Directed Verdict or Involuntary Dismissal?

May 8, 2019 § Leave a comment

“Juries render verdicts; judges render judgments.” — Lawrence Primeaux

You can quote me on that.

It happens every now and then that someone moves for a directed verdict in a chancery court bench trial. That can create a problem because the standard for directing a verdict is considerably different from that for an involuntary dismissal.

The distinction was at issue in the COA’s case of Vermillion v. Vermillion, decided March 19, 2019. In that case, the chancellor granted the defendants’ (Robyn’s and Douglas’s) motion for a directed verdict and dismissed the plaintiff’s (Angela’s) pleading seeking grandparent visitation rights. Judge Carlton wrote for the court:

¶10. Angela argues that the chancellor erred in granting Robyn and Douglas’s motion for a directed verdict. Angela asserts that because the case was tried without a jury, Robyn and Douglas should have filed a motion for involuntary dismissal, rather than a motion for a directed verdict. Angela also argues that the chancellor applied an erroneous interpretation of Mississippi Code Annotated section 93-16-3(2)–(3) (Rev. 2013); specifically, whether Angela established a viable relationship with Chella Rose.

¶11. We first address Angela’s procedural issue. Mississippi Rule of Civil Procedure 41(b), which governs involuntary dismissals, “applies in actions tried by the court without a jury, where the judge is also the fact-finder.” All Types Truck Sales Inc. v. Carter & Mullings Inc., 178 So. 3d 755, 758 (¶13) (Miss. Ct. App. 2012) (internal quotation marks omitted). “Mississippi Rule of Civil Procedure 50(a), which governs directed verdicts, applies to jury trials, where the judge is not the fact-finder.” Id. at (¶12) (emphasis omitted). We recognize that “the appropriate motion in a case tried without a jury is not a motion for directed verdict, but for involuntary dismissal . . . .” Gulfport-Biloxi Reg’l Airport Auth. v. Montclair Travel Agency Inc., 937 So. 2d 1000, 1004 (¶13) (Miss. Ct. App. 2006). In similar cases, rather than reversing a trial court’s judgment granting a directed verdict due to a procedural error, this Court has considered such appeals under the standard of review for a motion for involuntary dismissal. Id. at 1006 (¶18); Ladner v. Stone County, 938 So. 2d 270, 273 (¶¶9-10) (Miss. Ct. App. 2006). We will therefore review the judgment at issue before us under the standard of review for Rule 41(b) involuntary dismissals.

¶12. In applying this standard, we recognize that “[a]ppellate courts . . . employ a more deferential standard of review when considering involuntary dismissals [at a bench trial] than when reviewing grants of directed verdicts” at a jury trial. All Types Truck Sales, 178 So. 3d at 758 (¶13). Rule 41(b) involuntary dismissals are reviewed under a “substantial evidence/manifest-error standard,” rather than the de novo standard applied when reviewing directed verdicts. Id. “A judge should grant a motion for involuntary dismissal if, after viewing the evidence fairly, rather than in the light most favorable to the plaintiff, the judge would find for the defendant.” Id. (quoting Gulfport-Biloxi Reg’l Airport Auth., 937 So. 2d at 1004 (¶13)). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Id.

The court went on to analyze the evidence and the judge’s ruling and found no error in the dismissal despite the wrong standard.

This case illustrates how you can hand your opponent a ground for appeal simply by using incorrect terminology. Save your directed verdicts for jury trials. That’s where they belong. Bench trials call for a motion for involuntary dismissal per MRCP 41(b) at the conclusion of the plaintiff’s case.

A previous post on this topic is here.

Asking for a Change of Mind

May 7, 2019 § 1 Comment

After the trial court denied her petition for modification of custody, Joni Warner filed something she called a Motion for Reconsideration. As I have posted here before, there is no such thing as a motion for reconsideration under the MRCP, and the use of that term poses a challenge not only to the trial court that is called upon to rule on it, but also to the reviewing court that is called upon to figure out the legal standard by which to assess the trial court’s ruling.

