Failure to Serve Process Within 120 Days in a Rule 81 Case

December 3, 2019 § 1 Comment

MRCP 4(h) is pretty clear that failure to serve process within 120 days of filing the complaint without “good cause” requires dismissal of the complaint.

But that’s Rule 4. How does that apply in Rule 81 actions?

In her appeal to the COA, Natasha Hilton tried to convince the court that the counterclaim filed against her by her ex-husband Chris should have been dismissed because she was not served with process within 120 days of filing. She argued that the trial court lacked jurisdiction. The chancellor brushed aside that argument, and so did the COA. In Hilton v. Hilton, handed down November 5, 2019, the court affirmed. Judge Tindell wrote for a unanimous court:

¶11. On appeal, Natasha first argues that Chris failed to properly serve her with a Rule 81 summons related to his counter-petition for contempt, modification, and attorney’s fees in violation of Rule 4(h). As such, Natasha contends that the chancellor lacked jurisdiction to enter his final judgment against her. Natasha further argues that the chancellor erroneously granted an extension to serve process in this case even though Chris failed to show good cause as to why he did not serve Natasha within 120 days. Chris argues, however, that Rule 81, rather than Rule 4(h), governs service of process in this matter and that the 120-day deadline is inapplicable here. Therefore, we must first address whether Rule 4(h) or Rule 81 applies to the foregoing case.

¶12. Mississippi Rule of Civil Procedure 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

(Emphasis added). Rule 81(a)(9), however, states in pertinent part:

Applicability in General. These rules apply to all civil proceedings but are subject to limited applicability in the following actions which are generally governed by statutory procedures, . . . [including] Title 93 of the Mississippi Code of 1972.

(Emphasis added). Title 93 of the Mississippi Code covers all matters related to domestic relations, including modifications of custody. Roberts v. Lopez, 148 So. 3d 393, 398 (¶9) (Miss. Ct. App. 2014). Rule 81(d) states that “[t]he special rules of procedure set forth in this paragraph . . . shall control to the extent they may be in conflict with any other provisions of these rules.” Under Rule 81(d)(2), modification-of-custody-matters are triable within “7 days after completion of service of process in any manner other than by publication.” Rule 81(d), however, places no 120-day deadline for service of process, as in Rule 4(h). Rather, Rule 81(d)(5) states only that

upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added).

¶13. This Court specifically addressed the applicability of Rule 4(h) and Rule 81 to modification-of-custody matters in Roberts. In Roberts, a mother filed a complaint for fraud against the father of her child after the father allegedly forged her signature on a joint complaint for modification of custody, which gave him sole custody of the child. Roberts,148 So. 3d at 397 (¶6). The mother later filed an amended complaint, which asked the chancellor to set aside all previous orders associated with the joint complaint or, in the alternative, to modify custody. Id. The mother served the father with a Rule 81 summons on the amended complaint, ordering his appearance for a hearing on the matter. Id. After a hearing, the chancellor modified the couple’s custody arrangement, giving the mother and father joint custody of the child. Id. at (¶7). The father appealed to this Court, arguing that the mother failed to serve him with the amended complaint within 120 days in violation of Rule 4(h). Id. at 398 (¶9).

¶14. In our analysis, this Court cited the Rule 81 procedures mentioned above as they related to the mother’s custody-modification matters. Id. at (¶¶9-10). This Court found that as a domestic-relations matter Rule 81 controlled service of process in the mother’s case, and not Rule 4(h). Id. at (¶10). We found specifically that because the father had been served with a Rule 81 summons commanding him to appear before the chancellor on the court ordered hearing date, “it [was] of no moment” that the mother served the father with her Rule 81 summons more than 120-days after filing her complaint. Id. We ultimately affirmed the chancellor’s modification of custody in this case. Id. at 402-03 (¶25).

¶15. Comparing the facts in Roberts with the facts before this Court today, we are obliged to apply the same holding to the case at hand. Similar to the mother in Roberts, Chris sought modification of his custody arrangement with Natasha, and therefore, the procedures in Rule 4(h) do not apply. Chris filed the counter-petition on September 20, 2016 and served Natasha with a Rule 81 summons on January 24, 2017, in compliance with Rule 81(d)(5). Natasha points out that Chris’s Rule 81 summons noticed the hearing for January 30, 2017, which was six days after she had been served as opposed to seven days as required by Rule 81(d)(2). However, in accordance with Rule 81(d)(5), the chancellor properly ordered the hearing be continued to July 18, 2017, upon agreement of the parties.

¶16. We therefore find that Chris effectively served process upon Natasha in compliance with Rule 81. Because we find service to be proper in this case, we need not address Natasha’s remaining arguments regarding good cause and dismissal under Rule 4. We further find that the chancellor committed no error in hearing and ruling upon Chris’s counter-petition.

A few observations:

  • It’s a counterclaim, not a counter-petition. I know the COA has to use the nomenclature of the parties and the trial court to avoid confusion.
  • Divorce is a Rule 4 action, so Rule 4(h) and its body of case law do apply. I wonder how that fits with the situation where that original divorce complaint has been on file 200 days before process is issued while you are trying to get an agreement for an ID divorce? Of course, statute of limitations doesn’t come into play as it does in circuit court, but still …
  • I know what Rule 81 says, but please let me know if you are being required to issue summons on a counterclaim in your district. We never have in this district because the plaintiff-counterdefendant has already submitted himself or herself to the personal jurisdiction of the court and the purpose of process is to acquire personal jurisdiction; notice of the counterclaim is by Rule 5. No other district I ever practiced in required it. The only court that requires it to my knowledge is the COA. Maybe it’s just my ignorance.
  • In any event, how could Natasha think that after a year of participation in the case, including agreed orders setting and continuing hearings, that she was not under personal jurisdiction? If one is never served with process at all, but appears and participates without objection, that court has personal jurisdiction over that person. The chancellor cut through that smoke and got right to the merits, as he should have.
  • You should read the convoluted facts involving settings and continuances, claims of non-process, calendar-hopscotching, and more. It’s ‘way too convoluted to try to capture here.

