A Rule 54(b) Dismissal With a Twist
June 3, 2014 § Leave a comment
We’ve talked here numerous times about the unappealability of a judgment that disposes than fewer than all of the issues pending before the court. If you type “54(b)” in that search box over there it will take you to the many posts on the subject.
The COA case of Newson v. Newson, handed down May 13, 2014, presents a scenario that just might apply in one of your cases, so you should take notice.
In May, 2011, the chancellor entered a judgment granting Lori Newson a divorce from her husband, Anthony, on the ground of adultery. On that day, Anthony’s attorney advised the court that his client had filed for bankruptcy, so the judge reserved ruling on alimony and equitable distribution until the status of the bankruptcy was clarified.
In March, 2012, the chancellor gave the parties the go-ahead to proceed. In August, 2012, the parties submitted a partial agreement, and the court made a partial ruling. The court stated that “the responsibility of the indebtedness of the respective parties, spousal support/alimony, attorney’s fees and/or costs owed by the parties would be reserved for a final hearing. Apparently there was another hearing, because in October, 2012, the court entered an order styled or referred to as a final order, granting Lori periodic alimony, and finding that Anthony was in arrears in the sum of more than $64,000 in alimony, for which he was in contempt. The judge left the record open for Lori’s attorney to present a statement of services rendered so that he could adjudicate attorney’s fees. Anthony filed a motion asking the court to reconsider (R59, I guess, since there is no such thing as a motion for reconsideration), which the court overruled. Anthony appealed.
The COA predictably ruled that, since the chancellor had left the record open without finally adjudicating the issue of attorney’s fees, and without certifying the case, the COA was without jurisdiction and dismissed the appeal.
Now, here’s the twist …
Quite often lawyers ask the court to combine into the final hearing the contempt issues that accrue during the pendency of a divorce. It’s not unusual for the court in such a situation to adjudicate finally all of the divorce issues — grounds, custody, child support, equitable distribution, alimony, attorney’s fees on the divorce — and then to treat the contempt issues. In addressing the contempt issues, the court many times will order that the contemnor do certain things to purge himself of contempt, and for the matter to be reviewed at a later date. Sometimes there is a second or even a third review hearing. In such a case, you are stuck with an unappealable divorce judgment until the trial judge finally adjudicates everything.
Unless …
- You file a R59 motion (within ten days of the original judgment) asking the court to add the “express determination that there is no just reason for delay,” per R 54(b), and directing entry of a final judgment on the issues of divorce, custody, equitable distribution, alimony, attorney’s fees on the divorce, leaving the contempt issues to take their own, separate course. Or …
- You could make a motion at the conclusion of your case that the issues be severed, and that the court make the R54(b) certification to be included in the final judgment.
Of course, you could ask the court not to combine the contempt issues in with the final divorce hearing in the first place, but most clients want the hourly billing and the courtroom time to end, so it’s usually more efficient from a time and law-weariness standpoint to get it all over with in one hearing.
This is one of those situations where you need to pay attention to where you are and how you got there. Once you realize you are faced with a judgment that may not be appealable for quite some time, you need to take steps to extricate your client from that bind.
If Private School Expenses are Included, You Must Say so in the PSA
May 22, 2014 § 3 Comments
Andrea Gaienne and Michael McMillin were divorced from each other in 2007, on the sole ground of irreconcilable differences. They shared joint legal custody, and Michael got “primary physical custody” of the two children, who were then ages 7 and 3. The parties’ PSA included the following language:
3. Child Support and School Expenses. Wife will not be required to pay child support to Husband, as Husband acknowledges and represents unto the Court that he has sufficient income in excess of that set out in the Mississippi Child Support Guidelines to fully support the minor children in his custody without contributions of child support from the Wife. However, Husband and Wife agree that each will pay one-half of any and all daycare expenses, and any other expenses relating to daycare or school, including school supplies, and sports activities for the minor children, including the costs of any uniforms, fees, and travel expenses for sports activities.
. . .
