August 14, 2017 § Leave a comment
The dispute between Paulette Byas and her siblings, Victor and Mary, over access to their deceased mother’s residence, will not likely make a deep impression in Mississippi jurisprudence. But the COA’s opinion by Judge Lee in Estate of Byas: Byas v. Byas, decided June 13, 2017, offers a handful of helpful nuggets on the subject of contempt, criminal contempt in particular, that I thought I would serve you up a helping of bullet points from the case:
- “If the primary purpose [of the contempt order] is to enforce the rights of private party litigants or enforce compliance with a court order, the contempt is civil.” Purvis v. Purvis, 657 So. 2d 794, 796 (Miss. 1994).
- Criminal contempt is designed to punish the defendant for disobedience of a court order. In re Smith, 926 So. 2d 878, 887-88 (¶13) (Miss. 2006). “This is proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court, or the court’s directive.” Id. As Victor and Mary were punished for disobeying a court order and ordered to pay fines to the court, this case is a matter of criminal contempt. See, e.g., Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶14) (Miss. 2011) (“[C]onstructive criminal contempt punishes a party for noncompliant conduct outside the court’s presence. . . . The contemnor must pay constructive criminal-contempt fines to the court, rather than to an injured party.”).
- ¶13. Next, it is our duty to determine whether the record proves Victor’s and Mary’s guilt beyond a reasonable doubt. Smith, 926 So. 2d at 888 (¶13). We “proceed ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Purvis, 657 at 797 (citation omitted). The burden of proof is on the party asserting that contemptuous conduct has occurred. In re Hampton, 919 So. 2d 949, 954 (¶13) (Miss. 2006).
- ¶14. There are two forms of criminal contempt: direct contempt and constructive contempt. “Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice.” Moulds v. Bradley, 791 So. 2d 220, 224 (¶7) (Miss. 2001). The punishment for direct criminal contempt “may be meted out instantly by the judge in whose presence the offensive conduct was committed . . . .” Id. Constructive criminal contempt, however, involves actions that occur outside the presence of the court. Id. at 225 (¶8). Most importantly, the contemnors must be provided certain procedural due-process safeguards such as a specification of the charges against them, notice, and a hearing. Id. Here, those due-process safeguards were met.
There’s a lot more to contempt, but it’s nice every now and then to have a case that reminds of the basics.
May 18, 2017 § 5 Comments
[NOTE: The MSSC reversed the COA’s decision on attorney’s fees on January 25, 2018, in Carter v. Davis.]
Every now and then a case wafts its way down from the exalted appellate stratosphere to us mortals down here at ground level and blesses us with a veritable potpourri of legal points that we can use in our mundane chancery existence.
A recent example is the case of Carter v. Davis, handed down by the COA on April 4, 2017.
Deveaux Carter had sued her ex-husband, Allen Davis, for contempt based on non-payment of child support. She contended that he owed $23,682 in child support arrearage, plus interest in the amount of $35,599, plus $88,664 for the children’s college expenses, plus $13,703 for unpaid medical expenses of the children, plus one-half the cost of the children’s vehicles, plus attorney’s fees and costs.
Following a trial, the chancellor determined that Allen owed $201,187, but the chancellor gave him credit for: (1) direct payments to the children during their time in college; (2) amounts paid to Deveaux and the children even after their emancipation; and (3) amounts paid by Allen’s mother. All three categories of payments combined totalled $197, 911, leaving a difference of $3,276, for which Deveaux was awarded a judgment. Allen was assessed a $7,500 attorney’s fee and costs.
Deveaux appealed, complaining about the credits. Allen cross-appealed, unhappy with the attorney’s fee award.
Judge Fair wrote the opinion for a unanimous court. Here are the points you can use:
- It’s discretionary with the chancellor whether to grant credit for direct payments to the children (¶13).
- It is proper to allow credit for direct payments to the children where to hold otherwise would unjustly enrich the other parent (¶13).