The Effect of Harris v. Harris

August 21, 2019 § 1 Comment

Back in February, 2018, I posted about the MSSC’s ruling in Harris v. Harris, which overruled Spalding v. Spalding, regarding the impact of Social Security (SS) retirement benefits on alimony. Spalding had held that the alimony-paying party is entitled to a credit against alimony in the amount of the other party’s receipt of SS benefits derived from the alimony-paying party’s work record. Harris held that receipt of SS does not automatically trigger modification. Here is a link to my post.

In Alford v. Alford, a July 23, 2019, COA case about which I posted yesterday, Judge Greenlee wrote a specially concurring opinion raising some concerns about Harris and how it will be applied:

¶37. I concur with the majority. However, because I am concerned about the effect Harris v. Harris, 241 So. 3d 622 (Miss. 2018), may have in this case and other cases, I specially concur.

¶38. Our supreme court’s decision in Harris has the potential to greatly impact those in our population who are aging and under a court-ordered duty of support. For our citizens who earn their wages through compensation from work for others, there comes a time that many should at least consider retirement, if retirement is not required or decided for them. The litigants in this case, if not retired, are rapidly approaching retirement.

¶39. In such cases, the problem chancellors face is in reliably predicting the impact of retirement upon the earnings of the parties. Harris should not mean that once retirement occurs to one or both of the parties (although foreseeable at the time of the initial support order) that the parties are foreclosed from asking the court for a modification based on a material and substantial change in circumstances. See Plummer v. Plummer, 235 So. 3d 195, 199 (¶14) (Miss. Ct. App. 2017) (modification of alimony requires proof of a material and substantial change in circumstances since the date of the prior judgment). If the application of our law is to foreclose a litigant’s request for a modification of periodic alimony upon that party’s retirement, such could mean that in order to meet the amount required, that party must not retire. If that is the case, has our law not imposed a servitude upon a citizen until death? Retirement is a substantial change to an individual’s circumstances, and Harris should not be allowed to hinder such a change from being brought before the chancellor for consideration.

This is a conundrum I have never seen directly addressed by our appellate courts: retirement is reasonably foreseeable and even necessary at some age. Retirement almost always results in a downward shift in the retiree’s income. How does that foreseeability affect the right to request modification? I think Judge Greenlee makes a valid point.

The Price of Making Up a Story

August 12, 2019 § 1 Comment

Should the custodial mother lose custody because she: (1) planted drugs in the father’s truck and had him arrested; and (2) fabricated a drug screen on her minor son that purported to show that the father had given the child drugs?

The chancellor thought so in the modification case between Tamara Barbaro and her ex, Coty Smith, and modified custody. Barbaro, aggrieved, filed an appeal.

In Barbaro v. Smith, handed down July 16, 2019, the COA affirmed. The facts and procedural history alone extend to 18 1/2 pages, so you might want to check them out. Here is how Judge Jack Wilson addressed Barbaro’s argument that the chancellor erred in finding that there had been a material change in circumstances that adversely affected the child:

¶72. A party who requests a modification of child custody “must prove by a preponderance of evidence that, since entry of the judgment or decree sought to be modified, there has been a material change in circumstances which adversely affects the welfare of the child.” Riley v. Doerner, 677 So. 2d 740, 743 (Miss. 1996) (quoting Ash v. Ash, 622 So. 1264, 1265 (Miss. 1993)) (emphasis omitted). The chancellor must  consider the “totality of the circumstances” to determine whether such a change in circumstances has occurred. Id. (quoting Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1996)). “[I]f such an adverse change has been shown, the moving party must show by [a preponderance of the] evidence that the best interest of the child requires the change of custody.” Id. (quoting Ash, 622 So. 2d at 1266).

¶73. The chancellor found that Barbaro’s participation in a scheme to plant illegal drugs in Smith’s truck and her tampering with Will’s drug test had resulted in a material change of circumstances. The chancellor also found that Barbaro’s actions had necessitated restrictions on visitation and an abrupt, emergency change in custody, which adversely affected Will—as shown by his being more clingy and insecure. Finally, citing Riley, supra, the chancellor found “that there could have been [additional] adverse harm to [Will] had Barbaro’s actions been successful” because the “father-child relationship would have been severed.”

¶74. Barbaro argues that the chancellor erred because the evidence generally showed that she was a fit parent and even a good mother and because Will had not yet suffered harm. She further argues that even if she did help plant drugs or falsified a drug test, the charges against Smith were ultimately dropped, and the “alleged threat of harm is moot.”

¶75. Barbaro’s argument takes too narrow a view of the concept of a material and adverse change in circumstances. In addressing this issue, the chancellor must consider the “totality of the circumstances.” Riley, 677 So. 2d at 743 (quoting Tucker, 453 So. 2d at 1297). “The concept [of a material change in circumstances that adversely affects the child] is intended to encompass its broadest possible meaning in order to protect children,” including but not limited to changes that adversely affect the “child’s mental and emotional well-being.” Marter v. Marter, 914 So. 2d 743, 748-49 (¶14) (Miss. Ct. App. 2005) (citing Bredemeier v. Jackson, 689 So. 2d 770, 775 (Miss. 1997)).

