DRINKING FROM THE POISONED WELL
January 7, 2013 § Leave a comment
Copied this tip on one way to lose an appeal from a new blog, Lost Gap: Commentary of Mississippi Law:
Attack the trial judge. You might start out by suggesting that he must be on the take because he ruled against you. Or that he is senile or drunk with power, or just plain drunk. Chances are I’ll be seeing that district judge soon at one of those secret conferences where judges go off together to gossip about the lawyers. I find that you can always get a real chuckle out of the district judge by copying the page where he is described as “a disgrace to the robe he wears” or as “mean-spirited, vindictive, biased and lacking in judicial temperament” and sticking it under his nose right as he is sipping his hot soup. Trial judges love to laugh at themselves, and you can be sure that the next time you appear in his courtroom, the judge will find some way of thanking you for the moment of mirth you provided him.
Any trial judge can identify with that heavily tongue-in-cheek humor. We judges do get copies of your briefs and other filing with the appellate courts, and, while it may satisfy your primitive urge to take a retributive swipe in a brief at the one whom you feel wronged you, it’s best to keep in mind that judges are human, and can identify with Shylock’s plaint: “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, do we not revenge?”
That last statement is a tad much, I believe. Most judges practiced law long enough before taking the bench that they let most slings and arrows bounce off their thick hides. And most judges I know focus on the law and the facts of a given case, and try hard not to let the personalities of the lawyers or parties decide it.
Still, it’s hard to imagine why one would — to paraphrase a colorful, often-used lawyer adage — urinate in the well one has to drink from.
The rest of the post, copied from a law journal article by a Ninth Circuit appellate judge is an eye-opening exposition in outline form of the imaginative ways that lawyers poison their own cases on appeal. It’s something you should copy and put in that special place where you keep your practical practice guide material.
Check out Lost Gap for your legal reading. If it keeps up the way it started, it’s going to be worth looking at regularly. I’ve added a link over there on the right.
THE ZWEBER ZIG-ZAG ON COLLEGE SUPPORT
January 3, 2013 § 3 Comments
You may recall my post back in February, 2012, about the COA decision in Zweber v. Zweber, in which that court adopted what I described as a rather expansive definition of college education support. This is the case, you may remember, where the daughter took flying lessons toward an aviation degree, and the mother balked at paying her part of the rather pricy tab. The chancellor ruled that she must, and the COA agreed, holding in essence that any expense in furtherance of the college degree is included.
Well, the MSSC reversed that COA decision on December 13, 2012. The MSSC decision in Zweber v. Zweber is one that all of you who prepare property settlement agreements (PSA) should study and take to heart.
The parties in Zweber had entered into a PSA that included the following language for college education support:
“The Husband and Wife shall each be required to pay for the cost of the minor children, with Husband paying two-thirds (2/3) of the expense and Wife paying one-third (1/3) of the expense, based on the cost of the child attending college at a four[-]year state[-]supported institution in such state as the child is a resident of. All costs are to be based on the average costs of meals, tuition, books and room, published in a state[-]supported catalog and not to exceed the cost of a four[-]year state[-]supported institution. This obligation shall continue even if the child is over twenty-one (21) years of age prior to the completion of college.” [Emphasis added]
At ¶ 15, Justice Dickinson’s opinion states: ” … the Court of Appeals correctly concluded that … in certain situations, parents may be required to pay for their children’s college educations and the extent of that obligation may go beyond payment for “meals, tuition, books, and room. But because the divorce decree in this case includes a specific provision addressing specific college expenses, it is distinguished” [from the cases cited by the COA].
This case highlights the critical importance of making sure that the PSA you offer for a particular client specifically meets the needs of that particular client. Don’t assume just because a provision got the desired results in one case that it will do the job an another case. One size does not fit all. In Zweber, if the provision had been drawn with less specificity, and possibly even made reference to the flying lessons, the result would likely have been different. Instead, the Supreme Court held that the unambiguous language of the parties’ contract governed. The specific, narrowly drafted language of the agreement saved Mrs. Zweber and cost Mr. Zweber.