- The credit may only be allowed when the payments by the payor were for matters contemplated by the original support order, such as food, shelter, or clothing (¶13).
- Payments made by a grandparent may properly be credited to a parent if they are not restricted to some non-support purpose (¶11-12).
- In order to support an award of attorney’s fees against a party, that party must be found in “willful” contempt. It is not enough to find that the action was made necessary by the conduct of that party (¶15).
- The appellate court will not award appellate attorney’s fees when the trial court award of attorney’s fees is reversed (¶16).
The COA affirmed as to the chancellor’s credits, but reversed on the award of attorney’s fees, finding that the chancellor specifically held that Allen was not in willful contempt, but assessed the attorney’s fee solely because Deveaux was forced to bring the action. Since the attorney’s fee award at trial was reversed, the COA refused Deveaux’s request that she be awarded the customary one-half of the trial court’s award as an appellate attorney’s fee.
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[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.
October 6, 2016 § Leave a comment
A couple of days ago we discussed a case in which a natural mother falsely and fraudulently claimed not to know who was the father of her child, which led a chancellor to enter an adoption judgment that later had to be set aside for fraud on the court.
Fraud on the court was the issue in a recent COA case, but the result was different than that in the adoption case.
Ronald and Belinda Betts were divorced in 2011. Belinda later sued Ronald for contempt several times. In one of those proceedings, Ronald had omitted a debt on his financial statement, and the chancellor noted that such an omission “can amount to a fraud perpetrated on the court and contempt.
When Belinda filed a third contempt action against Ronald, he borrowed a page from the chancellor’s earlier admonition and claimed in defense that the divorce judgment entered the previous year should be set aside per R60(b)(6) because Belinda made a false representation to the court in her divorce-action financial statement by omitting her interest in some property she inherited jointly with her sister. Belinda countered that she did not know or believe the land to be her property at the time.
The chancellor overruled Ronald’s motion and found him in contempt for non-payment of amounts he was ordered to pay under the divorce judgment. Ronald appealed.
In Betts v. Betts, handed down September 13, 2006, the COA affirmed. Judge Griffis wrote for a unanimous court:
¶11. Ronald argues that Belinda’s failure to list the property on her Rule 8.05 financial statement constituted an intentional filing of a substantially false statement and fraud upon the court. Belinda contends that Ronald’s unclean hands bar him from relief.
¶12. Rule 60 provides in part:
(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the
. . . .
(6) any other reason justifying relief from the judgment.
“Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted in
exceptional and compelling circumstances, such as for fraud upon the court.” Trim v. Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010).
¶13. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Id. at 477 (¶15). “[S]imply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. There must be a finding that the disclosure was intentional.” Finch, 137 So. 3d at 235 (¶23).
¶14. “[A] party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court.” Trim, 33 So. 3d at 478 (¶17). And “no time limit constrain[s] the chancellor’s ability to modify the divorce judgment to remedy the fraud on the court.” Id.
¶15. The following elements constituting intentional or fraudulent representation must be proven by clear and convincing evidence:
(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.
Id. at (¶19) (citing McCord v. Healthcare Recoveries Inc., 960 So. 2d 399, 406 (¶17) (Miss. 2007)).
¶16. The chancellor declined to set aside or modify the divorce decree after finding that Belinda did not intentionally mislead the court and that Ronald came to court with unclean hands after failing to disclose certain property rights on his Rule 8.05 financial statement. “[T]he trial court is best able to determine whether a fraud has been perpetrated upon it. As a result, the chancellor’s determination of the issue is entitled to great weight.” Tirouda v. State, 919 So. 2d 211, 216 (¶12) (Miss. Ct. App. 2005). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of fact.” Trim, 33 So. 3d at 479 (¶20).
