SOME RULE 59 PITFALLS
June 3, 2013 § Leave a comment
Here’s the scenario … You are unhappy with the judge’s ruling in the divorce, and so is your client. The judgment was entered 7 days ago, and you and your client agree that neither a post-trial motion nor an appeal were included in the fee you charged to this point. Your client promised to bring you another few hundred dollars to file an appropriate post-trial motion. She understands that a R59 motion will toll the time for appeal, giving her additional time to marshal her assets for an appeal, if necessary. She also understands that the R59 motion must be filed within ten days of the date of the judgment. But time is running out and you haven’t heard back from her. You call opposing counsel, who is quite accommodating and suggests you just send an agreed order extending the time to file. You want 30 days? No problem. He’ll sign.
Pondering your impending dilemma, you arrive at several options:
- You could send that agreed judgment extending the time to file a R59 motion. You could get it to the judge at least by the tenth day, getting you in under the wire.
- Or, you could go ahead without your client’s participation, and without compensation, and file that R59 motion anyway.
- Or, you could just let the ten days go by, and file a R60 motion after then, if you get paid.
- Or, you could just not file a post-trial motion, and let the client pay for an appeal only.
- Or you could do nothing, and let the sorry so and so just rot in the sun because you weren’t paid.
Let’s look at these one by one:
- The agreed order. Before you do this read R59. I’ll wait. [Humming Tom Petty’s You Don’t Know What It’s Like to be Me to myself]. Done? What did you find? Is there any provision to enlarge the time? Not specifically, you say, but it’s not precluded by the language of R59. True, but read on in the Comment, where it says, “The ten-day period may not be enlarged. MRCP 6(b)(2).” R6(b)(2) states that the court, ” … may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.” So that accommodating counsel opposite may really be a Br’er Fox luring you to your doom.
- Go ahead on your own. This is the option I would elect. Filing the motion gives your client maximum protection. All R59 relief is on the table, and the time for appeal is extended. If your client changes her mind, you can always dismiss the motion. What about the fact that the filing was not explicitly authorized by your client? You should have no culpability if your action is in your client’s best interest. And as for pay, you can settle that later. Your client’s best interest comes first.
- R60 motion instead of R59. Not the best option. R60 does not stop the 30-day appeal clock from running. The scope of R60 is quite different from R59.
- No post-trial motion. At first blush, not an entirely unacceptable choice. A post-trial motion is not a prerequisite to an appeal in chancery. One drawback, though, is that if no R59 motion is filed the appeal deadline continues to run unabated. Another drawback is that a R59 motion may alert the judge to some flaw in his or her decision that she could correct, saving your client the considerable expense of an appeal. And, a more subtle consideration is that R59 allows you to bring something to the attention of the trial judge that you may not have objected to or made your record on at trial, and which would thereby be barred on appeal if you did not give the trial judge a chance to rule on it before your appeal.
- Rot in the sun. Are you serious?
The confluence of entry of a judgment, deadlines for post-trial motions, and deadline for appeal create a perilous passage fraught with shoals and cross-currents that can cause you and your client great damage. Watch the clock and chart a course that will ensure both of you the greatest possible protection.
SERIAL MRCP 59 MOTIONS
May 29, 2013 § 1 Comment
The MSSC case McNeese v. McNeese, decided April 25, 2013, is one that addresses a dizzying variety of points. But I want to focus on the particular aspect of the post-trial motions filed by both parties.
By way of background, the case arose after Kenton and Katye McNeese entered into a consent to divorce on the sole ground of irreconcilable differences, reserving for adjudication the issues of custody, visitation, support, equitable distribution, and alimony. After the judge rendered a judgment on September 2, 1011, mostly in Katye’s favor, she timely filed an MRCP 59 motion complaining that Kenton had failed to disclose certain items in his financial disclosures. Kenton neither responded nor filed his own R59 or 60 motion.
Following a hearing on Katye’s motion, the court entered an order on October 12, 2011, ruling on Katye’s motion, followed on the same day by an amended opinion and judgment clarifying the original opinion. And that is when all proverbial hell broke loose.
Kenton fired his attorney and, on the day following entry of the amended judgment, filed pro se “Motion to Reconsider, Motion for New Trial, to Alter or Amend Judgment, and Motion for Stay of Proceedings.” His motion(s) were filed 31 days after entry of the original judgment.
