December 3, 2019 § 1 Comment
MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.
But that’s Rule 4. How does that apply in Rule 81 actions?
In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:
¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.
¶12. Mississippi Rule of Civil Procedure 4(h) states:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
(Emphasis added). Rule 81(a)(9), however, states in pertinent part:
Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures, . . . [including] Title 93 of the Mississippi Code of 1972.
(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that
upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.
¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).
¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).
¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.
¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.
A few observations:
- It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
- Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
- I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
- In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
- You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.
June 25, 2019 § Leave a comment
Shanna Hayes was found in constructive criminal contempt by the chancellor for refusing to allow her ex-husband his court-ordered visitation. On appeal, she argued that the judge erred by not recusing himself. In the case of Hayes v. Hayes, decided May 7, 2019, at ¶27, the following statement appears:
“We do find that she was in a position to request that the trial judge recuse himself; rather, she waived that opportunity. Shanna admittedly did not object until after the trial court rendered its decision. In fact, Shanna allowed the trial court to adjudicate her rights and failed to file a motion asking the judge to recuse. “The failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Latham v. Latham, 261 So. 3d 1110, 1113 (¶9) (Miss. 2019) (citing Rice v. State, 134 So. 3d 292, 299 (¶16) (Miss. 2014)); see also Tubwell v. Grant, 760 So. 2d 687, 689 (¶8) (Miss. 2000) (holding where the party knew of the grounds for the motion or with the exercise of reasonable diligence may have discovered those grounds, and where that party does not move timely prior to trial, the point will be deemed waived). Therefore, we take the same position as the majority court in Latham and find that because Shanna failed to object to the judge’s recusal and preserve the issue for appeal, any assignment of error relative to that issue is waived. See Latham, 261 So. 3d at 1115 (¶20).”
To me, that statement is somewhat misleading. It appears to suggest that you have the right in every constructive criminal contempt case to ask the court to recuse. If that’s what it is trying to say, that’s inaccurate, as we will see. But first, let’s consider the two species of criminal contempt. There is direct criminal contempt, which is contemptuous conduct committed in the presence of the court, and it may be dealt with immediately. And there is constructive criminal contempt, which is contemptuous conduct that occurs outside the presence of the court, and it requires that the defendant be given notice of the alleged misconduct and a hearing.
Most constructive contempt occurs between the parties, as above when Ms. Hayes denied her ex his visitation rights. It doesn’t make any sense that a judge should have to recuse in that kind of case. But what about where the judge generates the case? A possible example might be where a deputy overheard an angry litigant in the hallway, outside the judge’s presence, mutter to a friend, “I’m going to kill that judge for that,” and the deputy reports it to the judge, who initiates a contempt action.
Justice Maxwell, wrote a helpful specially concurring opinion in the MSSC’s Latham v. Latham, decided January 17, 2019, in which he fleshes out the distinction:
¶27. I agree with the majority that, by not requesting that the chancellor recuse, Roger has waived this issue on appeal. But given Roger’s argument, I find it would be helpful to Roger—as well as the bench and bar—to explain why, in this particular constructive criminal-contempt case, Roger had to request the chancellor recuse to preserve this issue.
¶28. Part of Roger’s argument is that recusal could not be waived. He suggests it was the chancellor’s duty to recuse sua sponte given the nature of the contempt. As Roger sees it, our caselaw mandates judges recuse in every case involving constructive criminal contempt. Roger’s view hinges on his reading of two cases—Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 868 (Miss. 2004), and In re Smith, 926 So. 2d 878, 888 (Miss. 2006). He argues that, when read together, the cases “extend” the requirement to recuse sua sponte in any case involving constructive criminal contempt. But a closer look shows that neither case alters this Court’s well-established standard for when a judge must recuse in a constructive criminal-contempt case. Instead, both cases maintain that “[i]t is necessary for that individual to be tried by another judge in cases of constructive contempt where the trial judge has substantial personal involvement in the prosecution.” Smith, 926 So. 2d at 888 (emphasis added) (quoting In re Williamson, 838 So. 2d 226, 238 (Miss. 2002)); see also Cooper Tire, 890 So. 2d at 869.
