Modification | The Better Chancery Practice Blog

MAKING CHILD SUPPORT RETROACTIVE

March 13, 2012 § Leave a comment

Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.

That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.

In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:

“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]

The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:

“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”

It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.

Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.

ANOTHER OBJECT LESSON IN PSA DRAFTSMANSHIP

December 21, 2011 § 2 Comments

What does the following language in a divorce property settlement agreement (PSA) mean?

The parties both agree and understand that [Stephen] will retire from Martin Marietta Manned Space Systems effective April 24, 1992. . . . The parties have agreed to accept #D-Level Income as the monthly benefit option. This will provide [Stephen] a monthly income of approximately $3[,]189.26. [He] will remit to [Gloria] one-half of this income, being the approximate amount of $1,594.63, on the first day of each month . . . commencing on January 1, 1993. These monies will be considered alimony[,] and [Gloria will be responsible for the income taxes].

That was the question squarely presented to the chancellor in litigation between former spouses Stephen and Gloria Reffalt.

Stephen and Gloria were divorced in 1993. Stephen had retired from his job with Martin Marietta (MM). Approximately two years later Stephen’s retirement benefits paid by MM were reduced when his Social Security benefits kicked in, as the plan provided. As a result of the automatic reduction, the $1,594 payments to Gloria came to represent considerably more than 1/2 of the MM benefit. Nonetheless, Stephen continued paying the $1,594 until December 2008, when he apparently decided enough was enough, and he filed a petition to modify the payments proportionally to about $1,150 a month.

Stephen took the position that the above PSA language clearly intended that Gloria receive only 1/2 of his MM retirement benefits, whatever that amount might be.

Gloria argued that the language mandated that she be paid 1/2 of Stephen’s total retirement benefits from whatever source.

The chancellor found the language to be ambiguous and accepted parol evidence of the parties’ intentions in the drafting of the contract. Placing heavy emphasis on the parties’ course of conduct over fifteen years after the reduction in MM benefits, the trial court held that the language intended that Stephen pay the higher amount, and denied his request for a downward modification.

In Reffalt v. Reffalt, decided December 13, 2011, the COA affirmed. I recommend that you read the opinion, written by Judge Ishee, for its exposition on the principles of contract interpretation and what is and is not an ambiguous contract. The opinion also touches on the question of modification of property settlement.

This case is yet another example of draftsmanship that may appear at first blush to be clear, but on further inspection is susceptible to several different interpretations. Consider the language ” … This will provide …” and ” … one half of this income …” To what do the pronouns this refer? Are their objects the same thing or different? Better to have said “… one half of the #D-Level benefit each month …” Or “Stephen will pay to Gloria the sum of $1,594 each month.” Or “The amount payable by Stephen shall be adjusted automatically to be equal to 50% of his #D-Level benefit actually received, without any voluntary action on his part to reduce the amount received.”

A few suggestions:

As I have said here before, it’s a good idea to draft and set aside that agreement for a day or two. Then pick it up and read it through different eyes. Cast yourself in the role of the judge looking at it years later, or the plan administrator considering how to apply it, or another lawyer to whom your former client has carried it.
Go pronoun hunting. Eliminate as many as you possibly can, replacing them with the specific term that you intend to refer to.
Does your language say exactly what you mean to say, or is it indirect and prolix? More words are not always better. The more verbosity you use, the more likelihood that confusion, unintended meanings and ambiguity will grow and fester in that thicket like a staph infection.
Here are five suggestions for improving your PSA’s.
And here are five more.
Here is a post about a nightmare scenario in draftsmanship.
Kicking the can down the road, and why it’s not a good idea in your PSA’s.
And here is a post on some examples of the hidden costs of divorce that you need to take into account when drafting a PSA.

Give your PSA’s some thought. That’s what you’re being paid for. Strive for your PSA’s to be better than 99% of other attorneys’. Make it your goal that no judge will ever have to find one of your PSA provisions to be ambiguous.

REVISITING TRIAL CHECKLISTS

November 22, 2011 § 2 Comments

Every few months I try to remind lawyers about the importance of putting on proof of the factors spelled out by the appellate courts that are required to make your case. This may also come in handy for any newcomers who haven’t stumbled on prior posts on the subject.

