Child Custody | The Better Chancery Practice Blog

Trifling with Visitation is no Trifling Matter

February 2, 2015 § Leave a comment

Some of the most bothersome and galling matters with which family lawyers have to contend are problems with visitation. They can include outright denial of visitation, conflicts during exchanges, interference during visitation, refusal to return a child, and every other atrocity one can conjure up. Those calls on the weekend and in the evenings can wear one to a frazzle.

In the case of Ash v. Ash, 622 So.2d 1264 (Miss. 1993), the MSSC affirmed a chancellor’s modification of custody based on a mother’s obstinate refusal to allow visitation and non-compliance with court orders, which the court described as involving the attention of “two prior chancellors and six attorneys” in more than ten court proceedings before the modification judgment.

In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.”

Following the divorce, Kristy filed five times for modification and/or contempt, alleging denial of and interference with visitation in most of the actions. Travis filed actions in California and Hawaii for TRO’s, both of which were vacated. The chancellor in Mississippi denied Travis’s efforts to dismiss for lack of jurisdiction or to remove the case from Mississippi based on forum non conveniens.

In her pleadings, Kristy charged that Travis had sexually abused Jane, so the chancellor appointed a GAL to investigate. The GAL’s report was unfavorable to Travis, and, on Kristy’s motion, the chancellor entered an emergency temporary order changing custody to Kristy until the final hearing.

The chancellor awarded Kristy custody and other relief, and Travis appealed.

On the issue of material change, Judge Griffis of the COA said this:

¶27. In Ash, the chancellor issued various visitation-related restraining orders, emergency orders, and modification orders over the course of five years. Id. at 1265. The non-custodial parent then filed another motion to change custody and find the custodial parent in contempt. Id. The chancellor granted the motion, finding a material change in circumstances had occurred. Id. In affirming the chancellor’s ruling, the supreme court found that the visitation dispute was tackled by “two prior chancellors and six attorneys, [and] more than ten court proceedings,” none of which resolved the issue. Id. at 1266.

¶28. The facts in this action are comparable to Ash. As in Ash, the chancellor here contemplated liberal visitation, which was deliberately denied. See id. Also, there was an “onslaught of pleadings . . . stemming from visitation problems,” none of which were resolved by the chancellor’s orders. Id. at 1265.

¶29. Travis admittedly ignored Kristy’s attempts to contact him and would not allow Jane to take Kristy’s phone calls. The chancellor encouraged communication between Kristy and Jane through email and mail, but Travis disabled Jane’s email account that Kristy had created for her and there was testimony that Jane did not receive cards mailed to her. We cannot find the chancellor erred in finding the repeated failure to comply with visitation order was a material change in circumstances, for which contempt orders would not resolve.

¶30. Travis argues that the lack of visitation was not a “change in circumstances,” but rather a foreseeable, continued animosity between the parties that existed from the time of divorce. We cannot find that the chancellor anticipated, at the time of the divorce decree, that Travis would continuously refuse to comply with the visitation orders. Also, we note that no a single act of denying visitation amounted to a material change in circumstances. Rather, as in Ellis [v. Ellis, 952 So.2d 982 (Miss App 2006)], it was the “continued violation of court orders pertaining to visitation and continued hindering of the visitation time” that amounted to a material change in circumstances. Ellis, 952 So. 2d at 990 (¶17) (emphasis in original). Given the severity of the denial of visitation, we cannot find the chancellor abused his discretion in finding the denial of visitation was a material change in circumstances.

So the key is the “severity of the denial of visitation” which, from the cases, must be long-standing and extreme, and most likely involve repeated violations of court orders.

You should note that the proof in Strait included testimony of a mental health professional that the father’s conduct did have an adverse effect on the child. The opinion did not say so, but it apparently is not enough merely to show alienation and interference with contact; rather, the proof must show that the alienating behavior did have an adverse effect on the child, and the testimony of a mental health professional is probably the best means of doing that. In Strait, Travis’s behavior was so adverse that the chancellor characterized his custodial environment as “poisonous.”

I agree that most visitation disputes are more vexing than dangerous, and more paltry than extreme. Yet, if more parents understood that interference with visitation could lead to modification of custody, I believe it would result in far fewer visitation disputes in court.

The Role of the GAL in a Neglect and Abuse Case

January 21, 2015 § 1 Comment

Margaret Jones and David Brown had a daughter out of a non-marital relationship. They lived together for a time, and in 2012, David took the child, Christina, and left with her. A child-custody battle ensued in chancery court, with both parties charging abuse and neglect in their pleadings.

The chancellor appointed a guardian ad litem (GAL).

Margaret was not happy with the judge’s ruling, and she appealed. One issue she raised was the role assigned for the GAL by the chancellor. The COA affirmed in the case of Jones v. Brown, handed down January 6, 2015. Judge Fair, for the court, explained:

¶9. Because there were allegations of neglect, the chancellor appointed a guardian ad litem for Christina. The chancellor chose a law student from Mississippi College School of Law, Thujee Lhendup, who was admitted to limited practice under the supervision of Shirley Kennedy, a professor who is also a licensed attorney. Lhendup was assigned to investigate the allegations and make recommendations as to Christina’s best interest, as an arm of the court. The chancellor was very complimentary of Lhendup’s performance, describing him as exceptionally energetic and thorough. The record bears that out.

