More on Evidence of Prior Conduct in a Modification Case
September 2, 2014 § Leave a comment
As a rule, in a modification the chancellor is prohibited by the principle of res judicata from considering evidence of conduct that predates the judgment sought to be modified. It’s a concept that we have talked about here before.
The COA case of Summerlin v. Eldridge, handed down August 19, 2014, is the most recent case to deal with the issue.
In their divorce in May, 2011, Mike and Tamara Summerlin agreed to a custody arrangement under which Mike would have custody of daughter Madison, and Tamara would have custody of the two younger children, Haley and Grace.
In August, 2011, Tamara filed for modification, seeking custody of Madison, and, apparently, asking for MIke to have custody of Haley. An agreed judgment was entered changing custody of Madison from Mike to Tamara, and custody of Haley from Tamara to MIke.
After that the parties swapped salvoes of pleadings for contempt and modification, and, in February, 2012, the chancellor left custody as the parties had previously agreed. They subsequently agreed that Mike would regain custody of Madison. That left only custody of Grace as a contested issue.
The case came to trial, and the chancellor, in October, 2012, awarded custody of all three children to MIke.
Tamara appealed, arguing that the chancellor erred in considering conduct of hers that predated the August, 2011, order, which had been the last modification order entered before the final modification judgment resulting from the trial.
The COA found no error. Here’s what Judge Fair’s opinion stated:
¶8. Tamara argues the chancellor erred in allowing testimony concerning matters that occurred prior to the August 19, 2011 order. According to Lackey v. Fuller, 755 So. 2d 1083, 1086 (¶13) (Miss. 2000), this practice is not permissible because of the res judicata principle. Tamara is correct that res judicata prohibits the chancellor from considering circumstances that occurred prior to the decree being considered for modification. Id. However, in this instance, the order awarding the custody of Grace to Tamara was entered on May 24, 2011, and not on August 19, 2011. The August 19, 2011 order changes custody of Madison and Haley but does not mention Grace.
¶9. Furthermore, in denying Tamara’s motion to reconsider, the chancellor noted that the only “evidence of events predating the original divorce decree was considered as impeachment evidence to [Tamara’s] and Del’s testimony.” The chancellor found the facts distinguishable from those in Lackey. Our review of a chancellor’s decision to admit evidence falls under the familiar abuse-of-discretion standard. Id. at (¶10). In this instance, we find no abuse of discretion by the chancellor. This issue is without merit.
So, two points:
- In order for the bar of res judicata to operate, the four identities must be present. In this case, the prior modification judgment(s) did not create a bar as to testimony involving custody of Grace, because Grace was not part of the subject matter of the prior judgment(s). The bar does not exist from the date of the last order or judgment entered, but rather exists when the four identities come together in one order or judgment. In this case, the last order or judgment in which the four identities were present as to Grace was the divorce judgment, and the testimony at trial to which Tamara objected was post-divorce-judgment.
- The reason why the testimony is offered appears to make a difference. Here it was not considered substantively by the trial judge, but was only considered as impeachment of Tamara’s and her current husband’s testimony. The COA did not cite any case specifically so holding, but you may want to cite this decision to support such an argument next time you have this issue come up.
Checklists, Checklists, Checklists
August 12, 2014 § 11 Comments
You can skip over this post if you’ve been paying attention to this blog for any appreciable length of time.
For you newcomers and oblivious long-timers, you need to know and appreciate that proving many kinds of cases in chancery court is a matter of proving certain factors mandated from on high by our appellate courts. I’ve referred to it as “trial by checklist.”
If you don’t put on proof to support findings of fact by the chancellor, your case will fail, and you will have wasted your time, the court’s time, your client’s money. You will have lost your client’s case and embarrassed yourself personally, professionally, and, perhaps, financially.
I suggest you copy these checklists and have them handy at trial. Build your outline of the case around them. In your trial preparation design your discovery to make sure that you will have proof at trial to support findings on the factors applicable in your case. Subpoena the witnesses who will provide the proof you need. Present the evidence at trial that will support the judge’s findings.
If the judge fails to address the applicable factors in his or her findings of fact, file a timely R59 motion asking the judge to do that. But remember — and this is critically important — if you did not put the proof in the record at trial to support those findings, all the R59 motions in the world will not cure that defect.