As the MSSC said, in some cases, the covered costs may well go beyond, meals, tuition, books and room, but that depends on how the PSA is drafted.
WHAT TO DO AFTER THE SPECIAL MASTER REPORTS
December 5, 2012 § Leave a comment
It is my practice to appoint guardians ad litem to serve as special masters pursuant to MRCP 53. That rule vests the special master with broad powers, including subpoena powers and auhority to hold evidentiary hearings. The ultimate function of the special master is to produce a report, which is addressed in MRCP 53(g), which reads as follows:
(g) Report.
(1) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall file with it a transcript of the proceeding and of the evidence in the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) Acceptance and Objections. The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.
(3) Stipulation as to Findings. The effect of a master’s report is the same regardless of whether the parties have consented to the reference; however, when the parties stipulate that a master’s finding of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(4) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
That provision for acceptance and objections is what tripped up the appellants in the COA case of Gettis and Montgomery v. Frison, decided October 30, 2012.
To make a long and sinuous train of events short, Gettis and Montgomery filed an objection to the special master’s report, but neither noticed it for hearing nor apparently served a copy of their objection on the judge. The chancellor entered an order adopting the report, and the objectors appealed.
The COA cited Miles v. Miles, 949 So.2d 774, 778-9 (Miss.App. 2006) for the proposition that the appellants can not complain that the were denied the right to a hearing when they did not comply with the procedural requirements of 53(g), which conditions the right to a hearing on the filing of an objection and motion and giving notice of hearing per MRCP 6(d).
If you are involved in a case where a special master has been appointed, be sure you read and comply with Rule 53 to the letter. The filing of an objection and a hearing thereon may be your only opportunity to get the report modified or tweaked for your client’s benefit, because 53(g)(2) specifically dictates that “The court shall accept the master’s findings of fact unless manifestly wrong.”
As I have said here many times: Read the rule. That hazy recollection from the last time you glanced at a part of it twelve years ago might not serve you well at all.
And a side note: In the Gettis and Montgomery case, the COA decision by Judge Irving points out several times that the appellants never filed a post-trial motionasking the chancellor to take another look at how the case had played out. The insinuation is that the judge may have relented and given them a chance to make a record, but we will never know that because they did not file a motion for rehearing. As we have discussed here before, you are not required to file a post-trial motion in chancery as a prerequisite to an appeal, but it may just give you that one more bite at the apple that you need.
A CAVEAT ABOUT PROCESS BY CERTIFIED MAIL
December 3, 2012 § Leave a comment
MRCP 4(c)(5) allows for process by certified mail on a natural person outside the state. There are two requirements: (1) that a copy of both the summons and the pleading be sent by certified mail, return receipt requested, restricted delivery; and (2) that there be evidence of the delivery or by the envelope returned marked, “Refused.” If either of the requirements are not met, you have to reissue process.
There must be proof that both “the summons and the complaint” (that’s the language of the rule, which I interpret to mean the summons and the pleading initiating the instant action) were included in the certified mailing. You can do this yourself by affidavit or certficate of service in the court file, or you can ask the clerk to do it with a notation on the docket, as in MRCP 4(c)(4)(C). Your notice that the petition or other pleading was sent, not mentioning the summons, is inadequate process. Likewise, merely mailing the summons alone is not enough.
It is not adequate for the process to be issued and addressed to “John Smith,” and for the return receipt to be signed by “J.W. Smith” or “Kathy Smith for John Smith,” or “Phyllis Smith, mother of John Smith,” or any other person. Also, the record must show that the signature on the receipt is actually that of the party to be served. In a recent case in my court, the signature on the receipt unquestionably did not even remotely resemble the defendant’s signature on the original property settlement agreement or on a return mail receipt for an earlier proceeding.
And, of course, the process must be timely served. For a Rule 81 summons, the return receipt must show deliver within the requisite time.