¶10. Margaret takes issue not with the guardian ad litem’s execution of his duties, but with the nature of his assignment. She contends that the chancellor was required to appoint a guardian ad litem to act as an attorney for Christina, not one who would investigate and make recommendations as an arm of the court. Margaret’s argument is based on the Mississippi Supreme Court’s decision in S.G. v. D.C., 13 So. 3d 269, 280-81 (¶47) (Miss. 2009), where the court discussed the importance of clearly defining the role of the guardian ad litem:

In Mississippi jurisprudence, the role of a guardian ad litem historically has not been limited to a particular set of responsibilities. In some cases, a guardian ad litem is appointed as counsel for minor children or incompetents, in which case an attorney-client relationship exists and all the rights and responsibilities of such relationship arise. In others, a guardian ad litem may serve as an arm of the court – to investigate, find facts, and make an independent report to the court. The guardian ad litem may serve in a very limited purpose if the court finds such service necessary in the interest of justice. Furthermore, the guardian ad litem’s role at trial may vary depending on the needs of the particular case. The guardian ad litem may, in some cases, participate in the trial by examining witnesses. In some cases, the guardian ad litem may be called to testify, and in others, the role may be more limited.

Margaret latches onto language from another case, In re R.D., 658 So. 2d 1378, 1384 (Miss. 1995), where the supreme court held minors had a due process right to “representation by” a guardian ad litem when abuse or neglect was alleged. See also Miss. Code Ann. § 93-5-23 (Rev. 2013); Miss. Code Ann. § 43-21-121 (Rev. 2009). From this Margaret argues that the chancery court was required to appoint a guardian ad litem to represent Christina as her attorney and not as an arm of the court.

¶11. This argument is erroneous and relies on cherry picking language from In re R.D. In fact, the court there repeatedly stated that (in the context of a termination of parental rights proceeding where abuse or neglect is at issue) the guardian ad litem had a duty to represent the child’s best interest. See id. at 1382-83, 1386. The court cited with approval cases outlining the role of a guardian ad litem as an arm of the court. See id. at 1383 (citing Short v. Short, 730 F. Supp. 1037, 1038 (D. Colo. 1990); Shainwald v. Shainwald, 395 S.E.2d 441, 444 (S.C. Ct. App. 1990)).

¶12. Moreover, the supreme court in S.G. v. D.C. made a point of emphasizing that prior dictates of that court had been confusing or ambiguous on the proper role of a guardian ad litem. The court urged chancellors to make it clear what was expected:

We find no fault with any of these diverse duties and responsibilities a chancellor might assign to a guardian ad litem in a particular case. However, we encourage chancellors to set forth clearly the reasons an appointment has been made and the role the guardian ad litem is expected to play in the proceedings. To avoid potential problems regarding confidential communications and other expectations, chancellors should make clear: (1) the relationship between the guardian ad litem and the children, incompetent, or other ward of the court; (2) the role the guardian ad litem will play in the trial; and (3) the expectations the trial judge has for the guardian ad litem. The role a chancellor expects a guardian ad litem to play should be set forth clearly in the written order of appointment. Doing so will make the guardian ad litem’s relationships and general responsibilities clear to each of the parties (including those wards old enough to comprehend), the attorneys, the court, and to the guardian ad litem.

S.G., 13 So. 3d at 281 (¶48). The Court also acknowledged that the chancellor must have discretion and flexibility in defining the guardian’s duties on a case-by-case basis:

Setting out such expectations should not permanently bind the court should needs change as the litigation progresses. Judges may revise these expectation by order as the need arises, so long as the guardian ad litem is not required to breach client confidences or other ethical duties by the change in responsibilities. Chancellors should be free to assign duties to a guardian ad litem as the needs of a particular case dictate, and the role of the guardian ad litem should at all times be clear.

Id. at (¶49).

¶13. Furthermore, in distinguishing between the two roles of a guardian ad litem, the S.G. court cited a case involving allegations of abuse or neglect as its example of an instance where the guardian ad litem should serve the role of investigator and arm of the court. See id. at (¶43) (citing S.N.C. v. J.R.D. Jr., 755 So. 2d 1077, 1082 (¶¶15-17) (Miss. 2000)). The example where the guardian ad litem should act more strictly as the child’s fiduciary or attorney was a will contest in which the child was a beneficiary. Id. (citing In re Prine’s Estate, 208 So. 2d 187, 192 (Miss. 1968)). The court in S.G. also discussed potential concerns about confidentiality, but that was clearly not an issue in this case, as Christina was not old enough to meaningfully communicate with someone she believed was her attorney. See id. at 282 (¶¶53-54).

¶14. The record reflects that the guardian ad litem in this case was properly directed to act as an arm of the court in representing the best interest of the child, and he executed that duty faithfully. This issue is without merit.