¶76. In Riley, the Supreme Court held that “where a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.” Riley, 677 So. 2d at 744. The Court held that a change in custody may be warranted “even without a specific finding that such environment has adversely affected the child’s welfare. A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.” Id. The Court stated that “[t]he test . . . for custody  modification need not be applied so rigidly, nor in such a formalistic manner so as to preclude the chancellor from rendering a decision appropriate to the facts of an individual case. In particular, it should not thwart the chancellor from transferring custody of a child from one parent to another when, in the chancellor’s judgment, the child’s welfare would be best served by such transfer.” Id. at 745.

¶77. As we have explained above, there is substantial evidence to support the chancellor’s factual findings that Barbaro participated in a scheme to plant drugs and tampered with Will’s drug test. The chancellor further found that Barbaro’s extreme conduct threatened harm to Will because, if successful, it would have resulted in Smith’s imprisonment and likely severed the father-child relationship. The chancellor concluded that this clear threat of harm to Will was a material and adverse change in circumstances—even though, thankfully, Barbaro was not successful, and the specific threat to Will was averted. We cannot say that the chancellor clearly erred or abused his discretion by applying the Supreme Court’s decision in Riley to the facts of this case. Riley recognizes that a parent’s conduct that threatens harm to a child may rise to the level of a material and adverse change in circumstances even if the child “somehow appears to remain unscarred.” Id.; accord Johnson v. Gray, 859 So. 2d 1006, 1014 (¶39) (Miss. 2003).

¶78. Moreover, there is substantial evidence to support the chancellor’s finding that Will had already been adversely affected by Barbaro’s conduct. Barbaro’s conduct necessitated restrictions on Smith’s visitation and then an abrupt, emergency change of custody and restrictions on Barbaro’s visitation. These events would not have occurred but for Barbaro’s misconduct. Furthermore, witnesses testified, and the chancellor found, that these changes caused Will to be more clingy and insecure.

¶79. In summary, the chancellor did not clearly err or abuse his discretion by applying Riley to the facts of this case or by finding a material change in circumstances that adversely affected Will. Therefore, the chancellor appropriately proceeded to consider whether a change in custody would be in Will’s best interest. See Riley, 677 So. 2d at 743.

That’s some useful authority in ¶¶75 and 76.

Voluntary Reduction in Income

July 31, 2019 § 2 Comments

During a period when he was earning between $186,000 and $229,000 working in foreign countries, David Martin entered into an agreed judgment in 2014 to pay his ex, Wendy Borries, $2,000 a month in child support.

Martin’s employment contract ended in May, 2015, and he relocated from overseas to Mississippi. Unable to find employment at his former level of income, he took a job at Ingalls Shipbuilding as an electrician earning $4,200 a month.

In April, 2016, Martin filed a petition for downward modification of support, citing his reduction in income. Borries counterclaimed to require Martin to pay half of the oldest child’s college expenses.

Following a hearing, the special chancellor denied Martin’s request for modification and ordered him to pay half of college, with a small reduction in his child support. Martin appealed, claiming error in the court’s refusal of his modification request.

In Martin v. Borries, handed down June 18, 2019, the COA affirmed. Chief Judge Barnes wrote for the court:

¶8. The chancery court denied Martin’s petition for modification, finding he had “failed to prove to the [c]ourt a substantial and material change in circumstances since the February 28, 2014, [a]greed [j]udgment of [m]odification.” In its findings, the court placed “great weight” in Martin’s earning capacity and concluded that his reduction in income was voluntary.

¶9. “There can be no modification of a child support decree absent a substantial and material change in the circumstances of one of the interested parties arising subsequent to the entry of the decree sought to be modified.” Evans v. Evans, 994 So. 2d 765, 770 (¶16) (Miss. 2008) (quoting Gillespie v. Gillespie, 594 So. 2d 620, 623 (Miss. 1992)). One factor to be considered in assessing whether a material change in circumstances has occurred warranting modification of child support “is the relative financial condition and earning capacities of the parties.” Bailey v. Bailey, 724 So. 2d 335, 337 (¶7) (Miss. 1998) (citing Caldwell v. Caldwell, 579 So. 2d 543, 547 (Miss. 1991)). But “[t]he change must be one that cannot have been reasonably anticipated at the time of the original decree and one that reasonably affects the parties’ ability to abide by the original decree.” Howard, 968 So. 2d at 972 (¶24) (citing Poole v. Poole, 701 So. 2d 813, 818 (¶¶19, 21) (Miss. 1997)). Martin claims that he suffered a material change in circumstances that was unforeseeable and “came through no fault of his own.” Therefore, he argues that the court’s findings were “manifestly wrong.”

¶10. In Tingle v. Tingle, 573 So. 2d 1389, 1391 (Miss. 1990), the chancery court granted a father’s petition to reduce his child-support obligation after the father quit a steady, wellpaying job to attend college full-time. The Mississippi Supreme Court noted that when the father entered into the divorce decree awarding child support—only six months before filing the petition for modification—“it [was] reasonable to believe that this action . . . was anticipated.” Id. at 1392. The supreme court, therefore, concluded that “under the facts of the case at bar, the unilateral acts of the appellee do not justify a reduction in his child support obligation” and reversed the chancery court’s decision. Id. at 1393. Subsequently, in Bailey, the supreme court reversed and remanded a chancellor’s decision to reduce a mother’s child-support obligation after she left her employment to stay at home with a new baby. Bailey, 724 So. 2d at 337 (¶6). Concluding that the mother’s actions constituted a voluntary reduction in income, the Bailey Court reasoned that it would be inequitable for one parent to quit his or her job by choice and expect the other parent “to pick up the slack” without having any vote in the matter. Id. at 338 (¶10).

