Res Judicata and Subject Matter Jurisdiction

September 23, 2019 § Leave a comment

We all know that subject matter jurisdiction cannot be waived or conferred on a court by consent. The court either has it or does not. And it is often said that it can be raised at any stage of the proceeding, although that is too sweeping a statement, as we will see.

But can the issue of subject matter jurisdiction become res judicata so that, if facts emerge that call it into question later, the issue cannot be raised at that point?

That question was at the center of a recent case before the COA. The procedural history is somewhat convoluted. Faith Abercrombie and her ex, Jonathan, were engaged in lengthy, contentious litigation over their adopted son, Reed. There had been prior judgments adjudicating that Mississippi had jurisdiction under the UCCJEA that had been appealed twice and were affirmed. After the chancellor ruled on March 9, 2017, on various issues, Faith filed a motion to set aside the order and all prior orders touching custody for lack of jurisdiction, claiming that Mississippi was not her son’s home state at any relevant time. When the motion was denied, Faith appealed.

In the meantime, with the appeal pending, Faith’s attorney learned that the adoption had been procured by fraud on the part of both Faith and Jonathan, and disclosed the fact to the court. On December 7, 2018, the chancellor vacated the original judgment of divorce, fined both of them, issued a writ of habeas corpus for the child, and directed the clerk to send copies of its order to the Louisiana adoption court and the district attorney. Faith filed a motion with the COA asking the court to stay execution of the order vacating the divorce, and a panel of the court denied the motion because the December, 2018, order was not the subject of the order appealed from.

In Abercrombie v. Abercrombie, handed down August 20, 2019, the COA affirmed. Judge Jack Wilson wrote for the 9-1 majority:

¶22. Faith argues that the chancery court lacked subject matter jurisdiction to make an “initial child custody determination” under the UCCJEA, Miss. Code Ann. § 93-27-201, because Mississippi was not Reed’s home state. She further argues that all subsequent orders touching on Reed’s custody and visitation are void due to lack of jurisdiction. However, we conclude that Faith is barred from re-litigating this issue, which has been decided in at least three prior final judgments. [Fn 2]

[Fn 2] Although the chancery court set aside the original divorce judgment based on fraud on the court, we conclude that this issue is not moot for at least three reasons. First, even after setting aside the divorce judgment, the chancery court has continued to exercise jurisdiction with respect to Reed’s custody, and Faith continues to contest the court’s jurisdiction to do so. Second, Faith argues that all of the chancery court’s prior judgments and orders touching on Reed’s custody and visitation must be set aside for lack of jurisdiction, including prior orders finding her in contempt and awarding attorney’s fees. However, the chancery court’s December 7, 2018 order only set aside the original divorce judgment, not all of the court’s judgments and orders. Third, if we agreed with Faith that the chancery court lacked jurisdiction, we would also be compelled to reverse and render the award of attorney’s fees that we address below in Part II.

¶23. This Court recently addressed a similar issue in Burgess v. Williamson, 270 So. 3d 1031 (Miss. Ct. App. 2018). In Burgess, the father (Williamson) filed a petition for custody;the mother (Burgess) filed an answer and a counterclaim for custody; the chancery court found that it had jurisdiction and awarded custody to Williamson; and Burgess did not appeal from the final judgment. Id. at 1033, 1037 (¶¶4-6, 18). In a subsequent contempt proceeding, Burgess argued that the chancery court lacked subject matter jurisdiction under the UCCJEA to enter its original judgment determining the child’s custody. However, this Court held that the doctrine of res judicata barred Burgess’s argument. Id. at 1035-36 (¶¶17-18). We explained that “[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. at 1036 (¶17); see also Phillips v. Kelley, 72 So. 3d
1079, 1084 (¶18) (Miss. 2011) (“[S]ubject matter jurisdiction . . . may not be attacked collaterally.”); 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 . . . whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.”).