In Warner v. Thomas, decided March 19, 2019, the COA affirmed the trial court and fleshed out the confusion that is reconsideration. Judge McDonald wrote for a unanimous court:

A. Motion for Reconsideration

¶27. After the trial court denied the petition for modification, Warner filed a motion for reconsideration, making substantially the same arguments she made in her Petition but adding that the evidence merited a finding under section 93-5-24(9) that Thomas had a “history of perpetuating family violence” and should not enjoy joint custody. Under the Rules of Civil Procedure, the motion for reconsideration technically no longer exists. See Maness v. K&A Enters. of Miss. LLC, 250 So. 3d 402, 419 (¶68) (Miss. 2018) (Maxwell, J., specially concurring and joined by four other justices). Warner’s motion to reconsider could be construed as a Rule 60(b)(3) motion because Warner claimed in her motion for a new trial under Rule 59 that she had located a witness who could provide testimony about the basketball incident. However, under Rule 60(b)(3), it must also be alleged and shown that the newly discovered evidence could not have been discovered by due diligence. “[N]ew evidence is ‘evidence in existence of which a party was excusably ignorant, discovered after trial.’” Dean v. Slade, 164 So. 3d 468, 473 (¶14) (Miss. Ct. App. 2014) (quoting Page v. Siemens Energy & Automation Inc., 728 So. 2d 1075, 1079 (¶12) (Miss. 1998)). Warner’s motion was silent about the identity of the witness and the content of that witness’s testimony. More importantly, the motion is silent about why Warner could not have found the witness earlier. She acknowledges in her brief that she only sought an impartial witness to the basketball incident after the trial court had ruled that no such witness had testified. Warner should have anticipated the need for such a witness and only acted when the trial court noted her lack of evidence. Without a showing that the new evidence was substantive and a good reason why Warner was ignorant of it prior to the August hearing, the trial court properly denied Warner’s post-trial motions under Rule 60(b)(3).

B. Motion for New Trial

¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness, 250 So. 3d at 419 (¶¶69, 71). A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).

¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin., 249 So. 3d at 1084 (¶8). In the “Order Denying the Motion for Reconsideration” the trial court made specific factual findings on the proof Warner provided to show that Thomas did not have a “history of perpetrating family violence.” It found that the “Domestic Abuse and Protective Orders” and Warner’s testimony about Thomas’s slapping the child was countered by Thomas and his mother’s testimony. It found that there was no serious injury caused and this single incident did not constitute a “history of perpetrating violence” to trigger a presumption against continuing joint custody between the parties. We find that the trial court applied the proper legal analysis in determining that there was no basis for a new trial, and thus it did not abuse its discretion. See Lee v. Lee, 154 So. 3d 904, 909 (¶¶25-26) (Miss. Ct. App. 2014).

A post on Maness is at this link.

 

Attorney’s Fees on Appeal

May 1, 2019 § Leave a comment

Last month I posted about the long-standing practice in Mississippi to allow the prevailing party an attorney’s fee equal to one-half of that awarded at trial. You can read that post at this link.

Mentioned in the previous post is the MSSC’s decision in Latham v. Latham, decided January 17, 2019, which makes it mandatory to file an MRAP 27(a) motion to seek that award. I thought it would be helpful to provide that portion of the opinion here:

¶21. The chancellor ordered Roger to pay $2,500 in attorneys’ fees as part of the contempt judgment. Buried at the conclusion of Michele’s brief is a one sentence request that the Court award her one-half of the attorneys’ fees that had been awarded by the chancellor. Specifically, without any citation of authority and without any citation of the record, she writes, “Further, Appellee requests to be awarded one-half of the attorney’s fees awarded by the trial court, or twelve hundred and fifty dollars ($1,250).”

¶22. When a prevailing party requests attorneys’ fees on appeal, “[t]ypically, th[e] Court awards attorney fees on appeal in an amount equal to half the amount awarded at trial.” Huseth v. Huseth, 135 So. 3d 846, 861 (¶ 47) (Miss. 2014). Because such an award may not be fair and equitable in all cases, the Court has written that the “better practice” would be for a party seeking attorneys’ fees on appeal “to file a motion in th[e] Court, supported by affidavits and time records that establish the actual fees expended on appeal.” Hatfield v. Deer Haven Homeowners Ass’n, Inc., 234 So. 3d 1269, 1277 (¶ 30) (Miss. 2017).