¶29. In other words, it is not simply the nature of the contempt that mandates recusal. Indeed, the constructive criminal nature of the contempt is just part of the inquiry. The judge must also have “substantial personal involvement in the prosecution” to trigger the due process requirement that the matter be tried by another judge. Corr v. State, 97 So. 3d 1211, 1215 (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151 (Miss. 2011)). “Examples of ‘substantial personal involvement in the prosecution warranting recusal include cases where the trial judge acts as a ‘one-man grand jury;’ where the trial judge is ‘instrumental in the initiation of the constructive-contempt proceedings;’ and where the trial judge ‘acts as prosecutor and judge.’” Id. (quoting Graves, 66 So. 3d at 154). E.g., Corr, 97 So. 3d at 1215 (holding that the chancellor had substantial personal involvement because he initiated the contempt proceeding when he issued show-cause orders); In re Williamson, 838 So. 2d at 238 (holding that the chancellor had substantial personal involvement because he was a material witness in the contempt proceeding).
¶30. Here, Roger does not even argue the chancellor had substantial personal involvement in the prosecution of the contempt proceeding—a proceeding admittedly initiated by his wife. Nor does the record support such a finding. So the chancellor was not required to recuse sua sponte. As the majority explains, recusal was discretionary. And the chancellor can hardly be said to have abused his discretion by not recusing when he was never asked to do so.
That’s about as clear a statement as one could hope for on the issue.
January 8, 2019 § Leave a comment
Note: this post was edited at 11:00, am to correct a misstatement in the first paragraph that contempt is a R81 matter, not a R4 matter as originally posted. Sorry for the error
It’s a fairly common occurrence that a counterclaim for contempt is filed in a divorce action, or a motion for adjudication of contempt is filed in a pending divorce. As we all know, divorce is a R4 matter, and contempt is a R81 matter, so is new, or different, process required to proceed on the contempt claim?
Here’s what the COA said in Thornton v. Thornton, an August 14, 2018, decision:
¶22. Additionally, regarding Brenda’s assignment of error attacking the chancellor’s ruling on her petition for contempt, we recognize that “[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81.” Shavers v. Shavers, 982 So. 2d 397, 402 (¶25) (Miss. 2008). We therefore find that Brenda’s argument regarding the contempt proceedings is not properly before this Court because “the contempt action [is] separate from the divorce judgment cited in the notice of appeal.” Williamson v. Williamson, 81 So. 3d 262, 277 (¶34) (Miss. Ct. App. 2012). We now turn to address Brenda’s other issues before us on appeal.
Shaver is a tad peculiar because it involved a removal to federal court followed by a remand back to state court, and a question about what effect that had on state court jurisdiction. Williamson involves a post-appeal contempt in which the COA ruled that the contempt action was no part of the divorce that had been appealed.
Shaver does cite Sanghi v. Sanghi, 759 So.2d 1250, 1255 (Miss. App. 2000), in which the parties were engaged in a long-dormant divorce case. Mrs. Sanghi filed a pleading to have Dr. Sanhi held in contempt for failure to pay child support, and he was served by certified mail, since he was already before the court in the divorce action via R4 summons. Here is the COA’s discussion:
¶ 24. This takes us full circle back to the question of whether Dr. Sanghi received sufficient notice of the April 13 hearing that underlies the actions at the July 2 hearing. To reiterate, Dr. Sanghi received notice of the first hearing that had been scheduled for March 9. That notice was not a summons sent by certified mail under Rule 4(c)(5), though the “motions” were sent by that procedure. Instead it was a “Notice of Court Setting” sent first class mail by the court administrator. This notice made Dr. Sanghi aware of the need to seek a postponement and presumably also to seek counsel to initiate the removal. The result of the requested delay was that the court administrator then mailed a notice on February 16, 1998, that the new hearing would be on April 13, 1998. There is nothing in the record explicitly confirming that Dr. Sanghi received the second notice, but he does state in his brief that the April 13 date was set at his request. There are several indications in the record and briefs but no direct proof that he was aware of the April 13 setting from the time that he sought a postponement of the March 9 hearing, but he just did not appear. Again, the inadequacy of the record is at the peril of the appellant Dr. Sanghi, so we proceed under the stated assumptions.
¶ 25. We have just described what was done. We now look at what should have been done. Whether the judgment is valid depends largely on the nature of the defects that occurred.
¶ 26. Rule 81(d)(3) requires that a petition or complaint be filed to modify or enforce child support and alimony judgments or to seek contempt. The mislabeling of the initiating pleading is a matter of form and would not by itself create a lack of authority for the court to act.
