Jurisdiction | The Better Chancery Practice Blog

RECUSAL IS FOREVER

September 13, 2011 § Leave a comment

Here’s an important principle to bear in mind:

Once a chancellor has recused himself in a case, he is without further authority to act in that case, even in the most trivial procedural matters.

The case of Covington v. Montgomery, 43 So.3d 1193 (Miss. App. 2010) illustrates how and why that principle can be so important. Here’s what happened:

Covington, an attorney in Harrison County, filed a petition in chancery court seeking modification of custody from his ex-wife to himself. All four chancellors, including Judge Carter Bise, recused themselves because one of the parties was a practicing attorney in the district. Judge Frank McKenzie of Jones County was appointed to serve as special chancellor. He heard the case and denied the modification. Covington decided to appeal.

On the last day of the appeal deadline, Covington filed a motion to extend the appeal time, and got the signature of Judge Bise on the order. He subsequently filed his notice of appeal within the enlarged time.

The COA, on its own motion, raised the issue of its jurisdiction and held that Judge Bise’s order “had no effect” because Judge Bise had recused himself and had no further authority to act in the case. The opinion, written by Judge Roberts, pointed out that the duration of the special chancellor’s appointment is determined by the supreme court’s order appointing him, and there was nothing in it to indicate that his authority ended before the trial court’s jurisdiction terminated with the filing of the notice of appeal.

I have been approached by parties in cases where I have recused myself seeking procedural orders. Often the parties are there by agreement. In one case, I was asked to sign off on an agreed final judgment because the special chancellor was on vacation. I told them to wait. Once I got out I had no more authority. It’s a point to bear in mind.

NO UCCJEA ALLEGATIONS = NO JURISDICTION? NO.

August 18, 2011 § 3 Comments

Lawyers are all over the ballpark when it comes to the UCCJEA allegations required by MCA § 93-27-209. Some still use the old and now-repealed UCCJA provisions that have apparently fossilized in their computers. Some omit them entirely. Some use a hybrid. And some even plead the proper provisions.

What happens when you fail to plead the UCCJEA provisions either completely or inadequately? Does the court have jurisdiction?

The MSSC answered the question in White v. White, 26 So.3d 342, 346 (Miss. 2010), where the court said:

First, the chancery court’s jurisdiction is set by the Mississippi Constitution, and cannot be diminished by statute. See Miss. Const. art. VI, § 159. Second, the plain language of Section 93-27-209(2) provides that, in the event the required disclosures are not filed, the court may stay the proceeding.

This issue is not jurisdictional, was within the sound discretion of the chancellor, and this argument is without merit.

The court rejected the appellant’s reliance on Marr v. Adair, 841 So.2d 1195, 1202 (Miss. App. 2003), because that case was decided under the repealed UCCJA.

Remember that under White, although the recitation of the jurisdictional language is not mandatory for the court to exercise jurisdiction, you still have to prove that the court has jurisdiction under the UCCJEA. When the MSSC said that “This issue is not jurisdictional,” it was referring to the matter at hand, which was the sufficiency of the pleadings, and not to the substance of jurisdiction in the case. It’s an important distinction. See, Miller v. Mills, decided by the COA May 3, 2011; you can read a post about the case here.

I have had lawyers move to dismiss at the outset of trial for incomplete or missing UCCJEA affidavit. I always overrule that motion and offer a continuance for the purpose of filing one, but I’ve never had anyone take me up on it.

PROCESS FAI*L

August 15, 2011 § Leave a comment

What difference does it make whether the other party has the right form of process if he had actual notice?

Consider the case of Clark v. Clark, 43 So.3d 496 (Miss. App. 2010). The facts are pretty straightforward:

Aileen filed for divorce from her husband Willie. She filed and had issued a Rule 81 summons for a temporary hearing and another Rule 81 summons on her complaint for divorce. Willie did not appear for the temporary hearing, and the chancellor entered a temporary order favorable to Aileen. On the date set in the summons on the complaint, Willie was again called and did not appear. The chancellor entered a judgment of divorce on July 25, 2008, awarding Aileen a divorce, custody, child support, alimony, a vehicle and a name change.