¶24. The same reasoning applies here. [Fn 3] Indeed, whereas Burgess involved just one prior final judgment, this case had been litigated to a final judgment three times before Faith filed the motion that is the subject of this appeal. In each of those prior judgments, the chancellor found that the chancery court had jurisdiction over the parties and the subject matter, and each time the court’s judgment was affirmed on appeal or was not appealed. First, the April 2015 final judgment of divorce specifically found that the court had jurisdiction over the parties and the subject matter. Faith appealed, but this Court affirmed the final judgment of the chancery court because there was no evidence in the record to support Faith’s assertion that the chancery court lacked jurisdiction. Abercrombie, 193 So. 3d at 683 (¶¶10, 12). Second, in June 2015, Faith filed a motion for relief from judgment in which she attacked the chancery court’s jurisdiction. The chancellor denied Faith’s motion in an August 2016 final judgment that (a) again specifically found that the court had continuing, exclusive jurisdiction and (b) clearly noted that it was a “Final Judgment” for purposes of Mississippi Rule of Civil Procedure 54. Faith did not appeal from that final judgment. Third, in March 2017, the chancellor entered an order on issues of custody, visitation, child support, and attorney’s fees. That order again found that the court had continuing, exclusive jurisdiction. Faith did not appeal that ruling either; instead, she waited more than thirty days and then filed yet another motion attacking the chancery court’s jurisdiction.

3 Contrary to the dissent’s assertions, Burgess is not materially distinguishable. In Burgess, this Court addressed Burgess’s argument “that the chancery court lacked jurisdiction to enter the original . . . final judgment awarding custody and support,” and we held that her claim was “barred by the doctrine of res judicata.” Burgess, 270 So. 3d at 1035 (¶17). We noted that even the issue of subject matter jurisdiction is subject to the doctrine of res judicata. Id. at 1036 (¶17). In doing so, we simply reiterated what the Supreme Court had already held in both Phillips and Shelnut, supra.

¶25. Because this case has been litigated to a final judgment three times previously, the chancery court’s jurisdiction to enter its original judgment and initial determination of custody is res judicata. Phillips, 72 So. 3d at 1084 (¶18); Shelnut, 772 So. 2d at 1045 (¶13); Burgess, 270 So. 3d at 1035-36 (¶¶17-18). Therefore, the chancellor correctly ruled that Faith’s challenge to the court’s jurisdiction is barred. [Fn 4]

[Fn 4] Although the chancellor denied Faith’s motion based on the somewhat related concepts of waiver and judicial estoppel, we may affirm on alternative grounds. See Brocato v. Miss. Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987).

Judge McCarty wrote a sharp dissent that we will look at tomorrow.

In Loco Parentis and the Natural Parent Presumption

August 14, 2019 § 1 Comment

Most all of us who spend time in chancery court are familiar with this melancholy scenario or something similar: mom and dad are using drugs and are living a shiftless existence; they leave their baby with grandparents; then, after a while, the parents — or one of them — get cleaned up and appear suddenly demanding to reclaim the baby. A courtroom fight ensues, with hard feelings and injured relationships.

We know from Davis v. Vaughn, 126 So. 3d 33, 36 (Miss. 2013) that the mere fact that the grandparents have stood in loco parentis is not enough to defeat the claim of the natural parent. In Smith v. Smith, 97 So. 3d 43, 46 (Miss. 2012), the court said, ” … grandparents who stand in loco parentis have no right to the custody of a grandchild, as against a natural parent, unless the natural-parent presumption is first overcome by a showing of abandonment, desertion, detrimental immorality, or unfitness on the part of the natural parent.”

The latest case on point came down from the COA on June 25, 2018, in Seale v. Thompson. It won’t take you long to read Judge McCarty’s succinct six-page opinion that cites only two cases (Davis and Smith) in the body and Albright in a footnote. The decision affirms the chancellor’s ruling that the grandfather had overcome the natural-parent presumption by establishing his son-in-law’s unfitness due to drug abuse. It’s a sad and all-too-familiar scenario for those of us who toil in chancery.

The Price of Making Up a Story

August 12, 2019 § 1 Comment

Should the custodial mother lose custody because she: (1) planted drugs in the father’s truck and had him arrested; and (2) fabricated a drug screen on her minor son that purported to show that the father had given the child drugs?

The chancellor thought so in the modification case between Tamara Barbaro and her ex, Coty Smith, and modified custody. Barbaro, aggrieved, filed an appeal.