¶ 27. After the petition is filed, a summons is to issue notifying the respondent of the time and place for an appearance. If an answer to the petition is required, the notice should state that as well. M.R.C.P. 81(d)(4) & (5). Nothing is said about the available means of service, but the rule provides that the procedures “control to the extent that they may be in conflict with any other provision of these rules.” M.R.C.P. 81(d). The implication is that where Rule 81 does not even address a necessary procedure covered in the general rules, then the general provisions apply. Since 81 does not speak to the means for service of summons, it cannot conflict with the general rules that do. Not to be overlooked, though, is that Rule 81 controls the content of the summons. Service on an out-of-state defendant cannot be completed under Rule 4 by sending a summons by regular mail. Had a return envelope to send an acknowledgment of receipt been included and then utilized by Dr. Sanghi, that would have sufficed. M.R.C.P. 4(c)(3)(A). Certified mail service on an out-of-state defendant also is adequate, if the receipt is returned. M.R.C.P. 4(c)(5).
¶ 28. The notice of the April 13 hearing was not a Rule 81(d)(5) summons, though it provided most of the relevant information. The only required information under the Rule is that a party is to be told the time and place for the hearing and that no answer is needed. M.R.C.P. 81(d)(4) & (d)(5). The sample form that sets out the summons also indicates that the case name is to be shown, the suit number, the name of the person being served, and that failure to appear may result in a judgment with monetary or other consequences; the petition that initiated the action also is to be attached. M.R.C.P. Form 1D. These forms are not mandatory, but use of them removes any question of sufficiency under the Rules. M.R.C.P. 84. The notice sent by the court administrator contained all of the information that Form 1D would have contained, except that there was no statement regarding the need for a written response nor any language commanding attendance or warning that failure to appear could have significant consequences. The same day or perhaps the day before, the three “motions” were separately sent by certified mail and received by Dr. Sanghi.
Most often these matters get tried by consent, so there is a waiver of the objection and the parties resolve it that way.
But when you are handling a R4 case in which R81 issues later arise, especially against a pro se litigant, I strongly encourage you to issue that extra R81 summons. It’s worth the extra cost, time and effort.
September 12, 2018 § Leave a comment
Inability to pay is often asserted as a defense in contempt actions. All too often, though, it fails for insufficient proof.
The burden of establishing inability to pay is on the one claiming the defense. It must be shown “with particularity, and not in general terms.” That is the phrase used by the MSSC in McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), in which the court said:
¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make … child support payments as ordered, because of his inability to pay … his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, [Fn omitted] and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278. [Fn 3]
[Fn 3] While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For “[o]nce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).
¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.
Financial difficulty does not constitute inability to pay. As Professor Bell points out, ” … [C]ontempt may be avoided only on proof that the payor lived economically, paid only bare living expenses, and used all remaining funds to satisfy the support obligation.” Bell on Mississippi Family Law, 2d Ed., § 14.05[a]. In Lane v. Lane, 850 So.2d 122, 125-126 (Miss. 2002), the court addressed the appellant’s proof at trial of inability to pay:
¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.
¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.
Notice the language ” … absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie … .” That’s what it takes to establish inability to pay.
As Jimmy Lane also learned in his unsuccessful trial and appeal, liability for other debts does not excuse non-payment of support. In the ancient case of Kincaid v. Kincaid, 213 Miss. 451, 466-467, 57 So.2d 263, 265 (1952), the court laid out the rule, which is still good law 66 years later:
In Amis on Divorce and Separation in Mississippi, Section 206, the rule is stated that a husband may not ask for modification of the original decree without showing that he has performed it or that its performance has been wholly impossible, and in Section 279 the author discusses the rules laid down in Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712 on which both parties here rely, and points out that if the husband undertakes to exonerate himself because of his inability to pay his proof must conform to those rules, namely: ‘That he earned all he could, that he lived economically and paid all surplus money above a living on the alimony decreed to the wife. And such proof must be made with particularity and not in general terms. In such a case he must show what his earnings were and what his living expense was, including that of those legally dependent on him, but not of any other person. The payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because the wife’s right to alimony is a prior and paramount claim on his earnings. Nor will the fact that his earnings were insufficient to support himself and pay alimony exonerate him if he has other money or property which he could sell or encumber to get money with which to make the payments, even though it may be exempt.’ See also Millis v. State, 106 Miss. 131, 63 So. 344, and Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113. The foregoing views are not in conflict with what was said in Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368, on which appellant relies and which case is clearly distinguishable from the case at bar.
Whether the obligation was child support or alimony, the rules for proving inability to pay are the same.
Keep in mind the US Supreme Court’s ruling in Turner v. Rodgers, about which I posted at this link. You must put the contempt defendant on notice that his ability to pay may be an issue at the hearing, and you must provide a template (such as an 8.05 form) for him to provide the information necessary to his defense. And the court must make a finding of ability to pay before imposing incarceration.