[Reconsideration, or Rehearing?]
The chancellor, in a display of saintly forebearance that one would be unlikely to experience with this judge, patiently allowed Kenton to present his argument and even evidence, the bulk of which was an attempt to show how the judge was wrong in his original ruling. The chancellor denied Kenton’s motion, Kenton filed a pro se appeal, and the MSSC took 23 pages to arrive at the word, “Affirmed.”
Let’s stop right there. Here are a couple of questions I have about what happened:
- Kenton’s motion was an attack on the trial judge’s original ruling, essentially asking him to “reconsider” what he had done, or, in the parlance of the rule, for a “rehearing.” Those are R59 issues, that were required to be asserted within ten days of entry of the judgment, but he did not file his motion until 31 days after entry of the judgment. So why was he allowed to raise those points at that late date, and again on appeal? The amended judgment only clarified the original judgment, and apparently did not add anything substantive. Even if it had, however, I don’t think as a matter of law that entry of the amended judgment opened that door back for him, for the reasons I will state below.
- In the case of Edwards v. Roberts, 771 So.2d 378 (Miss.App. 2000), the COA held that there is one round of R59 motions, and only one round. You do not get to file for rehearing after the judge has ruled on the motion for rehearing. If that were not so, one could almost permanently toll the time for appeal by filing serial R59 motions after every ruling on previously-filed R59 motions, ad infinitum. There has to be finality of judgments. So how was Kenton able to get away with it in his case?
- Kenton’s motion, since it was filed more than 10 days after entry of the original judgment, was properly a R60 motion. It did raise a single, valid R60 issue, namely the existence of newly-discovered evidence. The chancellor did allow him to proffer the allegedly newly-discovered evidence, which the judge ruled to be insignificant, and the MSSC affirmed. All of the other issues raised by Kenton were outside the scope of R60. I would have rejected them as untimely, and I hope I would have been affirmed.
These may appear to be quibbling points, but litigants, pro se and represented alike, are entitled to a final conclusion to their litigation travail. Untimely and insubstantial post-trial motions delay that finality and inject issues into the appeal that waste time and resources of the appellate courts to address and resolve.
WHAT YOUR UNCONTESTED PROOF NEEDS TO INCLUDE
May 28, 2013 § Leave a comment
I’ve posted here before about the inadequate proof that most attorneys offer when presenting an uncontested divorce or child custody case.
I’m not talking here about corroboration and substantial evidence of the grounds in a divorce case. I’m talking about addressing all of the applicable factors that pertain to your particular case. For instance … After establishing that your client is entitled to a divorce, he says he wants the house and all the equity. Is that good enough? Or your client testifies that she wants custody and has had the child with her for the past 18 months. Is that all you need?
The answer in both scenarios is “No.” You need to give the judge enough evidence to enable findings on all of the Ferguson factors for the judge to award that equity, and you need to address the Albright factors for the judge to make sufficient findings to award custody. And so on with all of the type cases that involve factors.
That is what the MSSC held in Lee v. Lee, 78 So.3d 326 (Miss. 2012).
I usually sign will sign the judgment based on a modicum of proof. If, however, a proper post-trial motion is filed, I will set aside that part of the judgment that is not supported with findings on the applicable factors as required by case law. As the court said in Lee, at 329:
¶13. By failing to appear at the hearing, [the appellant] forfeited his right to present evidence and prosecute his divorce complaint. But he did not forfeit the right to challenge the sufficiency of the evidence or the judgment. And whether absent or present at the trial, the appropriate time to challenge a judgment is after it has been entered. [Appellant] did so in his Rule 59 motion and at the hearing following it. The fact that [he] failed to attend the divorce trial does not relieve the chancellor of his duty to base his decision on the evidence, regardless of by whom presented, nor did it nullify this Court’s mandate in Ferguson.
It’s so simple to take the few extra minutes to put on the evidence that will support the required findings. Then, you incorporate them into your judgment and the judge will gladly sign it. Only, don’t expect the judge to sign it if she did not hear testimony on point.
If your judgment has the necessary findings, it should withstand any post-trial attack based on that reason. Your client will appreciate that. After all, that’s what you were paid to do.