Here is an updated list of links to the checklists I’ve posted:
Income tax dependency exemption.
Modification of child support.
Periodic and rehabilitative alimony.
And here are two checklists that will help you in probate matters:
Evidence of Pre-Divorce Conduct in a Modification
July 3, 2014 § 1 Comment
The chancellor granted Marquis Stevenson’s petition for modification of custody, taking the child from his ex-wife Tanisha Martin. Tanisha appealed. One assignment of error was the chancellor’s exclusion of evidence of Marquis’s past domestic violence.
The COA, in Martin v. Stevenson, decided February 11, 2014, found no error. Judge Carlton, for the majority, said this:
¶32. We review a trial judge’s decision of whether to admit or exclude evidence under an abuse-of-discretion standard of review. Rushing v. Rushing, 724 So. 2d 911, 914 (¶11) (Miss. 1998) (citations omitted). In Lackey v. Fuller, 755 So. 2d 1083, 1085 (¶¶6-7) (Miss. 2000), the parties obtained an irreconcilable-differences divorce, and the wife later asked for modification of the final judgment. At the hearing, the chancellor allowed into evidence testimony regarding the wife’s predivorce conduct. Id. at 1086 (¶11). In its discussion of
res judicata as it applies to divorce proceedings and child-custody issues, the Mississippi Supreme Court stated:
We begin with the principles of res judicata[,] which command that a final judgment preclude[s] thereafter all claims that were or reasonably may have been brought in the original action. The familiar rule that a judgment for alimony, custody[,] or support may be modified only upon a showing of a post-judgment material change of circumstances is a recognition of the force of res judicata in divorce actions.
Id. at (¶13) (citations omitted). The supreme court concluded that the wife’s predivorce conduct was res judicata and that the only evidence the chancellor should have admitted was evidence pertaining to post-judgment conduct. Id. at 1087 (¶18).
¶33. In the present case, the record shows that at the September 28, 2011 hearing, Tanisha’s attorney tried to question Marquis about charges that arose prior to the divorce proceeding. Upon the objection of Marquis’s attorney, the chancellor asked Tanisha’s attorney whether there had been any continuation of Marquis’s conduct since the divorce decree and stated: “[U]nless you can tie some current conduct to that past conduct, I’m going to have to sustain the objection.” Because Tanisha’s attorney could not provide any evidence
of domestic violence by Marquis since the divorce, the chancellor found the evidence not relevant and sustained the objection. The issue arose again during Tanisha’s testimony, and the chancellor again explained that he would sustain the objection as to any matters that occurred prior to the divorce decree but would allow testimony regarding any actions since that time.
¶34. Based on the record and applicable law, we find no abuse of discretion in the s past acts of domestic violence. At the hearing for modification of custody, Tanisha was only able to offer proof of acts that divorce. Tanisha failed to offer any evidence of current conduct occurring since the divorce. Because Tanisha failed to properly raise this claim for consideration in the original divorce decree, she is barred from raising the issue now. This assignment of error therefore lacks merit.
This is a fairly common situation in modification cases, and this case is a helpful guide to how the chancellor should address it.
This case is also an interesting wrinkle on application of the statutory principle that a history of domestic violence may be a basis to deny custody. A previous post on that subject is here.
Three Cases of Note
June 30, 2014 § Leave a comment
The MSSC handed down three decisions in the past year or so that will significantly change your practice. You need to take note of each of them and study how you can use them to your client’s advantage or defend against their operation in cases you are handling.
The first case is Collins v. Collins, handed down May 9, 2013. This is the case that said, once and for all, that the demarcation line for valuation of assets in a divorce is to be determined by the chancellor, based on the facts in the case.
Why is this case significant? Because it expressly overrules the COA decision in Pittman v. Pittman that laid down the rule that entry of the temporary judgment was a bright line where accumulation of marital asset value ceased.
How can you use this case to your client’s advantage? Look at values and find the date to your client’s advantage, and then have your client testify why the judge should select the preferred date. For example, if your client’s 401(k) has greatly appreciated in value over the course of the litigation, pick an early point and develop proof about why that is the most equitable date. And vice versa for the other side.