On September 23, 2008, Willie filed a motion under MRCP 60(b) to set aside the judgment, which the chancellor refused. Willie appealed.

On appeal, Willie’s sole assignment of error was that since he was not served with a Rule 4 summons on the divorce, the court lacked jurisdiction.

The COA reversed, and here are the important points:

MRCP 4 “provides for the means of service of the original complaint and the form of the accompanying summons.” Sanghi v. Sanghi, 759 So.2d 1250, 1253(¶ 11) (Miss. App. 2000); see also Carlisle v. Carlisle, 11 So.3d 142, 144(¶ 9) (Miss. App. 2009). “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So.2d 874, 878(¶ 16) (Miss. App. 2002).
Because Rule 81(d) embodies “special rules of procedure” that only apply to the matters listed in Rules 81(d)(1)-(2), and divorce is not one of these enumerated matters, service of the complaint for divorce fall outside the scope of Rule 81. See M.R.C.P. 81(d). Thus, the general rules govern, see Sanghi, 759 So.2d at 1256(¶ 27), and Rule 4 contains the proper procedure for serving the complaint.
In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. See, e.g., Powell v. Powell, 644 So.2d 269, 274 (Miss. 1994); Saddler v. Saddler, 556 So.2d 344, 346 (Miss. 1990); Serton v. Serton, 819 So.2d 15, 21(¶ 24) (Miss. App. 2002).
Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So.2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759.
Rule 4 lists the requirements for a valid summons issued under Rule 4, and provides in pertinent part: “The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint…. Summons served by process server shall substantially conform to Form 1A.” M.R.C.P. 4(b) (emphasis added). The summons in Form 1A informs the defendant that he or she is “required to mail or hand deliver a copy of a written response to the Complaint” to the plaintiff’s attorney within thirty days or a default judgment will be entered against the defendant. M.R.C.P.App. A. Form 1A. The form further provides that the defendant “must also file the original of [his/her] response with the [appropriate trial court clerk] within a reasonable time[.]” Id. As we have noted before, use of the sample forms is not required, but their use is good practice because it “removes any question of sufficiency [of process] under the Rules.” Sanghi, 759 So.2d at 1256(¶ 28) (citing M.R.C.P. 84).

In his opinion overruling Willie’s Rule 60(b) motion, the chancellor acknowledged that Rule 4 is the proper form of summons in a divorce case, but found that the Rule 81 summons used by Aileen for the complaint substantially conformed to Form 1A. The summons did inform Willie that a judgment would be entered against him if he failed to appear and defend, as is required by Rule 4(b). However, the summons at issue contained substantial deviations from Rule 4. First, the Rule 81 summons stated: “You are not required to file an answer or other pleading but you may do so if you desire.” Second, the Rule 81 summons did not specify any deadline-specifically, that Willie was required to answer with a response to his wife’s attorney within thirty days. Third, the Rule 81 summons did not inform Willie that he was required to also file his answer with the chancery clerk within a reasonable time.

The COA, citing Sanghi, disagreed, finding substantial differences between Rule 4 and 81 summons, and held that failure to use the proper form of Rule 4 summons deprived the trial court of jurisdiction in the case, requiring reversal.

The COA also considered whether the resulting reversal of the trial judge’s denial of Rule 60(b) relief required setting aside the divorce, and found that it did. The court said: although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, … [i]f the judgment is void, the trial court has no discretion. The court must set the void judgment aside.” Soriano v. Gillespie, 857 So.2d 64, 69-70(¶ 22) (Miss. App. 2003). A judgment is deemed void if the court rendering it lacked jurisdiction. Morrison v. DHS, 863 So.2d 948, 952(¶ 13) (Miss. 2004). A judgment is void “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.” Id. (citation omitted).