¶11. At trial, Martin testified that he had worked offshore in project management for eight years and that his adjusted gross income in 2013 was $186,782 and $229,000 in 2014. He earned $184,716 from January to June 2015. When Martin entered into the agreed order in 2014, he was aware that his project assignment had a finite duration. Furthermore, although Martin claims that the job market was “difficult” and that he was unable to find equivalent employment to his prior job, there was testimony that there were job opportunities available to him, which for his own personal reasons, he found unappealing.

Q. And you would admit to His Honor there are postings now on Rigzone that you certainly would be qualified for?

A. There are postings on Rigzone that I would certainly be qualified for.

. . . .

But what I do know is there are various countries in this world that I absolutely will not work in because of the nature that our world is in right now . . . they’re high-risk areas.”

As the chancery court observed, it was Martin’s decision “not to return to his high paying career unless he [could] choose the country to which he would go,” and Martin admitted before the court that taking the job at Ingalls for less pay was “a choice that I have made.” Our Court has held that a minor child “should not suffer a diminution in support because of [the father’s] unilateral act based upon personal preferences about his workplace.” Pullis v. Linzey, 753 So. 2d 480, 485 (¶11) (Miss. Ct. App. 1999). Martin also acknowledged that three months after his contract ended, he bought his wife a new Mercedes for $38,223.

¶12. Borries also testified that Martin had been planning to quit working offshore for a while:

A. He has told me for years that he was going to quit his job and come work at Ingalls, and I wasn’t going to be getting the child support that I was getting.

Q. What did he describe it as? What was the word he used to describe his payments to you?

A. The gravy train.

Q. Okay. So [Martin] said that he was going to quit working overseas, come work at the shipyard, and that, quote, the gravy train–what would happen to the gravy train?

A. It was going to stop.

Q. Okay. And so he told you he was going to do this?

A. He has told me numerous times over the years. He told me he was going to quit his job as soon as . . . he married this woman.

. . . .

So he has told me that when [his wife] gets her citizenship and she–he moves her over here, he’s going to quit working offshore and find a job here, and he wasn’t going to be paying child support because the gravy train was going to stop. And he has told me that so many times it’s not even funny.

In Leiden v. Leiden, 902 So. 2d 582, 585 (¶¶12, 14) (Miss. Ct. App. 2004), this Court affirmed a chancellor’s decision to deny modification of child support when the father’sactions in terminating his employment were voluntary and the evidence showed that he “had planned to take an early retirement.”

¶13. We find this case similar. The evidence reflects that Martin planned to quit his overseas job and return to Mississippi for less pay. These actions were voluntary and anticipated. Finding no manifest error in the chancery court’s determination that Martin voluntarily reduced his income, we affirm the court’s denial of the petition for modification.

Don’t you wish you had a crystal ball that would reveal all of your prospective client’s statements against interest before you decided to get into the case? Gravy train, indeed.

Not Allowed to Testify

January 23, 2019 § Leave a comment

We visited the Sheridan v. Cassidy COA case yesterday, in which the court affirmed a chancellor’s decision not to allow the testimony of a twelve-year-old boy to testify as to his preference. There was a dissent.

In the same case, the chancellor also refused to allow either the twelve-year-old son or his eight-year-old sister to testify. The COA affirmed:

¶24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow, 571 So. 2d 270 (Miss. 1990). In Jethrow, the supreme court stated that “there can be no per se prohibition against a child witness testifying in a divorce case between his parents.” Id. at 273. There, the mother wanted to call the parties’ eight-year-old child “as a witness to testify to acts of violence against her by [the father],” but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to
exclude “the testimony of a child witness of tender years in a divorce proceeding.” Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child’s best interests to testify. Id. at 273-74.

¶25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children’s best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, “That is not fair. This is not their fight, they didn’t start it. They didn’t cause the divorce, they are the victims of it.” The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.

If the law is that “there can be no per se prohibition against a child testifying,” then it would seem that the only way to document a refusal to allow it would be to conduct a Jethrow examination. For my part, I seldom do that with children who are in their late teens unless there is obvious immaturity, or some condition such as autism or low intelligence, or obvious intimidation. I would almost certainly conduct a Jethrow examination with an eight year old, but whether to do so with a twelve year old would depend on my assessment of the child’s maturity and mental and emotional health. If a party specifically requests a Jethrow examination, I would likely do it.

One caution: Notice that the COA pointed out that no party had requested a Jethrow exam, and then went on to uphold the judge’s findings without it. That signals to me that, if you do not request the Jethrow exam, you may well be stuck with whatever the judge’s conclusions are about whether the child or children should testify.

Not Allowed to State a Preference

January 22, 2019 § Leave a comment

Most chancellors do not like having the children testify in litigation between the parents. Among other objectionable things, it subjects them to stresses that they are often too young to bear, it forces them to choose sides, and it subjects them to a tug-of-war between the parents.