¶17. The testimony from Belinda supports the chancellor’s conclusion that she did not know of her false representation to the court. She simply did not consider the property her own. She had not paid for the property, and she was not using the property for any purpose. The testimony showed that her mother currently or previously lived on the property, and Belinda considered it her parents’ land. Intentional or fraudulent representation requires that a representation be made, which the speaker knows to be false, with the intent that it should be acted on by the hearer. Fitch, 137 So. 3d at 235 (¶23).
¶18. Belinda’s conduct was not shown to be “the most egregious misconduct, . . . ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Trim, 33 So. 3d at 477 (¶15). And even though she failed to list the property in her Rule 8.05 financial statement, “simply failing to disclose essential facts to the proceedings to the adverse party or to the court does not rise to the level of fraud.” Finch, 137 So. 3d at 235 (¶23). “[A] party is not entitled to relief [under Rule 60(b)] simply because he is unhappy with a judgment.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013).
¶19. Furthermore, Ronald himself failed to list mineral rights in his possession on his Rule 8.05 financial statement, leading the chancellor to find that Ronald came to court with unclean hands. “Mississippi’s chancery courts are courts of equity, and under the clean[-]hands doctrine, anyone that comes before ‘a court of equity . . . must do equity as a condition of recovery.’” Dill v. Dill, 908 So. 2d 198, 202 (¶11) (Miss. Ct. App. 2005). “This doctrine, in effect, prevents a complainant from petitioning the court to modify an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Id. The chancellor noted: “Just as Belinda failed to disclose an asset at the time of their divorce, so did Ronald.”
¶20. This Court finds that the chancellor did not abuse his discretion in denying Ronald relief under Rule 60(b). As such, the substantial evidence supports the chancellor’s discretionary ruling as the fact-finder.
Before you wade off into the shark-infested waters of R60 on a raft of fraud, make sure it is stout enough to support your case.
Not every omission of evidence amounts to a fraud on the court. This case is a good recitation of the law on the point. You should file it away for future reference.
October 4, 2016 § Leave a comment
It’s pretty much a given that, if you are found to be in contempt of a court order, you will be assessed with the other side’s reasonable attorney’s fees.
The point was brought home again recently in the COA case of Dupree v. Pafford, decided September 6, 2016.
In that case, Stephanie Dupree had been found in contempt of court orders for discovery in a contempt/modification action, and for her denial of visitation. Unhappy with the trial court’s rulings, Stephanie appealed. Two of her contentions were (1) that there was no proof that the father of her child, Patrick, was unable to pay his attorney’s fees, and (2) that the court did not adequately address the reasonableness of the fees that were assessed. Judge Fair wrote for the majority:
¶8. Next, Stephanie contends that the chancellor erred in finding the fees to be reasonable. She makes two distinct arguments here, and the first is easily disposed of: Stephanie contends that the chancery court was required to find that Patrick was unable to pay his own attorney’s fees. This is simply not required when a finding of contempt has been made:
When a party is held in contempt for violating a valid judgment of the court,
attorney’s fees should be awarded to the party that has been forced to seek the
court’s enforcement of its own judgment. The award may be assessed against
the offending party without regard to the recipient’s inability to pay.
Caldwell v. Atwood, 179 So. 3d 1210, 1217 (¶26) (Miss. Ct. App. 2015) (citations and
internal quotation marks omitted).
¶9. Stephanie next contends that the chancellor failed to adequately determine the
reasonableness of the fees claimed by Patrick’s attorney. The record reflects that the
chancellor expressly found the fees to be reasonable. While Stephanie faults the chancellor for not going into detail, detailed findings are not required if the award of fees is, in fact, reasonable. West v. West, 88 So. 3d 735, 747 (¶¶57-58) (Miss. 2012). On that point, Stephanie offers nothing other than her assertion that many of the fees were “generated by totally needless litigation” resulting from Patrick’s motion for custody modification, which, according to Stephanie, delayed the hearing on the contempt issue and resulted in multiple contempt motions being filed.
¶10. “An award of attorney’s fees in domestic cases is largely a matter entrusted to the
sound discretion of the trial court. Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal .” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (internal citation and quotation marks omitted). Stephanie has failed to show an abuse of discretion regarding the reasonableness of the attorney’s fee awards.