The court also cited Kolikas at 879 for the proposition that the defendant is under no duty to notice what is filed in court against him unless he is properly served according to the rules, and the rules are to be strictly construed and applied as to process. It does not matter that the defendant knew that there was a lawsuit pending against him if he was not effectively served with process and notice.

Oddly — at least I find it odd — the court left standing the judge’s temporary judgment on the basis that Aileen had properly gotten process under Rule 81, and that the trial court did have personal jurisdiction over Willie. I say this is an oddity because in this district we have followed the principle that temporary relief is proper only in the context of a fault-based divorce action. I have never heard of a temporary action proceeding on its own, unattached, so to speak, to an underlying divorce action in which the trial court has personal jurisdiction over the defendant. But that is what resulted here. The COA opinion stated:

Finally, Willie claims that Aileen’s motion for temporary support was “nothing more than a derivative action” of the divorce complaint, and, therefore, the court’s lack of jurisdiction over the divorce complaint extends to the motion for temporary relief.

Although Mississippi appellate courts are generally without jurisdiction to hear direct appeals from temporary orders, Michael v. Michael, 650 So.2d 469, 471 (Miss. 1995) (citing Miss.Code Ann. § 11-51-3 (Supp.1993)), the denial of a Rule 60(b) motion is a final judgment that is reviewable. Sanghi, 759 So.2d at 1255(¶ 22).

As Rule 81 makes clear, an action for temporary relief in divorce and an action for divorce are two separate matters. Each requires the issuance of a different form of summons-the former requiring a Rule 81 summons and the latter requiring a Rule 4 summons. We simply do not see how improper service in the divorce action affects the chancery court’s jurisdiction to hear temporary matters. We, therefore, reject the notion that failure to achieve proper service in the divorce action renders the action for temporary relief void. Furthermore, we note that a separate Rule 81 summons was properly issued in Aileen’s action for temporary support, thus giving the chancellor jurisdiction to award temporary relief. This issue is without merit.

Another interesting wrinkle in this case is Judge Griffis’s specially concurring opinion where he says that ” … Rule 81 is a treacherous and often misunderstood rule.” He points out that parties on appeal have ” … fallen prey to the hidden tentacles …” of the rule and urges the Supreme Court to revise it.

I have heard other chancellors at judges’ meetings complain about Rule 81, but we really have not had any problems in this district understanding and following it (knock on wood) to this point. I would not be against eliminating Rule 81 if we could modify Rule 4 to create a short-notice procedure in certain actions unique to chancery such as temporary matters, contempts and certain probate proceedings where notice is required.

The moral of the Clark story is to comply strictly with the rules governing process or be prepared to clean up the mess that will follow.

WHAT DOES IT DO TO YOUR APPEAL WHEN THE TRIAL JUDGE DOES A DOUBLE-TAKE?

August 11, 2011 § 4 Comments

Here’s a little nightmare scenario for you …

Chancellor renders a judgment of divorce. Among other provisions, the judge ordered that the homestead and certain personalty be sold by the Chancery Clerk, the administrative costs be paid, and then the remaining proceeds be divided between the parties. Your client is unhappy enough to pay you to file an appeal from the judge’s adjudication of equitable distribution. It takes him a couple of weeks to scrape together your fee, but the appeal clock still has plenty of ticks. Client comes in at last and pays the freight. You start work on the notice of appeal, and while you’re at it …

Twenty days after the judgment is entered, here comes a sua sponte order from the court clarifying the instructions to the clerk as to the specific items of personalty that were to be sold, and how the homestead proceeds were to be divided. You have other pressing matters on your plate, so you are relieved that the judge reset the appeal clock for you. Finally, 29 days after the clarifying order, your file your notice of appeal.

Is there a problem?