A few take-aways:

If you’re accepting appointment as a GAL, make sure the chancellor has clearly defined your role. Once you have a clear understanding, consider offering to draft the order yourself. Here is a link to a draft you might use or be able to adapt. I most often use the GAL as an arm of the court to investigate and make proposed findings; after all, the parents are the combatants, and I can’t be sure they are putting the best interest of the child first. But that’s not the only role a GAL might have. I have employed GAL’s to oversee visitation scheduling and to direct random drug screenings. That kind of flexibility in assigning a role is what the COA described in its holding. The delineation of duties in the order must be clear.
Just because the GAL makes findings or proposed findings, that does not make them automatically admissible in evidence. As I have said here before, you should “Call every witness identified in the GAL report to establish the substantive facts that support the GAL’s recommendations, and, of course any other witnesses you feel that you need to call.”
In my opinion, it’s a rare case that is appropriate for appointment of the GAL in the role of attorney, and should be limited to cases where appointment of an attorney is needed to protect the ward’s best interest. The Prine’s Estate case cited by the COA is a good example. I prefer the GAL to be independent, and to look behind the facts claimed by the parties.
Another important point if you are GAL is to let your chancellor know about things affecting the course of the case. For instance, if you need more authority, or if your role changes, or if a party is obstructing, file something with the court. If it affects the rights of the parties, set it for hearing and let the judge decide. I always order the parties to pay a deposit toward the GAL’s fees; if either or both fail to do so, or if they do not cooperate, file a pleading asking the court to address the situation.

Is TPR Now Extinct?

January 8, 2015 § 11 Comments

Termination of parental rights (TPR) is a statutory creature embodied in MCA 93-15-103 and the surrounding code sections.

I think it’s fair to say that most practitioners and trial court judges focus on the statutory grounds, and, if they are supported by the proof, proceed to termination.

That’s what the chancellor did in the case of Chism v. Bright, which was affirmed by the COA on May 21, 2013. The chancellor found that the Jimmy Ray Chism’s drug and alcohol addictions, abuse of drugs in the presence of the child, instability, and brushes with the law were enough to warrant termination of his parental rights with respect to his son. Jimmy petitioned for cert, which was granted by the MSSC.

In its December 11, 2014, opinion reversing the COA, the high court pointed out that there is much more to TPR than merely proving that one or more of the statutory grounds exist. Justice Lamar, for a unanimous court, laid it out this way:

¶13. Parents have a “fundamental liberty interest . . . in the care, custody, and management of their child” that cannot be taken away without clear and convincing evidence of the required statutory grounds for termination of parental rights. Santosky v. Kramer, 455 U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also J. Jackson and M. Miller, Encyclopedia of Mississippi Law § 78:39 (2002) (citing Miss. Code Ann. § 93-15-103(3)). State statutes providing for the termination of parental rights are subject to strict scrutiny and “[c]ourts may not add to the enumerated grounds.” Deborah H. Bell, Bell on Mississippi Family Law 409 (2005) (citing Gunter v. Gray, 876 So. 2d 315 (Miss. 2004)); see also Rias v. Henderson, 342 So. 2d 737, 739 (Miss. 1977) (holding that statutes affecting fundamental constitutional rights are subject to strict scrutiny).

¶14. This Court has stated that “[b]ecause parental rights are so important,” the “circumstances under which [those rights] can be terminated by the government” are “sharply limit[ed.]” Gunter v. Gray, 876 So. 2d at 317. Title 93, Chapter 15 of the Mississippi Code sets out the requirements and procedure for the termination of parental rights. See Miss. Code Ann. §§ 93-15-101 through 93-15-111 (Rev. 2013).

¶15. As mentioned above, the chancellor found that Jim’s parental rights should be terminated because he exhibited “ongoing behavior which would make it impossible to return the minor child to his care and custody because he has a diagnosable condition, specifically alcohol and drug addiction, unlikely to change within a reasonable time which makes him unable to assume minimally, acceptable care of the child . . . .” But neither the chancellor nor the Court of Appeals addressed subsection (1) of Section 93-15-103, which sets out three prerequisites that must be met before the court may invoke any specific ground for termination. Section 93-15-103(1) states:

(1) When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

Miss. Code Ann. § 93-15-103(1) (Rev. 2013) (emphasis added). See also In Re Dissolution of Marriage of Leverock and Hamby, 23 So. 3d 424, 428 (Miss. 2009). This Court previously has categorized the three prerequisites in subsection (1) as follows: (1) the child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time or the parent is unable or unwilling to care for the child; (2) relatives are not appropriate or are unavailable; and (3) adoption is in the best interest of the child. Leverock, 23 So. 3d at 428 (emphasis added).

¶16. Here, it is undisputed that Johnny was not “removed from the home of his natural parents.” And we also do not find from this record that Jim is “unable or unwilling” to care for Johnny. First, the chancellor’s finding that Jim was “unable to assume minimally acceptable care” [Fn 6] of Johnny is belied by the fact that he also allowed Jim to have contact with Johnny after he is sober for six months. Neither Abby nor anyone else objects to this. Simply because Jim might not be the best choice to be Johnny’s full-time custodial parent certainly does not mean that he is “unable to care” for Johnny. This Court “has never allowed termination of parental rights only because others may be better parents.” W.A.S., 949 So. 2d at 35. Second, it is undisputed that Jim wants to be a part of Johnny’s life and that they have a very loving relationship, which evidences that Jim is not unwilling to care for him.

[Fn 6] To be clear, the chancellor was analyzing under Section 93-15-103(3), instead of under Section 93-15-103(1).

¶17. Moreover, we affirm the overarching premise that termination of parental rights is a last resort. This intent is evidenced by the Legislature in Section 93-15-103(4), which states:

Legal custody and guardianship by persons other than the parent as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

Miss. Code Ann. § 93-15-103(4) (Rev. 2013) (emphasis added). In short, Abby has not proven the statutory prerequisites found in Section 93-15-103(1) that must be met. As such, we decline to address the specific ground for termination analyzed by the chancellor, or whether termination is in Johnny’s best interest. For these reasons, we reverse the termination order and remand this case to the Union County Chancery Court for further proceedings consistent with this opinion.

