Judgments | The Better Chancery Practice Blog

Properly Pleading a Rule 59 Motion

January 10, 2017 § 1 Comment

A party wishes to ask the court for a new trial, and files the following within ten days of entry of the final judgment:

“Comes now the plaintiff, with respect to the court’s judgment rendered December 30, 2016, and moves the court for a new trial, pursuant to MRCP 59(a).”

Is that adequate?

Before we get to a response, I have to say that I have gotten motions almost identical to the language above, and no opposing party has ever raised an objection to its lack of specificity.

To me, it’s unquestionable that the motion is inadequate. That’s because of the specific language of R7(b), which states that “An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Because R59(a) limits such a motion in chancery to ” … any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of Mississippi,” at a minimum one or more of those reasons must be pled in order to meet the requirements of R7. Our case law recognizes also that the best practice is to specify all potential assignments of error in a motion for new trial, which indicates to me that the expectation is that some basis for the motion must be pled. See, Kiddy v. Lipscomb, 628 So.2d 1355, 1359 (Miss. 1993).

Rehearings in equity prior to the MRCP were granted for reasons including: matters in the record that were arguably overlooked or not adequately addressed by the court; or the court misapplied or did not follow controlling case law; or there is newly-discovered evidence or “supervening facts” that would render the court’s decree incorrect or inequitable. Griffith, Mississippi Chancery Practice, §632, 2d Ed., 1950. If your motion fits into one of those categories, then you must plead it and support it with enough facts and authority to give the trial judge a basis to rule on it.

An illustration of how the failure to properly plead a R59 motion can open a critical line of attack to the opposing party is the case of Carter v. Carter, decided by the MSSC on December 1, 2016. In that case, the trial court entered its final custody judgment, and a R59 motion was filed by the unsuccessful party 5 days afterward, well within the 10-day time required by the rule. Sixty-two days later the same party filed a “Supplemental Motion” asserting new grounds not included in the original motion. The trial judge overruled the motion. On appeal, the other side claimed that the appeal was untimely, since it was based on the grounds raised in the “Supplemental Motion,” which was filed long after the ten days post-entry of judgment had elapsed. After examining the law on the point for around eight pages, the high court ruled that the objection had been waived because no one raised it at the trial level. Bullet dodged.

The interesting thing about Carter to me is that the entire hoorah over the original motion vis a vis the “Supplemental Motion” is that it presupposes that grounds must be pled in the R59 motion. There would have been no argument about it at all if the language above were all that were required.

In the great majority of reported R59 case that I have looked at, the courts refer to the bases asserted by the movant at the trial level.

My advice:

Raise every claim of error you can think of in your R59 motion (although failure to do so may not be fatal as to some assignments of error, as you will discover when you read the Kiddy case);
Include some of that Griffith language in your motion, as applicable (if nothing else, it may impress someone that you are a scholar); and
If the other side files an inadequately pled motion or attempts to raise unpled issues at hearing, by all means object and preserve your record.

Can You Garnish SS Benefits for Child Support and Alimony?

January 5, 2017 § 7 Comments

Conventional wisdom is what is generally accepted as the truth when no one has bothered to research the actual truth. Conventional wisdom has long dictated that you can’t garnish Social Security benefits to collect child support or alimony.

But here’s a direct quote from the Social Security Administration (SSA) FAQ site on the point:

Can my Social Security benefits be garnished for alimony, child support or restitution?

We can withhold Social Security benefits to enforce your legal obligation to pay child support, alimony or restitution. State laws determine a valid garnishment order. By law, we garnish current and continuing monthly benefits. We do not make retroactive adjustments.

You cannot appeal to Social Security for implementing garnishment orders. If you disagree with the garnishment, contact an attorney or representative where the court issued the order.

From that, I take it that: (1) the garnishment is limited to current benefits, and lump-sum payments for past benefits are apparently not garnishable; (2) the garnishment is done according to state law, and is subject to the federally-imposed limits (which are high for child support, as pointed out below); and (3) if you think the garnishment order is wrong procedurally or substantively, your remedy is in the state court that issued it, and Social Security will decline to help you with that.

Side note: I wonder whether a lump-sum benefit expected but not yet received is subject to garnishment? In other words, SSA will not reach back and retroactively “adjust” a lump-sum benefit already paid, which is understandable; but if that lump-sum payment is in process but has not yet been paid, may it, too, be garnished?

It’s not stated above, but I understand that neither alimony nor child support may be taken from an SSI check.

Federal law limits garnishment in most cases to 25% of disposable income. When it comes to child support, though, garnishment may be as much as 50-60%. A previous post discussing child-support garnishment is at this link.

In a recent case in another district, the ex-husband did not appear for his divorce hearing, and was ordered by the chancellor in the divorce judgment to pay $200 a month alimony to his ex. The wife’s attorney had the court enter an “Order for Withholding” contemporaneously with the judgment. The withholding order specifically directed that the alimony be withheld from the husband’s SS benefits. It also directed withholding by “any payer of the obligor.” A certified copy of the order was sent to SSA.