HARD GARNISHMENT LESSON FOR A JOINT ACCOUNT OWNER
May 6, 2013 § Leave a comment
Dorothy Lang and Derrick Higgins were estranged husband and wife. Despite that they were living separate and apart, they maintained two joint bank accounts at the same bank, with Dorothy continuing to use the joint savings account, and Derrick continuing to use the joint checking account.
Derrick got behind in his child support payments to another woman — to the tune of $17,000 — and DHS in April, 2010, froze both joint accounts per MCA 43-19-48, imposing a lien on the deposits. When Dorothy discovered what had happened, her attorney sent a letter to DHS in May, 2010, advising them that the funds were Dorothy’s, not Derrick’s. DHS thoughtfully responded the next day with a letter pointing out that Dorothy was required by statute to file a petition with the court if she wished to challenge the lien.
Dorothy took no action immediately, and on June 17, 2010, DHS received $3,116.69 from the two accounts, no doubt causing Dorothy some economic distress. The date of the disbursement was more than 45 days after the freeze.
Finally, in September, 2010, Dorothy got around to filing a contest to the lien, and, at an evidentiary hearing, produced proof that most of the money seized was, indeed, hers, and not Derrick’s. The chancellor ordered DHS to refund Dorothy $2,000 of the money, and DHS appealed.
In DHS v. Lang, handed down by the COA on April 23, 2013, the COA reversed and rendered. Judge Fair’s opinion for a unanimous court, explained:
¶8. … [A]lthough the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam. Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.
¶9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So. 2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debtor’s ownership of the funds.” Delta, 547 So. 2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.
¶10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.
The court then turned to the question whether Dorothy’s letter to DHS or her petition filed nearly three months after the order disbursing funds was effective to regain her funds. The COA answered “no”:
¶12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061 (Miss. Ct. App. 2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So. 2d 320, 322 (Miss. 1981)).
¶13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance [footnote omitted]. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So. 2d at 1067 (¶12) (internal citation omitted).
Parting thoughts …
- I wonder whether Dorothy now thinks it was worth the few extra bucks she saved to keep that joint account open with her n’er-do-well estranged husband. [Incidentally, the COA opinion points out that Derrick owed Dorothy back child support also. Ouch.].
- Don’t sit on a case like this. File something right away, even if it’s wrong. You can always amend later, and you can continue to negotiate and talk with pleadings filed. Here, the five-month delay was fatal to Dorothy’s claim.
- This may seem like a rare case, but I actually have had a couple of cases where the question was raised about the rights of joint-account owners. They were resolved, but you never know when yours will not be.
SELF-INFLICTED DISMISSAL
April 24, 2013 § Leave a comment
The COA case of Maurer v. Maurer, handed down April 9, 2013, calls our attention yet again to the phenomenon of the self-represented parties and the imaginative ways that they can inflict damage on their interests using the legal system for that purpose.
Raven and Michael were divorced in 2006. Commencing in 2007, they engaged in a long-running battle over custody and visitation in which allegations of sexual abuse were made, a GAL was appointed, a termination of parental rights action was filed, custody orders were entered bouncing the children from one parent to the other, and, finally, a hearing was held in 2011, on the termination of parental rights, pleadings for modification of both visitation and child support, and multiple contempt allegations.
The chancellor ruled against Raven’s termination request and found Michael in contempt for failure to pay child support. But the judge did not adjudicate the amount of the arrearage or the amount of reduction in child support Michael should have; instead, she ordered the parties to submit proposed findings of fact and conclusions of law on those issues.
Raven filed a pro se appeal. Michael is listed as pro se in the appeal, also.
Just for fun, let’s have a little quiz on how the COA ruled. Multiple choice, pick the likely outcome:
(A) The appeal is dismissed because this was an MRCP 81 action at trial, and MRCP 81 is hopelessly outdated and anachronistic and too complicated for pro se litigants to comprehend;
(2) The appeal is dismissed based on MRCP 44.1, determination of foreign law; or
(x) The appeal is dismissed because the chancellor’s “final judgment” adjudicated fewer than all of the contested issues, and there was no certification per MRCP 54(b).