12. College Education and Expenses. Husband will continue payments to the Mississippi Impact for the minor children for their college tuition and Wife agrees to contribute and pay $500.00 per year to the Mississippi Impact fund for the minor childrens’ college tuition beginning in 2007. Husband and Wife further agree that whatever college expenses are not covered by the Mississippi Impact fund, that as such college expenses that are not covered become due, Husband and Wife will discuss and confer with one another as to which are reasonable for college for the minor children, they and will [sic] decide, if possible, the amount that each will pay toward said college expenses, and if they cannot agree, then Husband and Wife agree that the Chancery Court of Warren County will make such decisions regard[ing] the college expenses for the minor children. That this agreement will extend throughout the attainment of a bachelor’s degree or equivalent. This obligation may extend past the twenty-first birthday of either child, but it shall not extend past the twenty-third birthday of either child. Total expenses for which the Husband and Wife may be responsible and may agree on include the following: tuition, room and board, books, student fees, transportation expenses, fraternity or sorority dues, fees or expenses, and a reasonable amount of discretionary spending money. Husband and Wife further agree to consult with one another and with each minor child as to the choice of the appropriate college or university. The college or university shall be selected by the parties and the child, the majority rule.
The seven-year-old was enrolled in public school at the time of the divorce, but, after a bullying incident the parties enrolled him in a private school, sharing the tuition. Andrea thought she and Michael had an agreement that she would be relieved of the Impact payments in consideration of sharing the private school tuition, but when Michael would not acknowledge that in writing, she filed pleadings in chancery court seeking modification or clarification that she was not required by the language of the PSA to contribute to pre-college private school tuition. Michael countered with a contempt action.
The chancellor found that the agreement did require Andrea to contribute to the private school tuition, and found her in contempt. Andrea appealed.
In a ruling handed down May 15, 2014, the MSSC in Gaienne v. McMillin, addressed the issue. Justice Randolph wrote for the majority:
I. Gaiennie is not obligated to pay for private-school tuition.
¶8. “While a chancellor’s decisions in a [domestic] action are reviewed for manifest error, a property settlement agreement is a contract, and contract interpretation is a question of law, which is reviewed de novo.” McFarland v. McFarland, 105 So. 3d 1111, 1118 (Miss. 2013) (citing Harris v. Harris, 988 So. 2d 376, 378 (Miss. 2008)). This Court applies a three-tiered approach to contract interpretation. Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (Miss. 2005). First, we apply the “four corners” test, wherein this Court “looks to the language that the parties used in expressing their agreement.” Id. “When construing a contract, we will read the contract as a whole, so as to give effect to all of its clauses.” Id. “On the other hand, if the contract is unclear or ambiguous, the court should attempt to ‘harmonize the provisions in accord with the parties’ apparent intent.” Id. (quoting Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990)). “The mere fact that the parties disagree about the meaning of a provision of a contract does not make the contract ambiguous as a matter of law.” Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987). Secondly, if the contract is unclear or ambiguous, this Court applies the “discretionary ‘canons’ of contract construction.” Facilities, 908 So. 2d at 111. Thirdly, “if the contract continues to evade clarity as to the parties’ intent, the court should consider extrinsic or parol evidence.” Id.
¶9. Gaiennie argues that, under the terms of the property-settlement agreement, she is not obligated to pay one-half of private-school expenses. Gaiennie points to the absence of the word “tuition” in the “school expenses” provision as a clear and unambiguous indication that precollege private-school tuition was not part of the property-settlement agreement. Gaiennie also argues that there was no consideration of private school at the time the property-settlement agreement was signed. McMillin argues that the plain meaning of the phrase “any other expense related to daycare or school” necessarily encompasses private school tuition, as private-school tuition is a school-related expense.
¶10. We disagree. The absence of any reference to private school or private-school tuition in provision three controls the issue. “When a contract is clear and unambiguous, this Court ‘is not concerned with what the parties may have meant or intended but rather what they said, for the language employed in a contract is the surest guide to what was intended.’” Ivison v. Ivison, 762 So. 2d 329, 335 (Miss. 2000) (citing Shaw v. Burchfield, 481 So. 2d 247, 252 (Miss. 1985)). Looking to the four corners of the agreement, we find that it is not ambiguous. Tuition is conspicuously absent from the “school expenses” provision. (See Zweber v. Zweber, 102 So. 3d 1098, 1101-02 (Miss. 2012) (holding that “flying lessons were not included in the final judgment of divorce).
