Beyond the Scope of the Pleadings
July 5, 2017 § Leave a comment
It’s fundamental that, if you want relief, you have to ask for it (or pray for it, in chancery parlance). There are scads of cases on the point. The only two exceptions that I am certain of are: (1) where an issue is tried without objection and a motion to amend the pleadings to conform to the proof is timely made per MRCP 15; and (2) where the chancellor fashions ancillary relief in order to afford the relief requested.
In the recent COA case In the Matter of C.T.; Taylor v. Timmons, decided June 6, 2017, the chancellor modified visitation even though no one asked for that relief. The appellant argued that the modification was beyond the court’s authority, since no one had pled for it. The COA affirmed, with Judge Lee writing for the unanimous court:
¶16. Taylor argues that the chancellor’s modification was an abuse of discretion because neither party requested the modification or presented evidence that the visitation schedule was not working. However, the record is replete with evidence that the visitation schedule was not working. Though neither party petitioned the chancery court for modification of visitation, Taylor did file a petition for contempt, asserting that he was not getting visitation with the child. Taylor also testified extensively that he was unable to visit with the child. Timmons testified that she had not denied Taylor visitation, but that she had begged Taylor to visit with the child. The chancellor also noted that there was some confusion between the parties regarding the details of visitation under the agreed order. As such, there was a clear showing that the prior visitation order was not working, and the chancellor’s finding that a modification was necessary was supported by substantial evidence. Given the chancellor’s “broad discretion to determine the specific times for visitation,” the chancellor did not abuse his discretion in modifying the visitation schedule. Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016) (citation omitted). This issue is without merit.
No doubt the chancellor was being practical and was attempting to solve as many of these people’s conflicts as he could in one stab.
I don’t think one could argue convincingly, though, that the visitation modification was directly related to the relief sought. Take this case as support for the proposition that the appellate courts will generally defer to a chancellor acting as problem-solver. But be forewarned: there are cases going the other way.
Decision-Making in Joint Legal Custody
June 26, 2017 § 4 Comments
Jessica Timmons had a baby by Jason Taylor, and the two filed a joint pleading to establish paternity and all of the attendant relief. They agreed that Jessica would have physical custody, and that she and Jason would share joint legal custody.
They later had a falling out because Jessica wanted their child to attend a particular private school, and Jason did not agree. Their dispute would up before a chancellor, who ruled that Jessica had the right to make the call, since she was the physical custodian. Jason appealed.
In In the Matter of C.T.; Taylor v. Timmons, handed down June 6, 2017, the COA affirmed. Judge Lee wrote for a unanimous court:
¶7. Taylor argues that the chancellor erred when he found that although Timmons and Taylor shared joint legal custody, Timmons—as the custodial parent—was entitled to make decisions regarding where the child would attend school. At trial, the chancellor noted that Taylor felt strongly that the child should attend a certain private school. The chancellor also noted that Taylor was given input to voice his position, but that the ultimate decision in regard to where the child would attend school belonged to Timmons as the custodial parent. For support, Taylor cites Mississippi Code Annotated section 93-5-24(5)(e) (Rev. 2013), which states in relevant part:
“joint legal custody” means that the parents or parties share the decision-making rights, the responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.
¶8. Taylor is correct that joint legal custody imparts shared decision-making rights relating to the child’s education. However, Taylor fails to note that section 93-5-24(5)(e) also provides that in cases of joint physical and legal custody, “unless allocated, apportioned or decreed, the parents or parties shall confer with one another in the exercise of decision making rights, responsibilities and authority.” (Emphasis added). Here, the chancellor allocated to Timmons the “discretion to make a determination about where the child goes to school.”