That’s pretty straightforward. As a practical matter, however, it may just be a lot of sound and fury signifying nothing, because the COA sent the case back to the trial court because the chancellor had found Patrick not to be in contempt despite a history of non-payment of child support. The COA held that Patrick’s history of non-payment and late payments should have resulted in a contempt adjudication. That will likely cost him something in attorney’s fees, which will offset — in whole or in part — the award against Stephanie.
September 27, 2016 § Leave a comment
Only a few weeks ago, we talked about the concept that if there is a pending R59 motion the trial court continues to have jurisdiction, and, until it is disposed of, any attempt to appeal will be dismissed for lack of jurisdiction in the trial court. That post is here.
Since then, in the case of Hoffman v. Hoffman, handed down September 6, 2016, the COA again dismissed an appeal in which there was a pending R59 motion. That case involved a divorce action between Brooke and Michael Hoffman.
We don’t need to address the law on the R59 point yet again. Instead, what I’d like to highlight is the procedural tangle that birthed this confusion. Here’s how Judge James described it in her opinion for a unanimous court:
¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael filed a motion for contempt of the agreed temporary order claiming that he had been denied the opportunity to visit with his minor children.
¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt of the agreed temporary order. Also, on September 23, 2014, the trial court entered a separate order denying Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order finding her in contempt.
¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s contempt order was denied.
¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of the judgment denying the divorce, her motion has not been resolved and remains pending in the trial court, based on the record before this Court. On November 12, 2014, Michael filed a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion for contempt as well as for the defense of the divorce action. A statement of legal fees was attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.
¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule” (the “Motion to Amend”). Based on the trial-court docket, this motion has not been resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of appeal of the trial court’s judgment awarding attorney’s fees.
You can tally up for yourself the layers of judgments, orders, and motions in this case. They illustrate for me how things can spiral into a convolution of complication almost before one is aware that things ate getting out of control.
Some judges will step in and try to untie the Gordian knot before it gets untie-able. But it’s really not the judge’s duty to do that. It’s your job as attorney to make a record that is comprehensible. If you don’t, your client might just end up paying the freight for a premature appeal. And remember: when you cost your clients money, they hate you; when you save them money, they love you.
September 14, 2016 § 4 Comments
The COA’s memorable decision in Pearson v. Browning, 106 So.3d 845 (Miss. App. 2012), is notable for the fact that it reversed the trial court because the counterclaiming party had not been served with a R81 summons for trial. I think most chancellors up to then — and even now — believe that once you invoke the jurisdiction of the court by filing a pleading (particularly a pleading on offense), you have submitted yourself to the jurisdiction of the court, and no further process is necessary, only notice per R5.
The reversal did not resolve the dispute between the parties, though. They went right back at it, and found themselves back in trial on contempt issues before the same chancellor. On November 5, 2013, the chancellor again ruled against Dennis Pearson, who appealed yet again. This time he contended that the original judgment rendered October 13, 2005, although styled as an “agreed” judgment, included terms not embraced in the settlement announcement and was not signed either by him or his attorney, and so was ineffective.
The COA affirmed in Pearson v. Browning, handed down August 16, 2016. Judge Irving wrote for the court:
¶8. Dennis argues that the October 13, 2005 “agreed” modification order was invalid
because he did not agree to its terms and that neither he nor his attorney signed the order, as required by Uniform Rule of Chancery Court 5.03. Rule 5.03 states: “Every consent Judgment must be approved and signed by counsel for all parties to the suit who may be represented by counsel and interested in or affected thereby before being presented to the Chancellor for his signature. The Court may also require the parties to sign.”