So there you have it. If you have pending or contemplate filing a TPR action, you need to backtrack and see whether your case satisfies the three prerequisites. Without all three, you fail.

A few thoughts:

” … removed from the home of his natural parents …” by whom? I would presume DHS, which makes this section inapplicable in most chancery cases. If the section is not limited to DHS removal, did the chancellor not in effect order that the child be removed from Jimmy’s home? Or does the strict construction of the statute require that the child be removed from the home of both parents before it can be invoked? That’s what it says.
Our child custody and support statutes are littered with amendments made to accommodate DHS practices, with resulting confusion. I am not familiar with the legislative history of the TPR statutes, but that could be the source of the convoluted language of section 103. Or, it could be that the legislature actually intended to make TPR well-nigh impossible. If that is what they intended, then the statute is well-crafted.
This holding was foreshadowed to some extent by the COA’s 2012 decision in LePori v. Welch, about which I posted previously, in which Judge Maxwell pointed out that there is no cause of action for TPR unless an adoption is contemplated.
I think this effectively puts an end to most TPR cases in chancery court, save for those in which TPR is sought as a precursor to adoption. If you see it differently, I would like you to comment with some persuasive argument to the contrary.

A Remand Without a New Trial

December 15, 2014 § Leave a comment

I posted here a few months ago that on remand the parties are restored to the position that they occupied before entry of the reversed judgment. A new trial is the norm, and even amended pleadings that change the scope of the proceedings from the original action are allowed.

That post also pointed out that, by agreement of the parties, the court may render a judgment on remand using the original record. The latest example of that is the case of Wilson v. Davis, a COA decision, handed down November 18, 2014.

In this case, the mother of a minor child had died, and the maternal grandmother refused to surrender the child to the father. The father brought an action for custody, which the chancellor treated as a modification, and not as an original action. The chancellor found for the grandmother, and the father appealed. The COA reversed and remanded, concluding that it was error for the trial court to try the case by the standards of a modification rather than as an original action.

The second time around, the chancellor used the record from the original trial to render a decision applying the proper standard for adjudication of custody. That’s what Judge Roberts tells us in his dissent:

¶30. Upon remand, the chancery court did not hold a new hearing or take new evidence in the matter. It modified its original opinion and found that the natural-parent presumption had been overcome because [the father] had abandoned [the child] and he had engaged in immoral conduct; it then applied an Albright analysis; and it found that [the maternal grandmother] should retain custody of [the child] because it was in [the child’s] best interest.

Nobody raised the issue whether this procedure was proper in arriving at the trial court’s adjudication. Neither the majority nor the dissent raised the question on its own. It does not appear from the opinion that either party asserted the issue in a R59 motion for a new trial, which would have been the most efficacious way to assert it, in my opinion.

How to proceed on remand is something to which you should devote some thought before you have to deal with it. The outcome for the father in this case might have been dramatically different if he had used his knowledge of what the chancellor viewed as the weak points in his case, and reshaped his witness list and evidence to present a case that overcame them. Instead, he allowed the chancellor to adjudicate the case on the record that she had already used to find against him.

Splitting the Baby

December 10, 2014 § 1 Comment

It is fundamental that a judgment rendered by a court without subject matter jurisdiction is void. Not voidable, but void ab initio. Therefore, it is critical for a court to ensure that it has subject matter jurisdiction before it proceeds to final judgment.

The MSSC confronted this principle in the case of Bronk v. Hobson, handed down December 4, 2014, in which the court was called upon to decide whether, in 1999, the County Court had jurisdiction to award custody in a paternity action. In a 5-4 decision the court ruled that county courts did not have such jurisdiction in 1999, and that, therefore, the 1999 judgment awarding custody was void.

Before going further, I have to note that the MSSC’s ruling directed that the case be transferred to Chancery Court. Since this is a Lauderdale County case, the court’s holding might result in the case being assigned to me, so I am limiting my comments to the jurisdictional questions in child custody cases in general, and am making no comment on the merits of the custody case between these parties in particular.

Chancery court jurisdiction is created by the Mississippi Constitution, which vests “full jurisdiction” over minor’s business in chancery courts. County court jurisdiction is created by MCA 9-9-21, which vests the county courts with ” … jurisdiction concurrent with … chancery courts in all matters of … equity wherein the amount of value of the thing in controversy is $200,000 or less … ”

The majority in Bronk decided that county court jurisdiction derived from 9-9-21 rests on matters only for which the value can be quantified in terms of dollars. The value of child custody matters can not be determined monetarily, so county court lacks jurisdiction.

The dissent took the opposite tack, arguing that since the value of child custody is not quantifiable, it is zero, which is less than $200,000, and, therefore, is within county court jurisdiction.

As between the two radically different approaches, the majority actually represents the reality of how county courts have traditionally exercised jurisdiction in equity matters. That’s because there are two sources of county court jurisdiction: one is 9-9-21; the other is specific grants of jurisdiction such as the statute authorizing county courts to adjudicate paternity and its 2013 amendment that conferred jurisdiction on county courts ” … for the enforcement of orders awarding custody … ” in paternity matters. In my experience, county courts have limited their exercise of concurrent equity jurisdiction to matters specifically granted by statute. That’s why you don’t see divorces being granted, or adverse possession being decreed, or estates and guardianships being administered, in county court. Thus, by practice, 9-9-21 has not been applied as a blanket grant of concurrent jurisdiction with chancery court.