August 7, 2018 § 2 Comments
Can a lawyer be held to have provided “ineffective assistance of counsel” in a chancery court proceeding?
That’s what Elle Adams argued in her pro se appeal from a chancellor’s determination to hold her in contempt for denying her child’s father visitation.
In Adams v. Rice, decided June 12, 2018, the COA through Judge Barnes answered in the negative:
¶34. Finally, Elle argues that her counsel was ineffective. In January 2016, the attorney at issue [Fn omitted] entered an appearance. She later represented Elle at the hearing on March 31, 2016, where Elle failed to appear. Elle complains that her counsel “belittled” and “mocked” her at the beginning of the hearing by explaining to the chancellor that Elle had contacted her several times about being unable to travel to the hearing due to a sick child. Elle also criticized her counsel for advising her that she would “lose the case” if she was absent from the hearing.
¶35. Elle’s argument is procedurally and substantively without merit. The Sixth Amendment right to effective assistance of counsel is triggered in criminal proceedings, not family-law matters. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (discussing the standard of ineffective-assistance-of-counsel claims in the context of criminal proceedings). Notwithstanding the impropriety of the claim, this Court has reviewed the transcript and found, as the chancellor noted at the hearing, that Elle’s attorney “did a good job” representing Elle’s interests in her absence. Counsel apparently tried to impress upon Elle the importance of her appearance and the impact her absence could have on the outcome of the case. Elle’s accusations about her counsel are unfounded, and her argument is without merit.
The opinion points out that Elle hired and fired several lawyers and represented herself through the course of the case.
I point this case out only to underscore what you already know if you have practiced any family law at all: there are some clients who will criticize you and even file bar complaints against you no matter how hard you work for them, and even when you produce a good outcome. It comes with the territory of being a lawyer. Judges get it, too. The chancellor in this case was accused of bias and prejudice, and even sued in federal court, over her handling of the case. Once Elle learned a little about how to wield the law as a weapon, she scattershot every target in sight.
As for ineffective assistance, sadly there are lawyers who should never set foot in a courtroom as an advocate. But the overwhelming majority of lawyers are effective, conscientious, zealous, and competent in pursuing their clients’ interests. None of those attributes, however, alone or in combination, will shield you from the wrath of an irrational client.
March 5, 2018 § Leave a comment
Kasey Hamp sued Bernardrick McKinney through DHS for paternity and child support. McKinney, a professional NFL player, was adjudged to be the father of Hamp’s child and was ordered to pay child support. Later, after McKinney received a signing bonus and increased income, Hamp filed for modification.
Following a hearing, the chancellor ordered an increase in child support and a lump-sum back-payment. McKinney appealed and posted a supersedeas bond. On advice of counsel, he continued paying the pre-modification amount of child support and Hamp filed a contempt action. In his defense, McKinney asserted the supersedeas bond. The chancellor found that the bond was not effective to stay the contempt proceeding because: (a) the ongoing child-support obligation was not a money judgment as provided in MRAP 8(a); and (b) McKinney’s bond was for $28,434.73, which the judge found to be some $8,000 less than the rule’s 125% requirement. McKinney appealed.
On the issue whether a supersedeas bond stays an ongoing obligation to pay child support, the MSSC held that it does not in the case of McKinney v. Hamp decided February 8, 2018. Justice Maxwell wrote for the majority:
¶37. This Court has held that “[t]he amount of a supersedeas bond should be sufficient to protect the appellee in his judgment; therefore, it should insure the payment of the judgment and interest, and any waste that could occur pending the appeal.” In re Estate of Taylor, 539 So. 2d 1029, 1031 (Miss. 1989). And when a supersedeas bond for appeal is approved, execution on the underlying judgment or decree is suspended. Lindsey v. Lindsey, 219 Miss. 720, 723, 69 So. 2d 844, 844-45 (1954).
¶38. In a judicial-performance case, this Court has made very clear that a supersedeas bond stays execution of a child-support-modification order. Miss. Comm’n on Judicial Performance v. Littlejohn, 172 So. 3d 1157, 1160 (Miss. 2015). Indeed, this Court found a chancellor abused his power and committed misconduct by holding a parent in contempt for not paying a support order he had appealed with a supersedeas bond. Id. That chancellor was suspended without payor disregarding “the clear wording” of Rule 8(a) and this Court’s application of it in Lindsey. Littlejohn, 172 So. 3d at 1160, 1163.