If you guessed (x), you’re right. As the court’s opinion, by Judge Maxwell, stated, although the chancellor adjudicated “the vast majority of disputed issues,” there were matters left unaddressed, so there was no final, appealable judgment, and the COA has no jurisdiction unless there had been a certification under MRCP 54(b), or Raven had gotten leave to file an interlocutory appeal, which (surprise, surprise) she did not do.
The only remarkable thing to me about this case is how people, heedless of the legal harm and expense they can inflict on themselves, persist in pursuing complex legal matters pro se. We’ve seen many cases over the past several years where the R54(b) snare tripped even skilled lawyers; how is a lay person to know how to negotiate these shoal waters? As I have observed many times, I have never seen a pro se litigant walk out of the court room in better shape than when he or she walked in. Raven went to a lot of expense in this appeal for nothing.
WHIRLPOOL OF POST-TRIAL RELIEF
April 22, 2013 § 3 Comments
Anyone who has ever canoed or kayaked a swift-flowing stream knows that you can get caught in a whirlpool of cross-currents that is mighty difficult to get free of, and, instead of paddling along one’s intended course, one paddles frantically to break loose.
That’s the effect of what happened in McBride v. McBride, a COA case decided April 2, 2013. In that case, Robert and Vanessa were involved in a divorce. The court rendered a final judgment, and Vanessa filed a Rule 59 motion for rehearing (which she styled as a motion for reconsideration, btw). Some four months later Robert filed his “Motion for rehearing on Vanessa McBride’s Motion for Reconsideration, or, in the Alternative, for New Trial.” So, what we have here is a motion to “reconsider” the reconsideration; a post-trial whirlpool, if you will. Vanessa appealed.
In its opinion, the COA says at ¶13, “In her brief, Vanessa claims that Robert’s motion was not allowed ‘as the law allows one motion for reconsideration/new trial after a judgment is entered.’ Yet, Vanessa does not cite any authority for this legal principle.” And at ¶16: “As much as we may like to impose a one-motion-for-reconsideration rule, there is simply no authority to impose such a limitation …”
Now, it’s unclear to me exactly what Vanessa was attempting to argue with her one-motion claim, but I do believe there is a one-motion-for-Rule 59- relief rule expounded by our courts. In Edwards v. Roberts, 771 So.2d 378, (Miss.App. 2000), the COA addressed the issue in the context of a circuit court ruling on a motion for a new trial, which is the circuit court counterpart to the chancery court motion for rehearing, both of which are brought under MRCP 59. Here’s what the court said:
¶ 21. We start with the settled law that after a motion for new trial has been denied, no right exists to file for reconsideration. We find that reasoning equally applicable to motions for JNOV. “When the procedure authorizing a motion for a new trial has been followed and, pursuant to proper notice, the parties have made their representations to the court, and the court has duly considered and made his decision upon that motion, that completes both the duty and the prerogative of the court.” Griffin v. State, 565 So.2d 545, 550 (Miss.1990) (emphasis added). In Griffin, the lower court sustained two criminal defendants’ motion for new trial as to two of the counts, and overruled as to one count. Id. at 545. The defendants fled and were captured several years later. Id. At that time the State moved to set aside the order granting a new trial. Id. The judge sustained the State’s motions because he believed that he had made an error at law in granting a new trial. Id. On appeal, the Supreme Court found that the judge had no authority to revoke his earlier order for a new trial. Id.
¶ 22. The Griffin court relied on other states that had addressed the same question. Among other authorities, the court quoted the California Supreme Court’s holding that, “It has long been the rule that ‘A final order granting or denying [a motion for a new trial], regularly made, exhausts the court’s jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence….’ ” Griffin, 565 So.2d at 549 (citing Wenzoski v. Central Banking Sys., 43 Cal.3d 539, 237 Cal.Rptr. 167, 736 P.2d 753, 754 (1987)). Once a motion for new trial has been ruled upon:
[I]f the party ruled against were permitted to go beyond the rules, make a motion for reconsideration, and persuade the judge to reverse himself, the question arises, why should not the other party who is now ruled against be permitted to make a motion for re-re-consideration, asking the court to again reverse himself? … This reflection brings one to realize what an unsatisfactory situation would exist if a judge could carry in his mind indefinitely a state of uncertainty as to what the final resolution of the matter should be.
Griffin, 565 So.2d at 549–50 (citing Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662, 663–64 (1966)).