¶11. Notwithstanding that the plain language of the agreement requires no private-school tuition, if we accepted Gaiennie’s argument that absence of the word “tuition” creates an ambiguity, the result would be no different, for we would first attempt to harmonize the provisions in accord with the parties’ apparent intent. The fact that tuition was specifically included within “college expenses,” but not “school expenses” reveals the parties’ intent that private-school tuition was not intended under the agreement.
¶12. Even if we went beyond the “four-corners test,” and looked to the intent of the parties, Gaiennie would still prevail. Neither party disputes that, at the time the agreement was signed, the eldest child was enrolled in public school. Neither party disputes that, at the time the agreement was signed, it was their intent for the children to attend public school. The children attended public school for nearly three years before a bullying incident prompted consideration of private school. We find that, because private-school tuition was not specified in the agreement, we must reverse the chancellor’s holding requiring Gaiennie to pay for one-half of the children’s private-school tuition.
This decision underscores a recurring theme in PSA-interpretation cases: If you don’t specify that a particular expense is covered by the agreement, don’t assume that the court is going to write that requirement into it for you. This is especially true in cases involving private-school enrollment.
Oh, and notice the reference to Ivison in the opinion. If you click on the link it will take you to a previous post on that case that further highlights the perils of leaving things in an agreement unsaid that really should be said.
A Pro Se Appeal on the Rocks
May 1, 2014 § 4 Comments
Matlock was a 1980’s – 90’s tv drama starring Andy Griffith in the eponymous role as a canny criminal defense lawyer who, more often than not, got his clients acquitted. His courtroom victories were usually the result of brilliant investigation combined with ingenious trial tactics.
Perhaps with that heritage in mind, Heidi Matlock filed a pro se appeal charging that the chancellor was in error when he found her in contempt and in arrears in child support for her minor child in the sum of more than $20,000, and restored the child’s birth certificate to his original given name at birth.
Now, with that narrow adjudication at trial, one would expect the issues assigned on appeal to be pretty straightforward, but Ms. Matlock saw the case much more expansively. Her issues for review:
1. Do the actions of Gordon and Nancy Flake constitute a deprivation of civil rights pursuant to 42 U.S.C. § 1985(3)?
2. Can the Plaintiff seek attorney’s fees and court costs under 42 U.S.C. § 1988(b)?
3. Can Gordon and Nancy Flake keep my son against his will, without any permission? (18 U.S.C. § 1201).
4. Why have the Flakes not been arrested for federal kidnapping?
Gordon and Nancy Flake are the paternal grandparents who had custody of the child. The child support action was brought by DHS.
In Matlock v. DHS, Flake and Todd, handed down April 15, 2014, the COA affirmed, pointing out (a) that none of the issues raised on appeal were ever raised before the trial judge, and (b) Heidi cited no authority to support her arguments. Judge Griffis added, “Certainly, this Court does not possess jurisdiction or any authority to consider or address the alleged “federal kidnapping” and federal civil rights violations that Heidi has discussed in her brief.”
Finding no reversible error apparent in the record, the COA affirmed.
Every now and then, someone sends me an email or attempts to post a comment to this blog complaining that lawyers don’t want non-lawyers practicing law because lawyers are protecting their lucrative turf. Cases like this one, however, demonstrate that a person representing himself/herself in a matter such as this can do as serious damage to oneself as a person trying to remove his or her own appendix. And if Ms. Matlock had the assistance of a “shade tree” legal assistant, then that person needs to be held accountable. I’m not saying Ms. Matlock had a meritorous ground for appeal, but even a basically competent lawyer could have advised her about it, and (a) would have assigned grounds for appeal that sounded in the record, and (b) would have cited a case or two, at a minimum, if for no other reason than appearance’s sake.