¶9. “Mississippi statutory law and jurisprudence recognize that the chancellor may indeed allocate decision-making and duties to each parent sharing joint legal custody.” Carpenter v. Lyles, 120 So. 3d 1031, 1037 (¶22) (Miss. Ct. App. 2013) (citing Goudelock v. Goudelock, 104 So. 3d 158, 165 (¶¶29-30) (Miss. Ct. App. 2012); Purviance v. Burgess, 980 So. 2d 308, 312-13 (¶¶18-20) (Miss. Ct. App. 2007)). “In cases where decision[-]making was apportioned, courts have determined that joint legal custody, including the communication required in support of such relationship, requires no moment-to-moment input or veto power over every large and small decision on child rearing . . . .” Id. Mississippi caselaw also recognizes that “the custodial parent may determine the child’s upbringing, including his education and health and dental care. Such discretion is inherent in custody. It is vested in the custodial [parent.]” Clements v. Young, 481 So. 2d 263, 267 (Miss. 1985); see also Ayers v. Ayers, 734 So. 2d 213, 217 (¶20) (Miss. Ct. App. 1999).
¶10. Here, the chancellor was well within his discretion to allocate this decision-making to one parent. Further, our caselaw favors the custodial parent having the discretion for such a decision. Accordingly, we do not find that the chancellor abused his discretion in allocating to Timmons the decision-making authority in regard to where the child attends school. Therefore, this issue is without merit.
No quarrel with that from me.
BUT … what to do when the parties share both legal and physical custody? In this district we require that one parent or the other have final decision-making authority. You can read a post about it here, if you care to.
When you are counselling your client about custody issues, it’s a good idea to acquaint her or him with the concept that, although all is hunky-dory between them today, things can change, and what seems so easy and agreeable now may be infested with considerable volatility and hostility later. It’s better to make the lines of authority clear now, while negotiations are under way, than to have to fight through months and even years of litigation and attorney’s fees later. No, it’s not a simple issue to negotiate through, but it’s well worth the trouble addressing it up front. If you take the easy way out and sell your client on a joint-legal and -physical arrangement that later winds up biting him or her, it’s going to leave a bitter taste in that client’s mouth.
Best Interest and Grandparent Visitation
May 15, 2017 § Leave a comment
Tier One grandparent visitation, which is provided in MCA 93-16-3(1), allows grandparents to petition for visitation when either (a) one or both of the parents have their parental rights terminated; or (b) one or both of the parents dies.
I think it’s fair to say that most of us have construed 93-16-3(1) to mean that visitation in the specified cases is automatic, and that the real issue at such hearings is the amount and frequency of visitation, based on the trial judge’s analysis of the factors in Martin v. Coop.
In the recent case of Smith v. Martin, handed down April 20, 2017, the MSSC granted cert. to address the question whether the language of the statute requires a more thorough analysis. Appellants Smith argued that the provision in MCA 93-16-5 that the court “may, in its discretion, if it finds such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child,” requires the court to use Martin v. Coop not only for a frequency and amount analysis, but also for a best interest analysis.
Justice Kitchens wrote for a unanimous court:
¶14. As the Smiths argue, the Martin Court did not take into account Mississippi Code Section 93-16-5, which states that the chancery court “may, in its discretion, if it finds that such visitation rights would be in the best interest of the child, grant to a grandparent reasonable visitation rights with the child.” Miss. Code Ann. § 93-16-5 (Rev. 2013). Section 93-16-5 obligates the chancellor to consider the best interest of the child(ren), even if the statutory elements of Section 93-16-3(1) are met. This Court has held that “[n]atural grandparents have no common-law ‘right’ of visitation with their grandchildren. Such right must come from a legislative enactment.” Settle v. Galloway, 682 So. 2d 1032, 1035 (Miss. 1996) (citing Matter of Adoption of a Minor, 558 So. 2d 854, 856 (Miss. 1990)). “Although the Mississippi Legislature created this right by enacting § 93-16-3, it is clear that natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So. 2d at 1035.