A previous post about Collins is here.
The second case is Sanford v. Sanford, decided October 31, 2013. Sanford finally puts an end to the practice of dictating into the record consents to divorce and property settlement agreements in irreconcilable differences divorces. MCA 93-5-2 specifically requires written agreement, and a verbal acquiescence, even on the record, will not do the job.
Why is this case significant? It marks the demise of Bougarde v. Bougarde, the lone case in which the practice had been okayed. Bougarde gave rise to uncertainty among many judges and lawyers as to whether and when a settlement announcement might pass muster as a final agreement.
How can you use this case to your client’s advantage? Bring a laptop computer to court with you and be ready to capture a settlement in the form of a written agreemment. You get to do the drafting, which means that you get to choose the language. You will have the advantage over the dinosaurs who still don’t know what a laptop (computer) is.
A previous post about Sanford is here.
The third case is Huseth v. Huseth, rendered April 10, 2014. In this case, the MSSC returned to the principle that the child support statutory guidelines are just that — guidelines — and that it is up to the chancellor to set child support after first addressing the factors set out in Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss. 1992).
Why is this case significant? In a long line of cases since 1992, our appellate courts have applied the child support statute as mandatory, and cases that deviated without the proper finding of basis for deviation were reversed. Huseth says that before looking to the statute the chancellor must first consider and address the Gillespie factors. The statute then supplies a guideline for the judge to apply his or her discretion. As a practical matter, I think most judges will follow the guidelines. But that’s not a sure thing post-Huseth.
How can you use this case to your client’s advantage? Be sure to put on proof of the Gillespie factors. Make sure your client’s 8.05 is credible, because it’s unlikely that chancellors are going to take it at face value that your client really is going $800 in the hole every month so that he can’t afford to support his children. You might hear the judge advise your client to quit smoking and drinking, sell his truck, and cut off his cable and internet service so that he can pay child support.
When is Temporary Relief Available in Family Law Cases?
June 18, 2014 § 5 Comments
I have heard it said that chancery courts routinely grant temporary relief in any matters pending before them. Is that so? And in what matters is temporary relief available?
Let’s look at family law.
Anyone who has done any Mississippi family law knows that temporary relief is available in divorce cases. The authority of the chancery court to grant temporary relief in a divorce proceeding is found in MCA 93-5-17(2), which provides:
The chancellor in vacation may, upon reasonable notice, hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.
Divorce is a creature of statute unknown in the common law; therefore, any relief obtainable in a divorce must have its source in a statute. Since this statute is part of the title dealing with divorce, and is a subsection of the statute that requires divorce hearings to be held in open court, I am confident in saying that this particular statute is not authority to grant temporary relief outside the context of a divorce.
Likewise, in cases of determination of parentage, MCA 93-11-65(10) creates a remedy:
Upon motion of a party requesting temporary child support pending a determination of parentage, temporary support shall be ordered if there is clear and convincing evidence of paternity on the basis of genetic testing or other evidence, unless the court makes written findings of fact on the record that the award of temporary support would be unjust or inappropriate in a particular case.
Notice that the latter statute does not not include custody among the relief provided. The COA has held that both natural parents have an equal right to custody of the child, regardless whether parentage has been finally determined. So, on the one hand, it would appear in a custody dispute between parents in a parentage case that the tug-of-war between them must continue unabated by temporary custody because there is no provision in the statute for temporary custody. The conundrum is exacerbated by the simple fact that support is customarily (always?) paid to the parent with custody, which is certainly logical, because we have to know where the child will be in order to know where to direct the support. If the court has no statutory authority to award custody in such a case, how can the court award child support?
It could be that the chancellor may simply order extra-statutory temporary relief in a given case based on equitable principles. In the parentage case, for example, the court could award temporary custody in order to get to the statutorily permissible temporary support award.
But would such an order stand? After all, we know that there is no appeal of right from a temporary or interlocutory order.
I think the distinction may lie in the nature of the review. If the merits of the order are attacked, then I think the appeal fails. If the power of the court to grant the temporary relief is attacked, then I think the appeal would have merit. An example of the latter is Martin v. Falcon, #2013-IA-1985-SCT (December 5, 2013), in which Justice Coleman vacated a temporary order granting grandparent visitation.