The above facts happened in Penton v. Penton, decided by the COA on April 13, 2010. Judge Barnes’ opinion points out that the appellate rules and our case law are silent as to the effect of a sua sponte order of the trial court such as that in this case. This second order was not a reconsideration with a substantive change of the original judgment. Reconsideration was limited to within ten days of the original judgment under MRCP 59. Nor did it involve correction of a clerical error under MRCP 60. The second order did not substantively change the award in the original judgment; it merely made the instructions clearer for the clerk.

Looking to federal case law, Judge Barnes concluded that ” … only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken … begin to run anew.” She found that the provisions of the second order were not substantive, so it did not have the effect of extending the appeal time from the original judgment.

The opinion noted that entry of the second order still left time for appeal from the original judgment, and that counsel could have filed a motion with the trial court to extend the time for appeal, if that were needed to evaluate the sua sponte order, but no such motion was filed.

The result was that the appeal was dismissed as untimely filed.

As a matter of practice, this case illustrates that it’s better under the current state of the appellate rules to file a premature notice of appeal than to file too late. Once the deadline passes without a motion to extend having been filed, the appeal is dead.

I’ve held off commenting on this case because it’s an unpublished opinion and obviously addresses a matter of first impression of Mississippi. I have surmised that publication is being held pending evaluation by the Supreme Court, since that court has jurisdiction to adjudicate first impression cases.

PLEADING THAT WHICH MUST BE PLED

July 26, 2011 § 2 Comments

If you will read the statutes that apply in your case, you will find exactly the language you need to plead a proper claim and lay out jurisdiction and venue. It’s right there in the code. The closer you adhere to the statutory language, the more likely it is that your complaint will withstand an MRCP 12(b)(6) motion.

For example, in a divorce case, you must plead all of the following: either one or more grounds set out in MCA §93-5-1, and/or irreconcilable differences as in MCA § 93-5-2; and proper venue as in MCA § 93-5-11; and that one of the parties meets the residence requirement of MCA § 93-5-5. All of the language you need to do that is right there in the statutes for your penalty-free plagiarization.

As a side note, many older chancellors through the years required the complaint to quote the language of the residency statute for divorce that, ” … [plaintiff] has been an actual bona fide resident within this state for six (6) months next preceding the commencement of this suit.” If you varied by a single word, you had pled yourself out of court. There may still be chancellors adhering to that practice. Whether your chancellor does or not, you can’t go wrong tracking the language of the statute.

Some lawyers copy other lawyers’ pleadings. That’s fine as long as the copied pleadings are adequate. Several years ago a few new lawyers used pleadings filed by a weathered, older lawyer as their template. You could tell because they slavishly replicated the older lawyer’s misstatement that “Plaintiff is entitled to a divorce from the defendant on the ground of habitual cruel and inhuman treatment as codiciled in Section 93-5-1, MCA.” If you’re going to copy, at least put some thought into what you’re doing.

The MRCP offer another source of pleading material. For instance, if you will read Rule 57, you will find every word you need to plead to obtain a declaratory judgment. Same with Rule 56 summary judgment. Same with Rule 65 for temporary restraining orders, temporary injunctions, and preliminary and permanent injunctions.

In modification of custody cases, you will be out of court on your ear unless you plead specifically in your petition that (1) there has been a material change in circumstances that (2) is having or has had an adverse effect on the minor child(ren), and (3) that it is in the best interest of the child(ren) to change custody to your client. McMurry v. Sadler, 846 So.2d 240, 243-4 (Miss. App. 2002). Note that in McMurry, the petitioner had pled only a material change justifying modification. The respondent moved to dismiss for failure to state a claim at the outset of trial, and the judge even prompted counsel that the word “adverse” was absent. The judge dismissed the pleading with leave to amend, and counsel for petitioner moved ore tenus to amend to add the language that an adverse effect would occur if modification were not granted. At that point, the chancellor found the pleadings insufficient as a matter of law and dismissed with prejudice. The COA affirmed.