¶15. The Martin Court erred by instructing chancellors to consider the best interest of the child(ren) only in the context of the amount of visitation, after finding an entitlement to grandparent visitation under Section 93-16-3(1). See Martin, 693 So. 2d at 916 (“The chancellor in this case found that under [Section 93-16-3(1)] the petitioners are in fact the grandparents of [the child] and that their son is deceased. Thus, all the proof necessary under § 93-16-3(1) was present and, therefore, the grandparents should be awarded visitation.”) The Martin Court ignored the requirement of Section 93-16-5 that the best interest of the child(ren) be considered in determining the grandparents’ entitlement to grandparent visitation rights. The Martin Court stated the following: “In determining the amount of visitation that grandparents should be granted in this situation, some guidelines by this Court may be helpful. As always, the best interest of the child must be the polestar consideration.” Id. (emphasis added). But, under Section 93-16-5, the best interest of the child(ren) must be considered, even if Section 93-16-3(1) is found to apply, since Section 93-16-3(1) states that “either parent of the child’s parent may petition the court . . . and seek visitation rights with the child.” Miss. Code Ann. § 93-16-3(1) (emphasis added). Section 93-16-3(1) only permits the grandparents to seek visitation; it does not entitle them to receive it. [Emphasis in original]
¶16. We have reversed a chancellor’s award of grandparent visitation where “[t]here is no indication from the chancellor’s statement, or anywhere else in the record, that the best interests of [the child] were considered by the chancellor in making her decision.” Morgan v. West, 812 So. 2d 987, 992 (Miss. 2002). This Court observed that the chancellor appeared to have been “more concerned with the best interests” of the grandmother because she found: “from prior testimony and testimony presented today that this grandmother was relied upon during the hard times, and at the present time the parents want to push her aside and treat her as an outsider. It is obvious to the Court they want to break the relationship between the grandchild and the grandmother . . . .” Id.
¶17. The Mississippi Court of Appeals likewise has reversed a chancellor’s award of grandparent visitation, noting that “the Legislature has outlined the steps a grandparent should take to pursue visitation” and that “because the child’s best interest is the fundamental concern, a chancellor must review all relevant factors as outlined in Martin before granting grandparent visitation.” Givens v. Nicholson, 878 So. 2d 1073, 1077 (Miss. Ct. App. 2004).
¶18. We clarify that, under Section 93-16-3(1), the chancellor’s consideration of the child’s or children’s best interest is not limited to the determination of the amount of visitation, but must be considered in determining whether the grandparents should receive visitation in the first place. The Smiths contend that the chancellor’s statements at the hearing indicate that she expected the Smiths, in order for them to prevail, to prove that the mental and emotional health of the Martins rendered them incapable of exercising grandparent visitation and that the Martins posed a threat to Cliff and Hank. But our review of the record leads us to conclude that the chancellor carefully analyzed Sections 93-16-3(1) and (2) and scrupulously weighed each Martin factor, thereby performing the correct analytical process and properly applying the right procedural, evidentiary, and statutory principles. This process led her to a fair and just resolution of a difficult and emotional case. The present case greatly differs from those in which this Court has deemed reversal the only appropriate remedy. See Morgan, 812 So. 2d at 992 (This Court reversed because the chancellor had not considered the best interest of the child at all and “the chancellor did not articulate her findings regarding the Martin factors . . . .”) Here, we can identify no manifest error which would warrant reversal, and the record before us is clear that the paramount consideration supporting the chancellor’s decision was the best interest of the children. [Emphasis mine]
This is an important decision that you need to know about when you handle a Tier One grandparent visitation case. From now on, when you represent the grandparents, you must put on proof that visitation is in the child’s best interest through the filter of the Martin v. Coop factors, as well as your case on the amount and frequency. If you fail to address best interest based on Martin v. Coop, you just might get 41(b)’d out of court.
Fixing Visitation
April 10, 2017 § Leave a comment
A New York court awarded Allison Estes custody of her minor son and authorized her move to Mississippi. Kevin McKeown, the father, was awarded visitation, and he was obligated to provide Allison with notice of visitation, an itinerary, and the address where he would be staying during visitation.
Following several visitations in which Kevin did not provide advance notice or the required information, Allison filed suit in Mississippi. There was a period in which process repeatedly failed, until Kevin was personally served. He then entered an appearance pro se, and made several objections to jurisdiction. Kevin did not attend the trial, at which he was found in contempt. The chancellor also suspended visitation until Kevin would produce proof of residence, and imposed the condition that visitation could not be exercised without proper notice. He also assessed Kevin with $2,200 in attorney’s fees. Kevin appealed.