In Barbaro v. Smith, handed down July 16, 2019, the COA affirmed. The facts and procedural history alone extend to 18 1/2 pages, so you might want to check them out. Here is how Judge Jack Wilson addressed Barbaro’s argument that the chancellor erred in finding that there had been a material change in circumstances that adversely affected the child:

¶72. A party who requests a modification of child custody “must prove by a preponderance of evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996) (quoting Ash v. Ash, 622 So. 1264, 1265 (Miss. 1993)) (emphasis omitted). The chancellor must  consider the “totality of the circumstances” to determine whether such a change in circumstances has occurred. Id. (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1996)). “[I]f such an adverse change has been shown, the moving party must show by [a preponderance of the] evidence that the best interest of the child requires the change of custody.” Id. (quoting Ash, 622 So. 2d at 1266).

¶73. The chancellor found that Barbaro’s participation in a scheme to plant illegal drugs in Smith’s truck and her tampering with Will’s drug test had resulted in a material change of circumstances. The chancellor also found that Barbaro’s actions had necessitated restrictions on visitation and an abrupt, emergency change in custody, which adversely affected Will—as shown by his being more clingy and insecure. Finally, citing Riley, supra, the chancellor found “that there could have been [additional] adverse harm to [Will] had Barbaro’s actions been successful” because the “father-child relationship would have been severed.”

¶74. Barbaro argues that the chancellor erred because the evidence generally showed that she was a fit parent and even a good mother and because Will had not yet suffered harm. She further argues that even if she did help plant drugs or falsified a drug test, the charges against Smith were ultimately dropped, and the “alleged threat of harm is moot.”

¶75. Barbaro’s argument takes too narrow a view of the concept of a material and adverse change in circumstances. In addressing this issue, the chancellor must consider the “totality of the circumstances.” Riley, 677 So. 2d at 743 (quoting Tucker, 453 So. 2d at 1297). “The concept [of a material change in circumstances that adversely affects the child] is intended to encompass its broadest possible meaning in order to protect children,” including but not limited to changes that adversely affect the “child’s mental and emotional well-being.” Marter v. Marter, 914 So. 2d 743, 748-49 (¶14) (Miss. Ct. App. 2005) (citing Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997)).

¶76. In Riley, the Supreme Court held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley, 677 So. 2d at 744. The Court held that a change in custody may be warranted “even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Id. The Court stated that “[t]he test . . . for custody  modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Id. at 745.

¶77. As we have explained above, there is substantial evidence to support the chancellor’s factual findings that Barbaro participated in a scheme to plant drugs and tampered with Will’s drug test. The chancellor further found that Barbaro’s extreme conduct threatened harm to Will because, if successful, it would have resulted in Smith’s imprisonment and likely severed the father-child relationship. The chancellor concluded that this clear threat of harm to Will was a material and adverse change in circumstances—even though, thankfully, Barbaro was not successful, and the specific threat to Will was averted. We cannot say that the chancellor clearly erred or abused his discretion by applying the Supreme Court’s decision in Riley to the facts of this case. Riley recognizes that a parent’s conduct that threatens harm to a child may rise to the level of a material and adverse change in circumstances even if the child “somehow appears to remain unscarred.” Id.; accord Johnson v. Gray, 859 So. 2d 1006, 1014 (¶39) (Miss. 2003).

¶78. Moreover, there is substantial evidence to support the chancellor’s finding that Will had already been adversely affected by Barbaro’s conduct. Barbaro’s conduct necessitated restrictions on Smith’s visitation and then an abrupt, emergency change of custody and restrictions on Barbaro’s visitation. These events would not have occurred but for Barbaro’s misconduct. Furthermore, witnesses testified, and the chancellor found, that these changes caused Will to be more clingy and insecure.

¶79. In summary, the chancellor did not clearly err or abuse his discretion by applying Riley to the facts of this case or by finding a material change in circumstances that adversely affected Will. Therefore, the chancellor appropriately proceeded to consider whether a change in custody would be in Will’s best interest. See Riley, 677 So. 2d at 743.