In the modification case between Farra Sheridan and her ex-husband, James Cassidy, Farra wanted to call her twelve-year-old son as a witness to state his preference, and both he and his eight-year-old sister on the merits, but the chancellor refused, stating that he believed the children had been coached and that pitting the children would not be in their best interest. He said, “That is not fair. This is not their fight, they didn’t start it. They didn’t start the divorce. they are victims of it.” Farra appealed.

In Sheridan v. Cassidy, handed down December 11, 2018, the COA affirmed. On the issue of the preference testimony of the 12-year-old, Chief Judge Lee’s majority opinion read:

¶21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

(Emphasis added). “[T]he chancellor is not bound by the election of a minor child.” Floyd [v. Floyd], 949 So. 2d [26] at 30 (¶12) [(Miss. 2007)]. But, if a chancellor declines to follow a child’s preference, he must place the reasons in the record. Id.

¶22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old’s testimony. The proffer was as follows:

The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford. . . . He seems to think that there is a lot of stuff to do around Arkansas that is not available here.

¶23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), “the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far.” Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.

Affirmed on that point by the majority, but Carlton dissented, joined by Griffis and Fair, and Tindell in part:

¶27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶7-12) (Miss. Ct. App. 2007). In Anderson, this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father’s motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.

¶28. Similarly, the chancellor’s failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child’s right to choose his custodial parent. [Fn 3] Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child’s testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson, 961 So. 2d at 59-60 (¶¶7-12); see also Boyd v. Boyd, 83 So. 3d 409, 418 (¶29) (Miss. Ct. App. 2011) (mother allowed to present daughter’s preference testimony).

[Fn 3] In Anderson, section 93-11-65 (Rev. 2004) provided that “any . . . child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.” (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then “the chancellor may consider the preference of a child of twelve . . . years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child.” Miss. Code Ann. § 93-11-65 (Rev. 2013)(emphasis added). The statute further provides that “[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.” Id.

¶29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child’s preference, see, e.g., Floyd, 949 So. 2d at 30 (¶12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra’s request to present her twelve-year-old son’s testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor’s abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.

Here, because “a majority of the Albright factors favored” the father, the majority found no error.” That won’t always be the case, however. It’s not a good idea for a judge to curtail a party’s proof without overwhelming justification. I think this was a borderline situation; the judge found the child’s credibility dubious and did not believe it was in the child’s best interest to testify.

My opinion is that a Jethrow examination substantiating those conclusions would have made the judge’s ruling airtight.

And what about the judge’s ruling that the two children were not allowed to testify on the merits? You’ll have to wait until tomorrow.

A Totality of Circumstances Case

January 16, 2019 § Leave a comment

Modification of custody may be based on a  finding of changed circumstances that arises from a totality of the circumstances in which the child is living.

That is what happened in the case of Farra Sheridan in which the chancellor modified custody from her to her ex-husband, James Cassidy, based on multiple factors. Unhappy with the trial judge’s decision, Farra appealed.

In Sheridan v. Cassidy, a December 11, 2018, decision, the COA affirmed. Chief Judge Lee wrote the majority opinion:

¶10. “[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child.” Johnson v. Gray, 859 So. 2d 1006, 1013 (¶33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, “the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody.” Mabus v. Mabus, 847 So. 2d 815, 818 (¶8) (Miss. 2003). In Riley v. Doerner,
677 So. 2d 740, 744 (Miss. 1996), the supreme court held:

[W]here a child living in a custodial environment clearly adverse to the child’s best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment. . . . A child’s resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

¶11. The chancellor found the following amounted to a material change in circumstances: Farra’s involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James’s electronic devices; the children’s school absences and tardies related to weekend trips to Arkansas; the children’s living situation while visiting Arkansas; and issues with one child’s failure to complete school assignments. The chancellor also had concerns about Farra’s credibility.

¶12. We cannot find that the chancellor’s findings regarding a material change in circumstances were manifestly wrong or clearly erroneous …

I include this case only to illustrate for you how a chancellor may view the living situation of the custodial parent, and how Riley v. Doerner may come into play.

 

Relocation and Joint Custody

June 11, 2018 § Leave a comment

Julia Bennett and her husband, Andre, were divorced in 2011 on the ground of irreconcilable differences. Their PSA provided that the parties would share joint physical and legal custody, with Julia to have the children with her most of the time.

When Julia decided to relocate from Rankin County to St. Louis, Andre filed to modify, seeking sole custody, and to keep the children in Rankin. Julia counterclaimed for sole custody, and to modify the visitation based on her new residence in Missouri.

At hearing, Andre testified that he was actively involved in the lives of his children, and that he had recently purchased a home suitable for them to stay with him. Julia testified that her father and fiancé lived in St. Louis, and that she had a job awaiting her there. She said, too, that she had been in the process of enrolling the children in school in Missouri until the chancellor had entered an emergency order that the children be enrolled in Rankin County schools. One of the children, Madeline, age 14, testified that her preference was to stay with her mother, with whom she was close. She conceded that she was close to her father also, and that she would abide by the court’s order either way.

The family master, serving as a guardian ad litem (GAL) found that no material change had occurred, because Julia had not moved; however, a move would create a material change adverse to the children, and, if so, Andre should have custody. The GAL’s report incorporated an Albright analysis, which included Madeline’s preference. The chancellor agreed with and adopted the GAL’s recommendations and entered a judgment providing that if Julia relocated to Missouri Andre would have custody, Julia would have liberal visitation, and she would pay child support.