¶39. There is, however, a significant distinction between Littlejohn and this case. That distinction is the difference in the type of child-support payments appealed. In Littlejohn, a child-support order was modified and the father was required to pay $15,000 for an automobile for his child and $1,750 in attorney’s fees—together, a definitive money judgment. And rather than pay this sum, the father secured a supersedeas bond under Rule 8(a). But here, we are dealing with prospective, monthly, child-support obligations, not a definitive money judgment. And this Court has never squarely addressed whether prospective, monthly, child-support obligations can be stayed by a supersedeas bond under
¶40. This Court has, however, recognized the need for continued, monthly, child-support payments to provide support for the child during the pendency of an appeal. Petersen v. Petersen, 238 Miss. 190, 118 So. 2d 300, 304 (1960). In Petersen, the chancellor entered a decree awarding monthly, child-support payments but stated that such payments “should remain in effect pending the appeal with supersedeas . . . .” Petersen, 238 Miss. at 198-99, 118 So. 2d at 304. And this Court held the chancellor was clearly justified in requiring continued, monthly, child-support payments pending an appeal with supersedeas. Id. But until today, this Court has not addressed whether prospective, monthly child-support
payments can be stayed as money judgments by a Mississippi Rule of Appellate Procedure 8(a) supersedeas bond. [Fn 8]
[Fn 8] The Court of Appeals has previously concluded, in an unpublished opinion, that prospective, monthly-child support payments are not money judgments and therefore cannot be stayed by a Rule 8(a) supersedeas bond. See Bland v. McCord, 94-CA-00947-COA, 94-CA-01158-COA (Miss. Ct. App. Sep. 17, 1996).
¶41. Under Mississippi law, child-support payments become fixed and vested when the payments become due and unpaid. Brand v. Brand, 482 So. 2d 236, 237 (Miss. 1986). And as each payment comes due, it becomes “a judgment” against the noncustodial parent. Id. (citations omitted). Once fixed and vested, those judgments cannot be modified. See Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980); see also Cunliffe v. Swartzfager, 437 So. 2d 43, 45-46 (Miss. 1983). So, because child-support arrearages and other definitive, one-time, child-support payments can be reduced to money judgments, a Rule 8(a) supersedeas bond can protect an appellee. But that is not necessarily the case for prospective,
monthly, child-support obligations. We find these are not money judgments and cannot be stayed by a Rule 8(a) supersedeas bond.
¶42. But this does not necessarily mean McKinney could not have sought a supersedeas bond. However, to do so, he would have had to make an application to the chancellor for a stay under Mississippi Rule of Appellate Procedure 8(b). [Fn omitted] And the chancellor, not the clerk, would have to decide whether to approve the bond, in light of an opposing party contesting the bond.
¶43. Turning to this case, we find the chancellor’s order modifying the monthly child support award could not be stayed by a Rule 8(a) supersedeas bond. Accordingly, McKinney was required either to apply for and be granted a supersedeas bond under Rule 8(b) or to make the increased, monthly, child-support payments. But, as to the retroactive child-support award, it was a definitive, one-time payment of a monetary sum. So a Rule 8(a) supersedeas bond would adequately protect Hamp, and ultimately K.M., during the appeal.
¶44. We therefore affirm the chancellor’s ruling that prospective, monthly, child-support obligations are not money judgments that can be stayed by a Rule 8(a) supersedeas bond. However, we reverse and render the chancellor’s decision that a Rule 8(a) supersedeas bond could not stay execution on the retroactive child support.
The court went on to reverse the chancellor’s contempt findings based on McKinney’s belief that he was protected by the supersedeas bond.
- This case confirms what most chancellors have considered MRAP 8 to mean: that ongoing child support obligation is not stayed by supersedeas.
- This case also confirms what most chancellors have considered MRAP to mean vis a vis money judgments for a fixed sum: that a supersedeas bond will, indeed, stay judgment.
- If there is no agreement between the parties over the amount of the bond or whether it should be granted at all, the matter must be resolved by the chancellor. The clerk’s approval of a bond in that circumstance would be ineffective (See ¶42, above).
- Don’t put too much stock in the majority’s reversal of the contempt finding in this case. There were some particular facts that led to that conclusion (See ¶¶45-48). Justice Beam’s dissent (¶¶54-65) eloquently spells out the ample authority that casts considerable doubt on the defense of “I was Only Relying on my Attorney’s Advice.”