Also, the rule specifies that it applies to “a person outside this state.” In my opinion, it does not apply to natural persons located in Mississippi. There is a first-class-mail process provision for persons in Mississippi at MRCP 4(c)(3), and it does allow at its subsection (B) for service “in any other manner permitted by this rule,” if the required acknowledgment of mailing is not returned. But Rule 4(c)(5) specifically limits itself to “a person outside this state …”
The rules for serving an out-of-state corporate entity or an out-of-state government entity are spelled out separately in MRCP 4(d)(4) and (8), respectively.
When I practiced, I almost never used certfied mail process (or first class mail either, for that matter). In my experience, postal employees don’t take any care to make sure that the deliveree is actually the addressee, or that the delivery is truly “restricted” within the meaning of the term, or that any of your needs are met. They are more concerned with getting that letter out of their hands, with a signature on the green card that they can hand off to somebody else. I usually persuaded my clients to go to the extra expense of retaining the services of a process server to save time and frustration. But I recognize that in these times of economic strain your clients appreciate anything you can do to save them some money.
If you’re going to use certified mail process, take the time and pay the attention to do it right. Read the rules. Process rules are to be strictly construed. Sloppy handling will result in unnecessary, frustrating delay for your client and further expense to get that summons served.
JUST AND PROPER UNDER THE CIRCUMSTANCES
November 29, 2012 § Leave a comment
A chancellor has the power to impose conditions that may seem “just and proper under the circumstances,” regardless whether any party demanded such relief. Miss. State Highway Commission v. Spencer, 233 Miss. 155, 101 So.2d 499, 504-05 (1958).
The source of this power is apparent in several of the maxims of equity:
- Equity will not suffer a wrong without a remedy.
- Equity delights to do complete justice and not by halves.
- Equity acts specifically and not by way of compensation.
The proper focus of a chancery court remedy, then, should be to fix the underlying problem, completely and not in part.
In three recent COA cases, the court upheld chancellors’ rulings where the trial judge went beyond the pleadings to fashion a remedy designed to fix the underlying problem.
In Goolsby v. Crane, decided October 23, 2012, and discussed in a previous post, the parties were before the court on the mother’s petition to modify to increase child support, and the father’s counterclaim for custody. After hearing all of the testimony, particularly that of the children, the chancellor found that the then-existing visitation schedule was not working, and he modified the visitation schedule. No one had asked for that particular relief, but the COA affirmed on the basis that there was substantial evidence to support the judge’s action.
The case of Finch v. Finch, handed down October 2, 2012, which was the subject of a previous post here, arose from post-divorce contempt and modification procedures. The ex-husband pled that the ex-wife’s alimony should be terminated because she had misled him about joint debts when he agreed to a property settlement agreement, and he now found himself saddled with considerable debt. The chancellor took it a step further and found that the ex-wife had committed a fraud on the court, justifying termination of her alimony. The ex-wife appealed, copmplaining that the ex-husband had failed properly to plead fraud (see Rogers v. Rogers, decided August 1, 2012, and posted about here). The COA affirmed, finding that there was a substantial basis to support the chancellor’s decision, and pointing out anyway that the mention of the words “falsely represented” in the ex-husband’s petition was enough notice that the issue was in play. The court also pointed out that the chancellor has the power under MRCP 60(b) on her own motion to address fraud.
In Scott v. Scott, decided October 30, 2012, the parties had entered into a 1997 property settlement agreement that gave the ex-wife all of the ex-husband’s Tier II Railroad Retirement Benefits “through the date of the divorce.” A separate order was drafted for submission to the retirment agency in the form required by that agency, but the order left out the phrase “through the date of the divorce.” Predictably, when the husband applied for his benefits, he learned to his chagrin that the agency, relying on the order, had awarded the wife 100% of the Tier II without limitation. The ex-husband asked the chancellor to modify to correct the situation, and the ex-wife denied that the property division could be modified. The chancellor brushed aside both positions and invoked MRCP 60(a) to correct the clear discrepancy between the express terms of the parties’ agreement and the order. The COA affirmed.
The common thread in each of these cases is that the trial judge did what she or he deemed “just and proper under the circumstances” to fix the underlying problem. It’s a matter of substance over form.