Julia appealed, challenging only the determination not to honor Madeline’s preference. In Bennett v. Bennett, decided April 10, 2018, the COA affirmed unanimously. Judge Fair wrote for the court:

¶12. Julia only challenges one Albright factor – the preference of the minor child. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child’s preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

“[T]he chancellor is not bound by the election of a minor child.” Floyd v. Floyd, 949 So. 2d 26, 30 (¶12) (Miss. 2007). However, if a chancellor declines to follow a child’s election, he must place the reasons in the record. Id.

¶13. In his Albright analysis, the family master noted the following regarding the child’s preference:

The preference of the child at the age sufficient to express a preference: [Madeline] is fourteen (14). She is over the age of twelve (12). She is able to make a preference. She did make that preference for mother. This factor would favor mother in this regard. [] The stability of the home environment, I believe, favors [Andre] Bennett primarily because he’s been here with the children and with mom up until recently. That is a stable environment, one in which the children are familiar with. You know, [Julia] Bennett, the testimony was you’re going to live with your dad. You don’t really have a place to live. You are not married yet. [There are] a lot of unknowns, a lot of question marks. I am not faulting you for it. I’m just saying that’s just the way it is. All things considered, the best evidence before the [c]ourt on this half is that the material change of circumstances was adverse to the children favors a modification of custody to – to dad.

¶14. We find that the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though Madeline expressed a preference to reside with her mother. It was within the chancellor’s discretion to adopt the family master’s recommendation. Accordingly, we affirm.

Some ruminations:

  • Anticipatory modifications have not been favored. See, McMurry v. Sadler, 846 So. 2d 244 (Miss. App. 2004), in which the court affirmed the chancellor’s decision to dismiss pleadings that alleged that a material change and adverse effect would result if an event happened. In most cases, this approach would be wise because it would be speculative to find material change and adverse effect would occur until they do.
  • Here, it was practical for the chancellor to address the impending move and its effect on joint custody.
  • Relocation almost always plays havoc with joint custody, leaving everyone — the judge included — dissatisfied with the result. To compound matters, the party who does’t wind up with what he or she wanted always feels cheated because joint custody is what they negotiated for, or what was ordered, in the first place.
  • This case highlights that the court is never required to follow a child’s preference. If the preference is not followed, however, the court must state the reasons why. Here, by adopting the GAL’s report and findings on preference, the chancellor made a record as to why he did not follow the child’s preference.

Doing Away with Alimony: Two Routes

April 10, 2018 § 4 Comments

Adam Lewis filed a complaint to terminate alimony against his ex-wife, Karen. Adam contended that Karen was cohabiting or in a de facto marriage with her boyfriend, Dobel, since the parties’ 2002 divorce. There was a lot at stake, since the parties’ divorce agreement provided that Adam would pay Karen $15,000 a month in periodic alimony.

Following a trial, the chancellor dismissed Adam’s case per MRCP 41(d). Adam appealed. The COA affirmed the dismissal in In the Matter of the Dissolution of the Marriage of Lewis, decided March 20, 2018. You can read the facts as developed at trial for yourself. Here is how Judge Wilson addressed Adam’s arguments on cohabitation and de facto marriage:

A. Cohabitation

¶17. “Modification of alimony may occur upon the existence of a situation of mutual support between the recipient spouse and another individual which alters the recipient spouse’s financial needs.” Scharwath v. Scharwath, 702 So. 2d 1210, 1211 (¶6) (Miss. 1997). “[C]ohabitation creates a presumption that a material change in circumstances has occurred. This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support . . . .” Id. at (¶7) (citation omitted).

¶18. In the present case, Adam did not prove cohabitation and failed to prove any mutual financial support. Adam admitted that Karen and Dobel maintain separate homes and do not spend the night at each other’s homes. Adam also admitted that he had subpoenaed Karen’s financial records but had found no evidence that Dobel financially supported Karen or vice versa. On this record, the chancellor did not clearly or manifestly err by finding that Adam failed to meet his burden of proving cohabitation or mutual financial support.

B. De Facto Marriage

¶19. “In the absence of cohabitation, alimony can be terminated based on proof of what has been termed a ‘de facto marriage.’” Hughes, 186 So. 3d at 400 (¶18). “A de facto marriage may be proven in two ways.” Id. “First, a chancellor may find a de facto marriage if the alimony recipient is deliberately avoiding remarriage merely to continue receiving alimony.” Id. (citing Martin v. Martin, 751 So. 2d 1132, 1136 (¶16) (Miss. Ct. App. 1999)). “Second, a de facto marriage can be found . . . if the alimony recipient and another person have ‘so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.’”
Id. (quoting Pope v. Pope, 803 So. 2d 499, 504 (¶12) (Miss. Ct. App. 2002)).

¶20. In Martin, Ben and Linda’s divorce judgment required Ben to pay Linda periodic alimony. Martin, 751 So. 2d at 1133 (¶3). After the divorce, Linda became involved in a long-term relationship with Norm Anderson. Id. at (¶5). Linda wore a diamond engagement ring that Anderson gave her, and the couple consistently told friends that they planned to marry “next year.” Id. Moreover, on cross-examination, Linda “admitted . . . that she and Anderson had not married because she need[ed] the financial support provided by the alimony received from [Ben].” Id. Linda and Anderson maintained separate residences, but Anderson’s was a “small . . . efficiency apartment,” while Linda’s was a “luxurious home.” Id. at 1133, 1136 (¶¶6, 15). Anderson had a key to Linda’s home, spent the night at her home a few times each month, ate meals at her home regularly, ran errands for her, and did yard work and other household chores. Id. at 1133 (¶6). In addition, Linda had written Anderson checks totaling over $11,000 over a three-year period. Id. Anderson also provided Linda with substantial discounts on clothes and cosmetics from the store where he worked. Id. Based on this evidence, the chancellor found that Linda and Anderson had entered into a “de facto marriage” and terminated Ben’s alimony obligations. Id. at 1134-35 (¶¶10, 14).