¶9. Dennis argues that “[i]t is clear from looking at the transcript of August 16, 2005[,]
. . . that the agreement read into the record differed from the agreement as later written in the October 13, 2005 ‘Agreed Order.’” However, Dennis makes no specific argument regarding what is different. The chancellor’s findings of fact and conclusions of law on this issue state that the October 13, 2005 agreed order “is a mirror image of the parties’ agreement as read into the record.” Dennis only complains about the portion of the order granting Patricia all equity in the marital home. However, Dennis clearly agreed to this, as well as the other provisions of the order, during the August 16, 2005 hearing.
¶10. During the August 16, 2005 hearing, Dennis’s attorney stated into the record, “We
have reached an agreement regarding all issues contained in the pleadings.” Counsel then proceeded to detail modifications to the visitation schedule; the requirement that within sixty days, Patricia would refinance the marital home, Dennis would quitclaim his interest in the marital home to her, and she would be responsible for all mortgage payments on the home; the parties’ agreement to waive any contempt issues regarding past-due bills or visitation; and each parent’s right to claim one child as a dependent for tax purposes. The parties were then placed under oath and questioned by the chancellor about the modifications. Dennis’s testimony was as follows:
Q. [Dennis,] did you understand what the attorneys read into the record as
A. Yes, I do.
Q. Was that your agreement?
A. That’s correct.
Q. Do you understand that this agreement will be put into writing and will
become the court’s order?
A. Yes, I do.
Q. And you understand that failure to follow the agreement could result in
a contempt charge against you?
A. I do.
¶11. In ruling on Dennis’s motion to set aside the agreed order as invalid, the chancellor found Dennis’s signature on the agreed order unnecessary as “surplusage,” since the agreement had been read into the record and agreed to under oath by both parties. Also, in finding no merit to Dennis’s argument that the order was inconsistent with the settlement agreement read into the record, the chancellor stated in his findings of fact and conclusions of law:
The next day after the hearing (October 14, 2005), Dennis signed a Quitclaim Deed at a bank. This act by Dennis is consistent with the agreement of the parties in the transcript. This Quitclaim Deed transfers Dennis and Patricia’s interest in the marital home and property to Patricia and her present husband, Steven. Dennis now claims that the property was conveyed to Patricia in exchange for Patricia waiving her interest in the Thrift Savings Plan and retirement. This is inconsistent with the August 16, 2005 transcript, the October 13, 2005 Agreed Judgment of Modification, and Dennis’s act of conveyance in signing the Quitclaim Deed one (1) day after the Judgment.
¶12. This Court addressed a similar issue in McDonald v. McDonald, 850 So. 2d 1182
(Miss. Ct. App. 2002), aff’d on cert., 876 So. 2d 296 (Miss. 2004). In McDonald, the wife
filed for modification of the visitation schedule that was established at the time of her and her husband’s divorce. Id. at 1185 (¶3). A hearing was held, and both parties agreed to the new schedule. Id. at (¶4). However, the husband later refused to sign an agreed order. Id. at (¶5). The wife filed a “Motion for Entry of Agreed Order.” Id. The chancellor signed and entered the order without the husband’s or his counsel’s signature. Id. at 1186 (¶5). The husband appealed, arguing the “agreed” order was invalid, as he did not sign it and did not agree with its terms. Id. at 1188 (¶18). We agreed with the husband “that there must be consent for a consent decree.” Id. at (¶21). However, we also noted that “[a] consent judgment is in the nature of a contract,” and is binding as such. Id. at 1189 (¶25). Despite the husband later changing his mind, we found that at the relevant time for consent—when the settlement terms were announced in open court—the husband did agree to the settlement, and his agreement at that time was sufficient to be contractually binding. Id.
¶13. Specifically, we held that the circumstances of announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time. Absent any showing that the final written order did not reflect the agreement announced in court, or any identification of a matter cognizable under [Mississippi] Rule [of Civil Procedure] 60 that could lead to setting aside a consent decree after [its] being entered—and neither showing exists here—we find that the parties were bound by their agreement even before it was reduced to a formal written order. McDonald, 850 So. 2d at 1189 (¶¶25-26).