I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.

Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.

Here is a list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

To make it easier to find checklists, I’ve added a category that you can search by using the category search tool on the right side of the page.

Next time the court denies your claim for attorney’s fees or for your client to claim the tax exemption for the children, ask yourself whether you put on the necessary proof. Not only is it crucial to your case at trial to prove all of the applicable factors, but you can’t expect to have a prayer on appeal without the requisite proof in the record.

THE INFORMAL CUSTODY ARRANGEMENT AND ITS IMPACT ON PERMANENT CUSTODY

September 26, 2011 § 3 Comments

I talked here before about the Varner case, which holds that a child-support-paying parent (the father in that case) who has a child come to live with him may receive a credit against unpaid child support for that de facto custodial time. In Varner, the mother had court-ordered custody, but the parties made a handshake deal for the child to go and live with the father for a time.

Taking a similar set of facts, would the father have a basis to ask the court to modify custody?

In Arnold v. Conwill, 562 So.2d 97 (Miss. 1990), the father had the son with him for 16 months because of the mother’s unsettled living situation. The mother had asked the father to take the boy until she could get settled. When she did get into a stable situation, she asked the father to return the child to her custody. When he refused, she picked the child up from school, enrolled him in a new school, and resumed full-time custody of the son. The father filed a modification action, and the chancellor granted him custody due to the 16-month period.

On appeal, the MSSC recited the familiar material change-adverse effect-best interest test for changing custody. Applying that test to the facts of the case, the court said (at 100):

“To her credit, when she fell upon hard times, appellant called the child’s father for help. The custody was temporarily interrupted because of conditions over which she had no control. When she stabilized the situation, she asked appellee to restore custody to her and he declined. The parties’ act, in temporarily modifying the decree, was not binding on the court. The only change in circumstances, upon which the appellant can rely, and which the court accepted, was the fact that the father had custody for sixteen moths while the appellant, the mother, had liberal visitation withh the child.

Simply, the facts of this case do not reflect a material change in the circumstances of the parties and the child, which adversely affected [the child], to the extent that his custody should be changed from appellant to appellee.”

A lot of water has flowed under the bridge in the 21 years since this case was decided, but I believe it is still good law for the above points, and it has never been overruled or criticized. There are, however, two wrinkles:

At page 100, there is this statement: “The courts do not favor separating siblings when their parents divorce.” That concept has been refined since then to provide that, although separation is not favored, there is no hard and fast rule about separation, but it is one of many factors to be considered by the court among the Albright factors for determination of best interest. See, for example, Kimbrough v. Kimbrough, decided by the COA May 3, 2011.
And on the same page is the statement that the facts of the case did not reflect material change-adverse effect-best interest, and “Neither did the motion so charge nor the chancellor so find.” As we’ve discussed before, the law now is that if you fail to plead the elements of custody modification, your case is subject to being dismissed for failure to state a claim upon which relief can be granted.

THE POT OF GOLD AT THE END OF THE RAINBOW

August 3, 2011 § 8 Comments

You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?

I’ve talked about the best ways to approach attorney’s fees here and here. And fees in an estate matter are covered here and here.

In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention. Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:

The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss. App. 2000).

When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:

(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).

Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.

The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01[6] [b] (explaining that the chancellor should consider the parties’ financial disparity).

In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).

Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).

As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”

If you expect to be successful on a claim for attorney’s fees, you have to prove:

That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
Each of the McKee factors;
Quantification of the fees by showing the time and effort expended;
That the party you want to pay has the ability to pay.

Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.

CREDITING “UNPAID” CHILD SUPPORT

June 1, 2011 § 2 Comments

Lawyers and the courts are often called upon to clean up the mess made by the parties when they make a handshake deal to modify a judgment. Here’s a fairly common setting …

The custodial mom and son aren’t getting along. The child is a rebellious teenager who is not interested in school. He has fallen in with the wrong crowd and appears headed for trouble. Non-custodial dad agrees for the child to come live with him to finish out the school year and get him straightened out. Junior lives with dad for 10 months, does better in school, gets his head right, and returns to live with mom. During the 10 months Junior was with his father, dad did not pay the $300 a month child support ordered by the court in the divorce judgment. As soon as Junior returns home, mom files a contempt action against dad, wanting her $3,000 in child support arrearage, plus interest and attorney’s fees.