February 14, 2018 § Leave a comment
Back on May 18, 2017, I posted here about the COA’s decision in Carter v. Davis, in which the COA decided, among several issues raised, that the chancellor erred in awarding attorney’s fees in a contempt case where the defendant was found not to be in contempt, but the trial judge awarded fees based on the fact that his conduct had made the filing of the action necessary.
The MSSC granted cert on the sole issue of attorney’s fees.
In the case of Carter v. Davis, handed down January 25, 2018, the MSSC reversed the COA on the point and reinstated the chancellor’s decision. Judge Maxwell wrote for the court:
¶5. The chancellor did not have to find Davis in willful contempt to award her attorney’s fees. Instead, we have long held that, when there has been a default in child support, the party seeking to enforce the decree is entitled to attorney’s fees, even when nonpayment was not due to willful contempt. Mizell v. Mizell, 708 So. 2d 55, 65 (Miss. 1998); Moore v. Moore, 372 So. 2d 270, 272 (Miss. 1979), overruled on other grounds by Dep’t of Human Servs., State of Miss. v. Fillingane, 761 So. 2d 869, 871 (Miss. 2000); Pearson v. Hatcher, 279 So. 2d 654, 656 (Miss. 1973). “Otherwise, the responsibility of support would be reduced by the amount the party seeking to enforce the decree would be required to pay an attorney to enforce the decree.” Moore, 372 So. 2d at 272 (citing Pearson, 279 So. 2d at 656).
¶6. In reversing and rendering the attorney’s fees award based on no willful contempt, the Court of Appeals cited McKnight v. Jenkins, 155 So. 3d 730, 732 (Miss. 2013). But in that case, we found not only was there no willful contempt by the ex-wife who refused to pay a medical bill, we also found there was no obligation under the support order to pay the bill, which was really a litigation expense and not her child’s medical expense. Id. And we reversed both the underlying award and the attorney’s fees award connected to it. Id.
¶7. Here, by contrast, the chancellor found Davis had significant financial obligations under the divorce judgment. Though the chancellor credited Davis for his and his mother’s direct payments, the chancellor still found Davis had failed to comply fully with the terms of the judgment. As the chancellor noted in his order, Davis acknowledged the arrearage. And this arrearage required Carter to initiate this action. Therefore, the chancellor rightly recognized that Carter—just like the ex-wives in Mizell, Moore, and Pearson—was entitled to attorney’s fees, even though the chancellor did not find Davis in willful contempt based on the credits. See Mizell, 708 So. 2d at 65; Moore, 372 So. 2d at 272; Pearson, 279 So. 2d
¶8. After finding attorney’s fees were appropriate, the chancellor then determined $7,500 to be a reasonable amount—a decision that fell within his “sound discretion.” Mizell, 708 So. 2d at 65. Because the chancellor supported his decision with record evidence, we find no abuse in his awarding Carter $7,500 in attorney’s fees. See id. (“We are reluctant to disturb a chancellor’s discretionary determination whether or not to award attorney fees and of the amount of any award.”).
¶9. For these reasons, while we affirm the Court of Appeals’ judgment on the child support-credit issues, we reverse its decision to reverse and render the attorney’s fee award. We reinstate and affirm the judgment of the chancery court, which awarded Carter $3,276.66 in past-due child support and $7,500 in attorney’s fees.
The rule is that if you have to file an action to enforce an obligation imposed by court order, the filing of the action alone is sufficient to support award of attorney’s fees if the opposing party is found to be in default, even if there is no finding of contempt.
January 31, 2018 § Leave a comment
Amaria and David Vassar became embroiled in a divorce in 2015. Amaria was required by a temporary order to pay the mortgage notes on the marital residence that was jointly owned by them, but only Amaria was obligated on the note, apparently due to David’s poor credit history.
Instead of paying the note as ordered, Amaria quit paying it and cut off the utilities to the house. By the time of the final hearing, Amaria had amassed an arrearage in mortgage payments of nearly $13,000.
In his final ruling on the divorce issues, the chancellor found Amaria in civil contempt and ordered that she be incarcerated until she pay the arrearage. Six days later, Amaria filed a motion for release from jail on the basis that the proof at trial had shown she was unable to pay it. That motion appears to have been denied. Twenty-one days later, she obtained new counsel and filed yet another motion for release based on the same grounds and further informing the court that she had military orders to report for duty. The motion again was unsuccessful. Finally, after she had been incarcerated more than 40 days, Amaria filed for bankruptcy on the mortgage note, and the chancellor ordered her to be released.