¶14. While neither Dennis nor his attorney signed the agreed order, the hearing transcript reflects that Dennis understood the agreement that was read into the record and that he understood that the agreement would be put into writing and become the court’s order. His attorney made no objection at the hearing to the entry of the order. The supreme court has found that proceedings recorded by a court reporter are sufficient to prove agreement by the parties. See Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (“If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” (Emphasis added)). Dennis has not provided any proof that the agreed order did not reflect the terms of the settlement agreement read into the record. Therefore, the settlement agreement announced in court and later reduced to writing was sufficient evidence of the parties’ consent to be bound. This issue is without merit.
So the case would appear to turn on Dennis’s failure to spell out in detail exactly how the judgment varied from the announcement. I think it’s laudable that the chancellor went to the trouble of addressing Dennis’s attack on the then-eight-year-old-judgment, given the prior appellate history of this case. I am sure the chancellor was trying to ensure no more appellate ricochets.
Still, I wonder why no one pointed out that Dennis should have raised this issue of the validity of the 2005 judgment by filing a notice of appeal within 30 days of that judgment. ‘way back in 2005 — now more than ten years ago and counting. Is this really a jurisdictional argument he is making, or is this a ministerial omission that could have been cured with a R59 motion?
This case highlights why I don’t like settlement announcements. It seems that one party is always looking for a way to wriggle out of them, and they often find lawyers willing to take their money to aid them in the attempt. Words spoken are never as precise as words reduced to writing. Better to reduce the agreement to writing so all can see and edit, and then have everyone sign. That’s my position, and I’m sticking to it.
May 24, 2016 § Leave a comment
When Karen and Rickey Chance got an ID divorce in 2003, the parties’ PSA provided that Karen would get ownership of a home in Ocean Springs. Rickey was to be responsible to obtain a 30-year mortgage on the property, and to pay the mortgage debt and one-half of the ad valorem taxes for 96 months. Karen was responsible to pay her one-half of the ad valorem taxes, the hazard insurance, and to pay all taxes, insurance, and mortgage debt payments after Rickey’s obligation expired. Rickey also was to pay Karen alimony.
In 2004, Rickey got the mortgage, and the closing attorney suggested in a letter that Rickey simply reduce his alimony payments by the amount of Karen’s monthly obligation, but neither party acted on the recommendation.
To make a long story somewhat shorter, Karen never paid either her half of the taxes or the hazard insurance between 2003 and 2013. In 2013, Karen did send Rickey nearly $4,500 to pay her share of the 2013 expenses.
In the 10-year interim between 2003 and 2013, the parties talked about the situation. Karen steadfastly maintained that she did not have the financial ability to carry out her end of the deal.
In 2013, Rickey filed a petition for contempt against Karen, who responded with several defenses, most notably that of inability to pay. After a hearing the chancellor awarded Rickey a judgment for $38,584.90, and attorney’s fees. Karen appealed.
In the case of Chance v. Chance, decided May 10, 2016, the COA affirmed. You can read the opinion for yourself to see how the court dealt with Karen’s claims of laches, inability to pay, and error in award of attorney’s fees.
I want to focus on the agreement itself:
- I have seen several PSA’s lately in which one party agrees to refinance the home within some stated period of time. In every case, when I asked the lawyer whether the obligated party had the ability to do it, the answer was a shrug with a whimsical smile and “that’s what they agreed to do.” Yes, but if it’s your client who is on the hook, have you discussed whether he or she has the ability to do it? And if it’s the other party who has the duty, what impact will it have on your client if he or she proves incapable of doing as promised? Have you explored these things?
- One critical reason why this is so important to your client’s interest is that the property-division portions of a PSA are unmodifiable. East v. East, 493 So.2d 927, 931 (Miss. 1986). Your client does not get a do-over on the “oops” principle.
- Another important factor is that attempting to prove inability to pay is rarely successful. The burden is heavy, as I have pointed out here before.