That’s some useful authority in ¶¶75 and 76.

Late to the Party

July 30, 2019 § Leave a comment

Terrie Singleton and Orlando Buford had a son together. Orlando filed an action in chancery seeking custody of the child. On the day set for hearing Terrie failed to appear, and, based on the undisputed testimony of Orlando and his mother, he was granted custody.

Neither Terrie nor her attorney appeared because the attorney had calendered the case for the wrong date. Later that day the attorney discovered the error and asked for a continuance, which was denied. The attorney then filed a “motion for reconsideration” even before the judgment was entered, followed by a motion for new trial “or reconsideration” seven days after the judgment was entered. The chancellor denied the relief and Terrie appealed.

In Singleton v. Buford the COA reversed and remanded in a decision rendered June 18, 2019. Judge Jack Wilson’s opinion for the majority devoted considerable attention to whether Terrie’s post-trial motion were for R59 or R60 relief, and then turned its attention to whether the chancellor abused his discretion in not granting rehearing:

¶18. On the facts of this case, we cannot avoid the conclusion that the chancery court abused its discretion by denying Singleton’s motion for reconsideration or a new trial. [Fn omitted] A child custody case involves more than just the competing interests of ordinary civil litigants. As this Court has explained,

It passes without citation that, in child custody cases, the paramount consideration is the best interest of the child. . . . Certainly, a more prudent determination of custody may be made when based upon evidence presented from both parents rather than evidence presented by only one. Where a chancellor has the opportunity to consider the argument of both parents, the facts and circumstances affecting his determination are presumably more fully developed. It follows that a chancellor is able to make a more informed decision, thereby ensuring to a higher degree of certainty that the best interest of the child is met.

Wade v. Wade, 967 So. 2d 682, 684 (¶8) (Miss. Ct. App. 2007).

¶19. Wade’s discussion of this issue is sound, and it applies directly to the facts of this case. There was no persuasive reason not to allow Singleton to present evidence and provide the court with additional information relevant to the custody determination. Allowing her to present evidence would have allowed the chancellor “to make a more informed decision, thereby ensuring a higher degree of certainty that the best interest of the child is met.” Id. And on the other side of the balance, the need for “[f]inality of judgments as a policy reason for denial is not nearly so strong” when a motion is filed within ten days of the judgment. Bruce, 587 So. 2d at 904. On these facts, we hold that the chancery court abused its discretion by relying on the “need to achieve finality in litigation” [Fn 7] and by denying Singleton’s motion.

[Fn 7] As noted above, the chancery court relied on Stringfellow v. Stringfellow, 451 So. 2d 219 (Miss. 1984), for this proposition. Stringfellow was a Rule 60(b) case involving issues of alimony and property division, and its facts bear little resemblance to the instant case. In Stringfellow, the chancery court held a hearing on alimony and property division, both sides presented evidence, and the court entered a final judgment. Id. at 220. The exwife later filed a Rule 60(b) motion in which she alleged that her ex-husband committed a fraud on the court, but the Supreme Court found no evidence of that. Id. at 222. The exwife also alleged that her lawyer failed to conduct adequate discovery, but the Supreme Court held that, without more, attorney incompetence “does not give rise to Rule 60(b)(2) relief.” Id.

¶20. We emphasize that a legal determination that a trial judge committed an abuse of discretion “does not ‘imply bad faith or an intentional wrong on the part of the trial judge.’” Sanford v. Dudley, 196 So. 3d 1106, 1112 (¶19) (Miss. Ct. App. 2016) (brackets omitted) (quoting White v. State, 742 So. 2d 1126, 1136 (¶42) (Miss. 1999)). Rather, “an abuse of discretion is viewed as a strict legal term.” Id. (quoting White, 742 So. 2d at 1136 (¶42)). As our Supreme Court has explained,

[J]udicial discretion is not boundless but is defined as a sound judgment which is not exercised arbitrarily, but with regard to what is right and equitable in circumstances and law, and which is directed by the reasoning conscience of the trial judge to just result. An abuse of discretion means clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing.