In McKeown v. Estes, decided March 7, 2017, the COA affirmed. Judge Barnes addressed the issue of limitations on visitation for the court:
¶23. Finally, Kevin claims that the chancellor showed “little regard to the best interest of [the child], [and] bias and poor discretion in ignoring the ‘totality of the circumstances.’” Kevin does not elaborate regarding how the chancellor allegedly showed bias or ignored the totality of some unspecified circumstances. In any event, Kevin cites Ash v. Ash, 622 So. 2d 1264, 1266 (Miss. 1993), as support for his very brief claim.
¶24. Ash did not involve modification of visitation conditions. Instead, Ash followed an order modifying custody of a child. Id. at 1265-67. The mother’s “continued refusal” to allow the child to visit his father led to custody modification. Id. at 1266. But Ash does not support Kevin’s claim that the chancellor erred by modifying certain conditions of Kevin’s visitation. Kevin does not argue that the modified conditions are unreasonable. Moreover, Kevin does not attempt to explain how those conditions are somehow contrary to the child’s best interest, or how they could negatively impact his relationship with his son.
¶25. “To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.” Moreland v. Spears, 187 So. 3d 661, 666 (¶17) (Miss. Ct. App. 2016). “The chancellor is granted ‘broad discretion’ in visitation determinations[,] and [an appellate c]ourt will not reverse a chancellor’s findings of fact so long as they are supported by substantial evidence in the record.” Wilburn, 991 So. 2d at 1194 (¶20). “[T]he best interest of the child is the main concern in determining visitation.” Id. at (¶23).
¶26. Allison testified that the New York visitation order was not working because Kevin was not complying with it, and there were no consequences for his noncompliance. When he provided late, last-minute notice that he would exercise his summer visitation, it was difficult to prepare their child for his long interstate trip. Kevin also failed to return the child when he said he would; so the child missed activities that had been scheduled in advance. Additionally, Allison was not able to contact the child during Kevin’s visitation, and Kevin would not disclose the child’s location. Modifying the visitation order to provide specific provisions rather than ones that are flexible and vague was in the child’s best interest, because it tends to foster a more positive and harmonious relationship between Allison and Kevin. See Cox v. Moulds, 490 So. 2d 866, 869 (Miss. 1986). Consequently, we find that the chancellor did not act contrary to the child’s best interest, and it was within his discretion to modify the New York visitation order.
¶27. We recognize that “[a]bsent extraordinary circumstances, the noncustodial parent during visitation should have broad authority and discretion with respect to the place and manner of visitation.” Jaggers v. Magruder, 129 So. 3d 965, 969 (¶21) (Miss. Ct. App. 2014). The chancellor’s decision does not impact Kevin’s broad authority and discretion regarding where he takes his son during his visitation periods. He must simply inform Allison where he will be exercising it, and provide her with adequate notice before he does so. Considering the distance between Oxford and New York City, those conditions are not unreasonable. This issue is meritless.
This case highlights the broad authority of a chancellor to the often vexatious conflicts that arise over visitation. Conditions and restrictions may be imposed where reasonable and necessary to address the problems with visitation.
When Another State has Jurisdiction Over Your Custody and Support Case
March 20, 2017 § 2 Comments
John Hamilton and Kidron Young were divorced from each other in Muskingham County, Ohio. The 2010 judgment granted custody of the parties’ daughter to Young.
Young moved to Mississippi with the child and registered the Ohio divorce judgment with the Lee County Chancery Court per MCA 93-25-81 and 83, as a prelude to making the Ohio judgment enforceable to the same extent as a Mississippi judgment. The July 30, 2013, nunc pro tunc to July 15, 2013, court order accepting the Ohio judgment recited that the court took jurisdiction “of all matters relating to the minor child, including, but not limited to: custody, visitation and support, pursuant to Section 93-25-101.” The order directed that it was to be “spread upon the minutes” of the Ohio court.
Hamilton, meanwhile, had filed an action to modify aspects of custody in the Ohio court. On August 21, 2013, that court entered an order ruling that, because Hamilton still resided in Muskingham County, Ohio, that court retained jurisdiction over the custody issues. The court approved an agreed judgment between the parties.