Two weeks later SSA sent a letter to the attorney documenting that the amount directed was to be withheld from the husband’s SS benefits, effective in the following month. Although the SSA did agree to withhold the amount directed by the court, it did point out that the amount withheld is limited by federal law. What that means to you is that the 25% limitation for alimony, and 50-60% limitation for child support, may mean a smaller recovery for you in relatively big-dollar cases.

Note that the lawyer in this case prepared and presented a withholding order rather than a formal writ of garnishment, and SSA honored it. That tells me that if you obtain a court-ordered withholding order in any form SSA will honor it. It’s up to the obligor to complain to the state court about the procedure that was used.

Oh, and for those of you who haven’t dealt with SSA recently, their response time in my experience is lightning-fast in all but disability cases, and accurate. It’s a far cry from even 10 years ago when SSA took forever to respond with inaccurate and confusing information that would take months to correct. Your experience may vary.

Here is yet another avenue available to you to make your clients happy. Remember: when you save or make your clients money, they love you; when you cost them money, they hate you. Whether they love or hate you, they will tell all their friends and relatives about it. You get to decide what kind of news they spread around about you.

Thanks to Attorney Christopher Tabb of Brandon for the factual information; the editorial comments are my own

Preserving the Unexpected as an Issue for Appeal

December 12, 2016 § Leave a comment

Andrea and Thomas Taylor went to chancery court in a dispute over college-education language in the PSA that accompanied their 2003 divorce. Andrea took the position that it did not address college education tuition and expenses for their son, Austin. Thomas claimed that the agreement did address the issue, and he sued Andrea for contempt, demanding that she contribute to the more than $70,000 that Austin had incurred as student loans pursuing a commercial aviation degree at Delta State.

The chancellor did find that the PSA obligated both parents to contribute equally to their son’s college education expenses, and he found that those expenses totalled $61,136. He then ordered each party to pay $30,568 toward the judgment.

Here is where things get a little weird. The chancellor rendered the judgment not in favor of Thomas, and certainly not in favor of Andrea. The chancellor awarded the judgment to Austin, who was not a party; no one had requested that relief.

Andrea appealed.

In Taylor v. Taylor, handed down October 6, 2016, the MSSC affirmed. Here is the entire discussion from Justice Maxwell’s opinion:

¶6. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936) (citations omitted); see also Pierce v. Pierce, 132 So. 3d 553, 567 (¶ 37) (Miss. 2014) (citing McNeese v. McNeese 119 So. 3d 264, 267 (Miss. 2013)); In re Adoption of Minor Child, 931 So. 2d 566, 579 (¶ 36) (Miss. 2006) (citing Chantey Music Pub., Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005)); and Burnham v. Burnham, 185 So. 3d 358, 361 (¶ 10) (Miss. 2015) (citing Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985)). Here, neither party challenged or objected to proceeding on Austin’s tuition and school expenses, or to the chancellor’s interpreting the underlying property settlement agreement from the couple’s 2003 divorce. Furthermore, after confronting the tuition and expenses issue, Andrea’s attorney asked several questions about the chancellor’s decision and allocation of the judgment. He even offered to prepare the order from which Andrea appeals. So both parties acquiesced in the manner in which the chancellor decided this matter. Because Andrea neither challenged nor objected to the chancellor’s authority to grant an award to her son at trial or in post-trial motions, this issue is forfeited and barred from our appellate review. [My emphasis]

Justice King dissented, joined by Randolph, on the basis that Austin was a necessary and indispensable party who should have been joined. That argument, though, presents a kind of a chicken-or-egg conundrum. The majority obviously went with the chicken (or is that the egg?).

In the course of a chancery bench trial, every issue presented and heard by the court serves as a basis for appeal, with or without a post-trial motion, assuming you timely object to unfavorable rulings. You do not even need to file a post-trial motion when the judge rules against you on the merits within the bounds of the relief prayed for.

BUT … when the chancellor reaches out beyond the scope of the pleadings and proof at trial and acts as the chancellor did here, you must preserve the issue for appeal by making a timely objection. So, how doe you do that?

You file a timely R59 motion not later than ten days after the date of entry of the judgment. Andrea could have done that, pointing out to the judge that it was error to award the judgment in favor of Austin, since he was not a party, and that the judge’s action was beyond the scope of relief sought by either party. By not giving the chancellor an opportunity to address her objections she waived them and lost her right of appellate review.

Outsmarting One’s Self

November 3, 2016 § 2 Comments

Sometimes it just seems smart to skip spending the money on lawyers and to represent one’s self. Sometimes it doesn’t seem quite so smart

Take the case of Walter Poole. He had been appointed administrator of the estate of his sister, Vera. Michael Walton, another of Vera’s heirs, filed a motion to remove Poole as administrator. At the hearing, Poole said he had no objection to removal or to Walton’s appointment. The chancellor did what any rational human being would have done and removed Poole, replacing him with Walton.

For some reason not easily discernible, Poole appealed. His appeal was pro se, by the way. He assigned three errors: (1) that the chancellor erred in removing him as administrator; (2) that the chancellor failed to make adequate findings of fact; and (3) that the chancellor erred in refusing to hear evidence as to Vera’s wishes for disposition of her property and appointment of Walton.