Alimony is not Forever, but Almost
April 14, 2014 § Leave a comment
We’ve visited the issue of modification of alimony in a previous post dealing with the COA case of Peterson v. Peterson, decided last year.
Peterson highlighted how difficult it can be, once alimony is ordered by the court, to terminate or reduce it.
That’s because the competing equities on both sides can be pretty strong.
The latest case dealing with similar issues is Cook v. Cook, handed down by the COA on March 24, 2014.
Cook, as is true with all of these cases, is quite fact intensive. I’m not going to rehash all of those facts here, but when you read Judge Carlton’s opinion affirming the chancellor’s decision to grant a 25% reduction in alimony, note how the trial judge, and then Judge Carlton following the chancellor’s analysis, seesawed their way down the factors, first favoring modification, and then not favoring, and then back, and then forth. It’s fairly representive of the way the judge has to weigh these matters.
The best way to avoid having to modify alimony is to avoid it in the first place. That can be difficult when there is a great discrepancy in income and ability to establish a decent earning capacity. Don’t forget that as equitable distribution expands, the entitlement to alimony contracts. So, given significant resources, you can advise your client to give more — sometimes much more — in equitable distribution so as to eliminate the need for alimony. It’s a strategy I used successfully when I practiced, and had used against me, too.
Cook also highlights the boomerang effect your client can suffer in asking for modification. Based on the principle that the best defense is a good offense, your petition to modify can be met with a counterclaim for contempt and upward modification. If the alimony was rehabilitative, you might even stir up a counterclaim to convert it to permanent periodic alimony. Oster v. Oster, 876 So.2d 428, 430-431 (Miss. App. 2004).
Enforcing the Temporary Order
February 19, 2014 § Leave a comment
Does entry of a final judgment of divorce eliminate the possibility of an action to collect unpaid amounts due under a temporary order?
It’s not uncommon to be getting your waterfowl in a row for final hearing next week only to learn from your client for the first time that her husband owes her a couple of thou in child support or house payments or temporary alimony, and that news is followed by the query ” … and what are you going to do about it?”
So … what are you going to do about it?
In the COA case of O’Brien v. O’Brien, handed down February 11, 2014, Judge Griffis addressed the appellant’s argument that it was improper for the chancellor to find him in contempt of the temporary order after the final judgment of divorce was entered:
¶10. Mississippi Code Annotated section 93-5-17(2) (Rev. 2013) provides that a chancellor may “hear complaints for temporary alimony, temporary custody of children and temporary child support and make all proper orders and judgments thereon.” Further, this Court may allow retroactive awards of temporary support even after a divorce judgment is entered. Strong v. Strong, 981 So. 2d 1052, 1055 (¶15) (Miss. Ct. App. 2008). Temporary support ends when a final judgment is entered. Bond v. Bond, 355 So. 2d 672, 674-675 (Miss. 1991). However, a payor still has a duty to pay past-due temporary support, as a final decree of divorce does not preclude a chancellor from entering a judgment for arrearages of temporary support without having to express the right to enforce the judgment in the final divorce decree. Lewis v. Lewis, 586 So. 2d 740, 742 (Miss. 1991).
You have several ways to approach enforcement of temporary orders:
- You can wait until the final judgment is entered and file a contempt action. Fair warning: bring your authority (e.g., the above paragraph) with you to court because I have had chancellors question the viability of such actions when I practiced.
- With enough advance warning you can file a contempt action during the pendency of the divorce and ask that it be heard in advance of the final hearing.
- Many lawyers will agree to combine temporary contempt issues with the final hearing. That is often done in this district. You can do that by pleading, of course, or by stipulation or agreed order, or it can be listed as a contested issue in a consent.
The main thing to remember is that amounts that were ordered to be paid under a temporary order are vested when due, and the right to collect them does not terminate on entry of the final judgment, even though the final judgment does terminate the temporary order itself. And it is not necessary for the final judgment of divorce to recite or provide for a right of future enforcement of the temporary order.
Don’t Overlook the Practicalities when Dealing with Visitation
January 29, 2014 § 1 Comment
When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.
Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:
[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.