Mom claims that the law of Mississippi is that the court can not enforce a modification by the parties, and that if dad had wanted to be relieved of child support he should have gotten a court order.

Dad points to the fact that he supported the child 100% during the 10 months Junior was with him, and the money would be an unjust enrichment for mom.

Who’s right?

In the case of Varner v. Varner, 588 So.2d 428, 434 (Miss. 1991), the parties had three children with a “global” child support obligation of $600. One of the children came to live with the father for a number of years. The court said:

The law remains firm that court-ordered child support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid. But this does not mean that equity may not at times suggest ex post facto approval of extra-judicial adjustments in the manner and form in which payments have been made.

The court went on to find that the father had, indeed, made the child support payments ordered by the court for Junior’s benefit. He just did not make the payments to the mom. The court cited the case of Alexander v. Alexander, 494 So.2d 365, 368 (Miss. 1986), quoting it as follows:

If we affirm the chamcellor’s back award of child support to Mrs. Alexander, we will create a situation of unjust enrichment in Mrs. Alexander. This is true because nduring the entire period of time for which Mrs. Alexander claimed support Mr. Alexander had the child in his custody, was supporting the child, and furthermore, was paying the child the $200 a month child support called for by the decree.

Under these circumstances Mrs. Alexander would have no claim to the back child support except to accept it as a conduit to pass directly to the child or back to Mrs. Alexander for the use and benefit of the child. We consider this a vain and foolish act. In our opinion, when the custodial parent received full child support during the time she had custody of the child, did not complain when the child moved in with the other parent, and accepted this arrangement for 20 months with the child support being paid directly to the child, the parent paying the child support is entitled to full credit for all child support paid to the child. He is also entitled to [credit for] any additional support which he has evinced by satisfactory proof to the trial court.

The court went on to say that the father may receive credit for having paid child support where the child lived with him for a time and he paid the support directly to, or for the benefit of, the child. The effect of Varner is that the paying parent is granted a pro rata credit for child support. In Varner (at page 434), that meant that the father received a $200 a month credit against his “global” child support obligation of $600 a month for three children; in other words, since 1/3 of the children lived with him for a time, he is entitled to a pro rata reduction of 1/3.

The decision also includes the familiar admonishment that parties who modify a court judgment without court approval do so at their peril, and they encouraged parties to obtain a judgment incorporating their agreement before embarking on it.

A similar issue arose in Dorr v. Dorr, 797 So. 2d 1008, 1012-1015 (Miss. App. 2001), in which Houston Dorr was ordered to pay child support to his former wife, Susanne Dorr. In return, Houston was given the right to claim the child as a dependent for tax purposes. Houston failed to make consistent child-support payments from 1985 to 1994. In 1988, Houston and Susanne made an extra-judicial agreement whereby Houston relinquished his right to claim the child as a dependent for tax purposes. Susanne claimed the tax exemption from 1988 through 1994 and received a $4,300 tax benefit from doing so. Then, in 1998, Susanne filed suit against Houston for the back child support. The COA found that, although the chancellor had no authority to enforce the extra-judicial agreement, the chancellor erred by not giving Houston credit for giving up his right to the exemption. The court held:

In our view, this financial benefit to [Susanne] for the child’s benefit, though not directly derived from [Houston]’s own income, in equity ought to be considered as a credit towards [Houston]’s recurring child support obligations accruing during the same period, much in the same manner that such indirect payments as social security payments to dependent children derived through the efforts of the obligee have been allowed as credit toward child support. See , e.g., Bradley v. Holmes, 561 So. 2d 1034, 1035 (Miss. 1990).

Dorr was followed in the COA case of Potts v. Windham, decided March 1, 2011, at ¶ 8. The trial court had denied credit to the father for the amount of the mother’s income tax refund because his income was such that he would not have paid any income taxes had he filed, whether or not he claimed the child as a dependent. In reversing, the COA noted that the mother had realized a $4,300 credit by claiming the child, and that the benefit to her, not to the father, was the relevant yardstick to determine whether there would be unjust enrichment.