In Poole v. Walton, decided October 11, 2016, the COA (predictably) affirmed. In an opinion that was mercifully succinct and not unnecessarily erudite, Judge Lee wrapped up the rationale:

I. Removal of Poole as Administrator

¶6. Poole contends that he should not have been removed as administrator of Vera’s
estate. However, Poole stated during the hearing that he had no objection to either his
removal as administrator of Vera’s estate or the appointment of Walton as administrator. This issue is without merit.

II. Findings of Fact

III. Other Evidence

¶7. In his other issues, Poole asserts that the chancellor should have allowed him to
submit evidence of “Vera’s true intent” regarding her property and the appointment of an administrator over her estate. Poole implies that Vera had a will but that it was destroyed or withheld by Walton. But Poole admitted during the hearing that he had no proof to support his allegations. We find no merit to Poole’s remaining issues.

Not much there for the scholars to chew on. But for the rest of us, it’s mercifully brief and to the point. Judge Lee didn’t have a lot to say about it. And neither shall I.

Inadequate Remedy at Law

October 11, 2016 § 1 Comment

After ten years had elapsed, during which multiple building permits expired, and deadlines were extended again and again, and Michael Gaffney still had not completed construction of a house, the City of Richland filed suit in Chancery Court for an injunction requiring him either to complete construction within a specific time, or, failing which, to demolish and remove the structure. The city also sought attorney’s fees.

There were several proceedings, in which Gaffney appeared pro se, that resulted in some progress, and further inspections, resulting in an order that the house be completed by a date certain. When Gaffney failed to do so, the chancellor found him in contempt and authorized the city to demolish the structure. The city was awarded $8,232.82 in attorney’s fees. Gaffney appealed.

Now, before we go any further, I have to say that if I had heard the case I would likely have done pretty much the same as the chancellor did here. Why not? Injunctive relief is appropriate in chancery. I am sure the pleadings said all of the proper things about irreparable injury, public interest, and inadequate remedy at law. I am sure that no one involved, either attorney or layperson, raised any legal issue or authority that might question the authority of the court to act. And act it did.

So, the case was affirmed, right? Well, no. The COA reversed. In Gaffney v. City of Richland, decided October 4, 2016, the court held that the city should have followed MCA 21-19-11(1), which requires the municipality’s governing authorities to conduct a hearing when a complaint is filed by a majority of residents within 400 feet of a property alleged to be unhealthy or unsafe. From that determination, appeal lies to Circuit Court, per MCA 11-51-75. Chancery Court is nowhere in that loop. Judge Lee, writing for the majority, expounded:

¶23. Although the chancery court’s jurisdiction encompasses relief sought through injunction, issuance of an injunction is an extraordinary relief requiring first a showing of “imminent threat of irreparable harm for which there is no adequate remedy at law.” Heidkamper v. Odom, 880 So. 2d 362, 365 (¶11) (Miss. Ct. App. 2004). When a statutory scheme exists concerning review of an agency or board’s decision, an adequate remedy at law exists, precluding the issuance of injunctive relief. A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563, 569 (¶22) (Miss. 2010).

This case highlights a reason why many chancellors, I included, are skeptical when we are called upon for injunctive relief. Too often, especially in the case of TRO’s, they are brought in haste with breathless claims of imminent disaster if immediate relief is not granted. Haste, as they say, makes waste. I’m not saying that is what happened here. But it is clear that the lawyers convinced the chancellor that there was no adequate remedy at law when, in actual fact, there certainly was.

Remember that most chancellors do not have a research army standing at the ready to parse through the legal threads of your pleadings. Judges rely on you and your representations. You can plant fatal error in your own record by sending the judge off on a tangent that a little legal research and diligence on your part would have avoided.

Standing to Pursue a Rule 60 Motion

October 10, 2016 § Leave a comment

We discussed here last week the case of Doe v. Smith, the adoption case in which an adoption judgment was set aside for fraud on the court, and which was affirmed by the MSSC. The fraud was the intentionally false statements in the Consent to the adoption and in the testimony of the natural mother, Katy, that she did not know who was the natural father of the child to be adopted.

One of the issues raised on appeal by Catherine, the adoptive mother, was that Stan, the natural father, had no standing to file a R60 motion assertng the fraud issue in the adoption for the reason that he was not a party to the adoption.

In its decision, rendered September 22, 2016, the court rejected Catherine’s argument. Justice Maxwell for the court:

¶20. Catherine is correct that Stan was not a party to Matthew’s adoption. Honing in on this fact, she argues that Rule 60(b)(1) relief from the adoption decree is unavailable to Stan because he was a nonparty. See In re Adoption of A.S.E.L., 111 So. 3d 1243, 1249-51 (Miss. Ct. App. 2013). However, Catherine is viewing Katy’s misdeeds as “fraud . . . of an adverse party”—the type of fraud discussed in that case. Id. But Katy’s deceptions and omissions were not mere frauds of an adverse party. Rather, the judge found they had caused a “fraud upon the court.” M.R.C.P. 60(b)(6). And Rule 60(b)(6) authorizes courts to hear “independent actions”—such as the one filed by Stan—to set aside a “judgment for fraud upon the court.” M.R.C.P. 60(b)(6).

