January 23, 2017 § Leave a comment
The COA’s decision in In the Matter of J.W., decided January 3, 2017, is not likely to go down as a leading case in Mississippi jurisprudence, but for chancery practitioners in particular, it’s one you need to bear in mind.
To make a short story even shorter (the opinion is only three pages long), J.W. appealed from a finding made by a special master that he should be involuntarily committed to the custody of the Mississippi Department of Mental Health. The special master followed his findings with an “Order of Admittance after Hearing.” J.W. filed a R59 motion, but the COA does not tell us what the outcome of that was.
No matter. The COA dismissed the appeal for lack of jurisdiction because no chancellor ever adopted the special master’s findings in a court order. As the COA’s opinion by Judge Fair concludes:
¶5. “The court may appoint one or more persons in each county to be masters of the court, and the court in which any action is pending may appoint a special master therein.” M.R.C.P. 53. “[A] master’s report has no effect until it is either accepted or rejected by the chancellor.” Davison v. Miss. Dep’t of Human Servs., 938 So. 2d 912, 915 (¶5) (Miss. Ct. App. 2006) (citing Evans v. Davis, 401 So. 2d 1096, 1099 (Miss. 1981)). Here, there is no order by the chancellor accepting the special master’s report, and there has been no ruling on J.W.’s motion to reconsider. Because there is no final, appealable judgment, we lack jurisdiction and must dismiss. See Newson [v. Newson], 138 So. 3d , at 278 (¶11) [(Miss. Ct. App. 2014)].
The big deal here is that many districts around the state employ special masters routinely to handle child support and contempt cases per MCA 9-5-255. It’s an effective tool to free up courtroom time for more complex litigation, and to reduce waiting time for all kinds of hearings. When you get your findings and even a so-called “order” from your special master, however, it’s my opinion that you do not have either an enforceable judgment or a final, appealable judgment unless and until the chancellor has accepted the master’s report. That’s because of the language of MCA 9-5-255(8), which essentially tracks R53.
Another thing you need to keep in mind is that R53(g)(2) specifically directs that:
“The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto on the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may adopt the report in whole or in part or may receive further evidence or may recommit it with instructions.”
In Sims, et al. v. Mathis, handed down May 24, 2016, the COA held that it is the duty of the objecting party under R53 not only to file timely, specific objections, but also to set them for hearing and bring them before the court. In those special-master child-support cases, then, any objection needs to be filed within ten days of notice of the master’s findings, and the lawyer or party filing the objections needs to set the objections for hearing and bring the matter on for hearing. If that is not done, the court “shall accept the master’s findings of fact unless manifestly wrong.”
All of the foregoing applies not only to mental commitments and child-support proceedings, but also in every case in which a special master is appointed by the court. Mathis was a partition suit. Special masters are appointed in a wide range of chancery matters.
August 15, 2016 § 8 Comments
Now the chickens have come home to roost, as the saying goes. The U.S. Justice Department has sued the state (that’s us) for violations of the Americans with Disabilities Act and some other federal laws. You can read about the suit here.
Business as usual in Mississippi: we have to be sued time and time again to make our state do the right thing, or the constitutional thing, or simply to abide by the law.
November 15, 2010 § 2 Comments
We’ve already discussed how to close a guardianship, but what exactly are the events that trigger closing it?
MCA § 93-13-75:
The powers of a guardian for a minor cease when the ward attains the age of 21.
The chancellor may, in his or her discretion, terminate the guardianship after the ward attains the age of 18.
When the funds and personal property of the ward do not exceed $2,000, and there is no prospect of further funds coming into the guardianship, the court may terminate the guardianship and may impose conditions and restrictions for the deposit and expenditure of the funds. This provision applies not only to guardianships for minors, but also to guardianships for a “person of unsound mind, or convict of felony.”
MCA § 93-13-125:
In a guardianship for a person of unsound mind but not “properly adjudged mentally unsound,” the court may terminate the guardianship “If at any time it be made to appear to the satisfaction of the court that such person has been restored to sanity, such guardianship may be terminated and ended as now provided by law.”
MCA § 93-13-133:
If the court is satisfied that a person of unsound mind is restored to sanity, or that an habitual drunkard, or habitual user of cocaine, or opium or morphine has “sufficiently reformed to justify it …” the court may terminate the guardianship.
MCA § 93-13-135:
The guardianship of a convict of felony ceases when the term of imprisonment expires or the convict dies.
MCA § 93-13-151:
Guardianship of a person who is found in need of mental treatment shall end when the ward is “restored to reason” and is so adjudicated by a court of competent jurisdiction.
MCA § 93-13-161:
If a guardian has been appointed for the estate of a person in the armed forces or a merchant seaman who is “officially reported or listed as missing in action, or interned in a neutral country, or beleagured, besieged, or captured by an enemy,” the guardianship may be terminated as follows:
At any time upon petition signed by the absentee, or on petition of an attorney-in-fact acting under power of attorney granted by the absentee, the court shall direct the termination of the guardianship and the transfer of all property held thereunder to the absentee or the designated attorney-in-fact. Likewise, if at any time subsequent to the appointment of a guardian it shall appear that the absentee has died and an executor or administrator had been appointed for his estate …”
MCA § 93-13-77:
” … it shall be made the duty of an executor or administrator of a deceased guardian to make final settlement in a of their testator’s or intestate’s guardianship accounts in the chancery court in which the same mey be pending …”
It is obvious that a guardianship terminates on death of the ward. In such a case, an estate should be opened, a final accounting filed and noticed, and the assets transferred to the estate once the guardianship is closed.
A guardianship solely of the person terminates on emancipation of the ward, or when it is shown to the court no longer to be necessary.