[9] ¶ 23. Though Griffin is a criminal case, the Supreme Court’s principal authorities for holding it improper to move for reconsideration of a motion for new trial were civil cases under versions of Rule 59. The Supreme Court’s conclusion that ruling on one motion for new trial exhausts the power of the court to entertain another such motion, certainly has an impact here. Until a judgment is final, a court has the authority to amend it. Griffin v. Tall Timbers Development, Inc., 681 So.2d 546, 552 (Miss.1996). Conversely, once it is final the authority is lost. The court’s initiating it own reconsideration removes the finality of the judgment after an earlier motion was denied. That creates the same difficulties that were discussed in Griffin v. State. Just as a second motion under Rule 59(a) cannot be brought by a party after an earlier Rule 59(a) motion has been denied, neither can the trial court itself entertain its own reconsideration under Rule 59(d) or Rule 50(b).
¶ 24. This is not to say that the finality of the judgment created by the denial of the first motion for new trial is absolutely unchangeable. Griffin v. State itself says that one last tool remains—correcting clerical error, relieving inadvertence, responding to newly discovered evidence, or otherwise considering the grounds for a Rule 60 motion. Griffin, 565 So.2d at 549. Since the state and federal versions of Rule 60 are similar, we can seek a better understanding of what can be achieved under Rule 60 by examining an explanation of federal caselaw. The Mississippi Supreme Court has said “the federal construction of the counterpart rule will be ‘persuasive of what our construction of our similarly worded rule ought to be.’ ” Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991) (citation omitted). The following section of an eminent treatise on the federal rules first explains that a denial of a new trial motion cannot be reconsidered, and then suggests what remains:
Term time as both a grant and limitation upon the district court’s power over its final judgments has been eliminated.[ footnote omitted] In lieu thereof and in the interest of judgment finality a short time period, that is not subject to enlargement, has been substituted, within which a party may move for a new trial or to alter or amend the judgment. When the court has decided such a motion in a way that the finality of the judgment has been restored, then relief, if any, should come by appeal or by a motion under Rule 60(b), which does not affect the finality of the judgment or suspend its operation. It would be destructive of the general aim of the Rules to permit successive attacks upon final judgments on motions to reconsider orders that deny new trial, or that deny or grant an alteration or amendment of the judgment.
The logic is clear that if there were no limit to motions for rehearing, there would never be an appeal from a final judgment as long as the successive motions are pending. It would be like getting caught in that whirlpool when you’re trying to paddle to finality.
McBride was reversed and remanded on other grounds. Judge Griffis’s opinion addresses the vernacular use of the term “reconsideration” at ¶15. It’s a subject we’ve discussed here previously.
THE BITE OF PAST-DUE CHILD SUPPORT
April 16, 2013 § 1 Comment
MCA 85-3-4 deals with execution of garnishments in Mississippi. Most garnishments are limited to 25% of “disposible income,” as defined in federal law. But if the judgment is for past-due child support, the garnishment may be as much as 50-65% of disposible income. That’s quite a bite.
In the MSSC case of Reasor v. Jordan, decided April 4, 2013, Frankie Reasor had gotten custody of his daughter from his ex-wife, Rose Jordan, in a modification case. He was also tagged with a hefty $24,000 judgment for past-due child support and unpaid medical expenses of the child that predated the modification. The chancellor popped Frankie with a 55% garnishment, and, both impoverished and aggrieved, he appealed.
Here’s how Justice King’s majority opinion addressed the issue:
¶27. The Court has addressed this issue previously in Sorrell v. Borner, 593 So. 2d 986 (Miss. 1992). In Sorrell, the parents divorced, the mother was awarded custody, and the father was ordered to pay child support. Id. at 986. Later, the father sought a change in custody. Id. In response, the mother filed a counterclaim for past-due child support. Id. The chancellor awarded the father custody but held him in arrears, entering a judgment in favor of the mother for back child support. Id. The mother obtained a sixty-five percent garnishment on the father’s wages. Id. at 988. Aggrieved, the father filed a petition to modify the order (by offsetting his arrearage by the mother’s child-support obligation), and the chancellor denied his petition. Id. at 986-87.