¶21. Rule 60(b)(6) does not require that an independent action be labeled as such. Hester v. State, 749 So. 2d 1221, 1223-24 (¶ 12) (Miss. Ct. App. 1999) (citing Bankers Mortg. Co. v. United States, 423 F.2d 73, 77, 81 n.7 (5th Cir. 1970)). And, as federal treatment of a similar rule shows, “when the 60(b) relief is sought by an independent action, there is no time limit save laches on when the action may be brought.” Id. (quoting In re Casco Chem. Co., 335 F.2d 645, 652 (5th Cir. 1964)).

¶22. The independent-action principle has been applied by the court of appeals to a
nonparty’s complaint to set aside a judgement.[Fn 17] See In re Estate of Pearson, 25 So. 3d 392, 395 (¶ 14) (Miss. Ct. App. 2009). In Pearson, an unwed, natural father petitioned the chancery court to set aside the final judgment closing his minor daughter’s estate. The father did so because the natural mother fraudulently excluded him as an heir. Id. at 393 (¶ 3). The natural mother, in the petition to determine heirs, swore she was unaware of the natural father’s name and averred the natural father was deceased. Id. at 393 (¶ 2). As in Pearson, Stan, a nonparty, filed an action raising the natural mother’s falsities as a fraud upon the court. And while Stan did file his petition under the same cause number as Matthew’s adoption, he named new parties to the proceedings and issued numerous summons to each named party.

[Fn 17] Cf. Byrd v. Woods, 90 So. 3d 666, 671-72 (¶ 24) (Miss. Ct. App. 2012) (noting that Hester v. State “approved” independent actions under Rule 60(b)(6) in Mississippi).

¶23. But Catherine argues that Stan’s only basis for standing is under Mississippi Code
Section 93-17-5(3). And this would require the chancellor to make findings under
Mississippi Code Section 93-17-6(4) to determine whether Stan was entitled to notice and to be made a party under Section 93-17-5. Catherine is correct that these statutes previously have been used by unwed, putative fathers to enter an appearance and contest an adoption. But again, there is a distinction between “fraud . . . of an adverse party” and “fraud upon the court.” Stan was not trying to establish his right to notice or object to ongoing adoption proceedings. He was arguing to set aside a final adoption obtained through fraud. And when compelling circumstances exist, Rule 60(b)(6) authorizes trial judges to set aside judgments obtained by a fraud upon the court.

¶24. We find that Stan’s petition was an independent action under Rule 60(b)(6). And as an independent action, the chancellor had authority to rule on Stan’s petition based on fraud upon the court.

So there is a right of a non-party to bring an independent action under R60(b)(6) where “compelling circumstances exist.”

I don’t know about you, but I find it hard to wrap my mind around Catherine’s argument. Stan’s omission from the original action was a direct result of fraud that concealed his parenthood and, ergo, his necessity to be joined as a party, from the court. The fraud resulted in a proceeding in which he was not invited to participate, and which resulted in a judgment of which he had not notice. So, under Catherine’s theory, he now must be barred from filing a R60 motion because he did not participate as a party, even though that was due to fraud? That makes no sense to me.

No Fraud, No Foul

October 6, 2016 § Leave a comment

A couple of days ago we discussed a case in which a natural mother falsely and fraudulently claimed not to know who was the father of her child, which led a chancellor to enter an adoption judgment that later had to be set aside for fraud on the court.

Fraud on the court was the issue in a recent COA case, but the result was different than that in the adoption case.

Ronald and Belinda Betts were divorced in 2011. Belinda later sued Ronald for contempt several times. In one of those proceedings, Ronald had omitted a debt on his financial statement, and the chancellor noted that such an omission “can amount to a fraud perpetrated on the court and contempt.

When Belinda filed a third contempt action against Ronald, he borrowed a page from the chancellor’s earlier admonition and claimed in defense that the divorce judgment entered the previous year should be set aside per R60(b)(6) because Belinda made a false representation to the court in her divorce-action financial statement by omitting her interest in some property she inherited jointly with her sister. Belinda countered that she did not know or believe the land to be her property at the time.

The chancellor overruled Ronald’s motion and found him in contempt for non-payment of amounts he was ordered to pay under the divorce judgment. Ronald appealed.

In Betts v. Betts, handed down September 13, 2006, the COA affirmed. Judge Griffis wrote for a unanimous court:

¶11. Ronald argues that Belinda’s failure to list the property on her Rule 8.05 financial statement constituted an intentional filing of a substantially false statement and fraud upon the court. Belinda contends that Ronald’s unclean hands bar him from relief.

¶12. Rule 60 provides in part:

(b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the
following reasons:
. . . .

(6) any other reason justifying relief from the judgment.

“Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted in
exceptional and compelling circumstances, such as for fraud upon the court.” Trim v. Trim, 33 So. 3d 471, 475 (¶7) (Miss. 2010).