Is there even a right to a temporary hearing in a grandparent visitation case? I would argue in the negative, for two reasons: (1) the grandparent visitation statute has no provision whatsoever for temporary relief, and like divorce and parentage, it is a creature solely of statute; and (2) to grant temporary relief is to presume on the ultimate issue that the petitioner is entitled to such relief, which is not always so.
Of course, temporary relief is expressly available in injuntions, per MRCP 65, in the form of a TRO. A TRO does require the existence of an emergency or danger of irreparable harm if no relief is immediately granted. And the domestic violence statutes incorporate such relief.
Custody modification cases and third-party custody cases are somewhat more problematical. There are statutes dealing with custody, and its award and forms, but they do not specifically mention temporary relief. In this district, we do not allow temporary relief in a child-custody-modification case unless there is an emergency or it is clearly necessary to protect the best interest of a child until a final determination may be made. To do otherwise would peremptorily adjudicate the ultimate issue in the case.
When the chancellor acts in an emergency or other exigent situation to protect the child, her actions are based on Article 6, § 159 of the Mississippi Constitution, which gives chancery courts “full jurisdiction” over “All matters in equity,” and “Minor’s business.” Custody has long been recognized as being under the mantle of chancery jurisdiction, and, indeed, our cases speak in terms of the chancellor being the “superior guardian” and protector of the child’s best interest. I think as between the apparent form required by statute and the chancellor’s determination that action must be taken for the best interest of a child, the court will and should go with the best interest every time.
I would reconcile all of the foregoing by saying that I believe that, in the absence of exigent circumstances requiring immediate intervention the court should avoid temporary relief unless there is a statutory provision or rule expressly providing that relief. Your chancellor may see it differently, based on an entirely different rationale, but that is the way I view it.
This post addresses temporary relief in family law matters. Temporary relief in the many other types of cases within chancery jurisdiction is the subject of another post.
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Thanks to Attorney George S. Whitten of Greenwood for supplying some of the material for this post.
Rejection and the GAL
May 8, 2014 § 3 Comments
Most of the guardians ad litem (GALs) with whom I talk react noticeably when the chancellor does not accept or follow their recommendations. Reactions range from mild puzzlement to indignation.
It has never been the rule in Mississippi that the chancellor is required to follow the GAL’s recommendations or accept the GAL’s conclusions. The rule that applies when the judge opts to go in a different direction was stated in the case of Floyd v. Floyd, 949 So. 2d 26, 29 (¶ 8) (Miss. 2007), which said:
This Court has held that a chancellor shall at least include a summary review of the recommendations of the guardian in the court’s findings of fact when the appointment of a guardian is required by law. S.N.C. v. J.R.D., Jr., 755 So. 2d [1077,] 1082 [(Miss. 2000)]. Furthermore, if the court rejects the recommendations of the guardian, the court’s findings must include its reasons for rejecting the guardian’s recommendations. Id. While a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law. Id., Hensarling v. Hensarling, 824 So. 2d 583, 587 (Miss. 2002).
So, the requirements are that the judge’s ruling must include a summary review of the GAL’s recommendations, and must include its reasons for rejecting them.
In the MSSC case of Darnell v. Darnell, handed down April 24, 2014, the court held that the chancellor’s failure to follow the dictates of Floyd did not in and of itself warrant reversal, although the case was reversed on another ground. Here is how Justice Coleman’s opinion addressed the issue:
¶40. “The chancellor was in no way bound to follow the recommendation made by the [guardian ad litem].” Hensarling v. Hensarling, 824 So. 2d 583, 587 (¶ 10) (Miss. 2002). Under the Court’s standard of review, the Court does not find that the chancellor’s determination was manifestly wrong or that he abused his discretion.
In any case where a GAL is appointed to represent a child, the chancellor’s role as fact-finder requires the evidence presented by the GAL, as well as all other relevant evidence, to be considered and given such weight as the chancellor determines it deserves. Thus, the question to be answered by the Court is not . . . whether the chancellor ignored the GAL’s recommendation; but rather, whether the evidence in the record supports the chancellor’s decision.