¶23. While the Court has declared that the better practice would be for a party seeking attorneys’ fees on appeal to file a motion in the Court, we now clarify that Rule 27(a) of the Mississippi Rules of Appellate Procedure requires it. Here, Michele did not file a motion requesting attorneys’ fees on appeal; rather she buried a one sentence request in her brief. Such requests do not comport with the Mississippi Rules of Appellate Procedure. Rule 27(a) provides, in pertinent part,

(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion.

M.R.A.P. 27 (emphasis added).

¶24. Because Michele failed to make a viable request for relief under Rule 27, we decline to consider her request. While the Court has suggested that the better practice for a party seeking attorneys’ fees on appeal is to file a motion pursuant to Rule 27(a), we hold that, henceforth, such requests must comply with Rule 27(a).

In the Brown v. Hewlett case cited in my previous post, COA Judge Jack Wilson added that, ” Any such motion should be filed before the mandate issues.”

If You Want Specific Findings, Here’s What You Do

April 16, 2019 § Leave a comment

Dotie Jackson was unsuccessful in his attempt to modify custody. The chancellor found that he had failed to prove a material change in circumstances that would impact the child and warrant further analysis of the three-prong test for modification. He appealed.

In the March 19, 2019, case of Jackson v. Jackson, the COA affirmed the chancellor’s ruling. One issue Dotie raised was that the chancellor had erred in not making specific findings. Judge Greenlee’s opinion for the unanimous court addressed the point:

¶15. Dotie argues this matter should be reversed and remanded for the chancellor to make specific findings that there was no material change in circumstances which adversely affected the children. He also argues specific findings under an Albright [Fn omitted] analysis are required.

¶16. Under both the Mississippi Rules of Civil Procedure and the Uniform Chancery Court Rules, the chancellor is not obligated to provide specific findings of fact unless a party requests that she do so. See Smith v. Smith, 97 So. 3d 43, 46, 48 (¶¶7,16) (Miss. 2012) (citing Johnson v. Gray, 859 So. 2d 1006, 1012 (¶31) (Miss. 2003)). Dotie did not make such a request. And we have specifically acknowledged that this rule applies in child-custody cases. Blevins v. Bardwell, 784 So. 2d 166, 174-75 (¶¶30-31) (Miss. 2001).

¶17. But here, the chancellor did make findings of fact that are clearly set forth in her bench ruling. The chancellor definitively concluded:

[T]he Court finds and agrees with the guardian ad litem . . . with regard to the children . . . . [J]ust as [the] guardian ad litem, I have conducted an analysis based upon information made available to me. And it is my opinion that there has been no substantial material change in the home of Lori Beth Duperier [Jackson] that would warrant further consideration of the three-prong test for custody modification.

A careful reading of the chancellor’s bench ruling reveals the facts on which she based her ruling.

[T]he parties are really blessed. They have two beautiful young children, and they are healthy, and they are doing well. Both parents are healthy, financially stable . . . and they live a good life.

. . . .

[T]he mother contacted the professionals, and they did what they are required to do. They are to report situations where . . . they’re concerned that there is some type of abuse.

The chancellor noted that the investigation concerning the abuse allegations “was handled quickly.” She further stated:

I believe and I found credible the mother’s testimony that once the allegations were dismissed that she saw no need for the counseling. The guardian ad litem
testified the children were doing well. They [are] happy. They are healthy. They love both parents. Probably as the children see it, they did not skip a beat on their relationships with both parents. From my description, they are involved. They love both parents.

Thus, the chancellor found the allegations against Dotie did not alter the children’s relationships with either Dotie or Lori Beth. As earlier discussed, we found no error in the chancellor’s finding there was no material change in circumstances that adversely affected the children. And in absence of such a finding, the chancellor was not required to make specific findings under the Albright factors. Anderson[v. Anderson], 961 So. 2d [55] at 58 (¶6) [(Miss. Ct. App. 2007)]. Reversal and remand is not warranted in this instance.