As McMurry illustrates, faulty pleading will cause nothing but trouble. And it can be fatal. Look what happened there: the judge granted leave to amend as is prescribed in MRCP 12(b), but when counsel failed to fix the problem by amendment, the judge took the case off of the respirator and it died.

What if counsel for the respondent had said nothing about the adequacy of the pleadings before trial, but then had objected to every question about any adverse effect on the basis that it had not been pled? I saw that on more than one occasion when I was in practice, and the judge always sustained the objections, effectively gutting the petitioner’s case, or, more accurately, letting it gut itself. If you’re in that situation and you’re not too discombulated to think clearly, you might try making a Rule 15 motion for leave to amend. Maybe the judge will let you off the hook. At least you will have it in the record.

PERILS OF PROCESS BY PUBLICATION, EPISODE THREE

June 27, 2011 § 9 Comments

You can read here and here some of the snares in MRCP 4 that can snap painfully on the unwary. Unwary = those who don’t bother to read the rules.

MRCP 4 publication claimed its latest victim on June 14, 2011, in the COA case of Turner v. Deutsche Bank. In that case, the bank filed a judicial foreclosure and published process to Angela Turner. The original complaint recited Angela’s address, and the bank duly sent its process server there, only to discover that she had moved, whereabouts unknown. At that point, without amending its pleadings or filing an affidavit of diligent inquiry, Deutsche published process and a chancellor signed a default judgment finding, among other things, that the court had jurisdiction.

Angela awoke to what had happened and filed an MRCP 60 motion to set aside the judgment, and the original chancellor recused herself. Her successor overruled Angela’s motion in part because the court had already ruled that it had jurisdiction.

The court of appeals reversed and remanded. Here are some pertinent excerpts from the decision:

“Deutsche Bank attempted to serve Turner by publication under Rule 4(c)(4), which provides for situations where the defendant cannot be found within the state. Publication of the summons must be made once a week for three consecutive weeks in the public newspaper of the county if one exists, as in our case. M.R.C.P. 4(c)(4)(B). But service by this method is only permitted “[i]f the defendant . . . be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry.” M.R.C.P. 4(c)(4)(A).”
“¶10. The affidavit or sworn complaint must also state the defendant’s post-office address, if known, or swear that it could not be determined after a diligent inquiry. Id. If the postoffice address is listed, the sworn petition or affidavit must further provide the defendant’s street address or that it could not be determined after a diligent inquiry. M.R.C.P. 4(c)(4)(B). And if the plaintiff provides a post-office address, the clerk must mail the defendant (by firstclass mail, postage pre-paid) a copy of the summons and complaint to his post-office address, and note having done so on the general docket. M.R.C.P. 4(c)(4)(C). “
“¶12. The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (¶16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (¶33). [Emphasis added]
“¶13. In Kolikas, we found a chancellor erred in failing to set aside a divorce decree, where the plaintiff attempted service by publication without strictly complying with the requirements of Rule 4(c)(4). Kolikas, 821 So. 2d at 879 (¶32). We observed that a defendant is “under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law.” Id. at 878 (¶17).” [Emphasis added]
In the petition or affidavit, the plaintiff must certify to the court, among other things, that the defendant is a nonresident or cannot be found in Mississippi.
This conclusion is supported by the supreme court’s decision in Caldwell v. Caldwell, 533 So. 2d at 415. There, the supreme court noted that Rule 4(c)(4)(A) was substantially the same as the statute in place before the adoption of the Mississippi Rules of Civil Procedure. Id. The Caldwell court found instructive and quoted favorably a pre-rules treatise’s comment that “[a]n affidavit to support process by publication must strictly comply with the statute and if it omit[s] averment of diligent inquiry it is insufficient.” Id. at 416 (quoting Griffith, Mississippi Chancery Practice , Bobbs-Merrill Company, Inc. 225-27 (1925)). And “where notice by publication is resorted to . . . as a basis for the jurisdiction of the court, in lieu of personal summons[,] all the requirements of the statute as to such notice must be strictly complied with[.]” Id. at 415 (emphasis added). Rule 4(c)(4)(A) is equally clear that the plaintiff must attest that he has performed a diligent inquiry before performing service by publication. It is no less true today that a sworn averment of diligent inquiry must be made to effectuate proper service by publication. “[Emphasis added]
“Rule 60(b) provides that the court may relieve a party from a final judgment if one of the stated conditions is met. One such condition exists where “the judgment is void.” M.R.C.P. 60(b)(4). Our supreme court has held that “[a] court must have . . . proper service of process . . . in order to enter a default judgment against a party. Otherwise, the default judgment is void.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7) (Miss. 2001) (internal citation omitted). Although “[t]he grant or denial of a 60(b) motion is generally within the discretion of the trial court, . . . [i]f the judgment is void, the trial court has no discretion.”