Lorenz v. Strait, 987 So. 2d 427, 431 (¶ 16) (Miss. 2008) (internal citations omitted). In the case sub judice, the chancellor considered the guardian ad litem’s recommendations and conducted his own analysis of the Albright factors. The chancellor was the fact-finder, and his holding made clear the reasons for his decision. While it is the better practice for a chancellor to describe specifically why he or she disagrees with a guardian ad litem’s findings, the Court cannot find that the chancellor in the instant case abused his discretion in reaching the result he reached. Therefore, the issue is without merit.
In Darnell, the MSSC explained how the chancellor had done a thorough Albright analysis that addressed pertinent points of the GAL report. It found that the chancellor’s basis for not following the GAL report was clear in his Albright analysis.
I don’t see this case as pointing a new direction or changing the rules. What the court found here was that, although the chancellor did not expressly say why he was rejecting the GAL’s recommendations, his rationale was clear enough in his Albright findings so that the case did not require reversal on that point.
You should read this case for its analysis of the hearsay rule and its applicability in child sexual abuse cases. It’s particularly noteworthy for its exposition on the principle that hearsay may be introduced for purposes other than to prove the matter asserted.
The Cost of Side Income
April 21, 2014 § 2 Comments
It often happens that one of the parties in a divorce has side income. By “side income” I am referring to extra income, usually in cash, received for services separate and apart from one’s primary employment.
Some examples could include cash that a party: receives for doing weekend painting; is paid as a part-time, fill-in clerk at a country store; earns for child care or sitting; takes in for yard work. The list is endless.
There is no question that when the proof shows that there is that additional income, it should be taken into consideration in calculating alimony or child support. The hard part is how exactly is the court supposed to quantify it? It’s the hard part because the proof usually ranges on from almost entirely lacking to at best vague and inconclusive. After all, it’s cash with no evidence trail.
That was the problem facing the chancellor in Burnham v. Burnham, decided April 8, 2014, by the COA.
The chancellor found that Matthew Burnham was earning some side income from farming, which was in addition to adjusted gross income from his primary employment at Jones County Community College in the count of $2,618.04. The judge ordered child support in the amount of $600 a month, which he explained was guideline support for the two children, plus an additional sum to account for the farming income.
Matthew appealed, complaining that the support, by guideline, should have been no more than $523.61, a difference of $76.39 a month.
Judge James, for the COA, found the chancellor in error:
¶18. The record indicates that Matthew’s adjusted gross income from Jones County Junior College is $2,618.04 per month. The trial court found that Matthew receives additional income from farming operations. However, there is no documentation that provides for the amount per month he receives from farming. It is also unclear whether Matthew still receives this supplemental income from farming.
¶19. Matthew argues that the appropriate amount for his child-support obligation for the two minor children is $523.61; which is twenty percent of his net income. The trial court ordered Matthew to pay $600 per month. The trial court based the child-support award on the net income Matthew receives from Jones County Junior College and cash received from the farming operation. However, there is nothing in the record to establish the amount of income received from the farming operation. The trial court imputed an undetermined amount of income to Matthew.
¶20. Matthew argues that a deviation from the child-support guidelines requires a written finding on the record explaining the need for such deviation. Miss. Code Ann. § 3-19-101 (Supp. 2013). The criteria for finding an appropriate deviation are as follows:
(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.
Miss. Code Ann. § 43-19-103 (Supp. 2013).
¶21. “The child support award guidelines are ‘ rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.’” Grove v. Agnew, 14 So. 3d 790, 793 (¶7) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 43-19-103 (Rev. 2004)). Thus, “[i]n the absence of specific findings of fact to support a deviation from the child support guidelines, the chancellor’s award is not entitled to the presumption of correctness under the statute.” Osborn v. Osborn, 724 So. 2d 1121, 1125 (¶20) (Miss. Ct. App. 1998).
¶22. After careful review of the record, we find no specific finding of fact to support deviation. Instead there is merely an order for Matthew to pay a seemingly arbitrary amount of $600. The ordered amount of support is almost twenty-three percent of his net income. There is no mention of any extraordinary circumstances that would warrant a departure from the child-support guidelines. Although the children attend private school, the maternal grandparents agreed to pay the tuition. Accordingly, we find that the trial court erred in deviating from the child-support guidelines without specific on-the-record findings.