Douglas v. Burley, 134 So. 3d 692, 697 (¶13) (Miss. 2012) (citations and quotation marks omitted). On the facts of this child custody case, there simply was no “sound” reason for denying Singleton’s motion. As a result, the denial was arbitrary and an abuse of discretion.

Carlton dissented, joined by Barnes and Greenlee. They would have ruled that Singleton failed to meet her burden of proof for relief under R59.

This is one of those haunting scenarios that recur in lawyers’ nightmares. Sometimes, though, there is more to the story than meets the eye on appeal. If the lawyer were habitually late or absent, the judge may have drawn a line. If so, the better practice would have been to include that in the order denying the motion. I’m not saying that was a factor in this particular case, but if it were the judge’s action is more understandable.

Denial of Visitation and Modification of Custody

July 24, 2019 § Leave a comment

The chancellor found Shanna Hayes in contempt for denying her ex-husband, Jeremy Hayes, visitation with their daughter. The judge also found that the denial was a material change that had an adverse effect on the child, and he modified custody, awarding it to Jeremy. Shanna appealed, arguing among other grounds that the chancellor erred in modifying custody.

In the case of Hayes v. Hayes, the COA affirmed on May 7, 2019. Judge Westbrooks wrote the opinion for the court:

¶36. Shanna asserts that the trial court’s court [sic] modification of custody was against the overwhelming weight of the evidence and insufficient to support a finding that there was a material change in circumstances adversely affecting K.H., warranting custody modification.

¶37. Shanna relies on Ash v. Ash, 622 So. 2d 1264 (Miss. 1993), in support of her argument. In Ash, the Mississippi Supreme court held that “a mother’s continual refusal to allow a father visitation did not constitute a material change of circumstances justifying a change in custody.” Id. at 1266. The Court found that “[t]he better rule would be for a chancellor to enforce contempt orders through incarceration, when necessary, to insure compliance with custody provisions rather than resorting to a change of custody.” Id.; see also Blevins v. Bardwell, 784 So. 2d 166, 179 (¶49) (Miss. 2001). “The ‘totality of the circumstances’ must be considered.” Ash, 622 So. 2d at 1266.

¶38. But in Ash, the supreme court determined that the chancery court found, by clear and convincing evidence, “that the mother’s interference with the father’s visitation ha[d] been a material change of circumstances that c[ould not] be corrected by contempt; that it [wa]s and d[id] adversely affect the child and that it [wa]s in the child’s best interest that he live with his father.” Ash, 622 So. 2d at 1267. Essentially, the supreme court upheld the custody modification.

¶39. Further, the Mississippi Supreme Court has held that “[p]arental behavior that poses a clear danger to [a] child’s mental or emotional health can justify a custody change.” McDonald v. McDonald, 39 So. 3d 868, 880 (¶37) (Miss. 2010) (citing Morrow v. Morrow, 591 So. 2d 829, 833 (Miss. 1991)). Furthermore, “[i]n determining whether a material change of circumstances has occurred, a chancellor should look at the overall circumstances in which a child lives.” Id. (internal quotation marks omitted).

¶40. Here, the trial court found by clear and convincing evidence that Shanna exhibited an alarming pattern of denying Jeremy’s visitation of K.H. without just cause. The trial court noted that Shanna had also filed multiple misdemeanor criminal charges against Jeremy, filed a request for a domestic-violence order, and filed two felony charges against Jeremy. The GAL, after conducting a thorough Albright analysis, found that there had been a material change in circumstances in Shanna’s home that adversely affected K.H. The GAL noted the inappropriate and disturbing photos that Shanna sent of K.H., claiming that she had been abused. The GAL also mentioned that Shanna initiated several DHS claims against Jeremy alleging that he sexually assaulted K.H. These claims, however, were later proven to be unsubstantiated. As a result, the GAL recommended that physical custody be modified to Jeremy, noting that Shanna should enjoy standard visitation with K.H. and the parties continue to share joint legal custody. It appears that the trial court considered the totality of the circumstances affecting K.H. since Shanna and Jeremy’s divorce in 2015. The trial court ultimately found the following:

There has been a material change in the circumstances which adversely affects the minor child, [K.H.] Shanna has made multiple false accusations that [K.H.] has been sexually abused by Jeremy, causing [K.H.] to undergo multiple unnecessary physical examinations, Shanna has wil[l]fully refused Jeremy visitation with [K.H.] and has done everything she could do to alienate [K.H.] from Jeremy. It is [in] the best interest of [K.H.] that Jeremy be given her primary physical custody with Shanna to have this Court’s standard visitation rights.

