between the two judges alluded to by the chancellor in his ruling? At ¶21, the court points out that there is nothing in the record recording that conversation, and written findings are required by MCA 93-25-101(b). That sort of informal discussion without the proper, written findings is simply not enough. Hint: if the judge doesn’t do it, you need to volunteer to do it for him or her.
  • The mere fact that you record a foreign judgment, even if no contest to the recording is made, is not enough to confer jurisdiction (¶¶22-25).

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