Some thoughts:

  • There is plenty of case law that the Chancellor is required to make specific findings on the Albright factors. No motion is required to trigger that particular duty.
  • BUT if the chancellor finds no material change or adverse effect, then the chancellor is not required to analyze the case under Albright, so the duty of specific Albright findings does not come into play.
  • If you want specific findings for matters such as material change, which unlike Albright are not required findings, you must make a motion per UCCR 4.01 and bring it to the attention of the court. The rule states:

In all actions where it is required [e.g., Albright] or requested [by a motion made according to this rule], pursuant to MRCP 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.

The Scope of Rule 59

April 8, 2019 § Leave a comment

MRCP 59 allows the chancellor to grant a new trial as to all or some issues in a case “for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi.”

When granted, the chancellor may open the judgment “if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”

The COA discussed the scope of a R59 ruling in its March 19, 2019, ruling in Warner v. Thomas. Judge McDonald wrote for the unanimous court:

¶28. With respect to the trial court’s ruling under Rule 59, we have stated that the chancery court’s authority to modify the final judgment is “limited” by Rule 59, and it is a “higher” standard than under Rule 54(b), which allows a trial court to set aside interlocutory decisions for any reason it sees just. Dissolution of Pevey v. Pevey, 2017-CA-01144-COA, 2018 WL 4089685, at *1 (¶5) (Miss. Ct. App. Aug. 28, 2018); Maness [v. K&A Enters. of Miss. LLC], 250 So. 3d [402] at 419 (¶¶69, 71) [(Miss. 2018)]. A party may only obtain relief on a motion for new trial upon showing: (1) an intervening change in controlling law, (2) availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Miller v. Smith, 229 So. 3d 148, 154-55 (¶28) (Miss. Ct. App. 2016). To grant the motion under Rule 59, the chancery court need only be “convinced that a mistake of law or fact has been made, or that injustice would attend allowing the judgment to stand.” See Pevey, 2018 WL 4089685, at *2 (¶6); Maness, 250 So. 3d at 419 (¶69).

¶29. The appellate court reviews a trial court’s denial of a motion for a new trial for abuse of discretion. Miller, 229 So. 3d at 154 (¶27); McLaughlin [v. N. Drew Freight, Inc.], 249 So. 3d [1081] at 1084 (¶8) [(Miss Ct. App. 2018)]  . . .

The portion of R54 referred to above reads this way:

(b) . . . any order or other form of decision, however designated, which adjudicates fewer than all of the claims[,] or rights and liabilities of fewer than all the parties[,] shall not terminate the action as to any of the claims or parties[,] and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

So an R59 motion requires more than just asking the judge for a do-over. You have to have evidence or law that would have changed the outcome were it known at the time of hearing, and it was not known either because the law changed or evidence previously unknown after due diligence has come to light. You may also prevail by convincing the judge that she made a mistake of law or fact, or that the judgment creates an injustice; good luck with that.

The COA casts the issue thus: “Did the trial court err in denying the motion for reconsideration and/or motion for new trial [My emphasis]. The term “reconsideration” has been linked to R59 so often that, in my opinion, it has risen from the level of colloquialism to the point that we should seriously consider inserting it into the rule. Lawyers almost unanimously refer to the motion as one for “reconsideration.” The COA, as it did in this case, frequently uses that nomenclature for the motion. I have not searched carefully, but I believe the MSSC did also in a decision handed down last year. You can search the term in my Search box above and see how I have pushed against it. Even the Advisory Committee Notes point out that there is no such thing as a motion for consideration. Yet, the beat goes on. Maybe it’s just time to add it in and live with it.

Bifurcation and the Appeal

April 3, 2019 § Leave a comment

It’s becoming more and more common that contested divorce trials are bifurcated so that the grounds are tried separately from the issues of equitable distribution, alimony, etc. Under this practice, the grounds are tried first. If no divorce is granted, that’s the end of that. If, on the other hand, the court finds that the grounds are proven, then the court retains jurisdiction to determine property division and other such issues at a later date. The advantages are manifold, chiefly that one does not have to invest the time and money to develop evidence relating to property unless and until a divorce is granted.