¶21. On appeal, this Court affirmed the chancellor’s finding that Linda had “structured her relationship with Anderson in an attempt to circumvent the appearance of cohabitation so as to continue her alimony.” Id. at (¶16). We did so based on Linda’s admission under oath “that she and Anderson had not married because she need[ed] the financial support provided by [her] alimony.” Id. We held that when “an alimony recipient spouse purposefully avoids marriage merely to continue receiving alimony, equity should not require the paying spouse to endure supporting such misconduct.” Id.

¶22. In contrast, in Hughes, supra, the chancellor found that the alimony payor failed to prove that his ex-wife, Mariel, had entered into a “de facto marriage” with her boyfriend, Darrell. Hughes, 186 So. 3d at 396 (¶3). Mariel and Darrell had been in an exclusive dating relationship for four years, and Mariel wore a diamond ring that Darrell had given her. Id. at 398-99 (¶¶11, 13). They maintained separate residences, but they spent the night at each other’s homes once a week or more. Id. at 398 (¶11). They also traveled and vacationed together, and Darrell had exhibited one of his Corvettes at the National Corvette Museum with a plaque stating that the car was on loan from “Darrell Hill & Mariel Hughes.” Id. at
399 (¶13). Mariel and Darrell denied that they had discussed marriage or planned to get married. Id. at (¶14). However, there was testimony that Mariel once “said that marrying Darrel would ‘mess things up’ in some unspecified way.” Id. at 401 (¶22).

¶23. On those facts, we affirmed the chancellor’s finding that the alimony payor failed to prove the existence of a de facto marriage. We concluded that Martin was distinguishable because there was no outright admission or other clear evidence that Mariel “was avoiding remarriage solely to continue her alimony payments.” Id. at 401 (¶22). In addition, the evidence was, at best, conflicting as to whether Mariel and Darrell had “so fashioned their relationship, to include their physical living arrangements and financial affairs, that they could reasonably be considered as having entered into a de facto marriage.” Id. at 403 (¶26) (quoting Pope, 803 So. 2d at 504 (¶12)). They were in a long-term, exclusive relationship, she wore a diamond ring that he gave her, they traveled together frequently, and they spent the night together regularly. However, they maintained separate homes and had no access to one another’s financial accounts. Id. at 402-03 (¶26). Therefore, there was evidence to
support the chancellor’s finding that the long-term, exclusive relationship was not a scheme to avoid remarriage to continue alimony payments or a de facto marriage. Id. We emphasized, as we had in a prior case, that “[t]he most important distinction” in our precedents on de facto marriage “is the finding of the chancellor.” Id. at 403 (¶26) (quoting Burrus, 962 So. 2d at 621 (¶15)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id.

¶24. We reach the same conclusion in the present case. Karen and Dobel obviously are in a long-term, serious relationship. However, unlike Martin, there is no outright admission or any other clear or direct evidence that Karen is avoiding remarriage just to continue receiving alimony. Adam testified that he believes that is what Karen is doing. However, Adam did not call Karen or Dobel as an adverse witness. In addition, although Adam apparently deposed Karen prior to trial, he did not seek to introduce any part of her deposition into evidence. See M.R.C.P. 32(a)(2) (“The deposition of a party . . . may be used [at trial] by an adverse party for any purpose.”); Fred’s Stores of Tenn. Inc. v. Pratt, 67 So. 3d 820, 827-28 (¶¶39-44) (Miss. Ct. App. 2011) (Maxwell, J., concurring in part and in result) (explaining that a plaintiff may introduce a defendant’s deposition during the plaintiff’s case in chief). Moreover, as in Hughes, Karen and Dobel maintain separate residences and separate finances. As noted above, Adam admitted that he had found no evidence that Dobel supports Karen financially or vice versa. Therefore, as in Hughes, we cannot say that the chancellor manifestly or clearly erred by finding that Adam failed to prove a de facto marriage.

¶25. To reiterate, a trial judge’s ruling on a Rule 41(b) motion to dismiss “is, for purposes of appeal, treated like any other finding of fact. In other words, [her] decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357. On such a motion, the trial judge is entitled to weigh the credibility of the plaintiff’s evidence as if “making findings of fact and rendering final judgment.” Id. at 1356-57. Thus, to the extent that Adam offered circumstantial evidence that could have permitted an inference of a de facto marriage, the chancellor was “not required to look at the evidence in the light most favorable to [Adam],” nor was she required to give him “the benefit of all favorable inferences.” Mitchell v. Rawls, 493 So. 2d 361, 362 (Miss. 1986) (quoting Davis v. Clement, 468 So. 2d 58, 61 (Miss. 1985)). The chancellor was entitled to judge the credibility of the evidence and make findings of fact. And we will reverse her decision only if she would have been “obliged to find for [Adam] if [Adam’s] evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369. Adam’s evidence was not so compelling as to oblige the chancellor to find in his favor. Therefore, we affirm.

Voilà, a textbook statement of the law on modification of alimony.