¶13. “Relief based on ‘fraud upon the court’ is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Id. at 477 (¶15). “[S]imply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. There must be a finding that the disclosure was intentional.” Finch, 137 So. 3d at 235 (¶23).

¶14. “[A] party’s intentional filing of a substantially false Rule 8.05 financial statement constitutes a fraud on the court.” Trim, 33 So. 3d at 478 (¶17). And “no time limit constrain[s] the chancellor’s ability to modify the divorce judgment to remedy the fraud on the court.” Id.

¶15. The following elements constituting intentional or fraudulent representation must be proven by clear and convincing evidence:

(1) a representation, (2) its falsity, (3) its materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Id. at (¶19) (citing McCord v. Healthcare Recoveries Inc., 960 So. 2d 399, 406 (¶17) (Miss. 2007)).

¶16. The chancellor declined to set aside or modify the divorce decree after finding that Belinda did not intentionally mislead the court and that Ronald came to court with unclean hands after failing to disclose certain property rights on his Rule 8.05 financial statement. “[T]he trial court is best able to determine whether a fraud has been perpetrated upon it. As a result, the chancellor’s determination of the issue is entitled to great weight.” Tirouda v. State, 919 So. 2d 211, 216 (¶12) (Miss. Ct. App. 2005). “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of fact.” Trim, 33 So. 3d at 479 (¶20).

¶17. The testimony from Belinda supports the chancellor’s conclusion that she did not know of her false representation to the court. She simply did not consider the property her own. She had not paid for the property, and she was not using the property for any purpose. The testimony showed that her mother currently or previously lived on the property, and Belinda considered it her parents’ land. Intentional or fraudulent representation requires that a representation be made, which the speaker knows to be false, with the intent that it should be acted on by the hearer. Fitch, 137 So. 3d at 235 (¶23).

¶18. Belinda’s conduct was not shown to be “the most egregious misconduct, . . . ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’” Trim, 33 So. 3d at 477 (¶15). And even though she failed to list the property in her Rule 8.05 financial statement, “simply failing to disclose essential facts to the proceedings to the adverse party or to the court does not rise to the level of fraud.” Finch, 137 So. 3d at 235 (¶23). “[A] party is not entitled to relief [under Rule 60(b)] simply because he is unhappy with a judgment.” McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013).

¶19. Furthermore, Ronald himself failed to list mineral rights in his possession on his Rule 8.05 financial statement, leading the chancellor to find that Ronald came to court with unclean hands. “Mississippi’s chancery courts are courts of equity, and under the clean[-]hands doctrine, anyone that comes before ‘a court of equity . . . must do equity as a condition of recovery.’” Dill v. Dill, 908 So. 2d 198, 202 (¶11) (Miss. Ct. App. 2005). “This doctrine, in effect, prevents a complainant from petitioning the court to modify an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Id. The chancellor noted: “Just as Belinda failed to disclose an asset at the time of their divorce, so did Ronald.”

¶20. This Court finds that the chancellor did not abuse his discretion in denying Ronald relief under Rule 60(b). As such, the substantial evidence supports the chancellor’s discretionary ruling as the fact-finder.

Before you wade off into the shark-infested waters of R60 on a raft of fraud, make sure it is stout enough to support your case.

Not every omission of evidence amounts to a fraud on the court. This case is a good recitation of the law on the point. You should file it away for future reference.

A Tragic Fraud on the Court

October 3, 2016 § 1 Comment

It’s hard to imagine a legal proceeding more tragic and heart-wrenching than the setting aside of an adoption. Most chancellors go to extremes to ensure that there are no flaws in the proceeding that might jeopardize the finality of an adoption judgment.

In the recent MSSC case, Doe v. Smith, decided September 22, 2016, the chancellor entered an adoption judgment based on the natural mother’s statement in the Consent and in her sworn testimony that she was unaware of the natural father of her child, Matthew. Stan, the natural father, however, learned of the adoption and filed a R60(b)(6) motion to set the judgment aside for fraud. At the hearing on that motion, the natural mother, Katy, admitted on the witness stand that she had lied, the chancellor set aside the adoption judgment.The adoptive mother appealed. One of her grounds was that the chancellor erred in setting aside the judgment. Justice Maxwell, writing for a unanimous court, addressed the argument this way:

¶14. A fraud upon the court is an intentional misdeed that “vitiates a judgment” because “the court is misled and deceived” about the facts it relies upon when administering the law. Trim [v. Trim], 33 So. 3d [471,]at 477 (¶ 15) [(Miss. 2010)] (quoting Brown v. Wesson, 74 So. 831, 834 (Miss. 1917)). Rule 60(b)(6) gives judges broad authority to set aside judgments entered, resulting from such fraud. Trim, 33 So. 3d at 475 (¶ 7) (citing M.R.C.P. 60(b)(6) and Tirouda v. State, 919 So. 2d 211, 214 (Miss. Ct. App. 2005)). However, to qualify as “fraud upon the court,” there must be exceptional and compelling circumstances and the deceptive act(s) must be material and extreme. Not just any falsity or misstep, even if intentional, is enough for relief.