That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?
In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.
Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.
The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.
A few desultory thoughts:
- I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
- I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
- Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
- The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
- This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.
Fraud on the Court and MRCP 60(b)
January 28, 2014 § 1 Comment
What does it take to trigger relief from fraud on the court?
That’s the question I posed in a previous post dealing with the COA’s October 2, 2012, decision in the case of Rosemary Finch v. Stewart Finch.
The answer based on the COA decision was that one need merely suggest that a fraud on the court was committed, and the chancellor can take it from there. So that settles that, right? Well, not exactly. The MSSC granted cert and took another look.
In Finch v. Finch, handed down January 16, 2014, the high court affirmed the COA’s decision on the chancellor’s handling of the fraud-on-the-court issue, but remanded for further findings of fact by the trial court on other issues.
The MSSC decison, penned by Justice Pierce, is worth your time to read, because it sheds further light on the dimensions of fraud on the court, how it affects judgments, how the trial court should address it, and how you should deal with it.
What is most strking to me about this opinion, however, is how the court divided on the decision:
LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., KING AND COLEMAN, JJ.; CHANDLER, J., JOINS IN PART.
Four justices joined entirely in the opinion: Pierce, Lamar, Kitchens, and Chandler. Randolph added a fifth concurrence “in part and in result.” The dissent garnered five votes also: Dickinson, Waller, King, and Coleman. Chandler added a fifth vote, “in part.” Neither Justice Randolph nor Justice Chandler wrote an opinion explaining their concurrence or dissent in part, so we do not know enough to understand their rationales. Apparently, under the MSSC internal procedures, a tie vote goes in favor of the justice who wrote the original opinion. In his dissent, Justice Dickinson referred to this as a “plurality opinion.”
I found Justice Dickinson’s dissent to be forceful and persuasive. He questioned whether due process had been violated, and he found the proof of actual fraud lacking. He was not successful, though, in selling his opinion to a majority. So the law of Mississippi in cases involving fraud on the court remains as I described it in that previous post:
… all that was necessary in this case was to give the chancellor a suggestion that there may have been a fraud on the court, and she picked it up and ran with it. The chancellor has broad, equitable power when it comes to relief under MRCP 60(b), which the court can exercise on its own motion. In this particular case the problem was fraud, but 60(b) vests the court with the same equitable powers to address mistake, “or any other reason justifying relief from judgment …”
The Not-so-Illusory Agreement
January 16, 2014 § Leave a comment
It has long been the law in Mississippi that parties effect extra-judicial modifications at their peril, and that chancery courts are neither designed or equipped to enforce such agreements.
Only last September we read here about Donald Brewer and Penny Holliday, who had agreed to modify their divorce judgment vis a vis custody and support. They had lawyers incorporate their agreement into an agreed judgment, and they proceeded to conform to the agreement in nearly every respect for several years. Only problem is, no one ever saw to it that the agreed judgment was entered. Both Donald and Penny believed that it had been entered. When the parties had a falling out and wound up back in court, the chancellor refused to enforce the agreement, notwithstanding the course of compliance, and found Donald in contempt. The COA affirmed, as you can read in the previous post.
Donald in due course persuaded the MSSC to take another look, and in Brewer v. Holliday, decided by the MSSC on January 9, 2013, the high court reversed. Justice Dickinson’s opinion states, in part:
¶14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” [citation omitted] For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child – once the child moved in with him – instead of to the mother. [citation omitted] And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” [citation omitted] Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, [citation omitted] and that support belongs to the child, not the custodial parent. [citation omitted]
[Note: read the opinion at the link for the case citations. Copying and pasting numerous footnotes is too cumbersome for this blog]
The court went on to remand the case for the chancellor to consider the fact that the child resided with Donald, à la Varner, finding that the arrangement should have been taken into account by the judge at the original hearing.
There is no airtight rule against enforcement of extra-judicial modifications. Each case must be considered on its own merits, and the equities must be weighed. Here, the high court considered that it would be best for Donald’s equities to be taken into account, rather than closing the door on enforcement of the agreement. No doubt the parties’ ignorance of the fact that the judgment had never been entered, coupled with their compliance with it for a time, had persuasive weight in this particular case.