The practice reflects the legislature’s approach. If the legislature had intended 9-9-21 to be a sweeping grant of co-jurisdiction with chancery court in all matters without regard to money value, then why did the legislature go to the trouble to amend the paternity statute to grant jurisdiction to county courts over what had been up to that point a purely chancery matter? If 9-9-21 were authority enough, then the statute was unnecessary. The same holds true with the 2013 amendment. I think the answer is that county court is purely a creature of statute, and its jurisdiction, which is not constitutionally derived, as is chancery’s, must be defined by the legislature. The legislature recognizes this, and defines that concurrent jurisdiction by express and specific statutory grants.

A legitimate concern of the MSSC is to construe legislation in such a way as to clarify the law so as to eliminate uncertainty and ambiguity. In my opinion, the majority and dissent in Bronk lead to different results in this regard.

The majority opinion in Bronk makes it clear that county courts lacked jurisdiction over child custody in paternity actions before the 2013 amendment. It offers the clarification that county court’s concurrent jurisdiction is limited to matters that can be monetarily quantified.
The dissent opens the door to the possibility that any chancery matter can be brought in chancery or county court, since it says that adjudications like custody determination are within the county court’s $200,000 limit. The dissent does not limit its scope to custody solely to paternity actions. Any matter that can not be quantified would fall within the $200,000 limit. That would, in essence, extend county court jurisdiction to all other chancery matters, because almost all chancery relief can not be calculated in terms of dollars. True, monetary relief is granted in chancery, but much of the relief has no dollar value. What, for instance, is the exact dollar value of the grant of a divorce, or an adoption, or the determination of a landline dispute, or confirmation of title, or adverse possession, or confirmation of title, or a guardianship of the person only, or a determination of heirship, or grandparent visitation, or a mental or drug commitment? And these are but a few examples. How do we determine their value so as to make that subject-matter-jurisdiction determination? Is each case evaluated separately? To open that door would be to create the possibility of endless arguments over jurisdictional limits and which court is most appropriate. It would encourage forum shopping. It would create uncertainty and embed questions about subject matter jurisdiction in every case, increasing the numbers of appeals. None of these type cases have ever, to my knowledge been heard in county court. We have to ask ourselves whether all of these kinds of cases should be brought in county court I the first place? Is that what is best for litigants? Our court system has never operated that way in my experience. And experience is a good teacher. What has worked well over time often proves to be the best approach.

The majority opinion offers more certainty as to where subject matter jurisdiction lies than does the minority. Subject matter jurisdiction should have clear and unquestionable lines drawn. Lawyers and judges should not have to guess about whether the court does or does not have jurisdiction. It does no one any good to litigate a matter only to have it set aside 15 years later — as in Bronk — for lack of jurisdiction. For that reason, the appellate courts should always lean toward what makes the jurisdictional boundaries between our courts as unquestionable and clear as possible. We already have a dichotomy of case law on the boundary between chancery and circuit that should not be further compounded with confusion between chancery and county.

Justice Waller’s separate opinion makes the practical point that it is “nonsensical and contrary to the intent” of the paternity statute for a court to be able to adjudicate paternity, and yet be unable to adjudicate custody in the same action. Yet, the MSSC already ruled out that approach in Griffith v. Pell, 881 So.2d 184, 187-188 (Miss. 2004), when it affirmed that COA’s ruling that paternity cases are not to be used as a forum for custody determinations.

Finally, I think it needs to be taken into consideration that child custody is a weighty matter. The cases are too numerous to mention in which our appellate courts have acknowledged the complex, difficult, and close questions that chancellors must resolve in determining the issue of what is in the best interest of a child. Resolution of custody issues involves analysis of the Albright factors in original cases, analysis of material change, adverse effect, and best interest with Albright analysis in modifications, and a determination of application of the natural parent presumption in third-party custody cases. Habeas corpus, visitation, grandparental visitation, child support, and joint-custody arrangements are other matters that are affected by custody determinations. Chancellors have developed considerable expertise over the years in all of these matters, and understand how serious and life-affecting are such decisions. Why should we want to burden other courts with that responsibility when we already have a wealth of wisdom and expertise on that subject and so many others like it in our chancery courts?

It remains to be seen how the high court will interpret and apply the language of the 2013 bill granting county courts jurisdiction ” … for the enforcement of orders awarding custody … ” in paternity actions. That language is not entirely unambiguous to me. Until then, this Bronk decision is a welcome beacon of certainty for trial courts and lawyers navigating in the shoal waters of jurisdiction between the two courts.

How You Draft the Judgment Can Screw up Your Case

December 2, 2014 § 3 Comments

Many chancellors, present company included, often direct attorneys to draft a judgment incorporating the court’s ruling.

As you can probably imagine, the quality of resulting judgments varies considerably. We sign them, however, unless they are egregiously flawed, in which case we send the lawyers scurrying back to their proverbial drawing boards.

Sometimes, though, a lawyer will catch the judge in a distracted or weak moment, and the judge signs a judgment that is — well — not suited to the task.

That is what apparently happened in the case of Weathers v. Guin, decided by the COA on November 18, 2014.