CUSTODY WHEN THERE IS NO DIVORCE
November 27, 2012 § Leave a comment
In the COA case of Jones v. Jones, decided November 13, 2012, Carrie Jones filed for divorce against her husband, Donald, who in turn filed a counterclaim for divorce against her. The parties agreed to present the case in a bifurcated fashion, first presenting proof of grounds for divorce and letting the court adjudicate the divorce before proceeding to other issues.
Carrie presented her evidence, at the conclusion of which Donald moved for dismissal under MRCP 41(b). The chancellor ruled that Carrie had not met her burden of proof, and dismissed her complaint. Donald then dismissed his counterclaim. When Carrie asked to go forward on the remaining isssues of child custody and support, the chancellor refused on the basis that her complaint was dismissed, and there was nothing further to adjudicate.
Carrie appealed, raising several issues (she did not contest the denial of the divorce).
First, she claimed that the chancellor had a constitutional duty to protect the child, and that the court should have adjudicated custody even though the divorce complaint was dismissed. Judge Fair, writing for the majority, agreed that the chancery court has a duty to protect children, but disagreed that the duty extended to adjudicating custody in a situation such as this. He wrote:
This [constitutional] responsibility does not impose upon chancellors an affirmative duty to adjudicate custody for every dismissed divorce complaint.
¶6. The Mississippi Supreme Court has held that a chancellor may provide for the custody of children after dismissing a complaint for divorce. See Waller v. Waller, 754 So. 2d 1181, 1183 (¶12) (Miss. 2000). “The court, however, is not required to make a decision regarding custody where it dismisses the petition for divorce.” Id. (citations omitted).
¶7. In domestic-relations matters, chancellors enjoy considerable discretion and are trusted to evaluate the specific facts of each case. See Harrell v. Harrell, 231 So. 2d 793, 797 (Miss. 1970). Here, the limited record contains no indication that either parent would be unfit or unsuitable for custody. We cannot say the chancellor abused his discretion by declining to adjudicate custody.
Second, she argued that the court should have dismissed only the divorce complaint and left standing her claim for custody. This, too, the court rejected:
¶10. Carrie characterizes her claims for custody and child support as independent actions cognizable under section 93-11-65 of the Mississippi Code Annotated (Supp. 2012). But our case law contradicts this interpretation. In Slaughter v. Slaughter, 869 So. 2d 386, 397 (¶33) (Miss. 2004), the Mississippi Supreme Court held that a custody matter may not proceed under section 93-11-65 when a divorce is pending. Therefore, Carrie’s claims for custody and child support cannot properly be understood as independent issues. Mississippi Code Annotated section “93-5-23 provides for the child’s care and custody in a divorce situation and 93-11-65 . . . is an alternative[.]” Slaughter, 869 So. 2d at 396 (¶33).
[The opinion goes on to distinguish the holding in the modification case, Anderson v. Anderson, 961 So. 2d 55, 59-60 (¶¶8-10) (Miss. 2007)].
How do you avoid a result like Jones? It seems to me you could plead in counts, Count I being the claim for divorce, equitable distribution, a 93-5-24 claim for custody, etc., and Count II being the 93-11-65 child custody and support claim. By pleading in counts you are in my opinion filing what amounts to severable law suits. Under Slaughter, then, you would be barred from proceeding on Count II as long as Count I is pending. But if Count I is dismissed, you still have Count II to fall back on, and it would be viable at that point because the 93-5-24 claim is dismissed.
There is a caveat, however. The venue requirements for divorce and 93-11-65 are not identical. You may have venue for the divorce, but not for 93-11-65.
I’m not saying categorically that this is the answer to the problem because I have not researched the question beyond Jones and Slaughter. The tactic I am suggesting, however, was not employed in either of those cases, as far as I can tell from reading the opinions. Thus, my solution gives you an arguable basis to go forward on custody if you are stymied on grounds for divorce.
MEDIATION THAT WORKS, PART V: THE $64,000 QUESTION
November 20, 2012 § Leave a comment
This is Part V in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
THE $64,000 QUESTION
When I am mediating a domestic issue, I always begin the first caucus with this question to the party: “If you could be your own judge — and I know that you would be reasonable and fair, knowing that you cannot have it all – how would you determine the issues that face you and the other party, and why would you do it that way?”