¶41. After review of the record, we cannot say that the trial court’s decision was manifestly wrong in finding Shanna in criminal and civil contempt. We also do not find error in the trial court’s decision to award Jeremy attorney’s fees. Accordingly, we find that there was substantial evidence to support the trial court’s findings of fact and conclusions of law and affirm the custody modification.

Ash is the go-to case when arguing that interference with visitation should result in a change of custody. But remember that you still have to show an adverse effect and best interest, and that contempt alone will not correct the problem.

No Such Thing as Primary Custody

July 22, 2019 § 2 Comments

In footnote one to the COA’s decision in Kaiser v. Kaiser, decided June 11, 2019, Judge Corey Wilson offers the following:

As this Court has noted, “there is actually no provision under the statute for ‘primary’ physical custody.” Shows v. Cross, 238 So. 3d 1224, 1227 n.2 (Miss. Ct. App. 2018) (quoting Rush v. Rush, 932 So. 2d 794, 796 (¶9) (Miss. 2006) (discussing Miss. Code Ann. § 93-5-24 (Rev. 2004)). But lawyers and judges commonly use the phrase. “As in this case, the phrase ‘primary physical custody’ is often meant to describe physical custody in one parent, with the other having specified visitation rights.” Id.

The fact that there is no such thing as “primary” physical custody is a concept about which I have posted before. A post with links to previous posts is at this link.

Use of the term is not objectionable merely because there is no provision in law for it; as I pointed out previously, it can work considerable mischief, particularly where one or both of the parties believe that the term “primary” confers some heightened status, only to learn to their chagrin that it adds nothing. (Chagrin is a technical legal term meaning “pissed off at the lawyers”).

More Time for Daddy?

July 1, 2019 § 3 Comments

Bryan Avants and Shawn Hamilton had a child together. After they separated, Shawn, the mother, filed a paternity action seeking custody and other relief. The court entered a temporary order on September 12, 2016, granting the parents joint legal and physical custody, alternating week by week. Following a final hearing, the judge on July 12, 2017, adjudicated Bryan to be the child’s father, awarded joint legal custody, and granted Shawn physical custody. Bryan appealed.

In Avants v. Hamilton, decided May 7, 2019, the COA affirmed. The court’s opinion is an unremarkable Albright analysis. What I found interesting, though, is Judge Tindell’s specially concurring opinion:

¶27. Because Avants and Hamilton had joint legal and physical custody of Jessica with seemingly no problems for nearly a year, and since the Albright factors were seemingly neutral between the parties, [Fn 4] I believe a presumption arose that joint physical custody was in Jessica’s best interest. While I would prefer to reverse the chancellor’s award of primary physical custody to Hamilton and to award joint physical custody to both parents, I recognize that under current Mississippi law there is no standard by which such a presumption may arise in contested cases. Consequently, I feel compelled to write this special concurrence.

¶28. In today’s world, we often hear the term “dead-beat dad.” And while no preference exists as to which parent receives primary physical custody, in most cases primary physical custody goes to the mother. A 2018 national study analyzed the share of parenting time fathers receive in custody arrangements by state. How Much Custody Time Does Dad Get in Your State?, https://www.custodyxchange.com/maps/dads-custody-time-2018.php (last visited May 7, 2019). The study “reflect[ed] cases in which both parents want[ed] custody and no extenuating circumstances—such as criminal convictions or long-distance separation”—existed. Id. Mississippi ranked forty-eighth out of all states, with fathers in Mississippi receiving 23% of the custodial time with their children. Id. “Maybe it’s time to let the old ways die.” [Fn omitted]

[Fn 4] I acknowledge that the chancellor found the Albright factors slightly favored Hamilton. We must keep in mind, however, that the Albright analysis is concerned with choosing a favorite between the two options presented rather than with finding complete neutrality between those options.