I can’t quibble with the conclusion here that specific, on-the-record findings are necessary to support a deviation from the guidelines. Under this case, it appears that those findings would necessarily include not only why and how one or more deviation factors applies, but also what are the specific findings of the court as to how the additional sum is calculated.
I do have a minor quibble with the bold language above. If there is proof in the record that Matthew receives some farming income, even if it is unclear, doesn’t the chancellor’s finding that it exists resolve that issue? It is the judge’s job to make that call based on what he finds to be the credible evidence.
When you have a case such as this where the chancellor has not fleshed out his findings, file a R59 motion and ask the judge to support his findings in the record. Post-trial motions were filed in this case, but it is not clear whether that particular request was made.
Also, if you represent the party trying to benefit from the side income, always make sure you put some proof in the record to quantify it. Ask questions on cross examination to get a number or a range. Look at tax returns and get them into the record; sometimes people report at least part of side income to avoid IRS problems. Get youor client to testify to her experience (e.g., “When we lived together he would give me hundred dollar bills a couple of times a month for groceries, and he would peel them off of a thick wad of hundreds that he carried around.”)
A Flurry of Child Custody Modification Points
April 15, 2014 § Leave a comment
The COA’s decision in Hall v. Hall, decided March 25, 2014, is not one of those milestone cases that stands out from others.
It does, however, include a nifty selection of legal authority that you can use as a refresher and file away for future use. It’s nothing that you don’t already know or aren’t acquainted with, but it is set out in handy, bite-sized portions for ease in serving up later.
From Judge Fair’s opinion:
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¶9. The burden of proof is on the movant to show by a preponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996). To successfully move to modify custody of a child, a noncustodial parent must prove (1) that a substantial change in circumstances has transpired since issuance of the custody decree, (2) that this change adversely affects the child’s welfare, and (3) that the child’s best interests mandate a change of custody. McDonald [v. McDonald], 39 So.3d at 880 (¶37). “A modification of custody is warranted in the event that the moving parent successfully shows that an application of the Albright factors reveals that there had been a material change in those circumstances which has an adverse effect on the child and modification of custody would be in the child’s best interest.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (citing Sanford v. Arinder, 800 So. 2d 1267, 1272 (Miss. Ct. App. 2001)).
¶10. “The chancellor must consider the totality of the circumstances to determine ‘whether there was a material change in circumstances.’” Cantin v. Cantin, 78 So. 3d 943, 948 (¶15) (Miss. Ct. App. 2012) (citation and quotation omitted). If, after examining the totality of the circumstances, a material change in circumstances is found to have occurred, the chancellor “must separately and affirmatively determine that this change is one which adversely affects the children.” Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997) (citation omitted).
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¶15. … In his judgment, the chancellor stated that there are no facts in the record to support that Dana’s cohabitation with a romantic partner had an adverse effect on the children. The chancellor also stated that the existence of an extramarital relationship, by itself, fails to provide a sufficient basis for a finding of an adverse material change. See Sullivan v. Stringer, 736 So. 2d 514, 517 (¶16) (Miss. Ct. App. 1999) (finding that cohabitation alone fails to give rise to a material change in circumstances). However, the existence of the relationship coupled with another adverse impact on the child provides a sufficient basis to warrant a custody modification. Id. at 518 (¶20). The chancellor did not err in considering this issue in his material-change analysis.
Comment: Modification of child custody requires what I refer to as a three-legged stool of proof. You must first prove that there has been a material change in the circumstances of the child and/or custodial parent. If you have proven the material change, then you must prove that the change has had some adverse effect on the child OR, per Riley, that the circumstances are so inherently dangerous or inimical to the child’s welfare that the court can assume an adverse effect. And, third, you must prove that it is in the child’s best interest to change custody. As with any three-legged stool, if any leg fails, the whole thing falls.
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¶17. “If the court finds an adverse material change, then the next step is to apply the Albright factors to determine whether modification is in the child’s best interest.” White v. White, 26 So. 3d 342, 351 (¶28) (Miss. 2010) (citing Sturgis v. Sturgis, 792 So. 2d 1020, 1025 (¶18) (Miss. Ct. App. 2001)). The Albright factors are as follows: (1) age, health, and sex of the child; (2) a determination of the parent who had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So. 2d at 1005.