In the Bolton v. Bolton, decided May 24, 2011, by the COA, at ¶ 47, the following language appears:

Courts award child-support to the custodial parent for the benefit and protection of the child. Smith v. Smith, 20 So. 3d 670, 674 (¶13) (Miss. 2009). “Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child.” Id. “The law remains firm that court-ordered child-support payments vest in the child as they accrue and may not thereafter be modified or forgiven, only paid.” Id. “But this does not mean that equity may not at times suggest ex post facto approval of extra judicial adjustments in the manner and form in which support payments have been made.” Id. “The noncustodial parent may be entitled to credit for any additional support which he/she has evinced by satisfactory proof to the trial court.” Id.

In Bolton, the parties had resumed cohabitation after the divorce for a time, and the father was given credit for around $10,000 in payments that he was able to prove he had made for the benefit of the child during the time that the parties lived together. The credit reduced his arrearage in child support from around $14,000 to around $4,000.

To sum it up, your client may just be entitled to some credit for payments made for the benefit of the child in lieu of child support. The result appears to rely on a situation where there is either an actual live-in situation or an actual intended exchange of value in place of child support. Don’t expect your client, though, to get credit for birthday presents, new shoes, school supplies, or toys purchased in the ordinary course of being a non-custodial parent.

FIVE MORE TIPS FOR MORE EFFECTIVE RULE 8.05 FINANCIAL STATEMENTS

March 14, 2011 § 9 Comments

I posted here ten tips for more effective financial statements.

Here are a handful more to use in your quest for financial statement perfection:

Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”
Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused catergory like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.
Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.
Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, andd retirement contributions.
Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.

Of all the documents you admit into evidence at trial, the 8.05 is the one that the judge will study the closest and spend the most time poring over. Make it a workhorse for your case.

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.

UCAPA: A VALUABLE CUSTODY TOOL

November 23, 2010 § Leave a comment

Mississippi adopted the Uniform Child Abduction Prevention Act (UCAPA) in 2009. It is codified at MCA §§ 93-29-1 through -23.

Although the title of the law refers only to abduction, the new statutes go much further and offer proceedings and remedies for situations involving violation of a court order by removing or withholding custody of a child, both of which are situations frequently encountered by practitioners and the courts. The unique aspect of this law is that it is preventative; that is, it allows the court to act in anticipation of a violation, provided that certain things are proven. You need to be aware of this law and add it to your repertoire of actions in custodial situations of every kind and nature.

The Act is an adjunct to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCA §§ 93-27-1 through 209.

The purpose of the law is to provide legal measures to prevent child abduction, which is defined in Section 3 as “wrongful removal or wrongful retention of a child,” or wrongful removal of a child, which is defined as “taking of a child that breaches rights of custody or visitation given or recognized under the laws of this state,” or wrongful retention of a child, which is defined as “the keeping or concealing of a child that breaches the right of custody or visitation given or recognized under the law of this state.”

There are three ways to impose measures under the Act spelled out in Section 7:

A court may on its own motion impose abduction prevention measures if it finds that the evidence establishes a credible threat of abduction. Section 3 states that the court is any aythorized to establish, enforce or modify a child custody order.
A party to a child-custody determination or a party having a right under Mississippi law or the law of any other state may petition to have obtain abduction prevention measures. A child custody determination is defined in Section 3 as “a proceeding in which the legal custody, physical custody, physical custody or visitation with respect to a child is at issue, including divorce and dissolution of marriage, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, or protection from domestic abuse.
A prosecutor or certain public officials may take action.

Jurisdiction is in any court that has child custody jurisdiction under the UCCJEA. Also, a court of this state may have temporary emergency jurisdiction under MCA § 93-27-204.