That’s what was done in the divorce case of Mary and Glen Montgomery. The court bifurcated the case, and a hearing was held on the grounds for divorce. Following the hearing, the chancellor found that Glen had proven HCIT, and granted the divorce. The judge did commence a hearing on the remaining issues, which involved property only, but the hearing could not be concluded, and it was recessed to a date four months later. The court entered a judgment on the day of the hearing granting Glen the divorce and stating that “Matters of equitable division [would] be addressed in a later judgment.” The judgment also recited that “This is a final judgment on the grounds for divorce only. The Court hereby reserves jurisdiction …” over all of the remaining financial issues. Mary, who had represented herself in the proceedings, filed a timely pro se appeal.

In Montgomery v. Montgomery, decided March 5, 2019, the COA dismissed the appeal for lack of jurisdiction. Judge Jack Wilson wrote for the court:

¶5. A fuller recitation of the facts of the case is unnecessary because we lack jurisdiction. See Walters v. Walters, 956 So. 2d 1050, 1051 (¶2) (Miss. Ct. App. 2007). “Though the issue has not been raised by the parties, this Court is required to note its own lack of jurisdiction.” Id. at 1053 (¶8). “Generally, only final judgments are appealable.” Id. (quoting M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006)). “A final, appealable, judgment is one that ‘adjudicates the merits of the controversy[,] . . . settles all issues as to all the parties[,]’ and requires no further action by the lower court.” Id. (brackets omitted) (quoting Banks v. City Finance Co., 825 So. 2d 642, 645 (¶9) (Miss. 2002)).

¶6. “A judgment granting a fault-based divorce is a non-final order if issues attendant to the fault-based divorce, such as property division, remain before the lower court.” Id. at (¶9). That is precisely the situation here. The chancery court’s judgment granting a divorce expressly stated that the court reserved jurisdiction to divide the marital estate and resolve all other financial matters related to the divorce. Therefore, the judgment granting a divorce “was not a final judgment from which an appeal could be taken.” Id.; accord, e.g., M.W.F. v. D.D.F., 926 So. 2d 897, 898-900 (¶¶3-6) (Miss. 2006) (holding that a “judgment of divorce” granting a divorce was not final because it did not resolve issues of property
division, alimony, child custody, and child support); Ory v. Ory, 936 So. 2d 405, 408 (¶3) & n.1 (Miss. Ct. App. 2006) (explaining that a “judgment of divorce” was not final because the chancery court reserved the division of the marital assets for a later date). The judgment granting a divorce was not final even though it was labeled as a “final” judgment. Walters, 956 So. 2d at 1052-54 (¶¶5-7, 9, 11-12) (holding that a “Final Judgment of Divorce” was not a final, appealable judgment because the equitable division of the marital estate remained pending before the chancery court). Whether a judgment is “final” is a matter of substance, not form. See M.R.C.P. 54(b).

¶7. Rule 54(b) of the Mississippi Rules of Civil Procedure provides one exception to the rule that only final judgments are appealable. See Walters, 956 So. 2d at 1053 (¶10). Under Rule 54(b), “the [trial] court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). However, the trial court’s “expressed determination that there is no just reason for delay” must be stated “in a definite, unmistakable manner.” Id., advisory committee notes. In other words, the trial court must expressly “certify” that the
interlocutory ruling should be deemed final and “released for appeal.” Jennings v. McCelleis, 987 So. 2d 1041, 1043 (¶6) (Miss. Ct. App. 2008) (quoting Indiana Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 753 (Miss. 1984)).

¶8. In this case, the trial judge did not make such an express certification. Indeed, the judge did not make any statement to the effect that there was “no just reason for delay” of an appeal. M.R.C.P. 54(b). To the contrary, the judgment granting Glen a divorce expressly stated that the equitable division of the marital estate would be “addressed . . . in a later judgment.” The judgment further stated that the court reserved jurisdiction to address that issue and all other financial matters. Moreover, the court even gave the parties a date for the second day of trial. Therefore, Rule 54(b)’s exception to the final judgment rule does not apply. See Walters, 956 So. 2d at 1052-54 (¶¶5-14) (holding that Rule 54(b) did not apply in the absence of an expressed determination by the trial court that there was no just reason for delay—even though the trial judge stated orally and in a written judgment that he intended to allow an immediate appeal from a “Final Judgment of Divorce”).