In this case, we have a father (Avants) who not only voluntarily agreed to pay child support even though he had joint physical custody, but he also quit his higher paying job as an oilfield worker to work a local job to spend as much time as possible with his daughter.

¶29. A number of states aim to give children equal time with both parents when the parents live in the same geographic area and no other extenuating circumstances exist (such as a history of domestic violence or criminality). When the Albright factors are neutral between both parents, both parents live in the same area, and there are no extenuating circumstances, a presumption that joint physical custody is in the child’s best interest should arise. And when that presumption is not overcome, joint physical custody should be awarded. Mississippi Code Annotated section 93-5-24 (Rev. 2018) provides for an award of joint physical custody. Perhaps the time has come, however, for our appellate courts to set forth the specific factors under which the presumption in favor of joint physical custody arises in contested cases. For these reasons, I specially concur with the majority’s opinion.

Food for thought, indeed. I certainly do agree that the courts should spell out some criteria. What do you think?

 

The Right to a Visitation Schedule

March 26, 2019 § Leave a comment

In the divorce between Tracy and Brent Williams, the chancellor granted custody of their 17-year-old son to Brent, and declined to set a visitation schedule. Tracy appealed, complaining that the chancellor was in error in not setting a specific schedule.

In Williams v. Williams, decided January 17, 2019, the MSSC affirmed. Justice Beam wrote for a unanimous court:

¶6. “The chancellor has broad discretion when determining appropriate visitation and the limitations thereon.” Harrington v. Harrington, 648 So. 2d 543, 545 (Miss. 1994) (citing White v. Thompson, 569 So. 2d 1181 (Miss. 1990)). “When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.” Id. At the trial of this matter, the chancellor ruled,

Mom can have visitation with the child to be agreed upon between Mom and the child. The Dad is ordered not to interfere with the visitation, but, as I stated earlier, Mom’s actions and her continued actions and interference with this child have caused this alienation. It is not Dad’s fault, and so, I am not placing a burden – I’m not giving you a specific visitation schedule because I’m not placing a burden on Dad to make this child visit.

¶7. Tracy argues that the chancellor erred by allowing a child to set visitation at his discretion. While the chancellor acknowledged that her ruling on visitation was different from her normal practice, she found that Kendall’s desires and wishes should be taken into consideration. Trial revealed that Tracy had removed Kendall’s possessions, furniture, and rifle from the marital home, as well as his money jug containing $800. The court found that Kendall had viewed his mother’s actions as a personal affront. Tracy refused to provide Kendall the necessary documentation to complete driver’s education, to receive a passport so he could travel outside the United States with the USA baseball team, or to transfer from
Magnolia Heights School to a DeSoto County school for better baseball opportunities. The chancellor stated, “Quite honestly, I think she’s done some things that I think indicate that she’s much more interested in getting her own way than in thinking about what’s in the best interest of her child.”

¶8. Tracy correctly stated that this Court has made it clear that the objective of visitation is that “the non-custodial parent . . . and child should have as close and loving a relationship as possible, despite the fact that they may not live in the same house.” Dunn v. Dunn, 609
So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83 (Miss. 1999)). However, this Court has also found that, while a non-custodial parent is presumptively entitled to visitation as stated in Griffin v. Griffin, that presumption can be overcome when “substantial evidence” justifies doing so. Griffin v. Griffin, 237 So. 3d 743, 747 (Miss. 2018) (quoting Cox v. Moulds, 490 So. 2d 866, 870 (Miss. 1986)). Cf. Newsom v. Newsom, 557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).

¶9. In Griffin, the chancellor denied a mother visitation with her four daughters because visitation was not in the children’s best interests. Griffin, 237 So. 3d at 745-46. The mother was incarcerated in the Washington County Correctional Facility in Greenville, Mississippi, four hours away from where the daughters lived. Id. In order to exercise visitation, the daughters would have to be searched and exposed to the prison environment. Id. The chancery court held that the presumption of visitation had been overcome. Id. at 746. “The chancellor considered Nolana’s circumstances and deemed phone visitation, for now, and possible future in-person visitation at Chad’s discretion was the best possible balance
between recognizing Nolana’s constitutionally protected rights, encouraging the parent-child relationships, and protecting the girls’ best interest.” Id. at 749 (citing Harrington, 648 So. 2d at 545). On appeal, this Court affirmed the chancellor’s ruling.