The petition must be verified and include a copy of any existing child-custody determination. The petition must state a factual basis for the belief that there is a credible risk of abduction, stating which of the factors set out in Section 13 are applicable, and why. Subject to MCA § 93-27-209(5) (where information must be kept confidential to protect the safety of a child), the petiton must also include (a) the name, birth date and gender of the child; (b) the customary address and current physical location of the child; (c) The identity, customary physical address and current physical location of the respondent; (d) a statement whether a prior action to prevent abduction was filed by anyone having custody of the child, and the date, location and disposition of the action; (e) a statement whether a party has been arrested for a crime related to domestic violence, stalking, child abuse or neglect, and the date, location and disposition of the case; and (e) any other information required to be submitted to the court under § 93-27-209, MCA.

Section 13 lists factors to be considered by the court in determining whether there is a credible risk of abduction, and allows the court to take into consideration that the respondent may have believed in good faith that her actions were necessary to prevent harm to the child, or that they were done with permission. The factors include whether there has been:

A previous abduction or attempted abduction;
A threat to abduct;
Recent activity indicating a planned abduction;
Domestic violence, stalking or child abuse or neglect;
Refusal to follow a child-custody determination;
Lack of strong familial, financial, emotional or cultural ties to this state or the United States;
Strong familial, financial, emotional or cultural ties to another state or country;
Likelihood of taking the child to another country that is not a party to the Hague Convention, or the laws of which would bar efforts by the other party to contact or re-gain custody of the child, or which poses a threat to the health or safety of the child, or is a terrorist state, or is one with which this country has no diplomatic relations, or is involved in any external or civil war to which the child may be imposed.
An ongoing immigration proceedings that may result in expulsion;
An application for U.S. citizenship denied;
Falsified travel, driver’s license or other government-issued documents, or misrepresentations to the United States government;
Use of multiple names;
Any other relevant conduct.

If the action is brought on the court’s own motion, the court must also consider the age of the child, the potential harm to the child, the legal and practical difficulties of returning the child to the jurisdiction if the child were abducted, and the basis for a finding of potential abduction.

An order issued by the court must include the provisions spelled out in Section 15

Measures that may be imposed to prevent abduction as set out in Section 15 may include:

Imposition of travel restrictions;
Prohibition from removing the child from this state or the United States, from retaining the child in violation of a court order, or even from approaching the child at any location other than one designated by the court for supervised visitation;
Requirement to register the court’s order in the other state as a condition precedent for visitation with the child in that state;
An order that the child’s name be placed on the U.S. State Department’s Passport Issuance Alert Program;
Surrender of passports and prohibition against applying for new or replacement passports or visas;
Other measures as spelled out the section.

The court may also limit visitation, require a bond, order educational programs, issue a warrant to take custody of a child, direct law enforcement to locate and take or return custody of a child, and grant any other relief necessary.

The court’s order remains in effect for the time stated in the order, or until emancipation of the child, or until the child attains age 18, or until further order of a court of competent jurisdiction.

This court’s view: On first blush, it would appear that this would be a rarely-invoked law. After all, how many times have genuine abduction situations arisen in our courts? Well, in 2010, I have already had two cases that raised issues under this law. One involved a citizen of middle-eastern country married to an American citizen who was alleged to have threatened in the heat of a separation squabble that he would take the children to his country and the mother would never see them again. The other involved grandparent visitation rights and a threat to take the children to another state or Canada where the parent would no longer be required to submit to the court’s order.

But those specific instances are only the more exotic examples. With a little imagination and effort, you can find ways to make this statute work for your clients in more prosaic cases.

There have been many scenarios over the course of my legal career where this law would have come into play and provided a remedy where none existed then.

Practice Tip: Familiarize yourself with UCAPA and add it to your repertoire to use in child custody, visitation and wrongful retention cases, especially where there are interstate or international considerations. It can be an important tool in your custody tool box.

THE PARENT TRAP

September 28, 2010 § 5 Comments

We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.” In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support. The Williams court, however, added this caveat:

“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.” [Emphasis added]

Fast forward to 2009.

In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.

Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his. Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce. Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.

Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.

The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.

On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity. He also pointed out that the home test was not legally binding, while the court-ordered test was.

The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.

Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him. In Williams, the exact opposite of those facts existed.

The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified. He knew the child was not his at the time, and that circumstance had not changed.

Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not. Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.

If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases. If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.

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