Comment: Many attorneys base their trial tactics on the misconception that if they can prevail on more of the factors than the other side, their client wins. Not so. Here is what Judge Fair said about that approach:
- ¶19. An Albright analysis is not a mathematical equation. Lee v. Lee, 798 So. 2d 1284, 1288 (¶15) (Miss. 2001). Further, the “factors are not meant to be weighed equally in every case.” Id. (citing Divers v. Divers, 856 So. 2d 370, 376 (¶27) (Miss. Ct. App. 2003)). Our supreme court has held that “[a]ll the [ Albright] factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way he sees fit.” Johnson, 859 So. 2d at 1013-14 (¶36).
Comment: As I have said here before, the judge can give much greater weight to one or more factors, depending on the facts in the case. For example, I had an original custody case where the mother prevailed on nearly every Albright factor save one: she had a history of mental illness and was actively delusional, would not take medication, and saw her children as part of her delusion. Dad got custody. That “mental health of the parent” factor outweighed all the others combined.
Even when a decision appears to be the “same old same old,” it just might be what you need to reacquaint yourself with the law on a given point.
Joint Custody and the Consent Divorce, and a Maxim Bonus
March 20, 2014 § 1 Comment
The COA decision in Keyes v. Keyes, handed down March 11, 2014, is noteworthy for a couple of points.
Melanie and Dustin Keyes entered into a consent for an irreconcilable differences divorce, leaving custody of their two children to the judge to decide. After a hearing, the chancellor awarded the parties joint physical and legal custody.
Melanie appealed, raising two issues: (1) the chancellor erred in failing to determine whether the parties could cooperate, which is a prerequisite to joint custody; and (2) the chancellor’s decision violated the maxim of equity that “equity delights to do complete justice, and not by halves.”
The COA affirmed. Judge Carlton wrote the opinion for a unanimous court (James not participating). Here’s her take on the first issue:
¶13. [MCA] Section 93-5-24(2) provides that in an irreconcilable-differences divorce the chancellor may, at her discretion, award joint custody “upon application of both parents.” In Crider [v. Crider], the parties filed a written consent to an irreconcilable-differences divorce and asked the chancellor to decide the issues of primary custody, property settlement, and support. Crider, 904 So. 2d at 143 [(Miss. 2005)] (¶3). The supreme court held “that when parties consent in writing to the court’s determination of custody, they are consenting and agreeing to that determination.” Id. at 148 (¶15). The supreme court further stated:
It is logical and reasonable that “application of both parties” exists when both parties consent to allowing the court to determine custody. The fact that the parties request that the court determine which parent is to receive “primary custody” does not alter this. The parties are allowing the court to determine what form of custody is in the best interest of the child. If joint custody is determined to be in the best interest of the child using court-specified factors, i.e., the Albright factors, the parties should not be able to prohibit this by the wording of the consent. . . . To be sure, unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody. This is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties.
Id. at 147 (¶¶12-13). “The Crider court held that it is logical that when both parties consent for the court to determine custody, they fulfill the ‘application of both parents’ requirement of section 93-5-24(2).” Phillips, 45 So. 3d at 695 (¶33) (citation omitted).
¶14. In the present case, the parties do not dispute that they both consented to the chancellor’s determination of custody and that the “application of both parents” requirement discussed in Crider was met. Therefore, we turn our focus to whether the chancellor erred in awarding joint custody because of the parents’ inability to “shar[e] joint custody cooperatively.” Crider, 904 So. 2d at 147 (¶13). The supreme court has concluded that section 93-5-24(2) “should be interpreted to allow the chancellor to award joint custody in an irreconcilable[-]differences divorce if it is in the best interest of the child.” Phillips, 45 So. 3d at 695 (¶33) (citing Crider, 904 So. 2d at 148 (¶16)).
The decision goes on to find that the chancellor did, in her analysis of the facts, adequately weigh the parties’ ability to cooperate, and that she was in the best position as the trier of fact to determine how to resolve conflicting evidence at trial for the best interest of the minor children. The court concluded that this issue lacked merit.