On appeal, Amaria challenged the incarceration order as well as other aspects of the court’s ruling. In Vassar v. Vasar, an October 17, 2017, ruling, the COA reversed and remanded. Judge Wilson wrote the majority opinion:
¶47. Amaria also argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the marital home. Amaria does not contest the chancellor’s finding of contempt—only the order of incarceration. Amaria is no longer incarcerated. She was released after she spent forty-seven days in jail and filed for bankruptcy. Nonetheless, she argues that we should review the issue under the “capable of repetition yet evading review” exception to the mootness doctrine. We agree that the issue is appropriate to review and that the chancellor erred by incarcerating Amaria given her clear inability to purge herself of contempt by paying the mortgage arrearage.
¶48. “Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree.” Riser v. Peterson, 566 So. 2d 210, 211 (Miss. 1990). In Riser, the Mississippi Supreme Court stated: “For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration.” Id. at 212 (emphasis added; capitalization omitted).
¶49. Here, Amaria concedes that she was in contempt because she violated the chancery court’s temporary order requiring her to pay the mortgage and utilities on the marital home. Amaria’s only argument is that she should not have been incarcerated because the record is
clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage arrearage that the chancellor ordered her to pay as a condition of her release. We agree. Under Riser, even if inability to pay is not a defense to the underlying contempt, it is always a continuing defense to incarceration. The evidence was clear that on July 1, 2016, Amaria could not pay $12,997.65 or anything close to that amount. The chancellor therefore erred by ordering Amaria to be incarcerated until such time as she paid that amount.
¶50. Amaria’s release from jail after forty-seven days arguably renders moot her challenge to her incarceration. [Fn omitted] However, we may address an issue that is otherwise moot when “the following elements combine: (1) The challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) There was a reasonable expectation that the same complaining party would be subject to the same action again.” Strong v. Bostick, 420 So. 2d 1356, 1359 (Miss. 1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This is known as the “capable of repetition yet evading review” exception to the mootness doctrine. Id. The United States Supreme Court has applied this exception in a case in which a father challenged his incarceration for failure to pay child support but was released before his case reached the Court. See Turner v. Rogers, 564 U.S. 431, 439-41 (2011); see also Koestler v. Koestler, 976 So. 2d 372, 379-80 (¶¶19-23) (Miss. Ct. App. 2008) (holding that an appeal from an involuntary civil commitment fit within the exception even though the individual had been discharged).
¶51. Although the facts of Turner are distinguishable in some respects, we agree with Amaria that this exception to the mootness doctrine is applicable. Amaria remained in jail for forty-seven days until she was released for reasons that are not explained in the record. She was never able to comply with the originally stated condition for her release—payment of the mortgage arrearage. In addition, the final judgment imposed a series of financial obligations that were beyond her ability to pay. While we have reversed and remanded these obligations for reconsideration, it is appropriate to address the order of incarceration because it is capable of repetition in the future and could again result in a period of incarceration too short for full litigation of the issue.
Inability to pay, then, is both a defense to the finding of contempt, and to the sentence of incarceration. As to the latter, it is a continuing defense, meaning that it may be asserted as often as the condition persists, as Amaria did in this case. The US Supreme Court’s Turner v. Rogers case cited above, is instructive on how incarceration relates to inability to pay.
Only caveat is that the defense of inability to pay is ticklishly difficult to prove under existing Mississippi case law. Check out the many cases cited in Professor Bell’s book (2nd Ed.) at page 490, Fns 133-135. I suggest that the defense of inability vis a vis contempt demands stronger proof than the defense to incarceration or continued incarceration. I know of no Mississippi cases to support this assertion, but I think Turner v. Rogers supports it.
December 19, 2017 § 1 Comment
REASONABLENESS AND ATTORNEY’S FEES IN CONTEMPT
September 17, 2012 § 1 Comment
In the COA case of Bowen v. Bowen, decided September 11, 2012, the court reversed and remanded the chancellor’s award of $10,000 fees in a case where the judge found the defendant in contempt. It was not the award of fees that the COA questioned, but rather the amount and reasonableness.
As we have mentioned here before, inability to pay is not a threshhold issue to an award of attorney’s fees based on contempt. In a contempt case, attorney’s fees may be awarded where a party’s intentional conduct causes the opposing party to spend time and money needlessly.