So here’s what you need to take away from this case:

First, if you’re going to obtain process by publication, you are going to have to comply with every technical requirement of MRCP 4(c)(4). The rule is to be strictly construed.

Second, if you have not been able to discover the whereabouts of the other party for service of process, you must file your affidavit of diligent inquiry before you publish. Filing it later will not work.

Third, if you do not comply strictly with the rule, your judgment will be void and subject to being set aside. In other words, you client will have paid you for accomplishing nothing, and maybe even for putting him in a worse position. That usually makes a client peeved enough to sue somebody.

This is yet another in a long list of decisions that would have had an entirely different outcome if counsel had simply taken a few minutes to read the rule and do what it says.

A JURISDICTIONAL BOOMERANG

May 5, 2011 § 1 Comment

We sometimes are not as attentive to the requirements of the UCCJEA as we should be. Take the following case, for example:

Delisa Miller and Ryan Mills began living together in Madison Parish, Louisiana, in 2005. They had two children, a son born in 2007, and a daughter born in 2008. Ryan went to prison in December 2008, at which time Delisa and the children moved to Vicksburg, Mississippi, according to Ryan’s pleadings.

On July 14, 2009, after he was released, Ryan filed pleadings in Louisiana to establish parentage, for custody, and for visitation. His pleading recited that, although Delisa was residing in Mississippi, her domicile remained in Louisiana. On July 23, 2009, Delisa filed a petition for custody in the County Court of Warren County, Mississippi. Her case was referred to Warren County Youth Court, which dismissed it on the basis that Louisiana already was exercising jurisdiction.

On August 3, 2009, the Louisiana court held a hearing in Delisa’s absence, finding that it had jurisdiction under Louisiana’s long-arm statute, and granted Ryan visitation.

Ryan filed pleadings in the Chancery Court of Warren County seeking to register the Louisiana judgment, which Delisa opposed, and the chancellor ruled on October 23, 2009, that the judgment was lawful and binding, and that it should be registered and enforced. Delisa appealed.

In Miller v. Mills, decided May 3, 2011, the COA noted that the Mississippi courts are required by MCA § 93-27-203(l) to enforce another state’s child custody determination if the other state “exercised jurisdiction in substantial conformity with [the UCCJEA].” The COA held that the record did not support a finding that Louisiana was the children’s home state within the meaning of the UCCJEA at the time that Ryan commenced his Louisiana action, and that, as a result, Louisiana did not exercise jurisdiction in substantial conformity with the UCCJEA. The court held that registration of the Louisiana order in Mississipi was void. The trial court’s ruling was reversed and rendered.

Ryan had argued that, since the Louisiana court had obtained jurisdiction over Delisa through that state’s long-arm statute, he had the right to proceed. Judge Maxwell’s opinion brushed aside that argument and pointed out that UCCJEA jurisdiction is subject matter jurisdiction that may not be waived or conferred by consent.

This case stands for the proposition that the UCCJEA’s provisions are absolutely jurisdictional, and unless a jurisdictional basis exists pursuant to its provisions, jurisdiction may not be acquired by some other means.