Scott Guin filed a complaint for custody modification against his ex, Regina Weathers, on June 4, 2013. On July 8, 2013, an order was entered awarding custody to Scott. The order did not cite what was the material change in circumstances upon which the modification was based. It did recite that both parties had appeared with counsel. It was approved as to form by attorneys for both parties.

Regina appealed, claiming that her attorney may have approved the order, but she never agreed to its terms. She also claimed that no hearing was held. Scott, on the other hand, represented that the court ruled after a one-day hearing, and the order was drafted by his attorney. He also said that the chancellor had made his ruling after interviewing both parties in chambers. Regina asked for a transcript of any proceedings, but there was none.

The COA reversed and remanded. Judge Irving, for the court:

¶17. “When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change.” Marter v. Marter, 914 So. 2d 743, 746 (¶5) (Miss. 2005) (quoting Sturgis v. Sturgis, 792 So. 2d 1020, 2025 (¶19) (Miss. Ct. App. 2001)). “In determining whether a material change of circumstances has occurred, a chancellor should look at ‘the overall circumstances in which a child lives.’” McDonald, 39 So. 3d at 880 (¶37). “[A] chancellor’s failure to make specific findings as to each individual Albright factors is reversible error.” Davidson v. Colt, 899 So. 2d 904, 911 (¶18) (Miss. Ct. App. 2005) (citing Powell v. Ayars, 792 So. 2d 240, 249 (¶18) (Miss. 2001)).

¶18. Generally, absent a record indicating otherwise, we assume that a chancery court’s order was based on adequate evidence. See Thompson v. Miss. Dep’t of Human Servs. ex rel. Surber, 856 So. 2d 739, 741 (¶8) (Miss. Ct. App. 2003). Additionally, an appellate court “will not reverse a [c]hancery [c]ourt’s factual findings, be they of ultimate fact or of evidentiary fact, where there is substantial evidence in the record supporting these findings.” Bryan v. Holzer, 589 So. 2d 648, 658 (Miss. 1991) (citing Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)).

¶19. Here, the record reveals that in the modification order, the chancery court completely failed to identify a material change in circumstances warranting modification before finding that it was in Jacob’s best interest to grant Scott custody of Jacob. The order simply provides that “it is in the best interest of [Jacob] for [the chancery court] to award permanent physical and legal custody of [Jacob] to [Scott] with [Regina] having visitation as previously set out[.]” The remaining provisions of the order concern child support, financial obligations of Regina and Scott, and behavioral restrictions placed on Regina and Scott. Because the chancery court failed to identify a material change in circumstances warranting custody modification, the modification order is insufficient for us to determine the chancery court’s basis for the custody modification. Moreover, the chancery court failed to make specific findings as to each individual Albright factor. Accordingly, we reverse the modification order as to the custody modification and remand for further proceedings.

Of course, since the chancellor signed the order, he draws the criticism. But what was the lawyer who drafted it thinking? The moral of this aspect of the story is to load your order or judgment with every conceivable finding and recitation that you can justify based on what happened. That means a finding of a material change in circumstances with fact-finding as to what changed, and a finding of adverse effect with a description of what the effect was. It means particular Albright findings. And it means a conclusion as what is in the children’s best interest. There must also be a recitation of subject matter and personal jurisdiction and what kind of proceedings were held. If you don’t cram all that in, your client could wind up like Regina and Scott — a lot poorer and back at the starting blocks.

Another moral of this sad tale is that there are really only two bulletproof ways to arrive at a judgment in a case: One is to negotiate and arrive at an agreed judgment, signed by the attorneys and the parties; and Two, to have a hearing on the record and let the judge make a ruling. Other paths may appear to be beguilingly more convenient, quicker, less troublesome, and easy, but they are all fraught with peril.

Custody as Punishment

October 20, 2014 § 3 Comments

The MSSC’s decision in Borden v. Borden, handed down October 9, 2014, is a reminder of the principle that fault should not be used as a sanction in child custody awards.

You can read the decision for yourself. The upshot of it is that the chancellor found against the mother in a custody fight, based on her inappropriate conduct. The chancellor found against the mother on three Albright factors: parenting skills; moral fitness; and stable home environment. The evidence established that the woman had inappropriate extramarital contacts, none of which amounted to adultery. She posted sexually explicit Facebook communications, socialized with men at bars and even met one at a hotel (until interrupted by the man’s wife), and re-established contact with men with whom she had had previous adulterous relationships (her husband claimed).

The MSSC found that the chancellor correctly found her conduct weighed against her on the factor of moral fitness, but the court held that the chancellor erred in finding that the same behavior weighed against her on the factors of parenting skills and stability of home environment.

It’s clear that the high court felt that the chancellor in this particular case was using the denial of custody as punishment in this case, which is a well-established no-no.

What is not so clear is how this case seems to say that the same behavior or misbehavior can not sound in two, three, or more factors. For instance, if a father customarily left the young children alone at night to go out and make drug buys while the mother worked, does that not show that he: has poor parenting skills; is maintaining an unstable home environment; and is not morally fit? Or must the chancellor limit his finding to one of the above? That makes no sense.

I may be reading the case too narrowly, but I hope it does not signal a too-limited scope of inquiry in these cases. Too formulaic an approach does not serve the best interest of the children.