¶15. “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.’” [Fn13] Wilson v. Johns-Manville Sales Corp., 873 F. 2d 869, 872 (5th Cir. 1989) (quoting Rozier v. Ford Motor Co., 573 F. 2d 1332, 1338 (5th Cir. 1978)). Mere nondisclosure of pertinent facts to the court “does not add up to ‘fraud upon the court’ for purposes of vacating a judgment under Rule 60(b).” Trim, 33 So. 3d at 477-78 (¶ 16) (quoting Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n.8 (5th Cir. 1980)). Furthermore, the fraud must be proved by clear and convincing evidence. Moore v. Jacobs, 752 So. 2d 1013, 1017 (Miss. 1999) (citing Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)).

[Fn 13] See also In re Guardianship of McClinton, 157 So. 3d 862, 870 (¶ 17) (Miss.
2015) (Rule 60(b)(6) is a “catch all” provision for exceptional and compelling
circumstances) and Roberts v. Lopez, 148 So. 3d 393, 399 (¶ 12) (Miss. Ct. App. 2014) (the substantial misrepresentation of facts on which a judgment is based constitutes a fraud on the court).

¶16. Here, the chancellor found Katy’s deceptive acts and omissions—which she admitted she knowingly made—met these high marks. Katy had filed a voluntary, sworn joinder and consent to Matthew’s adoption.[Fn 14] And in it, she represented she was unaware of Matthew’s biological father’s name, identity, or address. But under oath at the April 21, 2015, hearing, Katy admitted to lying about Matthew’s father’s identity in her consent. She also admitted she lied when testifying at Matthew’s adoption proceeding. She said she did so because she knew Stan would be a poor parent and caregiver.

[Fn 14] Under Mississippi Code Section 93-17-5, Katy was required to either provide her consent to the adoption or appear and contest it. Miss. Code Ann. § 93-17-5(1), (4) (Rev. 2013).

¶17. We have held that the effective administration of justice requires our chancellors have accurate financial information to distribute marital assets during divorce. See Trim, 33 So.3d at 477-78 (¶¶ 16, 17) (finding a party who filed a substantially false, statutorily required Rule 8.05 statement committed a fraud upon the court). So certainly, an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent [Fn 15] to an adoption undermines the effective administration of justice.

[Fn 15] See Miss. Code Ann. § 93-17-5(1), (4) (Rev, 2013).

¶18. The chancellor found that Katy knew who Matthew’s father was after the first
paternity test excluded her husband. And she withheld this information from the court and all parties involved. He held that Katy knowingly had misled the court and all parties through her testimony, affidavit, and nondisclosures regarding Matthew’s paternity.

¶19. And because the heart of Katy’s actions was designed to deceive the court, by lying about and omitting material facts to trick the court into granting a supposed uncontested adoption, the chancellor properly found that a fraud was committed upon his court. [Fn 16]

[Fn 16] The requirement that fraud, misrepresentation, or other misconduct be proved by clear and convincing evidence is moot here, since Katy admitted her fraud. See Moore v. Jacobs, 752 So.2d 1013, 1017 (¶ 18) (Miss. 1999).

There was nothing in the record to show that either the adoptive parents or their attorney knew of Katy’s false statements.

A few observations:

Adoption proceedings underwent a change effective April 16, 2016. You need to familiarize yourself with those changes if you are going to handle any adoptions. This decision is under the old adoption procedure.
The main thing to take away here is how easy it is for parties who are unencumbered by ethical considerations to lie when it suits them. As a lawyer you should be especially diligent and inquisitive when a natural mother claims not to know who was the father.
This case underscores how ruinous a fraud on the court can be. Imagine the joy of the adoptive parents when they walked out of the courthouse with their new baby; and imagine their devastation when the child was taken away from them some nine moths later. That’s why lawyers should take extra care, as much as they can, to make sure that something like this does not happen.

A similar thing happened in my court. The mother signed a Consent stating that she did not know who was the natural father, and the adoption agency gave the child to the adoptive parents pending the adoption. Before the adoption could be presented, however, the natural father intervened and objected to the adoption. The adoptive parents conceded the inevitable and surrendered the child to the father.

Another issue raised on appeal was whether the natural father had standing to file a R60 motion in the case, since he was not a party. That’s a subject for another post.

Pending R 59 Motion = No Appeal, Part Deux

September 27, 2016 § Leave a comment

Only a few weeks ago, we talked about the concept that if there is a pending R59 motion the trial court continues to have jurisdiction, and, until it is disposed of, any attempt to appeal will be dismissed for lack of jurisdiction in the trial court. That post is here.

Since then, in the case of Hoffman v. Hoffman, handed down September 6, 2016, the COA again dismissed an appeal in which there was a pending R59 motion. That case involved a divorce action between Brooke and Michael Hoffman.