In November, 2014, the court amended the judgment again on recommendation of the Muskingham County Department of Job and Family Services to reduce Hamilton’s child support.
Young then filed a complaint in Lee County Chancery Court for modification of the September, 2013, and November, 2014, Ohio judgments. Hamilton responded with a timely motion to dismiss based on Ohio’s exercise of continuing, exclusive jurisdiction and his continued residence in that state. Following a hearing the chancellor ruled against Hamilton because: (1) the chancellor had had a conversation with an Ohio judge prior to entry of the July, 2013, order in which the Ohio judge had relinquished jurisdiction; (2) Lee County had granted full faith and credit and assumed jurisdiction based on the conversation; and (3) the Ohio court’s August, 2013, ruling that it continued to have jurisdiction was undated, and, therefore, not proper.
Hamilton filed for an interlocutory appeal. In Hamilton v. Young, decided February 16, 2017, the MSSC reversed and rendered, sending the case for adjudication back to Ohio.
You can read Justice Beam’s decision, which is an excellent exposition of the law of jurisdiction in these cases, for yourself.
I just want to make a few points:
- Jurisdictional issues in custody and child support cases can be complex and confusing. My advice is to (1) read the statutes, and (2) Go to a source such as Bell on Mississippi Family Law for enlightenment. Although the law is fairly clear, how to apply it to the facts at hand is often anything but clear.
- To make a long story short, UIFSA provides that, if one of the parents continues to reside in the state that issued a child-support order, that state has continuing, exclusive jurisdiction as long as the parent continues to live there, unless the parties agree to let the state of the other parent assume jurisdiction. In this case, since there was no agreement, Ohio retained jurisdiction, even though the child no longer resided there.
- As for the UCCJEA, Ohio continued to have jurisdiction to modify its own judgments because Hamilton continued to live there. In order to have jurisdiction in Mississippi, the Ohio court would have had to have determined that Mississippi was the more convenient and proper forum, considering the factors in Ohio Code § 3127.21 (counterpart to MCA 93-25-207). Since that was never done, it was not proper for Mississippi to unilaterally assume jurisdiction.
- What about that conversation between the two judges alluded to by the chancellor in his ruling? At ¶21, the court points out that there is nothing in the record recording that conversation, and written findings are required by MCA 93-25-101(b). That sort of informal discussion without the proper, written findings is simply not enough. Hint: if the judge doesn’t do it, you need to volunteer to do it for him or her.
- The mere fact that you record a foreign judgment, even if no contest to the recording is made, is not enough to confer jurisdiction (¶¶22-25).
Excluding a Party from the Court Room During Trial
December 5, 2016 § 6 Comments
NOTE: The MSSC reversed the COA in Miller v. Smith, decided October 26, 2017. The Supreme Court’s decision held that a party may not be excluded from the courtroom, per Article 3, Section 25 of the Mississippi Constitution.
When it comes time for children to testify in a chancery court trial, there is a host of factors to take into account. Is it in the child’s best interest to testify? Is the child competent? Is it really necessary to subject the child to that experience?
Once the decision is made to allow the child to testify, the question arises as to how the testimony should be taken. Should the parents be present?
That question arose at trial in the case of Miller v. Smith, decided by the COA on November 22, 2016. In that case, the chancellor had excluded both the father and the mother from the court room in a contested child-custody modification case where an adolescent step-child offered testimony of sexual abuse. In an opinion affirming the trial judge, Judge Fair wrote for the COA:
¶18. At trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.
¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United States and Mississippi Constitutions. He further argues that his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.
¶20. The Confrontation Clause only applies to criminal cases. “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him . . . .” Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails.
¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.
¶22. Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview was taken using closed-circuit television, as provided in Rule 617. [Fn 7]
[Fn7]
Rule 617 provides:
(a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:
(1) the child is under the age of 16 years;
(2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and
(3) there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify:
(A) in open court; and
(B) in a criminal case, in the presence of the accused. (Emphasis added).
¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person . . . .
¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during Kristen’s testimony. Because Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not have the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So. 2d 1119, 1121 (¶21) (Miss. 2003) (holding that, as a matter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).