As for the maxim argument, Judge Carlton addressed it as follows:
¶18. Melanie next argues that the award of joint custody essentially ensures future litigation; therefore, the chancellor violated the maxim that “[e]quity delights to do complete justice, and not by halves.” Melanie asserts that future litigation is likely because the chancellor failed to determine in which county the children should reside or where they should reside once they begin kindergarten. Melanie and Dustin reside in different counties, and Melanie contends that the children will be put “in the unenviable position of shifting back and forth from home to home during the school year.”
¶19. In support of her argument, Melanie relies on this Court’s decision in Daniel v. Daniel, 770 So. 2d 562 (Miss. Ct. App. 2000). The chancellor in Daniel awarded both parents joint legal custody of their minor child, with custody alternating every two weeks. Id. at 563 (¶2). This arrangement was to continue until the child turned five and entered kindergarten, at which time the father would receive physical custody. Id. In affirming the chancellor’s determination of the custody arrangement, we stated:
We are aware of the fact that a practice of constantly alternating a child back and forth to each parent is not a habit that should be encouraged. The Mississippi Supreme Court has spoken on this issue on more than one occasion, ruling that it is not in the best interest of a small child to be shifted from parent to parent. However, in this case, we are mindful that the child is nearing the age of five[-]year[-]old kindergarten and has been subjected to the rotating custody order since the chancellor’s judgment was handed down on December 15, 1998. We therefore can see no reason why what has become the child’s regular routine should be interrupted. Nonetheless, we agree with the chancellor that at such time as the child begins kindergarten, it will be necessary for the child to maintain the stability that is crucial at the beginning stages of her education.
Id. at 567 (¶15) (internal citations and quotation marks omitted).
¶20. In the present case, Melanie argues that the parties’ two minor children need the same stability given to the minor child in Daniel. She asserts that the parties’ children should reside with her in Warren County, where they currently attend daycare. In light of the Court’s decision in Daniel, and to provide the parties’ children with the stability that is crucial at the beginning stages of education, Melanie asks that the case be remanded with instructions for the chancellor to determine which parent should be the primary physical custodian.
¶21. As previously discussed, the decision to award the parties joint legal and physical custody was within the chancellor’s discretion since the parties agreed to submit this issue to her for determination. Bearing in mind our limited scope of review on appeal, we find that the chancellor did not commit manifest error in awarding joint custody. Therefore, this issue also lacks merit.
Bravo to Melanie’s appellate counsel for making the maxim argument. I thought it was apropos. Don’t let the fact that the COA didn’t buy the argument in this case discourage you from asserting claims based on the maxims in other cases. I’ve stressed here before that the maxims underly all actions in and relief granted by chancery courts, so they are always a legitimate basis for advocating for your client’s position.
No Great-Grandparent Visitation
March 19, 2014 § Leave a comment
Grandparent visitation is a legislative creation that first made its appearance in Mississippi in 1983, and it is now codified at MCA 93-16-1. The concept was unknown to the common law.
We posted here before that there is no right of sibling or step-parent visitation.
But what about great-grandparents? They are, after all, grandparents themselves.
That was the question squarely before the COA in the case of Lott v. Alexander, handed down March 11, 2014.
The Alexanders are the great-grandparents of the children with whom visitation was sought. Lott, the children’s mother, is the Alexanders’ granddaughter. It appears from the record that, for whatever reason, the Alexanders have stood in the shoes of their own daugher, who is or was the grandmother of the children with whom visitation was requested. Based on that relationship, and on the judge’s findings that they met the criteria for grandparent visitation, the chancellor found that they were entitled to grandparent visitation. Lott appealed.
Judge Fair, for the majority, wrote that the statute, which is plain and unambiguous, does not include or even define great-grandparent status. The courts have no authority to expand or add to the scope of an unambiguous statute, so great-grandparent visitation is not available in Mississippi.
Judge Fair’s analysis is detailed and comprehensive. I commend it to your reading.
The outcome in this case should be no surprise. The statute is in derogation of common law, and, therefore, must be strictly construed. There is no room for the courts to add great-grandparents, siblings, step-parents, or any other categories of relatives whatsoever. That’s up to the legislature.
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