¶9. Because the chancery court has not entered a final, appealable judgment in this case, this Court lacks jurisdiction, and this appeal must be dismissed.

Nothing more to add. Keep this in mind the next time you try a bifurcated case.

 

Blueprint for Proving Fraud on the Court

March 20, 2019 § 2 Comments

If you will type “fraud on the court” in that Search box over there on the right at the top of the page, you will call up some posts I have done on the effect that fraud on the court has on a judgment.

Most fraud-on-the-court situations are pretty clear. Sometimes, though, you have to convince the judge that the behavior about which you are complaining did constitute a fraud on the court even though it appears benign on its face. Your burden of proof is clear and convincing, so you have to make sure the evidence is strong.

In Manning v. Tanner, 594 So.2d 1164, 1167 (Miss. 1992), the MSSC established four factors that the court must find in order to vacate a judgment for fraud on the court:

(1) that the facts constituting the fraud, accident, mistake, or surprise must have been the controlling factors in the effectuation of the original decree, without which the decree would not have been made as it was made;

(2) the facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved;

(3) the facts must not have been known to the injured party at the time of the original decree; and

(4) the ignorance thereof must not have been the result of the want of reasonable care and diligence.

Clearly factor 1 is the most important to the analysis. If the allegedly fraudulent conduct would not have effected the outcome, the relief should not include setting aside the judgment. To illustrate: I set aside an irreconcilable differences divorce once because on a R60 hearing a year later emails were produced in which the parties essentially agreed that the PSA presented to the court was a sham, and that they were actually agreeing to terms that an attorney had told them I would never approve. Had I known of the side deal when I was presented the original judgment I would never have signed it.

Factor 2 mentions pleadings. Remember the requirement of R9(b) that “the circumstances constituting fraud … shall be stated with particularity.” You have to state in your motion what the specific conduct was that you claim was fraudulent. And, again, the conduct must be proven by clear and convincing evidence.

If your client knew, or should have known by reasonable care and diligence, of the fraud, then the court should not set aside the judgment. That’s Factors 3 and 4.

In deciding whether to set aside a judgment for fraud on the court, the chancellor must keep in mind that “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.’” Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989). “The mere non[-]disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim v. Trim, 33 So.3d 471, 477-78 (Miss. 2010). “To warrant relief pursuant to Rule 60(b)(1) the movant must prove fraud, misrepresentation or other conduct by clear and convincing evidence.” Hill v. Hill, 942 So.2d 207, 214 (Miss. App. 2006) [My emphasis].

A Less-Than-Final Judgment

March 13, 2019 § Leave a comment

The chancellor takes custody away from your client and awards it to the maternal grandmother, who had pled not only for custody, but also for child support.

On the latter issue the judge held “the issue of child support to be paid by [the natural parents] in abeyance,” and allowed for a review hearing on the issue of child support after six months.

You file a R59 motion, which is denied.

Your client wants to appeal. When do you appeal? (A) Now? (B) Some time after six months? (C) After the court finally rules on child support? (D) When the child has his first holy communion?

The answer is (C), because you can only appeal from a final judgment or from a less-than-final judgment only when the court certifies that there no just reason for delay and directs entry of a final judgment. That’s MRCP 54.

The above scenario is from the COA’s decision in Britt v. Holloway, decided January 15, 2019, in which the court dismissed the appeal for lack of jurisdiction.

The law can sometimes seem to be filled with snares and traps for the unwary, so it is understandable that lawyers sometimes jump into an appeal even when there is no final judgment simply to escape the terror of being too late to appeal.

Oh, and before we leave this, that reference above to holy communion was a red herring. I thought you might want to know.