- To avoid these swivet-inducing situations, build some alternatives into the agreement. If, say, your client ever can not pay her share of the taxes or insurance, the home could be listed for sale, the other party may reduce alimony and pay the taxes and insurance himself until sold, and he will be reimbursed from the proceeds. That’s one example; I am sure your creative legal genius can conjure up many others.
- Remember that if all you do is take your client’s notes and convert them into a legal-looking sheaf of papers, you are nothing more than a clerk-typist; you are misleading the public and fooling yourself if that’s what you do and you call yourself a lawyer.
November 12, 2015 § 3 Comments
Occasionally some lawyer will approach me and ask that I sign an Agreed Judgment, signed off by all concerned, that settles a contempt issue. The petition charged that the respondent had something like a $3,500 arrearage, but now the judgment says he is current. “What happened to the arrearage?” I ask. The answer is something like, “Oh, we agreed to let that go if he would agree to supervised visitation from now on,” or “He really owes $3,500, but we agreed to forgive that if he would just pay on time in the future.”
Well, you just can’t do that, not even by agreement.
In the recent COA decision in Caldwell v. Atwood, handed down November 3, 2015, the court noted at ¶20 that, “While the law allows for credit to be made for child-support payments through additional physical support by the noncustodial parent, it does not permit those payments to simply be ‘purged,’ whether by an agreement or order.”
This is a subject about which I have posted here before. You simply can’t contract away an arrearage, and, for that matter, you can’t contract away your minor children’s right to future support.
In Caldwell, the chancellor had found Thomas Atwood in arrears in child support, but did not adjudicate an amount, or order him to pay it. Instead, the chancellor ordered him to “purge” himself of contempt by paying future support equal to 14% of his adjusted gross income. The COA reversed, holding that it was error for the judge in essence to forgive the arrearage. As the court went on to say in its decision:
¶19. It is well settled that “court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” [Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994) … at (¶14) (quoting Varner v. Varner, 588 So. 2d 428, 434 (Miss. 1991)). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. at (¶13) (quoting Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009)).
The COA remanded the case for the trial court to determine the amount of arrearage owed to Caldwell, and to formulate a payment plan.
On a related point, there seems to be a vogue whereby the divorcing parents agree to joint legal and physical custody, and they use that arrangement to justify no child support, I guess due to the “shared custodial arrangement.” I do not believe in most cases that this is in the best interest of the children. To me, the custody arrangement is being driven not by what the parents truly believe is best for the children, but rather by the desire to create a mechanism that the judge will approve that will eliminate child support. I look at these with great skepticism. The parents have to convince me that the arrangement is genuinely in the best interest of the children. And, if there is a discrepancy in income, I require the parent with greater income to pay child support based on the difference. When parties learn that there is a way to get out of paying, they will exploit that loophole to gain an advantage in divorce negotiations that can have a negative effect on the children.
June 16, 2015 § Leave a comment
If the title of this post is not a legitimate Latin legal maxim, it should be, because it captures the essence of an important principle of extra-judicial modification. The above can be translated as “You don’t always get what you bargained for.”
That most certainly was true in the case of Patrick and Lesa Deckard, who were divorced from each other in 2003. The divorce judgment required Patrick to pay Lesa $1,200 per month as support for their two children.
Soon after the divorce one of the children went to live with the paternal grandparents. Patrick contended that he and Lesa agreed between them that the child support would be reduced to $800 a month, and then later to $600 a month. Yet another, later, agreement had Patrick paying child support of $700 a month, the amount of private school tuition. Lesa took the position that Patrick dictated what he would pay by claiming it was all he could afford; she pointed out also that Patrick never paid the amounts in question, anyway. Patrick did not produce any evidence of any extra-judicial agreements.
The chancellor found Patrick in contempt and awarded Lesa judgments totaling around $114,000 for unpaid child support, unpaid medical expenses of the children, and attorney’s fees. The judge also ordered Patrick to pay $800 in child support from that point on. Patrick appealed.