¶25. There are exceptions to the Rule. For example, in Rule 617, parties who are alleged to be guilty of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen year-old stepchild.
¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So. 3d 317, 320 (¶9) (Miss. 2013); Woulard v. State, 832 So. 2d 561, 565 (¶13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.
The situation described here is, as Judge Fair notes, fairly common in chancery court. In my experience, the parties often agree that they will leave the court room during the child’s testimony, as long as their attorneys can remain and participate. Most parents do not want to appear to be trying to pressure the child or to be putting their own interests ahead of the child’s, so they agree. In those cases where they both do not agree, however, and the chancellor finds that it would be in the child’s best interest for them to be excluded, this case is authority to support that action.
The Dismissive Dismissal
October 31, 2016 § 2 Comments
In the case of Crater v. BNY Mellon, handed down October 18, 2016, the trial court dismissed the plaintiff’s complaint for lack of standing and refused her motion to amend.
Bank of New York (BNY) Mellon had begin foreclosure on the deed of trust (DT) on Brenda Crater’s home. She filed suit alleging that her original mortgage company, HLC, had improperly assigned its interest in the DT to BNY Mellon.
Mellon moved to dismiss for failure to state a claim (R 12(b)(6)) on the basis that Crater had no standing to dispute the assignment.
Crater then filed a motion to amend to assert various new claims, including fraud.
The chancellor, six days later, summarily dismissed Crater’s complaint.
Crater moved to amend or alter the dismissal order claiming that the court improperly failed to grant her motion to amend. The chancellor overruled the motion and refused to grant leave to amend, finding that the new claims had no legal basis and were barred by the SOL. Brenda appealed.
In its opinion, by Judge Greenlee, the court rejected Brenda’s argument that the trial judge erroneously dismissed her complaint:
¶10. Crater asserts that the trial court erred by not ruling on her motion to amend her
complaint prior to granting Mellon’s motion to dismiss. Mississippi Rule of Civil Procedure 15(a) states that when a Mississippi Rule of Civil Procedure 12(b)(6) motion is before the court, leave to amend shall be freely given when justice so requires. M.R.C.P. 15(a). If the facts and circumstances relied upon by a plaintiff may be a proper subject of relief, she should be given the opportunity to test her claim on the merits. Webb [v. Braswell, 930 So.2d ]387] at 393 (¶9) (citing Moeller v. Am. Guar. & Liab. Ins., 812 So. 2d 953, 962 (¶28) (Miss. 2002)). If it is apparent that the amendment would cause undue prejudice to the opposing party because the amendment would be futile, then leave should not be freely given. Id.
The court went on to find that, since Crater’s new claims were against a non-party who had not been served with process, and the SOL barred the vague claims, and since they invoked a statutory right that did not exist, amendment would be futile, and should not have been granted. The chancellor, therefore, was not in error.
This case is a reminder that, if you get dismissed per R12(b)(6), you do not have an automatic right to a do-over on your pleadings. You must have a viable, judiciable claim.
The amendment provision of 12(b)(6) is designed to prevent an otherwise viable suit from being dismissed due to flawed pleading. For instance, if you file a child custody modification case and do not plead that “there has been a material change in circumstances that is having or has had an adverse effect on the minor child,” or words to that effect, the complaint fails to state a claim. See, McMurry v. Sadler, 846 So.2d 240, 244 (Miss. App. 2002). If the other side tests the sufficiency of your pleading that omitted those words, and the judge sustains their motion, you should be granted leave to amend to add the appropriate language.
If you get dinged by a 12(b)(6) motion, be sure you make an immediate motion for leave to amend. The rule specifically states that, ” … if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).” The rule does not say that the judge shall automatically grant it without your motion to do so, although I see no reason why the judge can not; however, if the judge does not do it sua sponte, and you stood silent, you should assume that you don’t have leave to amend, and your suit may go bye-bye with the running of time.
A post on the critical importance of pleading both material change and adverse effect in custody-modification cases is at this link.
The Joint Legal Custody Mirage
October 18, 2016 § Leave a comment
One of the most effective ways to help ease your client into an agreement package that includes ceding physical custody to the other party is to sell the concept of joint legal custody.