The Retirement Trigger

February 26, 2019 § Leave a comment

In a case last month the COA affirmed a chancellor’s dismissal of a an ex-wife’s petition filed 21 years after the divorce to “allocate and disburse retirement funds.” In the divorce case she had been granted only the divorce, custody, and child support; she had not sought any division of retirement or other funds, and the court did not order it. The case is Stubbs v. Stubbs, decided January 29, 2019.

That case is pretty straightforward and not particularly noteworthy, but it set me thinking about cases in which there is an agreement that, for instance, the husband will pay a percentage of his retirement benefits when he begins drawing them. I have seen those in military and railroad retirement, which is not otherwise divisible. PERS benefits would fit into that category.

If the court orders that an act be done beyond what would ordinarily be the statute of limitations (SOL) applicable to the order, does that stay the running of the statute?

Can one seek modification of that part of the order that has not yet taken effect? For example, could the ex-wife after 5 years, but before the retirement, ask the court to increase the percentage previously ordered, or does she have to wait until the retirement benefits begin?

We all know that a mere order of the chancery court is not adequate to protect the ex-wife’s interest in these scenarios. Either a QDRO or a court order in the form dictated by the military or Railroad Retirement Board is necessary to do so. Can SOL be pled to bar entry of a QDRO or similar order sought years after the original judgment on which it is based?

Just a few idle thoughts to ponder as we slog in our snowshoes toward another glorious Spring.

Who Gets to Challenge Constitutionality?

February 11, 2019 § Leave a comment

In the divorce judgment entered between Michael and Joesie Gerty, the chancellor sua sponte declared MCA § 93-5-2 (divorce on the ground of irreconcilable differences) unconstitutional.

Michael, Joesie, and the State of Mississippi all filed R59 motions asking the court to set aside that part of her ruling because no party had pled, argued, or offered evidence on the issue. The chancellor did not change her ruling, and all three movants appealed.

In Gerty and Mississippi, ex re. Hood v. Gerty, decided December 13, 2018, the MSSC reversed on the issue of constitutionality. Justice Randolph’s opinion for a unanimous court made short work of the issue:

¶34. Few subjects in our jurisprudence are so settled as the maxim that a statute’s constitutionality will not be considered unless it has been specifically pleaded. See Martin [v. Lowery], 912 So. 2d [461] at 464-65; Lawrence Cty. Sch. Dist. v. Bowden, 912 So. 2d 898, 900 (Miss. 2005); City of Jackson v. Lakeland Lounge of Jackson, Inc., 688 So. 2d 742, 749 (Miss. 1996) (citing State ex rel. Carr v. Cabana Terrace, Inc., 247 Miss. 26, 153 So. 2d 257, 260 (1963)); see also Colburn v. State, 431 So. 2d 1111, 1114 (Miss. 1983); Witt v. Mitchell, 437 So. 2d 63, 66 (Miss. 1983).“[I]issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and proof contained in the record.” Lakeland Lounge, 688 So. 2d at 750 (emphasis removed) (internal citation omitted). A trial court may not raise a constitutional issue sua sponte. In re Estate of Miller v. Miller, 409 So. 2d 715, 718 (Miss. 1982).

¶35. The chancellor fully acknowledges that the litigants did not raise the constitutionality of Section 93-5-2 in their pleadings or proof. The chancellor’s ruling, that the statutory scheme presented by Section 93-5-2 is unconstitutional, exceeded her authority. The rule of law requires that we reverse and vacate the chancellor’s judgment declaring the statute unconstitutional and granting an irreconcilable-differences divorce.

The opinion does not describe the basis for the chancellor’s ruling of unconstitutionality. In Footnote 5, the opinion states that, “An amicus brief was filed by the Misssissippi Coalition Against Domestic Violence in support of the chancellor’s finding. The amicus called for affirming the chancellor, because the statute deprived domestic-abuse victims of constitutional rights. However, no domestic violence was pleaded or proved in this matter.”

The court reversed and remanded on other issues raised by the parties.

At ¶5, this enigmatic statement appears: “Today’s case … is unique but not unprecedented … ” It seems to me that something unique is by its nature unprecedented.

This case, involving a sua sponte unconstitutionality ruling, is not a scenario you are likely to encounter, but, as the precedent shows, it is in the realm of possibility.

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