I have seen many cases where the lawyers take a somewhat relaxed approach to the UCCJEA requirements. You do so at your own peril. The case you thought you had dealt with so deftly could come boomeranging back in quite unwelcome fashion.

MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers. Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature. Hopes dashed, disappointments piqued, and disgruntled clients.

Adoptions are technical. Not the sort of thing you slap together and slide through with little thought.

Here are some tips to make your adoptions succesful:

Plead proper residence jurisdiction. MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
Plead venue. § 93-17-3 sets out several scenarios for venue. Select the one that fits your case and track the language of the statute.
There is a UCCJEA-like requirement in § 93-17-3(2) and (3). Be sure to plead what it requires about proceedings in other states.
Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
§ 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.” I interpret this to include attorney’s fees.
The petition must be sworn, per § 93-17-3(4).
§ 93-17-5 sets out the requirements as to who must be joined, and how. Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
Since MCA § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14.

In this district we require a pre-adoption conference between the judge and the attorney. The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption. If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done. Do not invite your clients to be there on the off-chance that the judge might approve the paperwork. That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.

Several other posts on adoption tips are here, here and here.

PAY ATTENTION TO JURISDICTION AND VENUE FOR DIVORCE

February 15, 2011 § Leave a comment

Before a Mississippi Chancery Court can consider whether to grant a divorce, it must make four fundamental findings:

That the parties were married to each other (subject matter jurisdiction);
That the parties are properly before the court by process and notice (personal jurisdiction);
That the action is filed in the appropriate county (venue, also called “venue jurisdiction”); and
That at least one of the parties meets the statutory residency requirement, and that residence in Mississippi was not obtained in order to get a divorce.

These are commonly referred to as the “jurisdictional facts,” and you can not even get to address whether there are grounds, or equitable distribution, or any other divorce issues unless the jurisdictional facts are established in the record.

If you are in doubt about the proper venue of your action, consulting MCA § 93-5-11 will give you the answer.

All of the above may appear elementary to you, but it is astonishing to me how many contested divorce cases I see presented where neither attorney establishes even one or more of the jurisdictional facts, and there are many where none of them are mentioned. In some cases, I have invoked MRE 614(b) to get the information myself into the record; after all, if I lack subject matter jurisdiction or venue is improper any action I take is void, and if I lack personal jurisdiction any action is voidable.

Remember that your pleadings are not evidence. Just because you pled it does not put it into the record. If you don’t establish jurisdiction on the record so that the judge’s finding of jurisdiction is supported by evidence, you are leaving your client’s judgment vulnerable to attack by the disgruntled other party.

MODIFICATION AND CONTEMPT: WHICH VENUE?

February 10, 2011 § Leave a comment

Steve and Nancy are divorced in Clarke County, Mississippi. The divorce judgment awarded custody of the three minor children to Nancy and ordered Steve to pay her child support. Shortly after the divorce, Steve relocates to the coast. After a year or two, Nancy remarries and moves to Tupelo with her new husband.

It has been six years since the divorce, and now Nancy wants Steve to begin paying more child support. Steve wants to file a contempt/modification action against Nancy for her interference with his visitation, and to gain custody of their oldest son, who now wants to live with dad. Nancy has not lived in Clarke County in the past four years, and Steve has not lived there in the past five years.

Which chancery court will have jurisdiction? Lee County where Nancy and the children live? Harrison County where Steve lives? Or is it the county where the defendant (respondent) resides, based on who files first?

The answer is: None of the above.

Clarke County will continue to have jurisdiction to modify and enforce its own judgments, even though neither party any longer resides there.

In the case of Reynolds v. Riddell, 253 So.2d 834, 836-837 (Miss. 1971), the supreme court held that the court that had original jurisdiction and rendered the judgment is the court that retains jurisdiction to modify and enforce that judgment, regardless of the residence of the parties since the time.