In the case of Deckard v. Deckard, decided June 2, 2015, the COA affirmed, Judge Ishee’s opinion laid out the rationale:
¶6. In the judgment of divorce issued by the chancery court on December 18, 2003, Patrick was ordered to pay child support in the amount of $1,200 per month. In the order dated March 6, 2014, Patrick was found to be in contempt for his failure to pay $107,013 in child support from 2005–2014. Patrick argues that the amount claimed is too high because their oldest son, Taylor, moved in with his paternal grandparents soon after the divorce.
¶7. Patrick asserts that allowing Lesa to collect child support from Patrick for Taylor’s benefit would be unjust enrichment because “for all practical intents and purposes he had never been in Lesa Deckard’s home and she never expended any monies for child support for his use and benefit.” However, the chancellor disagreed and found that Patrick owed the amount ordered by the original agreement to Lesa in unpaid child support. In doing so, the chancellor quoted the following from Smith v. Smith, 20 So. 3d 670, 674 (¶¶13-14) (Miss. 2009) (citations omitted):
The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made. The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.
. . . .
In a contempt action concerning past-due child support, when the custodial parent introduces evidence that the noncustodial parent who is required to pay the support has failed to do so, a prima facie case of contempt has been made. At this point, the burden falls on the defending party, to avoid a finding of contempt, to prove that there was payment or other defense, and this proof must be “clear and convincing and rise above a state of doubtfulness.”
¶8. The chancellor found that while Taylor was living with Patrick’s parents, Patrick did not contribute any money or financial assistance in any manner to his parents for Taylor’s benefit. Accordingly, the chancellor found that there was not any evidence before the court that would allow Patrick to receive a credit for any child-support payments.
¶9. Although Patrick cites the case of Brewer v. Holliday, 135 So. 3d 117 (Miss. 2014), to support his position, the facts in this case are distinguishable from the facts in Brewer. In Brewer, the Mississippi Supreme Court reversed the chancellor’s finding that a man was not entitled to a credit for the amount of child support he had paid to his ex-wife for the period of time in which their son did not live with her. Brewer, 135 So. 3d at 121 (¶16). However, the chancellor only agreed to the credit because the son had been living with his father while his father was still paying the mother child support for him. Id.
¶10. In the instant case, Taylor was living with Patrick’s parents, and Patrick admits that there is no evidence that he contributed any money to his parents for Taylor’s expenses. “Whether or not a non-custodial parent should be given credit against his/her child support obligation is a matter left to the sound discretion of the chancellor.” Strack v. Sticklin, 959 So. 2d 1, 5 (¶14) (Miss. Ct. App. 2006). As such, we agree with the chancery court that Patrick is in contempt for his failure to pay $107,013 in child support.
Oh, and Patrick overlooked the fact that when child support is global (i.e., one amount for all children, as opposed to a specified amount per child), the fact that one child is no longer entitled to support (e.g., due to emancipation), it does not necessarily result in a reduction in the total amount of child support.
And on the issue of the enforceability of the extra-judicial agreements, the COA first pointed out that the evidence was in dispute as to whether there were ever any such agreements, and then made this observation:
¶13. “No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity.” Crow v. Crow, 622 So.2d 1226, 1231 (Miss. 1993) (citation omitted). “A party making an extra-judicial modification does so at his own peril.” Id. (citation omitted). Because there is no evidence of an extrajudicial agreement, we affirm the chancery court’s findings that Patrick is in contempt for $107,013 for unpaid child support.
An especially good lawyer will sit down with her client in the aftermath of a divorce, or custody, or child-support case and carefully explain that people quite often will try to reach all kinds of handshake agreements later — whether out of a desire to avoid more bloodshed and hard feelings, or to avoid the pain of more attorney’s fees, or from exhaustion — and those kinds of agreement are fraught with peril. Better to get some legal advice and a court order before changing what the court ordered.