Prepare your client to be able to identify the issues that must be resolved for mediation to be effective, and how he/she would resolve them and why. The ability to communicate this to the mediator can go a long way in preparing your client to understand that there is give and take in mediation that there will not be in a trial. It also prepares your client to be reasonable and sensitive in approaching emotional issues.
Remind him/her that things can be resolved in mediation that cannot even be broached in a courtroom and if some of those things are of significance to him/her, this is the opportunity to discuss them and sort them out.
MEDIATION THAT WORKS, PART IV: LYDIA’S CHEAT SHEET
November 19, 2012 § 1 Comment
This is Part IV in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
LYDIA’S CHEAT SHEET
Questions to ask yourself in order to aid the mediator if the process gets bogged down:
- What does my client want to achieve?
- What does my client think the other party wants to achieve?
- Does my client have any particular expectations about the process or expectations about the resolution?
- Can my client identify for the mediator what he/she believes the key issues are?
- Can my party identify for the mediator what he/she believes the key stumbling blocks to resolving the issues are, either for him/herself or for the other party?
- Does my client have to “account” to others for the resolution which may be reached, or “explain” his/her decision to others (advisor, family, friend)? If so, what do I need to know about those others?
- Does my client have an interest in maintaining a relationship with the other party or, for that matter, initiating a better relationship with the other party? In Chancery matters, it is often significant for relationship protection to occur within the context of a mediation. Chancery is often the “family court” and family matters, however strained, can be protected and, with a good mediator, even improved.
- Does my client perceive that the other party has ulterior motives?
- Does my client have personal goals that will be affected by the outcome of the process?
- Are there any outside constraints on the outcome, either real or perceived?
MEDIATION THAT WORKS, PART III: USE SILENCE AND TIME AS ALLIES
November 15, 2012 § 2 Comments
This is Part III in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
LEARN TO USE SILENCE AND TIME AS ALLIES
As litigators, we talk.
In mediation, it’s different. We must learn to use silence and time as allies. First of all, parties need to vent. Most mediators will give all parties a period of time to vent in a joint session. Encourage your client to listen respectfully – really listen – while the other party tells his/her story. If this party feels that he has been heard, it makes a difference in the remainder of the mediation.
Recognize that one party to the mediation may need silence and/or time to contemplate. That party may be on the verge of coming to a resolution which causes him/her to give up something dear, to realize that he/she has made erroneous assumptions, or to personally address his/her fear of loss of power, prestige or status. We must give the party time to process those feelings and thoughts.
Mediation is a process. Time and silence are allies.
MEDIATION THAT WORKS, PART II: CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE
November 14, 2012 § Leave a comment
This is Part II in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.
CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE
Daniel Yankelovich says, in The Magic of Dialogue: Transforming Conflict into Cooperation: “There is no greater obstacle to dialog than mistrust.” Litigation is laced with mistrust. In order for us to be effective for our client in mediation, we must focus on the party opposite and capture their attention and confidence. It is only after that party has deemed us to be trustworthy and rational that we can begin to effectively combat the mistrust that the parties have built up for each other, disclosed or undisclosed.
One way to develop this rapport is to reiterate the goodwill with which you and your client have approached the mediation. Remind party opposite that there is a mutuality of purpose between them, and that purpose is the successful resolution of a joint problem. Encourage them to listen to each other, and listen to each other empathically. Remind everyone that people are rarely the demons that they may seem.
One of the simplest ways to capture the attention and confidence of another is to demonstrate a genuine interest in him/her. It is refreshing for a party to hear that while in the courtroom you will come on like a tiger, mediation is the place where we can all be willing to relax and explore options that will not be available at trial. I always like to remind my client and party opposite that you can never predict what a trial judge or jury may do, and mediation is the last best opportunity to take control of their future. While they may not get everything they want in mediation, they surely will not get everything they want as the result of a trial.
The Better Chancery Practice Blog 