¶28. On appeal, the father challenged the order, arguing that the garnishment should have been limited to twenty-five percent. Id. at 988. Although the father failed to attack the garnishment in his pleadings, the Court noted that the father made an oral objection at the hearing. Id. at 989. Reviewing the applicable statutes, the Court determined that:
The judgment awarded was for past due child-support, but [the mother] no longer had custody of the children. In our opinion, the legislature did not contemplate the exception language to be used in this situation, and [we] are of the opinion that the restriction listed in § 85-3-4(2)(a) should apply to the garnishment here.
Id. at 988. Accordingly, the court reversed and remanded the chancellor’s judgment. Id. at 988-89.
¶29. Applying the Court’s reasoning in Sorrell, the withholding restriction in Section 85-3-4(2)(a)(i) should apply to Reasor as well. Like Sorrell, Reasor complained about the amount of the garnishment during his hearing. Also, when the judgment was awarded for past-due child support, Jordan no longer had custody of the child. Thus, the chancellor erred by ordering a fifty-five-percent withholding. Instead, the garnishment should have been limited to twenty-five percent of Reasor’s disposable income. Accordingly, we vacate the order and remand for a proper determination of withholding.
The main thing to take from this case is to be aware of the generous garnishment provisions as they relate to unpaid support. As I read the statute, they would apply not only to child support, but also to alimony.
When you read this case, look also at the MRCP 81 issues raised by the way that the original chancellor handled the case. I agree with Justice Pierce’s concurrance/dissent on this issue. R81 requires notice. I don’t agree that Mr. Reasor got proper notice in this case. Chalk this up as another case added to the confusion over how R81 works.
CONSTITUTIONALLY UNPROTECTED FATHERS
April 9, 2013 § 2 Comments
If you do any adoption work, the case styled In the Matter of the Adoption of a Minor Child, A.S.E.L.: V.S.P v. M.J.W. and M.S.L., decided by the COA on April 2, 2013, is one you should be familiar with.
The facts are somewhat involved, but the essence is that Vincent, age 19, and Dana (pseudonyms), age 17, had a child together, whom they named Andy, born May 25, 2004. Vincent was not listed as the father on the birth certificate. Shortly after the birth, the young couple split and Dana moved from place to place with the baby. Vincent had little contact with Dana or the child, and he did nothing to help support his offspring.
Through a series of events, Dana’s brother Mark, and his wife, Melanie, obtained custody of Andy in youth court.
Melanie and Mark decided to adopt Andy, and in April, 2005, Dana signed a consent to adoption. Vincent was not made a party to the adoption because paternity had never been established. A judgment finalizing the adoption of the child by Mark and Melanie was entered December 16, 2005.
In September, 2009, nearly four years after the adption, Vincent filed an action to set it aside, claiming that it was void because he was not made a party, despite the fact that everyone involved should have known that he was the father, and that Dana was coerced into executing the consent.
The chancellor denied Vincent any relief, and he appealed. Judge Barnes, for the majority, wrote:
¶21. … we note generally the setting aside of an adoption decree is disfavored in Mississippi. See [In Re Adoption of J.E.B., 822 So.2d 949, at 952] (¶10) (citing Humphrey v. Pannell, 710 So. 2d 392, 399 (¶35) (Miss. 1998)). There is a strong public policy declaration in Mississippi’s adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So. 2d 702, 705 (¶12) (Miss. 1998) (citing In re Adoption of R.M.P.C., 512 So. 2d 702, 707 (Miss. 1987)).
¶22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father’s parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father’s attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child’s birth and the filing of the adoption petition. Id. at 249. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256. The Supreme Court held that the natural father’s substantive rights under the Due Process Clause were not violated by applying the “best interest of the child” standard in this instance, and the adoption was affirmed. Id. at 254, 256. In Caban v. Mohammed, 441 U.S. 380, 392-94 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.
The court went on to affirm the chancellor’s ruling, holding that if a biological father has failed to establish the quality of relationship described in the US Supreme Court decisions and in MCA 93-17-6, then he has no constitutionally protected right to process and participation in the proceeding, and failure to serve him with process does not void the adoption judgment.
Several observations:
- Not a criticism of counsel, but wouldn’t it have been more prudent to get a consent from Vincent? The undisputed facts establish that he was agreeable with the adoption at the time it was in process. If he did not want to admit paternity, language could have been added to the consent to the effect that he did not know whether he was the father, but, in the event that he might be, he consented to the adoption. Lawyers sometimes yield to the client’s desire to do it the easiest way, when a little more trouble now could avoid lots more down the line.