Judge Ishee’s opinion in Bowen points out that the determination whether a fee is reasonable depends on consideration of Mississippi Rule of Professional Conduct 1.5(a) and the McKee factors. He said:
” … even in contempt actions, “[t]he reasonableness of attorney’s fees [is] controlled by the applicable [Rule] 1.5 factors and the McKee factors.” …
¶25. When awarding Patricia attorney’s fees, the chancery court stated:
‘Although [John] has attempted to purge himself of his contempt by bringing the child support and medical insurance payments current, . . . the [c]ourt is going to assess [John] with attorney’s fees incurred by [Patricia]. If not for [John’s] repeated, willful refusal to abide by the orders of this court, [Patricia] would not have incurred the attorney’s fees, which the court finds to be reasonable and [to] meet all of the McKee factors.
There is no indication the chancery court adequately considered the McKee factors when assessing the reasonableness of the attorney’s fees. There was no consideration regarding the parties financial abilities, the novelty and difficulty of the question at issue, or the assessment of the charges.
¶26. The case at hand appears to be a routine contempt action. While large awards for attorney’s fees may still be awarded in contempt actions, they are not typical for a routine contempt action. … Here, an award of $10,000 appears excessive for a routine contempt action in which only $135 in child support remains unpaid. Furthermore, upon a review of the fees incurred, some charges relate to matters outside of the contempt action, such as modification of child support. Because the attorney’s fees were awarded based on John’s ‘repeated, willful refusal to abide by the orders of [the chancery court],’ fees not related to the contempt action should not have been included in the award amount awarded.”
I’ve made the point here before that …
Notwithstanding the more relaxed standard for contempt and misconduct cases, I encourage you to put on proof of the McKee factorsand documentation of your time in the case, so that it is in the record if you need it. A post on what you need to prove attorneys fees is here.
Most attorneys in my opinion do not devote much attention or care to making a record on attorney’s fees. That’s ironic, because you would think it would be a subject of sublime importance to the trial attorney.
Here’s a post about how to prove attorney’s fees in a divorce case. It’s more elaborate than the minimum required in a contempt, but it will give you an idea of what is involved in making a record that won’t spring a fatal leak.
August 22, 2017 § Leave a comment
What you ask for in your pleadings will determine what the judge can award. So you need to be sure you’re asking for the right thing.
A recent example is the case of Fox v. Fox, decided July 18, 2017, by the COA. At the trial level, the judge found Tasha Fox in civil and criminal contempt for refusing visitation to her ex, William. Judge Fair’s succinct opinion for the COA reversed the chancellor’s ruling:
¶6. The record reflects that the chancellor found Tasha to be in both civil and criminal contempt for her refusal to allow William visitation under the April 2015 order. The chancellor sentenced Tasha to three days’ imprisonment, suspended on the condition that she surrender the child to William for a two-week visitation in July 2016. Tasha does not contest the finding of civil contempt.
¶7. On this point, we agree: William’s petition only alleged civil contempt, and Tasha was not afforded any of the procedural protections required to support a conviction of criminal contempt. See In re McDonald, 98 So. 3d 1040, 1042-45 (¶¶4-12) (Miss. 2012). We vacate the chancellor’s finding of criminal contempt.
Since William had prayed only for a finding of civil contempt, that was all he should have gotten. Tasha was not put on notice by the pleadings that she was in jeopardy of a criminal contempt ruling at the hearing, and notice was required. Here are the basics that you need to know about contempt:
- Civil contempt is designed to coerce a party into complying with a court order. The burden of proving civil contempt is by clear and convincing evidence. In civil contempt, the guilty party is said to “hold the keys to the jail,” because he or she can gain release immediately simply by complying with the court’s orders. The commitment order typically says that the defendant is jailed until he or she purges him/herself of contempt by complying.
- Criminal contempt is punitive, and is intended to punish non-compliance. The burden necessary to prove criminal contempt is beyond a reasonable doubt. Incarceration may not exceed 30 days for each offense. MCA 9-1-17.
- Direct criminal contempt is based on actions that occur in the presence of the judge, and may be dealt with by the judge summarily and immediately, and without notice. An example might be a party cussing out the judge to her face in open court. Incarceration may not exceed 30 days for each offense.
- Constructive criminal contempt is contemptuous conduct that occurs outside the presence of the judge. It requires a pleading specifying the conduct complained of, notice, and an opportunity to be heard. If the judge initiates the action, the judge must recuse and allow the matter to be heard by another judge. See McDonald, supra.
In Tasha’s case, civil contempt would probably not have accomplished much. After the judge announced his findings, she could simply have said that she was ready to comply, and that would have ended that. This was probably a chronic problem that the chancellor was trying to stop by sending Tasha a memorable message.
Had Tasha’s attorney thought it through, he might have realized that it’s best to ask always for civil and criminal contempt. That way, the judge has the latitude to address the problem in the most effective way.