Some observations:

  • Cohabitation and de facto marriage are the two main avenues to termination of alimony.
  • Mutual support is the key characteristic of cohabitation. That will require financial proof. Discovery and use of subpoenas duces tecum are what it will take to develop your proof.
  • As far as de facto marriage is concerned, try to get an admission of avoiding marriage to preserve alimony. Friends may provide admissions of the principals against interest. Living and financial arrangements are crucial evidence. As with cohabitation, commingled finances and mutual support may create circumstantial evidence.

No Findings = Reversal

April 2, 2018 § 1 Comment

It’s axiomatic that the chancellor’s conclusions have to be supported by findings of fact.

A recent iteration of that rule is in Gipson v. Jackson, a COA case decided February 13, 2018, in which the court reversed and remanded a case for failure of the judge to make findings supporting an upward modification of child support in excess of the statutory child-support guidelines. Judge Westbrook wrote for the court:

¶9. Gipson argues that the chancellor failed to make specific findings on the record, as required for a modification of child support; yet there was a $200 increase. [Fn 3]

[Fn 3] Jackson asserts that the core issue of the case is whether the chancellor has the authority to increase child-support payments for a noncustodial parent without providing any factual support for his decision or consulting the Mississippi Child Support Guidelines. Jackson further asserts that this issue is an issue of first impression. However, this Court and the Mississippi Supreme Court have addressed child-support modifications involving a noncustodial parent and specific on-the-record findings of fact. See Dailey v. McBeath, 151 So. 3d 1038, 1044 (¶16) (Miss. Ct. App. 2014); Klein v. McIntyre, 966 So. 2d 1252, 1258 (¶20) (Miss. Ct. App. 2007); Wallace v. Bond, 745 So. 2d 844, 847 (¶11) (Miss. 1999).

¶10. This Court has held that “the chancellor must apply the guidelines to make the determination that their application would be unjust.” Evans v. Evans, 75 So. 3d 1083, 1091 (¶31) (Miss. Ct. App. 2011) (citation omitted). But there are exceptions to the guidelines regarding the modification of child support in Mississippi Code Annotated section 43-19-103 (Rev. 2015). This section provides:

The rebuttable presumption as to the justness or appropriateness of an award or modification of a child[-]support award in this state, based upon the guidelines established by [Mississippi Code Annotated section] 43-19-101 [(Rev. 2015)], may be overcome by a judicial or administrative body awarding or modifying the child[-]support award by making a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined according to the following criteria:

(a) Extraordinary medical, psychological, educational or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the noncustodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the noncustodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child-care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Miss. Code Ann. § 43-19-103 (emphasis added).

¶11. Jackson presented a Rule 8.05 financial statement to the chancery court, and Gipson testified that he could pay an increase in child support – although the amount of the increase was not discussed. The chancery court discussed the fact that Gipson and his wife traveled frequently and the fact that Gipson had purchased gifts [Fn omitted] for himself and his wife. However, the chancellor made no specific findings as to Gipson’s adjusted gross income and gave no specific reasons for deviating from the guidelines.

¶12. The chancellor stated that while Gipson was not working due to a chronic ankle injury, he could get a part-time job and earn more income. The chancellor also stated the following:

As to the modification of child support, there’s no doubt in this [c]ourt’s mind that this man can work. He is what you call a typical deadbeat. For a man to make only $500.00 a month, and has got all of the toys around his house that he’s got, but they belong to daddy. This [c]ourt wasn’t born yesterday. And he says he likes to fish[.] I do[,] too. It costs me $50.00 to $100.00 every time I go fishing — gasoline, the bait, and everything else. But this man is able to fish, he is able to do carpenter work, he is able to do a lot of other stuff, but he physically cannot hold out to hold a job. This [c]ourt doesn’t believe it. I’m going to set the child support at $350.00 a month, increase it.

¶13. However, we find that the increase in child support was based upon speculative income. In order for there to be a deviation from the guidelines, there must be specific findings of fact on the record. Further, “[w]hen a chancellor makes a ruling without specific findings of fact and a party raises the issue of the amount of child support awarded, this Court will send the issue back to the lower court for the mandatory specific findings of fact as to why the chancellor deviated from the guidelines.” Dailey, 151 So. 3d at 1044 (¶16). As a result, the chancery court’s upward modification of child support is reversed and remanded in order for the chancellor to make specific on-the-record findings that the application of the child-support guidelines would be unjust or inappropriate in this case.

As I have said here before, this do-over could have been avoided:

  • Here, seeing that the judge was going off on somewhat of a tangent, it might have been a good idea to ask the court for leave to develop more testimony that would have supported detailed findings by the judge. And then, at the conclusion of the proof, make a motion to conform the pleadings to the proof, since the issue was tried without objection by consent.
  • If you are tasked with drafting the judgment, make sure you address each and every Ferguson and Armstrong factor addressed by the court, with a brief stab at the court’s findings. When you do that you have documented what was not documented here — that the judge did analyze the proper factors. And this goes for every kind of case in which trial factors are required to be addressed.
  • If for some reason the bench ruling is not transcribed, ask the court before everyone is finally dismissed to order that it be done. If that does not work, file a motion to supplement the record to add the bench ruling.
  • If you can’t get the bench ruling into the record, file a timely R59 motion asking the court to make the appropriate findings.
  • Oh, and it should go without saying that it is your responsibility as counsel for one of the parties to make a record of the applicable factors in your case. The judge can not address them without evidence to support them. If you’re wondering what the applicable factors are, here is a link to lists of them , which I have referred to as “Checklists.”

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