How to Address the GAL Report

October 15, 2014 § 2 Comments

There are three types of cases in which a chancellor is required to appoint a guardian ad litem (GAL):

MCA 93-5-23 requires appointment of a GAL “when a charge of abuse or neglect arises in the course of a custody action.”
MCA 93-15-107 requires a GAL for the child(ren) in termination of parental rights (TPR) cases.
MCA 93-17-8 requires a GAL for the child(ren) in a contested adoption.

In other cases the court may appoint a GAL whenever the court deems it necessary to protect the interests of a child or vulnerable adult.

The chancellor is never required to follow or adopt the recommendations and findings of a GAL, but when she does not do so there are certain requirements that the judge must meet in rendering her opinion.

In the October 9, 2014, MSSC case, Borden v. Borden, Chief Justice Waller, for the unanimous court, spelled it out:

¶11. In child-custody cases where there are allegations of abuse or neglect, courts must appoint a guardian. Miss. Code Ann.§ 93-5-23 (Rev. 2013); Floyd v. Floyd, 949 So. 2d 26, 28 (Miss. 2007). And when the appointment is mandatory, chancellors, in their findings of fact, must include at least a summary of the guardian ad litem’s recommendations. Id. While a chancellor is not bound by the guardian ad litem’s recommendations, “if the court rejects the recommendations . . . , the court’s findings must include its reasons for rejecting the guardian’s recommendations.” Id.; S.N.C. v. J.R.D., Jr., 755 So. 2d 1077, 1082 (Miss. 2000).

¶12. In the current case, Mary Jane raised her concerns that the children might have been sexually abused. Accordingly, the chancellor appointed a guardian ad litem. The guardian ad litem conducted an investigation into the child-abuse claims and prepared a recommendation regarding custody of the children. The guardian ad litem found no evidence of abuse, and after an Albright analysis, determined that Mary Jane should be awarded custody.

¶13. When the guardian ad litem’s appointment is mandatory, as in this case, the chancellor must include a summary of the guardian ad litem’s recommendations in his or her findings of fact and conclusions of law. S.N.C., 755 So. 2d at1082. And “when a chancellor’s ruling is contrary to [that] recommendation . . .” the court must state “the reasons for not adopting the . . . recommendation . . . in the findings of fact and conclusions of law.” Id. While the chancellor in the current case acknowledged the guardian ad litem’s recommendation, he did not provide a summary of the report or a summary of his reasons for rejecting the guardian ad litem’s recommendation. Therefore, we find the chancellor erred in failing to do so.

The court reversed on this and another ground, and remanded the case for proceedings consistent with the opinion.

If you have a case involving a GAL, and the judge rules contrary to the GAL’s recommendations, be sure that the court’s findings include both a summary of the GAL’s findings and the court’s reasons for not following the GAL’s recommendations. Whether the appointment was mandatory or not, I think it’s the best practice. If the judge neglected to do that in his opinion, file a timely R59 motion and ask the court to add his findings. Don’t do it and you might just get a free pass for a retrial after a brief detour to the COA.

A Few Interesting points in an ID Divorce

October 6, 2014 § Leave a comment

The COA case of Massey v. Massey, handed down September 30, 2014, is a routine case for the most part, but it includes some interesting wrinkles that you might want to note.

Jennifer and Stephen Massey filed a joint complaint for divorce on the sole ground of irreconcilable differences. Later they entered into a written consent that settled a few issues and spelled out issues for adjudication by the court.

When they appeared for trial, they announced that certain of the contested issues had been settled. They agreed to joint legal and physical custody of two of their children, and to legal custody of the third, but physical custody of him, as well as support for all three children, was left for the court to decide. Attorney’s fees were also agreed, but all other contested issues were left to the court.

Following a trial, the court adopted the parties’ agreement, and awarded Stephen custody of one child. He ordered Stephen to pay child support for the children in Jennifer’s custody, but ordered no child support for the child in Stephen’s care (she was to turn 21 within six months of the judgment). The chancellor divided the marital estate so that each party got an equal share, each in excess of $750,000. He awarded no alimony to Jennifer.

Jennifer appealed. The COA affirmed.

One of the questions that arises often is whether a written consent in an ID divorce may be amended via an announcement on the record, as was done in this case. I have heard the question in my court, and I have heard it among judges at study meetings. The problem is that there are plenty of cases that hew strictly to the line that the consent and any PSA emphatically must be in writing, yet it is quite familiar and common practice for parties to amend their pleadings verbally at trial (e.g., “My client withdraws her claim in her complaint for custody and will proceed only on her claim for visitation, your honor”). It is interesting that no one raised the verbal amendment issue here. I am thinking that the COA has raised that sua sponte in other cases. So, does this case signal that it is okay to make a verbal amendment to a consent at trial? I am doubtful. I think I’ll continue my practice of requiring the lawyers to reduce the agreement to writing and make it part of the record; making it meet the requirements of a codicil is even better.
This is another of many cases in which the hoary Lauro rule applies: Alimony should be awarded if a spouse is left with a deficit after equitable division. If there is no deficit found by the court, alimony is inappropriate. Here, the chancellor found expressly that Jennifer’s award of around $750,000 would do to eliminate any deficit, and the COA found that to be within the chancellor’s discretion.
Jennifer tried to argue on appeal that the award of child support was inadequate and erroneous. The COA held that since Jennifer did not raise the issue specifically by way of objection at trial, or in a post-trial motion, she was precluded from raising it on appeal. I find this confusing. Was this not a contested issue at trial? When a contested issue is tried with substantial proof what objection does the party have to make at trial? Object to what? And if the issue is fully developed at a bench trial, where in MRCP 59 does it require that the issue be raised again in a post-trial motion? I think R59 does not require it. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993) [cited in the MRCP Advisory Committee Notes]. This is an issue that I wish the MSSC would address and clarify. If lawyers trying cases to a judge, without a jury, are required in essence to raise every possible issue that might be appealed in a R59 motion, despite the language of the rule, I think it is incumbent on the MSSC to tell lawyers so.
Jennifer argued that the chancellor erred in not finding that her husband’s payment of $30,000 to settle a sexual harassment claim against him was dissipation of marital assets. The COA did not consider it because she cited no authority. That’s unfortunate for her, because I think there’s a good argument to be made there that it was dissipation. BUT … I think the chancellor was within his discretion to find that it was not, based on the fact that it was a mere settlement, and not payment of a judgment; the settlement could be construed to be protective of the rest of the assets, and not in dissipation of them.