We don’t need to address the law on the R59 point yet again. Instead, what I’d like to highlight is the procedural tangle that birthed this confusion. Here’s how Judge James described it in her opinion for a unanimous court:

¶2. On January 23, 2013, Brooke filed a complaint for divorce against Michael. On March 7, 2013, the trial court entered an agreed temporary order. On May 29, 2013, Michael filed a motion for contempt of the agreed temporary order claiming that he had been denied the opportunity to visit with his minor children.

¶3. On September 23, 2014, the trial court entered an order finding Brooke in contempt of the agreed temporary order. Also, on September 23, 2014, the trial court entered a separate order denying Brooke’s complaint for a divorce. The trial court instructed the parties to schedule a separate hearing for the purpose of taking proof relative to attorney’s fees. On October 2, 2014, Brooke filed a motion for reconsideration of the trial court’s order finding her in contempt.

¶4. On October 20, 2014, the trial court entered a final judgment denying the divorce. On October 21, 2014, Brooke filed a motion for reconsideration of the judgment denying the divorce. On October 22, 2014, Brooke’s motion for reconsideration of the trial court’s contempt order was denied.

¶5. Despite two notices of hearing filed by Brooke for her motion for reconsideration of the judgment denying the divorce, her motion has not been resolved and remains pending in the trial court, based on the record before this Court. On November 12, 2014, Michael filed a motion for attorney’s fees. Michael sought attorney’s fees for the prosecution of his motion for contempt as well as for the defense of the divorce action. A statement of legal fees was attached to the motion. On January 22-23, 2015, the trial court held a hearing on the issue of attorney’s fees. On January 27, 2015, the trial court entered a judgment awarding Michael attorney’s fees in the amount of $9,437.50 for prosecuting his contempt action. In the same judgment, the trial court also awarded Michael $22,134.59 in attorney’s fees he incurred in successfully defending Brooke’s divorce action.

¶6. On February 16, 2015, Brooke filed a motion entitled “MOTION to Amend[/]Correct Clarify Contempt Visitation Order, Temporary Order and Set Specific Visitation Schedule” (the “Motion to Amend”). Based on the trial-court docket, this motion has not been resolved and is pending in the trial court. On February 25, 2015, Brooke filed a notice of appeal of the trial court’s judgment awarding attorney’s fees.

You can tally up for yourself the layers of judgments, orders, and motions in this case. They illustrate for me how things can spiral into a convolution of complication almost before one is aware that things ate getting out of control.

Some judges will step in and try to untie the Gordian knot before it gets untie-able. But it’s really not the judge’s duty to do that. It’s your job as attorney to make a record that is comprehensible. If you don’t, your client might just end up paying the freight for a premature appeal. And remember: when you cost your clients money, they hate you; when you save them money, they love you.

Settlement Announcements: What Could go Wrong?

September 14, 2016 § 4 Comments

The COA’s memorable decision in Pearson v. Browning, 106 So.3d 845 (Miss. App. 2012), is notable for the fact that it reversed the trial court because the counterclaiming party had not been served with a R81 summons for trial. I think most chancellors up to then — and even now — believe that once you invoke the jurisdiction of the court by filing a pleading (particularly a pleading on offense), you have submitted yourself to the jurisdiction of the court, and no further process is necessary, only notice per R5.

The reversal did not resolve the dispute between the parties, though. They went right back at it, and found themselves back in trial on contempt issues before the same chancellor. On November 5, 2013, the chancellor again ruled against Dennis Pearson, who appealed yet again. This time he contended that the original judgment rendered October 13, 2005, although styled as an “agreed” judgment, included terms not embraced in the settlement announcement and was not signed either by him or his attorney, and so was ineffective.

The COA affirmed in Pearson v. Browning, handed down August 16, 2016. Judge Irving wrote for the court:

¶8. Dennis argues that the October 13, 2005 “agreed” modification order was invalid
because he did not agree to its terms and that neither he nor his attorney signed the order, as required by Uniform Rule of Chancery Court 5.03. Rule 5.03 states: “Every consent Judgment must be approved and signed by counsel for all parties to the suit who may be represented by counsel and interested in or affected thereby before being presented to the Chancellor for his signature. The Court may also require the parties to sign.”

¶9. Dennis argues that “[i]t is clear from looking at the transcript of August 16, 2005[,]
. . . that the agreement read into the record differed from the agreement as later written in the October 13, 2005 ‘Agreed Order.’” However, Dennis makes no specific argument regarding what is different. The chancellor’s findings of fact and conclusions of law on this issue state that the October 13, 2005 agreed order “is a mirror image of the parties’ agreement as read into the record.” Dennis only complains about the portion of the order granting Patricia all equity in the marital home. However, Dennis clearly agreed to this, as well as the other provisions of the order, during the August 16, 2005 hearing.