¶10. Although the facts of this case differ, the principle that a presumption of visitation can be overcome with sufficient evidence remains the same. Kendall is eighteen years old and is living in Florida to pursue his baseball career. Although the chancellor had only become aware of Kendall’s new schooling in Florida just before her ruling, the knowledge did not change her mind about visitation. She stated,

And there is a huge big rift to heal. And I know forcing him to come to your house every other weekend – which you can’t do because he’s living in Florida, anyway – is not going to fix that situation. And I want y’all to figure out some way – you know, as I said, maybe this time and distance will help fix it.

¶11. Based on the facts presented at trial, this Court finds that the chancellor did not err in declining to set a visitation schedule under these unique circumstances. Given the broad deference afforded chancellors in visitation matters, we affirm the chancellor’s ruling. Tracy and Brent can travel to Florida any time to support and to visit Kendall while he pursues his baseball dreams.

You can take away that the default setting is for there to be a visitation schedule that defines the terms of visitation. You can overcome that if you put on enough proof that a visitation schedule would not be in the child’s best interest.

A post on the Griffin case can be found at this link.

That Which Must be Pled

February 20, 2019 § Leave a comment

Ever since the dawn of the MRCP, Mississippi has been at least nominally a notice pleading state. As R8 describes it, all that is required is a “short and plain statement of the claim showing that the pleader is entitled to relief” and a demand stating the relief requested. Contrast that with the arcane rules that demanded prolix and convoluted pleadings.

So, the result is that pleading for plaintiffs is much more streamlined since the MRCP, right? Well, yes, compared with the situation pre-rules. BUT there are requirements of which one must be aware lest one lapse into error. Here are the Advisory Committee Notes to R8, which succinctly state what is required:

Rule 8 allows claims and defenses to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel. Under Rule 8(a), “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief is sought.” See DynaSteel Corp. v. Aztec Industries, Inc., 611 So. 2d 977 (Miss. 1992). A plaintiff must set forth direct or inferential fact allegations concerning all elements of a claim. See Penn. Nat’l Gaming, Inc. v. Ratliff, 954 So. 2d 427, 432 (Miss. 2005). Motions or pleadings seeking modification of child custody must include an allegation that a material change has occurred which adversely affects the child or children. It is not sufficient to allege that an adverse change will occur if the modification is not granted. See, e.g., McMurry v. Sadler, 846 So. 2d. 240, 244 (Miss. Ct. App. 2002). In cases involving the joinder of multiple plaintiffs, the complaint must contain the allegations identifying by name the defendant or defendants against whom each plaintiff asserts a claim, the alleged harm caused by specific defendants as to each plaintiff, and the location at which and time period during which the harm was caused. See 3M Co. v. Glass, 917 So. 2d 90, 92 (Miss. 2005); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495 (Miss. 2004). Failure to provide this “core information” is a violation of Rules 8 and 11. Plaintiffs in such cases must also plead sufficient facts to support joinder. Glass, 917 So. 2d at 93; Mangialardi, 889 So. 2d at 495. [My emphasis]

Often the inadequacy of the pleading is brought up via a R12(b)(6) motion which, when granted, allows leave to amend and correct the deficiency. In McMurry, supra, however, the defendant sprang the trap at trial, and when the plaintiff failed to move to amend the judge dismissed the pleading.

McMurry requires that all three elements of modification of custody be pled (i.e., material change, adverse effect, best interest). But there are custody modifications that involve detrimental or dangerous situation for the child a la Riley v. Doerner, 677 So.2d 740, 744 (Miss. 1996)with no adverse effect. In those cases you should spell out in your petition or complaint that there has been a material change creating a detrimental or dangerous situation for the child, and it is in the child’s best interest to change custody.

Supervised Visitation or Not

February 13, 2019 § Leave a comment

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

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

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

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

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

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

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

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

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