Those are my thoughts that percolate out of this case. Sometimes it’s helpful to read appellate court decisions critically, looking for loopholes in the arguments and reasoning of the courts (trial and appellate). That process stretches your critical-thinking processes, and adds to your ability to represent your clients.

TPR: It Takes More than Non-Payment of Support

September 24, 2014 § 2 Comments

The COA decision in Fuller v. Weidner, decided September 16, 2014, is a reminder of a couple of basic concepts in termination of parental rights (TPR) cases.

James Fuller and Rachel Weidner had a non-marital relationship out of which was born Remmy Fuller on February 13, 2009.

James and Rachel’s association was punctuated with domestic-violence and protective-order actions, and on April 14, 2010, James was ordered to have “no contact involving the child until chancery court establishes custody.”

On April 27, 2010, the chancery court entered a child support order in a DHS case it filed against James, including an assessment of past-due support.

In May, 2012, Rachel filed a TPR action against James. A GAL was appointed per the statute, and when the case finally reached trial in April, 2013, the chancellor found that James had abandoned Remmy, and terminated James’s parental rights. James appealed, arguing that the chancellor misapplied the law and erred in finding that he had abandoned his daughter.

The COA affirmed. Here is the pertinent part of Judge Lee’s opinion:

¶7. Fuller acknowledges his two issues are intertwined and addresses both together. So do we. Mississippi Code Annotated section 93-15-103 (Rev. 2013) lists several grounds for the termination of parental rights. Sections 93-15-103(3)(b) and (f) allow for the termination of parental rights if:

(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or

. . . .

(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment . . . .

In this instance, the chancellor determined that Fuller had not contacted Remmy “for more than the six (6) months mandated by statute.” Fuller contends the chancellor misapplied the law because Remmy was three at the time Weidner filed the termination action; thus, the applicable time period should have been one year. However, the chancellor specifically found Fuller had not seen Remmy since April 2010, and had not attempted to establish any visitation with her. At the time of the hearing in April 2013, Fuller had not seen his daughter in three years.

¶8. Fuller admits he has not seen Remmy since April 2010, but states he was under the mistaken belief that he was not allowed to contact her until the chancery court established custody as required by the restraining order. Fuller acknowledges he did try to contact Weidner after the restraining order had expired but was unable to reach her and did not attempt to contact her directly again, even though he knew where Weidner and Remmy were living.

¶9. The chancellor further determined that Fuller had failed to pay any child support for approximately two years, and only began to pay once Weidner filed her termination action. We do recognize that “[f]ailure to pay child support without more is insufficient predicate for a finding of abandonment.” Carter v. Taylor, 611 So. 2d 874, 877 (Miss. 1992). We reiterate that at the time Weidner filed the termination action, Fuller had not seen Remmy in two years nor made any serious efforts to do so. “A finding of substantial erosion of the parent/child relationship necessarily involves a consideration of the relationship as it existed when the termination proceedings were initiated.” G.Q.A. v. Harrison Cnty. Dep’t of Human Res., 771 So. 2d 331, 338 (¶29) (Miss. 2000). A substantial erosion can be proved by showing a prolonged absence and lack of communication between the parent and the child. Ainsworth v. Natural Father, 414 So. 2d 417, 420 (Miss. 1982). In a similar case, this Court affirmed the chancellor’s decision to terminate a father’s parental rights since the father had admittedly not seen his child in two years and only started paying child support after the termination action was filed. R.L. v. G.F., 973 So. 2d 322, 324-25 (¶¶8-10) (Miss. Ct. App. 2008).

A couple of points from a fairly clear-cut case:

Whichever side of the case you’re on, in my experience failure to have contact within the statutory time without serious mitigating factors is pretty much a slam-dunk when it comes to TPR.
Failure to support is more of an aggravating circumstance that lends weight to the termination action, but, as the case cite says, it does not warrant TPR in and of itself.

If James had been serious about seeing and contacting his daughter, there are numerous ways that he could have documented his efforts and created substantiating testimony. The inescapable conclusion he left both the chancellor and the COA was that he had really made no effort because he had no proof other than his naked assertions.

If a James comes to your office complaining that he has had trouble contacting and visiting with his baby, advise him of the TPR law and help him document his efforts. Then file an action to establish or enforce his visitation rights. The sooner the better. Oh, and be sure to tell him that a dad who isn’t paying child support gets little or no sympathy from the chancellor.

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