What’s not to like? Joint legal custody, as defined in MCA 93-5-24(5)(e), requires that the parents or parties …
” … share the decision-making rights, responsibilities and the authority relating to the health, education and welfare of a child. An award of joint legal custody obligates the parties to exchange information concerning the health, education and welfare of the minor child, and to confer with one another in the exercise of decision-making rights, responsibilities and authority.”
That sounds pretty straightforward. It sounds like when the parties share joint legal custody, there will be a process of shared decision-making and authority.
That’s the concept that brought Edwin Clyde Neely to the COA. A Special Chancellor had found him in contempt of a divorce judgment for not reimbursing his ex-wife, Lisa, for medical and college expenses incurred for the children. Edwin had defended on the basis that he had not been consulted on certain expenses, including a car, a laptop, and an off-campus apartment, despite the fact that the parties had joint legal custody. The chancellor swept past that argument, and Edwin appealed.
In the case of Neely v. Neely, decided October 11, 2016, the COA affirmed. Judge Greenlee wrote for a near-unanimous court, with the now-customary one judge “concurs in part and in the result without separate written opinion,” or the like. Here is what Judge Greenlee said on the point:
¶12. Edwin argues that Lisa’s refusal to involve him in the decision-making process on major expenses violates an implicit duty of sharing joint legal custody. In Laird, this Court affirmed the chancellor’s refusal to order the noncustodial parent to reimburse the custodial parent for various expenses incurred on behalf of the child, including clothing, school supplies, and a bicycle. Laird, 788 So. 2d at 851 (¶14). In that case, the original decree required consultation and mutual agreement between the parties prior to incurring expenses for education and similarly important matters. Id. The parties did not communicate concerning the expenses, and many of the expenses were duplicated between the two households. Id.
¶13. Here, the Agreement between Lisa and Edwin does not explicitly require consultation and mutual agreement between the parties prior to incurring the expenses. With the exception of reasonable college expenses, each expense is divided equally between the two parties. The chancellor heard testimony concerning whether each expense was reasonable, and held in Edwin’s favor that he did not have to pay the entirety of the expense of his freshman daughter renting an apartment off-campus, even though the original decree provided that Edwin would be solely responsible for all reasonable college expenses. We cannot find that the chancellor abused his discretion in finding Edwin in contempt and ordering him to reimburse the qualified expenses of $14,073.92. [Emphasis added]
That first sentence of ¶13 is somewhat of a head-scratcher. MCA 93-5-24(5)(e) specifically “obligates” the parties to confer (or consult, if you prefer), in the very kind of decisions involved in this case, and to share as well in the decision-making authority. There would not need to be a specific provision to that effect in the PSA or judgment because the statute specifically imports that duty into it via its definition of the term “joint legal custody.” I do agree that the statute does not require “mutual agreement” before incurring the expense, and there was no such requirement between the parties in this case. There was, however, a statutory duty to confer in the decision-making leading up to the expenses, and a statutory duty to share in the decision-making authority.
So, in light of a decision like this, how do you advise your clients when drafting an agreement or when confronted with a client complaining that he or she was left out of the decision-making loop? I guess the best tactic on the front end is to spell out in specific language what the duties of each parent shall be, and do not rely on the language of the statute. Professor Bell points out at § 12.04[1][a] of Bell on Mississippi Family Law, 2d Ed., that the MSSC ” … characterized joint legal custody as approximating the authority of an intact nuclear family” (citing Rutledge v. Rutledge, 487 So.2d 218, 219 (Miss. 1986)). That’s all well and good, but you’d best spell out just what that entails.
As for that chagrined client who was left out of the conferring and decision-making process, I don’t think the cases or the statutes point a clear direction. In many cases that come to trial, the mere fact that there was no conferring does not overcome the fact that the expenses were clearly necessary for the benefit of the child. I think you have to take it on a case-by-case basis, with the necessity for and the reasonableness of the expenses, with the parties’ relative financial situations, being the main considerations.
In this district, we will approve joint-legal-custody arrangements only where there is a tie-breaker provision. You can read about that at this link.
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