The Fog of Contempt
January 15, 2014 § Leave a comment
In the press of courtroom battle, it sometimes happens that things get obscured, as in war, by the fog of all that is transpiring, so that it becomes difficult to appreciate things in their proper capacity.
I touched on this concept recently in a post dealing with contempt in its various, somwhat fluid incarnations.
On January 7, 2013, a panel of the COA had occasion to address the fog of contempt in the case of Zebert v. Guardianship of Baker.
Mr. Zebert, a lawyer, was appointed in 2000 to serve as guardian of the person and estate of a minor. Accountings were filed in each year from 2000 through 2007, but no accounting was filed in 2008 for the period from October, 2007, through September 30, 2008. The court issued a show-cause order and subsequently granted several continuances until Zebert himself asked to be relieved as guardian a year after the accounting had been due. The substitution, however, did not relieve Zebert of the duty to account for his period of responsibility.
Zebert filed an incomplete accounting, and the court held three more show-cause hearings, culminating in an adjudication of contempt and order for Zebert’s incarceration that the court suspended to allow the attorney time to get the accountings together. Zebert then filed a partial accounting disclosing at long last that he had made unapproved disbursements from the guardianship account, including unsecured loans to third parties, totalling more than $130,000, and reducing the assets of the estate to around $6,500.
The chancellor found Zebert in contempt and ordered him to be jailed until he purges himself of contempt. The adjudication was one of civil contempt.
Zebert appealed, complaining that his incarceration was criminal in nature, not civil, and that it was error for the court not to charge him formally, issue a summons, and have the matter heard by another judge.
The COA’s decision is of interest for the contrasting views between the majority, which held that Zebert’s contempt was civil because he was being required to provide a proper accounting, and which affirmed the chancellor, and the dissent by Judge Griffis, which agreed with Zebert that he is being punished criminally, and not being subjected to the coercive power of the court. I commend it to your reading because it illustrates how the same set of contempt facts can be seen by different people in a different light. The fog of contempt, if you will.
Another reason to read this decision is that it once again underscores why chancellors are getting increasingly intolerant of delinquent accountings, excuses, clueless lawyers, and malfunctioning and misfunctioning fiduciaries.
It will be interesting to see what becomes of this case on a request for rehearing or cert.
A Due Process Wrinkle for Child Support
January 2, 2014 § Leave a comment
Helping a client collect past-due child support can be devilishly difficult, particularly when the obligated parent disappears, or tries to.
If you will look at MCA 93-11-65(5) and (7), you may find some help.
MCA 93-11-65(5) mirrors UCCR 8.06 in its requirement that both parties in cases involving minor children must keep each other and the court informed of the party’s residence address and telephone number. It goes further, however, for child support cases, and requires that both parties notify each other and the court and the state child support registry of the party’s ” … location and identity, including social security number, residdential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer.” The information is required upon entry of an order or within five days of a change of address. [Note: Although the statute specifically refers to change of address, it would seem that a court order could direct updating on change of any particular].
Applying the foregoing, you will do your child support client a great service by making sure that the above language is in every child support order you submit to the court, and that you make sure that the appropriate information on both parties is filed as required, including with the state registry, as directed in the statute.
Why go to that trouble?
Well, that’s where MCA 93-11-65(7) comes in. It provides that “In any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of a party, due process requirements for notice and service of process shall be deemed to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the state case registry.”
So, after diligent search and inquiry to locate the slacker, you issue process to his or her last reported residence address or employer, and — Volia! — you have personal jurisdiction under the statute. Note the language “filed with the state case registry.” That’s a key component. You must have seen to it that the info was filed with the state registry.
The case registry is provided for in MCA 43-19-31(l)(ii) [that’s lowercase L], and is to be maintained by DHS.
To be honest, I have yet to see anyone avail themselves of this procedure. If you have had experience with it, I would welcome your comments. It seems to me to be quite advantageous to private parties trying to enforce child support obligations
The Better Chancery Practice Blog 