- Add some protective language to your consents. Add language to the effect that it was not coerced, was freely given, and that the signer knows and understands that it is irrevocable and can not later be undone. It may not be conclusive in a later attack, but it would certainly buttress the defense of the original judgment.
- Ponder measures you can take to immunize your judgment from attack months and even years down the road. Make sure you have tended to every detail, especially jurisdictional detail, in strict compliance with the statutes. In the past few years, it has become increasingly common for parties to agree to one thing, and then to hire another lawyer to try to set the agreement aside. The more armor-plating you add to your judgments (and property settlement agreements and contracts, for that matter), the more likely it is that they will survive attack.
NON-SUPPORT AGREEMENTS
March 25, 2013 § 3 Comments
I am regularly presented PSA’s and agreed judgments that include a provision that the non-custodial parent will not pay any child support to the custodian. I don’t like it, for reasons that I have expounded on here before.
In my opinion, such agreements are not only undesirable, they are void.
The case of Houck v. Ousterhout, 861 So.2d 1000 (Miss. 2003) may be dispositive. Timothy James Houck and his former wife, Guyolyn Ousterhout, had been involved in various modifications and contempt actions as their children moved in varying numbers from household to household. In 1996, after several inconclusive skirmishes in court, they entered into an agreed judgment that recited that “[m]aterial changes ha[d] occurred in the life of Timothy … which prevent[ed] him from being able to pay his child support as directed. They agreed that Timothy would pay Guyolyn $1,500 in exchange for her waiver of any claim to “past, present and future child support payments,” and further that they agreed “to forever release one another from any obligation, now or in the future, of child support payments by or to either party.”
Notwithstanding the agreement, the parties found themselves yet again in litigation, in which Guyolyn asked, among other things, for nullification of the agreed order. The chancellor did void the agreed judgment as against public policy, and awarded Guyolyn a judgment against Timothy in the sum of $89,848.65. Timothy appealed.
The MSSC affirmed:
¶ 8. The modification relieving Houck of any obligation to pay child support to a custodial parent is null and void. Child support payments are made to the custodial parent for the benefit of the child. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991). The child’s right to his parent’s support cannot be bargained or contracted away by his parents. Tanner, 598 So.2d at 786; Calton v. Calton, 485 So.2d 309, 310-11 (Miss.1986).
¶ 9. We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts. Tanner, 598 So.2d at 786; Varner v. Varner, 588 So.2d 428, 432-33 (Miss.1991); Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Brand v. Brand, 482 So.2d 236, 237 (Miss.1986). Each payment that becomes due and remains unpaid “becomes ‘a judgment’ against the supporting parent.” Tanner, 598 So.2d at 786; Brand, 482 So.2d at 237; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983); Howard v. Howard, 191 So.2d 528, 531 (Miss.1966). The only defense thereto is payment. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433. That two of the children are now emancipated does not preclude Ousterhout from seeking recovery of the arrearage from Houck. Tanner, 598 So.2d at 786; Varner, 588 So.2d at 433.
¶ 10. Accrued child support payments cannot be extinguished by a court: “A court cannot relieve the civil liability for support payments that have already accrued.” Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984) (citing Cunliffe, 437 So.2d at 43; Duncan v. Duncan, 417 So.2d 908 (Miss.1982); Howard, 191 So.2d at 528). We have found a chancellor to be in error for suspending execution on a judgment for past due child support. Brand, 482 So.2d at 238-39. We have likewise held that a chancellor erred in finding that payment of only that part of the past due child support which had accrued prior to the warring couple’s protracted child support litigation extinguished his liability. Cumberland, 564 So.2d at 847-48; see also Thurman, 559 So.2d at 1016-17 (Where a supporting parent had paid roughly half the amount owed under a prior decree for two months and none during the third month in question, the chancellor erred in finding that the parent was liable only for the difference between the unpaid amounts and the greatly reduced modified monthly obligation.). [Emphasis added]
To me, the principle is crystal clear: the chancellor can not approve an agreement that relieves a parent of the duty to support his or her child, either prospectively or retroactively.
The Better Chancery Practice Blog 