The appellant in Reynolds had argued that the version of MCA § 93-11-65 at the time conferred jurisdiction to determine and modify child custody on any Mississippi court where the child resides or where the party having actual custody resides, or where the defendant resides. The phrase “party having actual custody” must pertain to a party who obtained custody in in original proceeding and hence applies to modifications, the appellant argued. Not so, replied the supreme court opinion. It stated that the legislative intent of MCA § 93-11-65 was:

” … to provide a means of judicially determining the legal custody of a child in those instances where its custody was in question and no previous adjudication had been made thereasto, or either there existed conflicting custodial adjudications. We are of the opinion that the legislature did not intend to divest a court of jurisdiction … which continues in that court for the purpose of modification upon the changed circumstances between the same parties. We hold, therefore, that the Chancery Court of Washinton County did not have jurisdiction too modify the decree of custody entered by the Chancery Court of Sunflower County since the latter had continuing jurisdiction over these minor children.”

The court cited older cases that reached a similar result.

Three exceptions have been carved out of the rule announced in Reynolds:

Reynolds itself created a procedure to remove the case to another county. At page 837, the court stated: “To alleviate the unfortunate condition made apparent by this case, the court vested with exclusive and continuing jurisdiction may entertain a motion to transfer the cause to the county which is the residence of the parents and the children, and upon hearing this motion, if it appears to the court in the exercise of its sound discretion that time and expense would be saved and the best interest of the children served or promoted, then the motion might be properly sustained.” [Emphasis added] Note the highlighted language. It provides that the action may be transferred to the county where both parents and children reside, not to a county where one parent or one parent and the children reside. In other words, you may proceed in the county where the custody order was originally entered, or in another county if both parents and children reside in that county, but in no other.
In Bubac v. Boston, 600 So.2d 951, 955 (Miss. 1992), the court held that a habeas corpus proceeding may temporarily modify an original custody adjudication in certain limited circumstances, and that the jurisdiction of the habeas court is statutorily in the county where the children are being illegally detained. The habeas modification is temporary only until a permanent modification proceeding can be held in the court having original jurisdiction. The temporary nature of habeas jurisdiction wa recently reaffirmed in Pruitt v. Payne, 14 So.3d 806 (Miss. App. 2009).
In Brashers v. Green, 377 So.2d 597, 599-600 (Miss. 1979), the court again upheld the separate jurisdiction of the habeas court and applied what was then the law regarding child custody modifications in cases involving parties in different states, which has since been supplanted by the Uniform Child Custody Jurisdiction and Enforcement Act. And in a post UCCJA case, the same holding, Roach v. Lang, 396 So.2d 11, 13 (Miss. 1981).

Reynolds was a pre-MRCP case. We’ve talked here before about transfers and venue, and how the two concepts interact. I am not aware of any cases that tackle similar issues from the standpoint of rules-based transfer, but the Reynolds rationale is sound under the rules and application of venue concepts, in my opinion.

In the case of Harry v. Harry, 856 So.2d 748, 751 (Miss. App. 2003), the court held that an action for contempt may only be brought in the same court that rendered the original judgment, and the contempt action is ancillary to the original proceeding. Venue is exclusive in the original court even though the petitioner has moved to a different county in the same state. “Only the court contemned has jurisdiction to punish the contemnor.” Harry at 751; citing Tollison v. Tollison, 841 So.2d 1062, 1064 (Miss. 2003).

Neither the Uniform Child Custody Jurisdiction and Enforcement Act nor the Uniform Interstate Family Support Act offer any help. Those laws govern actions between a non-resident and a Mississippi resident, or between residents of other states, and do not apply to actions between exclusively Mississippi residents.

I’ve heard lawyers say for years that there are other ways to transfer, but the only authority I have ever found one way or the other is above. If you have something else that points in a different direction, let me know .

In sum, bring that modification or contempt action before the court that issued the original judgment that you are seeking to modify or enforce. If all of the parties and all of the children have relocated to another county, and they are all residing in that single county, you can petition the court to transfer the case to the new county.

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