¶10. During the August 16, 2005 hearing, Dennis’s attorney stated into the record, “We
have reached an agreement regarding all issues contained in the pleadings.” Counsel then proceeded to detail modifications to the visitation schedule; the requirement that within sixty days, Patricia would refinance the marital home, Dennis would quitclaim his interest in the marital home to her, and she would be responsible for all mortgage payments on the home; the parties’ agreement to waive any contempt issues regarding past-due bills or visitation; and each parent’s right to claim one child as a dependent for tax purposes. The parties were then placed under oath and questioned by the chancellor about the modifications. Dennis’s testimony was as follows:

Q. [Dennis,] did you understand what the attorneys read into the record as
your agreement?
A. Yes, I do.
Q. Was that your agreement?
A. That’s correct.
Q. Do you understand that this agreement will be put into writing and will
become the court’s order?
A. Yes, I do.
Q. And you understand that failure to follow the agreement could result in
a contempt charge against you?
A. I do.

¶11. In ruling on Dennis’s motion to set aside the agreed order as invalid, the chancellor found Dennis’s signature on the agreed order unnecessary as “surplusage,” since the agreement had been read into the record and agreed to under oath by both parties. Also, in finding no merit to Dennis’s argument that the order was inconsistent with the settlement agreement read into the record, the chancellor stated in his findings of fact and conclusions of law:

The next day after the hearing (October 14, 2005), Dennis signed a Quitclaim Deed at a bank. This act by Dennis is consistent with the agreement of the parties in the transcript. This Quitclaim Deed transfers Dennis and Patricia’s interest in the marital home and property to Patricia and her present husband, Steven. Dennis now claims that the property was conveyed to Patricia in exchange for Patricia waiving her interest in the Thrift Savings Plan and retirement. This is inconsistent with the August 16, 2005 transcript, the October 13, 2005 Agreed Judgment of Modification, and Dennis’s act of conveyance in signing the Quitclaim Deed one (1) day after the Judgment.

¶12. This Court addressed a similar issue in McDonald v. McDonald, 850 So. 2d 1182
(Miss. Ct. App. 2002), aff’d on cert., 876 So. 2d 296 (Miss. 2004). In McDonald, the wife
filed for modification of the visitation schedule that was established at the time of her and her husband’s divorce. Id. at 1185 (¶3). A hearing was held, and both parties agreed to the new schedule. Id. at (¶4). However, the husband later refused to sign an agreed order. Id. at (¶5). The wife filed a “Motion for Entry of Agreed Order.” Id. The chancellor signed and entered the order without the husband’s or his counsel’s signature. Id. at 1186 (¶5). The husband appealed, arguing the “agreed” order was invalid, as he did not sign it and did not agree with its terms. Id. at 1188 (¶18). We agreed with the husband “that there must be consent for a consent decree.” Id. at (¶21). However, we also noted that “[a] consent judgment is in the nature of a contract,” and is binding as such. Id. at 1189 (¶25). Despite the husband later changing his mind, we found that at the relevant time for consent—when the settlement terms were announced in open court—the husband did agree to the settlement, and his agreement at that time was sufficient to be contractually binding. Id.

¶13. Specifically, we held that the circumstances of announcing in open court the settlement of the dispute that is the purpose for that hearing, with a recital of the terms of the settlement into the record, followed by an agreement to end the hearing, reflects an intention to be bound at that time. Absent any showing that the final written order did not reflect the agreement announced in court, or any identification of a matter cognizable under [Mississippi] Rule [of Civil Procedure] 60 that could lead to setting aside a consent decree after [its] being entered—and neither showing exists here—we find that the parties were bound by their agreement even before it was reduced to a formal written order. McDonald, 850 So. 2d at 1189 (¶¶25-26).

¶14. While neither Dennis nor his attorney signed the agreed order, the hearing transcript reflects that Dennis understood the agreement that was read into the record and that he understood that the agreement would be put into writing and become the court’s order. His attorney made no objection at the hearing to the entry of the order. The supreme court has found that proceedings recorded by a court reporter are sufficient to prove agreement by the parties. See Samples v. Davis, 904 So. 2d 1061, 1066 (¶15) (Miss. 2004) (“If parties reach an agreement, the agreement containing the terms should be signed by the parties’ attorney(s) or in appropriate cases, the parties, or recorded by the court reporter.” (Emphasis added)). Dennis has not provided any proof that the agreed order did not reflect the terms of the settlement agreement read into the record. Therefore, the settlement agreement announced in court and later reduced to writing was sufficient evidence of the parties’ consent to be bound. This issue is without merit.

So the case would appear to turn on Dennis’s failure to spell out in detail exactly how the judgment varied from the announcement. I think it’s laudable that the chancellor went to the trouble of addressing Dennis’s attack on the then-eight-year-old-judgment, given the prior appellate history of this case. I am sure the chancellor was trying to ensure no more appellate ricochets.

Still, I wonder why no one pointed out that Dennis should have raised this issue of the validity of the 2005 judgment by filing a notice of appeal within 30 days of that judgment. ‘way back in 2005 — now more than ten years ago and counting. Is this really a jurisdictional argument he is making, or is this a ministerial omission that could have been cured with a R59 motion?

This case highlights why I don’t like settlement announcements. It seems that one party is always looking for a way to wriggle out of them, and they often find lawyers willing to take their money to aid them in the attempt. Words spoken are never as precise as words reduced to writing. Better to reduce the agreement to writing so all can see and edit, and then have everyone sign. That’s my position, and I’m sticking to it.

Where Am I?